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https://www.courtlistener.com/api/rest/v3/opinions/1373305/ | 236 Ga. 131 (1976)
223 S.E.2d 107
HARALSON
v.
MOORE.
30555.
Supreme Court of Georgia.
Argued January 15, 1976.
Decided January 28, 1976.
Custer, Smith & Manning, Lawrence B. Custer, Ralph Slovenko, for appellant.
Hatcher, Meyerson, Oxford & Irvin, Clifford Oxford, Steven J. Edelstein, for appellee.
JORDAN, Justice.
This appeal is from an order changing custody of the parties' minor child to the father from the mother, who was given custody in a divorce action between the parties.
The father filed a complaint in Cobb Superior Court alleging a change of condition since the grant of custody to the mother. The superior court judge referred the matter to the juvenile court for investigation, recommendation, *132 and report back to the superior court. The parties were ordered to submit a list of witnesses for the juvenile court investigators to interview. The report of the juvenile court recommended that custody of the child be placed in the father.
After consideration of the report, the superior court judge found that a substantial change of condition had taken place since the award of custody to the mother, and changed the custody to the father, with visitation rights in the mother.
1. The appellant mother contends that the superior court judge, in relying entirely upon the report of the juvenile court, abdicated its responsibility to determine the issue of custody.
The 1971 Juvenile Court Code (Ga. L. 1971, p. 709 et seq.), as amended by Ga. L. 1974, pp. 1126, 1127 (Code Ann. § 24A-302 (b)), provides that courts of record handling cases involving the custody of children "may transfer the question of the determination of custody... to the juvenile court for investigation and report back to the superior court..."
The order of the superior court judge recites that the parties consented to the submission of the question of custody to the juvenile court, and that, after the report was received, it was further agreed that he should then consider whether there had been a substantial change of condition since the divorce decree, and issue an order determining the matter of custody.
It thus appears that error (if there be any) by the superior court judge in having no independent hearing was waived by the appellant.
2. The appellant contends that the report of the juvenile court is defective in that it was based on hearsay and was financed by the father.
A report of an investigating officer who has interviewed witnesses is by its nature hearsay evidence. However, the appellant consented to the consideration by the superior court judge of the report of the juvenile court, and cannot complain that it was based on hearsay.
The record does not substantiate the contention that the report of the juvenile court was financed by the appellee. Since some of his witnesses were nonresidents, it *133 was his duty to pay the travel expenses of the investigator who interviewed them.
3. It is contended by the appellant that the trial judge erred in failing to make findings of fact, and that there is no evidence warranting a change of custody.
In Githens v. Githens, 234 Ga. 715 (2) (217 SE2d 291) (1975), this court held that it is mandatory in a contested child custody case for the trial judge to make findings of fact. That case was reversed with direction that the judge enter findings of fact and conclusions of law.
In the present case the superior court judge made conclusions of law, but made no finding of facts. The case is therefore returned for the entry of findings of fact on which the decision to change custody is based.
Judgment reversed with direction. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1373306/ | 223 S.E.2d 920 (1976)
29 N.C. App. 205
Charles B. MARKHAM
v.
James B. SWAILS, Chairman, et al.
No. 7510SC811.
Court of Appeals of North Carolina.
April 21, 1976.
Certiorari Denied and Appeal Dismissed June 17, 1976.
*921 Jordan, Morris & Hoke by John R. Jordan, Jr., Raleigh, for petitioner-appellant.
Young, Moore & Henderson by Charles H. Young and R. Michael Strickland, Raleigh, for respondents-appellees.
Certiorari Denied and Appeal Dismissed by Supreme Court June 17, 1976.
HEDRICK, Judge.
Petitioner assigns as error the order dated 27 June 1975 denying his "motion to have the court amend its findings, make additional findings or amend its decision and order". G.S. 143-307 and 143-309 (now G.S. 150A-43 and 150A-45, effective 1 February 1976) provide that an aggrieved party may obtain judicial review of a final decision of an administrative board by petitioning for a writ of certiorari to the Superior Court of Wake County.
G.S. 143-314 (now G.S. 150A-50, effective 1 February 1976) provides:
Review by court without jury on the record.The review of administrative decisions under this Chapter shall be conducted by the court without a jury. The court shall hear oral arguments and receive written briefs, but shall take no evidence not offered at the hearing; except that in cases of alleged irregularities in procedure before the agency, not shown in the record, testimony thereon may be taken by the court; and except that where no record was made of the administrative proceeding or the record is inadequate, the judge in his discretion may hear the matter de novo.
G.S. 143-315 (now G.S. 150A-51, effective 1 February 1976) provides:
Scope of review; power of court in disposing of case.The court may affirm the decision of the agency or remand the case for further proceedings; or it may reverse or modify the decision if the substantial rights of the petitioners may have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional provisions; or
(2) In excess of the statutory authority or jurisdiction of the agency; or
(3) Made upon unlawful procedure; or
(4) Affected by other error of law; or
(5) Unsupported by competent, material, and substantial evidence in view of the entire record as submitted; or
(6) Arbitrary or capricious.
If the court reverses or modifies the decision of the agency, the judge shall set out in writing, which writing shall become *922 a part of the record, the reasons for such reversal or modification.
G.S. 1A-1, Rule 52(a)(1) provides:
Rule 52. Findings by the court.
(a) Findings.
(1) In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment.
Petitioner's motion to amend the judgment specifies that it was made pursuant to Rule 52(b) which provides:
(b) Amendment. Upon motion of a party made not later than 10 days after entry of judgment the court may amend its findings or make additional findings and may amend the judgment accordingly. The motion may be made with a motion for a new trial pursuant to Rule 59.
When the judge of the superior court sits as an appellate court to review the decision of an administrative agency pursuant to G.S. 143-314 and 315, the judge is not required to make findings of fact and enter a judgment thereon in the same sense as a trial judge pursuant to Rule 52(a) and (b). Indeed, pursuant to G.S. 143-315, the authority of the judge is limited to affirming, modifying, reversing or remanding the decision of the administrative agency. In our opinion, Rule 52(b) has no application in this proceeding, and Judge McKinnon was not required to entertain a motion made pursuant thereto. However, we treat the order of 27 June 1975 denying the motion as an order of dismissal and affirm it.
Petitioner assigns as error the order dated 20 March 1975 affirming the decision of the Board of Law Examiners. G.S. 143-316 (now G.S. 150A-52, effective 1 February 1976) in pertinent part provides:
Any party to the review proceedings, including the agency, may appeal to the appellate division from the final judgment of the superior court under rules of procedure applicable in other civil cases.
G.S. 1-279, applicable to this appeal, provides:
When appeal taken.The appeal must be taken from a judgment rendered out of session within 10 days after notice thereof, and from a judgment rendered in session within 10 days after its rendition, unless the record shows an appeal taken at the trial, which is sufficient, but execution shall not be suspended until the giving by the appellant of the undertakings hereinafter required; provided, however, that if any motion permitted by G.S. 1A-1, Rule 59, is timely made or an amendment to or alteration of a judgment is effected by the methods prescribed in that same rule, the appeal need not be taken within the time limits stated above, but the appeal must be taken within 10 days from the signing of the order ruling on such motions or amending or altering the original judgment.
The provisions of this statute are jurisdictional. When the requirements of the statute are not complied with, the appellate court obtains no jurisdiction of an appeal and must dismiss it. Oliver v. Williams, 266 N.C. 601, 146 S.E.2d 648 (1966). In the present proceeding, petitioner did not give notice of appeal from the order entered 20 March 1975 until 24 June 1975. Therefore this court did not obtain jurisdiction to hear the appeal from the order affirming the decision of the Board.
The result is: The appeal from the 20 March 1975 order affirming the decision of the Board is dismissed; the appeal from the 27 June 1975 order denying the motion filed pursuant to Rule 52(b) is affirmed.
Dismissed in part; Affirmed in part.
BRITT and MARTIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1373302/ | 535 P.2d 1241 (1975)
John LEACH, Plaintiff and Respondent,
v.
Norma B. ANDERSON and Valley Bank and Trust Company, a corporation, Defendants and Appellants.
No. 13808.
Supreme Court of Utah.
May 29, 1975.
*1242 Parker M. Nielson, Salt Lake City, for Anderson.
Irving H. Biele of Biele, Haslam & Hatch, Salt Lake City, for Bank.
James W. Beless, Wallace D. Hurd, Salt Lake City, for plaintiff and respondent.
CROCKETT, Justice:
Plaintiff John Leach, judgment creditor, brought this action against Norma Anderson, judgment debtor, and defendant Valley Bank and Trust Company, seeking to invalidate a spendthrift trust by which Norma had conveyed to Valley Bank about $465,000 in assets. Plaintiff's purpose was to reach those assets to satisfy a judgment for $13,795.67 balance on a note he had obtained against Norma Anderson in a prior suit.
Upon a plenary trial the district court made appropriate findings and determined that the trust was in reality for the benefit of its creator, Norma Anderson, and therefore as to this plaintiff creditor, was void under the provisions of Section 25-1-11, U.C.A. 1953:
All deeds, gifts, conveyances, transfers or assignments, verbal or written, of goods, chattels, or things in action made in trust for the use of the person making the same shall be void as against the existing or subsequent creditors of such person.
Defendants contend: That the trust is not rendered void by that statute because it sets up interests in the property which will eventually vest in the children and grandchildren of Norma B. Anderson, wherefore she is but one of the beneficiaries, and the trust cannot properly be characterized as one solely for her use.
Norma B. Anderson is the widow and successor in ownership of Alton J. Anderson, who owned and operated Andy's Smorgasbord on Highland Drive in Salt Lake City, and some other related businesses. He died in 1967. On November 12, 1968, she executed a trust with the Valley Bank as trustee in which she transferred the bulk of her assets composed of both real and personal property, including the stock of certain family enterprises, several large denomination certificates of deposit, shares of irrigation stock, promissory notes, rental properties, and her residence, to Navalco, the nominee of the trustee Valley Bank. A financial statement of Mrs. Anderson prepared on July 6, 1968, shows those assets to have a net worth of approximately $465,000.
The terms of the trust provide, in part, that the trustee shall "pay to or for the benefit of the grantor [Norma B. Anderson] such portions of the income and principal of this trust as may be necessary" to maintain her in a reasonable standard of living; purchase a new automobile every two or three years according to her request; provide for vacations for herself and a companion selected by her; sufficient funds to maintain her home; sell it upon her request, and provide other living accommodations according to her needs; and also grants her powers and privileges *1243 concerning the ownership of stock, and the right of approval and control in the operations of the family corporations. It further provides for distribution of the trust assets to Mrs. Anderson's children upon her death and for maintenance of each child's portion in trust for the defendant's grandchildren if any child should predecease her. The trust contains a spendthrift clause which prohibits the sale or assignment of the trust assets or interest therein by any beneficiary; and also that no payment from or share of the trust shall be liable to legal process of creditors of any beneficiary.
The prior judgment which the plaintiff John Leach is attempting to collect from defendant Norma Anderson was on a promissory note of the Angi Corporation, one of the family enterprises, managed by a son, David Anderson, on which note Norma B. Anderson had signed as a guarantor. Unable to satisfy his judgment against her personal assets, he commenced this action to pierce the trust and satisfy the judgment from assets Norma Anderson had conveyed to it.
The main aspect of the defendant's argument is that the purpose of the statute in question was to prevent a person from using a trust as a protective shield to hinder, delay or defraud one's creditors. It is urged that Norma Anderson in creating the trust had no such intent, but desired to protect the interests of herself and her other children from improvident requests by her son David Anderson. It is true that said Section 25-1-11, U.C.A. 1953, is in the chapter on fraudulent conveyances. But in its language is found no requirement as to the hindering, defrauding, or delaying creditors.[1] It simply declares in clear and understandable language that property conveyed in trust "for the use of the person making the same," i.e., the settlor, trustor, or creator thereof, shall be void against existing or subsequent creditors.
It is not to be supposed that that statute was intended to limit or interfere with other traditional and beneficial uses of trusts. That a trustor can deal generally with his property as he desires we have no doubt; and this includes placing it in an irrevocable trust, beyond his own power to reclaim, or to sell or alienate it; and may include a so-called "spendthrift trust" provision to safeguard against improvident dissipation thereof. But as the trust may affect third parties, the situation is different. The intent and the effect of the statute is to prevent a person from using a trust as a device by which he can retain for himself and enjoy substantially all of the advantages of ownership and at the same time place it beyond the legitimate claims of his creditors.[2]
The critical question in this case is whether that is what the trust agreement does for its creditor Norma B. Anderson. Whether the trust should be regarded as one created for the use and benefit of the trustor, is to be determined upon what she has a right to take under its terms during her lifetime, rather than upon what she has actually used therefrom. The fact that she has used only about $1,000 per year does not change the character of the trust. Neither is its character changed because it appears that after the trust res has fulfilled its commitment for her purposes during her lifetime, there may be a residuum that may benefit others than the grantor (her children and grandchildren).
Referring to her endowments under the trust agreement in the light of the law just discussed above, it will be seen that the entire trust res, income and principal, is committed to maintain Norma B. Anderson *1244 in her standard of living and adjuncts thereto. Therefore we think the trial court was justified in his determination that in essence and effect this trust is for the use and benefit of Norma B. Anderson; and that as to the plaintiff creditor, it is declared void by the statute, Section 25-1-11, U.C.A. 1953.
Defendant also makes the contention that because the assets of the trust were conveyed to the trustee more than three years before the bringing of this action, and particularly that the real property was so conveyed to Navalco and the deeds recorded, this action is barred by Section 78-12-26(4), U.C.A. 1953, which limits to three years actions created by a statute. The trial court correctly rejected this contention as without merit.
These observations are pertinent: No statute of limitation runs against any cause of action until that cause of action comes into being. The plaintiff had no cause of action to attack this trust until he attempted to enforce his judgment and the trust was asserted against him as an impediment to collecting it. While this case does not involve fraud per se, the situation is analogous; and the same principle applies: that as to a cause of action based on fraud, the statute of limitations does not begin to run until the fraud is discovered.[3] The recording of the deeds to Navalco would give plaintiff constructive notice only of those conveyances, but would put him on notice of nothing concerning this trust.[4]
Defendants also make the argument that the statute under scrutiny covers only personal property and therefore could not affect the part of the trust that consists of real property. The statute is but a codification of the common law, which for reasons discussed herein, refused to give recognition to trusts of this character involving any kind of property.[5] However, the evidence here is that there is very substantial personal property, including stock in the Anderson Enterprises, valued at $145,000. Accordingly, no useful purpose would be served by our being concerned as to whether the real property may be subjected to plaintiff's judgment.
The judgment is affirmed. Costs to plaintiff (respondent).
HENRIOD, C.J., and ELLETT, TUCKETT and MAUGHAN, JJ., concur.
NOTES
[1] Another section of that chapter, 25-1-8, deals with the avoidance of conveyances which are made with the "intent to delay, hinder or defraud creditors."
[2] The authorities generally affirm that this may not be done, see Nelson v. California Trust Co., 33 Cal. 2d 501, 202 P.2d 1021; Greenwich Trust Co. v. Tyson, 129 Conn. 211, 27 A.2d 166; Scott on Trusts, Vol. II, Sec. 156; Bogert Trusts and Trustees (2d ed.), Sec. 223; Griswold, Spendthrift Trusts, p. 543.
[3] Sec. 78-12-26(3), U.C.A. 1953; Madsen v. Madsen, 72 Utah 96, 269 P. 132.
[4] Thus different from Smith v. Edwards, 81 Utah 244, 17 P.2d 264, relied on by plaintiff. That case dealt with the statute of limitations on fraud, now Sec. 78-12-26(3), U.C.A. 1953. But there no interest was retained in the grantor through a trust.
[5] That a spendthrift trust for the benefit of the grantor himself is uniformly held entirely invalid and that creditors can reach the trust property, see authorities footnote 2 above; 37 Am.Jur.2d 720; 89 C.J.S. Trusts 745; 93 A.L.R. 1211. But cf. Geary v. Cain, 79 Utah 268, 9 P.2d 396. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2751257/ | November 13, 2014
JUDGMENT
The Fourteenth Court of Appeals
BACM 2006-4 PARK ROW, LLC, Appellant
NO. 14-14-00651-CV V.
EZRA BEYMAN, Appellee
________________________________
Today the Court heard appellant’s motion to dismiss the appeal from the
judgment signed by the court below on May 14, 2014. Having considered the
motion and found it meritorious, we order the appeal DISMISSED.
We further order that all costs incurred by reason of this appeal be paid by
appellant, BACM 2006-4 Park Row, LLC.
We further order that mandate be issued immediately.
We further order this decision certified below for observance. | 01-03-2023 | 11-13-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1373363/ | 132 Ga. App. 184 (1974)
207 S.E.2d 669
SMITH
v.
MOELLER; and vice versa.
49393, 49394.
Court of Appeals of Georgia.
Submitted May 29, 1974.
Decided June 19, 1974.
Johnston & Brannen, Sam L. Brannen, for appellant.
Allen, Edenfield, Brown & Franklin, Charles H. Brown, for appellee.
DEEN, Judge.
1. Agreements not to be performed within one year from their execution must be in writing, with certain exceptions, such as that "one party to the contract performs some act essential to the performance of the contract which results in loss to him and benefit to the other." Code § 20-402(3); Yarborough v. Hi-Flier Mfg. Co., 63 Ga. App. 725 (12 SE2d 133).
2. "A verdict may only be directed in situations where if there were a determination the other way it would have to be set aside by the court." State Farm Mutual Ins. Co. v. Snyder, 125 Ga. App. 352 (187 SE2d 878).
3. Plaintiff Moeller imported for sale an expensive automated facility for producing poultry and eggs, capable of being erected on the owner's farm. He had one on his farm which he invited prospective buyers to examine, and was desirous of having others purchased and also used for display in other neighborhoods. Smith was very interested, intended purchase, and had talked about the facility with various friends and had brought some of them to look at it. Thereafter he underwent *185 surgery which put an end to his active participation. According to his testimony, Moeller then suggested he sell the equipment, since he was interested, and promised him a 10% commission on cost of the machinery involved. Smith testified: "I told him I thought I had two people that might go ahead and build. It was no promise, it was just something in the works." Q. "Did he specifically mention that if you got these two jobs signed up that he would pay you 10% commission on these? A. Yes, sir." The "two jobs" referred to farmers Wilson and Jacobs, both of whom eventually purchased. Smith demanded $8,631.60 as 10% of the machinery price. Moeller contended both that Smith was not the procuring cause of the sales and that he had not promised him a commission, only a discount if he personally purchased machinery. He did, however, give Smith's wife a check for $4,000 as an accord and satisfaction, but, determining the next day that Smith would accept the check as part payment only, he stopped payment on it. Smith sued for commissions and the trial court directed a verdict in favor of the defendant.
(a) Agency may be proved by circumstantial evidence. Bearlund v. Webb, 127 Ga. App. 555, 557 (194 SE2d 328). It is uncontroverted that Smith did exercise himself to recommend the equipment to his neighbors, and also that the arrangement which Smith asserts and Moeller denies was later offered to one of the purchasers, although on a 5% rather than a 10% commission. It is also undisputed that he offered money to the plaintiff, although he denies the purpose of the offer. From these and other facts a jury issue remained as to whether the defendant and plaintiff had such an oral agreement, and what, if anything, the plaintiff did to effectuate it.
(b) Should the jury find such an agreement, with performance on the part of the plaintiff, it would be irrelevant that the prospective purchasers were not informed of the relation in advance. This is not a brokerage contract, but one for services to be rendered the seller by procuring purchasers.
4. Defendant Moeller counterclaimed against the plaintiff, alleging that he is engaged in the business of selling automatic egg cage equipment, that he is a *186 businessman of honesty and integrity; that plaintiff falsely slandered him by representing to farmers and prospective customers that he was dishonest and his equipment defective and unreliable, and that he is entitled to damages of $10,000. The pleading sets forth a claim for general damages because of oral defamation calculated to injure one in his trade, office, or profession. Code § 105-702; Dickey v. Brannon, 118 Ga. App. 33, 35 (4) (162 SE2d 827). It was also error to refuse to receive evidence in support of the counterclaim and to direct a verdict on the pleadings in favor of the defendant.
Judgment reversed in both appeals. Eberhardt, P. J., and Stolz, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/203735/ | 561 F.3d 4 (2009)
Alan S. NOONAN, Plaintiff, Appellant,
v.
STAPLES, INC., Defendant, Appellee.
No. 07-2159.
United States Court of Appeals, First Circuit.
March 18, 2009.
*5 Wendy Sibbison, Greenfield, MA, Stamenia Tzouganatos, Daniel K. Gelb, Gail Kleven Gelb, Richard M. Gelb, Robert S. Messinger, Gelb & Gelb, LLP, Boston, MA, for Plaintiff-Appellant.
Ariel D. Cudkowicz, Krista G. Pratt, Seyfarth Shaw, LLP, Jennifer A. Serafyn, US Attorney's Office, Robert A. Bertsche, K. Kimberley Keyes, Jeffrey A. Newman, Prince, Lobel, Glovsky & Tye, LLP, Elizabeth A. Ritvo, Brown, Rudnick, Berlack, Israels, LLP, James E. Smith, Smith, Ruddock & Hayes, Daniel J. Gleason, Nutter, McClennen & Fish, LLP, Eric Adam Brass, Boston, MA, George Freeman, New York Times Company, Indira Satyendra, John W. Zucker, Anthony Bongiorno, Senior Vice President and Associate General Counsel, Litigation CBS Corporation, Beth Lobel, National Broadcasting Co., Inc., Charles J. Glasser, Bloomberg News, Robin Bierstedt, Stephanie S. Abrutyn, Peter Rienecker, Home Box Office, Christopher J. Nolan, Magazine Publishers of America, Inc., Jonathan Bloom, Weil, Gotshal & Manges, Richard A. Bernstein, Advance Publications, Inc. c/o Sabin, Bermant & Gould, LLP, David H. Tomlin, The Associated Press, Jason P. Conti, Esq., Gail Gove, Mark H. Jackson, Jonathan Donnellan, Hearst Corporation, Allison Hoffman, Ronald D. Coleman, Goetz Fitzpatrick, LLP, Sandra S. Baron, Dave Heller, Dana Rosen, New York, NY, Johnita P. Due, Turner Broadcasting System, Inc., Atlanta, GA, David Ardia, Harvard Law School Citizen Media Law Project, Cambridge, MA, Matthew Gray, Community Newspaper Holdings, Inc., Birmingham, AL, Garrett Cummings, Gatehouse Media, Inc., Fairport, NY, Robert J. Ambrogi, Massachusetts Newspaper Publishers Association, Rockport, MA, Peter J. Caruso, Caruso & Caruso, LLP, Andover, MA, Rene P. Milam, Newspaper Association of America, *6 Lucy A. Dalglish, Jerald N. Fritz, Allbritton Communications Company, Arlington, VA, Laurie A. Babinski, Bruce D. Brown, Bruce W. Sanford, Baker & Hostetler, Richard Karpel, Executive Director Association of Alternative Newsweeklies, Denise B. Leary, National Public Radio, Inc., Joyce Slocum, National Public Radio, Inc., Ashley Messenger, US News & World Report, Eric N. Lieberman, James A. McLaughlin, Washington, DC, Sigmund D. Schutz, Preti, Flaherty, Beliveau & Pachios, LLP, Portland, ME, Michael Dash, Entercom Communications Corp., Bala Cynwyd, PA, David Pahl, Espn, Inc., David Giles, E.W. Scripps Company, Cincinnati, OH, Ellen Rubin, Greater Media, Inc., Braintree, MA, S. Douglas Dodd, Doerner, Saunders, Daniel & Anderson, LLP, Tulsa, OK, Aaron Julien, Newspapers of New England, Inc., Concord, NH, Jennifer Borg, North Jersey Media Group Inc., Hackensack, NJ, Richard C. Gagliuso, Gagliuso & Gagliuso, PA, Merrimack, NH, Karen Flax, Tribune Company, Chicago, IL, Gregory V. Sullivan, Kathleen Sullivan, Malloy & Sullivan, Manchester, NH, for Defendant-Appellee.
Before LYNCH, Chief Judge,[*] TORRUELLA, BOUDIN, WALLACE,[**] LIPEZ, and HOWARD, Circuit Judges.
ORDER OF COURT
Staples's petition for rehearing en banc, construed also as a petition for panel rehearing, challenges the constitutionality of the Massachusetts General Laws ch. 231, § 92, as construed in the panel's rehearing opinion. Since its initial brief, Staples has argued under the premise that the term "actual malice" in § 92 means "malevolent intent." Yet, Staples did not then challenge the constitutionality of such a construction. Thus, the rehearing opinion found that it need not consider the issue. See Rehearing Opinion at p. 17, n. 7.
Staples now contends that it raised the issue in its initial brief. But that brief simply acknowledged that the statute was not constitutional as applied to a matter of public concern. Staples did not timely argue that the present matter was a matter of public concern or that the statute was unconstitutional as applied to a matter of private concern. That Staples did not timely raise the issue is also made clear by the fact that it has not, until now, filed the notice required for a challenge to the constitutionality of a state statute. See Fed. R.App. P. 44(b). The issue is waived, and the fact that the issue raises constitutional concerns does not save the waiver. See, e.g., Rosado-Quiñones v. Toledo, 528 F.3d 1, 6 (1st Cir.2008) (deeming waived the "question of law about whether there is added First Amendment protection for public employees' filing of lawsuits against their employers on matters in which the public has no interest"); Pérez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 29 n. 7 (1st Cir.2008); see also Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) ("Because the requirement of personal jurisdiction represents first of all an individual [due process] right, it can, like other such rights, be waived.").
Further, Staples has not shown that the constitutional issue is so clear that the panel should have acted sua sponte to strike down a state statute, without the required notice to the state attorney general. Staples still does not cite a case for the proposition that the First Amendment does not permit liability for true statements concerning matters of private concern. *7 The Massachusetts Supreme Judicial Court ("SJC") case relied upon by Staples did not hold that truth is an absolute defense in private concern cases, but rather that a private figure may recover for a negligently made defamatory falsehood in a case of public concern. Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 330 N.E.2d 161, 164 (1975). And the Supreme Court has stated that as to matters of private concern, the First Amendment does "not necessarily force any change in at least some of the features of the common-law landscape." Phila. Newspapers v. Hepps, 475 U.S. 767, 775, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986); see also Dun & Bradstreet v. Greenmoss Builders, 472 U.S. 749, 761, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985) ("In light of the reduced constitutional value of speech involving no matters of public concern, we hold that the state interest adequately supports awards of presumed and punitive damageseven absent a showing of `actual malice.'"). In fact, were the issue as clear-cut as Staples suggests, the SJC would not likely have limited its own invalidation of § 92 to matters of public concern. Shaari v. Harvard Student Agencies, 427 Mass. 129, 691 N.E.2d 925, 929 (1998) ("To apply this statute to the defendants' truthful defamatory statement concerning a matter of public concern, even if the statement is malicious, violates the First Amendment." (emphasis added)). Thus, whether § 92 is a "feature[] of the common-law landscape" left unchanged for matters of private concern is an issue on which we now take no position.
Nor it is appropriate to now certify the question to the SJC. We have answered the question of state law regarding the proper interpretation of the statute, and Staples has not challenged that matter on rehearing. The question of the constitutionality of that state law under the First Amendment is a federal question, which we could answer without certification. Though Staples suggests that § 92 may violate the Massachusetts Constitution, it presents no argumentation whatsoever relating specifically to that contention. Further, Staples should not be allowed to escape the consequences of waiver through certification.
The petition for rehearing having been denied by the panel of judges who decided the case, and the petition for rehearing en banc having been submitted to the active judges of this court and a majority of the judges not having voted that the case be heard en banc, it is ordered that the petition for rehearing and the petition for rehearing en banc be denied. The alternative request for certification to the SJC is also denied.
NOTES
[*] Judge Lynch is recused from this case and did not participate in the vote.
[**] Of the Ninth Circuit, sitting by designation. | 01-03-2023 | 02-07-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1373364/ | 232 Ga. 377 (1974)
207 S.E.2d 18
CLEVELAND
v.
TULLY.
28852.
Supreme Court of Georgia.
Submitted May 14, 1974.
Decided June 12, 1974.
Mackay & Elliott, James A. Mackay, Thomas W. Elliott, for appellant.
McCurdy, Candler & Harris, George H. Carley, for appellee.
NICHOLS, Presiding Justice.
The marriage of Georgia Daggres Tully and James Edward Tully was dissolved by divorce on October 7, 1964. There was one minor child of such marriage. An agreement between the parties was made a part of the *378 divorce decree and provided for alimony, child support, etc. In June 1973 the former wife met a violent death while visiting in Florida. The present litigation began when the former husband sought to recover possession of the couple's former residence from the administratrix of the former wife's estate. A cross complaint sought child support payments due and unpaid at the time of the wife's death, the sale of the marital residence and other relief, including the appointment of a receiver. The issues thus presented were heard by the trial court without the intervention of a jury and a decree rendered for the former husband. The administratrix appealed.
The record discloses that legal title to the marital residence was in the former husband. Paragraph 2 of the agreement provided: "Defendant [husband] agrees that the plaintiff [wife] shall have exclusive use and possession of the marital residence known as 1271 Jody Lane, N. E., Atlanta 29, DeKalb County, Georgia, so long as the plaintiff in this case remains unremarried and is a fulltime occupant of said premises.
"In the event the plaintiff shall remarry or shall elect to vacate the premises, then at that time and in either event, the said real estate shall be sold and the net proceeds of the sale of such property shall be divided equally between the parties plaintiff and defendant in this case.
"So long as the plaintiff herein shall not remarry and shall occupy the said premises, defendant shall retain fee simple legal title to said real estate, subject only to the outstanding loan secured by said property, and the defendant herein shall pay the monthly instalment on said loan, including principal, interest, ad valorem taxes on said real estate (but not upon the personal property located therein), and hazard insurance upon the real estate, aggregating approximately $162 per month; and the defendant shall pay one-half of such expenses as shall be incurred in the reasonable maintenance of the improvements located upon said property."
Neither the appellant administratrix nor the former husband has cited any Georgia decision or statutory law directly in point.
*379 1. In Trammell v. West, 224 Ga. 365 (162 SE2d 353) the award to the wife was a present agreement to convey upon the happening of an event certain, but which may or may not have occurred prior to the wife's death.
Here there was no present agreement to convey anything. The agreement did not vest any title in the marital home to the wife. It did provide that under certain circumstances she could receive a part of the proceeds from its sale. In the absence of either of the two contingencies, she merely had a right to reside in the residence and upon her death the former husband was entitled to possession of the marital residence without it being subject to any claim by her estate.
2. As a separate item in the counterclaim the administratrix sought to recover past due child support payments.
The payments due as "child support" were payable to the deceased wife as trustee only. It has been held that voluntary payments by a father to his son cannot be credited against required payments to his former wife for such child's support.
Fischer v. Fischer, 164 Ga. 81 (137 SE 821). By this same rationale any payments made toward the support of the child by the former wife must, as applied to the present case where recovery is sought by her administratrix, be treated as voluntary payments. If recovery were permitted such recovered payments would have to be turned over to the father.
3. The agreement which was made a part of the divorce decree provided that the former husband would pay 1/2 of the maintenance on the former marital home, and that he would pay for hazard insurance on such premises. The cross complaint sought an accounting as to this item of the divorce decree. Under the decision in Trammell v. West, supra, these items are capable of exact determination, and the administratrix is entitled to recover any amount expended by the deceased wife in excess of 1/2 the maintenance and any amount expended by her making repairs covered by hazard insurance which was not reimbursed by the husband. See also Kay v. Vaughan, 224 Ga. 875 (165 SE2d 131), as to the recovery by a representative of the wife's estate of attorney fees *380 awarded in a divorce proceeding which had terminated prior to the wife's death.
4. "`The power of appointing receivers should be prudently and cautiously exercised, and except in clear and urgent cases should not be resorted to.' Code § 55-303; United Bonded Warehouse v. Jackson, 207 Ga. 627 (1) (63 SE2d 666). The high prerogative act of taking property out of the owner's hands and putting it in pound, under the order of a judge, ought not to be taken, except to prevent manifest wrong imminently impending. Templeman v. Templeman, 173 Ga. 743 (161 SE 261), and the cases there cited." Frankel v. Frankel, 212 Ga. 643 (2) (94 SE2d 728). It would have been an abuse of the trial court's discretion to place the marital house in the hands of a receiver.
Judgment affirmed in part; reversed in part. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266317/ | 681 A.2d 1026 (1996)
THOMAS & BETTS CORPORATION, Plaintiff Below, Appellant,
v.
LEVITON MANUFACTURING CO., INC., Defendant Below, Appellee.
No. 70, 1996.
Supreme Court of Delaware.
Submitted: June 11, 1996.
Decided: August 2, 1996.
Thomas Reed Hunt, Jr. and David J. Teklits of Morris, Nichols, Arsht & Tunnell, Wilmington, and Scott A. Edelman (argued), of Milbank, Tweed, Hadley & McCloy, New York City, for Appellant.
David C. McBride and Bruce L. Silverstein of Young, Conaway, Stargatt & Taylor, Wilmington, and Kenneth B. Forrest (argued), and Ben M. Germana of Wachtell, Lipton, Rosen & Katz, New York City, for Appellee.
Before VEASEY, C.J., WALSH and BERGER, JJ.
*1028 VEASEY, Chief Justice:
In this appeal we affirm the order of the Court of Chancery denying in part and limiting a stockholder's entitlement to inspection of books and records. In doing so, we rest our decision on the fact that the trial court's determination of the stockholder's failure to show a proper purpose turned on legal and credibility assessments well within the proper burden placed on a stockholder seeking an inspection. Such a stockholder has the burden of showing, by a preponderance of the evidence, a proper purpose entitling the stockholder to an inspection of every item sought. Here, the Court of Chancery overstated the burden on the stockholder as a "greater-than-normal evidentiary burden." The burden on the stockholder is a normal burden and this stockholder failed to adduce sufficient evidence to meet that burden.
I. Facts
Plaintiff below-appellant, Thomas & Betts Corporation ("Thomas & Betts" or "plaintiff"), appeals from a decision of the Court of Chancery granting in part and denying in part its request for inspection of certain books and records of defendant below-appellee, Leviton Manufacturing Co., Inc. ("Leviton" or "defendant"). Thomas & Betts Corp. v. Leviton Mfg. Co., Inc., Del.Ch., C.A. No. 14069, 1995 WL 761208 (Dec. 19, 1995).
Leviton is a closely held Delaware corporation engaged in the business of manufacturing electronic components and residential wiring devices. Thomas & Betts is a publicly traded New Jersey corporation engaged in the electronics business. Thomas & Betts and Leviton are not considered to be in competition with one another. This is due, in large part, to Leviton's focus on the residential market. For a number of years, Thomas & Betts has expressed an interest either in acquiring Leviton or engaging in some form of joint venture. During the summer of 1993, Thomas & Betts and Leviton engaged in preliminary negotiations concerning a possible union of the two companies, but no agreement was ever reached. To date, Leviton has not expressed any interest in participating in a change-of-control or joint venture transaction with Thomas & Betts.
Leviton's President and CEO, Harold Leviton, is also the company's majority stockholder. Harold Leviton and his wife control a voting trust which represents 76.45 percent of Leviton's Class A voting stock. He and the other Leviton insiders are members of the Leviton family and most bear some relationship to the company's founder. By all accounts, Harold Leviton is the dominant figure in the corporation, deciding the company's strategy, operations and future goals.
Thomas & Betts decided to seek a minority position in Leviton in order to force a sale of the company to Thomas & Betts. In April of 1994, without the knowledge of Harold Leviton, Thomas & Betts began negotiations with Leviton's former Group Vice President, Thomas Blumberg ("Blumberg"). Blumberg *1029 and his wife, who is Harold Leviton's niece, owned approximately 29.1 percent of Leviton's outstanding shares. Negotiations for the sale of the Blumberg stock to Thomas & Betts were clandestine. In furtherance of the transaction, Blumberg provided Thomas & Betts with confidential internal Leviton documents and disclosed various facets of Leviton's internal strategies and accounting figures. Ultimately, Thomas & Betts paid Blumberg $50 million for his Leviton stake, with a promise of up to an additional $20 million if Thomas & Betts were to accomplish its desired acquisition of Leviton. Thomas & Betts indemnified Blumberg against, inter alia, litigation by Leviton, and also agreed to pay up to $7.5 million to Blumberg, in equal quarterly installments, if the sale of his shares were enjoined. At the time of sale, Thomas & Betts was fully aware that Leviton did not pay dividends and that Leviton's accounting practices did not follow Generally Accepted Accounting Principles ("GAAP").
The sale of the Blumberg shares was consummated on July 12, 1994, and Harold Leviton was informed of the sale the following day. Harold Leviton immediately fired Blumberg, only to hire him back and fire him again days later, along with his children and their secretaries. Harold Leviton rebuffed overtures from Thomas & Betts to establish an amicable relationship. Instead, Harold Leviton sought to buy out the interest of Thomas & Betts. From July 1994 to February of 1995, various representatives of Thomas & Betts met with Leviton insiders in an attempt to cultivate a working relationship. On October 6, 1994, Kevin Dunnigan ("Dunnigan"), the CEO of Thomas & Betts, reported to the board of Thomas & Betts on his strategy:
On the Leviton front, we are moving to the next phase. I will write to Harold Leviton next week to give him a rationale on why it is in everyone's best interests to start a dialogue. We will follow this up with a legal request to review all the books and records of Leviton which will start either a dialogue or a lawsuit.
Harold Leviton, however, remained obstinate in his opposition to Thomas & Betts' ownership position. Although some concessions were made and Thomas & Betts was allowed limited access to Leviton's books and records, by February 1995 it was abundantly clear that Harold Leviton intended to thwart any acquisition of Leviton by Thomas & Betts.
On February 8, 1995, Thomas & Betts served Leviton with a formal demand seeking inspection of the following documents:
1. Leviton's stockholder list,
2. Minutes of Leviton shareholder and directors meetings as well as written consents,
3. Audited financial statements for Leviton and its subsidiaries,
4. Internal financial statements for the current fiscal year provided on a monthly basis,
5. Tax returns filed for Leviton and its subsidiaries,
6. Organizational charts for Leviton and its subsidiaries,
7. Documents relating to interested party transactions between Leviton or its subsidiaries and its shareholders, directors or officers,
8. Documents relating to "key man" life insurance policies taken out by Leviton,
9. Material contracts between Leviton and its subsidiaries,
10. Documents relating to Leviton leases for real estate or equipment.
On February 16, 1995, Dunnigan wrote to Harold Leviton and offered to purchase the balance of Leviton's stock for $250 million, net of expenses. Dunnigan's letter threatened litigation if this final offer were rebuffed:
You are forcing us down a road where given a choice, I am sure neither of us wants to go. Often, once this process gets started, it ends up with consequences that were never intended. Watch! It won't be long before the lawyers, the government and the courts are completely in charge, and in the end neither you nor I will have much say in the outcome. There will be only victims, but it won't be the lawyers.
*1030 On February 17, 1995, Leviton formally refused both Thomas & Betts' acquisition offer and its inspection demand.
On February 27, 1995, Thomas & Betts filed this action in the Court of Chancery seeking to compel inspection of Leviton's books and records pursuant to 8 Del.C. § 220. After a four-day trial, the Court of Chancery determined that: (1) plaintiff's demand was not motivated by its stated purposes of investigating waste and mismanagement, facilitation of the equity method of accounting for its Leviton shares and valuation of those shares; (2) plaintiff's actual motivation was to gain leverage in its efforts to acquire Leviton; (3) this motive was antithetical to the interests of Leviton; (4) despite the initially improper purpose of its demand, Thomas & Betts was entitled to limited inspection so it could value its Leviton shares since a fundamental change of circumstances had occurred; and (5) this inspection should be narrowly circumscribed. From this decision, Thomas & Betts appeals. Leviton has not cross-appealed.
II. Proper Purpose
Thomas & Betts' Demand Letter purported to state three separate purposes for its requested inspection of Leviton's books and records. Specifically, plaintiff asserted that the books and records were necessary: (1) to investigate possible waste and mismanagement; (2) to facilitate its use of the equity method of accounting for its Leviton investment; and (3) to assist in the valuation of Thomas & Betts' Leviton shares. After trial, the Court of Chancery concluded that plaintiff's articulated purposes were not its actual purposes and that plaintiff's actual purpose was improper.[1] Specifically, the trial court held that Thomas & Betts was attempting to use the Section 220 proceeding as leverage in its efforts to acquire Leviton. The trial court concluded, however, that Thomas & Betts should be allowed to inspect those books and records necessary to value its investment in Leviton in view of the fact that there had been a change in circumstances.
Thomas & Betts now asserts that the two purposes for inspection not credited by the trial court investigation of waste and mismanagement and facilitation of the equity method of accounting constituted proper purposes under Section 220 and that the trial court erred in refusing inspection of books and records relevant to these purposes. These contentions are addressed seriatim below.
"The question of a `proper purpose' under Section 220(b) of our General Corporation Law is an issue of law and equity which this Court reviews de novo." Compaq Computer Corp. v. Horton, Del.Supr., 631 A.2d 1, 3 (1993) (citing Oberly v. Kirby, Del.Supr., 592 A.2d 445, 462 (1991)); Western Air Lines, Inc. v. Kerkorian, Del.Supr., 254 A.2d 240 (1969) (court reviewed proper purpose determination in stocklist case de novo). "The determination of whether [plaintiff's] ... stated purpose for the inspection was its primary purpose, is a question of fact warranting deference to the trial court's credibility assessments." State ex rel. Scattered Corp., Del.Supr., No. 444, 1995, Veasey, C.J., 1996 WL 191023 (April 4, 1996) (ORDER); accord CM & M Group v. Carroll, Inc., Del.Supr., 453 A.2d 788, 793 (1982).
*1031 III. Plaintiff's Claims of Waste and Mismanagement
As found by the Court of Chancery, plaintiff's claims of waste and mismanagement are grounded on Leviton's purportedly substandard financial performance, the company's failure to pay dividends, Leviton's poor cash flow and the company's higher than average expenses. As specific instances of misconduct, plaintiff asserted that: "(a) Leviton has paid for the Leviton family's personal expenses, including use of the company's accounting firm for tax and estate planning purposes; (b) Leviton has been overcompensating its officers and directors at the shareholders' expense; and (c) Leviton's lease agreements with members of the Leviton family are self-dealing transactions." Thomas & Betts, supra, slip op. at 15. The trial court found, however, that these claims "are so lacking in record support" that inspection could not be justified.
Plaintiff contends that the Court of Chancery applied an incorrect legal standard in determining that plaintiff's stated purpose lacked adequate record support. Specifically, Thomas & Betts points to portions of the trial court's holding which appear to impose on plaintiff "a greater-than-normal evidentiary burden," to "adduce evidence from which a credible possibility of mismanagement and waste may be inferred" and to "adduce specific evidence of waste and mismanagement." Id.
The Court of Chancery incorrectly articulated the governing legal standard. It is well established that investigation of waste and mismanagement is a proper purpose for a Section 220 books and records inspection. Nodana Petroleum Corp. v. State, Del.Supr., 123 A.2d 243, 246 (1956). When a stockholder seeks inspection of books and records, the burden of proof is on the stockholder to demonstrate that his purpose is proper. CM & M Group, 453 A.2d at 792.[2] In order to meet that burden of proof, a stockholder must present some credible basis from which the court can infer that waste or mismanagement may have occurred. Skouras v. Admiralty Enters., Inc., Del.Ch., 386 A.2d 674, 678 (1978) ("more than a general statement is required in order for the Court to determine the propriety of a demand"); Helmsman Management Servs., Inc. v. A & S Consultants, Inc., Del.Ch., 525 A.2d 160, 166 (1987) ("A mere statement of a purpose to investigate possible general mismanagement, without more, will not entitle a shareholder to broad § 220 inspection relief. There must be some evidence of possible mismanagement as would warrant further investigation of the matter."); Neely v. Oklahoma Publishing Co., Del.Ch., C.A. No. 5293, Brown, V.C. (Aug. 15, 1977); Everett v. Hollywood Park, Inc., Del.Ch., C.A. No. 14556, Jacobs, V.C., mem. op., 1996 WL 32171 (Jan. 19, 1996) ("Where, as here, the plaintiff's purpose is to investigate possible waste or mismanagement, she must also adduce evidence of potential mismanagement sufficient to support her suspicions and to warrant going forward."). While stockholders have the burden of coming forward with specific and credible allegations sufficient to warrant a suspicion of waste and mismanagement, they are not required to prove by a preponderance of the evidence that waste and management are actually occurring.[3]
A general standard that a stockholder seeking inspection of books and records *1032 bears "a greater-than-normal evidentiary burden" is unclear and could be interpreted as placing an unduly difficult obstacle in the path of stockholders seeking to investigate waste and mismanagement. Viewed in context, however, the articulation in dispute here accurately describes a stockholder's position in cases such as the one at bar, where substantial evidence supports a finding that plaintiff's primary motives for the inspection are improper.
In the final analysis, the decision of the trial court did not turn solely on a legal conclusion that Thomas & Betts had failed to meet an elevated evidentiary burden. As discussed further, infra, the trial court's determination turned, in large part, on the Vice Chancellor's determination that plaintiff's witnesses were not credible. According appropriate deference to the factual findings of the Court of Chancery, we conclude that plaintiff failed to satisfy the appropriate standard for inspection of the books and records with regard to the claim of waste and mismanagement. Levitt v. Bouvier, Del.Supr., 287 A.2d 671, 673 (1972) ("When the determination of facts turns on a question of credibility and the acceptance or rejection of `live' testimony by the trial judge, his findings will be approved upon review."); State ex rel. Scattered Corp., Del.Supr., No. 444, 1995, Veasey, C.J. (April 4, 1996) (ORDER) ("The determination of whether Scattered's stated purpose for the inspection was its primary purpose, is a question of fact warranting deference to the trial court's credibility assessments.")
Thomas & Betts argues that the trial court erroneously characterized as hearsay certain witness statements concerning Blumberg's discussions with Thomas & Betts. Where an in-court witness testifies to the substance of statements made by an out-of-court declarant and the testimony is offered to prove the truth of the matter asserted, a hearsay problem arises. This is precisely the situation faced by the trial court. Plaintiffs did not call Blumberg to the witness stand. Rather, various Thomas & Betts insiders sought to prove that waste and mismanagement had occurred at Leviton by testifying to the substance of statements made by Blumberg during his negotiations with Thomas & Betts.
Plaintiff contends, however, that the statements were not offered to prove the truth of the matter asserted, but were intended to show that Thomas & Betts believed that waste and mismanagement were occurring at Leviton (i.e., to show Thomas & Betts' state of mind). This argument is unavailing in light of the discussion above. Thomas & Betts' subjective belief that wrongdoing has occurred is insufficient to meet the evidentiary burden required to compel inspection. Plaintiff's contention that testimony concerning Blumberg's statements falls within the hearsay exception of D.R.E. 801(d)(2)(D) is similarly unavailing. D.R.E. 801(d)(2)(D) allows hearsay testimony of an agent or servant concerning matters within the scope of his agency or employment. Here, Blumberg was acting in his capacity as a stockholder of Leviton when the statements were made. Moreover, as the trial court found, Blumberg was actively engaged in the process of defecting to the Thomas & Betts camp. Statements made in this context lack independent guarantees of trustworthiness and are inherently unreliable. The trial court was correct in so concluding.
More significantly, the trial court did not exclude this testimony. Rather, the Vice Chancellor heard the testimony and found it unworthy of belief. In this posture, plaintiff's evidentiary objections carry little weight. Similarly, Thomas & Betts' citation to Skoglund v. Ormand Industries is unavailing. Skoglund, 372 A.2d at 208, 211-13. As in the case at bar, the Skoglund court allowed hearsay testimony regarding statements made by a corporate insider. Unlike the instant case, however, the trial court in Skoglund chose to credit that testimony as worthy of belief.
Finally, plaintiff's arguments ignore the underlying posture of this case. Unlike the cases relied on by plaintiff, this case does not involve a typical uninformed stockholder seeking to protect his or her investment. Thomas & Betts acquired its shares in Leviton with the acknowledged purpose of acquiring the company. Moreover, Thomas & Betts did so with full knowledge that Leviton's *1033 CEO would likely oppose any such transaction. Thomas & Betts first praised Harold Leviton for his expert management of the company, seeking an amicable union of the two corporations. When Thomas & Betts' friendly overtures proved unavailing, it filed an inspection demand to create leverage. Its self-avowed acquisition motives cast serious doubt on the genuineness of its claim that it seeks the books and records to investigate waste and mismanagement.
These facts were properly before the Court of Chancery. See, e.g., Helmsman Management Servs., 525 A.2d at 164 ("The propriety of a demanding shareholder's purpose must be determined from the facts in each case, and the burden of proving a proper purpose is upon the shareholder."). The Court of Chancery concluded that "Thomas & Betts' initial primary purpose in seeking a books and records inspection was ... to exert pressure on Harold Leviton to negotiate a sale of his controlling interest or, alternatively, the entire company." Thomas & Betts, supra, slip op. at 22. Ultimately, the Court of Chancery found Thomas & Betts' articulated purpose to be "highly opportunistic" and unworthy of belief. Thomas & Betts has provided no reason for this Court to revisit those factual determinations and credibility assessments.
IV. Facilitating the Equity Method of Accounting
At trial, plaintiff contended that it needed access to certain Leviton records to facilitate use of the equity method of accounting for its Leviton investment. The trial court concluded that: (1) plaintiff's stated accounting purpose is not a proper purpose as contemplated by Section 220 because it is not related to Thomas & Betts' status as a stockholder of Leviton; (2) Thomas & Betts' inability to use the equity accounting method was "a problem of its own making"; and (3) the "factual bona fides of Thomas & Betts' contention ... are highly suspect." Thomas & Betts, supra, slip op. at 19. Plaintiff now argues that: (1) the trial court erred in holding that facilitation of equity accounting is not a proper purpose; and (2) it has met the evidentiary burden required to compel inspection. Accordingly, Thomas & Betts contends that it should be allowed access to a broad array of Leviton internal documents.
Plaintiff's first contention that the Court of Chancery erred in holding that Thomas & Betts' accounting purpose was improper is without merit. As the trial court properly recognized, Section 220, by its express language, entitles a stockholder of a corporation to: "inspect for any proper purpose the corporation's stock-ledger, a list of its stockholders, and its other books and records, and to make copies or extracts therefrom. A proper purpose shall mean a purpose reasonably related to such person's interest as a stockholder...." 8 Del.C. § 220(b) (emphasis supplied).
The need to account for the Leviton investment by a particular method stems from Thomas & Betts' relationship with its own stockholders and bears no relationship to Thomas & Betts' status as a Leviton stockholder. As the Court of Chancery held in Lynn v. EnviroSource, Inc., Del.Ch., C.A. No. 11770, Chandler, V.C., 1991 WL 80242 (May 13, 1991), "[w]hat is required by ... section [220] is that the purpose for the demand be reasonably related `to such person's interest as a stockholder.' That is, the purpose must be something that stockholders would be interested in because of their position as stockholders." Conversely, "[a] purely individual purpose in no way germane to the relationship of stockholder to the corporation is not a proper purpose within the meaning of the statute." Catalano v. T.W.A., Del.Ch., C.A. No. 5352, Hartnett, V.C., mem. op. (Nov. 3, 1977) (citing State ex rel. Foster v. Standard Oil Co. of Kansas, Del.Super., 18 A.2d 235 (1941)). The Court of Chancery here correctly concluded that facilitation of equity accounting was not a proper purpose under Section 220. The need for equity accounting stems from Thomas & Betts' position as a publicly held corporation. Thus, it is the relationship of Thomas & Betts to its stockholders that created this need and not the relationship of Thomas & Betts to Leviton.
Thomas & Betts contends that the trial court overlooked a number of cases where the stockholder's purpose for inspection *1034 was unique to the individual stockholder. The purpose advanced in each of these cases, however, was valuation of shares, the only purpose advanced by Thomas & Betts which the trial court accepted.[4]
Assuming arguendo that Thomas & Betts' accounting purpose is deemed proper, it has nevertheless failed to meet its evidentiary burden. Despite Thomas & Betts' insistence on the use of equity accounting and KPMG Peat Marwick's purported concurrence in that view, Thomas & Betts has failed to demonstrate that this is the actual purpose for the information sought. As the trial court found, equity accounting may be used only in instances where the accounting stockholder exercises a degree of control over the company in which it holds an equity stake. GAAP provides that a stockholder with a 20 percent or greater stake enjoys a rebuttable presumption that such influence is exercised.
This presumption has been rebutted in the case of Thomas & Betts' stake in Leviton. Thomas & Betts now owns a 29.1 percent interest in Leviton.[5] Harold Leviton, however, controls a voting trust representing 76.45 percent of the company's voting stock. Thomas & Betts has no representation on the Leviton board. Moreover, Harold Leviton has made it abundantly clear that he will thwart any effort by Thomas & Betts to exercise control, or a lesser measure of influence, over Leviton. On these facts, it is questionable whether Thomas & Betts can even justify use of equity accounting under GAAP.[6] Thomas & Betts' stated purpose is questionable at best and lacks record support sufficient to warrant granting the requested relief.
V. The Scope of the Inspection
After trial, the Court of Chancery found that Thomas & Betts had failed to meet its burden of establishing that it sought inspection in furtherance of its concerns regarding accounting and mismanagement. The trial court found that Thomas & Betts' primary purpose for inspection was to further its plans for acquiring Leviton and that this interest was antithetical to the interests of the corporation. Despite Thomas & Betts' initially improper motives, the Court acknowledged that Thomas & Betts had experienced a fundamental change of circumstances. The court reasoned that, owing to Harold Leviton's unwillingness to negotiate a change-of-control transaction, Thomas & Betts was now in the unenviable position of a "locked-in" minority stockholder. Based on this fact, the trial court allowed inspection of certain Leviton books and records, but limited the scope of that inspection to those documents which are "essential and sufficient" to Thomas & Betts' valuation purpose. Thomas & Betts now contends that the Court of Chancery abused its discretion in limiting the scope of its inspection of Leviton's books and records.
Absent any apparent error of law, this Court reviews for abuse of discretion the *1035 decision of the trial court regarding the scope of a stockholder's inspection of books and records. 8 Del.C. § 220(c); CM & M Group, 453 A.2d at 794. The plaintiff bears the burden of proving that each category of books and records is essential to accomplishment of the stockholder's articulated purpose for the inspection. Helmsman Management Servs., 525 A.2d at 168.
The plain language of 8 Del.C. § 220(c) provides that "[t]he Court may, in its discretion, prescribe any limitations or conditions with reference to the inspection." (emphasis supplied). The responsibility of the trial court to narrowly tailor the inspection right to a stockholder's stated purpose is well established. See BBC Acquisition Corp., 623 A.2d at 88-89 (entitlement is restricted to those books and records needed to perform the task). In discharging this responsibility, the trial court has wide latitude in determining the proper scope of inspection. Undergirding this discretion is a recognition that the interests of the corporation must be harmonized with those of the inspecting stockholder.
Here, the trial court has found that Thomas & Betts' primary purpose for inspection is at odds with the interests of the corporation. In this posture, it was entirely appropriate for the Court of Chancery to limit plaintiff's inspection to those documents which are essential and sufficient to its valuation purpose.
Moreover, even in a case where no improper purpose has been attributed to the inspecting stockholder, the burden of proof is always on the party seeking inspection to establish that each category of the books and records requested is essential and sufficient to the stockholder's stated purpose. Helmsman Management Servs., 525 A.2d at 167. The trial court specifically found that Thomas & Betts had not met its burden of proof as to certain of the books and records of Leviton. This finding is supported by the record and is the product of an orderly and logical deductive process. Levitt, 287 A.2d at 673. Accordingly, the finding of the Court of Chancery and its concomitant decision to limit inspection will not be disturbed on appeal.
VI. Conclusion
We AFFIRM the order of the Court of Chancery.
NOTES
[1] See, e.g., BBC Acquisition Corp. v. Durr-Fillauer Medical, Inc., Del.Ch., 623 A.2d 85, 88 (1992):
[W]hen seeking inspection of books and records other than the corporate stock ledger or stock list, a shareholder has the burden of proving that his purpose is proper. Since such a shareholder will often have more than one purpose, that requirement has been construed to mean that the shareholder's primary purpose must be proper; any secondary purpose, whether proper or not, is irrelevant. CM & M Group, Inc. v. Carroll, Del.Supr., 453 A.2d 788, 792 (1982); Helmsman Management Services, Inc. v. A & S Consultants, Inc., Del.Ch., 525 A.2d 160, 164 (1987).
(emphasis supplied). See also Ostrow v. Bonney Forge Corp., Del.Ch., C.A. No. 13270, Allen, C., mem. op., 1994 WL 114807 (April 6, 1994) ("Once a shareholder has established a proper purpose for the demanded inspection, any secondary purpose he or she may have is generally considered to be irrelevant.... The primary purpose may not, however, be adverse to the corporation's best interests." (emphasis supplied) (citing CM & M Group, Inc. v. Carroll, Del.Supr., 453 A.2d 788, 792 (1982); Skoglund v. Ormand Indus., Inc., Del.Ch., 372 A.2d 204, 207 (1976)).
[2] While a stockholder has the burden to show a proper purpose for an inspection of books and records, the corporation has the burden of showing an improper purpose when a stockholder seeks only to inspect the stockholder list. 8 Del.C. § 220(c). The trial court held that plaintiff "has established a proper purpose for seeking inspection of Leviton's shareholder list," and the corporation failed to meet its burden that plaintiff's purpose was improper. Thomas & Betts, supra, slip op. at 10-11.
[3] The Revised Model Business Corporation Act requires that a stockholder "describe with reasonable particularity his purpose and the records he desires to inspect." Revised Model Business Corp. Act § 16.02(c). See Grimes v. Donald, 673 A.2d 1207, 1217 (1996), for an analogous discussion of the reasonable doubt, or reason to believe, standard in the context of a derivative suit. Contrary to plaintiff's assertion in the instant case, this Court in Grimes did not suggest that its reference to a Section 220 demand as one of the "tools at hand" was intended to eviscerate or modify the need for a stockholder to show a proper purpose under Section 220. Id. at 1216 n. 11 (noting that Section 220 can be used to secure information to support demand futility).
[4] For example, in Ostrow, inspection was granted on the basis of two purposes advanced by the plaintiffs, viz., "the valuation of their shares, especially in connection with a possible exercise of a contractual right to put those shares to the Company; and secondly, the investigation of possible fraud or breach of duty on the part of [the CEO]...." Ostrow v. Bonney Forge, Del.Ch., C.A. No. 13270, Allen, C. (April 6, 1994). In State ex rel. Nat'l Bank v. Jessup & Moore Paper Co., Del.Super., 88 A. 449 (1913), the stockholder sought inspection for the purpose of valuing shares held in a non-publicly traded company. The fact that the stockholder was a bank and needed to account to a regulatory agency for the value of these shares was of no moment. Valuation is a proper purpose for inspection. Finally, the related case of State ex rel. Brumley v. Jessup & Moore Paper Co., Del.Super., 83 A. 30 (1912), involved an inspection request by a stockholder who had received her shares by devise from her deceased husband. As in National Bank, supra, the Brumley plaintiff simply wanted to value her shares.
[5] Thomas & Betts purchased from the Blumberg family 29.1% of Leviton's outstanding shares. Included in this block of shares is 23.55% of Leviton's Class A voting stock.
[6] When Leviton's Chief Financial Officer reviewed a draft of Thomas & Betts' press release announcing the purchase of Blumberg's shares, he suggested that Thomas & Betts delete the reference to its intention to account for the investment using the equity method of accounting. He informed Thomas & Betts that Leviton would not provide the information he believed was necessary to use this method of accounting. Thomas & Betts publicly committed, nevertheless, to use the equity method with full knowledge of the difficulties it could face. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266246/ | 681 A.2d 484 (1996)
343 Md. 336
DEPARTMENT OF HEALTH AND MENTAL HYGIENE
v.
CHIMES, INC.
No. 94, Sept. Term, 1995.
Court of Appeals of Maryland.
August 27, 1996.
*485 Andrew H. Baida, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Thomas W. Keech, Asst. Atty. Gen., on brief), Baltimore, for Petitioner.
Laurence B. Russell (Deborah M. Thompson, Ober, Kaler, Grimes & Shiver, on brief), Baltimore, for Respondent.
Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.
MURPHY, Chief Judge.
The issue in this case is whether the Developmental Disabilities Administration in the Department of Health and Mental Hygiene violated the Maryland Administrative Procedure Act by instituting a cost containment measure without following "notice and comment" or emergency rulemaking procedures.
I
In 1952, the Commission on Administrative Organization of the State, appointed by Governor McKeldin, recommended adoption of the 1946 Model State Administrative Procedure Act (MSAPA) "to the end that administrative agencies may be subjected to essential controls but not unduly hampered in the performance of their functions." Seventh Report of the Commission on Administrative Organization of the State 70 (1952). That statute was designed to ensure that "certain basic principles of common sense, justice and fairness," including notice to interested parties, are applied in administrative procedures, Id., "without unduly restricting the agencies in the performance of their various tasks." Id. at 8; see also Maryland Code (1995 Repl.Vol., 1995 Supp.) § 10-201 of the State Government Article (declaration of policy); Commission to Revise the Administrative Procedure Act, Initial Report on Subtitles 2 and 4 of the APA 2 (1992). The Maryland Administrative Procedure Act (APA), adopted by Ch. 94 of the Acts of 1957 and based on the MSAPA, therefore, sought to balance the State's interest in efficient administration against the individuals' interest in fairness. Cf. Bonfield, State Administrative Rule Making § 1.2.2 (1986 & Supp. 1993) (discussing the 1981 MSAPA); Woodland Private Study Group v. State, 109 N.J. 62, 533 A.2d 387, 393 (1987) (in determining whether the intra-agency statements exception from the New Jersey APA applies, the court focuses upon "whether the agency's interest in streamlined procedure is outweighed by the importance of the interests that are affected."); see also Emma Ah Ho v. Cobb, 62 Haw. 546, 617 P.2d 1208, 1213 (1980) (discussing the federal APA contracts exception).
The APA requires State agencies to submit proposed regulations[1] to the Attorney General for approval as to legality, § 10-107(b) of the State Government Article, and also to the Joint Committee on Administrative, *486 Executive, and Legislative Review (AELR Committee) for preliminary review 15 days prior to publication. § 10-110(b). The agency must publish the proposed regulation in the Maryland Register and may adopt the regulation 45 days later. § 10-111(a)(1). For 30 out of the 45 days, the agency must accept public comment on the proposed regulation. § 10-111(a)(3). The AELR Committee may delay adoption of the regulation to allow more time for review. § 10-111(a)(2)(i). The AELR Committee considers whether the regulation is in conformity with the statutory authority of the agency and the legislative intent of the statute under which the regulation is promulgated. § 10-111.1(b). If the AELR Committee votes to oppose adoption of the regulation, the agency may withdraw or modify the regulation, or submit it to the Governor for approval. § 10-111.1(c)(2). The Governor may then order the agency to withdraw, modify, or adopt the regulation. § 10-111.1(c)(3). Notice of the adoption of the regulation must be printed in the Maryland Register. § 10-114. This process is commonly known as "notice and comment" rulemaking.
The APA also provides for "Emergency Adoption" of regulations. If an agency deems it necessary, § 10-111(b)(1) allows immediate adoption of regulations by submitting the regulation and a fiscal impact statement to the AELR Committee. A majority of the AELR Committee or the chair or cochair may approve the regulation. § 10-111(b)(2)(i). A public hearing must be held at the request of any member of the AELR Committee. § 10-111(b)(2)(ii). The circuit courts must declare invalid any regulation adopted in violation of these procedures. § 10-125(d).
II
The Developmental Disabilities Administration (DDA) in the Department of Health and Mental Hygiene is charged with developing a State plan to provide services to persons with developmental disabilities through "consultation, cooperation, contract, or direct operation" of facilities. Maryland Code (1994 Repl.Vol., 1995 Supp.) § 7-303305 of the Health-Gen. Article. DDA may provide for community-based residential programs such as public or private group homes or alternative living units. § 7-601. The Chimes, Inc. is one of 93 private entities with which DDA contracts to provide such services.
In 1987, DDA established by regulation the "Prospective Payment System" (PPS) for reimbursement of private providers. Code of Maryland Administrative Regulations (COMAR) 10.22.17. The regulation incorporates by reference the "Prospective Payment System for Community Services to the Mentally Retarded and Developmentally Disabled Clients Procedures Manual (First Edition)" (Manual). COMAR 10.22.17.02.A. The Manual explains that the PPS is "a system based on a fixed price per day per client." Manual at 800-3. It is intended to give providers the incentive to provide quality care efficiently and the flexibility to develop innovative programs, as well as to give accountability to providers and DDA. Id.
To be included in the PPS, a provider must operate under a grant contract for two years, giving DDA the opportunity to review the provider's costs. When a provider is accepted into the PPS, it is exempted from the State's competitive bidding requirements. Maryland Code (1995 Repl.Vol., 1995 Supp.) § 11-101(n)(2)(iii) of the State Fin. & Proc. Article.
Under the PPS, payments to providers are based on two categories of costs or "cost centers." COMAR 10.22.17.10.A. The first is the Client Assessment Sub-System, or "the costs of providing routine services to clients," COMAR 10.22.17.01.B.(25), and is not at issue in this case. The second set of cost centers is the Provider Component which includes administration, general, capital, special, and transportation costs. COMAR 10.22.17.01.B.(51). DDA bases reimbursement rates upon reports submitted by the providers. COMAR 10.22.17.06. DDA eliminates costs that are not reimbursable, such as advertising and lobbying expenses, COMAR 10.22.17.13, and adjusts the reimbursement rate for inflation and attendance rates. Manual at 800-9.
*487 Sections 7-205 and 7-234(a) of the State Finance & Procurement Article prohibit State agencies from spending money in excess of budget appropriations. The DDA regulation, accordingly, establishes that the PPS "is subject to the budget appropriations approved by the Legislature." COMAR 10.22.17.02.E. The regulation further provides:
The Department may take cost containment measures to control total expenditures on the prospective payment system. These cost containment measures may include, but are not limited to:
(1) Sharing in any surplus on prospective payments less actual cost;
(2) Establishing limits on the percentage of the prospective payment rate for any cost center.
COMAR 10.22.17.08.A. In addition, the Manual provides that "[o]ther cost containment measures for budgetary control may also be necessary." Manual at 800-8. The regulation and the Manual were incorporated into the "Provider Agreement" between DDA and Chimes in paragraph IA in which Chimes agreed to comply with the applicable statutes and regulations, as well as "transmittals and guidelines issued by the Department."
To stay within budget appropriations, DDA has instituted numerous cost containment measures over the years. In fiscal year (FY) 1990, DDA set a ceiling for certain cost centers at one standard deviation above the average cost for all providers. DDA cut the annual inflation rate from 6% to 2.5% in FY 1991 and again to 0% in FY 1993. In FY 1992, DDA froze the hourly rates in the Client Assessment Subsystem. In FY 1993, the ceiling rate was calculated using a weighted average and was cut to .75 standard deviations above the mean. Beginning in FY 1993, DDA cut $37 per client per month from each provider's rate for 21 consecutive months. Providers were notified of these cost containment measures by memoranda from DDA. Although the agency did not follow APA "notice and comment" or emergency rulemaking procedures in instituting these cost containments, no provider challenged any of these actions prior to this case.
In August 1993, DDA met with members of the Maryland Association of Community Services to discuss reimbursement rates for FY 1994. DDA subsequently notified providers in individually-addressed memoranda that it was taking several steps to control costs. At issue here is DDA's limitation on the growth in the administration, general, capital, and transportation cost centers to 7% for providers whose costs were below the mean and 4% for providers whose costs were above the mean. In FY 1994, DDA applied the "growth cap," calculating averages for each cost center separately. In FY 1995, DDA again imposed the "growth cap," using an aggregate of four cost centers to determine whether providers were above or below the mean. As a result of this action, Chimes' reimbursement rate was cut.[2]
Chimes initially appealed imposition of the "growth cap" to the PPS Appeal Board, which is empowered to hold evidentiary or oral hearings on the calculation of the reimbursement rate, the final reimbursement amount, and other disputes between providers and DDA. Manual at 700-3, 7. The PPS Appeal Board delegated its authority to the Office of Administrative Hearings (OAH). The parties filed cross motions for summary decision. The Administrative Law Judge (ALJ), ruled in favor of DDA. OAH, the ALJ held, "may rule on whether a statute or regulation was appropriately applied by the agency, but has no authorization to determine the validity of the regulation itself," and was, thus, without jurisdiction in this case.
Chimes then filed a Complaint for Declaratory Judgment in the Circuit Court for Baltimore County claiming that DDA's adoption of the 4%/7% "growth cap" violated the rulemaking procedures required under the Maryland APA. Both parties filed motions for summary judgment. Following a hearing, the circuit court held, on January 25, 1995, that the "growth cap" was a regulation under the APA and was not within the "internal management" exception of § 10-101(g)(2)(i) *488 of the APA. The court also rejected DDA's contention that the existing regulation (COMAR 10.22.17.08.A) grants DDA the authority to implement cost containment measures without following APA rulemaking procedures. It declared the "growth cap" invalid and later granted supplemental relief in the amount of $941,788 for FY 1994 and a similar amount for FY 1995, to be determined at the end of the fiscal year. DDA appealed to the Court of Special Appeals. Before arguments in that court, we granted a Writ of Certiorari.
III
DDA argues that "[j]ust as an agency must have the discretion to decide whether to proceed by rulemaking or case-by-case adjudication, it must also possess the flexibility in applying existing regulations to respond to the myriad situations that it routinely confronts in the pursuit of its regulatory mission." Specifically, it says that the question presented is whether it must undergo "the rigorous and time-consuming requirements of the rulemaking process each time it seeks to implement existing regulations that authorize the State to take cost containment measures to stay within its budgetary appropriation in administering a government program through private contractors." It further says that the State's right to limit the amount that contractors may be reimbursed for their overhead costs does not constitute a quasi-legislative judgment giving rise to a new rule, but rather amounts to no more than the specific application of the core authority that underlies the entire PPS. In this regard, DDA explains that its action effected no change in existing law but merely applied a regulation that notified all participants in the PPS that the State has the right to impose the same cost containment measure that was implemented in this case. According to DDA, requiring that it amend its regulation each time it must account for unpredictable contingencies constitutes an unnecessary and costly burden on the State at the expense of proper efficient and effective government. Thus, DDA maintains that it was authorized to impose cost containment measures without following APA rulemaking procedures.
In Consumer Protection v. Consumer Pub., 304 Md. 731, 501 A.2d 48 (1985), the Maryland Attorney General proceeded by adjudication against a company which sold diet pills through the mail, alleging that its advertising was false and misleading in violation of the Maryland Consumer Protection Act. Id. at 737, 501 A.2d 48. The company claimed that since the same advertising practices were used industry wide, the rule would apply to many companies, and the Attorney General should have proceeded by rulemaking as required by the APA. Id. at 753, 501 A.2d 48. We held that the Attorney General was not required to proceed by rulemaking because he "did not change existing law or even formulate rules of widespread application." Id. at 756, 501 A.2d 48.
We again declined to require formal rulemaking procedures in Baltimore Gas & Elec. v. Public Serv. Comm'n, 305 Md. 145, 501 A.2d 1307 (1986). The Public Service Commission, when determining whether a utility is entitled to a fuel rate adjustment, is authorized by statute to consider whether the utility's plants operate at a "reasonable level." Id. at 152, 501 A.2d 1307. The Commission partially denied BG & E's requests for fuel rate adjustments to recover the costs of purchasing supplemental power during forced outages at BG & E's plants. The Commission determined that the outages were partially due to "managerial imprudence" and, thus, the plants were not operating at a "reasonable level." Id. at 153-55, 501 A.2d 1307. We held that the Commission was not required to proceed by rulemaking because the Commission had not applied "materially modified or new standards ... retroactively to the detriment of a company that had relied upon the Commission's past pronouncements." Id. at 169, 501 A.2d 1307.
The only time we have mandated that an agency proceed by rulemaking was in CBS v. Comptroller, 319 Md. 687, 692-93, 575 A.2d 324 (1990). In that case, the Comptroller used a new method of calculating Maryland's share of CBS's advertising receipts. Id. at 690, 575 A.2d 324. We held:
The effect of the Comptroller's audit was to announce a substantially new generally *489 applicable policy with respect to apportionment of the network advertising income of national broadcasting corporations. That change, for practical purposes, amounted to a change in a generally applicable rule. Unlike the agency action in Consumer Protection, it was an effective "change [in] existing law" and did "formulate rules of widespread application." Unlike the agency action in Baltimore Gas & Elec. it was "a case ... in which materially modified or new standards were applied retroactively to the detriment of a company that had relied upon the [agency's] past pronouncements."
Id. at 699, 575 A.2d 324.
IV
In this case, DDA did not formulate new rules of widespread application, change existing law, or apply new standards retroactively to the detriment of an entity that had relied upon the agency's past pronouncements. The "growth cap" at issue here applied only to a limited number of providers in their capacity as contractors with a state agency pursuant to contracts between the parties subject to termination by either side. Furthermore, the "growth cap" applied only in a particular program, in a particular year, and in response to a particular budget crisis. Thus, the "growth cap" was not a rule of widespread application.
The "growth cap" did not, as we said, change existing law. Both the statute and regulation limited DDA's expenditures to budget appropriations and the regulation and Manual provided for cost containment. The regulation specifically contemplated the need for "establishing limits on the percentage of the prospective payment rate for any cost center." COMAR 10.22.17.08.A. The "growth cap" merely effectuated these policies, but did not change the law. Cf. Radiological Soc. v. New Jersey State Dept., 208 N.J.Super. 548, 506 A.2d 755, 760 (1986) (policy statement need not be promulgated as regulation where it "was simply a re-affirmation of the certificate of need requirements already enunciated in existing regulations... and does not constitute a material and significant change from a clear, past agency position."); Bendix Forest Etc. v. Div. of Occup. S. & H., 25 Cal.3d 465, 158 Cal.Rptr. 882, 887, 600 P.2d 1339, 1344 (1979) (state agency did not engage in rulemaking when it required an employer to provide gloves for employees, but merely implemented a regulation that provided "[h]and protection may be required for employees....").
Finally, the "growth cap" did not apply new standards retroactively to the detriment of an entity that relied on prior agency pronouncements. The "growth cap" did not apply retroactively, but was instituted to control costs in the current fiscal year. The regulation and the Manual notified the providers that reimbursement was limited by budget appropriations and DDA had instituted numerous cost containment measures previously. In addition, DDA notified the providers that it needed to implement additional measures in FY 1994 and afforded them the opportunity to discuss various options for controlling costs.
Chimes' interest in fairness was substantially honored, despite the lack of APA procedures. On the other hand, DDA had a strong interest in adopting a cost containment policy as quickly as possible. DDA's FY 1996 adoption of the "growth cap" as a regulation through emergency adoption procedures took months to complete. Such a time lag is a huge burden on an agency administering a complex program such as the Prospective Payment System. As Judge Eldridge said for the Court in Judy v. Schaefer, "flexibility is needed in the administration of the budget in order for the State to run efficiently and to avoid deficits." 331 Md. 239, 261, 627 A.2d 1039 (1993) (upholding statute authorizing Governor to reduce budget appropriations by up to 25%).
We hold, therefore, that following the standards enunciated in CBS, Baltimore Gas & Elec., and Consumer Protection, the "growth cap" was not a "regulation" in the sense contemplated by the APA and need not have been promulgated according to APA rulemaking procedures. See also Dep't v. Lions Manor Nursing Home, 281 Md. 425, 430, 378 A.2d 1351 (1977) (nursing home vendor payment schedule was valid as a contract *490 amendment regardless of its status under the APA).
JUDGMENT REVERSED; COSTS TO BE PAID BY APPELLEE.
BELL, J., dissents.
BELL, Judge, dissenting.
In this case, the majority holds that the Developmental Disabilities Administration ("DDA") of the Department of Health and Mental Hygiene did not violate the Maryland Administrative Procedure Act, Maryland Code (1984, 1995 Repl.Vol., 1995 Cum.Supp.) §§ 10-101139 of the State Government Article, when it, without first promulgating a regulation,[1] instituted a cost containment measure applicable to the Prospective Payment System ("PPS").[2] Specifically, it concludes:
In this case, DDA did not formulate new rules of widespread application, change existing law, or apply new standards retroactively to the detriment of an entity that had relied upon the agency's past pronouncements. The "growth cap" at issue here applied only to a limited number of providers in their capacity as contractors with a State agency pursuant to contracts between the parties subject to termination by either side. Furthermore, the "growth cap" applied only in a particular program, in a particular year, and in response to a particular budget crisis. Thus, the "growth cap" was not a rule of widespread application.
In doing so, it stresses several factors: the purpose of the APA[3]; the existence of regulations and a manual pertaining to the PPS[4]; *491 the prohibition, contained in Maryland Code (1985, 1995 Repl.Vol., 1995 Cum.Supp.) §§ 7-205[5] and 7-234(a)[6] of the State Finance & Procurement Article, against State agencies exceeding their budget appropriations; and the fact that DDA, in the past, without protest or challenge, had instituted other cost containment measures.[7] In support of its conclusion that the "growth cap" rather than change existing law, simply effectuates existing policy, the majority asserts that one of the properly promulgated regulations, COMAR 10.22.17.08.A, contemplates "establishing limits on the percentage of the prospective payment rate for any cost center."
I gather from the foregoing that the majority does not view the "growth cap" as a regulation within the contemplation of APA § 10-101(g). The majority also seems to be saying that this particular cost containment measure is covered by the properly promulgated existing regulations and, in any event, it strikes the proper balance of being fair to the appellee and giving the agency the flexibility it needs to maintain an efficient operation. I am not persuaded. In fact, I find the reasoning of the Circuit Court for Baltimore County (Kahl, J.) to be compelling. Accordingly, I dissent.
The appellant argued before the circuit court, as it has before this court, that the "growth cap" is not of widespread applicability. The circuit court rejected that argument, I think properly, relying on opinions of the Attorney General addressing that very point. I adopt its analysis:
The two best analyses of the notion of "general application" in Maryland are found in 72 Op. Att'y Gen. 230 (July 8, 1987) and 75 Op. Att'y Gen. 15 (Jan. 23, 1990). Both opinions suggest that the term "regulation" has consistently been, and should be, construed "as broadly as its language and apparent underlying intent direct." 75 Op. Att'y Gen. 15, 22 (quoting 72 Op. Att'y Gen. 230, 233). Accordingly, it would seem that any doubt should be resolved by finding the policy to be one of "general application".... The Attorney General has also set forth in 72 Op. Att'y Gen. 230, n. 4, which DDA has relied upon in support of its contention that policies aimed at those in contractual relations with the agency in question are ordinarily not of "general application." The Attorney General stated:
In 72 Opinions of the Attorney General 230, 234 n. 4 (1987) we suggested that when "a group of persons in a contractual relationship with a State agency [are] affected by agency directives authorized under the contract," those directives might not be of "general application" and hence might be outside the definition of "regulation" in the APA. That suggestion, however, did not have in mind directives under a complex program like Medicaid, having effects on a large group of providers and, potentially on program beneficiaries as well. Thus, the better approach is to view Transmittal No. 91 as of "general applicability" and then analyze its effects in considering *492 whether the internal management exception applies to it.
75 Op. Att'y Gen. 15, 24 n. 9.
Admittedly the PPS program is not as broad as Medicaid and covers, to date, only 93 providers, however the number of program beneficiaries to be impacted by the 1994 cost containment policy is potentially enormous. Accordingly, this Court adopts the rationale of the Attorney General set forth above.
The Attorney General has also opined that "[e]ven though an action applies to persons within a small class, the action is of general application if that class is described in general terms and new members can be added to the class." 72 Op. Att'y Gen. 230, 234 n. 4 (quoting Citizens for Sensible Zoning v. Dept. of Natural Resources, 90 Wis.2d 804, 280 N.W.2d 702, 707-708 (1979). As asserted by Chimes, the 1994 cost containment policy applies to all DDA providers, a class described in general terms. In addition, new members can join that class by executing provider agreements with DDA and providing services for a period sufficient to allow for calculation of historic costs.... Thus it appears the policy is, indeed, one of "general Application" within the definition of SG 10-101(1)(e)(i), regardless of how this Court chooses to address that issue.
The circuit court also properly rejected the appellant's argument, premised on the cost containment measure being merely reflective of existing regulations and, hence, simply effectuates the policy expressed therein. It relied on this Court's opinion in Insurance Comm'r. v. Bankers Independent Insurance Company, 326 Md. 617, 624, 606 A.2d 1072, 1075 (1992). In that case, Chief Judge Murphy, the author of the majority opinion in this case, speaking for the Court, observed:
[A] legislatively delegated power to make rules and regulations is administrative in nature, and it is not and can not be the power to make laws; it is only the power to adopt regulations to carry into effect the will of the legislature as expressed by the statute. Legislation may not be enacted by an administrative agency under the guise of its exercise of the power to make rules and regulations by issuing a rule or regulation which is inconsistent or out of harmony with, or which alters, adds to, extends or enlarges, subverts, impairs, limits, or restricts the act being administered.
Id.
I note, at the outset, that the circuit court is absolutely correctCOMAR 10.22.17.08.A, upon which the appellant relies as authorizing it to proceed as it did and thus permits it to argue that the subject regulation is not a regulation at all, does not pass muster under Bankers. More fundamentally, I also agree with the circuit court that the subject "growth cap," whatever the majority's characterization, is a regulation within the definition set forth in § 10-101(g).
The majority states that the "growth cap" is not the statement of a new policy and that it did not change existing policy. The majority misspeaks. A form of reimbursement that requires the payment of all expenses incurred by the provider in supplying the services overseen by the agency is significantly different from one that recognizes, for reimbursement purposes, only some of those expenses. The moment the agency issues a directive adopting the new formula, that draws the distinction, it has stated a new policy and it certainly has significantly altered the old one. The only similarity between the two policies is that they both are reimbursement methods.
Prior to issuing the regulation which is the subject of this case, the DDA regulations required the DDA to reimburse the PPS provider based on the reports they submitted, adjusting for inflation and attendance rates. See COMAR 10.22.17.06 and Manual at 800-9. After the regulation, reimbursement was based on the provider reports and a "growth cap" imposed by the agency. Contrary to the majority, I consider the difference quite significant. Moreover, I am hardpressed to find its authorization in the formally adopted regulations. There really is a difference between saying that certain measures may have to be taken in the future and, when the circumstances requiring the taking of the measures have occurred, formulating the precise responsive measures.
*493 The APA prescribes the formal process, in accordance with which regulations must be promulgated and adopted. See APA §§ 10-109-117.[8] It would indeed be a subversion of the purpose and intent of this aspect of the APA if, as Judge Kahl pointed out, an administrative agency were enabled to "sidestep [these] requirement[s] merely by allowing for implementation of `regulations' by administrative fiat." But that is precisely the effect of the appellant's theory, adopted by the majority: a statement of agency policy otherwise meeting the definition of "regulation" somehow is rendered not a regulation by virtue of the agency having previously adopted a broad, open-ended rule contemplating future action by the agency. But a "regulation" is no less a "regulation" simply because a previous regulation has been drafted so as to recognize, if not anticipate, that, sometime in the future, it may be necessary to adopt other, different policies than those presently reflected in the formally adopted regulations, to include those that are the subject of the "regulation" at issue. And because it is a regulation and remains one despite the reference in the existing regulation, it too must be promulgated with the required formality. Anticipating the need for the policies such a regulation would effectuate in advance of the need for their implementation provides no basis for the informal rule-making that occurred in this case.
If the majority is correct, the benefits of formal rule-making will be significantly undermined. No longer will amendments to regulations to take account of changed circumstances be necessary. Each agency can be expected to include in the regulations it promulgates language indicating that it may be necessary for the agency to take future action of a general nature to address changed circumstances. Under this opinion, that would be all that is required to permit the agency to issue detailed directives, informed by the facts as they have developed, which significantly changes the policies announced by the original regulations. The fairness intended for the interested parties will be largely lost. At the same time, the very real potential for administrative agencies to abuse their power will concomitantly increase and at the expense of the very parties to whom the APA was intended to be fair. As the appellee puts it:
Such a regulatory short-cut completely undermines the APA's goal of ensuring fairness and efficiency by allowing regulated populations who may be significantly affected by the proposed agency policy to participate in the rulemaking process.
In short, taking the majority's approach skews the balance and it does it precipitously.
Neither time, expense, nor the need for flexibility warrants this result. When a regulation is required by the Legislature to be formally promulgated, it must be formally promulgated, notwithstanding the expense, the time involved, or the lack of flexibility that entails. Fraternal Order of Police, Montgomery County Lodge 35 et al. v. Mehrling, 343 Md. 155, 172-79, 680 A.2d 1052, 1061-65 (1996). Expediency simply should not be allowed to hold sway over the regular and rightful process to which an interested party is entitled.
In any event, I am not convinced that requiring the DDA to follow the proper procedure for adopting regulations is so timeconsuming or costly as to warrant its avoidance. *494 The emergency rule-making procedures, which, according to the majority, are also too burdensome, are, in fact, intended and designed to take account of, and accommodate, the need for the agency to act quickly and with dispatch, thus giving it the needed flexibility. At the very least, the agency should be required to follow those procedures whenever it desires to change, expand or clarify the regulations pursuant to which it and the providers under the program it administers are working. To the majority, however, it appears that nothing short of complete authority informally to make rules will suffice. It, like the agency would completely abrogate the APA's requirement that amendments to existing regulations be adopted with the same formality that accompanied the original regulation. That approach renders nugatory the portion of § 10-101(g) that prescribes that requirement, contrary to the usual rules of statutory construction. See Prince George's County v. Vieira, 340 Md. 651, 658, 667 A.2d 898, 901 (1995) (quoting GEICO v. Insurance Comm'r, 332 Md. 124, 132, 630 A.2d 713, 714 (1993)); Rose v. Fox Pool Corp., 335 Md. 351, 359, 643 A.2d 906, 910 (1994); Montgomery County v. Buckman, 333 Md. 516, 524-25, 636 A.2d 448, 452 (1994); Condon v. State, 332 Md. 481, 491, 632 A.2d 753, 758 (1993).
NOTES
[1] Section 10-101(g) (formerly paragraph e) of the APA defines "Regulation" as follows:
(1) "Regulation" means a statement or an amendment or repeal of a statement that:
(i) has general application;
(ii) has future effect;
(iii) is adopted by a unit to:
1. detail or carry out a law that the unit administers;
2. govern organization of the unit;
3. govern the procedure of the unit; or
4. govern practice before the unit; and
(iv) is in any form, including:
1. a guideline;
2. a rule;
3. a standard;
4. a statement of interpretation; or
5. a statement of policy.
(2) "Regulation" does not include:
(i) a statement that:
1. concerns only internal management of the unit; and
2. does not affect directly the rights of the public or the procedures available to the public;
(ii) a response of the unit to a petition for adoption of a regulation under § 10-123 of this subtitle; or
(iii) a declaratory ruling of the unit as to a regulation, order, or statute, under Subtitle 3 of this title.
(3) "Regulation", as used in §§ 10-110 and 10-111.1, means all or any portion of a regulation.
[2] Beginning in FY 1996, DDA voluntarily followed APA procedures in imposing the "growth cap." See Notice of Emergency Action, 22 Md. Reg. 1654 (1995).
[1] Maryland Code (1984, 1995 Repl.Vol., 1995 Cum.Supp.) § 10-101(g) of the State Government Article provides:
(g) Regulation.-
(1) "Regulation" means a statement or an amendment or repeal of a statement that:
(i) has general application;
(ii) has future effect;
(iii) is adopted by a unit to:
1. detail or carry out a law that the unit administers;
2. govern organization of the unit;
3. govern the procedure of the unit; or
4. govern practice before the unit; and
(iv) is in any form, including:
1. a guideline;
2. a rule;
3. a standard;
4. a statement of interpretation; or
5. a statement of policy.
(2) "Regulation" does not include:
(i) a statement that:
1. concerns only internal management of the unit; and
2. does not affect directly the rights of the public or the procedures available to the public;
(ii) a response of the unit to a petition for adoption of a regulation, under § 10-123 of this subtitle; or
(iii) a declaratory ruling of the unit as to a regulation, order, or statute, under Subtitle 3 of this title.
(3) "Regulation", as used in §§ 10-110 and 10-111.1, means all or any portion of a regulation.
[2] The Developmental Disabilities Administration has since promulgated regulations incorporating the measure, the imposition of a percentage limit on the increase in certain overhead costs allowed all PPS providers, i.e. a "growth cap." See Notice of Emergency Action, 22 Md. Reg. 1654 (1995). DDA concedes that, prior to taking this action, it had not followed the formal rulemaking procedures prescribed by the APA.
[3] Focusing on the purpose for the enactment of the APA, the majority notes that the Commission on Administrative Organization of the State commented that it was intended to "ensure that `certain basic principles of common sense, justice and fairness,' including notice to interested parties, are applied in administrative proceedings `without unduly restricting the agencies in the performance of their various tasks.'" 343 Md. 336, 338, 681 A.2d 484, 485 (1996) (quoting the Commission's Seventh Report 8 (1952)). As the majority sees it, therefore, what has to be achieved in this case is the balance that was intended when the APA was adopted: the State's interest in efficient operation and the interested party's interest in fairness.
[4] The regulations establishing the PPS are codified at Code of Maryland Administrative Regulations (COMAR) 10.22.17. Those regulations, which incorporate by reference the "Prospective Payment System for Community Services to the Mentally Retarded and Developmentally Disabled Clients Procedures Manual (First Edition)," provide that PPS " is subject to the budget appropriations approved by the Legislature" and that
The Department may take cost containment measures to control total expenditures on the prospective payment system. These cost containment measures may include, but are not limited to:
(1) Sharing in any surplus on prospective payments less actual cost;
(2) Establishing limits on the percentage of the prospective payment rate for any cost center.
COMAR 10.22.17.08.A. The manual echoes that regulation, stating that "[o]ther cost containment measures for budgetary control may be necessary."
[5] § 7-205. Disbursements in accordance with current appropriation.
Money may be disbursed from the State Treasury only in accordance with the current appropriation for a program as amended from time to time in accordance with this title.
[6] § 7-234. Expenditures in excess of appropriation.
(a) Prohibited.An officer or unit of the State government may not spend money:
(1) in excess of the total appropriation to the officer or unit; or
(2) in excess of the amounts set forth in the current schedule for apportionment and disbursement of the appropriation.
[7] It appears that these "cost containment measures" were instituted as early as fiscal year 1990 and were continued in each successive year thereafter, until the appellee challenged this most recent measure. That the providers may have acquiesced in these past cost containment measures, waiving their arguments under the APA, does not estop them to challenge the failure of DDA formally to adopt this regulation. To me, this is common sense. The majority has not explained or provided any authority for holding otherwise.
[8] Maryland Code (1982, 1994 Repl.Vol., 1995 Cum. Supp) § 2-104 of the Health General Article, which authorizes the Secretary of Health and Mental Hygiene to promulgate rules and regulations, seems also to contemplate, and, so, favors, formal rule-making. It provides:
(b) Rules and regulations.-
(1) The Secretary may adopt rules and regulations to carry out the provisions of law that are within the jurisdiction of the Secretary.
(2) (i) The Secretary shall adopt regulations, in consultation and cooperation with local governing bodies, to govern the siting of community residences for special populations funded by the Department, the Department of Housing and Community Development, the Department of Human Resources, and the Department of Juvenile Justice.
(ii) Any regulations adopted shall comply with the Federal Fair Housing Amendment Act of 1988.
(iii) Prior to the adoption of any regulations proposed under this subsection, the Secretary shall conduct a public hearing for the sole purpose of allowing all the governing bodies of each county and municipality the opportunity to review and comment on the proposed regulations. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266252/ | 545 Pa. 347 (1996)
681 A.2d 710
COMMONWEALTH of Pennsylvania, Appellee,
v.
Herman SHADE, Appellant.
Supreme Court of Pennsylvania.
Submitted September 21, 1994.
Decided July 26, 1996.
*348 Peter T. Campana, Williamsport, for appellant.
Robert B. Sacavage, District Attorney, for appellee.
Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.
OPINION
NIX, Chief Justice.
Appellant, Herman Shade, appeals from the order of the Superior Court which affirmed the order of the court of common pleas which granted Appellant's motion for a new trial but denied his motion in arrest of judgment. We granted allocatur in order to review the propriety of the relief granted by the trial court after it ruled that it gave an erroneous jury instruction. For the reasons that follow, we reverse the order of the Superior Court.
On April 10, 1990, at 2:37 a.m., Appellant was stopped by Officer Lutcher of the Milton Borough Police Department for failing to stop his vehicle at a flashing red signal. During the course of the stop, the officer detected a moderate odor of alcohol, observed that Appellant's eyes were bloodshot, and noticed that Appellant had difficulty with respect to his speech and gait. Appellant admitted to Officer Lutcher that he had consumed three beers between the time of 1:30 a.m. and 2:15 a.m.
*349 Based on what he had observed and been told, Officer Lutcher requested that Appellant perform field sobriety tests. Appellant complied but did not perform the tests to the satisfaction of the officer. As a result, Appellant was taken to the Milton police station where he was given an intoxilyzer test. The first breath sample was taken at 3:23 a.m., forty-six minutes after the initial stop, and registered .157% blood alcohol content ("BAC"). The second sample was taken one minute later and registered .142%. The trial court noted that "[n]either the arresting officer nor the officer who had administered the test were [sic] qualified as an expert in order to testify at trial that the amount of alcohol by weight in [Appellant]'s blood at the time he was driving was greater than.10%." Commonwealth v. Shade, No. CR-90-411, slip op. at 2-3 (C.P. Northumberland County June 3, 1992).
The trial court instructed the jury at the close of trial that the Commonwealth was not required to produce evidence to relate the results of Appellant's intoxilyzer test back to the time that he was allegedly operating his vehicle. The jury subsequently found Appellant guilty of operating a vehicle while having a blood alcohol content of .10% or greater in violation of 75 Pa.C.S. § 3731(a)(4).[1]
Appellant filed timely post-verdict motions alleging, inter alia, that the trial court erroneously instructed the jury that the Commonwealth did not have to relate back the evidence of Appellant's BAC to the time that he was driving his vehicle. In light of recent case law, the trial court agreed with Appellant's challenge and granted a new trial but denied his motion in arrest of judgement.
In support of its ruling, the trial court cited Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992), and Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992), *350 wherein this Court reversed the judgments of sentence of two individuals convicted under 75 Pa.C.S. § 3731(a)(4). In those cases, we recognized the existence of a strong inference that an individual's BAC would be beyond the permissible limit while driving when that individual possessed a BAC significantly above .10% and when the testing occurred shortly after the individual had driven his vehicle. However, there was no specific indication as to what BAC would be considered significantly above .10%, nor did we establish a temporal threshold for the lapse of time between driving and BAC testing. Based on this lack of specifically defined boundaries, the trial court in the instant case concluded that it could not grant a motion in arrest of judgment. Commonwealth v. Shade, No. CR-90-411, slip op. at 6.
In a supplemental opinion addressing the appropriateness of its post-verdict relief, the court noted that Appellant's request for relief was phrased in the alternative, i.e. motion for a new trial or motion in arrest of judgement. Commonwealth v. Shade, No. CR-90-411, slip op. at 1 (C.P. Northumberland County July 29, 1992). Faced with these alternatives, the trial court reasoned that fairness to both parties mandated the grant of a new trial in view of the prejudicial effect of arresting judgment against the Commonwealth and the absence of such prejudice to Appellant in granting a new trial. Id. It added that the grant of a new trial would permit both the Commonwealth and Appellant to proceed "in accordance with the existing caselaw." Id. at 3.
On appeal, the Superior Court affirmed based upon the trial court's original and supplemental opinions. Commonwealth v. Shade, No. 2130 Philadelphia 1992, 431 Pa.Super. 622, 631 A.2d 217 (Apr. 30, 1993). In so doing, it reaffirmed the fact that this Court has "`drawn no bright lines between what it would consider to be a minimal upward departure [from .10% BAC] suggesting a weak inference of guilt and what would constitute a significant upward deviation which would give rise to a strong inference of guilt.'" Id. at 3 (quoting Commonwealth v. Shade, No. CR-90-411, slip op. at 5-6 (C.P. Northumberland County June 3, 1992)).
*351 The insufficiency of the evidence supporting Appellant's conviction does not appear to be an issue in dispute among the parties. It is apparent that the trial court's erroneous charge allowed the jury to base its verdict on unsubstantiated speculation. There was no evidence to support a finding that Appellant had a BAC of .10% while he was operating his vehicle. Thus, the only question is whether the trial court correctly granted Appellant a new trial as the proper remedy for the improper jury charge. Based on our recent decision in Commonwealth v. Loeper, 541 Pa. 393, 663 A.2d 669 (1995), we are compelled to conclude that the trial court should have granted Appellant's motion in arrest of judgment.
In Loeper, the appellant had been convicted of driving under the influence of alcohol pursuant to 75 Pa.C.S. § 3731(a)(4) (operation of a motor vehicle with a BAC of 0.10% or greater). The Superior Court found that the inference of guilt was too weak to support the appellant's conviction because his BAC did not represent a significant departure from the permissible limit and because there was a substantial delay prior to the administration of his BAC test. Thus, there was no evidence to relate back the BAC test results as required by Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992), and Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992).
The Superior Court nevertheless went on to conclude that there was additional evidence from which the jury could have inferred that the appellant had operated his vehicle with a BAC in excess of the permissible limit. This evidence consisted of the testimony of two police officers who observed the appellant slur his speech at the time of his stop and the testimony of the appellant's own expert that most people do not begin to show outward signs of intoxication until they achieve BAC of .15%.
On appeal, this Court reversed the Superior Court based on our conclusion that the evidence was insufficient to support the appellant's conviction under 75 Pa.C.S § 3731(a)(4). We found that the evidence of physical impairment was irrelevant insofar as it related to a prosecution for operating a vehicle *352 with a BAC of .10% or greater.[2]Loeper, 541 Pa. at 402-03, 663 A.2d at 673-74. Accordingly, because the appellant's conviction was not based on the requisite degree of evidence necessary to legally support such a conviction, his sentence was vacated. Id. at 403-04, 663 A.2d at 674.
Likewise, in the instant case, the evidence underlying Appellant's conviction is insufficient as a matter of law. The jury was permitted to base its verdict on an erroneous instruction which relieved the Commonwealth of its burden of proving a material element of the offense set forth in 75 Pa.C.S. § 3731(a)(4). The Superior Court therefore erred in affirming the trial court's grant of a new trial. The proper remedy in this case should have been to grant Appellant's motion in arrest of judgment.[3]
The order of the Superior Court is reversed.
CAPPY, J., files a concurring opinion.
CASTILLE, J., files a dissenting opinion in which NIGRO and NEWMAN, JJ., join.
CAPPY, Justice, concurring.
Because Appellant preserved the issue of whether the Commonwealth had to produce evidence relating the results of his BAC test to the time of his driving (hereinafter "relation back *353 evidence") so as to survive a sufficiency of the evidence challenge, I would grant Appellant's motion for arrest of judgment and thus I concur in the result reached by the majority. See Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983)
where an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.
Accord Commonwealth v. Sessoms, 516 Pa. 365, 380, n. 2, 532 A.2d 775, 782, n. 2 (1987). See also Commonwealth v. Gillespie, 512 Pa. 349, 516 A.2d 1180 (1986).
At the time of Appellant's trial, the state of the law did not require the Commonwealth to produce "relation back" evidence. See Commonwealth v. Speights, 353 Pa.Super. 258, 509 A.2d 1263 (1986). See also Trial court slip opinion and supplemental slip opinion. However, subsequent to Appellant's trial, but before the disposition of post trial motions, this Court issued two opinions: Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229, (1992) and Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233, (1992) which held that absent relation back evidence, the Commonwealth's case was insufficient to sustain its burden to prove a violation of 75 Pa.C.S.A. § 3731(a)(4). In addition, subsequent to the issuance of Jarman and Modaffare, but before the trial court's disposition of Appellant's post trial motions, the Superior Court issued Commonwealth v. Osborne, 414 Pa.Super. 124, 606 A.2d 529 (1992), appeal denied, 531 Pa. 660, 613 A.2d 1209 (1992) which construed Jarman and Modaffare as requiring the Commonwealth to produce relation back evidence in order to sustain its burden of proof in prosecuting a § 3731(a)(4) violation. See also Commonwealth v. Loeper, 541 Pa. 393, 403 n. 7, 663 A.2d 669, 674 n. 7 (1995) (recognizing by implication that Jarman and Modaffare established the requirement that the Commonwealth had to produce "relation back" evidence in order to establish a prima facie case and that in Commonwealth v. *354 Yarger, 538 Pa. 329, 648 A.2d 529 (1994) we modified the requirement established in Jarman and Modaffare). Thus, between the time of the trial and the time when the trial court was considering the post trial motions, the state of the law had changed. The question presented to the trial court was whether Appellant was to be accorded the benefits of the change. The trial court clearly decided that Appellant should be accorded the benefit of such a change and held that
Defendant is clearly entitled to the benefit of the above rulings [i.e., Jarman, Modaffare, and Osborne] because he has properly preserved the issue of relation back through all stages of the proceedings where this issue could have been raised. See Commonwealth v. Sessions [sic], 516 Pa. 365, 532 A.2d 775 (1987) and Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983).
Trial court slip op. at 6-7. I agree with the trial court that because the Appellant has preserved the issue of the sufficiency of the evidence at every stage of the proceedings, he is entitled to the benefit of the Jarman, Modaffare and Osborne. However, I must disagree with the trial court's conclusion, 1) that the remedy of a new trial is adequate to provide Appellant with the benefit of those rulings and 2) that prejudice to the Commonwealth is a proper consideration in denying Appellant's motion in arrest of judgment.
The grant of a new trial is simply an inadequate remedy where the Commonwealth as a matter of law fails to produce sufficient evidence. Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983); Commonwealth v. Cardona, 316 Pa.Super. 381, 387, 463 A.2d 11, 14 (1983)("when the evidence is insufficient to support the verdict, a defendant is entitled to have the charges against him dismissed outright.")(emphasis added). Indeed, granting an arrest of judgment where the Commonwealth fails to produce sufficient evidence is constitutionally compelled. Vogel In Vogel, 501 Pa. at 319, 461 A.2d at 607, this Court specifically noted that the United States Supreme Court in Burks v. U.S., 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), had "concluded that double jeopardy precludes a retrial once an appellate court has found the evidence legally insufficient." *355 See also Smalis v. Pa., 476 U.S. 140, 144, 106 S.Ct. 1745, 1748, 90 L.Ed.2d 116 (1986) where the United States Supreme Court declared that "[w]hat the demurring defendant seeks is a ruling that as a matter of law the State's evidence is insufficient to establish his factual guilt. Our past decisions, which we are not inclined to reconsider at this time, hold that such a ruling is an acquittal under the Double Jeopardy Clause." (footnote and citations omitted) Accordingly, because the trial court held that the Appellant was entitled to the benefit of the change in the law (and I agree), and because Jarman, Modaffare and Osborne require that Appellant be discharged, Appellant is entitled to an arrest of judgment. In this regard, I note that the defendants in Jarman, Modaffare and Osborne were not given new trials but were all discharged.
Moreover, the standard for deciding upon a motion in arrest of judgment is clear:
In order for a trial court to properly grant a criminal defendant's motion in arrest of judgment on the ground of the insufficient evidence, "it must be determined that accepting all of the evidence and all reasonable inferences therefrom, upon which, if believed [the verdict could properly have been based], it would be nonetheless insufficient in law to find beyond a reasonable doubt that the [defendant is guilty of the crime charged.]" Commonwealth v. Blevins, 453 Pa. 481, 483, 309 A.2d 421, 422[.]
Commonwealth v. Meadows, 471 Pa. 201, 205-06, 369 A.2d 1266, 1268 (1977). This standard clearly does not permit a trial court to consider prejudice to the Commonwealth in deciding such a motion. In fact, the Commonwealth will always be "prejudiced" by a grant of an arrest of judgment because by definition it bars the Commonwealth from prosecuting the defendant again. Accordingly, to the extent that the trial court considered prejudice to the Commonwealth in disposing of Appellant's motion in arrest of judgment, the trial court erred.
Finally, the Majority asserts that "[t]he insufficiency of the evidence supporting Appellant's conviction does not appear to *356 be an issue in dispute among the parties" Majority Op. at 351. If the Commonwealth does concede that the evidence was insufficient, then pursuant to Smalis, Vogel and Cardona, the grant of the motion in arrest of judgment is required. Moreover, I strongly disagree with the Majority when it states that "the only question is whether the trial court correctly granted Appellant a new trial as the proper remedy for the improper jury charge." Majority Op. at 351. The insufficiency of the evidence is the only issue before this Court. What we are deciding is the appropriateness of the trial court's denial of Shade's post trial motion in arrest of judgment. See Appellant's Post Verdict Motions, filed at No. CR-90-411 wherein under the heading of "MOTION IN ARREST OF JUDGMENT", Appellant's sole ground for requesting an arrest of judgment is that "the evidence is legally insufficient to sustain the jury's guilty verdict." Id. at 2.[1] Indeed the only issue before this court is the appropriateness of the trial court's denial of the motion in arrest of judgment. The "Statement of Question Presented for Review" section in Appellant's Petition for Allowance of Appeal which was granted stated the sole issue as "Whether the trial court erred in denying the Petitioner's motion in arrest of judgment?" Appellants' PAA at 1. The "Statement of Question Involved" section of Appellant's brief to this Court states the sole issue as "Whether the trial court erred in denying Appellant's motion in arrest of judgment?" Since the trial court granted Appellant's motion for a new trial, the Appellant could not possibly appeal that order as it was decided in Appellant's favor.[2] Additionally, the *357 Commonwealth did not appeal the trial court's grant of a new trial. Accordingly, the issue of the propriety of the grant of a new trial based upon an allegedly erroneous jury instruction simply is not before this Court.
In addition, even accepting as true the majority's assertion that "the only question is whether the trial court correctly granted Appellant a new trial as the proper remedy for the improper jury charge", the majority's conclusion that an erroneous jury charge merits an arrest of judgment is, in my view, incorrect. The appropriate remedy for an erroneous jury charge is the grant of a new trial and not arresting judgment. Commonwealth v. Wilcox, 400 Pa.Super. 463, 583 A.2d 1208 (1990), reversed on other grounds, 531 Pa. 459 613 A.2d 1207 (1992).[3]
For the foregoing reasons, I concur in the grant of the arrest of judgment.
CASTILLE, Justice, dissenting.
The majority holds that the trial court erred in granting a new trial after determining that, based on a change in the law, it had given an erroneous jury instruction. Because I agree that the relief granted by the trial court was appropriate, I respectfully dissent.
The determination of whether to grant a new trial is within the discretion of the trial court, and will not be reversed absent an abuse of that discretion. Commonwealth v. Powell, 527 Pa. 288, 292, 590 A.2d 1240, 1242 (1991). At the outset, *358 appellant requested either a new trial or arrest of judgment. I cannot agree that the trial court abused its discretion in granting relief which was in fact specifically requested by appellant. Furthermore, I believe that the trial court's ruling was correct.
The trial court determined that a new trial was required in the interest of justice in order to avoid prejudicing the Commonwealth because of a change in the law. In this Commonwealth, "[a] trial court has an `immemorial right to grant a new trial, whenever, in its opinion, the justice of the particular case requires.'" Id. at 293, 590 A.2d at 1242 (citations omitted). At the time of appellant's trial, the state of the law was that the Commonwealth had no obligation to present any evidence relating appellant's blood alcohol content (BAC) at the time of testing back to the time of driving. Commonwealth v. Speights, 353 Pa.Super. 258, 266, 509 A.2d 1263, 1267 (1986), alloc. denied, 517 Pa. 594, 535 A.2d 83 (1987). Because the Commonwealth proceeded through trial in accordance with the applicable law, and the trial court so instructed the jury on the then applicable law, the trial court determined that justice weighed against its granting appellant's motion in arrest of judgment and that a new trial was the appropriate remedy. Specifically, the trial court stated, "in consideration of the Court's charge, the issue of blood alcohol content was sufficiently ambiguous as to leave open to speculation the question of [appellant's] BAC at while driving." Commonwealth v. Shade, No. CR-90-411, slip op. at 4 (C.P. Northumberland County June 3, 1992).[1] Thus, the trial court's determination that appellant was deprived of a fair trial was based not upon the sufficiency of the evidence presented, but upon the erroneous instruction from the trial court concerning what the *359 evidence so presented had to establish in order to sustain a conviction. For several reasons, I do not believe that granting a new trial as opposed to an arrest of judgment under those circumstances was an abuse of discretion.
First, neither Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992), nor Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992), are determinative of the outcome in this case. While this Court determined that the evidence in those cases was insufficient to support the verdicts, those holdings were based on the specific facts of those cases. In Modaffare, the defendant's BAC registered at .108% almost two hours after the time at which he was driving. In Jarman, the defendant's BAC registered .114% an hour after driving. And in both cases, expert witnesses testified that it was possible or even probable that the defendants' BACs had peaked between the time of the stop and the time of testing. The Court specifically held in those cases that the Commonwealth must relate BAC back to the time of driving and that, where the BAC barely exceeded .10% and there had been a significant time lapse between driving and the blood test, the inference of guilt was weakened, and therefore more evidence than simply BAC test results would be required to sustain a conviction. Jarman, supra at 96, 601 A.2d at 1231; Modaffare, supra at 105, 601 A.2d at 1235. Under the circumstances of those particular cases, the Court held that the evidence was insufficient to establish relation back of the appellants' BACs to the time of driving. Jarman, supra at 97, 601 A.2d at 1231; Modaffare, supra at 106-07, 601 A.2d at 1236.
In the present case, however, appellant's BAC, taken forty-five minutes after driving, was .142%, more than 40 percent over the legal limit, a deviation which, unlike the majority of this Court, I consider to be significant. Additional evidence was also presented at trial, including that at the time appellant was stopped he smelled of alcohol, had bloodshot eyes, was slurring his speech and had trouble keeping his balance. Appellant also failed two field sobriety tests. Given the high BAC and the additional circumstantial evidence that appellant was under the influence of alcohol at the time of driving, the *360 jury could have found that the Commonwealth established relation back with the evidence presented at trial, had they been so instructed under the rationale of Modaffare and Jarman. See also, Commonwealth v. Yarger, 538 Pa. 329, 648 A.2d 529 (1994) (BAC result of .18% is sufficient by itself to establish prima facie case of DUI, and Commonwealth is not required to present expert testimony to establish relation back).
Moreover, the Majority erred in applying Commonwealth v. Loeper, 541 Pa. 393, 663 A.2d 669 (1995) (circumstantial evidence not admissible to prove BAC at the time of driving under 75 Pa.C.S. § 3731(a)(4)), to this case. Loeper was not decided until after this case was submitted to this Court and was not made retroactive. Furthermore, appellant did not raise or preserve the issue of whether evidence of physical impairment other than one's BAC was improper to determine intoxication, which was the issue in Loeper. Therefore, appellant is not entitled to an arrest of judgment based on that ruling.[2]
Finally, I wish to reiterate my conviction that this Court has disregarded the intent of the legislature in holding that circumstantial evidence is inadmissible for the purpose of establishing that a person's BAC was .10% or greater at the time of driving. As I stated in my dissent in Loeper, the legislature has provided that, while chemical test results are admissible in order to establish BAC, their admissibility "shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether or not the *361 defendant was driving under the influence of alcohol." Id. at 405, 663 A.2d at 675, citing 75 Pa.C.S. § 1547(f). In holding to the contrary, the Majority has changed the burden on the Commonwealth from "beyond a reasonable doubt" to "by a mathematical certainty."
Because I do not believe that the trial court abused its discretion in granting relief which served the interests of justice and was specifically requested by appellant, I would affirm the order of the Superior Court affirming the trial court's grant of a new trial.
NIGRO and NEWMAN, JJ., join in this dissenting opinion.
NOTES
[1] At the time relevant to the offense, 75 Pa.C.S. § 3731(a)(4) provided:
(a) Offense defined. A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
(4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.
[2] The basis for this conclusion was the scientific nature of the evidence needed to convict under 75 Pa.C.S. § 3731(a)(4). It was the belief of a majority of this Court that evidence of physical impairment had no bearing on the determination of the amount of alcohol by weight in the blood of an individual.
[3] In his dissent, Mr. Justice Castille characterizes our reliance on Loeper as being a retroactive application of the rule of that case. However, we cite Loeper only because it is instructional as to the proper remedy when a conviction is not supported by sufficient evidence. The specific reason for the deficiency in the evidence supporting the conviction in Loeper is not relevant to our resolution of the instant case. Both Appellant and the defendant in Loeper were convicted of violations of 75 Pa.C.S. § 3731(a)(4), and it was subsequently determined that the evidence of record was insufficient to support their convictions. On that basis, fundamental fairness dictates that the remedy for each defendant be the same. Accordingly, Mr. Justice Castille's assertion that Appellant has not raised or preserved the issue of improper use of physical impairment evidence is of no moment.
[1] Only in support of his motion for a new trial filed with the trial court does Appellant raise the issue of the improper jury instruction. Appellant does not raise the improper jury instruction as a basis in support of his motion in arrest of judgment.
[2] This is the fundamental flaw in the dissenting opinion of my learned colleague, Mr. Justice Castille. He finds that the dispositive issue is the determination of whether the trial court abused its discretion in granting a new trial. However, as discussed in the body of this opinion, the question of the appropriateness of the grant of a new trial is not before us, neither the Appellant nor the Commonwealth appealed that order. The only order before us is that which denied the grant of an arrest of judgment and the standard of review for the grant of a motion in arrest of judgment is plenary as it presents a pure question of law, i.e., the legal sufficiency of the evidence. See Commonwealth v. Rawles, 501 Pa. 514, 462 A.2d 619 (1983); Commonwealth v. Parker 305 Pa.Super. 516, 524 n. 2, 451 A.2d 767, 771, n. 2 (1982).
[3] Although this Court reversed the Superior Court's decision in Commonwealth v. Wilcox by per curiam order, this Court cited Commonwealth v. Lurie, 524 Pa. 56, 569 A.2d 329 (1990) in support thereof. Lurie does not at all speak to the issue of the proper remedy for an erroneous jury instruction; rather it dealt with inter alia the sufficiency of the evidence to sustain a conviction under 62 P.S. § 1407(a)(7) of the Medicaid Fraud and Abuse Control act. Therefore, given the cite to Lurie, it is apparent that this Court's reversal of the Superior court was based upon grounds other than the Superior Court's conclusion with regards to the remedy for an improper jury charge.
[1] The majority asserts that "the insufficiency of the evidence . . . does not appear to be an issue in dispute among the parties." Op. at 351. However, the Commonwealth does not concede that the evidence was insufficient to support appellant's conviction. Furthermore, neither the trial court nor the Superior Court held that the evidence was insufficient, but merely that it was unclear whether the jury would have found that the evidence that was presented at trial sufficiently related appellant's BAC back to the time of driving had they been instructed that such a finding was necessary.
[2] Furthermore, I would note that I dissented in Loeper based upon my belief that the statute expressly permits the use of circumstantial evidence through 75 Pa.C.S. § 1547(f), which provides:
Other evidence admissible. Subsections (a) through (i) [relating to chemical testing to determine BAC] shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether or not the defendant was driving under the influence of alcohol.
Apparently, the legislature needs to amend this language to clarify even further that circumstantial evidence may be used in addition to chemical test results to establish BAC at the time of driving in view of the majority's ruling in Loeper that circumstantial evidence is not admissible. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266257/ | 452 Pa. Superior Ct. 315 (1996)
681 A.2d 1357
COMMONWEALTH of Pennsylvania
v.
Brian DRAKE, Appellant.
Superior Court of Pennsylvania.
Submitted June 20, 1996.
Filed July 30, 1996.
*317 James A. Zurick, Shamokin, for appellant.
Robert B. Sacavage, District Attorney, Mt. Carmel, for Commonwealth, appellee.
Before KELLY, EAKIN and OLSZEWSKI, JJ.
OLSZEWSKI, Judge:
Appellant, Brian Drake, appeals from the judgment of sentence entered in the Court of Common Pleas of Northumberland County on November 14, 1995. We affirm.
The trial court adequately set forth the facts of this case as follows:
[O]n October 18, 1994, State Trooper McGinley [and] Trooper Foulds[] were on routine patrol[] when they observed *318 [appellant] traveling in the opposite direction in a motor vehicle lacking an inspection sticker. The Troopers made a U-turn, by which time [appellant] had pulled into a private driveway. [Appellant] was unable to produce his driver's license [upon request and his] speech was confused. Additionally, [he] either continuously paced in a nervous manner or leaned on his vehicle. [Appellant] did not stand still during the Trooper's questions concerning the missing inspection sticker. Trooper McGinley then observed [appellant's] glassy eyes and [noticed a] strong odor of alcohol. Trooper McGinley asked [appellant] to recite the alphabet, which [he] was unable to accomplish. [Appellant] was then asked to touch each finger in succession with his thumb as he counted to four. [Appellant] failed to successfully accomplish this task.
The Trooper then administered the standardized field sobriety tests. [Appellant] failed both the nine step walk and turn as well as the one leg stand. At this time [appellant] was arrested for DUI. An empty cooler was discovered in the back seat of the vehicle as well as an open can of beer on the floor in front of the passenger [seat]. While in the back seat of the Trooper's vehicle, [appellant] was Mirandized and read the Implied Consent Warning. [Appellant] initially replied that he would take a breath test. The Trooper than [sic] proceeded to ask the questions supplied on a Standardized Intoxication Report. Included on the form is the question whether the driver was now under the influence of alcohol. [Appellant] replied in the affirmative. Later, at the Selinsgrove Barracks, [appellant] refused the breath test.
Trial court opinion, 2/29/96 at 1-2 (footnote omitted). Appellant's refusal to submit to a chemical alcohol test on the date of his arrest resulted in suspension of his driver's license for a period of one year.[1] Following trial, appellant was found guilty on September 22, 1995, of driving under the influence of alcohol,[2] restriction on alcoholic beverages,[3] and failure to *319 carry a driver's license.[4] He was thereafter sentenced to partial confinement for a period of 40 days to 23 months. Additionally, appellant was ordered to complete an alcohol safety program and to pay various costs and fines.[5] This timely appeal, setting forth five issues for our review, followed.
At trial, appellant took the stand on his own behalf and recounted his activities on the day of his arrest. On cross-examination, Assistant District Attorney William Cole asked appellant "did you pull into that [private] driveway because at that time you were drinking and you wanted to avoid a confrontation with the police?" N.T., 9/22/95 at 109. In response, appellant testified that he had stopped only to see if a truck was for sale and that, earlier in the day, he had similarly gone to the residence of an individual named Joseph Remash to inspect and possibly purchase a truck which was for sale. Id. at 94, 95, 109. In his first allegation of trial court error, appellant claims that the trial court improperly precluded him from presenting the testimony of Mr. Remash to corroborate his explanation for stopping in the driveway immediately before his arrest. Further, appellant claims that Mr. Remash could have testified that he was not intoxicated at the time of his visit to Mr. Remash's home.
Our review of the record establishes that the proffered testimony was merely partially corroborative of appellant's statements since Mr. Remash could only verify that appellant had come to inspect his truck during the month of October but could not recall the exact date. See id. at 51-53. Further, such testimony would have been, at most, cumulative of appellant's own representations at trial. Assuming, arguendo, that the trial court abused its discretion in not admitting the testimony of Mr. Remash, any prejudice that appellant may have suffered would, therefore, have been de minimus in light of the overwhelming evidence presented against him. Accordingly, *320 we find that such an error would have been harmless. See Commonwealth v. Foy, 531 Pa. 322, 326-28, 612 A.2d 1349, 1352 (1992). Appellant's first claim is, therefore, meritless.
Next, appellant claims that the trial court erred in allowing the introduction at trial of two sobriety tests. Specifically, appellant claims that the tests requiring him to recite the alphabet and count his fingers are inadmissible since the measure of his performance on such is not determinable based upon objective criteria but, instead, is within the discretion of the observing police officer.
Recently, in Commonwealth v. Ragan, 438 Pa.Super. 505, 652 A.2d 925 (1995), we reviewed the admissibility of the results of the "finger to nose" sobriety test as well as the "one leg stand" and "walking in a straight line" tests. In finding the results of all three tests to be admissible we stated that:
The three sobriety tests, which we here review, are grounded in theories which link an individual's lack of coordination and loss of concentration, with intoxication. This interrelationship is also recognized in what is generally accepted as the common indicia of intoxication, within the understanding and experience of ordinary people. See Commonwealth v. Bowser, 425 Pa.Super. 24, 624 A.2d 125 (1993), appeal denied, 537 Pa. 638, 644 A.2d 161 (1994), cert. denied, Bowser v. Pennsylvania, ___ U.S. ___, 115 S.Ct. 186, 130 L.Ed.2d 120 (1994). In fact, non-expert testimony is admissible to prove intoxication where such testimony is based upon the witness' observation of the defendant's acts and speech and where the witness can opine as to whether the defendant was drunk. Id.
Ragan, 438 Pa.Super. at 511-12, 652 A.2d at 928 (emphasis added). We find that the challenged tests requiring appellant to count his fingers back and forth with his thumb as well as recite the alphabet are admissible under this standard. Both tests allow an ordinary observer to form an opinion as to whether an individual is intoxicated based upon that individual's coordination and concentration as demonstrated by his or her acts and speech. Moreover, our Supreme Court has *321 explicitly allowed the admission into evidence of the results of a field test designed to determine whether a suspect is intoxicated by testing his or her ability to recite the alphabet. Commonwealth v. Peth, 522 Pa. 136, 560 A.2d 139 (1989). Accordingly, appellant's second contention is clearly meritless.
Third, appellant claims that the trial judge erred in instructing the jury as follows:
Now, the Commonwealth argues that the testimony tended to show that the Defendant refused to give a sample of his breath indicates that he was conscious that he was guilty of Driving Under the Influence.
N.T., 9/22/95 at 128-9. Appellant argues that, contrary to this instruction, the Commonwealth did not argue, at trial, that appellant's failure to take the breath test was indicative of a guilty conscience.
Initially, we note that the trial judge followed the challenged comments with the following statement:
The defense counsel argues that this evidence means no such thing. If you believe that the Defendant was asked for and refused to give samples of his breath for testing, you may consider that fact along with all the other relevant evidence when you are deciding whether the Defendant was under the influence of alcohol. Again, as I said, give the Defendant's refusal whatever weight and meaning you think it deserves.
Id. at 129. Appellant's refusal to submit to chemical testing may properly be introduced into evidence. 75 Pa.C.S.A. § 1547(e); Commonwealth v. McConnell, 404 Pa.Super. 439, 591 A.2d 288, alloc. denied, 529 Pa. 632, 600 A.2d 952 (1991). Consistent with this principle, the Commonwealth elicited extensive testimony from Trooper McGinley regarding appellant's initial agreement to take a breath test and later refusal to do so. See N.T., 9/22/95 at 39, 49, 56-59. Clearly, this line of questioning gave rise to the implication that appellant had changed his mind regarding the breath test as a result of his consciousness of his guilt. Pursuant thereto, the trial judge instructed the jury as follows:
*322 Now, in any criminal proceeding in which the Defendant is charged with Driving Under the Influence, the fact that the Defendant refused to submit to chemical testing as required may be introduced into evidence along with other testimony concerning the circumstances of the refusal. No presumptions shall arise from this evidence. But it may be considered along with other factors concerning the charge. Consider all the relevant evidence when you are deciding whether the Commonwealth has proven beyond a reasonable doubt that the Defendant was under the influence of alcohol to a degree that made him incapable of safe driving.
Id. at 128. The judge's instructions on the issue of the breath test, viewed as a whole, adequately, accurately, and clearly presented the law to the jury and were sufficient to guide the jury in its deliberations. Accordingly, the challenged instruction was not inappropriate and we find no error on the part of the trial court as alleged. See Commonwealth v. Rosario-Hernandez, 446 Pa.Super. 24, 666 A.2d 292 (1995).
Appellant next claims that the trial court erred in precluding him from introducing into evidence a student manual relating to standardized field sobriety testing published by the Commonwealth of Pennsylvania Department of Education. Appellant sought admission of this manual in order to impeach the testimony of Trooper McGinley by establishing that he had improperly administered both the "one leg stand" and the "walk and turn" sobriety tests. Appellant fails, however, to set forth the manner in which he believes that the Trooper erred in administering the questioned sobriety tests and also how the manual would have been relevant in establishing such. Instead, appellant makes the bald allegation that it was error for the trial court to fail to admit the manual into evidence. We decline to become appellant's counsel and will not, therefore, consider issues, such as these, which are not fully developed in his brief. See Commonwealth v. Sanford, 299 Pa.Super. 64, 67, 445 A.2d 149, 150 (1982).
Finally, appellant contends that his September 22, 1995, convictions violate the United States Constitution and *323 the Pennsylvania Constitution. Specifically, appellant claims that the suspension of his driver's operating privileges constituted punishment and that it was violative of double jeopardy principles to charge him further and impose additional penalties. We disagree.
Appellant claims double jeopardy protection against multiple prosecution and punishment for the same crime. See Commonwealth v. Micklos, 448 Pa.Super. 560, 672 A.2d 796 (1996). Obviously, in addressing appellant's claim, we must, at the outset, determine whether the license suspension and subsequent criminal prosecution relate to the same offense. Since we find that they do not, appellant's convictions are not precluded as he alleges.[6]Id.
In considering whether crimes are the same under the double jeopardy clause, this Commonwealth has long followed the "same-elements" test set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Commonwealth v. Caufman, 541 Pa. 299, 303, 662 A.2d 1050, 1052 (1995) (quotations omitted). This test "requires a comparison of the elements of the offenses to determine whether each offense requires proof of a fact which the other does not." Id. See also Commonwealth v. Jones, 542 Pa. 464, 668 A.2d 491 (1995); Commonwealth v. Allen, 506 Pa. 500, 486 A.2d 363 (1984). Further, "mere overlap on proof between two prosecutions does not establish a double jeopardy violation." Id. In applying this precedent to the instant case, it is evident that the challenged charges of driving under the influence of *324 alcohol, restriction on alcohol beverages, and failure to carry a driver's license are not barred, on grounds of double jeopardy, by the previous suspension of appellant's driving privileges.
The suspension of driving privileges may result from various violations of the Motor Vehicle Code. See, e.g., 75 Pa. C.S.A. §§ 1532, 1547. Presently, appellant's license was suspended pursuant to 75 Pa.C.S.A. § 1547(b) under which a motor vehicle operator's license may be suspended upon a showing by the Department of Transportation that: (1) the defendant was placed under arrest, (2) he was charged with the operation of a motor vehicle while under the influence of intoxicating liquor, (3) he was requested to submit to a breathalyzer test, and (4) he refused to comply with the test. Patterson v. Com. Dept. of Trans., 136 Pa.Commw. 49, 582 A.2d 700 (1990); Grabish v. Commonwealth, 50 Pa.Commw. 246, 247-49, 413 A.2d 431, 432 (1980). Suspension under this section requires proof of elements not required to be proven to establish a violation for those offenses for which appellant was convicted on September 22, 1995. For example, section 1547(b) requires a showing that appellant was requested to submit to chemical testing and, also, that he refused to do so. Further, the crimes appellant alleges are precluded on the basis of double jeopardy all require proof of facts which section 1547(b) does not. A conviction for driving under the influence of alcohol requires proof that appellant drove, operated, or physically controlled the movement of a vehicle while actually under the influence of alcohol. 75 Pa.C.S.A. § 3731. In order to establish a violation of restriction on alcoholic beverages, proof is required of the fact that an individual consumed alcohol in a vehicle while it was in operation. 75 Pa.C.S.A. § 3715(a). Finally, appellant's conviction for failure to carry a driver's license necessitates a showing that the defendant failed to possess a driver's license when driving his vehicle. 75 Pa.C.S.A. § 1511(a). Clearly, therefore, appellant's double jeopardy challenge is meritless. Caufman, supra.
Judgment of sentence affirmed.
NOTES
[1] 75 Pa.C.S.A. § 1547(b).
[2] 75 Pa.C.S.A. § 3731(a)(1).
[3] 75 Pa.C.S.A. § 3715(a).
[4] 75 Pa.C.S.A. § 1511(a).
[5] The trial court order also directs the Department of Transportation not to restore, once suspended, appellant's motor vehicle operating privileges until he has satisfied all of the financial obligations imposed.
[6] In so finding, we are relieved of the necessity to address the issue of whether the suspension of appellant's license constitutes criminal punishment subject to double jeopardy principles. While we note that the suspension of driving privileges pursuant to 75 Pa.C.S.A. § 1547(b) is a civil penalty (Commonwealth v. Wolf, 534 Pa. 283, 632 A.2d 864 (1993); Patterson v. Com. Dept. of Trans., 136 Pa.Commw. 49, 582 A.2d 700 (1990)), we recognize that the question of whether such a civil sanction is tantamount to criminal punishment for purposes of a double jeopardy is a separate issue. See generally United States v. Ursery, ___ U.S. ___, 116 S.Ct. 2135, 135 L.Ed.2d 549 (U.S.1996); Krall v. Pennsylvania, 903 F.Supp. 858 (E.D.Pa.1995) ("While [appellant] may detect the `sting of punishment' in the suspension of his license, the suspension does not constitute punishment for the purposes of analysis under the Double Jeopardy Clause."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266266/ | 239 P.3d 251 (2010)
237 Or. App. 106
Robyn M. BELINSKEY, Plaintiff-Appellant,
v.
Julia R. CLOOTEN, Defendant-Respondent.
080507057; A140228.
Court of Appeals of Oregon.
Argued and Submitted December 08, 2009.
Decided September 1, 2010.
*252 Willard E. Merkel, Portland, argued the cause for appellant. With him on the briefs was Merkel & Associates.
Wendy M. Margolis, Portland, argued the cause for respondent. With her on the brief were Julie A. Smith and Cosgrave Vergeer Kester LLP.
Before LANDAU, Presiding Judge, and SCHUMAN, Judge, and SERCOMBE, Judge.
SCHUMAN, J.
This case requires us to construe ORS 12.220, commonly referred to as a "saving statute," which provides that, if an action is first filed within the statute of limitations and then "involuntarily dismissed without prejudice on any ground not adjudicating the merits of the action," a new action may be filed within 180 days "after the judgment dismissing the original action is entered in the register of the court," notwithstanding that the statute of limitations has run during the interim.[1] Here, the trial court dismissed plaintiff's personal injury action as a sanction because plaintiff failed to attend an appointment with an independent medical examiner. The dismissal was involuntary, without prejudice, and it did not address the merits of the personal injury claim. That dismissal was "entered in the register" of the circuit court. Plaintiff appealed. We affirmed, Belinskey v. Clooten, 214 Or.App. 172, 164 P.3d 1163 (2007), rev. den. 344 Or. 194, 179 P.3d 672 (2008). The Supreme Court then sent the appellate judgment back to the trial court, where it was also "entered in the register" pursuant to ORS 19.450(3). Within 180 days after the appellate judgment from the Supreme Court was "entered in the register" of the circuit court, but long after 180 days had elapsed since the original trial court judgment of dismissal had been entered in the circuit court register, plaintiff refiled her *253 claim. By that time, of course, the statute of limitations had run, and defendant moved for summary judgment on that ground. The trial court granted defendant's motion, rejecting plaintiff's argument that, because she refiled within 180 days of the entry of the appellate judgment, her action was "saved" by ORS 12.220. This appeal ensued. The question presented is what "the judgment dismissing the original action" means in ORS 12.220(2). Defendant contends that, as the trial court ruled, the term refers to the first judgmentthe trial court's original judgment dismissing the action before appeal. Plaintiff contends that the term also includes the judgment entered in the trial court register after the appellate mandate issues. We agree with defendant and therefore affirm.
We acknowledge that plaintiff's arguments have considerable force. Focusing first on the text and context of ORS 12.220, she notes that an appellate judgment, like a trial court judgment, is entered in the trial court register as a "judgment," not an "appellate judgment." ORS 19.450(3). She also points out that "dismiss" commonly means "to put (a legal action or a party) out of judicial consideration: refuse to hear or hear further in court." Webster's Third New Int'l Dictionary 652 (unabridged ed. 2002). Thus, she concludes, an action is not "dismissed" until it has run its course; when a party files an appeal, the appellate court acquires jurisdiction, ORS 19.270(1), the trial court loses jurisdiction for most purposes, ORS 19.270(6), and the case is not "put out of judicial consideration" until the appellate judgment issues and is entered in the trial court register as a dismissal. Further, a "judgment" is the "concluding decision of a court on one or more requests for relief in one or more actions, as reflected in a judgment document." ORS 18.005(9). Because a trial court judgment of dismissal does not "conclude" an action that is appealed, the judgment referred to in ORS 12.220 must include the final judgment in such a case.
Turning to the legislative history, plaintiff cites the oral and written testimony presented to the Senate Judiciary Committee on behalf of the Oregon Law Commission "Saving Statute" Work Group, which drafted the statute. Minutes, Senate Committee on the Judiciary, H.B. 2284, Tapes 126A & 127A (Public Hearing, May 12, 2003); Exhibit D (Oregon Law Commission Saving Statute Work Group Report); Exhibit E (written testimony of Prof. Maury Holland). That testimony, she argues, demonstrates that one of the purposes underlying the statute was to avoid deciding cases on procedural grounds instead of the merits.
In the final analysis, however, plaintiff's arguments are not well taken. The statute provides that a plaintiff may refile an action when it is "involuntarily dismissed without prejudice." That language logically refers to a proceeding at the trial court level. Trial court judges "dismiss without prejudice" and, although appellate courts on rare occasions "dismiss" an appeal, ORS 19.410, they more typically "affirm, reverse or modify" trial court decisions, ORS 19.420(1). Additionally, the term "dismiss" as a legal term of art means "[t]o send (something) away; specif., to terminate (an action or claim) without further hearing, esp. before the trial of the issues involved." Black's Law Dictionary 502 (8th ed. 2004) (emphasis added). Again, because a dismissal usually occurs "before the trial," not after a trial and appeal, ORS 12.220 likely refers exclusively to the trial court's pretrial judgment of dismissal.
That likelihood is bolstered by consideration of the 2003 statute's context, which includes wording changes between that version and its predecessor. See Krieger v. Just, 319 Or. 328, 336, 876 P.2d 754 (1994) (wording changes are a part of the context of the present version of the statute being construed). The 2003 statute replaced a version that provided:
"[I]f an action is commenced within the time prescribed therefor and the action is dismissed upon the trial thereof, or upon appeal, after the time limited for bringing a new action, the plaintiff, or if the plaintiff dies and any cause of action in the favor of the plaintiff survives, the heirs or personal representatives of the plaintiff, may commence a new action upon such cause of action within one year after the dismissal or reversal on appeal; however, all defenses that would have been available against *254 the action, if brought within the time limited for the bringing of the action, shall be available against the new action when brought under this section."
Former ORS 12.220 (2001) (emphasis added). We find it significant that the older statute expressly provided that a plaintiff could refile a claim after both an appeal and a dismissal by the trial court. The change is significant because new language in a statute ordinarily signals a change in the statute's meaning. State v. Click, 305 Or. 611, 616 n. 5, 755 P.2d 693 (1988). Here, we have no reason to conclude otherwise. We regard the absence of the appeal language as strong support for the trial court's interpretation of the statute.
The statute's legislative (and prelegislative) history also support affirmance. The current version resulted from amendments added in 2003 at the instigation of the Oregon Law Commission. According to the commission's work group dealing with the statute, the 2003 amendments were intended to remedy two defects. First, the existing statute did not expressly state that it applied only when the original action was dismissed on a procedural, as opposed to a substantive, ground, although that was how the courts were interpreting it. Second, the statute could not be applied where the original action was dismissed due to insufficient alias service, which was the most common procedural defect. See Minutes, Oregon Law Commission, Nov. 22, 2002. Professor Maury Holland, chair of the work group, explained that "the bill draft is a modest change but one that would reduce the number of appeals." Minutes, Oregon Law Commission, Oct. 11, 2002 (comment of Prof. Maury Holland). Commission member Hans Linde offered his thanks to the work group, noting that "their work will reduce appeals, which is a great service." Minutes, Oregon Law Commission, Nov. 22, 2002 (comments of Prof. Hans Linde).
The only testimony heard during the legislative process itself was from Professor Holland, who presented the report that the commission had developed on the amendments and explained why they would reduce the number of appeals. His report explained:
"In addition [to] affording greater assurance that cases are decided on their merits, rather than being dismissed because of technical defaults even when those can be curedin other words, assuring that people claiming to have been injured get their day in courtamended 12.220 should result in at least one other significant benefit to the Oregon court system.
"Several years [ago] I began to notice, in reading the judicial advance sheets, how many cases came up on appeal where the single issue concerned sufficiency of service. For the following reason, amended 12.220 can be expected to reduce, though not totally eliminate, such appeals, with the delay and expense to litigants, and the consumption of judicial resources, they entail. The reason is that * * * when a trial court dismisses an action for insufficient service, rather than appeal, which is now plaintiff's only option, plaintiffs' lawyers will seek to make sufficient alias service, which will often, though not always, be practicable. The result would be to reduce the burden of these single-issue appeals on the appellate courts, especially the already overburdened court of appeals."
Testimony, House Judiciary Committee, H.B. 2284, Feb. 11, 2003, Ex. 1 (statement of Prof. Maury Holland). Plaintiff argues that this language suggests that the legislature's intent was to limit only appeals from dismissals based on faulty service. We find that argument unpersuasive. Although Professor Holland may have discussed limiting appeals only with respect to service of process errors, the language of the statute does not distinguish between those errors and others, except for limiting the number of days a plaintiff has to refile. Adopting plaintiff's interpretation in order to accommodate errors unrelated to service of process would negate the statute's obvious legislative purpose. Put another way, plaintiff argues that defendant's interpretation forces her to make the risky choice between an appeal and refiling. That, we conclude, is exactly what the statute was intended to do.
Thus, in order to be "saved" by ORS 12.220 from the operation of the statute of *255 limitations, plaintiff needed to have refiled her claim within 180 days of when the trial court entered its original, pre-appeal judgment. Because plaintiff failed to do so, the trial court did not err in granting defendant's motion for summary judgment.
Affirmed.
NOTES
[1] ORS 12.220 provides, in part:
"(1) Notwithstanding ORS 12.020, if an action is filed with a court within the time allowed by statute, and the action is involuntarily dismissed without prejudice on any ground not adjudicating the merits of the action, or is involuntarily dismissed with prejudice on the ground that the plaintiff failed to properly effect service of summons within the time allowed by ORS 12.020 and the statute of limitations for the action expired, the plaintiff may commence a new action based on the same claim or claims against a defendant in the original action if the defendant had actual notice of the filing of the original action not later than 60 days after the action was filed.
"(2) If, pursuant to subsection (1) of this section, a new action is commenced in the manner provided by ORS 12.020 not later than 180 days after the judgment dismissing the original action is entered in the register of the court, the new action is not subject to dismissal by reason of not having been commenced within the time allowed by statute." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266285/ | 681 A.2d 1039 (1996)
Edward O. GOODRICH, on behalf of himself and all others similarly situated, Plaintiff Below, Appellant,
v.
E.F. HUTTON GROUP, INC., and E.F. Hutton Group & Company, Inc., Defendants Below, Appellees.
No. 360, 1995.
Supreme Court of Delaware.
Submitted: June 16, 1996.
Decided: August 26, 1996.
Pamela S. Tikellis of Chimicles, Jacobsen & Tikellis, Wilmington, and C. Oliver Burt, III (argued), of Burt & Pucillo, West Palm Beach, FL, for appellant.
Allen M. Terrell of Richards, Layton & Finger, Wilmington, for appellees.
Lawrence A. Hamermesh (argued), of Widener University School of Law, Wilmington, as amicus curiae.
Before WALSH, HOLLAND, BERGER, JJ., DUFFY and HORSEY, retired Justices[1] (constituting the Court en Banc).
*1041 HOLLAND, Justice:
The plaintiff-appellant, Edward O. Goodrich ("Goodrich"), was certified as the class representative in an action against the defendants-appellees, E.F. Hutton Group, Inc. and E.F. Hutton Group & Company, Inc. (collectively "E.F. Hutton"). The Court of Chancery approved a proposed settlement of this class action as "fair, reasonable, and adequate for the settlement of all claims asserted herein." It also awarded attorney's fees in an amount "equal to one-third of the gross amount paid out to claimants not to exceed $515,000, plus interest on the amount paid as a fee...." Goodrich appeals from the Court of Chancery's attorney's fee award.
In this appeal, Goodrich's sole contention is that $515,000 in attorney's fees should have been awarded unconditionally and paid immediately. Goodrich argues that the Court of Chancery either committed legal error, or abused its discretion, in awarding and disbursing attorney's fees as a percentage of the gross amount paid out to class members. Hutton advised this Court that it would take no position in this appeal with regard to Goodrich's request for an award of *1042 attorney's fees, having agreed not to take a position on that issue in the Court of Chancery.
Thus, this is one of those relatively rare cases, in which it was necessary to appoint an attorney "to uphold the side of a question that no party before the Court is willing to advocate." Maurer v. International Re-Insurance Corp., Del.Supr., 95 A.2d 827, 831 (1953). Such an advocate is properly paid from the fund at issue. Id. This Court appointed Lawrence A. Hamermesh, Esquire, as an "amicus curiae for the purpose of briefing and presenting argument in support of the decision of the Court of Chancery." The Court is grateful for the valuable service he rendered in this appeal.
This Court has concluded that the Court of Chancery properly applied established equitable precepts. The attorney's fee awarded to Goodrich's attorneys is supported by the record and the product of a logical deductive process. The judgment of the Court of Chancery is affirmed.
History of Litigation
Goodrich commenced this action on November 27, 1985 on behalf of a class of customers of E.F. Hutton who had received funds from E.F. Hutton. The funds were received during the period since July 1, 1980. The funds were paid by means of checks drawn on accounts maintained in banks located more than 500 miles from the E.F. Hutton office in which the customer transacted business. The complaint charged E.F. Hutton with a wrongful scheme to delay or withhold funds from its customers in order to gain the interest-free use of the money during the period of delayed payment. This conduct was alleged to have violated common law doctrines of fraud and agency; the Delaware Consumer Fraud Act; and to have constituted conversion, breach of contract, and a breach of fiduciary duty to the customers.
The Court of Chancery granted E.F. Hutton's motion to dismiss the complaint as to all claims except the alleged breach of fiduciary duty. Goodrich v. E.F. Hutton Group, Inc., Del.Ch., 542 A.2d 1200 (1988). By order dated April 16, 1993, the Court of Chancery certified the following two subclasses:
All E.F. Hutton & Company, Inc. ("Hutton") customers, both persons and institutions, who received funds from Hutton during the period from July 1, 1980 through November 26, 1982, by means of checks drawn on a Hutton account maintained at the Bank of America, who lived outside of California and dealt with a Hutton office outside of California at the time they received such checks.
All E.F. Hutton & Company, Inc. ("Hutton") customers, both persons and institutions, who received funds from Hutton during the period from November 27, 1982, through July 19, 1987, by means of checks drawn on a Hutton account maintained at the Bank of America, who lived outside of California and dealt with a Hutton office outside of California at the time they received such checks.
Settlement Agreement
On May 11, 1995, the parties submitted a Stipulation of Settlement (the "Settlement") to the Court of Chancery. Under the terms of the Settlement, E.F. Hutton agreed to pay $3.3 million into an interest-bearing escrow account. It was agreed that the escrow account would be "maintained jointly" by counsel for both the class and the defendants as "Escrow Agents."
According to the Settlement, the escrow account would be drawn upon to pay attorney's fees for the class, the costs of notice to the class, and the costs of settlement administration not to exceed $600,000, up to a combined limit of $1.1 million. With respect to the balance of the funds in the escrow account (at least $2.2 million), the Settlement provided for payment to class members, in amounts dependent upon (i) the face value of checks received from E.F. Hutton, (ii) the subclass of which the claimant was a member, and (iii) the prevailing interest rate during the year in which the check(s) were drawn. If claims by class members exceeded the funds available in the escrow account, each claimant would receive payment of a fraction of those funds equal to the ratio of the value of his claim to the total value of the claims submitted.
*1043 Pursuant to the Settlement, "No Class Member shall be entitled to participate in the distribution of the proceeds of the Settlement unless such person files an executed Proof of Claim." The Settlement adopted proof of claim requirements. In order to receive funds under the Settlement, class members were required to:
(1) Disclose their residence(s) from July 1, 1980 through July 19, 1987 (the "class period");
(2) List the checks they received from E.F. Hutton during the class period, by year, excluding checks received while a California resident and checks received, other than those drawn on the Bank of America, as a New York resident;
(3) Attach to the Proof of Claim form "documentary evidence such as confirmations, statements or any other documents showing that E.F. Hutton issued checks to the Claimant and that such checks were drawn on the Bank of America."
To the extent class members did not claim funds available in the escrow account, the Settlement established that such remaining funds were to be "returned to Defendant Hutton or its designee."
Notice to Class
The class to which notice of the proposed Settlement was mailed consisted of approximately 581,000 persons. The notice generated many written responses. Those responses were submitted to the Court of Chancery by counsel for the class in a document entitled "E.F. Hutton Customer Compendium."
In describing these responses to the Court of Chancery, Goodrich's attorney noted many class members "complained that they lacked documentation, such as copies of their Hutton account records, necessary to submit properly documented claims forms." For example, one respondent wrote: "Because verification of receipt of E.F. Hutton checks drawn on Bank of America accounts is required for payment, smaller customers of E.F. Hutton are almost automatically excluded. Few individual investors would keep such records going back to 1982."
Attorney Fee Award
The Court of Chancery approved the proposed settlement of this class action as "fair, reasonable, and adequate for the settlement of all claims asserted herein." See Ch.Ct.R. 23(e). Thereafter, the ratio decidendi for the Court of Chancery's award of attorney's fees to Goodrich's counsel was as follows:
[W]here because of the nature of the claim and the settlement there is good ground to suppose that there may well be a substantial non-claim problem, the most sensible way to compensate class lawyers, consistent with the underlying rationale for such awards, is on a contingency basis: that is to do as I did in this instance, to award a fair fee and make its payment coincide with distributions to class members.
The Court of Chancery concluded that a fee of $515,000, or about 16% of the $3.3 million paid into escrow, would be fair and reasonable if the entire $3.3 million settlement fund were distributed to class members (net of fees and expenses). Id.; Ch.Ct.R. 88. Conversely, the Court of Chancery determined that $515,000 would not be a fair and reasonable counsel fee award irrespective of the extent to which class members obtained cash payments pursuant to the Settlement.
The Court of Chancery decided to award to Goodrich's attorneys a fee of 331/3% of the total amount actually paid out to class members, up to a limit of $515,000. It noted at the settlement hearing, "if anything like the entire amount gets disbursed, long before that happens, the attorneys will get the $515,000 that they seek." Specifically, if class members submitted claims amounting to only $1,545,000 of the $2.2 million potentially distributable, counsel for the class would receive $515,000 in fees.
American Rule Attorney Fee Awards
The standards for awarding attorney's fees in litigation by the Court of Chancery are well established. Tandycrafts, Inc. v. Initio Partners, Del.Supr., 562 A.2d 1162, 1164 (1989). The starting principle is a recognition of the so-called "American Rule." Walsh v. Hotel Corp. of America, Del.Supr., 231 A.2d 458, 462 (1967); Maurer v. International *1044 Re-Insurance Corp., Del.Supr., 95 A.2d 827, 830 (1953). Pursuant to the American Rule,[2] prevailing litigants are responsible for the payment of their own attorney's fees. Walsh v. Hotel Corp. of America, 231 A.2d at 462; Maurer v. International Re-Insurance Corp., 95 A.2d at 830. See Alyeska Pipeline Serv. Co. v. The Wilderness Society, 421 U.S. 240, 245, 95 S.Ct. 1612, 1615-16, 44 L.Ed.2d 141 (1975).[3] The American Rule has two general categories of exceptions: fee-shifting statutes[4] and equitable doctrines. Tandycrafts, Inc. v. Initio Partners, 562 A.2d at 1164; Walsh v. Hotel Corp. of America, 231 A.2d at 462; Maurer v. International Re-Insurance Corp., 95 A.2d at 830 (enumerating equitable exceptions).
Common Fund Fees American Rule Exception
In this case, Goodrich invoked the most venerable equitable exception to the American Rule: the "common fund" doctrine (sometimes called the "equitable fund" doctrine or the "fund-in-court" doctrine). The common fund doctrine was first articulated by the United States Supreme Court in Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1881). It was extended to class actions four years later in Central Railroad & Banking Co. v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915 (1885). The common fund doctrine is a well-established basis for awarding attorney's fees in the Court of Chancery. See, e.g., Tandycrafts, Inc. v. Initio Partners, 562 A.2d at 1166; Maurer v. International Re-Insurance Corp., 95 A.2d at 830.
The common fund doctrine is founded on the equitable principle that those who have profited from litigation should share its costs. Boeing Co. v. Van Gemert, 444 U.S. 472, 478, 100 S.Ct. 745, 749, 62 L.Ed.2d 676 (1980); Maurer v. International Re-Insurance Corp., 95 A.2d at 830. Otherwise, "persons who obtain the benefit of a lawsuit without contributing to its cost [freeriders] are unjustly enriched at the successful litigant's expense." Boeing Co. v. Van Gemert, 444 U.S. at 478, 100 S.Ct. at 749; Tandycrafts, Inc. v. Initio Partners, 562 A.2d at 1166. Jurisdiction over the fund enables a court to prevent such inequity by assessing fees out of the entire fund, spreading the burden proportionately among those benefitted. Boeing Co. v. Van Gemert, 444 U.S. at 478, 100 S.Ct. at 749. See also Sprague v. Ticonic National Bank, 307 U.S. 161, 166-67, 59 S.Ct. 777, 779-80, 83 L.Ed. 1184 (1939); Central Railroad & Banking Co. v. Pettus, 113 U.S. at 126-27, 5 S.Ct. at 392-93; Maurer v. International Re-Insurance Corp., 95 A.2d at 833. Accordingly, the doctrine provides that "a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney's fee from the fund as a whole." Boeing Co. v. Van Gemert, 444 U.S. at 478, 100 S.Ct. at 749. See also CM & M Group, Inc. v. Carroll, Del.Supr., 453 A.2d 788, 795 (1982); Maurer v. International Re-Insurance Corp., 95 A.2d at 830.
Class action suits which result in the recovery of money exemplify the classic creation of a common fund.[5]See CM & M *1045 Group, Inc. v. Carroll, 453 A.2d at 795. The record supports the Court of Chancery's determination that the settlement of this case resulted in the creation of a common fund for the benefit of the class. Accordingly, Goodrich's attorneys, whose efforts resulted in the creation of that common fund, are entitled to receive a reasonable fee and reimbursement for expenses from that fund. Weinberger v. UOP, Inc., Del.Ch., 517 A.2d 653, 654-55 (1986); Chrysler Corp. v. Dann, Del.Supr., 223 A.2d 384, 386 (1966).
Fee Application Common Fund Doctrine
In a class action, the attorney for the plaintiff initially seeks judicial approval of any proposed settlement. Ch.Ct.R. 23(e). Skelton v. General Motors Corp., 860 F.2d 250, 253 (7th Cir.1988). Since a class action is fiduciary by nature, before a settlement is approved the Court of Chancery must make an independent determination, through the exercise of its own business judgment, that the settlement is intrinsically fair and reasonable. Nottingham Partners v. Dana, Del. Supr., 564 A.2d 1089, 1103 (1989). The Court of Chancery's role has been characterized as the "third-party" to the settlement. Id. An essential component of that approval process is "a judicial determination that the adequate representation requirement of Rule 23(a)(4) has been satisfied." Prezant v. DeAngelis, Del.Supr., 636 A.2d 915, 924 (1994). See also Matsushita Electric Industrial Co., Ltd. v. Epstein, ___ U.S. ___, 116 S.Ct. 873, 134 L.Ed.2d 6 (1996).
If the settlement of a class action is approved and has provided for a monetary recovery, the common fund doctrine permits an attorney to independently request an award of fees from that same settlement fund. See Maurer v. International Re-Insurance Corp., 95 A.2d at 831; Central Railroad & Banking Co. v. Pettus, 113 U.S. at 124-25, 5 S.Ct. at 391-92. At that point, "the plaintiffs' attorney's role changes from one of fiduciary for the clients to that of a claimant against the fund created for the clients' benefit." Rawlings v. Prudential-Bache Properties, Inc., 9 F.3d 513, 516 (6th Cir.1993) (quoting Report of the Third Circuit Task Force, Court Awarded Attorney Fees, 108 F.R.D. 237, 255 (1985)).
This divergence of interests requires a court to continue its "third-party" role in reviewing common fund fee applications. "[T]here is often no one to argue for the interests of the class," because class members with small claims often do not file objections to proposed settlements and fee applications. Rawlings v. Prudential-Bache Properties, Inc., 9 F.3d at 516. See Swedish Hospital Corp. v. Shalala, 1 F.3d 1261, 1265 (D.C.Cir.1993). See also Rutherglen, Better Late Than Never: Notice and Opt Out at the Settlement Stage of Class Actions, 71 N.Y.U.L.REV. 258 (1996).[6] The defendant who contributed to the fund also will usually have no interest in how the fund is divided between the class and the plaintiff's attorney.[7]Swedish Hospital Corp. v. Shalala, 1 F.3d at 1265.
This case is illustrative of those dynamics. First, there was a relative paucity of objections from the 581,000 class members. Second, although E.F. Hutton had a reversionary interest in the undisposed portion of the settlement fund, it agreed to take no position with regard to Goodrich's application for attorney's fees.
Therefore, the Court of Chancery's review of common fund attorney fee applications must be more than "cursory." See Nottingham Partners v. Dana, 564 A.2d at 1102. We hold that a request for an award *1046 of attorney's fees from a common fund must be subjected to the same heightened judicial scrutiny that applies to the approval of class action settlements. Id. Consequently, we hold the Court of Chancery must make an independent determination of reasonableness on behalf of the common fund's beneficiaries, before making or approving an attorney's fee award. Id. See also Ch.Ct.R. 88. Accord In re General Motors Corp. Pick-Up Truck Fuel Tank Products Liability Litigation, 55 F.3d 768, 821 (3d Cir.1995).
Fee Award History Common Fund Doctrine
The equitable nature of awarding attorney's fees from a common fund requires a court to exercise broad discretion by applying a reasonableness standard. The appropriate method a court should use to determine a reasonable attorney's fee to be awarded from a common fund has been the subject of considerable debate. Originally, fees were calculated and awarded as a reasonable percentage of the common fund. Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1881). Thereafter, the percentage approach was used to make fee awards in common fund cases for almost one hundred years.
In the 1970s, courts began to use the "lodestar" approach to calculate fee awards in common fund cases. Lindy Bros. Builders, Inc. of Phila. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161, 167-68 (3d Cir.1973). See Report of the Third Circuit Task Force, Court Awarded Attorney Fees, 108 F.R.D. 237, 242 (1985). That method requires a court to calculate the product of an attorney's reasonable hours expended on the litigation and reasonable hourly rate to arrive at the "lodestar."[8]Swedish Hosp. Corp. v. Shalala, 1 F.3d at 1266. That lodestar calculation can then be adjusted, through application of a "multiplier" or fee enhancer, to account for additional factors, e.g., the contingent nature of the case and the quality of an attorney's work. Lindy Bros. Builders, Inc. of Phila. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102, 112 (3d Cir.1976); Swedish Hosp. Corp. v. Shalala, 1 F.3d at 1266. During the 1970s, the "lodestar/multiplier" method of awarding fees was frequently invoked in common fund cases, instead of determining a reasonable percentage of recovery from the fund, based upon a multifactor analysis. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 716-19 (5th Cir.1974) ("Johnson" factors); Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F.2d at 164-69 ("Lindy" factors).
In the 1980s, however, two events led to a reconsideration of the lodestar method of calculating common fund fee awards. First, in 1984, the Supreme Court distinguished the calculation of awards under fee-shifting statutes from the calculation of attorney's fees under the common fund doctrine. In doing so, the Supreme Court suggested that an award in a common fund case should be based upon a percentage of the fund:
Unlike the calculation of attorney's fees under the "common fund doctrine," where a reasonable fee is based on a percentage of the fund bestowed on the class, a reasonable fee under [42 U.S.C.] § 1988 reflects the amount of attorney time reasonably expended on the litigation.
Blum v. Stenson, 465 U.S. 886, 900 n. 16, 104 S.Ct. 1541, 1550 n. 16, 79 L.Ed.2d 891 (1984). Footnote 16 in Blum has been cited for the proposition that the Supreme Court's approval of the lodestar method in the fee-shifting context was not intended to overrule decisions which had approved percentage of the fund awards of attorney's fees in common fund cases. Swedish Hosp., 1 F.3d at 1268. See, e.g., Sprague v. Ticonic National Bank, *1047 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939); Central Railroad & Banking Co. v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915 (1885). That interpretation of Blum did not change when the Supreme Court held that the lodestar should not be enhanced through the use of a multiplier in statutory fee-shifting cases. City of Burlington v. Dague, 505 U.S. 557, 565-67, 112 S.Ct. 2638, 2642-44, 120 L.Ed.2d 449 (1992).
The second significant event in the 1980s was the report issued in 1985 by a Task Force the Third Circuit had appointed to evaluate the practical effectiveness of the lodestar method in making attorney fee awards. See Report of the Third Circuit Task Force, Court Awarded Attorney Fees, 108 F.R.D. 237 (1985). The Task Force recommended continued use of the lodestar technique in statutory fee-shifting cases. Id. See also City of Burlington v. Dague, 505 U.S. at 562, 112 S.Ct. at 2641 (acknowledging, in the statutory fee-shifting context, "a strong presumption that the lodestar represents the reasonable fee"). The Task Force concluded, however, that all attorney fee awards in common fund cases should be structured as a percentage of the fund. Report of the Third Circuit Task Force, Court Awarded Attorney Fees, 108 F.R.D. at 255.
At the present time, the majority of federal courts use a reasonable percentage of the fund method when making attorney fee awards in common fund cases. See Swedish Hosp. Corp. v. Shalala, 1 F.3d at 1266 (chronicling history of the methodologies). See also FEDERAL JUDICIAL CENTER, AWARDING ATTORNEYS' FEES AND MANAGING FEE LITIGATION 63-64 (1994) (canvassing case law.)[9] The Third Circuit has recently held that the percentage of the fund is generally the preferable method for awarding fees in common fund cases, but noted that a lodestar analysis might be used to cross check the propriety of the award (a "hybrid" approach).[10]See In re General Motors Corp. Pick-Up Truck Fuel Tank Products Liability Litigation, 55 F.3d at 821. Ultimately, however, the Third Circuit permits the trial court to exercise its discretion in choosing either the percentage method or the lodestar method, or some combination or hybrid, as the circumstances warrant, in making common fund fee awards. Id.
Goodrich's Contention Reliance Upon Boeing Rationale
Federal common fund attorney's fee jurisprudence is not binding upon the Court of Chancery or this Court. Tandycrafts, Inc. v. Initio Partners, 562 A.2d at 1165 n. 1. Sugarland Industries, Inc. v. Thomas, Del. Supr., 420 A.2d 142 (1980). Nevertheless, its history is didactic in the context of this case, for the purpose of evaluating the Court of Chancery's fee award and Goodrich's arguments.
The Court of Chancery found that the amount of fees Goodrich's attorneys sought, computed as approximately 16% of the total settlement fund before the court, was "perfectly appropriate and well within the guidelines *1048 that we typically use." According to Goodrich, using the lodestar/multiplier method, the fee request of $515,000 represented a minimal multiplier of the attorneys' basic lodestar of $449,687. Nevertheless, Goodrich does not contend that the Court of Chancery either should have awarded a larger percentage than 16% of the $3.3 million fund to his attorneys, or applied the lodestar method. Instead, Goodrich submits that the Court of Chancery applied erroneous legal precepts and abused its discretion by conditioning the fee award, i.e., limiting the fee to one-third of the amount actually claimed by class members from the settlement fund, subject to a maximum fee of $515,000.
Goodrich argues that the Court of Chancery should have followed the ratio decidendi of Boeing in this case. In Boeing, the Supreme Court rejected the defendants' argument that the plaintiff's attorney's fee should be limited to the percentage of the fund actually claimed by class members. The Boeing opinion affirmed the trial court's conclusion that attorney's fees should be awarded as a percentage of the total common fund created for the benefit of the class, whether or not the class claimed the entire fund. Goodrich submits that the Supreme Court's reasoning in Boeing is logically correct and that it also leads to an equitable result from the perspective of both the class and plaintiff's counsel.
Goodrich Fee Award Distinguishable from Boeing
In Boeing, the Supreme Court affirmed the trial court's discretionary decision to award attorney's fees based upon a percentage of the common fund created, even when it was known that certain class members would not file claims. The Supreme Court did not adopt or recommend that methodology as a per se rule for federal courts to use in common fund cases. Instead, it was simply applying the appropriate deferential standard of appellate review to a discretionary ruling by the trial court.
Moreover, the Court of Chancery recognized that the context of the Boeing fee award was distinguishable from this case in at least two important respects. First, according to the Supreme Court, "[t]he judgment on the merits stripped Boeing of any present interest in the fund" created by the judgment. Boeing Co. v. Van Gemert, 444 U.S. at 482 n. 7, 100 S.Ct. at 751 n. 7. In Boeing, each holder of convertible debentures was the beneficiary of a judgment against Boeing in a fixed amount. Boeing's right to any unclaimed part of that amount was "latent." Id. at 482, 100 S.Ct. at 751. In this case, E.F. Hutton's present interest in any remainder of the "common fund" was "vested." The Settlement provided that to the extent attorney's fees, settlement administration costs, and payments of valid claims by class members did not reach $3.3 million, the balance would be released from escrow and returned to E.F. Hutton.
Second, in Boeing, the absent class members were characterized as being "at least the equitable owners of their respective shares in the recovery." Id. at 482, 100 S.Ct. at 751. In this case, the amount to be paid to absent class members depended on the extent to which class members submitted claims. The Settlement provided that, if the claims submitted were to exceed $3.3 million, the amount to be paid to claiming class members would be prorated downward. Thus, unlike Boeing, this is not a case in which "each member of a certified class has an undisputed and mathematically ascertainable claim to part of a lump-sum judgment recovered on his behalf." Id. at 479, 100 S.Ct. at 749. Cf. id. at 476, 100 S.Ct. at 748.
Goodrich Fee Award Equitable and Reasonable
In this case, the Court of Chancery recognized the merit of the arguments which support a general preference for the immediate lump-sum payment of an attorney's fee award, that has been determined by the reasonable percentage of the fund method, when a common fund is created. It also acknowledged the merit of the emerging judicial consensus that the percentage of recovery awarded should "decrease as the size of the [common] fund increases." Report of the Third Circuit Task Force, Court Awarded Attorney Fees, 108 F.R.D. at 256. See also 3 HERBERT B. NEWBERG & ALBA CONTE, NEWBERG *1049 ON CLASS ACTIONS § 14:03, at 14-13 to 14-14 (3d ed. 1992). The Court of Chancery concluded, however, that it would not be desirable to adopt Boeing as a per se rule that awarded attorney's fees as a percentage in relation to the maximum common fund available, without regard to the benefits actually realized by class members.
The Court of Chancery's rejection of Boeing as a per se rule is not novel or unique. In fact, it is supported by the leading century-old precedent the Boeing decision relied upon with approval. See Central Railroad & Banking Co. v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915 (1885). In Pettus, attorney's fees were awarded also in a class action based upon the claims actually submitted, rather than the total common fund. Id.
In this case, the Court of Chancery used the percentage of recovery method. It also increased the percentage of the award from 16½% to 331/3% when it reduced the measure of benefits. The Court of Chancery concluded, however, that the $3.3 million settlement might not be an accurate quantification of the actual benefits conferred by the attorneys' efforts:
In summary, ... this form of order seemed equitable, and within the sound discretion of the court, in this instance because the particular facts of the case raise a very significant risk that some portion and perhaps a large portion of the total fund available for payments to the class will in fact not be distributed to the class members. This is so for several reasons. First the class is very large and the "losses" that class members may have suffered, if the claims made are assumed to be valid, are quite small. Moreover the transaction costs that class members will necessarily encounter in making a claim are relatively high. Members of the class will need to have complete brokerage records going back over the entire period to make a full claim and will need to locate and search such records. It is quite likely that many and perhaps most class members will not be able to or motivated to make such a claim. In fact, ... for some class members with smaller transaction totals, if one assumes even a modest opportunity cost in searching out old records, it will be economically irrational to make a claim. Thus, the order limited the fee awarded to one-third of the benefits actually delivered to class members.
Goodrich has a three-part response to that ruling in this appeal. First, Goodrich contends that to limit the award of attorney's fees to a percentage of the settlement fund claimed unfairly penalizes the attorneys whose efforts created the common fund, by conditioning payment on events beyond the attorneys' control. Second, Goodrich argues that the condition which the Court of Chancery placed on the fee award "penalize[s] [his attorneys] unfairly for the practical difficulties of administering the settlement based upon the potentially small size of individual claims; the need for claimants to establish their claims by producing transaction records; and the passage of time [ten years]." Third, Goodrich argues that the Court of Chancery has permitted E.F. Hutton to benefit at the expense of the plaintiff's attorneys and the class, by causing a portion of the attorney's fee award to revert as part of the unclaimed settlement fund.
Goodrich's arguments demonstrate the equity in the Court of Chancery's decision. The condition precedent to invoking the common fund doctrine is a demonstration that a common benefit has been conferred. The Court of Chancery expressed concern about whether the common fund was an accurate quantification of the actual benefit that had been conferred in this case. By conditioning the award of attorney's fees upon the claims actually submitted, the Court of Chancery exercised its discretion equitably, to correlate the attorneys' compensation with the structure of the settlement benefits the attorneys had negotiated for the class.[11]
*1050 This case establishes, once again, that the Court of Chancery's existing multiple factor approach to determining attorney's fee awards remains adequate for purposes of applying the equitable common fund doctrine. Tandycrafts, Inc. v. Initio Partners, 562 A.2d at 1167. See Sugarland Industries, Inc. v. Thomas, Del.Supr., 420 A.2d 142, 150 (1980); Maurer v. International Re-Insurance Corp., Del.Supr., 95 A.2d 827 (1953). See also 3 ERNEST FOLK, III, RODMAN WARD, JR., & EDWARD P. WELCH, FOLK ON THE DELAWARE GENERAL CORPORATION LAW § 327.6.1 (3d ed.1991). Compare FEDERAL JUDICIAL CENTER, MANUAL FOR COMPLEX LITIGATION, THIRD § 24.121, at 190-91 (1995).[12] The adoption of a mandatory methodology or particular mathematical model for determining attorney's fees in common fund cases would be the antithesis of the equitable principles from which the concept of such awards originated. Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1881); Central Railroad & Banking Co. v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915 (1885). New mechanical guidelines are neither appropriate nor needed for the Court of Chancery. Sugarland Industries, Inc. v. Thomas, 420 A.2d at 150. Accord Tandycrafts, Inc. v. Initio Partners, 562 A.2d 1162 (1989); Maurer v. International Re-Insurance Corp., Del. Supr., 95 A.2d 827 (1953).
Conclusion
The Court of Chancery carefully crafted a reasonable fee award that will fairly compensate successful attorneys and encourage continued vigilance by the bar. Maurer v. International Re-Insurance Corp., Del.Supr., 95 A.2d 827 (1953). See In re General Motors Pick-Up Truck Fuel Tank Products Liability Litigation, 55 F.3d at 819-20. There is no basis in the record to disturb that exercise of its discretion. Sugarland Industries, Inc. v. Thomas, 420 A.2d at 149. See also Prezant v. DeAngelis, 636 A.2d at 925. The judgment of the Court of Chancery is affirmed.
NOTES
[1] Sitting by designation pursuant to Supreme Court Rule 2 and DEL. CONST. art. IV §§ 12 and 38.
[2] See John Leubsdorf, Toward a History of the American Rule on Attorney Fee Recovery, 47 LAW & CONTEMP. PROBS. 9 (1984).
[3] The British Rule, conversely, is based on a centuries old statutory provision which allows an award of attorney's fees and costs to the prevailing party. See Alyeska Pipeline Serv. Co. v. The Wilderness Society, 421 U.S. 240, 247-64, 95 S.Ct. 1612, 1616-25, 44 L.Ed.2d 141 (1975).
[4] In an action brought pursuant to a statute with a fee-shifting provision, a successful plaintiff will recover attorney's fees from the defendant. See Skelton v. General Motors Corp., 860 F.2d 250, 252 (7th Cir.1988).
[5] In Delaware, there is no class action or derivative suit prerequisite, however, to an award of attorney's fees under the common benefit exception. The "[i]mposition of a class action requirement would be inconsistent with the equitable foundations of the common benefit exception.... The form of suit is not a deciding factor; rather, the question to be determined is whether a plaintiff, in bringing a suit either individually or representatively, has conferred a benefit on others." Tandycrafts, Inc. v. Initio Partners, Del.Supr., 562 A.2d 1162, 1166 (1989) (quoting Reiser v. Del Monte Properties Co., 605 F.2d 1135, 1139-40 (9th Cir.1979)). Accord Sprague v. Ticonic National Bank, 307 U.S. 161, 167, 59 S.Ct. 777, 780, 83 L.Ed. 1184 (1939) (holding that "the absence of an avowed class suit ... hardly touch[es] the power of equity in doing justice as between a party and the beneficiaries of his litigation").
[6] Professor Rutherglen has recommended that the current structure of Federal Rule 23 be amended to afford greater rights to class members: "in particular, to give them the right to receive effective notice later in the proceedings and the right to opt out at the settlement stage of class actions in order to register their dissatisfaction with the performance of the class attorney." Rutherglen, Better Late Than Never: Notice and Opt Out at the Settlement Stage of Class Actions, 71 N.Y.U.L.REV. 258, 261 (1996).
[7] Professor Rutherglen has also noted, as a general proposition, that "a better means of protecting the interests of the class can be found than by relying upon the interests of its adversary." Rutherglen, 71 N.Y.U.L.REV. at 259.
[8] The lodestar is determined by multiplying the hours reasonably expended by plaintiffs' counsel by a reasonable hourly fee. Lindy Bros. Builders, Inc. of Phila. v. American Radiator & Standard Sanitary Corp., 487 F.2d 161 (3d Cir.1973). In the fee petition, plaintiffs' counsel submits the total lodestar calculation, along with supporting time records, fee schedules and affidavits of counsel, to the court for review. See Ch.Ct.R. 88. Rode v. Dellarciprete, 892 F.2d 1177, 1190-91 (3d Cir.1990). Under the lodestar method, the court must make a dual inquiry into reasonableness: first, whether it was reasonable to expend the number of hours claimed, and second, with regard to the reasonableness of the hourly rate sought. Ursic v. Bethlehem Mines, 719 F.2d 670, 676-77 (3d Cir.1983).
[9] The D.C. Circuit and the Eleventh Circuit require the use of the percentage method in common fund cases. See Swedish Hospital Corp. v. Shalala, 1 F.3d 1261, 1271 (D.C.Cir.1993); Camden I Condominium Assoc., Inc. v. Dunkle, 946 F.2d 768, 774 (11th Cir.1991). At least five other circuits leave it to the trial court's discretion to choose between the lodestar and percentage methods in common fund cases. See In re Thirteen Appeals Arising out of the San Juan DuPont Plaza Hotel Fire Litigation, 56 F.3d 295, 306-308 (1st Cir.1995); In re Washington Public Power Supply System Securities Litigation, 19 F.3d 1291, 1295 (9th Cir.1994); Rawlings v. Prudential-Bache Properties, Inc., 9 F.3d 513, 516 (6th Cir.1993); Florin v. Nationsbank of Georgia, N.A., 34 F.3d 560 (7th Cir.1994); Brown v. Phillips Petroleum Co., 838 F.2d 451, 454 (10th Cir.), cert. denied, 488 U.S. 822, 109 S.Ct. 66, 102 L.Ed.2d 43 (1988). But see In re Continental Illinois Securities Litigation, 962 F.2d 566, 572-73 (7th Cir.1992) (leaving method of calculation discretionary but expressing a preference for percentage method). Although the Sixth Circuit has acknowledged the methodologies used in the other circuits, it "require[s] only that awards of attorney's fees ... in common fund cases be reasonable under the circumstances." Rawlings v. Prudential-Bache Properties, Inc., 9 F.3d at 516. Accordingly, the Sixth Circuit leaves it to the trial court's discretion to choose the method or variation and combination of methods that best account for the exigencies of the particular case before it.
[10] See Strang v. JHM Mortgage Securities Limited Partnership, 890 F.Supp. 499, 502-503 (E.D.Va. 1995) (cross checking a lodestar and percentage of the fund calculation).
[11] Consistent with the equitable nature of the common fund doctrine, the Court of Chancery's fee structure eliminated any settlement "freeriders." The order provided for the total potential attorney's fee of $515,000 to be deducted from the total $3.3 million common fund, along with administrative expenses and costs, up to a combined total of $1.1 million. Thereafter, the $2.2 million balance of the common fund would be paid out to each class claimant on a pro rata basis. The Court of Chancery's order further provided for attorney's fees to be paid from the $515,000 that had been set aside, at a rate equal to one-third of the value of claims filed. Any unpaid portion of the attorney's fee award would revert to E.F. Hutton, as would any other unpaid portion of the fund. If the Court of Chancery had not ordered the $515,000 to be deducted from the common fund initially, but simply paid from one-third of the award to each claimant, the initial claimants would have contributed to the $515,000 fee award in its entirety, while later claimants would not have contributed to the fees at all.
[12] The Federal Judicial Center's Manual for Complex Litigation, Third provides:
An award of attorneys' fees in a common fund case is committed to the sound discretion of the trial court, considering the unique factors in the case. The court awarding such a fee should articulate reasons for the selection of the given percentage [or other method] sufficient to enable a reviewing court to determine whether the percentage [or other method] selected is reasonable. The factors used in making the award will vary, but may include one or more of the following:
the skill and efficiency of the attorneys involved;
the complexity and duration of the litigation;
the risk of nonpayment;
the amount of time devoted to the case by plaintiffs' counsel; and
the awards in similar cases.
FEDERAL JUDICIAL CENTER, MANUAL FOR COMPLEX LITIGATION. THIRD § 24.121, at 190-91 (1995). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266295/ | 681 A.2d 14 (1996)
TOWN OF UNION
v.
Michael STRONG et al.
Supreme Judicial Court of Maine.
Submitted on Briefs February 16, 1996.
Decided July 31, 1996.
*15 Roger R. Therriault, Bath, for Plaintiff.
Randal E. Watkinson, Strout & Payson, P.A., Rockland, for Defendants.
Before WATHEN, C.J., and GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.
LIPEZ, Justice.
Michael and Tiffany Strong appeal from the judgment of the Superior Court (Knox County, Alexander, J.) affirming the judgment of the District Court (Rockland, Field, J.) in favor of the Town of Union on its 80K complaint alleging that the Strongs violated the town's shoreland zoning ordinance. On appeal, the Strongs contend that the Court erred in its interpretation of the Union Zoning Ordinance and in its failure to find that the Town was equitably estopped from enforcing certain provisions of the ordinance against the Strongs. We affirm the judgment.
Tiffany Strong, the daughter of co-defendant Michael Strong, is the record owner of property located adjacent to Seven Tree Pond in Union. In 1985, Michael Strong filed an application with the town's Code Enforcement Officer (CEO) to convert a cottage located on the property to year-round use. The plans submitted with the application revealed that Strong would move the house away from the pond by seven additional feet and add on the pond side of the home a ten foot wide deck extending along the entire length of the home.
*16 When the cottage was relocated in 1987, Strong moved it even further back than anticipated because he encountered a rock ledge that impeded his excavation for the home's permanent foundation. With the house now set further back, Strong increased the width of his deck to sixteen feet, believing that such extension would not violate the town's shoreland zoning ordinance because the edge of the deck (by Strong's measurement) remained more than seventy-five feet from the pond's high water mark.
In August of 1990 Union did not have a code enforcement officer and members of its planning board were operating in this capacity. During a visit to the Strong property as part of their consideration of Strong's application for a permit to construct a garage, they noted that Strong's deck appeared to exceed the width allowed by his permit. Acting as the CEO, the planning board notified Strong by letter that his deck was larger than allowed under his permit and violated the seventy-five foot waterfront setback. The planning board ordered Strong to cease construction of the deck and to bring the existing deck into compliance with the issued permit.
Strong responded to the planning board by letter, contending that his deck violated neither state law nor local zoning ordinances. After meeting to consider Strong's response, both the recently-hired CEO, orally, and the planning board, in writing, notified Strong that his deck was not in violation of the shoreland zoning ordinance and that he could continue to build the deck.
The Town took no further action on the deck until August of 1991 when the town's CEO again visited the Strong property. At this time the deck was still only "partially complete." Although the CEO verbally ordered Strong to cease construction of the deck, Strong relied on the board's earlier letter stating that his deck complied with the town's zoning ordinance. Thereafter, Strong completed his deck and the Town commenced this land use action against him and his daughter.
After a hearing, the court found that Strong's construction of his deck violated Union's zoning ordinance because it was wider than the deck for which Strong had been issued a building permit and because it violated the seventy-five foot shoreland setback. Based on its findings of these violations and those related to Strong's unauthorized construction of a garage,[1] the court ordered Strong to remove all portions of the deck that were within seventy-five feet of the high water mark and to pay a civil penalty of $7,500 and attorney fees of $5,714.66. Strong appealed to the Superior Court, which affirmed the District Court's judgment, and this appeal followed.
Application of the Setback
Strong first argues that because the seventy-five foot setback applies only to "principal structures," and the court concluded that his deck was an "accessory structure," the court should not have applied the setback to his deck.
When the Superior Court acts as an intermediate appellate court, we directly review the record before the District Court for clear error in its findings of fact or application of the law. Town of Hartford v. Bryant, 645 A.2d 18, 19 (Me.1994). The pertinent portions of the zoning ordinance state:
I. Principal Structure
The structure in which the primary use of the lot is conducted.
J. Accessory Structure
A structure of a nature customarily incidental or subordinate to that of the principal structure or the primary use to which the premises are devoted. *17 Union, Me., Shoreland Zoning Ordinance § 13 (June 30, 1974).[2] Additionally, Section 11(M)(1) of the shoreland zoning ordinance states that the seventy-five foot setback requirement applies only to "all principal structures in the Resource Protection and Limited Residential-Recreational Districts." Union, Me., Shoreland Zoning Ordinance § 11(M)(1) (June 30, 1974) (emphasis added). Applying these provisions, the court concluded both that the deck was an "accessory structure" and that it had to be set back seventy-five feet to comply with an ordinance provision that is expressly applicable only to "principal structures." As Strong points out, the court's application of the ordinance to Strong's deck is logically inconsistent. Nevertheless, we agree with, and, therefore, affirm, the court's ultimate conclusion that the setback must be applied to the Strong's deck.
The proposed deck was directly joined to the house, i.e., the principal structure. Generally, "accessory structures must be on the same lot as the principal building but they may not be attached to it. Additions made to a principal structure will not qualify as an accessory use." PATRICK J. ROHAN, 6 ZONING AND LAND USE CONTROLS § 40A.07 (1995) (emphasis added). When the deck was joined to the house it became an extension and integral part of the principal structure and, therefore, must comply with setback requirements that apply to principal structures. See Yunker v. Means, 271 Or. 56, 530 P.2d 846, 847 (1975) (deck used for usual deck uses not an accessory structure for setback purposes). See also Daughters of St. Paul v. Zoning Bd., 17 Conn.App. 53, 549 A.2d 1076, 1083 (1988) (stating that physical separation is essential to identification of structure as an accessory structure). Thus, while we conclude that the court erred in characterizing the deck as an "accessory structure," we affirm its ultimate conclusion that the seventy-five foot setback should be applied to the deck. See L. Ray Packing Co. v. Commercial Union Ins. Co., 469 A.2d 832, 834 (Me.1983) (where the legal reasoning of the court is incorrect, but its ultimate conclusion is correct in law, it must be sustained on appeal).
Measurement of the Setback
Having determined that the ordinance's setback requirement applies to the deck, we must next determine in what manner the setback is to be measured. Section 11(M)(1) of the Shoreland Zoning ordinance states:
All principal structures in the Resource Protection and Limited Residential-Recreational Districts shall be set back at least 75 feet from the normal high water mark of any pond or river as defined.
Union, Me., Shoreland Zoning Ordinance § 11(M)(1) (June 30, 1974). While other provisions of the zoning ordinance specify the method by which measurements are to be made, some requiring over-the-land measurement and others horizontal measurement, the setback provision at issue here is silent as to how it should be measured.[3]Compare Union, Me., Shoreland Zoning Ordinance § 11(N)(2) (June 30, 1974) (measuring distance in "feet along surface of the ground") with Union, Me., Shoreland Zoning Ordinance § 11(J)(2) (June 30, 1974) (stating that setback for sewage system shall be no less than 100 horizontal feet). Strong contends that the ordinance's varied treatment of measurement methodology creates an ambiguity that requires us to strictly construe the ambiguity in favor of him by adopting the "over-the-ground" method of measurement he champions. We disagree.
Interpretation of provisions in a zoning ordinance is a question of law. Mayberry v. Town of Old Orchard Beach, 599 *18 A.2d 1153, 1154 (Me.1991). There are several principles of statutory construction that apply to the interpretation at issue here. The contested language must be construed reasonably and with regard to both the ordinance's specific object and its general structure. Ray v. Town of Camden, 533 A.2d 912, 914 (Me.1987). Each undefined term is given its common and generally accepted meaning unless the context of the statute clearly indicates otherwise. George D. Ballard, Builder, Inc. v. City of Westbrook, 502 A.2d 476, 480 (Me.1985). Additionally, when the municipality seeks to impose penalties for violation of the zoning ordinance, or the contested provision limits the use of real estate, the provision will be strictly construed. Town of Hartford v. Bryant, 645 A.2d 18, 19 (Me. 1994) (stating that when town seeks to impose fines for zoning violation ordinance will be strictly construed); LaPointe v. City of Saco, 419 A.2d 1013, 1015 (Me.1980) (stating that when provisions to be construed limit use of land they will be strictly construed).
Focusing on this last precept of statutory construction, Strong asks us to ignore the other applicable rules of statutory interpretation. Strict construction, however, cannot be used to defeat the clear intent of the statute nor to construe the statute in an unreasonable manner. See State v. Millett, 392 A.2d 521, 525 (Me.1978) (stating that rule of strict construction is subordinate to rule that judicial interpretation must be reasonable and sensible with a view to effectuating the legislative design and true intent of the legislature); Moyer v. Board of Zoning Appeals, 233 A.2d 311, 316 (Me.1967) (statutes must be strictly construed but nevertheless should be read according to their natural and most obvious import); Violette v. Macomber, 125 Me. 432, 434, 134 A. 561, 562 (1926) ("The rule of strict construction . . . is subordinate to the rule of reasonable, sensible construction, having in view effectuation of the legislative purpose, and is not to be so unreasonably applied as to defeat the true intent and meaning of the enactment."). See also SUTHERLAND STAT. CONST. § 58.01 (5th ed. 1992) ("Strict construction does not mean strained construction which is against the legislature's intent."). Contrary to the Strongs' contention, the principle of strict construction does not require that we adopt a construction of the ordinance that is most favorable to the property owner if adoption of such a construction is inconsistent with the common and general usage of terms contained in the ordinance or incongruent with the ordinance's apparent purposes.
The general objectives of the Union shoreland zoning ordinance, the specific objectives of shoreland setbacks, and the customary methods of surveying boundaries, all counsel against the measurement interpretation advanced by Strong and in favor of the use of the horizontal methodology. The town's shoreland zoning ordinance lists among its purposes:
to further the maintenance of safe and healthful conditions; prevent and control water pollution; protect spawning grounds, fish, aquatic life, bird and other wildlife habitat; control building sites, placement of structures and land uses; and conserve shore cover, visual as well as actual points of access to inland and natural beauty.
Union, Me., Shoreland Zoning Ordinance § 1 (June 30, 1974). Shoreland setbacks further these objectives by keeping developmental activities from encroaching upon the shore and by limiting introduction of artificial structures into the natural and fragile setting of the shoreline. Requiring the shoreland setback to be measured along the horizontal plane results in structures being placed further back from the high water mark and thereby best serves the protective purpose of the shoreland setback.
Common property surveying techniques also support the court's determination that the setback should be measured horizontally. "When referring to distance, it is horizontal distance relative to some actually defined unit." CURTIS M. BROWN & WINFIELD H. ELDRIGE, EVIDENCE AND PROCEDURES FOR BOUNDARY LOCATION 192 (1962) (emphasis in original). See also WALTER G. ROUBILLARD ET AL., BROWN'S BOUNDARY CONTROL AND LEGAL PRINCIPLES 45 (1995) ("Distances cited in modern descriptions are presumed to be along a horizontal straight line."). Thus, the court did not err in construing the Union *19 zoning ordinance as requiring that the distance between the high water mark and the edge of the deck be measured horizontally.
Equitable Estoppel
Strong further contends that the Town should be estopped from enforcing its zoning regulations against him because he completed his deck in reliance on representations made to him by the planning board. We disagree.
The doctrine of equitable estoppel may be applied to the activities of a governmental official or agency in the discharge of a governmental function. F.S. Plummer Co. v. Town of Cape Elizabeth, 612 A.2d 856, 860 (Me.1992); Maine School Administrative District No. 15 v. Raynolds, 413 A.2d 523, 533 (Me.1980). Whether the facts of a case give rise to an estoppel is a question of law for the court. Holt v. New England Tel. & Tel. Co., 110 Me. 10, 12, 85 A. 159, 159-60 (1912). In assessing a claim of equitable estoppel against a governmental entity we consider the totality of the circumstances, including the nature of the particular governmental agency, the particular governmental function being discharged, and any considerations of public policy arising from the application of estoppel to the governmental function. Maine School Admin. Dist. No. 15 v. Raynolds, 413 A.2d at 533. Furthermore, we have cautioned that the doctrine of equitable estoppel should be "carefully and sparingly applied," Vacuum Systems, Inc. v. Bridge Const. Co., 632 A.2d 442, 444 (Me. 1993), and that a party seeking to estop the enforcement of a zoning ordinance bears a greater burden of proof because of the "`forceful public reasons that militate against restricting the enforcement of municipal zoning ordinances.'" F.S. Plummer Co. v. Cape Elizabeth, 612 A.2d at 860-61 (quoting City of Auburn v. Desgrosseilliers, 578 A.2d 712, 715 (Me.1990)).
The facts of this case do not support the application of equitable estoppel. Although Strong received a letter from the planning board stating that he could continue to construct his deck, the CEO visited the Strong home about a year after the receipt of this letter and verbally ordered Strong to cease construction of his deck at a time when the deck was only "partially constructed." The CEO advised Strong that the deck was in violation of the zoning ordinance. Strong ignored the CEO's directive and continued to build his deck. Under these circumstances, Strong cannot argue that he relied reasonably on governmental conduct in finishing his deck. Moreover, ample evidence in the record supports the conclusion that Strong was bent on completing the deck regardless of whether the CEO or the planning board approved its construction. As noted by the court in its findings, Strong's letters to the planning board throughout this acrimonious permitting process demonstrated a lack of respect for and a stubborn resistance to the board's authority. Despite repeated warnings, Strong constructed his two car garage without ever obtaining a permit for it. Given this history and conduct, there is no basis for invoking the doctrine of equitable estoppel to prevent the Town from enforcing its zoning ordinance.
The entry is:
Judgment affirmed.
All concurring.
NOTES
[1] Despite the lack of a permit and repeated admonishments to desist by the planning board, Strong constructed a two-car detached garage on his property. The court found that construction of the garage violated the town's shoreland zoning ordinance because it was built without a permit and because its location violated the zoning ordinance's twenty-foot sideline setback requirement. On appeal, Strong does not contest these findings or the assessment of fines as a result of these violations.
[2] Although the 1974 Union shoreland zoning ordinance was revised in 1991, and the 1985 land use ordinance was revised in 1990 and 1991, the first editions of both ordinances are relied on because Strong's actions at issue in this appeal occurred prior to the revisions.
[3] As the name implies, the "over-the-land" measurement methodology requires the surveyor to measure the required distance in a straight line along the surface of the earth. The horizontal measurement methodology contemplates measurement of the designated distance by extending lines vertically from the two points on the ground between which the surveyor is measuring and then measuring along a horizontal straight line perpendicular to these two lines. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1373623/ | 53 Wash. 2d 635 (1959)
335 P.2d 595
CORAL APPLEGATE, Appellant,
v.
DOUGLAS G. APPLEGATE, Respondent.[1]
No. 34816.
The Supreme Court of Washington, Department One.
February 19, 1959.
Altha P. Curry, for appellant.
Elvidge, Watt, Veblen & Tewell and Luther C. Martin, for respondent.
DONWORTH, J.
In this divorce action, respondent, Donald Applegate, prevailed on his cross complaint. The trial court held the evidence insufficient to support a decree of *636 divorce on cruelty grounds, as alleged by appellant, and dismissed her complaint. She appeals.
[1] Appellant's eighth and ninth assignments of error are directed to the refusal of the trial court to grant her a decree of divorce. For the reasons stated in Smith v. Smith, 45 Wn. (2d) 672, 277 P. (2d) 339 (1954), these assignments are without merit. The decree entered gives appellant the ultimate relief which she sought a dissolution of her marriage. Hence, the court's error, if any, was without prejudice to appellant. Cf. Skaare v. Skaare, 52 Wn. (2d) 273, 324 P. (2d) 815 (1958).
The principal issue on this appeal, however, is the propriety of that portion of the decree which awards to respondent the custody of two minor daughters of the parties (born September 30, 1955, and April 17, 1957, respectively) and allows appellant liberal rights of visitation.
The trial judge did not consider it necessary to enter specific findings of fact as to the fitness or unfitness of either parent to have custody of their children. He did, however, find "that the welfare of said minor children will be best served by awarding the care and custody of said minor children to the defendant, Douglas Applegate." That respondent is not unfit is implicit in this finding.
Appellant contends that (a) since she was not found to be unfit, and the evidence failed to support such a finding, she is, as a matter of law, entitled to custody of her children of "tender years"; and, (b) absent a finding of her unfitness, the trial court is without discretion to award custody to respondent.
[2, 3] These arguments were squarely rejected by this court recently in Patterson v. Patterson, 51 Wn. (2d) 162, 316 P. (2d) 902 (1957), and in Johnson v. Johnson, ante p. 107, 330 P. (2d) 1075 (1958). In both cases, we quoted with approval certain guiding principles laid down in Chatwood v. Chatwood, 44 Wn. (2d) 233, 266 P. (2d) 782 (1954), which need not be repeated here. In the Patterson case, we said:
"... the failure of the trial court to enter a specific finding negating the fitness of the mother to have the custody *637 of the children is of no legal significance." (Italics ours.)
And, further,
"The so-called `tender years doctrine,' ... is merely one facet of the more basic principle: that the best interests and welfare of the children is the controlling consideration in child custody cases."
[4] Furthermore, we have consistently recognized that the trial court must have a wide latitude of discretion in such matters, and that its disposition of custody will not be disturbed in the absence of a manifest abuse of discretion. Stratton v. Stratton, ante p. 558, 335 P. (2d) 39 (1959); Johnson v. Johnson, supra; Siewert v. Livermore, 52 Wn. (2d) 375, 325 P. (2d) 293 (1958); Sweeny v. Sweeny, 52 Wn. (2d) 337, 324 P. (2d) 1096 (1958); Patterson v. Patterson, supra.
We do not find it necessary to set forth in detail the events which gave rise to the marital discord which existed between the parties.
In this case, the trial court was obliged to decide which of two parents (neither of whom was found to be unfit) should have custody of their children. The court, having in mind the best interests and welfare of the children, resolved this issue in favor of respondent and entered the finding of fact above quoted.
In reaching its conclusion on this issue, the court considered the existing situation of the respective parents at the time of trial in March, 1958. Appellant was then pregnant with her third child and was residing with her parents in North Bend. She was employed at the time the parties separated, and she intended to marry another person after her divorce from respondent. The trial court was of the opinion that, in any event, appellant would have to obtain employment after the birth of her third child because, even if her planned marriage should take place, the income of her prospective husband would be insufficient to meet all his family obligations. On the other hand, respondent maintained a suitable home in Factoria. His widowed mother, then fifty-three years of age, who lived with him, agreed to care for the children.
*638 It is thus apparent that the trial court had to decide whether the welfare of the children would be better served by permitting them to continue living with their mother in the home of their maternal grandparents, or by placing them in their father's home, where they would be cared for by their paternal grandmother.
[5, 6] In view of the unsettled conditions which surrounded the life of appellant at the time of trial, as disclosed by our review of the record, we cannot say that the court then abused its discretion in awarding custody to respondent. Of course, custody orders are continuing in nature and may be modified upon a showing of a material change of conditions. Schaefer v. Schaefer, 36 Wn. (2d) 514, 219 P. (2d) 114 (1950); cf. Munroe v. Munroe, 49 Wn. (2d) 453, 302 P. (2d) 961 (1956).
Since we cannot say that the court erred in resolving the child custody matter as it did on the basis of the facts existing at the time of the trial, no occasion or necessity exists (as in Saffer v. Saffer, 42 Wn. (2d) 298, 254 P. (2d) 746 (1953), wherein the trial court's award of custody was changed on appeal) for remanding this case for the reception of additional evidence. If, subsequent to the trial, circumstances concerning appellant's ability to provide a suitable environment for the children have materially changed so that their welfare would be better promoted by being placed in appellant's custody, she may petition for a change in the pertinent provisions of the decree.
The decree is in all respects affirmed.
WEAVER, C.J., MALLERY, OTT, and HUNTER, JJ., concur.
NOTES
[1] Reported in 335 P. (2d) 595. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1373352/ | 207 S.E.2d 768 (1974)
22 N.C. App. 741
Betty Grigg HOWELL
v.
Floyd Garfield NICHOLS.
No. 7427SC469.
Court of Appeals of North Carolina.
August 21, 1974.
Certiorari Denied November 8, 1974.
*769 Basil L. Whitener and Anne M. Lamm, Gastonia, for plaintiff appellant.
Hollowell, Stott & Hollowell by Grady B. Stott and James C. Windham, Jr., Gastonia, for defendant appellee.
Certiorari Denied by Supreme Court November 8, 1974.
MORRIS, Judge.
Plaintiff contends that the court improperly excluded testimony from Dr. James A. Sanders to the effect that the pain suffered by plaintiff "could be indefinite or prolonged for an indefinite period of time." We hold that the testimony was properly excluded. The substance of Sanders' testimony *770 is as follows. Complaining of discomfort in her neck, plaintiff came to Sanders for treatment on 7 July 1971, about three weeks after the accident. At the time, plaintiff "had limitation of motion in her neck. ..." and indicated "discomfort over the medial border. The medial refers to toward the middle. This would be toward the inner part of the wing bone . . the scapula. If you put your arm behind you, you'll probably just be . . . barely able to put your thumb in that area. . . X-rays were taken . . . and these revealed the patient had degenerative disc disease at the third and fourth cervical interspace."
Sanders prescribed medication for pain, muscle relaxant and traction. He also advised plaintiff to use heat on her neck. During a subsequent consultation on 20 September 1971, Sanders informed plaintiff that "it might be some time before her pain would subside." On 10 July 1972, a year after his initial examination of plaintiff, Sanders again saw the patient. "At that time, [he] made a note that the degenerative disc disease was the primary cause of her discomfort, with a strain being superimposed to that." The patient was advised to continue using traction which she had been using intermittently. Regarding "the function and aim" of the traction, Sanders explained
"that traction applies a pull to the neck and in this way it tends to make the muscles in the neck relax. This is what causes most of the discomfort in a problem such as this. The muscles tend to tighten up and go into spasm and most of the pain is due to this. The residual pain that you have after getting the muscles to relax is due primarily to the disc problem."
During another examination four months later, plaintiff was informed that Sanders "thought she had had a sprain of her cervical spine superimposed upon the degenerative disc problem in her neck which she had had [several years] prior to the accident." Sanders also indicated that he "did not see objective finding to indicate permanent disability." Plaintiff's evidence thus tends to show that she suffered from degenerative disc disease before the accident occurred, that this condition may have been aggravated by a cervical sprain precipitated by the collision, that although both degenerative disc disease and a cervical sprain can cause pain, the former condition was the primary cause of plaintiff's condition. Where, as here,
"the wrongful act does not cause a diseased condition but only aggravates and increases the severity of a condition existing at the time of the injury, the injured person may recover only for such increased or augmented sufferings as are the natural and proximate result of the wrongful act, or, as otherwise stated, where a pre-existing disease is aggravated. . . the . . . recovery. . . is limited to the additional injury caused by the aggravation over and above the consequences, which the preexisting disease, running its normal course, would itself have caused if there had been no aggravation by the wrongful injury." Potts v. Howser, 274 N.C. 49, 54, 161 S.E.2d 737, 741 (1968), quoting 25 C.J.S. Damages § 21, p. 661.
Plaintiff offered no evidence tending to show either the degree and duration of pain she might be expected to experience from degenerative disc disease absent the superimposed cervical spine strain or the probable effect of the spinal sprain on the degree and duration of such pain. See Potts v. Howser, supra; Purgason v. Dillon, 9 N.C. App. 529, 176 S.E.2d 889 (1970). Since plaintiff's evidence does not show a reasonable certain causal relationship between the cervical spinal sprain which may have aggravated the degenerative disc condition and possible pain and suffering in the future, see Gillikin v. Burbage, 263 N.C. 317, 139 S.E.2d 753 (1965); Short v. Chapman, 261 N.C. 674, 136 S.E.2d 40 (1964); Johnson *771 v. Brown, 11 N.C.App. 323, 181 S.E.2d 321 (1971), Sanders' testimony regarding future pain was properly excluded.
In a related challenge, plaintiff argues that Sanders should have been permitted to testify that cervical fusion was an alternative mode of treatment "to further the situation as far as Mrs. Howell is concerned," although Sanders "would not have advised it . . . because [plaintiff] did not appear to be having enough difficulty to warrant the severity of this type of treatment." The record does not indicate whether such treatment might become necessary in the future as a result of the cervical spine sprain or whether it might become necessary even if plaintiff had not suffered the sprain. Hence, the jury could not consider the possibility of future treatment in arriving at plaintiff's damages. The proffered testimony was properly excluded.
Plaintiff also contends that she should have been allowed to state how long her vehicle had been stopped at a traffic light prior to the accident, even though the manner in which the accident happened was not in issue. Since the record does not indicate what plaintiff's response would have been, this Court cannot determine whether exclusion of the testimony was prejudicial. Gibbs v. Light Co., 268 N.C. 186, 150 S.E.2d 207 (1966). The assignment of error is overruled.
Plaintiff argues that the court erred in not setting aside the verdict and granting a new trial on the grounds that the damages awarded were inadequate. Plaintiff offered evidence of approximately $240 special damages. The verdict was $1,500. The record does not show that the court abused its discretion in declining to set aside the verdict and ordered a new trial.
Affirmed.
VAUGHN and BALEY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2573354/ | 210 P.3d 1018 (2009)
STATE
v.
MILLER.
No. 82682-0.
Supreme Court of Washington, Department I.
July 7, 2009.
Disposition of petition for review. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1726420/ | 970 So. 2d 892 (2007)
Richard BENDER, Appellant,
v.
STATE of Florida, Appellee.
No. 1D07-3401.
District Court of Appeal of Florida, First District.
December 20, 2007.
*893 Richard Bender, pro se, Appellant.
Bill McCollum, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
PER CURIAM.
AFFIRMED. See West v. State, 818 So. 2d 637 (Fla. 1st DCA 2002); State v. Dehart, 913 So. 2d 616 (Fla. 2d DCA 2005).
PADOVANO, LEWIS, and THOMAS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2772094/ | Illinois Official Reports
Appellate Court
Excalibur Energy Co. v. Rochman, 2014 IL App (5th) 130524
Appellate Court EXCALIBUR ENERGY COMPANY, Plaintiff-Appellee, v.
Caption MARILYN ROCHMAN, Defendant-Appellant.
District & No. Fifth District
Docket No. 5-13-0524
Filed August 18, 2014
Held Although plaintiff’s ejectment complaint was supported by case law to
(Note: This syllabus the extent that it alleged that the tax deed giving rise to defendant’s
constitutes no part of the claimed interest in the property was obtained as the result of tax deed
opinion of the court but proceedings in which plaintiff was not provided with the required
has been prepared by the notice, the trial court erred in entering summary judgment for plaintiff,
Reporter of Decisions since a petition under section 2-1401 of the Code of Civil Procedure
for the convenience of provided the only means for plaintiff to vacate the tax deed, in view of
the reader.) the passage of more than 30 days since the entry of the judgment
issuing the tax deed; therefore, the order entering summary judgment
for plaintiff was reversed and the cause was remanded with directions
to dismiss plaintiff’s complaint.
Decision Under Appeal from the Circuit Court of Franklin County, No. 09-MR-32; the
Review Hon. Thomas J. Dinn III and the Hon. E. Kyle Vantrease, Judges,
presiding.
Judgment Reversed and remanded with directions.
Counsel on Mindy S. Salyer, Amanda L. Moressi, and Brittney B. Rykovich, all of
Appeal Salyer Law Offices, LLC, of Chicago, and William L. Broom III and
Patricia A. Small, both of Barrett, Twomey, Broom, Hughes & Hoke,
LLP, of Carbondale, for appellant.
Jana Yocom, of Jana Yocom, P.C., of Mt. Vernon, for appellee.
Panel JUSTICE SCHWARM delivered the judgment of the court, with
opinion.
Justices Goldenhersh and Cates concurred in the judgment and
opinion.
OPINION
¶1 The plaintiff, Excalibur Energy Company (Excalibur Energy), filed a second-amended
complaint in ejectment claiming ownership to property in Franklin County and alleging that a
tax deed, from which the defendant, Marilyn Rochman, claimed ownership of the same
property, was void for lack of notice to Excalibur Energy’s predecessor in title. Rochman
appeals the circuit court’s order granting summary judgment in Excalibur Energy’s favor. For
the reasons that follow, we reverse the circuit court’s judgment and remand the cause with
directions to dismiss the plaintiff’s second-amended complaint.
¶2 BACKGROUND
¶3 On July 2, 2009, Excalibur Energy filed its complaint against Rochman, alleging that a tax
deed, issued to Rochman’s predecessor in title, Franklin County, as trustee, was void for lack
of notice to Excalibur Energy’s predecessor in title, the Joseph B. Gould Trust (Gould Trust).
Specifically, in its “[s]econd [a]mended [c]omplaint [i]n [e]jectment” filed on July 16, 2012,
Excalibur Energy alleged that in the 1980s Riverside American Farms, Inc. (Riverside),
acquired in fee the surface and mineral rights underlying the disputed property in Franklin
County. Excalibur Energy alleged that in 1991, Riverside deeded to Gould Trust a mineral
interest in fee in the property, subject to a conditional reversionary interest, which reserved in
Riverside a one-half interest in the mineral rights if Riverside paid in full a note due Gould
Trust before May 1, 1996. Excalibur Energy alleged that the note was not paid and, therefore,
Gould Trust’s mineral interest in fee vested by operation of law on May 1, 1996.
¶4 Pursuant to Excalibur Energy’s allegations, the record reveals that in 2003, Clyde E. Tritt
and Carolyn Dirks executed an assignment and quitclaim deed to the Gould Foundation.
Although named in the deed “as co-trustees” of the Gould Trust, Dirks and Tritt signed this
deed as “co-executor[s]” of the estate of Joseph B. Gould. On May 16, 2006, the Gould
Foundation transferred its mineral interest in fee in the disputed premises by virtue of a
warranty deed issued to Excalibur Energy.
-2-
¶5 Excalibur Energy further alleged that, meanwhile, Franklin County, as trustee, took
purported title to property pursuant to a tax deed dated September 17, 1997, and recorded
October 23, 1997. Excalibur Energy alleged that this 1997 tax deed did not include in its legal
description the property in dispute here. Excalibur Energy alleged that Franklin County, as
trustee, thereafter conveyed the property to Rochman by quitclaim deed dated January 22,
2008, and recorded January 25, 2008, and that this quitclaim deed, purporting to be a tax deed,
also did not include in its legal description the property in dispute here.
¶6 Excalibur Energy alleged, however, that a “[c]orrective [t]ax [d]eed” was executed on
February 11, 2008, from David Dobill to Franklin County, as trustee, and recorded February
19, 2008. Excalibur Energy alleged that this deed included the property in dispute and listed it
as “being the former interest of Riverside American Farms: Account of Joseph Gould Trust”
even though Gould Trust was taxed under a different bill number. Excalibur Energy alleged
that another corrective deed, a quitclaim deed dated February 15, 2008, and recorded February
19, 2008, transferred the same property from Franklin County, as trustee, to Rochman.
¶7 Excalibur Energy alleged that from June 23, 2006, until July 2007, pursuant to a division
order, Countrymark Cooperative LLP (Countrymark) paid oil revenue amounts from the
property to Excalibur Energy and that Excalibur Energy and its predecessors in title paid all
real estate taxes that were assessed. Excalibur Energy alleged, however, that after July 2007
until June 10, 2008, Countrymark paid the various amounts of oil revenue from the property to
Rochman and that Rochman thereby unlawfully withheld from Excalibur Energy the
possession of the property. Excalibur Energy requested the circuit court to quiet title to the
premises, order Rochman’s ejectment, and determine the amount owed to it for Rochman’s
wrongful possession.
¶8 On August 14, 2012, Rochman filed a combined motion to dismiss Excalibur Energy’s
second-amended complaint (735 ILCS 5/2-619.1 (West 2008)). In her motion, Rochman
argued, among other things, that because the “court having exclusive jurisdiction over the tax
deed ha[d] failed to hear any issues thereon, [Rochman’s] title to the subject premises [was]
valid” and Excalibur Energy was barred from asserting its claim in ejectment.
¶9 On September 5, 2012, Excalibur Energy filed a motion for summary judgment. Excalibur
Energy requested the circuit court to find that the 1994 default judgment and resulting 1997 tax
deed to the Franklin County trustee were void. Excalibur Energy argued that the tax court had
lacked jurisdiction to render the default judgment and issue the tax deed because there were
defects in the delinquent list and publication notice, the purported tax deed failed to describe
the property at issue, and Gould Trust did not receive any notice of the tax proceedings.
Thereafter, Rochman filed a motion to strike Excalibur Energy’s motion for summary
judgment.
¶ 10 On November 2, 2012, after hearing arguments, the circuit court denied Rochman’s motion
to dismiss, motion to strike Excalibur Energy’s motion for summary judgment, and request to
answer the second-amended complaint in ejectment. On November 28, 2012, the circuit court
entered its written order granting Excalibur Energy’s motion for summary judgment.
¶ 11 In its order, the circuit court held that Excalibur Energy and its predecessors had paid the
real estate taxes that were assessed in their names and that they had received no notice of the
tax deed proceedings. The circuit court held that the records of the tax deed proceedings
established that notice was not sent to the Gould Trust, even though its interest in the property
was shown in the grantor-grantee index in the county clerk’s office. The circuit court found
-3-
that the “[c]orrective [t]ax [d]eed” executed on February 11, 2008, from David Dobill to
Franklin County, as trustee, and recorded on February 19, 2008, was the first deed to include
the property at issue in the legal description. The circuit court found that it was the first time
that the Gould Trust was mentioned. The circuit court found no explanation of the reasons or
authority for delivery of this deed.
¶ 12 The court concluded that Excalibur Energy had provided proof that its predecessor in title
held a recorded interest in the property but was not named a party in the publication notice as
set forth in section 22-20 of the Property Tax Code (35 ILCS 200/22-20 (West 2008)), and that
Franklin County, as trustee and tax purchaser, did not make a diligent inquiry and effort to
serve the property owner with notice required by the Property Tax Code (35 ILCS 200/22-10 to
22-30 (West 2008)). The circuit court held that the total lack of notice of the tax deed
proceedings rendered the tax deed void for lack of trial court jurisdiction over the property
owner. Accordingly, the circuit court granted Excalibur Energy’s motion for summary
judgment and granted it possession of the premises.
¶ 13 In her motion to reconsider and later-filed addendum, Rochman argued, among other
things, that Excalibur Energy had failed to plead a cause of action for ejectment, that Excalibur
Energy had failed to present evidence that Gould Trust had held fee title subject to a
conditional reversionary interest in Riverside or that Gould Trust’s fee interest had vested by
operation of law in 1996, and that there was no evidence of record regarding a total lack of
notice in the underling tax deed proceeding. On September 27, 2013, the circuit court denied
Rochman’s motion to reconsider and addendum to the motion to reconsider. Rochman filed a
timely notice of appeal.
¶ 14 ANALYSIS
¶ 15 “A motion for summary judgment should only be granted when the pleadings, depositions,
and affidavits demonstrate that there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law.” Jackson v. TLC Associates, Inc., 185 Ill. 2d
418, 423 (1998). “Summary judgment is a drastic measure and should only be granted if the
movant’s right to judgment is clear and free from doubt.” Outboard Marine Corp. v. Liberty
Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). Our review of a circuit court’s order granting
summary judgment is de novo. Id.
¶ 16 Pursuant to its second-amended complaint, Excalibur Energy’s claim for ejectment (see
735 ILCS 5/6-101 et seq. (West 2008)) rests on its argument that the 1997 tax deed issued to
Franklin County, as trustee, was void, and thus, Franklin County had no title to transfer to
Rochman. Excalibur Energy thus seeks to set aside a tax deed.
¶ 17 The Property Tax Code (35 ILCS 200/1-1 et seq. (West 2008)) governs the issuance of tax
deeds. Pursuant to the Property Tax Code, “[t]he legislature intended a tax deed, once it is
issued, to be virtually incontestable.” S.I. Securities v. Powless, 403 Ill. App. 3d 426, 429
(2010). “The legislature’s intent was to provide a tax buyer with a new and independent title,
free and clear from all previous titles and claims of every kind, and assurance to the tax buyer
that his title and rights to the property would be unimpaired.” Id. “The legislature drafted the
Property Tax Code in this manner because, prior to 1951, there was an alarming increase in the
rate of tax delinquencies, and ‘almost any defect or deficiency, no matter how minute, in a tax
deed proceeding that led to the issuance of a tax deed made a deed suspect and generally
void.’ ” Id. (quoting Killion v. Meeks, 333 Ill. App. 3d 1188, 1191 (2002)). Nonetheless, “the
-4-
primary purpose of the tax sales provisions of the Property Tax Code is to coerce tax
delinquent property owners to pay their taxes, not to assist tax petitioners in depriving the true
owners of their property.” In re Application of the County Collector, 295 Ill. App. 3d 703, 710
(1998).
¶ 18 Accordingly, a party’s ability to set aside a tax deed is very limited. 35 ILCS 200/22-45,
22-55 (West 2008). Under section 22-45 of the Property Tax Code (35 ILCS 200/22-45 (West
2008)), there are three ways in which a party may challenge a tax deed: (1) by filing a direct
appeal from the order directing the issuance of the deed; (2) by filing a motion for relief under
section 2-1203 of the Code of Civil Procedure (735 ILCS 5/2-1203 (West 2008) (motion made
within 30 days after judgment)); or (3) by filing a petition for relief under section 2-1401 of the
Code of Civil Procedure (735 ILCS 5/2-1401 (West 2008)). In re Application of the County
Treasurer & ex officio County Collector, 2013 IL App (3d) 120999, ¶ 23. Section 22-45
further limits the grounds for which relief from a tax deed may be obtained under section
2-1401 to the following four situations: (1) where there is proof that the taxes were paid prior
to sale; (2) where there is proof that the property was exempt from taxation; (3) where there is
proof by clear and convincing evidence that the tax deed had been procured by fraud or
deception by the tax purchaser or his assignee; or (4) where there is proof that a party with a
recorded ownership or other recorded interest was not named in the required publication notice
and the tax purchaser or his assignee did not make a diligent inquiry and effort to serve that
party with the required notices. 35 ILCS 200/22-45 (West 2008); In re Application of the
County Treasurer & ex officio County Collector, 2013 IL App (3d) 120999, ¶ 23. Section
22-45 further provides, however, that relief from such an order may be had under section
2-1401 in the same manner and to the same extent as may be had with respect to final orders
and judgments in other proceedings. 35 ILCS 200/22-45 (West 2008).
¶ 19 Section 2-1401 establishes a comprehensive, statutory procedure that allows for the
vacatur of a judgment older than 30 days. 735 ILCS 5/2-1401 (West 2008); People v. Vincent,
226 Ill. 2d 1, 7 (2007). Section 2-1401(b) provides that the petition must be filed in the same
proceeding in which the order or judgment was entered, but it is not a continuation of the
original action. 735 ILCS 5/2-1401(b) (West 2008). The purpose of a section 2-1401 petition is
to alert the circuit court to facts that, if they had been known at the time, would have precluded
entry of the judgment. People v. Haynes, 192 Ill. 2d 437, 461 (2000).
¶ 20 As an initial pleading, a section 2-1401 petition is the procedural counterpart of a
complaint and subject to all the rules of civil practice that that character implies. Vincent, 226
Ill. 2d at 15. “From the petition’s character as an initial pleading, it follows that the respondent
may answer or move to dismiss the petition either under section 2-615 of the Code [of Civil
Procedure] (735 ILCS 5/2-615 (West 2008)) for failure to state a claim or under section 2-619
of the Code [of Civil Procedure] (735 ILCS 5/2-619 (West 2008)) based on an affirmative
defense ***.” Blazyk v. Daman Express, Inc., 406 Ill. App. 3d 203, 207 (2010). “Where a
motion to dismiss under section 2-1401 is denied, the court should allow the moving party a
chance to answer the allegations contained in the petition.” Manning v. Meier, 114 Ill. App. 3d
835, 840 (1983). “In any event, as with other initial pleadings, barring a default (see 735 ILCS
5/2-1301(d) (West 2008)), no recognized mode of civil practice provides for the grant of a
section 2-1401 petition when the only paper filed has been the petition.” Blazyk, 406 Ill. App.
3d at 207.
-5-
¶ 21 Section 2-1401(f) has been held to have codified the common law means to collaterally
attack a void judgment. 735 ILCS 5/2-1401(f) (West 2008); Ford Motor Credit Co. v. Sperry,
214 Ill. 2d 371, 380 (2005) (a void judgment is, from its inception, a complete nullity and
without legal effect); Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 103 (2002) (a
judgment is void when the court lacks jurisdiction over the subject matter or the parties).
Section 2-1401 expressly differentiates petitions collaterally attacking judgments on voidness
grounds from all other types of collateral attacks. 735 ILCS 5/2-1401(f) (West 2008)
(“Nothing contained in this Section affects any existing right to relief from a void order or
judgment, or to employ any existing method to procure that relief.”); Sarkissian, 201 Ill. 2d at
104; In re Application of the County Collector, 397 Ill. App. 3d 535, 542 (2009). Section
2-1401 petitions attacking a judgment on voidness grounds may be brought at any time and are
not subject to the two-year statute of limitations. Sarkissian, 201 Ill. 2d at 103-04. A section
2-1401(f) petition alleging voidness is also exempt from the general requirements of section
2-1401 petitions, such as, for example, those alleging a meritorious defense or due diligence.
In re Application of the County Collector, 397 Ill. App. 3d at 543; Sarkissian, 201 Ill. 2d at
104.
¶ 22 In this case, the circuit court entered summary judgment in favor of Excalibur Energy
based on its complaint in ejectment. The circuit court held that because Excalibur Energy and
its predecessors had received no notice of the tax deed proceedings, the court in those
proceedings lacked jurisdiction, and the tax deed was void. The circuit court therefore set aside
the tax deed.
¶ 23 Although case law supports the circuit court’s conclusion that a tax deed is void where tax
deed proceedings result in a total failure to provide notice (In re Application of the County
Collector, 397 Ill. App. 3d at 537, 548 (tax deed void because total failure to provide notice
violated due process and means the circuit court never acquired personal jurisdiction over
property owner)), Excalibur Energy’s complaint in ejectment was not a valid attack on the tax
deed. Section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2008))
provided the only vehicle for the plaintiff in this case to vacate the tax deed. See S.I. Securities,
403 Ill. App. 3d at 430.
¶ 24 Excalibur Energy cites Glos v. Patterson to assert that a tax deed can “be negated” in an
action in ejectment. Glos v. Patterson, 195 Ill. 530, 533-34 (1902) (court allowed ejectment
action to eject defendant whose title flowed from tax deed and denied defendant’s request for
taxes and costs, stating that trial court’s judgment was not one setting aside tax deed). In Glos,
however, the court noted that the defendant, in seeking to introduce the tax deeds executed
prior to the execution of the plaintiff’s title, sought not to prove paramount title but to recover
taxes paid. Id.
¶ 25 Excalibur Energy’s reliance on Glos appears anachronistic in light of the clear language of
sections 22-45 of the Property Tax Code and 2-1401 of the Code of Civil Procedure (35 ILCS
200/22-45 (West 2008); 735 ILCS 5/2-1401 (West 2008)), along with the courts’ construction
of these sections and their predecessors since 1902. See Urban v. Lois, Inc., 29 Ill. 2d 542,
546-47 (1963); People ex rel. Wright v. Doe, 26 Ill. 2d 446, 451-52 (1962); Freisinger v.
Interstate Bond Co., 24 Ill. 2d 37, 41-42 (1962); Remer v. Interstate Bond Co., 21 Ill. 2d 504,
510 (1961); Southmoor Bank & Trust Co. v. Willis, 15 Ill. 2d 388, 394-95 (1958) (after 1951
revision of section 266 of the Revenue Act (Ill. Rev. Stat. 1959, ch. 120, ¶ 747), predecessor to
section 22-45 of the Property Tax Code, as well as the 1955 revision of section 72 of the Civil
-6-
Practice Act (Ill. Rev. Stat. 1959, ch. 110, ¶ 72), predecessor to section 2-1401 of the Code of
Civil Procedure, supreme court concluded that tax titles were incontestable except by direct
appeal or pursuant to section 72). Indeed, our conclusion is bolstered by courts addressing this
very issue. See Elliott v. Johnson, 156 Ill. App. 3d 70, 73 (1987) (in view of the statutory
requirement that a tax deed may be challenged only by direct appeal or by a motion pursuant to
section 2-1401, plaintiff’s complaint to quiet title was correctly dismissed); In re Application
of Hamilton County Treasurer, 96 Ill. App. 3d 158, 162 (1981) (provision for bringing of
petition to set aside a tax deed pursuant to section 72 of the former Civil Practice Act (Ill. Rev.
Stat. 1979, ch. 110, ¶ 72) has been held to preclude an attack on tax title through an equitable
proceeding to quiet title); McCann v. Laster, 19 Ill. App. 3d 407, 409 (1974) (“[i]t has been
uniformly and consistently held that in absence of appeal, the court order authorizing issuance
of a tax deed stands as a valid judgment, subject to attack after 30 days, only by a petition filed
under section 72 of the Civil Practice Act,” not by complaint to quiet title); Buschmann v.
Walsh, 120 Ill. App. 2d 242, 245 (1970) (suit to quiet title is not the proper proceeding to
consider a collateral attack upon a judgment of the county court issuing a tax deed).
¶ 26 Moreover, Excalibur Energy’s complaint could not be treated as a petition for relief from
judgment authorizing issuance of the tax deed, in view of the statutory requirement that such
petitions “be filed in the same proceeding in which the order or judgment was entered.” 735
ILCS 5/2-1401(b) (West 2008); McCann, 19 Ill. App. 3d at 409 (complaint to quiet title could
not under any circumstances be treated as a motion for relief of judgment, which must be filed
in the same proceeding in which the order was entered, even though it is not a continuation
thereof). “[A] section 2-1401 proceeding will always involve the same parties as the
underlying case and will always relate back to the original judgment in the underlying case.”
Niemerg v. Bonelli, 344 Ill. App. 3d 459, 466 (2003). “It is filed in the same case in which the
judgment was entered, and the pleading bears the same docket number.” Id.
¶ 27 Accordingly, the plaintiff’s complaint in ejectment should have been dismissed on
Rochman’s motion. See 735 ILCS 5/2-1401 (West 2008); Elliott, 156 Ill. App. 3d at 73;
In re Application of Hamilton County Treasurer, 96 Ill. App. 3d at 162; McCann, 19 Ill. App.
3d at 409; Buschmann, 120 Ill. App. 2d at 245. We therefore reverse the circuit court’s order
granting Excalibur Energy’s motion for summary judgment, and we remand the action to the
circuit court with directions to dismiss Excalibur Energy’s complaint in ejectment.
¶ 28 CONCLUSION
¶ 29 For the reasons stated, we reverse the judgment of the circuit court of Franklin County with
directions to the circuit court to dismiss the plaintiff’s second-amended complaint in
ejectment.
¶ 30 Reversed and remanded with directions.
-7- | 01-03-2023 | 01-22-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/238154/ | 228 F.2d 389
John A. PORTER, a minor, by his Guardian ad Litem, Mrs.Alvarene Jones, Appellant,v.UNITED STATES of America, Appellee.Cecil W. PORTER, Appellant,v.UNITED STATES of America, Appellee.
Nos. 7013, 7014.
United States Court of Appeals Fourth Circuit.
Argued Oct. 7, 1955.Decided Dec. 21, 1955.
John Grimball and C. T. Graydon, Columbia, S.C., for appellants.
Lester S. Jayson, Atty., Department of Justice (Warren E. Burger, Asst. Atty. Gen., N. Welch Morrisette, Jr., U.S. Atty., Irvine F. Belser, Jr., Asst. U.S. Atty., Columbia, S.C., and Paul A. Sweeney, Atty., Department of Justice, Washington, D.C., on the brief), for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
PER CURIAM.
1
These suits were brought under the Federal Tort Claims Act against the United States, one by John A. Porter, a twelve year old boy, through his guardian ad litem, and one by the boy's father, to recover damages for injuries sustained by the boy in June, 1954 when a hand grenade fuse or detonator of army origin, which he had found near his home, exploded in his hand. The question for decision is whether the government was negligent in its care and custody of its explosives so that the detonator came into the boy's possession. The District Judge found no negligence on the part of the United States and dismissed the suit.
2
Cecil W. Porter, the father, was a sergeant in the United States Army and was stationed at Fort Jackson, South Carolina. The Porter family lived in a rented house located about a mile from the Fort in a civilian settlement which included a trailer camp and a number of houses occupied by civilian and Army personnel. The area had been part of a military reservation during the war, but seven years before the accident it had been turned back to private ownership and control and the occupation of the Army was confined to the Fort.
3
There was no public system of garbage disposal for the residents of the area, and the practice grew up of dumping garbage and household trash on the land along the roads or in the open country beyond the Porter home. There was evidence that military trucks also dumped trash and stuff occasionally in the area, but no evidence that they dumped ordinance material at any time.
4
In March 1954 Mrs. Porter and a young son came across some items of military origin in the dump about 300 yards from their home. This incident was reported to Army authorities by Sergeant Porter and an investigation was made and the dangerous materials on the dump were destroyed. The father warned his son not to pick up any Army material in the future. Later in June the boy found some other items on the dump including the detonator which he recognized as Army equipment and took home. Some of the material was marked dangerous. While playing with the detonator he pulled the ring on the fuse and caused the explosion.
5
Fort Jackson covers an area of approximately 320 square miles. Soldiers are trained on the range under simulated battle conditions at various places within this territory. Sometimes the maneuvers occur in total darkness and ammunition may be easily lost although the troops are required to clean the area of ammunition and debris before leaving or on the following day. Records are kept of the issuance, use and return of ordinance material. Even empty boxes are required to be turned back.
6
There was evidence that certain persons living in the vicinity of the Fort and within the area where the Porters lived, made a practice of going on the range within the Fort in order to pick up exploded or live ammunition and other ordinance material which they would burn in order to pick out the brass and other metals and sell them to junk dealers. Sometimes the brasspickers, as they were called, moved into the reservation at night as soon as the firing ceased and before the debris could be cleaned away the next day. Some of the material taken by the brasspickers proved unsalable. The Army made efforts to prevent brasspicking and some of the offenders were imprisoned. Two brasspickers were killed on the range.
7
Under the circumstances the District Judge concluded that the plaintiffs had failed to meet the burden of proof that the fuse which caused the injury had been deposited on the roadside dump as the result of the wrongful act or omission of Army personnel or any one acting with its authority. We are in accord with this conclusion. See United States v. Inmon, 5 Cir., 205 F.2d 681; Rolon v. United States, D.C.P.R., 119 F. Supp. 432.
8
Affirmed. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/3073025/ | In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-14-00043-CV
IN THE ESTATE OF BETTY LOU INGRAM, DECEASED
On Appeal from the County Court at Law
Harrison County, Texas
Trial Court No. 2012-16,610-CCL
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
David J. Ingram and James B. Ingram, appellants, have filed a motion seeking to dismiss
this appeal. Pursuant to Rule 42.1(a)(1) of the Texas Rules of Appellate Procedure, the motion is
granted. See TEX. R. APP. P. 42.1(a)(1).
Accordingly, we dismiss this appeal.
Jack Carter
Justice
Date Submitted: June 10, 2014
Date Decided: June 11, 2014
2 | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2765463/ | Filed 12/30/14 P. v. McDuffie CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A141591
v.
RONALD EVANS MCDUFFIE, (San Francisco County
Super. Ct. No. 220631)
Defendant and Appellant.
Ronald Evans McDuffie appeals from a judgment imposed after revocation of his
probation. His counsel raises no issues and asks this court for an independent review of
the record to determine whether there are any arguable issues. (People v. Wende (1979)
25 Cal. 3d 436.) Defendant was apprised of his right to file a supplemental brief but did
not do so.
On October 1, 2012, in the Merced County Superior Court, defendant waived his
right to a preliminary hearing and pled no contest to corporal injury on a spouse or
cohabitant (Pen. Code, § 273.5(a)). The court suspended imposition of sentence and
placed defendant on probation for three years on conditions including that he serve one
year in the county jail, that he not have any contact with the victim, C.T., and that he
complete a 52-week certified domestic violence treatment program.
The matter was transferred to San Francisco County on July 10, 2013. The court
ordered that probation be extended to September 30, 2015.
On January 27, 2014, the district attorney filed a motion to revoke probation on
the grounds that defendant was terminated from his domestic violence program on
1
December 31, 2013 because he missed four classes without an explanation and he was
involved in another domestic violence incident with the same victim.
The probation revocation hearing was held on February 28, 2014. C.T. testified
that on January 24, 2014, she was living with defendant in his mother’s home when she
got into an argument with him. C.T. pushed defendant; she thought he was about to hit
her. He “grazed” the side of her head with his fist. C.T. called the police. C.T. had lived
with defendant for the past six months.
The court took judicial notice of the probation report insofar as it noted
defendant’s termination from his domestic violence program due to having missed four
classes without an explanation.
The court found by a preponderance of the evidence that defendant violated the
terms of his probation by failing to complete the domestic violence counseling program,
assaulting C.T., and violating the stay-away order by living with her for six months. The
court reinstated defendant on probation on conditions including that he serve one year in
the county jail and complete a 12-month domestic violence program.
Defendant was represented by counsel throughout the proceedings. There was no
error in the sentencing. This court has reviewed the entire record and there are no
meritorious issues to be argued.
The judgment is affirmed.
2
_________________________
Rivera, J.
We concur:
_________________________
Ruvolo, P.J.
_________________________
Reardon, J.
3 | 01-03-2023 | 12-30-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/677943/ | 35 F.3d 553
Johnsonv.Derwinski
NO. 93-6251
United States Court of Appeals,Second Circuit.
Aug 12, 1994
1
Appeal From: D.Conn.
2
AFFIRMED. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1373576/ | 132 Ga. App. 224 (1974)
207 S.E.2d 643
MOUNTAIN HARDWOODS & PINE, INC.
v.
COOSA RIVER SAWMILL COMPANY.
49329.
Court of Appeals of Georgia.
Submitted May 8, 1974.
Decided June 14, 1974.
Rehearing Denied June 26, 1974.
Wright, Walther & Morgan, Robert G. Walther, for appellant.
Rogers, Magruder & Hoyt, Wade C. Hoyt, Jr., for appellee.
STOLZ, Judge.
1. In proceedings under Code Ann. Ch. 61-3 against tenants holding over, the tenant, in order to remain in possession of the premises, is required to pay rent into the registry of the court at the time he files his answer pending the final outcome of the litigation (Code § 61-303, as amended by Ga. L. 1971, pp. 536, 537), where the issue of the right of possession cannot be finally determined within one month from the date of the original affidavit (Code § 61-304, as amended by Ga. L. 1970, pp. 968, 970), and until the issue has been finally determined when the tenant appeals from an adverse judgment (Code § 61-306, as amended by Ga. L. 1970, pp. 968, 971).
2. Under Code Ann. §§ 61-303 and 61-304, prior to their amendment substituting the payment into the registry of the court of the amount of the rent for the tender of bond with good security, this court held that a counter-affidavit being defective because it was not accompanied by the requisite bond, prevented the counter-affidavit from presenting any issue, and left no case before the court to be tried. Realty Management, Inc. v. Keith, 114 Ga. App. 317 (2) (151 SE2d 189). We can see no material or practical distinctions between the conditions precedent of a tender of a bond with good security for the filing of a valid counter-affidavit and the payment of rent for the filing of a valid answer the purpose of both being the sole statutory means by which the tenant can resist the dispossessory warrant. Realty Management, supra, (1) and cit.
3. The record in this case shows that the appellant tenant failed to comply with the above-mentioned *225 statutory condition precedent of paying the rent into the registry of the court "at the time of his [its] answer." Code Ann. § 61-303, supra. Therefore, its answer was defective, hence presented no issue or case to be tried, including the appellant's counterclaim filed with its defective answer. This being true, the trial judge's order allowing the defendant tenant to remain in possession of the real and personal property described in the affidavit for the warrant pending the final outcome, provided it shall pay certain specified rent into the registry of the court and to the transferor of a realty lease was an unauthorized and ineffective attempt retroactively to breathe life into the lifeless, defective pleading.
Accordingly, the affidavit for the dispossessory warrant being in effect unopposed, the plaintiff is entitled to an unqualified warrant, and the trial judge erred in issuing the above-mentioned order. The order is therefore reversed and the case is remanded to the trial court with direction to issue a dispossessory warrant in favor of the plaintiff.
Judgment reversed with direction. Eberhardt, P. J., and Deen, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1373523/ | 535 P.2d 1023 (1975)
Charles HUGHES, Appellant,
v.
The STATE of Oklahoma, Appellee.
No. M-75-174.
Court of Criminal Appeals of Oklahoma.
May 13, 1975.
Rehearing Denied June 5, 1975.
John T. Lawson, Tahlequah, for appellant.
Larry Derryberry, Atty. Gen., Michael Jackson, Asst. Atty. Gen., for appellee.
OPINION
BUSSEY, Judge:
Appellant, Charles Hughes, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Cherokee County, Case No. CRM-73-389, for the crime of Actual Physical Control of a Motor Vehicle While Under the Influence of Intoxicating Liquor (47 O.S. § 11-902). His punishment was fixed at a term of thirty (30) days in the County jail and a fine of One Hundred ($100.00) dollars. From said judgment and sentence, a timely appeal has been perfected to this Court.
Briefly stated, the facts are that on September 3, 1973, at approximately 9:00 p.m., Don Fields, a trooper for the Oklahoma Highway Patrol, was called to investigate an improperly parked vehicle in the Sharon Hills Addition of Cherokee County. Upon arriving at the scene, he observed a 1972 Buick, white over gold, sitting at a 90 degree angle on the roadway. He observed two people in the automobile. The defendant was situated in the front seat with his feet on the front floorboard underneath the steering wheel and his head was down leaning towards the passenger side of the automobile. Trooper Fields *1024 gained entry to the vehicle by arousing the defendant's son who was asleep in the back seat. The ignition key was in the ignition. After arousing the defendant, Trooper Fields observed that the defendant was unstable on his feet, his speech was slurred, his eyes were bloodshot, and he smelled "very strong of alcoholic beverage." In Trooper Fields' opinion the defendant was very intoxicated.
The defendant did not take the stand nor offer any evidence in his behalf.
Defendant's sole assignment of error asserts that the evidence presented in this case was wholly insufficient to support a conviction of the crime of Actual Physical Control of a Motor Vehicle While Under the Influence of Intoxicating Liquor.
In the case of Parker v. State, Okl.Cr., 424 P.2d 997 (1967), this Court held in Syllabi two and three:
"2. Actual physical control, as used in Title 47 O.S.A. § 11-902(a), means: existing or present bodily restraint, directing influence, domination or regulation of any automobile, while under the influence of intoxicating liquor.
"3. If a person has existing or present bodily restraining, directing influence, domination or regulation of an automobile, while under the influence of intoxicating liquor, he commits an offense within the provisions of the statute."
In the case of State v. Wilgus, Ohio Com.Pl., 17 Ohio Supp. 34 (1954), in which the Ohio Supreme Court was construing a statute similar to the instant statute, that court held that the statute defined two distinct offenses, "operating a vehicle," and "being in actual physical control of a vehicle" while intoxicated. The court further held that the control contemplated meant more than the "ability to stop an automobile," but meant the "ability to keep from starting," "to hold in subjection," "to exercise directing influence over," and "the authority to manage."
It is our opinion that the legislature, in making it a crime to be in "actual physical control of a motor vehicle while under the influence of intoxicating liquor," intended to enable the drunken driver to be apprehended before he strikes. As was stated in the case of State v. Harold, 74 Ariz. 210, 246 P.2d 178 (1952):
"... It appears to us to be even more important for the legislature to prevent operators of cars who are under the influence of intoxicating liquors or who are at the time driving recklessly and in wilful and wanton disregard for the safety of persons or property, from entering upon the highways and into the stream of traffic than to permit them to enter thereon and after a tragic accident has happened to punish them for maiming or causing the death of those who are lawfully in the use of such highways... ."
We believe that an intoxicated person seated behind the steering wheel of a motor vehicle is a threat to the safety and welfare of the public. The danger is less than where an intoxicated person is actually driving a vehicle, but it does exist. The defendant when arrested may have been exercising no conscious violation with regard to the vehicle, still there is a legitimate inference to be drawn that he placed himself behind the wheel of the vehicle and could have at any time started the automobile and driven away. He therefore had "actual physical control" of the vehicle within the meaning of the statute. We, therefore, find there was sufficient competent evidence to support the verdict.
Finding no error sufficient to warrant modification or reversal, it is our opinion that the judgment and sentence appealed from should be, and the same is hereby, affirmed.
BRETT, P.J. and BLISS, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1373520/ | 535 P.2d 308 (1975)
Herman MACK, a/k/a Herman Eugene Mack, Appellant,
v.
The STATE of Oklahoma, Appellee.
No. F-74-751.
Court of Criminal Appeals of Oklahoma.
May 7, 1975.
Greg Shanahan, Moore & Shanahan, Atoka, for appellant.
Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., Jim Patton, Legal Intern, for appellee.
*309 OPINION
BUSSEY, Judge:
Appellant, Herman Mack, a/k/a Herman Eugene Mack, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Atoka County, Case No. CRF-73-88, of the offense of Escape From a State Penitentiary, in violation of 21 Ohio St. 1971, § 443. His punishment was fixed at a term of two (2) years' imprisonment, and from said judgment and sentence a timely appeal has been perfected to this Court.
At the trial Robie Battles testified he was employed as Assistant Records Clerk at the Oklahoma State Penitentiary located at McAlester, Oklahoma. His records reflected that the defendant was confined for the commission of the crime of Rape First Degree, After Former Conviction of a Felony, and was serving a sentence of Life from Tulsa County. He identified State's Exhibit No. 1 as a document to be a judgment and sentence of Herman Mack, a/k/a Herman Eugene Mack for Rape First Degree, After Former Conviction of a Felony. Battles further testified he had a photograph of the defendant in his possession which was taken at the Oklahoma State Penitentiary.
Ray Williams, Supervisor at the McLeod Honor Farm, testified that as he was leaving the dormitory at approximately 5:15 a.m. on November 14, 1973, he observed a truck leaving the compound. Thereafter the warden, Hayden McCasland, was notified and a count was made of the inmates.
Hayden McCasland, Superintendent of the McLeod Honor Farm, testified that on November 14, 1973, three inmates escaped from the honor farm. He identified the defendant as one of the three inmates who had escaped. The three inmates accomplished their escape by "hot wiring" a 1968 Chevrolet pickup that belonged to an employee who worked at the honor farm.
*310 Pete Anderson testified he was employed as a Correction Officer at the McLeod Honor Farm. In this capacity he took care of the blood hounds which were used to trial escapees. He began his search for the three escapees at the Atoka High School. The defendant was apprehended on the same day that he escaped. He was taken into custody at a location one block south of Oklahoma State Highway 3 and east of Atoka approximately 28 miles from the honor farm. He was the officer who recognized the defendant and effected his arrest.
The State then rested.
Billy Joe McQuarters testified that he was currently incarcerated at the McAlester State Penitentiary. He escaped at the same time as the defendant. The defendant was not present at the time plans were made to escape. He stated that he convinced the defendant to leave the prison. McQuarters further testified that approximately four miles from Atoka the defendant wanted to be let out of the pickup so that he could return to the prison before he was missed. Subsequently, the defendant was let out in Atoka near a dead end street.
Eugene Monroe testified he was presently incarcerated at the McAlester State Penitentiary. He escaped from the McLeod Honor Farm with Billy Joe McQuarters and the defendant. The escape was planned without the aid of the defendant. The defendant was let out of the pickup in Atoka.
The defendant's first proposition of error asserts that the trial court erred in admitting a purported judgment and sentence of the defendant for the reason that the defendant was not properly identified as the same Herman Mack, a/k/a Herman Eugene Mack as that represented in the judgment and sentence. In support of this argument, counsel submits the rule recited in Claunch v. State, Okl.Cr., 501 P.2d 850 (1972) which generally sets forth that it is incumbent upon the State in a prosecution for escape to set forth the reasons and grounds for which defendant is legally incarcerated in the institution from which he is alleged to have escaped. This same contention was answered in the recent case of Pickens v. State, Okl.Cr., 530 P.2d 1369 (1975), wherein this Court stated:
"It is an accepted rule that this proof is satisfied by the introduction of the judgment and sentence upon which defendant was serving time at the time he was alleged to have escaped. Defense counsel by analogy urges the language in Baker v. State, Okl.Cr., 432 P.2d 935 (1967) which states that the proof of a former conviction of an offense alleged after former convictions must satisfy the rule `It is necessary for the identity of the accused to be established as one and the same person as that person convicted of the prior offense.' We do not disagree with defense counsel's assertion that the proof must sustain the person alleged to have escaped must be identified as the same person incarcerated under the judgment and sentence introduced at the trial as basis for showing the grounds of his incarceration. In the case of Williams v. State, Okl.Cr., 364 P.2d 702 (1961), however, we held in the first paragraph of the Syllabus:
"`In regard to proof of former conviction under the Habitual Criminal Act, 21 O.S. (1951) § 51, the identity of name of the defendant and the person previously convicted is prima facie evidence of identity of person, and, in the absence of rebutting testimony, supports a finding of such identity. This will leave the question of identity to be determined by the jury, after a proper instruction has been given, upon a consideration of all surrounding facts and circumstances, such as commonness or unusualness of the name, the character of the former crime or crimes, and the place of its commission.'
"We observe that the same application of the above rule should be made in the instant case."
*311 Defendant's second proposition of error asserts the District Attorney committed reversible error in his closing argument to the jury when he advised the jury that the defendant would be eligible for parole in 15 years.
The record reveals the following complained of closing argument by the District Attorney:
"The Counsel said to you this gentleman is in prison for life what else is there? What counsel failed to tell you is that he is eligible for parole in fifteen years "
This type of argument is improper and should not be permitted. See, Roquemore v. State, Okl.Cr., 513 P.2d 1318 (1973), and Herandy v. State, Okl.Cr., 487 P.2d 1368 (1971). However, in the instant case, due to the overwhelming evidence of guilt and due to the fact that the defendant received the minimum punishment provided by law, it is our opinion that any error was harmless and is not sufficient to require reversal of this case.
Judgment and sentence is affirmed.
BLISS, J., concurs.
BRETT, P.J., concurs in results. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1373515/ | 207 S.E.2d 282 (1974)
22 N.C. App. 676
Bruce VAN BROOKS
v.
Harry K. BOUCHER, Administrator of the Estate of John Henry Dobbins.
No. 7429SC477.
Court of Appeals of North Carolina.
August 7, 1974.
Certiorari Denied November 8, 1974.
*283 Hamrick & Hamrick by J. Nat Hamrick, Rutherfordton, for plaintiff appellant.
Morris, Golding, Blue & Phillips by James N. Golding, Asheville, for defendant appellee.
Certiorari Denied by Supreme Court November 8, 1974.
BALEY, Judge.
When defendant moves for a directed verdict, the evidence must be considered in the light most favorable to the plaintiff. Anderson v. Butler, 284 N.C. 723, 202 S.E.2d 585; Homes, Inc. v. Bryson, 273 N.C. 84, 159 S.E.2d 329. Considered in this manner, the evidence in this case tends to show the following: Higgins Cafe is located on the south side of Main Street, which runs east and west in the town of Spindale. Oak Street intersects with Main Street at a point 120 to 145 feet east of Higgins Cafe. On 16 February 1968, plaintiff was fourteen years old. He and a group of other boys went to Spindale about 10:30 p. m. and ate at Higgins Cafe. After they finished their meal about an hour later, they left the cafe and walked or jogged eastward on the south side of Main Street and crossed to the north side. The evidence is somewhat vague as to the exact place of the crossing and ranged, by plaintiff's estimates, between 15 and 75 feet west of the intersection. In the light most favorable to him, plaintiff's evidence is clear that he was crossing at a point which was not within a pedestrian crosswalk, either marked or unmarked. Before starting across the street, plaintiff looked for approaching traffic and did not see any. When he reached the center line of Main Street, plaintiff again looked for oncoming traffic, and he observed Dobbins' car about six or eight feet away, approaching him from the right. Plaintiff did not have time to get out of the path of Dobbins' car, and the car struck him. He "was slung up on the hood of the car and . . . fell off on the pavement," and suffered a broken leg. Dobbins was charged with speeding in excess of 20 miles per hour in a 20-mile zone and pleaded guilty.
*284 Plaintiff's evidence shows that he crossed Main Street just to the west of its intersection with Oak Street, at a point where there was no marked or unmarked crosswalk. Under G.S. § 20-174(a), a pedestrian crossing a street at a point other than a marked or unmarked crosswalk must yield the right-of-way. Failure to yield the right-of-way is not negligence per se, Blake v. Mallard, 262 N.C. 62, 136 S.E.2d 214, but it does constitute evidence of negligence. Blake v. Mallard, supra; Anderson v. Mann, 9 N.C.App. 397, 176 S.E.2d 365. A pedestrian who crosses the street at a point where he does not have the right-of-way must constantly watch for oncoming traffic before he steps into the street and while he is crossing. Rosser v. Smith, 260 N.C. 647,133 S.E.2d 499; Garmon v. Thomas, 241 N.C. 412, 85 S.E.2d 589. If he sees a vehicle approaching him, he must move out of its path. Anderson v. Carter, 272 N.C. 426, 158 S.E.2d 607; Price v. Miller, 271 N.C. 690, 157 S.E.2d 347. A pedestrian who fails to take these precautions cannot be said to exercise reasonable care for his own safety.
In this case plaintiff testified that he looked for approaching traffic before he began to cross Main Street. But after he started across the street, he did not look for oncoming traffic again until he reached the center line. If he had looked to his right during this interval, he could have seen Dobbins' car and would have had time to get out of its path. Plaintiff's failure to watch for approaching vehicles while crossing the street and to yield the right-of-way constitutes contributory negligence, and this negligence was one of the proximate causes of his injury.
A fourteen-year-old child may be held contributorily negligent as a matter of law. See Welch v. Jenkins, 271 N.C. 138, 155 S.E.2d 763; Van Dyke v. Atlantic Greyhound Corp., 218 N.C. 283, 10 S.E.2d 727; Edwards v. Edwards, 3 N.C.App. 215, 164 S.E.2d 383.
The trial court properly granted defendant's motion for a directed verdict, and its judgment is affirmed.
Affirmed.
MORRIS and VAUGHN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1373522/ | 207 S.E.2d 323 (1974)
22 N.C. App. 519
CAPE FEAR ELECTRIC COMPANY, INC.
v.
STAR NEWS NEWSPAPERS, INC., Original Defendant, et al., Additional Defendants and Third-Party-Plaintiffs,
v.
HENRY VON OESEN & ASSOCIATES, INC., Third-Party-Defendants.
No. 735DC438.
Court of Appeals of North Carolina.
August 7, 1974.
Certiorari Denied September 24, 1974.
*326 Poisson, Barnhill, Butler & Martin by M. V. Barnhill, Jr., Wilmington, for plaintiff appellant.
Stevens, McGhee, Aycock, Morgan & Lennon by Ellis L. Aycock, Wilmington, for original defendant appellee.
Certiorari Denied by Supreme Court September 24, 1974.
PARKER, Judge.
Where the language of a contract is plain and unambiguous the court rather than the jury will declare its meaning, Yates v. Brown, 275 N.C. 634, 170 S.E.2d 477, but where the language employed by the parties is ambiguous the jury may be called upon to determine the true intent of the parties from the words employed by them to express their agreement, Lumber Co. v. Construction Co., 249 N.C. 680, 107 S.E.2d 538. Here, the written contract failed to state clearly and expressly whether the heavier and more expensive rigid conduit or the lighter and less costly EMT was required for carrying the electrical circuits *327 through the concrete floor slabs, and careful analysis of all of the contract documents leaves the answer in doubt. At the least, a factual question was presented for the jury to determine whether the EMT which Contractor proposed to install in the floors would be "subject to severe physical damage," either "during installation or afterward," and whether it was "made of a material judged suitable for the condition," requirements made by The National Electrical Code for use of EMT. Thus, if this appeal presented solely the question of which material was required by the contract, the matter would have been one for the jury to determine and directed verdict would have been improper. Such a case would have been presented had Contractor persisted in installing EMT and Owner had thereafter contended this constituted a breach of the contract. Here, however, Contractor did not install EMT but installed the more expensive conduit, and the question presented by this appeal is whether, after viewing the evidence in the light most favorable to Contractor, the Contractor has shown any right to recover from the Owner the increased cost of the more expensive material. We hold that no such showing was made and that directed verdict for Owner was therefore appropriate.
In so holding, we do not base our decision on the "final billing" contained in Contractor's letter to Owner of 4 November 1970 showing a "Total Due" of $8,636.54 and the subsequent payment and acceptance of that amount. This was one of the grounds upon which the trial judge relied in directing verdict for the Owner, but in our opinion the facts of this case distinguish it from the situation presented in Phillips v. Construction Co., 261 N.C. 767, 136 S.E.2d 48, in that regard. Article 9 of AIA Document A201, General Conditions of the Contract for Construction, which was incorporated into the contract between Contractor and Owner, contains the following:
"9.7.6 The acceptance of final payment shall constitute a waiver of all claims by the Contractor except those previously made in writing and still unsettled." (Emphasis added.)
Here, the disputed claim for $4,716.84 had been previously made in writing and was still unsettled. In addition, this very action for recovery of the extra cost of installing the more expensive conduit had already been filed and was pending in court when Contractor's letter of 4 November 1970 showing a total due of $8,636.54 was sent, Contractor had been expressly directed to omit its claim for the extra cost of the conduit from its billing to Owner, and there was no dispute that Contractor was entitled to receive the $8,636.54 as billed. Under these circumstances we do not believe that any party involved intended or understood that this lawsuit was being settled or that Contractor was waiving the claim which is the basis of this lawsuit by the billing for and the payment and acceptance of the $8,636.54.
In our opinion the order directing verdict dismissing Contractor's claim was required by other provisions of the contract. Article 12 of the General Conditions of the Contract for Construction deals with changes in the work and provides that all such changes shall be authorized by Change Order. Article 12 contains the following:
"12.1.2 A Change Order is a written order to the Contractor signed by the Owner and the Architect, issued after the execution of the Contract, authorizing a Change in the Work or an adjustment in the Contract Sum or the Contract Time. Alternatively, the Change Order may be signed by the Architect alone, provided he has written authority from the Owner for such procedure. The Contract Sum and the Contract Time may be changed only by Change Order.
* * * * * *
"12.2 CLAIMS FOR ADDITIONAL COST OR TIME
"12.2.1 If the Contractor wishes to make a claim for an increase in the Contract Sum or an extension in the Contract Time, he shall give the Architect written *328 notice thereof within a reasonable time after the occurrence of the event giving rise to such claim. This notice shall be given by the Contractor before proceeding to execute the Work, except in an emergency endangering life or property in which case the Contractor shall proceed in accordance with Subparagraph 10.3.1. No such claim shall be valid unless so made. If the Owner and the Contractor cannot agree on the amount of the adjustment in the Contract Sum or the Contract Time, it shall be determined by the Architect. Any change in the Contract Sum or Contract Time resulting from such claim shall be authorized by Change Order." (Emphasis added.)
In the present case, all of the evidence shows that no Change Order was issued changing the Contract Sum to reflect the increased cost to Contractor of installing conduit rather than EMT, and there is no evidence that Owner agreed to any modification of or waiver of its rights under the foregoing contract provisions. The case then comes down to this: If the correct interpretation of the contract specifications is as Owner, Architects and Engineers have consistently contended, and Contractor was required by these specifications to install rigid conduit rather than EMT in the floors, then when Contractor did so, it did no more than it was originally obligated to do and is entitled to no extra compensation. On the other hand if the correct interpretation is as Contractor contends, and Contractor could comply with those specifications by installing the less expensive EMT, then a Change Order was required before Owner could be bound to pay for the increased cost incurred by Contractor when it installed the more expensive conduit. Although Contractor installed the conduit only at the insistence of Engineers, and there was evidence that Owner relied upon Architects who in turn relied upon Engineers to prepare and interpret the contract specifications relating to the electrical work, there was no evidence that Owner appointed Engineers its agent or in any other manner authorized Engineers to obligate Owner to any increase in the amount Owner was bound to pay Contractor for work performed under the contract. For example, had Engineers insisted that the specifications required Contractor to install conduit made of gold and had Contractor done so even though under protest, we suppose no one would contend that Owner should be bound to pay Contractor for its increased cost absent a Change Order issued in the manner and as authorized in the contract between Owner and Contractor. While the present case is not so extreme, the same principle applies. We conclude that the order directing verdict dismissing Contractor's claim against Owner was properly entered.
In addition to assigning error to entry of that order, Contractor made assignments of error to rulings of the trial judge admitting or excluding evidence. However, it is not necessary for us to discuss these, since had the judge's ruling in each instance been as Contractor contends it should have been directed verdict for Owner would still have been properly entered. Accordingly, the judgment appealed from is
Affirmed.
BRITT and MORRIS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1373545/ | 14 Cal. 3d 598 (1975)
535 P.2d 1181
121 Cal. Rptr. 725
In re ALBERT B. DEMILLO on Habeas Corpus.
Docket Nos. Crim. 18317, 18396.
Supreme Court of California. In Bank.
June 13, 1975.
*600 COUNSEL
Arthur Brunwasser for Petitioner.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, W. Eric Collins and Sanford Svetcov, Deputy Attorneys General, for Respondent.
OPINION
RICHARDSON, J.
On November 15, 1973, petitioner Albert B. Demillo entered a plea of guilty to an information charging him with a violation of Penal Code section 288. On December 6, 1973, judgment was entered; petitioner was sentenced to state prison but execution of that sentence was suspended and three years probation imposed on condition that he serve one year in county jail and seek psychiatric care under the direction of the probation department.
In two separate petitions, Demillo seeks habeas corpus relief from this judgment. In one of his petitions (Crim. 18396), he raised the following questions: (1) Is the possibility of deportation such a "direct consequence" of pleading guilty, that the trial court should be required to admonish a defendant of the possibility prior to acceptance of his guilty plea? (Cf. Boykin v. Alabama (1969) 395 U.S. 238, 242 [23 L. Ed. 2d 274, 279, 89 S. Ct. 1709]; People v. Superior Court (Giron) (1974) 11 Cal. 3d 793, 797 [114 Cal. Rptr. 596, 523 P.2d 636]; In re Tahl (1969) 1 Cal. 3d 122, 132 [81 Cal. Rptr. 577, 460 P.2d 449].) (2) Did the trial court abuse its discretion in refusing to allow petitioner to withdraw his guilty plea upon a showing that he had not in fact been aware of the possibility of deportation? (See People v. Superior Court (Giron), supra, 11 Cal.3d at p. 797, fn. 5.) (3) Was petitioner denied adequate assistance of counsel by reason of the failure of his court-appointed attorney to discover that petitioner is an alien and to inform him that a guilty plea would likely result in his being deported?
In his other petition (Crim. 18317), petitioner asserts that the conviction is invalid in that the acts upon which it is based occurred sometime prior to September 29, 1968, the information was not filed until October 29, 1973, and therefore the applicable statute of limitations *601 (Pen. Code, § 800) barred the action. Alternatively, petitioner argues that he was denied effective assistance of counsel by his court-appointed attorney's failure to raise the statute of limitations defense in the superior court.
We issued orders in both matters directing the probation officer to show cause why the requested relief should not be granted, and further ordered that they be consolidated. We have concluded that resolution of the statute of limitations issue is dispositive, and that petitioner's conviction must be vacated on that ground. Therefore, it is unnecessary to consider the other questions presented by the petitions.
(1) It has long been established that the statute of limitations is jurisdictional in nature, and that "[t]he point may therefore be raised at any time, before or after judgment." (People v. McGee (1934) 1 Cal. 2d 611, 613 [36 P.2d 378].) (2) The defense is thus cognizable on habeas corpus, and is not waived by a failure to assert it below. (In re Davis (1936) 13 Cal. App. 2d 109, 111 [56 P.2d 302].)
Penal Code section 800 requires that an information charging a violation of a felony (with exceptions not applicable here) be filed within three years after the commission of the offense. When filed, "[a]n accusatory pleading must allege facts showing that the prosecution is not barred by the statute of limitations [citations], and if a period of time in excess of that permitted by the statute has elapsed since the commission of the offense, further facts must be alleged to show absence of the defendant from the state for a sufficient period to toll the statute under Penal Code section 802. [Citations.]" (People v. Crosby (1962) 58 Cal. 2d 713, 724-725 [25 Cal. Rptr. 847, 375 P.2d 839].) Penal Code section 802 provides that no time during which the defendant is absent from the state "... is a part of any limitation of the time for commencing a criminal action." The burden of proof is on the People to show that the offense was committed within the time provided in section 800, or that the exception contained in section 802 is applicable; a failure to do so will result in a vacation of the judgment. (Crosby, at p. 725.)
In McGee, Crosby and Davis the fact that the statute of limitations had expired was apparent from the face of the accusatory pleading. (See also Sobiek v. Superior Court (1972) 28 Cal. App. 3d 846, 848 [106 Cal. Rptr. 516]; People v. Rose (1972) 28 Cal. App. 3d 415, 417 [104 Cal. Rptr. 702].) Here, in contrast, the information is silent as to the date of the alleged offense. However, the record reveals that the complaint, filed on October *602 4, 1968, alleges that the acts took place between July 3, 1968, and September 29, 1968. Furthermore, at the preliminary hearing, the People's chief witness testified that the acts complained of were committed in September 1968. Finally, respondent has conceded in its return to the order to show cause that the offense occurred at that time.
Given the foregoing facts of record, petitioner's right to relief is not affected by the fact that violation of section 800 does not appear on the face of the information. (3) On the contrary, the failure of the information to allege any date at all itself seems fatal to the validity of the conviction since "[a]n accusatory pleading must allege facts showing that the prosecution is not barred by the statute of limitations ..." (People v. Crosby, supra, 58 Cal.2d at p. 724), and an information which is silent as to the date of the offense is inadequate in this regard.
(4) The information in the instant case was filed over two years subsequent to the expiration of the period of limitations. There being no allegation of facts in the information, which, if supported by competent evidence, would excuse this delay by showing the defendant's absence from the state for that amount of time (Pen. Code, § 802), the trial court lacked jurisdiction in the matter. Therefore, the conviction must be vacated. (People v. McGee, supra, 1 Cal. 2d 611, 613; People v. Crosby, supra, 58 Cal. 2d 713, 722; People v. Rose, supra, 28 Cal. App. 3d 415, 417.)
In its return filed in these proceedings, respondent for the first time attempts to establish that petitioner was in fact absent from the state and that prosecution accordingly was not barred by section 800. However, no effort has been made to remedy the defects in the information, and "[i]n harmony with the McGee case, it may be said that if the statute of limitations is tolled by the absence of the defendant from the state as provided by section 802 of the Penal Code it becomes necessary to allege that fact in the information to constitute a good cause of action." (In re Davis, supra, 13 Cal. App.2d at p. 111.) The principal focus of our inquiry in this proceeding is on the content of the information (see In re McGee (1938) 29 Cal. App. 2d 648, 650 [85 P.2d 135]), and that document is clearly insufficient to support petitioner's conviction.
There is some support for the proposition that if a criminal defendant fails to raise the statute of limitations defense at trial, the People should be permitted to cure the defect in collateral proceedings by offering new evidence on the issue of defendant's absence from the state. (Note, Criminal Law: Effect of Failure of Accused to Raise the Issue of the *603 Statute of Limitations (1935) 23 Cal.L.Rev. at pp. 525-527.) (5) In the usual instance the inquiry on habeas corpus is limited to the face of the record, but in exceptional circumstances we may look to all proceedings below and even consider additional evidence outside the record. (In re Carmen (1957) 48 Cal. 2d 851, 854 [313 P.2d 817].) (6) However, while we have the power to consider new evidence in habeas corpus proceedings, either in support of or against petitioner's imprisonment (In re McVickers (1946) 29 Cal. 2d 264, 274, 280 [176 P.2d 40]), this is not an appropriate case in which to exercise our discretion in that regard. To allow respondent to present evidence for the first time on the tolling issue at this stage would require us to make factual determinations regarding petitioner's whereabouts between 1968 and 1973. (7) It is elementary that our function is primarily that of "a reviewing court, not designed to conduct evidentiary hearings." (In re Hochberg (1970) 2 Cal. 3d 870, 873 [87 Cal. Rptr. 681, 471 P.2d 1].)
The writ is granted. The judgment is vacated, and petitioner is discharged from the restraints thereof.
Wright, C.J., McComb, J., Tobriner, J., Mosk, J., Sullivan, J., and Clark, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1373582/ | 207 S.E.2d 263 (1974)
22 N.C. App. 663
STATE of North Carolina
v.
Ada MITCHELL and Jewel Henry Mitchell.
No. 736SC506.
Court of Appeals of North Carolina.
August 7, 1974.
*264 Atty. Gen. Robert Morgan by Associate Atty. E. Thomas Maddox, Jr., Raleigh, for the State.
Jones, Jones & Jones by Carter W. Jones and L. Herbin, Jr., Ahoskie, for defendants-appellants.
PARKER, Judge.
A Hertford County ABC enforcement officer and an Ahoskie City policeman testified to searching defendants' residence and finding nontaxpaid liquor therein. This evidence was sufficient to require submission of the cases to the jury and defendants' motions for nonsuit were properly denied. The question presented by this appeal is the validity of the search and the admissibility in evidence of its results.
Evidence presented at the voir dire hearing held to determine validity of the search was not in dispute. At approximately 10:30 a. m. on 4 November 1972 the officers went to defendants' residence. They did not have a search warrant. Without knocking or otherwise announcing their presence, they forced open a locked storm door which led into the kitchen at the rear of the dwelling. They immediately entered and commenced the search. Present in the house at the time were the two defendants, an older lady, and a young boy. The officers believed their entry into the house and the warrantless search were justified by the terms of suspended sentences which had previously been imposed on the defendants. By identically worded judgments entered in the district court on 18 May 1972, each defendant had been found guilty of a misdemeanor violation of North Carolina liquor laws and given a six-month prison sentence, suspended upon condition that each defendant pay a $25.00 fine and costs and not violate the prohibition laws, either state or federal, for a period of two years. Each judgment then contained the following: "[T]he defendant in open court agrees that any lawful officer of Hertford County be allowed to conduct a search of [defendant's] premises at a reasonable hour without a search warrant for the purpose of searching for illegal liquor."
At the conclusion of the voir dire hearing the trial court found that the officers entered the house of the defendants by virtue of the provisions of the prior judgments "wherein the defendants consented for their residence to be searched without a search warrant," and therefore found "that the search was legal in all respects, and it is in evidence that the witness entered the residence of the defendants through the back door, the back storm door, which was locked at the time." On these findings the court overruled defendants' objections and allowed the officers to testify before the jury concerning the search and what they found thereby.
We find valid the conditions of the prior suspended sentences by which defendants gave consent to search of their premises at reasonable hours without a search warrant. G.S. § 15-199 recognizes a wide variety of conditions which may be imposed upon suspension of sentence, many of which touch upon and curtail rights guaranteed by State and Federal Constitutions. Rights guaranteed by the Fourth Amendment may be waived, Zap v. United States, 328 U.S. 624, 66 S. Ct. 1277, 90 L. Ed. 1477 (1946), and the voluntary consent to a warrantless search of one's premises will render competent evidence obtained by the search. State v. Little, 270 N.C. 234, 154 S.E.2d 61. We see no sound reason why such waiver and consent may not effectively be given by agreeing thereto as one of the conditions of a suspended sentence. This should especially be true where, as here, such a condition is *265 clearly designed to facilitate the State's supervision of the probationer's rehabilitation.
This is not to say, however, that the search in the present case was valid. By agreeing that the officers might "conduct a lawful search of [their] premises at a reasonable hour without a search warrant," defendants did not simultaneously waive their right to insist that the search be conducted in an otherwise lawful manner. Specifically, they did not agree that the officers might make an unannounced breakin through a locked door. Our Supreme Court has cautioned that even though police officers have a valid search or arrest warrant, ordinarily they may not enter a private home unless they first give notice of their authority and purpose and make a demand for entry. State v. Sparrow, 276 N.C. 499, 173 S.E.2d 897. This requirement is made as much for the protection of the officers as for the protection of the occupants and their constitutional rights. State v. Covington, 273 N.C. 690, 161 S.E.2d 140. The all too frequently tragic consequences of no-knock entries have been well documented in recent years.
Here, nothing in the prior judgments gave the officers the right to break unannounced into defendants' home. They should have first announced their presence and requested entry. Had entry been refused, defendants as probationers could have been cited for violation of the terms of their probation, G.S. § 15-200, and upon a finding that the conditions had been violated, the previously suspended sentences could have been put into effect.
The method of entry chosen by the officers rendered their search illegal, and the evidence obtained was not competent at defendants" trial. G.S. § 15-27(a). For error in overruling their objections to this evidence, defendants are entitled to a
New trial.
BRITT and MORRIS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1373863/ | 215 Or. 417 (1959)
335 P.2d 843
MOORE
v.
SATER ET AL
Supreme Court of Oregon.
Argued February 11, 1959.
Affirmed February 25, 1959.
*418 On briefs.
Floyd D. Moore, pro se, B.G. Skulason, Portland, for appellant.
Don Eva and Bartlett Cole, Portland, for respondent.
AFFIRMED.
PERRY, J.
This is a libel action brought by the plaintiff Floyd D. Moore, an attorney duly licensed to practice law in the state of Oregon, against the defendants, who reside in Portland, Oregon.
The plaintiff, in general, alleges in his complaint that he is a reputable attorney practicing in Portland, and a friend of and had been attorney for one Hulda Hollander and her deceased husband. That Hulda Hollander desired to transfer her real property to the plaintiff and his wife, and this she did. She also named the plaintiff executor and residuary legatee in her will. In August, 1954, plaintiff, upon advice of a psychiatrist, caused Mrs. Hollander to be committed to the Eastern Oregon State Hospital and later in that month he petitioned the probate department of the circuit court of Multnomah County to be appointed guardian of the person and estate of Mrs. Hollander. Thereafter the defendants, describing themselves as neighbors and friends of Mrs. Hollander, filed a written document with the circuit court protesting the appointment of the plaintiff as guardian of the person and estate of Mrs. Hollander, in which they stated plaintiff "served said Hulda Hollander as a confidant, *419 and while laboring under mental adversities said Floyd D. Moore [plaintiff] induced said Hulda Hollander, and said Hulda Hollander did them and there on or about October 28, 1953, convey to said Floyd D. Moore title to said real property, reserving in herself a life estate, and in addition thereto, said Hulda Hollander paid and delivered unto said Floyd D. Moore all property to her belonging, except and for a sum or sums amounting to $500.00 or thereabouts as the petition of said Floyd D. Moore indicates." From this allegation and others, the plaintiff by innuendo draws the conclusion that the plaintiff was libelled because it was stated he had wrongfully deprived Mrs. Hollander of her property and caused her wrongfully to be incarcerated in the state hospital.
The defendants filed a demurrer to plaintiff's complaint. The trial court sustained the demurrer and the plaintiff has appealed.
It is the contention of the plaintiff that the statements made by the defendants in their protest against his appointment were libelous per se and not being absolutely privileged, the demurrer was erroneously sustained.
1. It is a rule of law of general application that statements made in pleadings filed in a judicial proceeding if relevant to the issue, although libelous, are absolutely privileged and no action will lie based on the statements made. Grubb v. Johnson et al., 205 Or 624, 289 P2d 1067; McKinney v. Cooper, 163 Or 512, 98 P2d 711.
In Grubb v. Johnson, supra, we approved the statement of the general rule found in 33 Am Jur 123, Libel and Slander § 125, as follows:
"An absolutely privileged communication is one in respect of which, by reason of the occasion on *420 which, or the matter in reference to which, it is made, no remedy can be had in a civil action, however harsh it may bear upon a person who claims to be injured thereby, and even though it may have been made maliciously.
"The class of absolutely privileged communications is narrow and is practically limited to legislative and judicial proceedings and other acts of state, including, it is said, communications made in the discharge of a duty under express authority of law, by or to heads of executive departments of the state, and matters involving military affairs. The privilege is not intended so much for the protection of those engaged in the public service and in the enactment and administration of law, as for the promotion of the public welfare, the purpose being that members of the legislature, judges of courts, jurors, lawyers, and witnesses may speak their minds freely and exercise their respective functions without incurring the risk of a criminal prosecution or an action for the recovery of damages."
It is the plaintiff's contention the defendants were not parties to these proceedings and, therefore, cannot claim the privilege granted litigants.
2. If those named by statute as necessary parties are the only permissible parties, the plaintiff is correct, for the only necessary parties to a proceeding for the appointment of a guardian for an incompetent person is the petitioner, the incompetent, and the person having custody and control of the incompetent. ORS 126.120, 126.125, 126.130.
3. We are of the opinion, however, that a court of probate jurisdiction has discretion to permit those who have knowledge of situations or conditions to appear as parties in a proceeding relating to the appointment of a guardian to aid the court in its judicial determination. In Re Mignerey, 11 Wash2d 42, 118 P2d 440.
For all that appears in plaintiff's complaint, the *421 probate department of the circuit court of Multnomah County did just this by considering these objections to the plaintiff's petition for appointment.
There can be no question of the relevancy of the allegations made in defendants' petition filed in the circuit court, as alleged in plaintiff's complaint. These allegations of themselves show a conflict of interest between the plaintiff and Mrs. Hollander. For, while it would be of benefit to the plaintiff to conserve the estate of Mrs. Hollander, the restriction of expenditures might work to the detriment of the ward's welfare.
4, 5. The plaintiff also argues that for a party to appear as a permissible party in such a proceeding, he must be a party who is to be benefited or injured by the judgment of the court, that is, be a real party in interest. The general statutory proviso that "every action or suit shall be prosecuted in the name of the real party in interest" (ORS 13.030) has no application to a proceeding for the appointment of a guardian. Such a proceeding is neither an action or a suit, but is equitable in nature, designed for the protection of those who are so unfortunate as to be unable to protect themselves. It is not an adversary proceeding for the benefit of those who may later have an interest in an incompetent's property, although they may indirectly benefit from the conservation of the incompetent's estate.
Likewise, guardianship proceedings are governed by their own statutory requirements and we find no requirement that even the person petitioning the appointment of a guardian have a beneficial interest in the outcome of the proceedings.
There is no merit in this contention of the plaintiff's.
*422 6. Since in our view the petition of the defendants' was properly filed in the trial court as a part of its proceedings, and the statements in the defendants' petition objecting to the appointment of the plaintiff are relevant and privileged, it is not necessary to determine whether or not they are, in fact, libelous.
The judgment of the trial court is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1373679/ | 132 Ga. App. 44 (1974)
207 S.E.2d 573
CENTENNIAL EQUITIES CORPORATION
v.
HOLLIS.
49115.
Court of Appeals of Georgia.
Submitted March 6, 1974.
Decided May 10, 1974.
Rehearing Denied June 4, 1974.
Hansell, Post, Brandon & Dorsey, Dent Acree, for appellant.
Howard, Howard & Hall, William V. Hall, Jr., for appellee.
EVANS, Judge.
On July 28, 1972, William A. Hollis filed and recorded a lien for labor and materials used for improvement of real estate of Multicon and Centennial Equities Corporation. It was alleged that the lien was filed within 3 months from date when labor and material were furnished. It was alleged that the labor and material were furnished at the instance of Multicon Construction Corporation. Here let it be noted that Multicon (one of those against whom the lien was filed) is a limited partnership of Ohio; while Multicon Construction Corporation (at whose instance the labor and materials were furnished) is an Ohio corporation.
On June 4, 1973, Hollis sued Centennial Equities Corporation for $25,642.14 for labor and materials furnished to it, the same amount as was set out in the lien, and a copy of the lien attached to the complaint. A special lien was also sought against the property. Service was accomplished upon the foreign corporation's agent for service. No answer was filed, and on July 23, 1973, a default judgment in the amount sought and special lien on the property were awarded. On October 10, 1973, three terms later, a motion to set aside the judgment was filed by defendant, and rule nisi issued. The motion to set aside did not pray the opening of the default, but alleged that the judgment was void and should be set aside. A hearing on the rule nisi was held, and the court denied the motion to set aside the special lien on the property, stating that the plaintiff had stipulated the in personam (money) judgment against defendant was void. Defendant appeals. Held:
1. In order to set aside this judgment the pleadings must affirmatively show that no claim in fact existed. *45 Code Ann. § 81A-160 (Ga. L. 1966, pp. 609, 662; 1967, pp. 226, 239, 240). City of Cornelia v. Gunter, 227 Ga. 464 (181 SE2d 489).
2. Defendant argues that an entry of judgment without a jury is void. But under Section 39 of the law creating that court, a jury trial must be demanded as specifically provided in Ga. L. 1935, pp. 500, 503. Indeed, this court has held that where no jury is demanded it is not error to try the issue without a jury. Cherry v. McCutchen, 68 Ga. App. 682, 690 (23 SE2d 587); Owen v. Stevenson, 18 Ga. App. 391 (89 S.E. 435).
In the absence of any showing of improper service (lack of notice), the failure of defendant to demand a jury trial pursuant to Section 39, supra, is a waiver of right to trial by jury.
3. The lien attached to the complaint clearly shows it substantially met the requirements of Code Ann. §§ 67-2001, 67-2002. The lien states it was filed within three months after labor and materials were furnished at the instance of a nonresident. The law requires suit to be filed, "within 12 months from the time the same shall become due." McCluskey v. Still, 32 Ga. App. 641 (124 S.E. 548); Cowart v. Reeves, 80 Ga. App. 161 (1, 4) (55 SE2d 911); compare Chambers Lumber Co. v. Martin, 112 Ga. App. 826 (146 SE2d 529); Eubank v. Barber-Colman Co., 115 Ga. App. 217, 219 (2b) (154 SE2d 638). This court presumes the judgment is supported by every fact essential to make it valid and binding. Kiser v. Kiser, 101 Ga. App. 511 (1) (114 SE2d 397).
Plaintiff's complaint attached a copy of the notice of lien filed in the superior court, and it recites that the materials and labor were used in the improvement of defendant's real estate as described in the lien; and which "were furnished by the undersigned at the instance of Multicon Construction Corp., an Ohio corporation." The Civil Practice Act as to notice pleadings now requires that there be a general averment that conditions precedent have been performed or have occurred. See Code Ann. § 81A-109 (c) ( § 9, CPA; Ga. L. 1966, pp. 609, 620).
4. Defendant argues that plaintiff was required to allege and prove that personal jurisdiction could not be *46 obtained on the contractor, before plaintiff was entitled to seek a judgment in rem against the property. However, the complaint filed shows such contractor to be a resident of Ohio, generally. Evidence as to the fact of residence could be proven within the framework of the complaint, and the complaint is therefore sufficient. See Mitchell v. Dickey, 226 Ga. 218 (173 SE2d 695); Harper v. DeFreitas, 117 Ga. App. 236 (160 SE2d 260); Welding Products of Ga. v. S. D. Mullins Co., 127 Ga. App. 474, 477 (193 SE2d 881); Southern Discount Co. v. Cooper, 130 Ga. App. 223 (203 SE2d 237). For a thorough discussion of pleading and proving conditions precedent in regard to regulatory licenses see the recent case of Management Search, Inc. v. Kinard, 231 Ga. 26 (199 SE2d 899). There it is held that in order to authorize a recovery by a plaintiff holding a regulatory license, he may prove same at whatever stage of the proceedings it should appear.
5. No reason has been shown to set aside the judgment as void.
Judgment affirmed. Bell, C. J., Pannell, P. J., Deen, Quillian, Stolz and Webb, JJ., concur. Eberhardt, P. J., and Clark, J., dissent.
EBERHARDT, Presiding Judge., dissenting.
For two reasons I dissent.
1. There is no averment, even general, that prerequisites to the right to proceed with the lien foreclosure, or conditions precedent to the right to proceed in the foreclosure of the claim of lien under Code Ann. § 67-2002 have occurred or have been performed. I am aware of the holding of the Supreme Court in Management Search, Inc. v. Kinard, 231 Ga. 26 (199 SE2d 899), but that case dealt only with the matter of whether the holding of a license by an employment agency must *47 be alleged in the complaint, or might be proved as a part of the trial to authorize a recovery by the agency for its commission in securing employment for the defendant.
Here Code Ann. § 67-2002 provides that to make good the liens specified in § 67-2001 "they must be created and declared in accordance with the following provisions, and on failure of any of them the lien shall not be effective, viz:
"1. A substantial compliance by the party claiming the lien with his contract...
"2. The filing for record of his claim of lien within three months after the completion of the work ... or within three months after such material or machinery is furnished...
"3. The commencement of an action for the recovery of the amount of his claim within 12 months from the time the same shall become due." In this connection it is further provided that in the event the contractor or subcontractor procuring material, labor or supplies for the improving of real estate shall abscond, or die or remove himself from the state within 12 months from the date such materials are furnished to him, or if he shall be adjudicated a bankrupt, or, if after filing suit, no final judgment can be obtained against him by reason of his death or adjudication in bankruptcy, the persons so furnishing materials and supplies shall be relieved of the necessity of obtaining judgment against such contractor or subcontractor as a prerequisite to enforcing a lien against the property improved, and may enforce the lien in an action directly against the owner, limited to a judgment in rem.
CPA § 81 (Code Ann. § 81A-181) provides that the rules of pleading as found therein "shall apply to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict herewith and are expressly prescribed by law." (Emphasis supplied.)
Further, CPA § 9 (c) (Code Ann. § 81A-109 (c)) expressly recognizes that there should be a pleading of "the performance or occurrence of conditions precedent, [though] it is sufficient to aver generally that all conditions precedent have been performed or have *48 occurred."
My view is that Code Ann. § 67-2002, by its terms, makes the pleading of the conditions precedent stated therein to be a requirement "expressly prescribed by law."
Consequently, it does not appear, as it should, on the face of the record that the plaintiff has sued or obtained judgment against the contractor to whom the materials were supplied, nor does it appear that any of the exceptions have occurred which, under § 67-2002, would excuse the obtaining of the judgment against the contractor before seeking to enforce the lien.
We cannot presume that a condition precedent has occurred or has been performed, for absent its occurrence or performance plaintiff cannot set forth a claim for relief and if he does not plead it he sets forth no claim on which relief can be granted.
2. Unless it affirmatively appears that the conditions precedent have occurred or have been performed, a suit directly against the owner with whom the supplier of materials had no contractual relationship cannot be maintained. Athens Electric Supply Co. v. Delta Oil, Inc., 101 Ga. App. 515 (114 SE2d 289).
While § 67-2002 does excuse the plaintiff from obtaining a prior judgment against the contractor if the contractor has been adjudicated a bankrupt, yet we have held that this does not obviate the necessity of filing suit against the contractor within the twelve months after the amount was due. Victory Lumber Co. v. Ellison, 95 Ga. App. 105, 106 (97 SE2d 334). The requisites of the statute must appear.
The suit to foreclose the lien was brought only against Centennial Equities Corporation, described as the owner of the premises. The claim of lien attached as an exhibit asserts that the materials were supplied to Multicon Construction Corporation.
Since it does not appear that plaintiff has obtained a prior judgment against the contractor and does not proceed contemporaneously to do so, the action against the owner to foreclose the lien simply did not lie, and could not lawfully proceed.
Plaintiff-appellee concedes that the in personam *49 judgment taken against the owner, being in direct contravention of the provisions of Code Ann. § 67-2002, is void.
There would appear to be no reason why plaintiff Hollis could not have instituted a suit against the contractor Multicon Construction Corporation, an Ohio corporation, obtained service under the Long Arm Statute, Code Ann. § 24-113 et seq., and, if entitled thereto, have obtained a judgment against it as is required under Code Ann. § 67-2002 before attempting to foreclose his claim of lien. The mere fact that the contractor is an Ohio corporation does not show that it has absconded or removed itself from this state. It has been a nonresident from the beginning, but has likewise been subject to the service of process under the Long Arm Statute from the beginning, and its whereabouts is known. The provision of Code Ann. § 67-2002 relieving the necessity of procuring the judgment if the contractor shall "abscond or die or remove from the State within 12 months from the date such services, labor, supplies or material are furnished him" applies only if because of such an event "personal jurisdiction cannot be obtained on said contractor or subcontractor, and no final judgment can be obtained against him for the value of such material, services, labor and supplies." That is not the case here.
The judgment of foreclosure is void as well as the purported personal judgment, and I would reverse.
I am authorized to state that Judge Clark joins in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1373649/ | 168 Cal. App. 2d 302 (1959)
REGINE SCHOENBACH, Respondent,
v.
KEY SYSTEM TRANSIT LINES (a Corporation) et al., Appellants.
Civ. No. 17974.
California Court of Appeals. First Dist., Div. Two.
Mar. 2, 1959.
Hardin, Fletcher, Cook & Hayes, Cyril Viadro, Donahue, Richards & Gallagher and Joseph A. Woods, Jr., for Appellant Key System Transit Lines.
Ricksen, Freeman, Hogan & Vendt and Lewis P. May for Appellant Yellow Cab Company.
J. Adrian Palmquist and Francis T. Cornish for Respondent.
DOOLING, J.
Defendants Key System Transit Lines (hereinafter called Key System), its bus operator Robert Shamoon and Yellow Cab Company (hereinafter called Yellow Cab) appeal from a judgment entered upon a verdict for plaintiff in an action for personal injuries.
Respondent boarded a Key System bus in Oakland. The evidence was conflicting as to whether there were any empty seats in the bus, but there is no dispute that respondent was a standing passenger. As the bus was moving at a speed of from 18 to 25 miles per hour, a taxicab operated by the appellant Yellow Cab Company passed it, cut in front and slowed down. The operator stopped the bus abruptly, throwing respondent to the floor and injuring her severely. Appellants do not question the sufficiency of the evidence to support the judgment. *305
The Appeal of Yellow Cab
[1] The court gave the following instruction:
"The phrase 'nine or more of the jurors shall agree upon a verdict,' means one of two things: Either that nine or more of you agree that the defendants are not liable, or on the other hand, that nine or more of you agree that the plaintiff is entitled to recover, and nine of those same jurors who believe that she is entitled to recover agree upon the amount of damages to which she is entitled."
"Until nine or more of the jurors have agreed upon a verdict which includes both liability and the amount of damages, all twelve of you should continue to participate in the deliberations."
Yellow Cab claims that this instruction deprived it of the right of trial by a jury of 12 persons.
The first paragraph of this instruction correctly states the law, that to arrive at a legal verdict at least nine identical jurors must agree to the entire verdict. (Earl v. Times-Mirror Co., 185 Cal. 165, 182-186 [196 P. 57]; Nelson v. Superior Court, 26 Cal. App. 2d 119 [78 P.2d 1037]; Balero v. Littell, 124 Cal. App. 190 [12 P.2d 41].) The second part of the instruction expressly advises the jury that until a complete verdict is arrived at all 12 jurors should continue to participate in the deliberations. In the case of Carlin v. Prickett, 81 Cal. App. 2d 688, 693 [184 P.2d 945], the court, while leaving undecided whether it was error to instruct the jury "that only the nine people who voted in favor of the plaintiff could participate in fixing the amount of the verdict" said that if this was error "the error was cured by the court later telling the jury that all members could participate at all stages in arriving at the amount of the verdict and that they all had a right to enter into the discussion to help fix the amount." The instruction here given read as a whole falls squarely within the holding of this case.
[2] Yellow Cab complains of the qualifying language in an instruction that the violation of certain sections of the Vehicle Code read to the jury constitutes negligence as a matter of law. The instruction was qualified in the following language:
"However, such a presumption is not conclusive. It may be overcome by other evidence showing that under all the circumstances surrounding the event the conduct in question was excusable and such as might reasonably have been expected from a person of ordinary prudence. *306"
"In this connection, you may assume that a person of ordinary prudence will reasonably endeavor to obey the law, and will do so, unless causes which are not of his own intended making induce him without moral fault to do otherwise."
This instruction, when given, had the approval of the Supreme Court. (Combs v. Los Angeles Railway Corp., 29 Cal. 2d 606, 609-611 [177 P.2d 293].) Since the trial of this case, however, in Alarid v. Vanier, 50 Cal. 2d 617, 623-624 [327 P.2d 897], the Supreme Court has criticized the last paragraph of the instruction above quoted and stated the true rule to be "whether the person who has violated a statute has sustained the burden of showing that he did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law." (50 Cal.2d p. 624.)
The portion of the instruction given by the court in this case that the presumption of negligence "may be overcome by other evidence showing that under all the circumstances surrounding the event the conduct in question was excusable and such as might reasonably have been expected from a person of ordinary prudence" is more favorable to Yellow Cab than the test set out in Alarid in that it omits the qualification "who desired to comply with the law."
[3] The last quoted portion of the instruction is criticized by Yellow Cab, not on the ground that it prejudiced it in any defense that its violation of the law, if the jury found one, may have been excusable, but on the ground that the use of the terms "intended" and "moral fault" had a tendency to confuse the jury in its consideration of section 544, Vehicle Code. The argument is that while that section provides that "[n]o person shall turn a vehicle ... unless and until such movement can be made with reasonable safety," the criticized instruction would lead the jury to believe that the section requires "unequivocal safety." The argument does not impress us. The code section including the words "with reasonable safety" was read to the jury. Yellow Cab asked for no instruction defining or elaborating on these words. If a party desires a more detailed instruction than that given by the court he must request it. (Sarafini v. City & County of San Francisco, 143 Cal. App. 2d 570, 576 [300 P.2d 44].) In any event how the use of the words "intended" and "moral fault" would lead the jury to believe that the words "with reasonable safety" mean "with absolute safety" is not apparent. We can find no prejudice in this case from the giving of the instruction *307 particularly in view of the fact that Yellow Cab points to no evidence in the record, and we have found none, to support a finding that if its driver did violate the law such violation was excusable.
[4] The jury was instructed at the request of Key System:
"When a passenger upon a motorcoach voluntarily rides in a standing position rather than seated, such passenger assumes the natural and obvious risks, if any, resulting from riding in a standing position, and in the exercise of the due care required by law must take greater precautions for her own safety than if she were seated in the bus or motorcoach." There was a dispute in the evidence as to whether there were any vacant seats in the coach or whether they were all occupied and plaintiff was obliged to stand for that reason. The words "voluntarily rides in a standing position" were obviously directed to this question. Yellow Cab argues that the inclusion of the word "voluntarily" confuses the question of negligence with intent. The jury was generally instructed:
"Inasmuch as the amount of caution used by the ordinarily prudent person varies in direct proportion to the danger known to be involved in his undertaking, it follows that in the exercise of ordinary care the amount of caution required will vary in accordance with the nature of the act and the surrounding circumstances. To put the matter in another way, the amount of caution required by the law increases as does the danger that a reasonably prudent person would apprehend in the same situation." Reading the instructions as a whole we can find no prejudice to Yellow Cab.
[5] Finally Yellow Cab complains that its cross-examination of a witness produced by plaintiff was unduly restricted. The witness was produced only against Key System and its driver and the court several times instructed the jury that his testimony was not to be considered against Yellow Cab. We must assume that the jury followed these instructions and that no prejudice to Yellow Cab resulted from the limitation of its cross- examination, which the court placed on the express ground that it was immaterial because "at your [counsel for Yellow Cab's] request I instructed this jury they were not to consider this gentleman's testimony as against the Yellow Cab."
The Appeal of Key System and Its Driver
[6] The jury was instructed:
"Proof of an injury to a passenger on the bus of a common carrier, caused by the operation of the bus, raises a legal *308 inference that the injury was caused by the negligence of the carrier and casts upon the carrier the burden of proving that such injury was caused by some unavoidable casualty or by some other cause which human care and foresight could not prevent, or by the contributory negligence of the passenger, unless these facts be shown by evidence produced by the plaintiff." (Emphasis ours.)
Key System and its driver correctly complain that the burden of proof does not shift to a common carrier where a case for the application of the res ipsa loquitur doctrine appears from the plaintiff's evidence. The burden of proof is not on the carrier; it "has merely the burden of going forward with the evidence, that is, the burden of producing evidence sufficient to meet the inference of negligence by offsetting or balancing it." (Hardin v. San Jose City Lines, Inc., 41 Cal. 2d 432, 437 [260 P.2d 63]; Scarborough v. Urgo, 191 Cal. 341, 346-347 [216 P. 584]; Dodge v. San Diego Electric Ry. Co., 92 Cal. App. 2d 759, 766-767 [208 P.2d 37].)
Respondent argues that in view of the other instructions on the burden of proof the jury would not understand "the burden of proving" in this instruction to refer to the burden of proof. The argument overlooks the fact that the instruction couples the "burden of proving ... unavoidable casualty or ... some other cause which human care and foresight could not prevent" with "the burden of proving ... the contributory negligence of the passenger." The jury had been clearly instructed that the burden of proof of contributory negligence rested on the defendants. It does violence to common sense to ask us to assume that the jury would believe that the burden of proving contributory negligence in this instruction meant the burden of proof of contributory negligence, while the same term in the same instruction meant something less when applied to the burden of meeting the inference of negligence arising from the happening of the casualty.
The case was a close one against Key System and its driver and we cannot hold that the additional burden placed on them by this erroneous instruction was not prejudicial.
Judgment affirmed as to Yellow Cab Company. Judgment reversed as to Key System Transit Lines and Robert Shamoon.
Kaufman, P. J., and Draper, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1373647/ | 168 Cal. App. 2d 158 (1959)
THE PEOPLE, Respondent,
v.
CAROLYN V. DILLARD, Appellant.
Crim. No. 6211.
California Court of Appeals. Second Dist., Div. One.
Feb. 24, 1959.
Ettinger & Deutsch and Warren L. Ettinger for Appellant.
Edmund G. Brown, Attorney General, and William E. James, Assistant Attorney General, for Respondent.
WHITE, P. J.
In an information filed by the district attorney of Los Angeles County, defendant was charged with a violation of section 11500, Health and Safety Code, in that on or about February 19, 1957, she unlawfully had in her possession flowering tops and leaves of Indian Hemp (cannibis sativa). It was further alleged that on September 28, 1954, defendant suffered a prior felony conviction for violation of section 11500 of the Health and Safety Code. Defendant pleaded not guilty and denied the prior conviction. Trial by jury was duly waived and the cause submitted on the transcript of the preliminary examination, each side reserving the right to offer additional evidence, and that all exhibits received at the preliminary examination be deemed received in evidence at the trial, subject to the court's rulings thereon. Defendant was adjudged guilty as charged. Although no evidence was offered by the prosecution as to the prior conviction, on cross-examination, defendant admitted the same. While the court made no finding as to the prior, it appears that defendant was on probation therefor, and at the time judgment was rendered sentencing defendant to state prison, the court revoked the probation granted her on the previous conviction, and sentenced her to state prison, the sentence to run concurrently with the one pronounced in the instant action. From the judgment of conviction in the present case, defendant prosecutes this appeal.
The factual background surrounding this prosecution as revealed by the record is that at approximately 12:30 a. m. on the morning of February 19, 1957, Officers V. Jones and Douglas Roy MacGregor of the Los Angeles Police Department went to the residence of defendant, an apartment at 947 North Vendome Street, in the city of Los Angeles. Officer MacGregor testified that "I received information from a confidential source that the defendant was using narcotics and had a quantity of narcotics in her possession."
"Q. In your opinion was that information reliable? A. It has proven so in the past."
"Q. What do you mean by that, by past? A. I have used this informant on prior occasions."
"Q. Successfully? A. And the information has proved reliable; yes, sir. *161"
"Q. All right. Was the defendant also known to you? A. Yes, sir."
"Q. In what way other than being a dancer, I take it? A. I have known the defendant for a period of approximately two years and I have known her as a narcotic user."
"At that particular time it was heroin."
When they arrived at defendant's apartment, the officers knocked several times on the door of the apartment but received no answer. They were able to observe that the wall fireplace was "going full blast" and formed the opinion that someone was in the apartment. They went to the manager's apartment, identified themselves, explained the circumstances of the visit and asked him whether he would admit them to the apartment. The manager opened the apartment and the officers entered it in his company. A quantity of marihuana seeds was found on the bed. The officers left the apartment and awaited the return of defendant. The latter returned at 2:40 a. m. and was placed under arrest when she reached the front door of the apartment. The officers and appellant entered the apartment and a further search was made. When shown the marihuana seeds defendant asked, "What are they?" Subsequently she stated that some friends of hers had brought the marihuana to her apartment, "Manicured" it, and smoked it and left some for her own use. When questioned about a pipe she stated that she had not used it to smoke marihuana "for a couple of years." She indicated a quantity of marihuana concealed in the toe of a slipper hanging on the closet door.
Officer MacGregor testified further that he had known defendant for some two years prior to the arrest here in question, that when she arrived at her apartment he placed her under arrest. The officer also testified as follows:
"Q. And you put the handcuffs on her and told her she was under arrest? A. I did."
"Q. And did you at that time demand the key to the apartment? A. From her?"
"Q. Yes. A. Yes, sir."
"Q. She asked you if you had a warrant? A. Yes, sir."
"Q. And that she would not let you in unless you had a warrant; is that correct? A. That is correct."
"Q. What did you do after that when she refused to let you into the apartment? A. I told her that if she refused to open the door to her apartment that we would only secure the key from the manager. *162"
"Q. And did you go to the manager? A. My partner did, sir."
"Q. And you or your partner opened the door and you went inside? A. I don't recall whether it was myself or my partner. One of us did; yes, sir."
"Q. But all this time the defendant was demanding that you show a warrant before going into the apartment; is that correct? A. Yes, sir." (Emphasis added.)
Sworn as a witness in her own behalf, defendant denied knowledge of the presence of the marihuana seeds on the bedspread and denied that she showed the officers any marihuana concealed in a slipper, denying all knowledge of its presence in her apartment.
Don William Andre who was with defendant at the time of her arrest corroborated her testimony concerning her demands that the officers show her a warrant and of their refusal to do so.
Defendant's estranged husband Joseph Hamilton Dillard testified that on the night here in question he visited her at her apartment and that, "I had a big argument and fight with her about 8:30. I came over there to borrow a few dollars and she was going out to dinner with some friends, so she wouldn't give me the money, and I yanked the purse out of her hand and everything, and she ended up giving me a couple of dollars--in fact, she ended up giving me about $5 and the landlord came up and broke the scene up and--you want me to go on with the whole story?" Then the following ensued:
"Q. No. I wanted to know what time it was when you came back the second time. A. The second time--well, she went downtown and I was pretty juiced up. I am not an alcoholic___"
"Q. But you were under the influence, you think? A. Yes."
"Q. What did you do while she was downtown? A. Well, I used to work on Main Street for a year and a half down there at the Tip Top. I know a lot of people down there. So I went down there and I kept on staggering around until I ran into somebody and purchased some marijuana and then I went and planted it."
"Q. What do you mean you planted it? A. Well, I went back through the window--I had been through that window a couple of times before. It's covered and pull the curtains down like that and I went in and spread a little bit around and then just took the rest and put it in a container and shoved it into one of her shoes. I did that with the pure intentions, believe me, of just getting her to go back to me. She said, *163 'You are goofing off too much and when you straighten out, okay.' And I got drunk--stone drunk--and I did it."
"Q. Did you later go to the Police Department to tell them? A. I certainly did."
"Q. When was that? A. That was after the preliminary. I couldn't know she was going to get into all this trouble over that. I came back to recuperate all the stuff and to see if she had made up her mind and she wasn't there, and so I just went downtown--after I saw what happened on the preliminary, I went and told Officer O'Grady and Mr. Jones that I wanted to confess, that I done it, and that I was sorry, and I was slightly intoxicated."
"Q. How many times did you go to the Police Department to tell them? A. That was the first time. They said, 'Fine, we can't accept it,' and they took me by the hand and gave me a merry heigh-ho and said, 'Come back tomorrow with Carolyn.' So I came back with Carolyn and her mother and the landlord and that displeased them completely so they yanked us out in the car--they put us out in the hall and they wouldn't let the witnesses talk and they had three officers and he says to me, 'Well, we are not going to accept your testimony,' and he says, 'Shut your mouth or I'll shove you through the wall.'"
"Q. Which officer told you that? A. That was Officer O'Grady and he grabbed my arm and shoved me down and he says they can't accept my confession."
[1a] As her first ground for reversal appellant urges that the entry of the officers into her apartment during her absence was in violation of her constitutional rights and that the evidence produced against her was obtained through an illegal search and seizure. In this regard, as heretofore set forth, when the officers arrived at appellant's apartment they knocked on the door several times and receiving no response they approached the manager who in response to their request opened the door for them. When they entered they discovered the marihuana seeds on the bed. Appellant does not contend that the manager had no authority to enter the apartment, and the manager testified that he voluntarily permitted the officers to enter. On the occasion of the first visit of the officers to appellant's apartment, there was no search. The contraband was plainly visible when the officers entered. The situation here presented is analogous to that existing in People v. Ambrose, 155 Cal. App. 2d 513, wherein we said, at page 523 [318 P.2d 181]: "The officers asked the hotel manager for authority *164 to enter the room whereupon he opened the door and let them in. The question of consent is to be determined by the trier of fact (citing cases). Upon the authority of People v. Gorg, 45 Cal. 2d 776, 783 [291 P.2d 469], and People v. Caritativo, 46 Cal. 2d 68, 73 [292 P.2d 513], we are persuaded that appellant's contention must be rejected. In the cited case it is held that where the officers have acted in good faith, with the consent of a homeowner or landlord in conducting a search, and the latter believed they had joint control over the premises, and the right to enter them, evidence so obtained cannot be excluded merely because the officers may have made a reasonable mistake as to the extent of the owner or landlord's authority. (See also People v. Silva, 140 Cal. App. 2d 791, 794-795 [295 P.2d 942].)"
"In the case now engaging our attention, we therefore conclude that it was reasonable for the trier of facts to conclude that the hotel manager believed, as he testified at the trial, that he possessed the authority to give consent to the officers to enter appellant's room and that it was equally reasonable for the court to hold that the officers acted in good faith and with the belief that the manager possessed the authority asserted. Therefore, the objects found in appellant's room were admissible in evidence. (Citing cases.)" [2] It is not every search or seizure that is prohibited by the Constitution. It is unreasonable searches and seizures that are denounced. [1b] In the case now engaging our attention, the police officers received information from a reliable confidential informant that appellant was using narcotics and had a quantity thereof in her possession. The officers were acquainted with appellant and knew she had previously been convicted upon a narcotics charge. Information previously given by this informant had proved reliable. The officers went to appellant's apartment. They knocked but received no answer. They observed that the wall fireplace was in use and reasoned that someone was in the house. Thereupon they went to the manager's apartment and asked him to admit them to appellant's apartment. The manager did so. When they entered the apartment with the manager, the officers found marihuana seeds on appellant's bed. The officers returned to the manager's apartment and waited for appellant. She returned approximately two hours later and was placed under arrest. A further search was conducted and an additional quantity of marihuana was discovered in the toe of a slipper in appellant's closet.
The case of Trowbridge v. Superior Court, 144 Cal.App.2d *165 13, 17, 19, 23 [300 P.2d 222], holds that an arrest is legal where the basis therefor consists of information supplied by a reliable confidential informant (see also People v. Vice, 147 Cal. App. 2d 269, 272 [305 P.2d 270]; People v. Gonzales, 141 Cal. App. 2d 604, 606 [297 P.2d 50]). Since the arresting officer need only convince the trial judge of the reliability of the informant (People v. Dean, 151 Cal. App. 2d 165, 167 [311 P.2d 85]; Lorenzen v. Superior Court, 150 Cal. App. 2d 506, 510 [310 P.2d 180]), we are satisfied that the trial judge could reasonably find, on the basis of the testimony herein, that the arrest of appellant was made on reasonable cause and that the searches made precedent and subsequent to the arrest were lawful searches and seizures. An arrest may be made under certain circumstances without a warrant (Pen. Code, 836), and a search may be lawful though it precedes a legal arrest (People v. Vice, supra, 273; People v. Simon, 45 Cal. 2d 645, 648 [290 P.2d 531]).
[3] Appellant urges that the prosecution failed to meet the burden of establishing justification for the search of appellant's home through reliance upon information obtained from a reliable and confidential informant in that "(1) It made no showing as to where the officers received their information; whether it was days, weeks or months before the search was made. (2) It made no showing as to the reliability of the informant, that is, on how many occasions had the officers received information relating to others previous to the information concerning appellant." In the instant case, Officer MacGregor did testify that the informer had provided accurate information in the past, that in his opinion the informer was a reliable source of information. Appellant herein made no attempt on cross-examination to elicit either the name of the informer, the number of previous cases in which the officer relied upon information furnished by this informer, nor the accuracy of such information. The only reference to an informer which appears in the cross-examination of the officer is as follows:
"Q. Now, wasn't it a fact, Officer MacGregor, that at that time that you first saw the defendant you told her that you had received the address from one Del Ray, a girl friend of hers--or a friend of hers? A. No, sir."
"Q. Did you mention anything about any woman giving you the address of the defendant? A. No, sir."
Having failed to raise any of these issues at the trial, appellant cannot on appeal, present them for the first time. Appellant *166 relies heavily upon the case of People v. Carswell [fn. *](Cal.App.), 328 P.2d 842. However, the Supreme Court has granted a hearing in that case.
Finally, appellant urges that she is entitled to a new trial because the court below neglected to rule upon her motion for a new trial within the statutory time specified in section 1202 of the Penal Code. Appellant asserts that on December 30, 1957, she made a motion for a new trial as reflected by the clerk's transcript which records that "A motion for a new trial is made." However, the reporter's transcript sets forth the proceedings of December 30, 1957, as follows:
"Mr. Durkee (appellant's counsel): I would like to make an oral application for probation at this time and also for the purpose of preparing a motion for a new trial."
"The Court: Do you waive time for probation and sentence at this time?"
"Mr. Durkee: We waive time for probation and sentence."
"The Court: All right. Probation and sentence will be January 24th at 9:00 o'clock a. m. The defendant will remain on bail, and as I understand it, you are making a motion for a new trial at this time?"
"Mr. Durkee: Well, I would like to make the motion___"
"The Court: All right, you can make the motion and you can argue it at that time."
"Mr. Durkee: Thank you, your Honor."
At the proceedings which took place on January 24th, to which time the matter was continued as above indicated, appellant's counsel made no reference to any "motion." As shown by the reporter's transcript, the following occurred:
"The Court: Is arraignment for judgment and sentence waived?"
"Mr. Durkee (counsel for appellant): Yes, your honor."
"The Court: I have before me case No. 189104. Is there any legal cause why judgment should not now be pronounced and sentence imposed?"
"Mr. Durkee: None, your honor."
Thereupon, appellant's counsel discussed the facts of the instant case and the previous case in which appellant had been placed on probation, and with a violation of the terms of which probation she was charged. Counsel then indicated his intention to file a notice of appeal and requested a reduction in the *167 amount of bail pending appeal. No mention whatever was made of any motion for a new trial.
[4] It is well established in this state that a motion for new trial in a criminal case is a statutory right and may be made only on the grounds enumerated in section 1181 of the Penal Code, exclusive of all others. (People v. Amer, 151 Cal. 303, 305, 306 [90 P. 698]; People v. Boren, 139 Cal. 210, 216 [72 P. 899]; People v. Fry, 137 Cal. App. 525, 529 [31 P.2d 204].) In the case at bar, appellant concedes "that the grounds for said motion were not detailed." [5] As was said in People v. Ah Sam, 41 Cal. 645, 650, 651, regarding a motion for a new trial, "The attention of the Court must be called to it. The Court must be moved to grant the order." And, in the case of People v. Beatcher, 136 Cal. App. 337, 338, 339 [28 P.2d 943], wherein the record reflected that counsel for the accused said, "At this time, may it please the Court, I desire on behalf of the defendant, and defendant does, to make oral motion for new trial, on all the statutory grounds, and I submit it without argument," whereupon the court announced, "Motion denied," Mr. Presiding Justice Conrey in a concurring opinion made the cogent statement, "I would not here contend that upon a motion for new trial thus presented, the court would have been without jurisdictional authority to grant that motion and order a new trial. But when the defendant appeals from an order denying such motion, it is incumbent upon him to show affirmatively that in the trial court's consideration of the motion and decision thereon there was some abuse of discretion. The bald statement to the trial court that the defendant made his motion for new trial 'on all the statutory grounds,' without argument and without suggestion of any definite reason for granting the motion, did not fairly and reasonably call for decision upon any indicated question in the case. Essentially, it failed to bring to the attention of the court any one reason why a new trial should be granted. The motion was just a general appeal to the world of legal possibilities. Although courts of appeal are created to review and correct errors of trial courts, the law intends (so I believe) that upon a motion for a new trial, the trial court shall be given an opportunity to consider and determine some definite question or claim on which the motion depends, before a court of appeal will be required to review an order denying the motion. In this case if, by critical examination of the complicated and very long record, it could be demonstrated that the evidence was not sufficient to prove that any crime was committed, the *168 facts relied upon, and the results to which they point, should have been brought to the attention of the court below." (Emphasis added.)
[6] Under the facts present in the case now before us we are satisfied that the right of the appellant to move for a new trial was waived. There is nothing in the reporter's transcript on appeal in this case to show that appellant ever actually made a motion for new trial. During the proceedings of December 30, 1957, appellant's counsel spoke of "preparing a motion for a new trial," and in response to a statement by the court, "... and as I understand it, you are making a motion for a new trial at this time?" appellant's counsel replied, "Well, I would like to make the motion." Thereupon the court stated, "All right, you can make the motion and you can argue it at that time (January 24, 1958)." On January 24th, as heretofore pointed out, appellant's counsel made no mention of a motion for new trial. All that is here indicated is that counsel intended to make a motion for new trial, and at no time did he specify the grounds upon which he intended to or did rely. Even though it be conceded that appellant's counsel by his statements, gave notice of his intention to move for a new trial, there was in fact no motion made for a new trial on any grounds specified in section 1181 of the Penal Code, and the notice of motion is not sufficient to require the court to pass upon it (People v. Rothrock, 8 Cal. 2d 21, 24 [63 P.2d 807]).
[7] What we have just said answers appellant's contention "... that the moving party is entitled to a ruling merely by virtue of the making of the motion. Since the court has the power to grant such a motion when made 'on all statutory grounds,' it follows that it has the power to grant it where the defendant merely moves for a new trial."
While all of the grounds contained in the code section may be utilized, nevertheless, the motion must be actually made and the grounds upon which reliance is placed must be brought to the attention of the court. Such a rule we feel is supported by the general tenor of the cases cited by appellant herself. In People v. Prudencio, 93 Cal. App. 241, 246 [269 P. 698], it is simply held that an accused has a right to have his motion for new trial heard and determined by the trial judge when presented in the manner and within the time provided by law. In the case just cited it is manifest that the specific grounds for the motion were brought to the attention of the court. And, in People v. Beatcher, supra, also relied upon by *169 appellant, the defendant therein made the motion specifically "on all statutory grounds." Based on that case, appellant argues that if the court has the authority to grant a motion made "on all statutory grounds," it necessarily follows that it has power to grant it where the defendant merely moves for a new trial. However, the very concurring opinion in the case last cited and relied upon by appellant, from which we have hereinbefore quoted, holds that language much more specific than that used by appellant herein, "did not fairly and reasonably call for decision upon any indicated question in the case. ..." Here, appellant's counsel merely spoke of "preparing for a motion," "I would like to make the motion," and on the date set by the court for making and presenting argument on the motion, appellant's counsel made no reference to a motion for new trial. We are satisfied that the court was entitled to conclude that no motion for new trial was made or pending before it.
For the foregoing reasons, the judgment is affirmed.
Fourt, J., and Lillie, J., concurred.
NOTES
[fn. *] *. A hearing was granted by the Supreme Court on October 10, 1958. The final opinion of that court is reported in 51 Cal. 2d 602 [335 P.2d 99]. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1373869/ | 335 P.2d 1067 (1958)
65 N.M. 270
William HAMILTON, Appellee,
v.
Harold P. DOTY, d/b/a Harold P. Doty Drilling Company, Employer, and Firemen's Fund Indemnity Company, Insurer, Appellants.
No. 6456.
Supreme Court of New Mexico.
December 22, 1958.
Rehearing Denied March 16, 1959.
*1068 McAtee, Toulouse & Marchiondo, Albuquerque, for appellants.
Bingham & Klecan, Albuquerque, for appellee.
COMPTON, Justice.
Appellee brought this action for compensation under the provision of the Workmen's *1069 Compensation Act for an injury sustained by him while engaged in drilling a water well for his employer, and for an additional 50 per centum for the employer's negligent failure to provide a safety device as defined by Chapter 29, Laws 1955, New Mexico Statutes, for the protection of the workman.
The cause was tried to a jury on the issues, (a) the extent and duration of disability of appellee, if any, resulting from the injury, and (b) whether the employer provided a safety device for the protection of the workman.
The jury returned its verdict for appellee, finding total permanent disability and that the employer negligently failed to provide a safety device in general use in such drilling industry. Judgment was entered on the verdict and the employer and his insurance carrier prosecute this appeal.
The pertinent provisions of the statute read:
"In case an injury to * * * a workman results from his failure * * * to use a safety device provided by his employer, then the compensation otherwise payable under the Workmen's Compensation Act shall be reduced by fifty (50%) per centum. * * * If an injury to * * * a workman results from the negligence of the employer in failing to supply reasonable safety devices in general use for the use or protection of the workman, then the compensation otherwise payable under the Workmen's Compensation Act shall be increased by fifty (50%) per centum."
The water well was being drilled for the City of Gallup. Elmer Ring was the driller in charge. The employer was present and directing the work. Appellee was working as a roughneck. When the well had reached a depth of 2,500 feet, a "cave-in" occurred which required a "fishing job" to recover the drilling tools from the hole. In the fishing operation, it was necessary to turn or twist the pipe and this was done by means of torque applied to a rope extending from tongs being operated by appellee to the cathead. As Ring was applying pressure to twist the pipe, the rope broke, causing the tongs to backlash. On the rebound, the tongs, weighing some 175 pounds struck appellee's left knee.
The evidence is clear that in such circumstances, a 5/8 inch cable, with one end clamped to tongs and the other attached to the derrick, is the device generally used in the water well drilling industry for the protection of the workman. Admittedly, no cable was provided by the employer for this purpose; however, appellants strongly contend that a chain was provided by the employer that would serve the same purpose which appellee failed to use. There is evidence pro and con as to whether a chain was provided, but there is no evidence that such a device, if present, was in general use in the drilling industry.
We think the term "in general use" manifests a clear legislative intent to completely eliminate any contention or controversy as to whether some other device may be substituted. To avoid liability under the Act, the device provided must be one generally used in the particular industry. Apodaca v. Allison & Haney, 57 N.M. 315, 258 P.2d 711. Compare Briggs v. Zia Co., 63 N.M. 148, 315 P.2d 217.
The evidence to sustain the finding as to total permanent disability is challenged, the contention being that appellee's disability should be limited to the knee injury. This question has been settled by the verdict. Lipe v. Bradbury, 49 N.M. 4, 154 P.2d 1000. There is evidence of a substantial nature that appellee not only suffered an injury to his knee but there is shown a general body impairment resulting therefrom. There is evidence of permanent damage to the quadriceps muscle; a permanent limp which produces a pelvic tilt, resulting in back pains; when he drives a truck or climbs, his leg swells and pains him, the pain extending to his back. Even the employer testified that he could not do heavy manual labor and that is all appellee is qualified to do as shown from the record. *1070 We think the evidence adequately supports the verdict. Mathews v. New Mexico Light & Power Co., 46 N.M. 118, 122 P.2d 410; Flippo v. Martin, 52 N.M. 402, 200 P.2d 366.
The driller Ring was permitted to testify that he heard appellee at times complain "about his legs and also pain in his back." The point is made that the admission of such evidence is a violation of the hearsay rule. We do not think there was error in this respect. Such declarations are admissible upon the ground of necessity. Western Steel Car & Foundry Co. v. Bean, 163 Ala. 255, 50 So. 1012; Northern Pacific Railroad Co. v. Urlin, 158 U.S. 271, 15 S. Ct. 840, 39 L. Ed. 977. Also see 20 Am.Jur. (Evidence) § 588, and Annotation, 64 A.L.R. 557.
Another point raised is that the court erred in refusing to strike certain evidence. Dr. Kenney, a general practitioner, who was claimant's physician, testified for him. While testifying on cross-examination, the doctor stated that he was not an "expert." Appellants seized upon that statement to have his testimony stricken. Standing alone, the contention would appear to have some merits but the doctor was merely explaining that if the words "expert" and "specialist" were to be considered as synonymous, he could not be classified as an expert. In other words, he was saying that he was not a specialist. We think the evidence shows that the doctor was eminently qualified to testify as an expert.
Claimant was awarded $3,000 in the lower court for the services of his attorneys and the award is challenged as excessive. As a basis of their attack upon the award, it is asserted that the trial required only two days; that all medical bills had been paid, and they were paying compensation at the time. That is hardly the true picture; the safety device issue was strongly contested as was the extent and duration of the disability of the claimant. Also hospital bills were involved. The fixing of attorney fees involves various considerations, the dollar value is but one to be mentioned. Nevertheless, from our review of the record, we are forced to conclude that the award should be reduced to $2,000.
The final point argued for a reversal of the judgment relates to improper remarks allegedly made by appellee's counsel in his closing argument to the jury. It is claimed that counsel stated to the jury that "defendant, Insurance Company, had lots of funds to pay claimant and that a verdict for the defendants would reduce the claimant's compensation by 50 per centum." Counsel for appellee emphatically denies making the statement. This controversy prompts us to restate the rule, that in a workman's compensation case, evidence of the pecuniary circumstances of the parties, is incompetent, Waldroop v. Driver-Miller Plumbing & Heating Corp., 61 N.M. 412, 301 P.2d 521, but the remarks cannot be considered here as they are not set out in the record. Davis & Carruth v. Valley Mercantile & Banking Co., 33 N.M. 295, 265 P. 35. Statements of counsel in the briefs are not a part of the record. Pino v. Hatch, 1 N.M. 125.
Other points set forth in appellants' brief were not discussed at the oral arguments; however, we have noticed them and they are either disposed of by the conclusion reached or are not well taken.
The judgment will be affirmed; except the award of $3,000 by the lower court is reduced by $1,000. An additional award of $750 is made for the services of appellee's attorneys in representing him in this court. It is so ordered.
LUJAN, C.J., McGHEE, J., and DAVID M. CARMODY, D.J., concur.
SHILLINGLAW, J., concurs in the result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1373879/ | 142 S.E.2d 142 (1965)
264 N.C. 563
STATE
v.
Arthur GOFF.
No. 91.
Supreme Court of North Carolina.
June 2, 1965.
*143 Atty. Gen. T. W. Bruton, Staff Atty. Andrew A. Vanore, Jr., for the State, appellant.
H. Horton Rountree, Greenville, for defendant, appellee.
*144 DENNY, Chief Justice.
The question for determination on this appeal is simply this: Did the court below commit an error in vacating the sentence imposed by the Superior Court of Sampson County for an escape while the defendant was serving a sentence which had been vacated and a new trial ordered before the sentence for the escape was imposed? We think the question must be answered in the affirmative.
G.S. § 148-45 in pertinent part reads as follows: "* * * Any prisoner serving a sentence imposed upon conviction of a felony who escapes or attempts to escape from the State prison system shall for the first such offense be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than six months nor more than two years. * * *"
This Court, in State v. Garrell, 82 N.C. 580, 581, recognized the rule that one cannot take it upon himself to reverse or ignore an erroneous judgment. The prisoner was delivered to the custody of a constable, pursuant to an erroneous judgment. The constable negligently allowed the prisoner to escape. In holding the constable liable, the Court said:
"The judgment pronounced was at most merely erroneous, and not void. * * *
"The Judge may have erred in that portion of his judgment which committed Hogan to the house of correction, and we think he did, as such sentences, according to the true intent and meaning of the Constitution and statutes on that subject, extend only to vagrants and persons guilty of misdemeanors; but of that question, as of every other arising on the trial, his Honor had jurisdiction, and if he erred in that particular it was an error of law for which the judgment was voidable, but of full force and effect until reversed in the appropriate way. * *
"* * * Hence it follows that, until the sentence of commitment to the house of correction was reversed, it was the duty of the defendant in his capacity of manager to hold and keep the prisoner committed to his custody, and not assume practically to reverse the judgment of one of the courts of the State by allowing the prisoner by his negligence to escape. * * *"
A similar result was reached in State v. Armistead, 106 N.C. 639, 10 S.E. 872.
In the case of Bayless v. United States (9th C.C.A.), 141 F.2d 578, the defendant had been convicted of several violations of federal law, and defendant had not been afforded counsel nor had he intelligently waived counsel. He was committed pursuant to the conviction and subsequently attempted to escape. The Ninth Circuit Court held that he could be convicted of an attempt to escape even though his detention was irregular in that he had not been afforded counsel. The Court quoted with approval from an opinion by the Fifth Circuit Court in the case of Aderhold v. Soileau, 5 Cir., 67 F.2d 259, as follows:
"`* * * A prisoner in a penal institution whose sentence is irregular or voidable may not for that reason, and before some court has so adjudged, defy his guards and run away. A difference of opinion might cause a death. Such a doctrine would set discipline at naught. The statute, 18 U.S.C.A. § 753(h), forbids escape, not only to those "properly in the custody of the Attorney General" but also to all "who are confined in any penal or correctional institution, pursuant to his direction," without mention of the propriety of the confinement. We are of opinion that attempts at escape from such institutions are * * * forbidden to all inmates, and that, if they consider their confinement improper, they are bound to take other means to test the question.'"
*145 The Supreme Court of the United States denied certiorari in Bayless v. United States, 322 U.S. 748, 64 S. Ct. 1157, 88 L. Ed. 1580.
In Tann v. Commonwealth, 190 Va. 154, 56 S.E.2d 47, the defendant had been convicted of a number of felonies. He escaped from the State Penitentiary while serving a sentence for one of these offenses. He was recaptured and tried upon a bill of indictment for escape. He pleaded the unlawfulness of his imprisonment on the ground that he had been denied due process of law in that he did not have the assistance of counsel upon his trials. The Supreme Court of Appeals of Virginia said:
"An escape from custody authorized by law is a crime against public justice. The statute declaring it to be an offense proceeds from the theory that a citizen should yield obedience to the law. When one has been, by authority or command of the law, confined in prison, it is his duty to submit to such confinement until delivered by due course of law, no matter whether he has been committed for a future trial, or for punishment after conviction. It is generally held by the more modern authorities that it is immaterial whether he is innocent or guilty of the original offense in so far as his liability for escaping is concerned. * * *
"It would bring the law into disrepute and completely render prison order and discipline unenforceable if prisoners convicted of crime could exercise the right of self-judgment and self-help and be allowed to escape from imprisonment, either because they believe themselves to be innocent, or that their convictions were obtained through legal error. The validity of a judgment often presents a difficult question for experienced lawyers and the courts.
* * * * * *
"When a prisoner is held in legal custody and commits an escape, the crime itself does not depend upon whether he would have been adjudged guilty or innocent of the original offense had the proper procedure for appeal been followed. Under the same conditions, and for the same reasons, the crime does not depend upon whether it may or may not be determined in a future habeas corpus proceeding that his original conviction was void for defects in the judgment of conviction by a court of competent jurisdiction."
See 70 A.L.R.2d Anno.: Justification for Escape, page 1430, et seq., where the cases from many jurisdictions have been collected.
We hold that the sentence imposed in the Superior Court of Sampson County at the January-February Session 1965 on the charge of escape was a valid sentence irrespective of the outcome of the new trial ordered by this Court; and that the order of Cowper, J., entered in a habeas corpus proceeding in Pitt County on 26 March 1965, to the effect that the defendant Goff "is being illegally confined under sentence imposed in Docket No. 4880, Sampson County," was erroneous and such order is reversed and set aside. When this opinion has been certified down, whether the defendant has been retried or not as directed by Judge Cowper's order entered on 28 January 1965, and regardless of the outcome of such trial, this cause will be remanded to Sampson County for the imposition of a proper sentence on the conviction for escape. State v. Fain, 250 N.C. 117, 108 S.E.2d 68.
The order entered below releasing the defendant from the sentence imposed in the Superior Court of Sampson County for escape is
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1373855/ | 206 Va. 297 (1965)
NANCY EUGENIA WILKINSON
v.
JOHN WILLIAM WITHERSPOON, INDIVIDUALLY AND AS CO-EXECUTOR, ETC.
Record No. 5966.
Supreme Court of Virginia.
June 14, 1965.
George E. Allen (Allen, Allen, Allen & Allen, on brief), for the appellant.
Present, All the Justices.
1. Shortly after the death of his wife Oscar Hewitt executed his will leaving his estate in equal shares to complainant and defendant, his nephew and niece. His relations with complainant were pleasant, but with his niece were intimate and affectionate. A month after the execution of the will, Hewitt opened a joint savings account in his name and that of his niece (but without her knowledge) as joint tenants with right of survivorship, the signature card providing as a matter of agreement by the parties with each other and the bank that any funds placed in the account were intended as a gift and delivery. Hewitt died after making substantial deposits in this account and the instant suit was brought to determine ownership of the funds. Applying the rule that the intention of the depositor is the controlling consideration, the court held that the circumstances, including particularly the provisions of the signature card, showed Hewitt's intent that the funds pass to his niece rather than as part of his estate.
2. Though there is a presumption that a joint account is opened for the convenience of the depositor, in light of the language of the deposit contract and of the surrounding circumstances that presumption was clearly rebutted. Hewitt was an accountant, experienced in business and well able to understand the legal effect of the contract; was able to and did handle his own affairs until his death; and had reason to favor his niece because of her kindnesses to him.
Appeal from a decree of the Chancery Court of the city of Richmond. Hon. William A. Moncure, Jr., judge presiding. The opinion states the case.
E. L. Turlington, Jr., (White & Roberts, on brief), for the appellee.
CARRICO
CARRICO, J., delivered the opinion of the court.
This controversy is between John W. Witherspoon, the complainant, and Nancy Eugenia Wilkinson, the defendant. The litigation arose when the complainant, individually and as co-executor under the will of Oscar O. Hewitt, deceased, filed a bill of complaint against the defendant, individually and as co-executor of the estate.
The bill of complaint sought the advice and guidance of the court in the settlement of the estate. Specifically, the bill was directed to the ascertainment of the ownership of a savings account in the Franklin Federal Savings and Loan Association of Richmond. The account was in the names of the testator, Oscar O. Hewitt, and the defendant, as joint tenants with the right of survivorship. The prayer of the bill was that the court determine whether the balance of $9,703.88 in the account belonged to the estate or to the defendant.
The chancellor heard the case ore tenus and ruled that the savings account belonged to the estate. A final decree was entered directing delivery of the funds to the executors and the defendant, individually, was granted an appeal.
The evidence shows that the complainant and the defendant are brother and sister and were, respectively, the nephew and niece of Oscar O. Hewitt.
Mr. Hewitt was, for more than fifty years, employed as a staff accountant with A. M. Pullen and Company, a public accounting firm of Richmond.
Mr. Hewitt's wife died in December of 1961. On February 1, 1962, he executed his will, dividing his estate equally between the complainant and the defendant and appointing them as co-executors.
On March 2, 1962, the savings account now in dispute was opened by Mr. Hewitt.
Mr. Hewitt retired from his employment in April of 1962. His first entry into the hospital, in connection with his fatal illness, was on September 30, 1962, and he died on November 17, 1962, at the age of 79.
While the evidence discloses that Mr. Hewitt's relationship with his nephew, the complainant, was "pleasant", it shows that his relationship with his niece, the defendant, was close and personal.
When the defendant finished high school in North Carolina, it was at Mr. Hewitt's insistence that she came to Richmond to enter *299 training to be a nurse. While in training, she often saw him, talked to him on the telephone, and met him downtown for lunch.
This close relationship continued through the years but, after the death of his wife, Mr. Hewitt appeared to rely more heavily upon the defendant for companionship and comfort. He had dinner at her home almost every Sunday. She cooked food and carried it to him at his home, usually once each week.
In April of 1962, following the execution of his will and the opening of the savings account, Mr. Hewitt took an airplane trip to Oregon to visit a sick brother. A few days after Mr. Hewitt's departure, but before his return to Richmond, the defendant received in the mail a flight insurance policy in the sum of $105,000, purchased by her uncle. She was designated as the beneficiary.
On September 30, 1962, when Mr. Hewitt was to enter the hospital for an operation, he telephoned the defendant so to inform her and she and her daughter took him to the hospital. He was discharged on October 14 and the defendant took him to her home for his convalescence. That evening he developed a blood clot and had to return to the hospital.
When Mr. Hewitt was discharged from the hospital on October 27, the defendant took him to her home and cared for him for two weeks. He then went to his own home, where he had arranged for a young couple to stay with him.
While Mr. Hewitt was in the hospital, the defendant visited him every day and took care of his personal needs. During the week after he returned home and before he died, the defendant visited him and telephoned him. In that final week, he wrote a letter to a relative stating that the defendant and her husband "have been wonderful to me, and I can never repay them for what they have done."
The savings account in question was opened by Mr. Hewitt, entirely with his own funds, on March 2, 1962, subsequent to the execution of his will and prior to his retirement. In the eight and one-half months following the opening of the account and preceding his death, Mr. Hewitt made fourteen deposits and no withdrawals.
The account was opened with a signature card executed by Mr. Hewitt and the defendant. The latter testified that, pursuant to Mr. Hewitt's request, she visited him one evening at his home; that he presented her with the card and told her to sign it; that she asked him what the card was for and "he kind of giggled, or laughed, and he said, well, who knows, someday somebody may want to pay some bills"; that she signed the card and left it with him, and that no *300 other discussion about the matter ever took place between them.
The defendant had no knowledge of the existence of the savings account until after Mr. Hewitt's death. Then, she and the complainant found, in Mr. Hewitt's desk, two safety deposit box keys which were identified as fitting a box in the Franklin Federal Savings and Loan Association. When the box was opened, the passbook to the savings account was found inside. One month and a half after Mr. Hewitt's death, the defendant withdrew the full balance in the account and placed the funds in a new savings account in the savings and loan association in her own name.
The signature card, which is the focal point of this controversy, was, so far as is pertinent here, in the following language:
". . . Hewitt, Oscar O. . . . and Wilkinson, Nancy Eugenia . . . as joint tenants with right of survivorship and not as tenants in common, and not as tenants by the entirety, the undersigned hereby apply for membership and a savings account in the Franklin Federal Savings and Loan Association and for the issuance of evidence thereof in their joint names described as aforesaid. You are directed to act pursuant to any one or more of the joint tenants' signatures, shown below; it is agreed that any one or more such person(s) so authorized shall have power to act in all matters related to this account, including, but without limiting the generality of the foregoing, the withdrawal in whole or in part of this account, and the pledging of this account in whole or in part as security for any loan made by you to one or more of the undersigned. Any such pledge shall not operate to sever or terminate either in whole or in part the joint tenancy estate and relationship reflected in or established by this contract. 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 is and shall be conclusively intended 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."
. . . "Note: The correct way to establish a common law joint tenancy or its equivalent in any state is to use 'and' in joining tenants' names on all evidence of the account. All tenants should sign this card. . . ." (The italicized language was so emphasized in the signature card itself.)
The sole question to be decided is whether the balance in the *301 savings account belongs to the defendant or to the estate of Oscar O. Hewitt, deceased.
The issue here presented is not new to this court nor to the courts throughout the country. At the threshold of our discussion, however, we note that never before, in the cases coming before us, have we encountered language in a signature card as comprehensive as in that signed by Mr. Hewitt and the defendant.
The court was first confronted with this type of problem in 1917 in Deal's Adm'r Merchants, &c., Bank, 120 Va. 297, 91 S.E. 135. There, Martha S. Deal asked a friend to deposit her money in the bank, saying that she did not expect to live long and that when she died she wanted the money to go to her sister, Ellen C. Holland. The money was deposited in the bank to the credit of "Martha S. Deal or Ellen C. Holland", the bank teller explaining, when the deposit was made, that it was a joint account and that either of the parties named could draw the money at any time. Apparently no written memorial of the transaction was made other than the issuance of the passbook. Upon the death of Mrs. Deal, Mrs. Holland produced the passbook and the deposit was changed to her name alone.
In litigation involving the ownership of the money, we upheld the right of the survivor, Mrs. Holland, to the account. The opinion states that it satisfactorily appeared "that this joint deposit was made with the understanding that the balance thereof, not checked out during the joint lives of the two depositors, was to become the property of the survivor." It was held that "the effect of the deposit by Mrs. Deal to the joint credit of herself and her sister was to create a contract relation between the bank and the two joint depositors, under which the amount to the credit of the account became the property of Ellen C. Holland as the survivor of decedent and herself." 120 Va., at pp. 298-299.
Almost forty years passed before a similar question was presented again to the court. In 1955, King, Ex'x Merryman, Adm'x, 196 Va. 844, 86 S.E.2d 141, was decided. There, Americus V. Dodson in 1949, when he was in an enfeebled condition, opened a savings account in the bank solely with his own funds. He directed "said account to read A. V. Dodson on Mrs. Lottie King . . . a joint account of myself and daughter . . . and subject to the check of either of us or the survivor." In 1951, Mr. Dodson executed a will leaving all of his property to his seven children, share and share alike. Later in the same year, he died. In a contest between Mrs. King, the designated *302 survivor, and the estate, the latter was held to be entitled to the funds on deposit.
Mr. Justice Spratley, writing for the court, made an exhaustive survey of the case, text and statutory authority upon the subject, drawing from many jurisdictions to present an able discussion of all phases of the problem. It was noted that, in determining the ownership of such accounts, "the intention of the depositor is a primary and controlling factor." 196 Va., at p. 851. The rule was recognized that "where the deposit by a person is in the name of himself and another, not his wife, the presumption is that it was done for the purposes of convenience only, and this presumption is strengthened by the illness or infirmity of the depositor." 196 Va., at p. 856.
It was held that the evidence and the surrounding facts and circumstances all pointed to the conclusion "that the deceased put the savings account in the joint name of himself and daughter as a matter of convenience." 196 Va., at pp. 858, 859.
A similar issue was before the court in 1958 in Wrenn Daniels, 200 Va. 419, 106 S.E.2d 126. In that case, Marshall Wrenn, Sr., entirely with his own funds, opened a savings account in a building association in the names of himself and his son, Marshall Wrenn, Jr., "as joint tenants with the right of survivorship and not as tenants in common." The father also opened a checking account in a bank in the names of "Marshall Wrenn or Marshall Wrenn, Jr., or survivor." The senior Wrenn further had certificates for stock, purchased solely by him, changed to read "Marshall Wrenn and Marshall Wrenn, Jr., as joint tenants with right of survivorship and not as tenants in common." In his will, the father divided his estate equally between his son and daughter.
Following the death of Marshall Wrenn, Sr., a contest developed over the ownership of the stock certificates and the funds in the savings and checking accounts. The estate of Wrenn, Sr., and not the son, was held to be the owner. The evidence clearly showed that the father intended that his estate should be shared "fifty-fifty" by his children. It was conclusively proved that the accounts and stock certificates were placed in joint names purely for the convenience of the elder Wrenn, so that the son could take care of his father's expenses in case the latter was "taken ill and could not do it himself . . . that he had seen how helpless his wife was when she was sick, and that he wanted his bills paid."
In 1962, the case of Quesenberry Funk, 203 Va. 619, 125 S.E.2d *303 869, came before the court. The factual situation was the Walter S. Coalson, who had been ill a long time, opened a savings account in a bank in his name and the name of his daughter, Thelma C. Quesenberry, "jointly, with the right of survivorship." Following Coalson's death, Mr. Quesenberry, the executor under Coalson's will, included the funds in the account as assets of the estate. Mrs. Quesenberry made no claim to the account until an employee of the bank suggested that it belonged to her.
In the litigation which followed, the funds in the account were held to be the property of the estate. All of the testimony showed that the reason Coalson opened the account jointly with his daughter was so that she "could look after his business and keep his bills and everything paid up, and look after his needs."
Stevens Sparks, Executrix, 205 Va. 128, 135 S.E.2d 140, was decided on March 9, 1964. In that case, the evidence showed that Edward Bascom Stevens had lived separate and apart from his wife for more than thirty years and had twice unsuccessfully tried to secure a divorce from her. Miss Sparks, a nurse, had lived in his hime for twenty-eight years, caring for his elderly brothers and sisters. Stevens opened two savings accounts in a savings and loan association and a checking account in a bank in his name and that of Miss Sparks "as joint tenants with right of survivorship, and not as tenants in common." He made a will leaving everything to Miss Sparks and executed a deed conveying his home to her in fee simple.
Following Mr. Stevens' death in an automobile accident, a dispute arose between Miss Sparks and Mrs. Stevens as to the ownership of the accounts. It was shown that Stevens had, on several occasions, stated to an attorney that he wanted Miss Spraks to have the accounts; that he desired that she should have his entire estate, and that "he did not want his wife to get one cent of anything he possessed, but on the contrary Miss Sparks was to have it all." We held that Miss Sparks was entitled to the funds in the accounts.
Thus, it appears that the golden thread of decision running through these cases is that the intention of the depositor is the all-important consideration. Where there was, in the terms of the deposit, a clear expression of an intention that the survivor should become the owner of the account upon the death of the depositor, as in the Deal case, the intention was upheld. Where such an intention was not fully disclosed by the terms of the deposit but clearly appeared when the terms were considered along with other evidence, as in the Stevens case, effect was given to the intention. But where *304 a contrary intention was shown to exist, as in the King, Wrenn and Quesenberry cases, the court did not hesitate to exclude the pretended rights of the survivor.
The case before us has only one element in common with those cases in which the survivors' rights were denied. The language, "as joint tenants with right of survivorship", in the signature card signed by Mr. Hewitt and the defendant, was similar to the terms of the deposits in the other cases. But here the similarity ceases. The signature card now before us, unlike the terms of the deposits in those cases, is fully descriptive of the rights of the parties and contains this crucial language:
". . . 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 is and shall be conclusively intended 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. . . ." (Emphasis included in the signature card itself.)"
The complainant contends that this language is insufficient, in view of the circumstances surrounding the deposit, to constitute the transaction between Mr. Hewitt and the defendant as a gift inter vivos. There is lacking, the complainant says, the essential elements of acceptance by the defendant and divesting of control by Mr. Hewitt.
What was said in the Deal case is appropriate here. There the court described such a transaction as "a pure contractual relation and no question of gift . . . arises in determining the rights of the parties under such a contract." 120 Va., at p. 299.
We hold that the rights of the parties are to be determined, not by principles applicable to gifts inter vivos, but by rules pertaining to the interpretation of contracts. Those rules require us to search for, and give effect to, the intention of the parties. Accordingly, the provisions of the signature card come eloquently into play. That signature card constituted a contract made with the savings and loan association and controlled the terms of the account.
It is here that attention must be given to two statutory provisions which touch upon the question under consideration. Code, | 55-20 abolishes survivorship as between joint tenants. But Code, | 55-21 specifically provides that | 55-20 shall not apply "to an estate conveyed or devised to persons in their own right when it manifestly appears from the tenor of the instrument that it was *305 intended the part of the one dying should then belong to the others." And it has been held that the provisions of Code, | 55-21 apply to bank accounts. Johnson McCarty, 202 Va. 49, 56, 115 S.E.2d 915.
The contract here made with the savings and loan association manifested a clear intention on the part of Mr. Hewitt that the savings account should, upon his death, belong to the defendant. That intention resulted in the creation of an express right of survivorship in the defendant, in accordance with the saving features of Code, | 55-21.
In so deciding, we do not overlook what has been said in our previous cases that, in situations similar to the one before us, there arises a presumption that the account was opened for the convenience of the depositor. Here, any such presumption pales in the light of the language of the deposit contract and the circumstances surrounding its excution.
Unlike the King, Wrenn and Quesenberry cases, the evidence in this case negates the notion that the account was opened by Mr. Hewitt merely for his convenience. At the time the signature card was executed and the deposit made, he was in good health, active and alert, with no apparent concern about his ability to handle his own affairs. And it is a singular fact that the record fails to disclose that, even after he became ill, Mr. Hewitt ever called upon the defendant or anyone else to transact any business or to pay any bills for him.
Mr. Hewitt was a trained accountant with long experience, versed in the intricacies of bank and savings and loan accounts. He was obviously well informed concerning the disposition of estates. A copy of his will is found in the record. Written entirely by his own hand, it is a model of testamentary perfection. It would be own hand, it is a model of testamentary perfection. It would be about when he created the survivorship account with the defendant.
On the other hand, it is entirely fair to draw from the evidence the conclusion that Mr. Hewitt deliberately intended to favor his niece, the defendant, over his nephew, the complainant, in the distribution of his worldly goods upon his death. His close attachment to her and her long devotion to him establish abundant reason for his action. And it is significant that the opening of the savings account followed, and not preceded, the execution of his will which, without the opening of the account, would have resulted in an equal division of his estate between his niece and nephew. *306
The complainant clings to Mr. Hewitt's statement to the defendant, made when she executed the signature card, for support of his argument that the account was opened for the convenience of the depositor. That statement was, "who knows, someday somebody may want to pay some bills." Mr. Hewitt could well have meant the "someday" to be after his death; the "somebody" to be the defendant, and the "some bills" to be her bills, and not his. The statement tends to support, rather than detract from, Mr. Hewitt's intention to create a survivorship account.
We said in King Merryman, supra:
"It seems to be well settled that a bank account may be so fixed that two persons shall be joint owners thereof during their lives, and the survivor take on the death of the other. This may depend upon the terms of the deposit, that is the contract made with the bank, or upon the intention of the depositors as disclosed by their declarations, oral or written." 196 Va., at p. 858.
We welcome the opportunity to say that the savings account now before us is one envisioned by the quoted language. The account here was so fixed that the defendant was entitled to its proceeds upon the death of Mr. Hewitt, in accordance with his declared intention, an intention undimmed by any evidence in the case.
The decree appealed from will be reversed and a final decree will be entered here declaring the defendant to be the true owner of the balance, as of November 17, 1962, of the funds in the savings account opened by Mr. Hewitt on March 2, 1962, in the Franklin Federal Savings and Loan Association.
Reversed and final decree. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1744036/ | 436 So. 2d 349 (1983)
Erling Knud Ove HANSEN, Appellant,
v.
FLORIDA PAROLE AND PROBATION COMMISSION, Appellee.
No. AT-406.
District Court of Appeal of Florida, First District.
August 19, 1983.
Erling Knud Ove Hansen, pro se, for appellant.
Enoch J. Whitney, Gen. Counsel, and Doris E. Jenkins, Asst. Gen. Counsel, Tallahassee, for appellee.
ON MOTION TO DISMISS
PER CURIAM.
Appellee's motion to dismiss is granted. See Thomas v. Florida Parole and Probation Commission, 436 So. 2d 349 (Fla. 1st DCA 1983). Hansen's notice of appeal was filed June 14, 1983. Hansen may seek his remedy *350 in the circuit court by way of petition for an extraordinary writ.
ROBERT P. SMITH, Jr., WIGGINTON and NIMMONS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4516231/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-7366
KENDEAL ONEAL JONES,
Petitioner - Appellant,
v.
WARDEN WILLIAMS,
Respondent - Appellee.
Appeal from the United States District Court for the District of South Carolina, at Beaufort.
David C. Norton, District Judge. (9:19-cv-01386-DCN)
Submitted: March 10, 2020 Decided: March 13, 2020
Before NIEMEYER and AGEE, Circuit Judges, and SHEDD, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Kendeal Oneal Jones, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kendeal Oneal Jones seeks to appeal the district court’s orders accepting the
recommendation of the magistrate judge and dismissing without prejudice Jones’ 28 U.S.C.
§ 2254 (2018) petition for failure to exhaust state court remedies, and denying Jones’ Fed.
R. Civ. P. 59(e) motion to alter or amend judgment. The orders are not appealable unless
a circuit justice or judge issues a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A)
(2018). A certificate of appealability will not issue absent “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2018). When the district court
denies relief on the merits, a prisoner satisfies this standard by demonstrating that
reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong. See Buck v. Davis, 137 S. Ct. 759, 773-74 (2017). When, as here, the
district court denies relief on procedural grounds, the prisoner must demonstrate both that
the dispositive procedural ruling is debatable and that the petition states a debatable claim
of the denial of a constitutional right. Gonzalez v. Thaler, 565 U.S. 134, 140-41 (2012)
(citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
We have independently reviewed the record and conclude that Jones has not made
the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the
appeal. We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
DISMISSED
2 | 01-03-2023 | 03-13-2020 |
https://www.courtlistener.com/api/rest/v3/opinions/2266407/ | 681 A.2d 1152 (1996)
James A. BRITTON, Jr., Petitioner,
v.
DISTRICT OF COLUMBIA POLICE AND FIREFIGHTERS' RETIREMENT AND RELIEF BOARD, Respondent.
No. 95-AA-66.
District of Columbia Court of Appeals.
Argued March 13, 1996.
Decided August 22, 1996.
*1153 James W. Pressler, with whom Robert S. Over was on the brief, Washington, DC, for petitioner.
Phillip A. Lattimore, III, Assistant Corporation Counsel, with whom Charles F.C. Ruff, Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for respondent.
Before FERREN and TERRY, Associate Judges, and KERN, Senior Judge.
TERRY, Associate Judge:
Petitioner Britton, a twenty-six-year veteran of the Metropolitan Police Department, seeks review of an order by the Police and Firefighters' Retirement and Relief Board. The Board found that his disabling hearing loss was the result of a non-work-related injury; consequently, his retirement benefits would be determined under D.C.Code § 4-615 (1994) rather than under the more generous provisions of D.C.Code § 4-616, which applies when a disability results from a work-related injury. Officer Britton claims that the government failed to meet its burden of showing that his disability is due to a nonwork-related, pre-existing condition. We agree and, accordingly, remand this case to the Board for further proceedings.
I
At the hearing before the Board on his application for disability retirement, Officer Britton testified that on the evening of October 31, 1991, he was assigned to the Halloween crowd control detail in the Georgetown section of the city. At approximately 2:45 a.m. on November 1, he was standing about five feet from the tailpipe of a city-owned bus that was about to take him and other officers back to the Second District police station. When the bus driver started the engine, the exhaust system backfired with such force that several officers in the vicinity thought a bomb had exploded and drew their weapons. Officer Britton told the Board that immediately after the explosion he experienced a ringing in his right earthe ear that was turned toward the bus.
A few hours later, Officer Britton reported to the Police and Fire Clinic complaining of pain and ringing in his ear. The clinic physician, Dr. William Chin-Lee, told Officer Britton that four other officers in the vicinity of the bus that night had also reported to the clinic with similar complaints of pain and deafness. Officer Britton was referred to Dr. Joseph C. Chapman, Jr., an otolaryngologist at Providence Hospital, for further tests on his ear. According to Britton's testimony at the hearing, Dr. Chapman told him that the backfire had caused nerve damage that "knocked out" his inner ear. In a letter to the Police and Fire Clinic dated December 2, 1991, Dr. Chapman wrote that Officer Britton's history "is suggestive of acoustic trauma. . . ."
Under questioning from the Board, Officer Britton confirmed that a routine visit to the Police Clinic in 1978 had revealed a previously unnoticed hearing loss for high-frequency sound waves. This discovery came as a surprise to Officer Britton, who testified that up to that time he had never had any problems with his hearing. He added that the doctors at the clinic told him that this hearing loss was "not a serious condition" and that "the average policeman out on the street, through traffic noise and use of the red light siren, would suffer this high frequency loss, and it was very minor."
Following the backfire of the bus, however, the decline in Officer Burton's hearing was rapid and dramatic. His testimony before the Board was confirmed by medical evidence. A series of hearing tests administered to Officer Britton after the backfire incident showed an abrupt change for the worse in his tone recognition threshold when compared with a test dating from August 1990.
In its final order, the Board found that Officer Britton was "approximately five feet *1154 from the rear of the bus" when it backfired, but it refused to attribute his hearing loss to this incident. The Board based its decision on "records" which, in its view, demonstrated that a "prior existing hearing condition" (emphasis in original) was the true cause of Officer Britton's hearing loss. According to the Board, this condition had first been diagnosed on a visit to the Police Clinic on May 16, 1978. On that date, an audiological evaluation showed that Britton had "a high frequency sensory [nerval] hearing losscochlear pattern on the right." According to the Board, Dr. David Resnick, the specialist who examined Officer Britton after that test, "found evidence of cochlear pathology." Moreover, the Board interpreted Dr. Chapman's analysis of Officer Britton's condition in 1991 to mean that "the hearing loss is for some other reason than the backfire." The Board placed great weight on a written statement by Dr. Chapman which said that Officer Britton's history
is suggestive of acoustic trauma, although the configuration of the hearing loss is not typical for a loss from that etiology. The findings in the middle ear demonstrated by MRI are compatible with an inflammatory process. The findings, however, do not seem to impact on the hearing since there is no significant conductive component to the hearing loss.
The Board also pointed out that Officer Britton had begun to suffer from vertigo, which "by definition ... seems unrelated to the sudden one-time loud noise of the backfire incident." Finally, the Board cited the hearing testimony of Dr. Jaime Botello that "the condition that [Britton] now suffers from is the same condition that [he] suffered from in 1978. . . ."
In conclusion, the Board stated that "based on a preponderance of the evidence and in the absence of any medical evidence linking the hearing loss with the bus backfire incident, and considering the medical evidence supporting a hearing loss since 1978, the Board finds that member has been suffering from a hearing loss condition from at least 5-16-78, that was not related to any on-duty incident."
II
There is no dispute that Officer Britton's hearing loss is disabling. Both sides agree that it places him and any prospective partner in danger by making it difficult to obtain important information over the radio and to hear what is going on around him. Moreover, Officer Britton now suffers from vertigo, a dysfunction that makes it difficult for him to keep his balance. At the time of the Board hearing, he had been on sick leave for almost three years.
The controversy here is about whether Officer Britton's disability is a direct consequence of the on-duty incident involving the backfire of a bus. The Board ruled that the disability was directly attributable to the hearing loss that was documented in 1978, which the Board characterized as a "prior existing hearing condition." In support of this conclusion, the Board cited a letter dated May 23, 1978, from Dr. David M. Resnick, the Director of the Hearing and Speech Center at the Washington Hospital Center, to the Police and Fire Clinic, which reported that the hearing loss he detected in Officer Britton "supports cochlear pathology." The Board also relied on the testimony of Dr. Jaime Botello of the Police and Fire Clinic, who stated that "the condition that [Officer Britton] now suffers from is the same condition that [he] suffered from in 1978."[1] Having found that Officer Britton's hearing loss dated from 1978, the Board denied him benefits under D.C.Code § 4-616 because his hearing loss "was not related to any on-duty incident."
Under the District of Columbia Administrative Procedure Act, D.C.Code §§ 1-1501 et seq. (1992), this court's review of administrative decisions such as those by the Police Retirement Board is limited. We may not substitute our judgment for that of the Board. Di Vincenzo v. District of Columbia Police & Firefighters Retirement & Relief Board, 620 A.2d 868, 872 (D.C.1993). Our *1155 review is limited to ensuring that the Board (1) made findings of fact on each material, contested factual issue, (2) based those findings on substantial evidence, and (3) drew conclusions of law which followed rationally from the findings. Id.; Allen v. District of Columbia Police & Firefighters' Retirement & Relief Board, 528 A.2d 1225, 1229 (D.C. 1987). Before reaching a conclusion of law, the Board must "make a `meaningful attempt to come to grips with the difficult factual issues raised'" by the parties. Di Vincenzo, supra, 620 A.2d at 872 (quoting Eilers v. District of Columbia Bureau of Motor Vehicles Services, 583 A.2d 677, 685 (D.C.1990)).
The police disability benefit system in the District of Columbia is structured so that a police officer "may recover disability retirement benefits under the more generous provisions of § 4-616 if the injury or illness was incurred in the line of duty and was itself disabling or disabling because it aggravated a pre-existing injury or illness which had also been job-related." Allen, supra, 528 A.2d at 1230; accord, Dowd v. District of Columbia Police & Firefighters' Retirement & Relief Board, 485 A.2d 212, 216-217 (D.C.1984); Kirkwood v. District of Columbia Police & Firemen's Retirement & Relief Board, 468 A.2d 965, 968-969 (D.C.1983). Benefits under section 4-616 are available when a disability results either from an injury incurred in the performance of duty or from the aggravation of such an injury. Croskey v. District of Columbia Police & Firefighters' Retirement & Relief Board, 596 A.2d 988, 989 (D.C.1991). Such benefits are not granted when the on-duty injury aggravates a pre-existing, non-service-related injury. See D.C.Code § 4-615; Croskey, supra, 596 A.2d at 989; Kirkwood, supra, 468 A.2d at 969. However, when a claimant makes a showing that he or she was injured in an on-duty incident, "the burden of proceeding shifts, and it is incumbent upon the government to adduce substantial evidence tending to disprove the inference that the disability resulted from the on-duty injury." Croskey, supra, 596 A.2d at 991 (citations omitted); accord, e.g., Baumgartner v. Police & Firemen's Retirement & Relief Board, 527 A.2d 313, 315 (D.C.1987).
In this case the central factual issue before the Board was whether Officer Britton's disability resulted from an on-duty injury. Britton was on duty on November 1, 1991, when a bus backfired five feet from his right ear. The tests administered to Officer Britton before and after this incident showed a substantial decline in his hearing after the backfire incident, and Dr. Chapman reported that this was "suggestive of acoustic trauma...." Dr. Chapman also told Officer Britton that the sound of the backfire had caused nerve damage that "knocked out" his inner ear. Given this evidence, we hold that Officer Britton met his burden of showing that he was injured in the line of duty. We further hold, consistently with such cases as Croskey and Baumgartner, that the burden then shifted to the government to present substantial evidence to rebut the "logical inference" that the officer's disability resulted from the on-duty injury. Baumgartner, 527 A.2d at 315; accord, Croskey, 596 A.2d at 991.
Thus far the government has failed to present such evidence. While the hearing test administered to Officer Britton in 1978 showed that he had suffered some hearing loss in his high tones, nowhere in the record is there an actual diagnosis of what caused that hearing loss. Statements that Officer Britton in 1991 suffered from the "same condition" that afflicted him in 1978 are uninformative because that "condition" had been diagnosed only by its obvious symptom: hearing loss in the high-frequency range. But "hearing loss" itself is not a diagnosis. The government presented no evidence of the etiology of the 1978 hearing loss. Without a diagnosis of the "pre-existing" condition allegedly causing Officer Britton's disability, the Board's order is unsupported by substantial evidence disproving the inference that the disability resulted from the on-duty injury in 1991.[2]
Moreover, even if the government could demonstrate that the 1991 hearing loss was an aggravation of the hearing loss detected *1156 in 1978 (which on this record is still an open question), it would also have to prove by substantial evidence that the 1978 hearing loss was not the result of an on-duty injury. The only evidence of the cause of the 1978 hearing loss was provided by Officer Britton, who testified that the doctors had told him that "the average policeman out on the street" experienced such losses as a result of traffic noise and the use of police sirensin other words, that a hearing loss such as that discovered in 1978 was attributable to an onduty injury. Thus Officer Britton would still be entitled to disability benefits under D.C.Code § 4-616 because, according to the unrebutted evidence, the 1991 backfire incident aggravated a pre-existing work-related injury.
Summing up, we hold that Officer Britton made a sufficient showing that he was disabled in the performance of duty when the bus backfired on November 1, 1991. Consequently, the burden shifted to the government "to adduce substantial evidence tending to disprove the inference that the disability resulted from the on-duty injury." Croskey, supra, 596 A.2d at 991 (citations omitted). The government failed to meet that burden. Specifically, without a diagnosis of the "condition" detected in 1978 (and "hearing loss" is not a diagnosis, but only a symptom), the government cannot claim that Officer Britton suffered from a non-work-related "pre-existing condition" barring an award of benefits under D.C.Code § 4-616. Thus the Board's order, based on the government's "pre-existing condition" theory, is not supported by substantial evidence.
The order denying Officer Britton's application is reversed. This case is remanded to the Board for further proceedings consistent with this opinion.
Reversed and remanded.
NOTES
[1] Dr. Botello readily admitted, however, that he was not a specialist in ear disorders, and there was no evidence that Dr. Botello had ever examined Officer Britton's ears himself.
[2] Both in its brief and at oral argument, the government has made repeated reference to the fact that Officer Britton broke his jaw during a touch football game in 1976. Although this was a severe injury, there is absolutely no evidence in the record of any causal connection between this fracture and the officer's hearing loss. Moreover, the broken jaw was never mentioned by the Board in its decision. A letter from Dr. Martin P. Kolsky to the Police and Fire Clinic, dated December 2, 1976, which describes the trauma to Officer Britton's head that accompanied the broken jaw, does not make a single reference to his ears or his hearing. Nor, for that matter, does the two-page, single-spaced narrative of the reconstructive surgery performed on the jaw by Dr. Bruce Feldman. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266418/ | 461 F.Supp. 748 (1978)
REED-JOSEPH COMPANY, Plaintiff,
v.
Austin J. DeCOSTER, d/b/a DeCoster Egg Farms, Defendant.
No. GC 77-144-S.
United States District Court, N. D. Mississippi, Greenville Division.
June 30, 1978.
*749 Lawrence D. Wade, Campbell & DeLong, Greenville, Miss., for plaintiff.
Jerome C. Hafter, Lake, Tindall, Hunger & Thackston, Greenville, Miss., for defendant.
MEMORANDUM OF DECISION
ORMA R. SMITH, District Judge.
The plaintiff in this action is Reed-Joseph Company (hereafter "Reed-Joseph"). Plaintiff is a Delaware corporation with its principal place of business in Greenville, Washington County, Mississippi, where it operates a factory in which it manufactures grain bins and accessories useful in the operation of egg farms and other similar type operations.
Defendant is Austin J. DeCoster (hereafter "DeCoster") doing business as The DeCoster Egg Farms. DeCoster is a citizen of the State of Maine and resides in Turner, County of Androscroggin. DeCoster is a farmer and produces eggs on his farm at the place of his residence and elsewhere.
Reed-Joseph brings this action to collect an open account claiming DeCoster owes it $88,781.09. Service of process was obtained upon DeCoster pursuant to Mississippi's Long-Arm Statute, Miss.Code Ann. § 13-3-57 (1972). This action is before the court on DeCoster's motion to dismiss or for change of venue pursuant to 28 U.S.C. § 1404(a),[1] to the Maine United States District Court, the district of DeCoster's domicile.
The affidavits presented by the parties reflect the following facts. In 1976, DeCoster contacted Reed-Joseph regarding the purchase of storage bins and related equipment. Reed-Joseph prepared for DeCoster and submitted to him drawings, engineering specifications and quotations for the grain system. The system was manufactured at the Reed-Joseph plant in Greenville and delivered to DeCoster at his farm or farms at or near the place of his residence. DeCoster paid for the original system. The negotiations for the manufacture, sale and delivery of the original system, were conducted principally over long-distance telephone. Neither DeCoster or his representative visited Mississippi during the period of negotiations or in connection with the sale and/or delivery of the system.
DeCoster contemplated the purchase of additions to the system purchased from Reed-Joseph and at DeCoster's request drawings were prepared for such additions. Additional equipment was ordered by DeCoster and shipped to him in Maine. The cost of the additional equipment is the subject matter of this action. There were numerous telephonic contacts between Reed-Joseph and DeCoster, the participants representing Reed-Joseph being in Greenville, Mississippi, and those representing DeCoster in Turner, Maine. The purchase price for the additions to the original system was payable at the office of Reed-Joseph in Greenville, Mississippi.
Reed-Joseph claims that on two occasions in September, 1977, a representative of DeCoster called the Reed-Joseph Greenville, Mississippi, plant from the Holiday Inn in Greenville, Mississippi, requesting documents concerning the additions to the original system which are the subject of this litigation. Practically all of the purchases had been made by that time and such instances, if any, in the opinion of the court, are not relevant to the issues herein. DeCoster *750 states that he has never had any contact with Mississippi except to pass through the state on one occasion while on vacation.
DeCoster contends that he has not had sufficient contact with Mississippi to justify personal service upon him under the Mississippi Long-Arm Statute and to subject him to the in personam jurisdiction of the court under the facts here present would offend the "`traditional notions of fair play and substantial justice'" concept of International Shoe Co. v. Washington, 326 U.S. 310, at 316, 66 S.Ct. 154, at 158, 90 L.Ed. 95, at 102 (1945). While the Mississippi Supreme Court and the federal courts sitting in Mississippi, as well as the United States Court of Appeals for the Fifth Circuit have extended the reach of the Mississippi Long-Arm Statute, the validity of service under conditions similar to those shown to exist in the action sub judice has not been recognized by any of these courts insofar as the court has been able to ascertain.[2]
Here, the only fact which could arguably justify in personam jurisdiction under the statute is that the system was fabricated in Mississippi according to plans and specifications especially prepared in Mississippi by Reed-Joseph to suit the needs of defendant. This activity was performed by Reed-Joseph in order to place itself in a position to make the sale of its system to its Maine customer. The sale of the system was negotiated by telephonic means and correspondence. DeCoster was never present in Mississippi at any time and had no other business connections within the state.
The contacts that DeCoster had with Mississippi are similar to the contacts the defendant had with the State of Texas in Barnstone v. Congregation AM Echad, 574 F.2d 286, (1978) where the Fifth Circuit upheld the district court's adoption of the magistrate's recommendation for dismissal of a non-resident defendant on the ground that the defendant did not have sufficient contacts to support in personam jurisdiction under the Texas' Long-Arm Statute. The plaintiff in Barnstone was a Texas architect who brought the action in a Texas Federal District Court against a non-profit religious corporation registered under the State of Maine. Plaintiff brought the action to collect fees allegedly owed for work he had performed for defendant. Defendant had asked plaintiff to make a presentation and be considered for receiving an architectural commission. No officer, agent, or other representative of defendant ever came to Texas. Plaintiff went to Maine, made his presentation and was awarded the commission. Plaintiff performed all drawings, sketches and other work at his office in Texas and was to supervise the construction in Maine. All negotiations were by telephone or mail. The only evidence of the parties' agreement was a standard form contract issued by the American Institute of Architect which had been signed by plaintiff but not by defendant. One provision of this contract provided that the agreement was to be governed by the law of the principal place of business of the architect, which in this case was the State of Texas. Plaintiff procured a Maine architect's license so that he could perform architectural services in that state.
Under the Texas Long-Arm Statute, a person is considered to be "doing business" if he "has entered into a contract by mail with a Texas resident that is to be performed in part in the State of Texas". 574 F.2d at 288. The plaintiff argued that since all drawings and sketches were done in the State of Texas and all correspondence including the contract was sent to his office in Texas and since the contract provided that the agreement was to be governed by the law of Texas, there existed sufficient contacts with the State of Texas to support in personam jurisdiction under the Texas *751 Long-Arm Statute. The Fifth Circuit affirmed the magistrate's recommendation which rejected plaintiff's argument and which stated:
Assuming that plaintiff's endeavor in making the drawings, renderings and models in Texas constitutes partial performance, it is the opinion of the undersigned that the defendant's contacts with the State are insufficient to satisfy the Hanson and O'Brien tests of purposeful activity by defendant within the State of Texas.... It is well settled that the unilateral activity of those who claim some relationship with a non-resident defendant cannot satisfy the requirement of contact with the forum state. Hanson v. Denckla, supra, 357 U.S. [235] at p. 253, 78 S.Ct. 1228, [2 L.Ed.2d 1283]. After careful review of the pleadings and affidavits, the undersigned is of the opinion that defendant has neither transacted any purposeful activity within the State of Texas nor has it invoked the benefits and protection of the laws of Texas and thus fails to meet the tests for jurisdiction as described in O'Brien, supra.[3]
In Holvitz v. Norfleet-Ashley, Inc., 369 F.Supp. 394 (N.D.Miss.1973), this court said:
Plaintiffs contend that Diamond Steel has been and is now doing business in Mississippi without having qualified as a foreign corporation to do so. For this reason plaintiffs contend that Diamond Steel is subject to process under Mississippi's long arm statute. The law is clear that process served pursuant to Section 13-3-57 is not valid or effective to subject the non-resident defendant to in personam jurisdiction unless the cause of action arises from, or is connected with, the purposeful consummation of some transaction or performance of some act within the state by such non-resident defendant. Mladinich v. Kohn, 250 Miss. 138, 164 So.2d 785 (1964); Republic-Transcon Industries, Inc. v. Templeton, 253 Miss. 132, 175 So.2d 185 (1965); Breckenridge v. Time, Inc., 253 Miss. 835, 179 So.2d 781 (1975); Smith v. Barker, 306 F.Supp. 1173 (N.D.Miss.1968).
369 F.Supp. at 396 (footnote omitted).
It appears to the court that this action is really for the purpose of collecting the amount allegedly due on the sale of products manufactured in Mississippi and sold to a non-resident buyer on open account. The court is of the opinion that the motion to dismiss on account of the lack of in personam jurisdiction over the defendant is well taken. However, since the motion to dismiss is accompanied by a motion to transfer, the court finds that it is authorized to transfer the action to the United States District Court of Maine, being the district in which the defendant is a citizen, even though in personam jurisdiction does not exist.
As this court said in Haire v. Miller, 447 F.Supp. 57 (N.D.Miss.1977):
The court's ruling that it lacks personal jurisdiction over the defendants does not automatically moot plaintiff's motion to transfer. A court having subject matter jurisdiction, as this court does, but lacking personal jurisdiction over the defendant, still has authority under 28 U.S.C. *752 § 1404(a) or 28 U.S.C. § 1406(a) to order a transfer to another district. Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962) (transfer under Section 1406(a)); Koehring Co. v. Hyde Construction Co., 324 F.2d 295, 297-98 (5th Cir. 1963) (transfer under Section 1404(a)).
447 F.Supp. at 59.
Defendant moves to transfer the case to the district of his residence for the convenience of the parties and witnesses, and in the interest of justice, for which provision is made in section 1404(a), supra. In support of his position, defendant has submitted an affidavit of his Maine counsel in which it is shown that upon the trial of the action, in order to fairly present the claims and defenses of DeCoster, four of DeCoster's employees who live in Maine, as well as DeCoster himself, will be called upon to testify. Additionally, it is shown that the grain system has been installed in and is a part of the equipment used by DeCoster in the operation of his egg farms. Should it become necessary to decide the issues with reference to the useability or fitness of the bins for DeCoster's use, the bins would be subject to inspection in that district.
Of course, if this case is transferred plaintiff has shown by affidavit that several of plaintiff's employees, who live in Mississippi, will have to travel to Maine in order to testify.
However, since the court finds that in personam jurisdiction cannot be obtained upon DeCoster in Mississippi and that the motion to dismiss would be in order were it not for the fact that the case could be transferred, the court feels that under the circumstances, a transfer is proper.
Accordingly, in the interest of justice and for the convenience of the parties, the court will order the action sub judice transferred to the United States District Court of Maine.
NOTES
[1] 28 U.S.C. § 1404(a) provides "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."
[2] See e. g., Dawkins v. White Products Corp., 443 F.2d 589 (5th Cir. 1971); R. Clinton Construction Co. v. Bryant & Reaves, Inc., 442 F.Supp. 838, 849-50 (N.D.Miss.1977); Edwards v. Associated Press, 371 F.Supp. 333 (N.D.Miss. 1974), rev'd and remanded, 512 F.2d 258 (5th Cir. 1975); Breedlove v. Beech Aircraft Corp., 334 F.Supp. 1361 (N.S.Miss.1971); Shackelford v. Central Bank of Mississippi, 354 So.2d 253 (Miss.1978); Trane Co. v. Taylor, 295 So.2d 746 (Miss.1974); Smith v. Temco, Inc., 252 So.2d 212 (Miss.1971).
[3] The Hanson test referred to is found in Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958). The O'Brien test is found in O'Brien v. Lanpar Co., 399 S.W.2d 340 (Tex.1966), where the Supreme Court of Texas presents three basic factors necessary for jurisdiction over a non-resident defendant:
(1) The non-resident defendant or foreign corporation must purposely do some act or consummate some transaction in the forum state,
(2) the cause of action must arise from, or be connected with, such act or transaction, and
(3) The assumption of jurisdiction by the forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.
399 S.W.2d at 342.
In Mladinich v. Kohn, 250 Miss. 138, 164 So.2d 785, 790 (1964), the Mississippi Supreme Court quoting from Tyee Constr. Co. v. Dulien Steel Products, Inc., 62 Wash.2d 106, 381 P.2d 245, 251 (1963), set forth and adopted the identical three factors. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1373763/ | 167 Cal.App.2d 803 (1959)
THE PEOPLE, Respondent,
v.
FRANCIS EDGAR BALLARD, Appellant.
Crim. No. 6222.
California Court of Appeals. Second Dist., Div. One.
Feb. 13, 1959.
Morris Lavine for Appellant.
Edmund G. Brown, Attorney General, and Arthur C. de Goede, Deputy Attorney General, for Respondent.
FOURT, J.
This is an appeal from a judgment and order denying the defendant's motion for a new trial upon two counts of abortion.
In count II of an information filed by the district attorney of Los Angeles County the defendant was charged with performing an abortion upon Martha Frances Gresham on June 10, 1957, and in count III thereof he was charged with performing an abortion on Alice Hankerson Frank on July 12, 1957. A jury heard the evidence and found the defendant guilty on both counts. The defendant's motion for a new trial was denied. The defendant was sentenced to the state prison, the sentences to run concurrently. Sentence was then suspended and the defendant was granted probation for six years on condition, among others, that he pay a $1,000 fine.
It may be well to say at the outset in this case that a great deal of misunderstanding would be avoided in abortion matters if they were considered in the light of the fact that an abortion is not necessarily, in and of itself, an illegal procedure or act. In other words, not all abortions are illegal.
The defendant is a medical doctor practicing his profession *806 in an office in Beverly Hills and at his home in Reseda. He received his bachelor's degree from the University of Washington, graduated from the medical school at Stanford University, worked for one and one-half years in the Department of Obstetrics and Gynecology at Stanford, went to Harvard University for a year on a scholarship and received a master's degree. He was appointed as a medical officer for the California State Department of Health. He has been employed as a Divisional Director of the Los Angeles City Health Department. During World War II he served as a doctor in Walter Reed Hospital and was in charge of a hospital in Africa. He taught at the University of California and also at the University of California at Los Angeles. He has delivered hundreds of babies and has written many articles for various magazines and newspapers.
The facts of this case are essentially as follows: Martha Gresham called and talked with the defendant on May 8, 1957, over the telephone. She said she had a problem, but did not elaborate upon what the problem was. Mrs. Gresham, with her 3-year-old boy, went to the doctor's home office in Reseda on May 10, 1957. She told the doctor that she thought she was pregnant and that she understood he could take care of her. The defendant took her blood pressure and pulse and got some history of her background. She told the doctor that she had been and was very nervous; that she had three children who lived with her; that she had had two miscarriages, and that she had considerable trouble throughout the years with her menstrual periods; that she had seen doctors from time to time about it, and had received shots because of irregularity of her menstrual periods, and that her last menstrual period had been about March 18, 1957. He told her that he did not think she was pregnant and that her nervousness and other conditions might very well have caused the delay in her menstruating. The doctor gave her some pills for her nervous condition and an injection of some medicine.
She insisted that she wanted a laboratory test and indicated from her actions dissatisfaction with the diagnosis of the doctor. She was then sent by the doctor to an independent laboratory where a so-called rabbit test was made upon Mrs. Gresham on May 14, 1957. About three days later she called the doctor to ascertain the results of the rabbit test at the laboratory and was told by the doctor that the laboratory representative had advised him that the test was negative. He again told her that he did not think she was pregnant. *807 She continued to believe that she was pregnant, and again went to see the doctor. Without informing the doctor, she went to the laboratory again on or about May 29, 1957, and had the technicians at the laboratory run another rabbit test. She then told the doctor about having the second laboratory test and wanted to know if he could get the results of such test. The doctor got the test result, which was positive, and told her of the laboratory's finding. The doctor, however, advised her that in his opinion, in spite of the report, she was not pregnant.
About June 3, 1957, she went to the doctor's office in Reseda and he examined her and then told her that it was his then belief that she was pregnant. She explained then that she was in trouble because her husband was in the City of Hope and had had no access to her, and that it was another man's child, namely a man by the name of Cayce. At first she had told the doctor that the child was her husband's child. She asked the doctor if he could help her, and she testified that he stated that he could and that the cost would be $300 to abort her. She further stated that she would try to get the money, and he said that he could not do it without the cash.
On about June 10, 1957, she again went to the doctor's home office accompanied by Patrick Cayce. She stated that the three of them then talked about the money, or lack of money. The doctor wanted cash. Cayce said that he could give the doctor a promissory note payable on an installment basis, to which the doctor finally agreed. A note was made out in the principal sum of $300 and signed by Cayce and returned to the doctor. Cayce then left the room which was used as the doctor's office and went to the front room of the house.
The defendant gave Mrs. Gresham an injection in the arm, which made her drowsy. She undressed and put on a hospital gown and then went to the bathroom. She returned, got on the examining table and was lying on her back with her legs spread apart. The doctor apparently cleansed her with some soap solution. She then felt something in her "privates" which she said felt as though she was being opened up with some sort of an instrument. She felt a pulling sensation up to her stomach. Later the doctor got up and told her to continue to lie upon the table. He asked Cayce to go to a store and get a sanitary belt. Cayce did so and gave it to the defendant. Mrs. Gresham never saw any instrument in the *808 hands of the doctor, and saw no blood at the time of the examination.
The doctor told her to call him later, and to make an appointment after she stopped flowing. Except as to her nervous condition, Mrs. Gresham, from a layman's point of view, appeared outwardly to be in good health when she went to see the doctor. She was not pregnant after June 10, 1957. She had cramps after she left the doctor's office and blood flowed for six weeks thereafter.
Mrs. Gresham did not see any other doctor between June 10th and July 30th, and was not examined by any doctor at the request of the prosecution. Cayce wrote a check on June 17, 1957, for 50 dollars as a part payment on the promissory note, and mailed the check to the doctor. Cayce testified that he never received a letter from the doctor or the check back. However, the fact is that the check was received in evidence without objection, and shows on its face that it was written on "6-17-1957" and that it was cancelled as "Paid 6-19-57." In the latter part of July, Cayce talked with the doctor and inquired whether Mrs. Gresham was all right. The defendant told Cayce of his arrest and asked for the balance upon the promissory note.
Cayce testified, among other things, that he went with Mrs. Gresham to the office of the doctor on June 10, 1957, and that the three of them talked together. Cayce stated that the doctor said that he wanted cash for the abortion. He further testified, in effect, that Mrs. Gresham had said that he, Cayce, was "the father of any child that she expected." Cayce also stated, without reservation, that he had first met Mrs. Gresham some time in May of 1957. The court sustained the objections of the prosecution to any questioning of Cayce as to whether he was the father of the expected child. It is difficult for this court to understand just how Cayce could have admitted, in effect, to being the person who brought about the alleged pregnancy of Mrs. Gresham in March of 1957, as represented by the prosecution, when he, Cayce, apparently, by his own testimony, did not even know Mrs. Gresham until May of 1957.
Alice Hankerson Frank, referred to in the third count, was an "operator" for the State Board of Medical Examiners. She had been married on July 5, 1957. She attended school of some sort and at the time of trial apparently was teaching school in El Monte. She stated that on July 11, 1957, she called the defendant on the telephone supposedly from San *809 Francisco, and made an appointment for the next evening. In that conversation she said that she told the doctor she was three weeks over her menstrual period and that she had been referred to him by a girl friend in San Francisco. Mrs. Frank's further testimony indicates that she made inquiries about how much money she would need, and that the doctor stated, in effect, that $300 would be all right. Mrs. Frank told the doctor that her boy friend had the money, and that he would bring her down from San Francisco.
Mrs. Frank first saw the doctor in the evening on July 12, 1957, at his home office. She went there with Robert Truitt, an investigator for the State Board of Medical Examiners. The defendant was in the yard when they approached and he invited them into the house upon their stating to him that she was the girl who had called him from San Francisco. Truitt testified that he asked if Mrs. Frank would be able to have any more children after the abortion, and the defendant replied that she would be all right and could have children; that he was a medical doctor, a professional man, not a quack, and that he was competent to operate. Mrs. Frank testified the doctor stated that he would curette her; that he would go into her womb and scrape the fetus loose, and that it would come out and she would be all right. She said she also asked about whether it would be painful and whether there would be much bleeding: that the doctor told her that she would bleed a little, but not much, and that she would be troubled with cramps.
She said that she went into the office of the doctor where she and the doctor were alone, and that the doctor asked questions. Truitt, during that period of time, waited in the living room. She told the doctor her name was Alice Hanson, and that she was from San Francisco, and that her companion was named Bob Trout. The doctor wrote this information upon a piece of paper and put it into his pocket. Her testimony was that the doctor asked how long she had been pregnant and how she had been feeling. She stated that she had missed her period due about three weeks before. She further testified that the defendant then stated that he would abort her for $300, and that he would like to give her a tranquilizer shot. He said it was not a drug and that he wanted her relaxed when he performed the operation. That he gave her an injection of one c.c. of Demarol and one c.c. of Dramamine. That at the defendant's suggestion they then went into the living room *810 where Truitt was seated. That she told Truitt of the injection in the arm, which the doctor verified, and that the doctor said it would relax her so that he could go ahead with the abortion.
Truitt testified that he inquired of the doctor whether he was a medical doctor, and that the defendant replied, "Yes, I am a qualified medical doctor. I know what I am doing, and she won't have any after-effects from this abortion." The doctor then told Mrs. Frank to empty her bladder and showed her to the lavatory. The doctor returned to the front room and inquired of Truitt, "Well, who is going to pay? Is she going to pay the $300 or are you going to pay?" Truitt asked if he couldn't abort her for $250, and the defendant replied, "No, I can get in a lot of trouble. I can lose my license and go to jail for doing abortions, and I have got to stick to $300 cash. Have you got it?" Truitt then took $300 from his pocket which he had obtained from State funds, and started to count it out. The money was on the settee when Mrs. Frank returned to the room. Truitt then gave the money to the defendant and said, "Here is the full $300 for the abortion, Doctor." The defendant left the room with the money and then returned and took Mrs. Frank into the operating room, told her to undress and put on a gown, and then he returned to the living room where he told Truitt not to be worried about her, that he knew what he was doing and that Truitt would not have the problem after the abortion. The doctor returned to the room where Mrs. Frank was and helped her on to the table where Mrs. Frank placed her legs in stirrups, with her legs spread apart. The doctor washed the vaginal area with some sterile solution and then inserted a vaginal speculum into her body, explaining that this was so that he could get in with other instruments to clean her out. She screamed for "Bob" and insisted that he be present. The defendant tried to quiet her, and then opened the door and called for Bob to come. The doctor explained that she was upset and had gotten scared and didn't want to go ahead with it. With the three of them present in the operating room, the doctor inserted the vaginal speculum into Mrs. Frank's body and made some adjustments. The doctor then picked up some sponge forceps, which contained some cotton in their grip, and started to enter the vaginal cavity. When Truitt heard the forceps (which were holding the small ball of cotton) strike against the speculum, he identified himself *811 as a special investigator for the State Board of Medical Examiners and arrested the defendant.
Truitt, at the time of pulling out his identification card, which he held in his right hand, also pulled out a "snubnosed Smith and Weston .38 five shell revolver." Truitt said that although he had the gun in his hand, he did not point it at the defendant, that it was "dangling" in his left hand. That he told the doctor "just ... stand there and don't make any motions at all." The defendant replied, in answer to the request to be cooperative under the circumstances (that is, with the investigator standing with gun "dangling" in hand), by saying, "Yes, I'll be glad to. You have caught me cold." Truitt, with the gun in his hand, though as he said, not pointed at the doctor, then had the doctor accompany him to the front door where Truitt gave a signal, and two Los Angeles police officers appeared. Truitt at the time of opening the door for the officers, according to one of the officers, had a ".38 revolver, with a two inch barrel in his left hand." The defendant was put into the care of the two police officers, and Truitt apparently ransacked the establishment for evidence. He stated that he located the $300 which had been paid to the doctor, and also some medical instruments and other matters. Pictures of Alice Frank were then posed for and taken in her semi-naked condition by another police officer. When the pictures of Alice Frank and the doctor were being taken, Truitt said, in answer to a question of the defendant as to whether he had to stay while such pictures were being taken, "Absolutely. You just do what I say." A statement was made by the doctor on a tape recording device, wherein the doctor said, among other things, that the woman had called him from San Francisco and implied that she was pregnant, that he assumed she was pregnant and that he was to interrupt such pregnancy. He also stated that he had aborted Mrs. Gresham in May of 1957 for a fee of $300, but that he had only received $50.
In passing, at this point it is interesting to note that, as heretofore indicated, the investigator testified in the first instance positively and without reservation that he paid $300 to the doctor. He was certain of the amount, and likewise Alice Frank was certain of the amount. The investigator stated that he had written down in advance the denominations and the serial numbers of the bills in question on a piece of paper which he had kept, and which paper was introduced into evidence. He said there were "ten five-dollar bills and *812 ten ten-dollar bills and five twenty- dollar bills." Likewise, he said that later on he recovered the bills from the doctor and checked each one off from his previously prepared list. The only difficulty is that the figures, as written down and as testified to, did not total $300, but only $250. The matter was called to the attention of the investigator a few days after he had testified, by the district attorney who said the figures "didn't quite total $300," and he, the investigator, stated in effect that he would "clear that up and explain the numbers," which he proceeded to do by testifying that he had counted them again and had them with him and there were "seven twenties, eleven tens and five fives." This apparently satisfied everybody at the time, but by our calculations such amounts equal $275 and not $300.
The testimony with reference to the tape-recorded statement showed that Truitt asked the doctor if he could use the doctor's recorder for a statement. The recording machine was of a type which used a magnetized tape, which tape can be used over and over again. As one dictates onto the tape, what is then said automatically erases whatever is on the tape from any previous recording. The doctor testified that they conducted a "dress rehearsal" of the statement and that he was told by Truitt, "You are going to have to make a statement ... the way I want it." A statement was made by question and answer and then, as the doctor testified, such statement apparently did not satisfy the investigator and another, second statement was made, erasing the first statement which had been made.
As might be expected, the doctor's version of what occurred is substantially different from what has heretofore been related. He testified that insofar as Mrs. Gresham was concerned, his examination disclosed that the cervix was a little dilated and that bits of tissue protruded, which he identified as placenta membrane. This condition indicated to him, as a doctor (who, by virtue of his background and training, was skilled and learned in the science of gynecology), that she had theretofore lost the embryo, and that a condition of inevitable abortion was present, and that the only thing to do was to have a curettement; or as the testimony shows, the doctor said at the time to the people concerned, "... she was in the state where she had lost the embryo ... that she had retained the placenta--it is a state known as inevitable abortion or missed abortion." He stated further that he then removed the remnants of the products of the conception. *813
As to Mrs. Frank's case, the doctor denied that he had used the word abortion, as claimed by the investigator and Mrs. Frank, and stated in effect that from the history she gave him he believed that she might be suffering from some female trouble and that he thought it might even be a venereal disease. Further, that all he did so far as Mrs. Frank was concerned was to start to examine her to ascertain what her trouble was, and that he had no intention of performing an abortion. The doctor also indicated that the investigator pointed the gun at him and suggested that he, the doctor, cooperate in the making of statements under such circumstances.
The defendant now contends that:
(1) The evidence is insufficient to support the verdicts, and each of them.
(2) The trial court erred in giving instructions on:
(a) the general criminal intent;
(b) manifestation of intent.
(3) The trial court erred in failing to give the defendant's requested instructions on:
(a) act committed or omission made under an ignorance or mistake of fact;
(b) defense of entrapment;
(c) specific intent;
(d) confession and prima facie proof of the corpus delicti; and
(e) validity of expert testimony.
[1a] The defendant asserts that the burden is on the prosecution to show that the use of an instrument was not necessary to preserve the life of the woman. Such is a correct statement of the law. (People v. Gallardo, 41 Cal.2d 57, 62 [257 P.2d 29].)
The matter of the health of Mrs. Gresham was before the jury and the jurors had her story as to her condition of health, and also heard what the doctor had to say upon the subject matter. In short the issue, so far as the doctor was concerned, was whether in the exercise of his best skill and understanding in good faith, he believed that it was necessary to perform the work he did perform to save the life of Mrs. Gresham.
In this case it is admitted, at the very least, that Mrs. Gresham was extremely nervous. She apparently was upset, had headaches, was unable to sleep, and thought that she was pregnant. She was agitated, disturbed and had many problems. *814 She knew her husband was in the hospital suffering from a severe ailment and that he had had no access to her, and that if she was pregnant it was because of her engagement in illicit intercourse with someone else. Such a showing would not seem to prove beyond a reasonable doubt and to a moral certainty that she was in good health and that treatment of some sort was not necessary.
Many people walk, without assistance, into hospitals and doctors' offices to have operations performed that are necessary to preserve and save life. Further, it is not a rare occurrence for a person who has gone to a doctor's office in apparently reasonably good health, only to learn from the doctor that he is afflicted with a fatal disease. Every presumption is in favor of the defendant's innocence.
It is uncontradicted that the doctor told Mrs. Gresham several times that in his opinion she was not pregnant--that the delay in her menstrual periods came about from other causes, and that he recommended treatment for such other conditions. No other doctor examined Mrs. Gresham or testified as to her condition. The testimony of the defendant is undisputed that he removed the remnants of the products of conception and nothing more, and that such course was necessary to her life and health. The prosecution offered no testimony to show that such was not the case.
True it is that the doctor did not say in so many words that it was necessary to save her life, but he did say that it would have been almost malpractice if he had not removed the tissue; that it was standard procedure, and that complications might well have ensued unless there had been a complete medical abortion, and that otherwise pieces could have grown to become polyps and cause hemorrhages.
[2] Surely, the abortion statute (Pen. Code, 274) does not mean by the words "unless the same is necessary to preserve her life" that the peril to life be imminent. It ought to be enough that the dangerous condition "be potentially present, even though its full development might be delayed to a greater or less extent. Nor was it essential that the doctor should believe that the death of the patient would be otherwise certain in order to justify him in affording present relief." (State v. Dunklebarger, 206 Iowa 971 [221 N.W. 592, 596]; see also Rex v. Bourne, [1939] 1 K.B. 687 (1938); Commonwealth v. Wheeler, 315 Mass. 394 [53 N.E.2d 4]; 23 So.Cal.L.Rev. 523.)
[1b] In State v. Powers (1929), 155 Wash. 63, 67 [283 *815 P. 439, 440], the court satisfied itself with an interpretation of "necessity to save life" by stating, "If the appellant in performing the operation did something which was recognized and approved by those reasonably skilled in his profession practicing in the same community ... then it cannot be said that the operation was not necessary to preserve the life of the patient."
Mrs. Gresham did not testify as to the passing of anything prior to the time of the operation, however, the doctor stated that she told him, in answer to a question along such lines, that she had had a few mild cramps but she did not recall passing anything. In any event, our view is that such is not controlling here: "If the fetus was dead, as disclosed by the diagnosis, that fact became a controlling one; and this was equally so whether the result was brought about by acts of the prosecutrix or by natural or other causes." (State v. Dunklebarger, supra, p. 596.) It is also stated in the Dunklebarger case, "If the diagnosis of a regular physician discloses an internal condition of a patient which threatens his life, it may not be negatived by the mere fact that the patient is unconscious of it and feels well and is apparently well. Fatal conditions are often found in patients who were wholly unsuspecting of their danger. If at the time of the examination ... the fetus was dead, then danger to life was necessarily present even though the patient had not yet felt any discomfort therefrom." (P. 596.) (Emphasis added.)
The district attorney introduced no evidence whatever to establish or to prove that the diagnosis of the doctor was not correct. It must be kept in mind that the defendant in this case was a doctor with substantial experience and background, and an admitted expert in the particular field of gynecology.
It is set forth in 153 American Law Reports 1266, with reference to statutes having to do with abortions:
"By the weight of authority, the insertion of this exception in the body of the enacting clause [that is, "unless necessary to preserve the life of the mother"], requiring a denial of its saving facts in the indictment or information, makes the absence of those facts an ingredient of the corpus delicti, which the government must establish as part of its case, even in the absence of any evidence of their existence."
Also, in State v. Wells, 35 Utah 400 [100 P. 681, 136 Am.St.Rep. 1059, 19 Ann.Cas. 631], the court said (pp. 684, 685 [100 P.]): "The state sufficiently proved that the woman was pregnant; that the defendant performed an operation on *816 her, and that she, in consequence of such operation, had a miscarriage. But the proof of such facts does not establish the crime of abortion as defined by the statute. Under such a statute it was also essential to prove that the miscarriage was not necessary to preserve the life of the woman. Until such fact was proven the body of the crime was not proven." The court therefore held that the alleged confession of the defendant was not sufficient to support the conviction, the corpus delicti not having been otherwise proved. The court further said, at pages 686-687:
"If it was not necessary to produce the miscarriage to preserve the life of the woman, such fact could readily have been shown by the physician, who was a witness for the state, and who had examined the woman on the day that the alleged operation was performed, and by the woman herself, who was also a witness for the state. The observation made by the Ohio court that the circumstances attending the procurement of the abortion tending to prove that it was unnecessary to save the life of the woman ordinarily can be shown quite as easily on the part of the state as by the defendant, and that the rule as to the sufficiency of circumstantial evidence, as stated in Cyc., 'is strictly enforced where decisive, direct evidence is probably obtainable, but is not produced,' is here pertinent and applicable. When the physician and the woman, who were witnesses for the state, were not interrogated by it with respect to the health or physical condition of the woman, and the state failed to show by them, or by other evidence, that there was nothing in the condition of the woman to indicate any necessity for a procured miscarriage, it may be assumed that if the witnesses had been examined on such matters, the evidence elicited from them would have been against the state, or that the state overlooked the necessity of proving the negative in the statute, or else treated it as a matter of defense." (Emphasis added.)
The evidence of her health, under the circumstances, did not lie peculiarly within the knowledge of Mrs. Gresham. She could have been examined by doctors for the state, and independent information could have been secured which might have been helpful, had the state been so minded.
It is evident that the condition which she had, could have developed to a fatal stage before Mrs. Gresham became fully aware of it, or conversely, it might not have developed to the fatal stage. The condition nevertheless would be deemed dangerous to life. *817
In Illinois it has been held that there is a presumption of necessity in the case of an abortion by a licensed physician which cannot be overturned by a mere showing of prior good health. In People v. Davis, 362 Ill. 417 [200 N.E. 334, at p. 336], the court said:
"The evidence discloses that although the deceased desired to have an abortion performed her husband opposed her wishes and urged the family physician to discourage her and that the latter strongly advised against an operation. While the defendant admitted that she performed a physiological curettement and that she used a curette instrument to perform the acts which she described with particularity, she denied performing an abortion for the purpose of relieving the pregnancy. Proof of the use of an instrument, medicine, drug, or other means for the purpose of producing an abortion will not necessarily establish criminal intent. The statute defining murder by abortion specifically excepts from the penalties which it prescribes any person who produces an abortion for the necessary purpose of saving the life of the mother. An indictment charging abortion must negative every exception specified by the statute. Beasley v. People, 89 Ill. 571. Since it is essential to negative the fact that the abortion was caused or performed for the purpose of saving the mother's life, competent proof to establish that fact is necessary. The criminal intent necessary to be established to convict an accused charged with committing an abortion is the intent to commit a criminal abortion, that is, an abortion for a purpose other than to preserve the life of the mother. People v. Hobbs, 297 Ill. 399 [130 N.E. 779]." (Emphasis added.)
We are of the opinion that the circumstances in this case relied upon to show criminal intent are not convincing, and fail to prove beyond a reasonable doubt that the abortion or curettement performed upon Mrs. Gresham by the defendant was not necessary for the preservation of her life.
We are also of the opinion that if it is necessary to the establishment of the corpus delicti that it be shown that an operation was not necessary to preserve the life of a woman, that then in this particular case there was no effectual establishment of the corpus delicti as to Mrs. Gresham.
[3] Defendant contends that the trial court erred in giving instructions on general criminal intent. Suffice it to say that the defendant offered the instruction and he may not now *818 complain. (People v. Williams, 128 Cal.App.2d 458, 463 [275 P.2d 513].)
The next contention of the defendant is that the giving of the instruction with reference to the manner in which intent is manifested, was in error. No authority is cited by the defendant for his position, and in any event, section 21 of the Penal Code covers the matter.
[4] As to the assertion that the court erred in failing to give defendant's requested instruction on ignorance or mistake of fact, the defendant has cited no authority for his position and gives no argument in support of it. We therefore need not consider the point. (People v. Foss, 7 Cal.2d 669, 671 [62 P.2d 372].)
[5] As to the court's refusal to give the defendant's requested instruction on proof of a corpus delicti independently of his extrajudicial admissions and confessions being prejudicial, the attorney general, with commendable fairness, concedes that the trial court erred in this respect. (People v. Holbrook, 45 Cal.2d 228, 234 [288 P.2d 1]; People v. Tapia, 131 Cal. 647, 652 [63 P. 1001].) However, the attorney general insists that the error was not prejudicial. We believe that such error, as heretofore set forth, under the facts and circumstances of this case, did constitute prejudicial error.
[6] As to the contention of the defendant to the effect that the court erred in refusing to give his proposed instruction on expert testimony, suffice it to say that the court did instruct the jury in the language of Penal Code, section 1127b, and that section provides "[n]o further instruction on the subject of opinion evidence need be given."
[7] Considering now more particularly the case involving Alice Hankerson Frank, with specific reference to the defendant's contention that the evidence is insufficient to support the verdict.
Mrs. Frank admittedly was not pregnant. She however told the defendant that she was pregnant; that she was suffering from some sort of female trouble; that she was about three weeks past her menstrual period. She stood by and heard Truitt represent, untruthfully, that she had had a baby or babies before. She was vague and indefinite about her physical history and purported to be very much afraid and frightened.
She herself testified that the doctor inserted the vaginal speculum and that he explained (at the time) that such was *819 done so that he could get in with other instruments to clean her out. This conduct is consistent with an ordinary examination and, in and of itself, would not mean that she was to be aborted. Truitt stated that when the doctor made the adjustment with the speculum, and then reached out with the sponge forceps with the cotton on the end thereof that he "believed" the doctor had started to enter the cavity and then made the arrest.
This court, speaking through Mr. Presiding Justice White, said in People v. Murphy, 60 Cal.App.2d 762 [141 P.2d 755], which involved a licensed physician: "The very gist of the offense charged against these defendants is that they used an instrument with intent thereby to procure the miscarriage of the woman named in the information. Therefore, unless there was actual knowledge on the part of defendant Murphy of the pregnancy of the woman, or a belief upon his part that the woman was pregnant, there could not exist the required and necessary intent upon his part to procure the miscarriage of such woman. The question therefore arises as to whether there was present in this case evidence, other than the testimony of the prosecutrix, of sufficient substantiality to warrant a conclusion by the jury of the requisite guilty intent upon the part of defendant Dr. Murphy (citing cases). In the legitimate exercise of his profession the defendant doctor was entitled to examine the prosecutrix to ascertain if she was pregnant, and if such examination established the existence of such a condition or gave rise to a belief upon the part of the doctor that she was pregnant; and he proceeded with the use of an instrument to produce or attempt to produce a miscarriage, then he was guilty of the offense charged against him. [P. 770.] * * *"
"... As we view the testimony in this case, exclusive of that given by the prosecutrix, it is insufficient, as a matter of law, to establish the pregnancy of the prosecutrix or the fact that there existed in the mind of defendant Dr. Murphy a fully formed belief that pregnancy existed. The evidence being insufficient, as a matter of law, to establish an intent upon the doctor's part to cause a miscarriage, which is the gist of the offense, his conviction cannot be sustained (People v. Richardson, supra, [161 Cal. 552 (120 P. 20)])." [P. 772.] (Emphasis added.)
Similarly, in People v. Gallardo, supra, 41 Cal.2d 57, it is stated at page 66, "In order to establish an attempt [to commit *820 an abortion], it must appear that the defendant had a specific intent to commit a crime and did a direct, unequivocal act toward that end; a preparation alone is not enough, and some appreciable fragment of the crime must have been accomplished." (Emphasis added.) (See also People v. Holbrook, supra, 45 Cal.2d 228, 232.)
The facts before us involve several questions: whether defendant's belief that Mrs. Frank was pregnant is established; whether defendant's intent to commit an abortion is sufficiently established; and whether what defendant had done was sufficient to establish that he was in the process of performing direct, unequivocal acts which he thought would result in a miscarriage.
In People v. Raffington, 98 Cal.App.2d 455 [220 P.2d 967], which did not involve a doctor but did involve some similar facts in other respects, it was stated at page 460: "Whenever the design of a person to commit a crime is clearly shown, slight acts done in furtherance of the design will constitute an attempt." In that case, however, by contrast to the one engaging our attention, the defendant by his own statements was habitually engaged in the unlawful enterprise and discussed the details of abortions performed on other women and the materials and instruments which he admittedly intended to use in producing the intended abortion.
In People v. Berger, 131 Cal.App.2d 127 [280 P.2d 136], it was stressed that the intent with which certain acts were done was established beyond any doubt with the result that the acts were held sufficient to constitute an attempt, the court stating (at p. 130) "the drawing of the line between mere preparation and attempt in close cases is not an easy task. It may be drawn from the cases that where the intent to commit the substantive offense is as clearly established as it is here acts done toward the commission of the crime may constitute an attempt, where the same acts would be held insufficient to constitute an attempt if the intent with which they were done is equivocal and not clearly proved." (Emphasis added.)
In People v. Bowlby, 135 Cal.App.2d 519 [287 P.2d 547, 53 A.L.R.2d 1147], the acts in question were held to be sufficient because the procedures followed a well-established pattern of conduct.
The particular acts involved in this case are, as heretofore said, consistent with an ordinary vaginal examination to determine the condition of Mrs. Frank. It is not established *821 that defendant believed Mrs. Frank was pregnant. Nor is it established that the doctor relied upon what a prospective patient told him with reference to pregnancy. In fact, he repeatedly told Mrs. Gresham that she was not pregnant in spite of her protestations to the contrary. There is no evidence that defendant was regularly engaged in performing abortions according to any prescribed pattern or procedure. Under the peculiar facts and circumstances of this case, we cannot agree that each of the elements of the crime were established beyond a reasonable doubt.
[8a] With respect to defendant's contention that the court erred in failing to give the defendant's requested instruction on the defense of entrapment, we think the issue should have been submitted to the jury. [9] Such an instruction was refused in People v. Cummings, 141 Cal.App.2d 193 [296 P.2d 610], on the basis that no substantial evidence of entrapment had been presented, the court stating the rule (at p. 201) to be as follows: "While it is well settled that a defendant is entitled to instructions based on the theory of his defense, the court may refuse proffered instructions on a theory that is not supported by substantial evidence."
[8b] The evidence before us insofar as the defense of entrapment is concerned is closely analogous to that presented in People v. Reed, 128 Cal.App.2d 499 [275 P.2d 633], wherein a conviction was reversed because no instruction on entrapment was given, the court stating (at page 502), "it was the duty of the court to instruct the jury on the doctrine of entrapment. (People v. Alamillo, 113 Cal.App.2d 617 [248 P.2d 421]; People v. Gallagher, 107 Cal.App. 425 [290 P. 504].) Entrapment was an issue as to that count. It was, of course, for the consideration and determination of the jury. But it was the right of defendant to have the jury so instructed."
From the evidence in this case it could easily be believed by the jury that the criminal design was hatched or conceived in the minds of the state officers, and that Alice Frank was used as the decoy to ensnare the doctor into the alleged crime; that the doctor never did intend to abort her and that he was only in the course of doing that which was professionally proper.
Admittedly, Mrs. Frank did not go to the doctor to have an abortion committed, she was not pregnant; she went there with the preconceived idea of telling admitted untruths, and then of decoying the doctor into examining her. It must be *822 admitted that what the doctor did thereafter is entirely and wholly consistent with good medical practice, and but for some intent to commit a crime, would not in any sense be violative of any criminal abortion law. The overt acts, that is, what was actually done, seem to be admitted. The question is, for what purpose were the acts done? If the procedure was to the end that the doctor could determine what the condition of the woman was, and thereby make a diagnosis, a crime was not committed.
[10] Lastly, the matter of the so-called confession of the defendant should be considered. We realize that the defendant's counsel did little, if anything, about presenting the law of admissions and confessions to the court, and did practically nothing toward examining the witnesses on voir dire to ascertain if the statements were freely and voluntarily made, or made so as to be admissible. However, this case may be retried and we believe comments thereon are presently proper. It is admitted that the investigator pulled out a gun from his pocket and "dangled" it in his left hand, and then instructed or directed the doctor what next to do. Presumably, the doctor thought of the possibilities of getting shot and then complied with the investigator's instructions. Shortly thereafter the "statement" was taken on a tape recorder. In fact, apparently two statements were taken, as heretofore indicated, the first of which was recorded, and then for some reason of the investigator's, was found not to be to his full liking and a second statement was taken on the same machine, the second statement being such that it mechanically erased the first statement.
In other words, the question is presented: did the defendant, under the circumstances, exercise "mental freedom" in the making of his statements--was it an expression of free choice? [11] It has been held that the "slightest pressure, whether by way of inducement to confess, or threat if confession is withheld, is sufficient to require the exclusion of the confession." (See People v. Siemsen, 153 Cal. 387, 394 [95 P. 863], cited with approval in People v. Berve, 51 Cal.2d 286 [332 P.2d 97]. [12] The court in the Berve case said (p. 291): "The prosecution must show that such coercive conditions as once existed, no longer prevailed at the time the confession was uttered. (Citing cases.)"
Paraphrasing a statement in People v. Shaw, 111 Cal. 171, 174 [43 P. 593]: Criminal cases too often are conducted upon the preconceived theory that the defendant is guilty, *823 and that if given a fair trial, according to the established rules, the jury may not convict him. The purpose of a criminal trial is to discover and determine whether a defendant is guilty or not guilty; not merely to maintain at all hazards, a theory of guilt entertained beforehand by any one man or any group or community of men.
The judgment and the order denying defendant's motion for a new trial are, and each is reversed.
White, P. J., and Lillie, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1373766/ | 51 Cal.2d 660 (1959)
WILLIAM B. McKESSON, as District Attorney of the County of Los Angeles, Petitioner,
v.
JOSEPH M. LOWERY, as Auditor of the County of Los Angeles, Respondent.
L. A. No. 25150.
Supreme Court of California. In Bank.
Mar. 2, 1959.
William B. McKesson, District Attorney (Los Angeles), in pro per., for Petitioner.
Harold W. Kennedy, County Counsel (Los Angeles), William E. Lamoreaux, Assistant County Counsel, and Donald K. Byrne, Deputy County Counsel, for Respondent.
CARTER, J.
The question presented by this petition for a writ of mandate is whether petitioner is entitled to payment of the salary increase which became effective after his appointment to the office of district attorney of Los Angeles County but prior to his subsequent election to that office for the unexpired term of his predecessor. The factual situation presented by the petition is as follows:
On June 5, 1956, S. Ernest Roll was elected District Attorney of Los Angeles County for a four-year term which was to commence on the first Monday in December of 1956. Mr. Roll died on October 26, 1956. On December 4, 1956, which *662 was after Mr. Roll's term was to commence, William B. McKesson, petitioner herein, was appointed to the office of district attorney. He was to hold office until the election and qualification of his successor. (Los Angeles County Charter, 16.) At the next general election, which was in June, 1958, petitioner was elected for a two-year term, the balance of Mr. Roll's unexpired term.
The salary for district attorney at the time of petitioner's appointment was $23,000 per year. In September, 1957, an ordinance was passed increasing the salary to $25,000 per year. After his election petitioner requested Joseph M. Lowery, the auditor of Los Angeles County, to enter the salary change on the county records and to pay him accordingly. The request was refused, and now petitioner seeks a writ of mandate to compel the county auditor to pay his salary at the increased rate.
Article XI, section 5, of the California Constitution provides that "the compensation of any county, township or municipal officer shall not be increased after his election or during his term of office. ..." Section 52 of the Los Angeles County Charter provides that "the compensation of any elective county or township officer shall not be increased or diminished during the term for which he was elected, nor within ninety days preceding his election."
[1] Petitioner contends that, since the President of the United States has not proclaimed the termination of hostilities in the Korean War, the operation of the above provisions is still suspended pursuant to sections 53070 and 53071 of the Government Code, and he is entitled to the increased salary from the effective date of the ordinance authorizing it, October 18, 1957. Section 53071 suspended the operation of provisions prohibiting the increase of compensation of elective officers during time of war as defined by section 53070. This contention has recently been answered adversely in Rapp v. Gibson, ante, p. 467 [334 P.2d 575].
[2a] Petitioner next contends that the constitutional and charter provisions, although precluding his receiving the increased salary during his appointive term, do not so preclude him during his elective term. These provisions, petitioner claims, apply to an officer who is appointed to fill an unexpired term of office, but not to one who is elected to fill the term. It is our opinion that this contention is correct.
[3] It is a fundamental rule of statutory construction that the statute be scrutinized in the light of the legislative intent. *663 [4] It is clear that one of the primary purposes of the prohibitions against increases in compensation is to prevent office holders from using their influence and position to secure salary increases after they have been elected. (Rutledge v. City of Eureka, 195 Cal. 404, 419 [234 P. 82].) Where the increase in salary has been adopted in the portion of the term preceding the election of the one who is to fill the unexpired term, this danger is not present. Whether a candidate is elected is a matter subject to the public will. The candidate himself, of course, cannot be certain of the outcome of the election, and it would indeed be an optimistic candidate who attempted to procure a salary increase for the position to which he is seeking election.
[5] The facts of the present case demonstrate the absence of the danger against which the prohibitions are directed. The salary ordinance was enacted some nine months prior to the time of the election. While at that time the petitioner may have decided to become a candidate, he could not know what opposition he would have or what the election results would be. To attempt to secure a salary increase at that time would be the result of mere wishful thinking.
[2b] There is no need to give the provisions here involved any interpretation broader than that necessary to accomplish their obvious purpose. We hold, therefore, that article XI, section 5, of the California Constitution, and section 52 of the Los Angeles County Charter do not prohibit a salary increase for an officer elected to fill an unexpired term, where the increase is adopted a sufficient time prior to the election to comply with any local provisions. Petitioner is therefore entitled to the increased salary from and after July 1, 1958.
Respondent has cited Larew v. Newman, 81 Cal. 588, 590 [23 P. 227]; Storke v. Goux, 129 Cal. 526 [62 P. 68]; Harrison v. Colgan, 148 Cal. 69 [82 P. 674]; and Robbins v. Lambert, 43 Cal.App.2d 463 [111 P.2d 5], as controlling authority in this case. Those cases are distinguishable in that they involved persons appointed, not elected, to an unexpired term. [6] An appointee stands in the same shoes as his predecessor. Moreover, although the danger of undue influence on the salary- authorizing body is not as great with an appointee as it is with an incumbent officer, the danger is nonetheless sufficient enough to warrant imposition of the constitutional and charter prohibitions.
Let the writ issue directing respondent to pay to petitioner the increased salary for the office of district attorney of Los *664 Angeles County commencing with the term for which petitioner was elected on June 3, 1958.
Gibson, C.J., Shenk, J., Schauer, J., and McComb, J., concurred.
TRAYNOR, J.
I dissent.
Since 1899 the courts of this state have consistently held that the phrase "his term of office" in article XI, section 5, of the California Constitution means, not the period during which the incumbent holds the office, but the full period of time prescribed by law for the office. (Larew v. Newman, 81 Cal. 588, 590 [23 P. 227]; Storke v. Goux, 129 Cal. 526, 527 [62 P. 68]; Harrison v. Colgan, 148 Cal. 69, 73-75 [82 P. 674]; Robbins v. Lambert, 43 Cal.App.2d 463, 465 [111 P.2d 5].) Accordingly, there cannot be any increase in salary during the statutory term "regardless of the fact that different persons may successively hold for successive parts of the term, so that one who is elected or appointed after a part of such term has expired cannot have an increase made after the term began, though prior to his election or appointment." (Harrison v. Colgan, supra, 148 Cal. at 75.)
Under these cases the "term of office" herein is that to which Mr. Roll was elected, [fn. 1] and the salary ordinance, enacted after that term commenced, cannot take effect until the commencement of the next term of office in 1960. The majority opinion nevertheless holds that the ordinance became effective on July 1, 1958, the date that petitioner commenced serving the part of the unexpired term for which he was elected. It does not overrule the foregoing cases, but seeks to distinguish them on the ground that they apply only to persons appointed and not to those elected for an unexpired term.
I regard this distinction as meretricious. The express application of section 5 of article XI of the Constitution to "any" county officer precludes any implication that only appointed officers are included in its prohibition or that the phrase "his term of office" has one meaning for elected officers and a quite different meaning for appointed officers or varies in meaning according to whether the officer is elected or appointed for the full regular term of the office or for an unexpired part thereof. The section no more permits the exclusion from its operation *665 of officers elected for part of a regular term than it permits the exclusion of those elected for the full regular term. Nor can such distinctions be drawn from the purpose of the statute. Courts have often declared that the purpose of such a constitutional prohibition is to preclude an officer's using his position to obtain increased compensation during his term of office as well as "unwarranted demands upon the public treasury resulting from a possible concert of action between public officers or expectant candidates for public office." (Rutledge v. City of Eureka, 195 Cal. 404, 419 [234 P. 82].) These reasons apply as forcefully to an officer subsequently elected as to one subsequently appointed to an unexpired term. (See Harrison v. Colgan, supra, 148 Cal. 69, 73, 75, 78; Lancaster v. Board of Commissioners, 115 Colo. 261 [171 P.2d 987, 989, 166 A.L.R. 839]; Clark v. Frohmiller, 53 Ariz. 286 [88 P.2d 542, 545]; Thornsberry v. City of Campbell (Mo.App.), 274 S.W. 847, 848; Wilson v. Shaw, 194 Iowa 28 [188 N.W. 940, 941-942].)
In my opinion the result reached in this case can be justified only by discarding the long established interpretation of the crucial phrase, "his term of office." (Italics added.) Were we interpreting this phrase for the first time, I should be disposed to view it as a reference to the term that the officer actually serves. Nevertheless, I would be reluctant to overrule the established interpretation in view of its still current plausibility, enhanced by its long standing. So long as it thus continues acceptable, the serviceable consistency of stare decisis should discourage its displacement. I would not undermine that consistency, while purporting to follow the precedents, by freighting the established interpretation with a distinction between elected and appointed officers that compels inequality in the application of the law.
Spence, J., concurred.
NOTES
[fn. 1] 1. Section 13 of the Los Angeles County Charter provides that the term of office for district attorney "shall be four years, beginning at noon of the first Monday in December following the election, and ending at noon on the first Monday in December four years thereafter." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1373768/ | 168 Cal.App.2d 25 (1959)
Estate of JANET M. PECK, Deceased. AARON M. SARGENT et al., Appellants,
v.
THE BOARD OF TRUSTEES OF THE LELAND STANFORD JUNIOR UNIVERSITY (a Corporation), Respondent.
Civ. No. 18130.
California Court of Appeals. First Dist., Div. Two.
Feb. 16, 1959.
Aaron M. Sargent, in pro. per., and Doyle & Clecak for Appellants.
Robert Minge Brown, Albert J. Moorman, Graham B. Moody, Jr., and McCutcheon, Doyle, Brown & Enersen for Respondent.
KAUFMAN, P. J.
The only question on this appeal is the validity of a charitable trust created by the will of Janet Peck. By a decree determining heirship and ordering preliminary distribution, the probate court found the trust valid and ordered distribution accordingly, to the Board of Trustees of The Leland Stanford Junior University, respondent herein. Appellants assert that the trust is void and claim the estate on grounds of intestacy.
Janet Peck died in 1956, leaving an estate valued at over $480,000. Her closest surviving relative was a first cousin, Edmund More, Jr. Appellants are the children of persons who were first cousins of the testatrix. By her will, dated 1936, Janet Peck left her estate in trust to the Trustees of Stanford University, subject only to certain annuities.
Appellants contend that: (1) The trust is not a valid charitable trust as the property must not be used exclusively for educational purposes; (2) The testatrix intended to make a bequest to the trustees individually; (3) The trial court erred in denying appellant's petition for preliminary distribution and determination of heirship. Appellants have also filed a motion requesting findings on appeal, based on substantially the same contentions. There is no merit in the appellants' position.
The relevant language of the will is as follows:
"Second: The ever-recurring misunderstandings between the various nations and the peoples of different races which impede human progress and lead to devastating wars, are obviously attributable, in large measure, to differences of environment and language. I believe that these handicaps can be largely overcome, if the men and women whose vocation vests in them the power to mold public opinion, make a conscious effort to that end. However, their effort will go for naught, unless based on sound education on their own part, and thorough understanding of the economics of the various countries of the world, as well as their historic, diplomatic and political backgrounds. The molding of public opinion in the United States, insofar as concerns the attitude of our citizens *27 toward anything foreign, rests almost entirely with the press which, in turn, must depend upon editorial staffs and foreign correspondents. Based on past experience, I believe that it is fair to say that there is a woeful lack of any real education on their part in what should be the foundation of one of the most important patriotic contributions which they could make to our country and the welfare of its citizens. I have therefore long cherished the hope that I might be able to do something to help toward the correction of these conditions, and to that end I hereby give and bequeath to The Trustees of the Leland Stanford Junior University (hereinafter referred to as my 'Trustees') all of my estate and property, both real and personal and wheresoever the same may be situate, in trust for the foregoing purposes,--subject to the express terms and conditions hereinafter set forth:"
"(a) My said Trustees shall establish a Foundation of World Relations, for the aforesaid purposes; and my said Trustees shall use and apply the net income derived from said trust estate for the maintenance of said Foundation. My said Trustees shall, in their own discretion, determine from time to time the manner in which said net income may be best expended for said purposes, in view of the amount available therefor; and they may, if they deem such course wise, postpone the expenditure of any sums for my said trust purposes, until such time as the income available therefor shall, in their opinion, be adequate to meet such expense as may be necessary to accomplish something substantial in the said field of learing [sic] to which said trust is dedicated."
We start with several fundamental principles of the law. [1] First, that a construction of a will favorable to testacy will be adopted when the language used reasonably admits of such construction, (Estate of Wellings, 197 Cal. 189 [240 P. 21]; Estate of Dunphy, 147 Cal. 95 [81 P. 315]; Estate of Heywood, 148 Cal. 184 [82 P. 755]). [2] Second, courts look with favor upon all attempted charitable bequests and there is no authority to construe a charitable bequest as legally void if it can possibly be made good. It is the policy of the law to favor gifts for charitable purposes and a will providing such gifts will be liberally construed to accomplish the intent of the donor. (Estate of Quinn, 156 Cal.App.2d 684 [320 P.2d 219]; Estate of Tarrant, 38 Cal.2d 42 [237 P.2d 505, 28 A.L.R.2d 419]; Estate of Bunn, 33 Cal.2d 897 [206 P.2d 635]; Collier v. Lindley, 203 Cal. 641 [266 P. 526]; Estate of Hinckley, 58 Cal. 457.) *28
[3] We think any reasonable construction of the language used by the testatrix indicates that the testatrix desired to contribute toward world peace by providing education for newspapermen. Such a purpose is fundamentally educational. It has long been the law in this state, that a trust for educational purposes is a trust for charitable purposes. (Lundberg v. County of Alameda, 46 Cal.2d 644 [298 P.2d 1]; Estate of Yule, 57 Cal.App.2d 652 [135 P.2d 386]; Estate of Bailey, 19 Cal.App.2d 135 [65 P.2d 102]; Estate of Bartlett, 122 Cal.App. 375 [10 P.2d 126]; Estate of Purington, 199 Cal. 661 [250 P. 657]; Estate of Royer, 123 Cal. 614 [56 P. 461, 44 L.R.A. 364]; People v. Cogswell, 113 Cal. 129 [45 P. 270, 35 L.R.A. 269]; Estate of Hinckley, supra, 58 Cal. 457.)
[4] Nor can it be doubted in this day and time, that an ultimate purpose to promote peace and world understanding is a valid charitable purpose. Our courts have long recognized that "The enforcement of charitable uses cannot be limited to any narrow and stated formula. As has been well said, it must expand with the advancement of civilization and the daily increasing needs of men. New discoveries in science, new fields and opportunities for human action, the differing condition, character, and wants of communities and nations, change and enlarge the scope of charity, and where new necessities are created new charitable uses must be established. The underlying principle is the same; its application is as varying as the wants of humanity." (People v. Dashaway Assn., 84 Cal. 114, 122 [24 P. 277, 12 L.R.A. 117]; see also People v. Cogswell, 113 Cal. 129 [45 P. 270, 35 L.R.A. 269].) Bequests to promote peace and world understanding have been upheld in other jurisdictions. (Tappan v. Deblois, 45 Me. 122; Mills v. Montclair Trust Co., 139 N.J.Eq. 56 [49 A.2d 889]; In re Harmon's Will, 80 N.Y.S.2d 903.)
[5] Appellants argue that the trust is one solely for propaganda. Even if this were so, a trust with the object of creating a more enlightened public opinion and a bequest to an organization with political purposes have been held to be valid charitable trusts in this state. (Collier v. Lindley, 203 Cal. 641 [266 P. 526]; Estate of Murphey, 7 Cal.2d 712 [62 P.2d 374].)
Appellants further argue that the language of the will permits noncharitable as well as charitable uses. The appellants rely chiefly on Estate of Sutro, 155 Cal. 727 [102 P. 920]. As we recently pointed out in Estate of Rollins, 163 Cal.App.2d 225, at p. 228 [328 P.2d 1005], the earlier decisions were somewhat *29 quick to find the possibility of a noncharitable use, while the recent cases are less inclined to search minutely for the possibility of a noncharitable use. In the Sutro case as in Estate of Kline, 138 Cal.App. 514 [32 P.2d 677]; Estate of Peabody, 21 Cal.App.2d 690 [70 P.2d 249], the trustees were authorized to apply the trust fund for the benefit of generally described existing institutions, some of which were charitable and some of which were privately operated for profit. In the instant case, the will restricts the use of trust property solely to charitable purposes. The only institution mentioned in the will is Stanford University which is organized for public benefit and not for private profit. The trustees are to establish a Foundation of World Relations and to use the net income of the trust property for the operation of the Foundation. If the trust income is sufficient, the trustees are to establish a professorship.
Furthermore, under the terms of the founding grant, which is made applicable to all bequests to the Stanford Trustees by section 10 of article IX of the State Constitution, the Stanford Trustees are prohibited from using the income and profits of the trust for any private purposes. Contrary to appellants' argument, the trustees are not given an unlimited and uncontrolled discretion to select noncharitable objects, employ noncharitable means, or use the income for noncharitable purposes. The trustees are given only the discretionary power to determine the particular plan for carrying out the purposes of the trust. This is proper and in accord with the law. [6] As stated in Estate of Butin, 81 Cal.App.2d 76 at 81, 82 [183 P.2d 304]: "... it is not necessary that a detailed plan of execution shall be stated. When the general nature of the trust is adequately designated, its execution may be delegated to the named trustees, subject to the approval of court. (Russell v. Allen, 107 U.S. 163 [2 S.Ct. 327, 27 L.Ed. 397]; 14 C.J.S. 436, 7.)" (See also Estate of Clippinger, 75 Cal.App.2d 426 [171 P.2d 567].)
Appellants also cite Davenport v. Davenport Foundation, 36 Cal.2d 67 [222 P.2d 11], in which one of the stated purposes of the trust was the making of annuity payments to named individuals for a period longer than that permitted by the rule against perpetuities. In the instant case, all of the annuitants, except Mrs. Railton, predeceased the testatrix, and the annuity to Mrs. Railton terminates 15 years after the death of the testatrix or at the death of Mrs. Railton, whichever occurs first. *30
[7] Appellants also argue that the will bequeathes the trust to the individuals who happened to be the Trustees of Stanford University at the date of her death and not to the Board of Trustees of Stanford University. The dispositive language of the will is to "the trustees of the Leland Stanford Junior University--(hereinafter referred to as 'my Trustees')." There is no ambiguity or uncertainty in this language. The testatrix intended to make a bequest to the governing body of Stanford University as the trial court found. The court's finding and distribution to the Board of Trustees of Stanford University was in accordance with section 10 of article IX of the state Constitution which is as follows:
"... The Board of Trustees of the Leland Stanford Junior University, as such, or in the name of the institution, or by other intelligible designation of the trustees or of the institution, may receive property, real or personal, and wherever situated, by gift, grant, devise, or bequest for the benefit of the institution, or of any department thereof, and such property, unless otherwise provided, shall be held by the Trustees of the Leland Stanford Junior University upon the trusts provided for in the grant founding the university, and amendments thereof, and grants, bequests and devises supplementary thereto."
Appellants' final contention on appeal relates to the trial court's alleged failure to grant their petition for preliminary distribution and determination of heirship. This contention need not be answered here in view of our upholding the validity of the trust.
In view of the foregoing, the decree appealed from is hereby affirmed and the appellants' motion for findings on appeal is denied.
Draper, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266445/ | 165 Cal.App.4th 445 (2008)
GREAT AMERICAN INSURANCE COMPANIES, Plaintiff and Appellant,
v.
GORDON TRUCKING, INC., et al., Defendants and Respondents.
No. F053336.
Court of Appeals of California, Fifth District.
July 29, 2008.
CERTIFIED FOR PARTIAL PUBLICATION[*]
*447 Law Office of Richard T. Ferko and Richard T. Ferko for Plaintiff and Appellant.
Crabtree, Schmidt & Jacobs and Michael R. Dennis for Defendants and Respondents.
*448 OPINION
HILL, J.
Plaintiff, Great American Insurance Companies, appeals from a judgment entered in favor of defendant, Gordon Trucking, Inc., after defendant's motion for summary judgment was granted. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
On December 14, 2002, a truck owned by defendant would not start. Art's Towing towed the truck to the repair yard of Bonander Truck, Inc., at approximately 7:00 p.m. that day. Defendant's truck was parked near two other trucks, one owned by plaintiff's insureds, the Gandys. While defendant's truck was parked at Bonander's, a fire damaged the three trucks parked in the Bonander yard.
Plaintiff filed its complaint, alleging that the fire originated in defendant's truck and damaged the Gandys' truck. The complaint alleges defendants were negligent in transporting defendant's truck and placing it near the Gandys' truck "in a condition where it was likely to ignite and cause damage to other vehicles and property," and defendant was negligent in the maintenance and upkeep of its truck.
Defendant moved for summary judgment, asserting that defendant did not breach any duty it owed to the Gandys and there was no causal connection between its maintenance of its truck and the fire. Plaintiff opposed the motion, contending defendant knew its truck had an electrical problem and there was "a factual issue as to the reasonableness of GORDON'S inspection and failure to activate the battery shut off switch." Plaintiff also argued that negligence could be presumed based on application of the doctrine of res ipsa loquitur.
The trial court granted defendant's motion for summary judgment, finding there was no triable issue of material fact concerning defendant's breach of a duty of care to plaintiff or causation of damage. Judgment was thereafter entered in favor of defendant and against plaintiff. Plaintiff appeals.
DISCUSSION
Summary judgment is reviewed de novo. (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502 [10 Cal.Rptr.3d 568].) "As a summary judgment motion raises only questions of law regarding the construction and effect of supporting and opposing papers, this court independently applies the same three-step analysis required of the trial court. We identify issues framed by the pleadings; determine whether the moving party's showing established *449 facts that negate the opponent's claim and justify a judgment in the moving party's favor; and if it does, we finally determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citations.]" (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342 [67 Cal.Rptr.2d 726].) "In performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing her evidentiary submission while strictly scrutinizing defendants' own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor. [Citations.]" (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769 [107 Cal.Rptr.2d 617, 23 P.3d 1143].) We review the trial court's rulings on evidentiary objections by applying an abuse of discretion standard. (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694 [23 Cal.Rptr.3d 915].)
I. Allegations of the Complaint[*]
....................................................................................
II. Defendant's Facts and Evidence
Defendant proffered 17 undisputed material facts in support of its motion. It asserted it acquired its truck in July of 2002, and put it into operation on August 15, 2002. On Saturday, December 14, 2002, the truck would not start for unknown reasons. Art's Towing towed the truck to Bonander's truck yard at approximately 7:00 p.m. The truck yard was closed and would not reopen until Monday. Defendant's truck was parked near a truck owned by plaintiff's insureds (the Gandys). Twenty-three hours later, about 6:00 p.m. on December 15, 2002, a fire started and burned defendant's truck, the Gandys' truck, and a third truck. The cause of the fire is unknown. Defendant's truck's only previous electrical problems had been repaired. According to the Gandys, defendant used its truck in a foreseeable manner and for its intended use, and was not warned by the manufacturer of any defect in the electrical system that would cause a fire. According to the Gandys, the truck "would have been purchased without an inspection that would have revealed any alleged defects which could have allegedly caused the fire." The Gandys' response to defendant's interrogatory asking for all facts on which the Gandys based their allegation that defendant knew or should have known its truck had electrical or other malfunctions apt to cause a fire identified the tow truck company and driver, and service technicians at Bonander truck service; it did not identify anyone at Gordon Trucking.
Plaintiff objected to some of the evidence proffered by defendant in support of its undisputed facts. Specifically, plaintiff objected to (1) defendant's *450 reliance on its own responses to interrogatories; (2) defendant's reliance on documents it produced in response to demands for production of documents, without further authentication of the documents produced; (3) use of the Gandys' interrogatory responses against plaintiff; and (4) use of allegations from the Gandys' unverified third amended complaint against plaintiff. At the hearing, the trial court indicated plaintiff's written objections had not been made in the proper form. Counsel for plaintiff then made his objections orally on the record.
In its minute order, the court noted it had not yet received the transcript of plaintiff's oral objections, and it ruled that it was "inclined to sustain Great American's objections to the interrogatory responses of all parties other than the Gandy plaintiffs." It ruled that the Gandys' discovery responses and the admissions in their complaint could be used against plaintiff, because plaintiff stepped into the shoes of the Gandys in this subrogation action. The court also noted that plaintiff relied in its own opposition on some of the same evidence to which it was objecting, apparently referring to maintenance records for defendant's truck, which it concluded was "fatal to Great American's opposition."
Defendant contends plaintiff failed to preserve its objections because it did not obtain a ruling on them; the court merely expressed an "inclination" to sustain certain objections. Although the court phrased its ruling as an "inclination" because it had not yet received a transcript of plaintiff's oral objections, it did rule on each of plaintiff's objections in its minute order. The court did not subsequently make any change to its ruling on the objections after receiving the transcript. Its ruling on the motion was presumably based on its consideration of only the evidence it ruled admissible. Thus, we conclude that the evidentiary rulings included in the court's minute order constituted the final rulings on the parties' evidentiary objections.
A. Defendant's interrogatory responses
(1) "At the trial or any other hearing in the action, so far as admissible under the rules of evidence, the propounding party or any party other than the responding party may use any answer or part of an answer to an interrogatory only against the responding party." (Code Civ. Proc., § 2030.410, italics added.) Thus, the responding party may not use its own interrogatory responses in its own favor. The trial court did not abuse its discretion in sustaining plaintiff's objection to defendant's use of its own interrogatory responses as evidence supporting its statement of undisputed facts.
*451 B. The Gandys' interrogatory responses
Defendant offered responses by the Gandys to interrogatories as evidence that "[i]t is unknown why the truck would not start," that "[t]he cause of the fire is unknown," and that, when asked for "all facts upon which you base your allegation that Gordon knew or should have known that its [F]reightliner was defective and that it had electrical or other malfunction apt to cause a fire," the Gandys replied by identifying the "[t]ow truck Company and/or Driver, . . . Rip and Doug . . ., service technicians at Bonander Truck Service, Freightliner," without identifying any of defendant's personnel who had knowledge of any defects or malfunctions.
(2) A defendant moving for summary judgment may rely on "factually devoid discovery responses" to show that the plaintiff's cause of action has no merit and to shift the burden to the plaintiff to demonstrate that a triable issue of one or more material facts exists as to that cause of action. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590 [37 Cal.Rptr.2d 653].) Here, however, defendant relied on the "factually devoid discovery responses" of the Gandys, plaintiff's insureds, not on any discovery responses of plaintiff, in order to meet its burden of showing plaintiff had no facts to support its cause of action against defendant. The trial court overruled plaintiff's objection to the use of the Gandys' interrogatory responses, concluding that, because plaintiff stood in the shoes of its insureds, the Gandys' discovery responses could be used against plaintiff.
(3) "`Equitable subrogation permits a party who has been required to satisfy a loss created by a third party's wrongful act to "step into the shoes" of the loser and pursue recovery from the responsible wrongdoer. [Citation.] In the insurance context, the doctrine permits the paying insurer to be placed in the shoes of the insured and to pursue recovery from third parties responsible to the insured for the loss for which the insurer was liable and paid.' [Citation.] Because subrogation rights are purely derivative, an insurer cannot acquire anything by subrogation to which the insured has no right and can claim no right the insured does not have. [Citation.]" (United Services Automobile Assn. v. Alaska Ins. Co. (2001) 94 Cal.App.4th 638, 645 [114 Cal.Rptr.2d 449].) "The subrogated insurer is said to `"stand in the shoes"' of its insured, because it has no greater rights than the insured and is subject to the same defenses assertable against the insured." (Travelers Casualty & Surety Co. v. American Equity Ins. Co. (2001) 93 Cal.App.4th 1142, 1151 [113 Cal.Rptr.2d 613].)
Because the insurer is subject to the same defenses as the insured, the statute of limitations on the insurer's cause of action runs from the date of accrual of its insured's cause of action. (Commercial Union Assurance Co. v. *452 City of San Jose (1982) 127 Cal.App.3d 730, 734-735 [179 Cal.Rptr. 814].) Where the insurer intervenes in the insured's action to assert its subrogation claim, the five-year period for bringing the insurer's action to trial runs from the filing of the insured's complaint, not from the filing of the complaint in intervention. (Bright v. American Termite Control Co. (1990) 220 Cal.App.3d 1464, 1466 [269 Cal.Rptr. 793].) When the insured has released the third party, the subrogated insurer's claims are also released. (Fireman's Fund Ins. Co. v. Maryland Casualty Co. (1994) 21 Cal.App.4th 1586, 1596-1597 [26 Cal.Rptr.2d 762].) The insurer, however, is not limited by defects in the insured's complaint against the tortfeasor. (Low v. Golden Eagle Ins. Co. (2002) 101 Cal.App.4th 1354, 1363-1364 [125 Cal.Rptr.2d 155].) In Low, the insureds' complaint contained a prayer for only $25,000 in damages, although the body of the complaint alleged much higher damages. After the defendant's default judgment was entered, it was reduced to $25,000 because of the defective prayer. The court held that the insurer's subrogation complaint in intervention was not limited to that amount, because the insurer's complaint sought $130,000 in damages and gave the defendant adequate notice that the insurer sought that amount.
(4) While a subrogated insurer's claims are subject to the same defenses as the insured's claims, we have been cited to no authority, and we have found none, indicating that the insurer is bound by every discovery response made by the insured during the litigation of the insured's claims against the third party tortfeasor. When the insured makes affirmative statements or admissions about the facts of his claim, particularly those facts within the insured's own knowledge, it may be appropriate to hold that the subrogated insurer is bound by those statements or admissions, because they define the insured's claim and the insurer stands in the insured's shoes in the subrogation action. But when the insured is asked for facts supporting his allegation regarding matters not within his personal knowledge, and he either represents that he has no knowledge of such facts or responds without identifying any such facts, there does not appear to be any basis for binding the insurer to that representation or factually devoid answer. The insurer can conduct its own investigation and discovery and make its own representations about the facts it learns; the insurer may develop facts of which the insured is unaware. Any opposing party may propound interrogatories directly to the insurer, to determine what facts the insurer is relying on to support its causes of action. Thus, when the insured is asked by interrogatory for all facts the insured is aware of that support some allegation, the subject of which is not a matter within the insured's personal knowledge, the insurer should not be bound by the insured's factually deficient answer. We hold that, under these circumstances, another party cannot use the insured's factually devoid answer to demonstrate that the insurer has no facts with which to prove its allegations.
*453 (5) Defendant cited the Gandys' interrogatory responses in support of its undisputed fact Nos. 4, 9, 10, 16, and 17. Each of these interrogatories seeks information about matters not within the personal knowledge of the Gandys. Fact Nos. 4, 10, 16, and 17 seek to establish the Gandys', and therefore plaintiff's, lack of facts concerning the cause of the fire and defendant's knowledge of any defect or malfunction in defendant's truck. Fact No. 9 concerns the time and place of the fire, and how long after defendant's truck had been parked at Bonander's the fire occurred. To the extent the Gandys' interrogatory responses cited by defendant in support of these facts are factually deficient, they may not be used by defendant to prove that plaintiff lacks facts or evidence to support its claims.
Moreover, the interrogatory responses cited in support of fact Nos. 4, 9 and 10 do not support those facts. Fact No. 4 states, "It is unknown why the truck would not start" on December 14, 2002. The interrogatories cited ask about "the incident." The Gandys' response indicates they interpreted "the incident" to mean the fire. Fact No. 10 asserts the cause of the fire is unknown. The interrogatories cited do not ask generally what caused the fire; they ask specifically for information about any malfunction or defect in a vehicle that caused the incident or contributed to the injuries sustained in the incident. The only other evidence cited in support of fact Nos. 4 and 10 was defendant's own interrogatory responses, to which the trial court sustained plaintiff's objection. Consequently, defendant presented no admissible evidence showing that the matters set out in fact Nos. 4 and 10 are undisputed.
In its response to fact No. 9, plaintiff did not dispute that a fire damaged the Gandys' truck. Plaintiff did not concede, however, the time of the fire or how long the trucks had been parked at Bonander's before the fire; the cited interrogatory responses by the Gandys did not provide that information. The only other evidence cited in support of fact No. 9, was specified allegations of the Gandys' third amended complaint. Even if those allegations were admissible against plaintiff, they also do not indicate when the fire occurred or how long any truck had been parked at the time. Except for the fact that a fire occurred and damaged the Gandys' truck, purported fact No. 9 is unsupported.
C.-E.[*]
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
*454 DISPOSITION
The judgment is reversed with directions to vacate the order granting summary judgment and to enter a new order denying summary judgment. Plaintiff is awarded its costs on appeal.
Vartabedian, Acting P. J., and Wiseman, J., concurred.
NOTES
[*] Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts I., II.C., II.D. and II.E. of the discussion.
[*] See footnote, ante, page 445.
[*] See footnote, ante, page 445. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266456/ | 165 Cal.App.4th 1207 (2008)
VENTAS FINANCE I, LLC, Plaintiff and Respondent,
v.
FRANCHISE TAX BOARD, Defendant and Appellant.
Nos. A116277, A117751.
Court of Appeals of California, First District, Division One.
August 11, 2008.
*1211 Edmund G. Brown, Jr., Attorney General, Randall P. Borcherding, Jeffrey Rich and Marguerite C. Stricklin, Deputy Attorneys General, for Defendant and Appellant.
Silverstein & Pomerantz, Amy L. Silverstein and Edwin P. Antolin for Plaintiff and Respondent.
OPINION
STEIN, J.
California's Franchise Tax Board (FTB) appeals from a judgment ordering a refund to Ventas Finance I (Ventas), a limited liability company (LLC), of $29,540, the entire amount it paid pursuant to former[1] Revenue and Taxation Code[2] section 17942 for the years 2001, 2002, and 2003, and a postjudgment order awarding attorney fees to Ventas in the amount of $215,016 pursuant to Code of Civil Procedure section 1021.5.
The trial court ordered the refund based upon its conclusion that, as applied to Ventas, the levy imposed by former section 17942 violated the commerce clause of the United States Constitution (U.S. Const., art. I, § 8, cl. 3) *1212 (Commerce Clause) because the levy was based upon total income without apportionment to income attributable to, or derived from, California sources. Although at least some of Ventas's income did derive from California sources, the court ordered FTB to refund the entire amount.
In its postjudgment order awarding attorney fees, the court rejected FTB's contention that section 19717 is the exclusive means of obtaining fees in a tax refund suit. It further ruled that Ventas was the successful party within the meaning of Code of Civil Procedure section 1021.5, and that Ventas met the remaining criteria for an award of fees. In calculating the amount of reasonable fees, the court applied a 1.5 multiplier to a lodestar figure of $143,343.75.
We shall uphold the trial court's determination that former section 17942, as applied to Ventas, violates the Commerce Clause because it is not fairly apportioned, and that the court properly denied FTB's request that it judicially reform former section 17942 by rewriting it to include an apportionment mechanism. We shall also conclude, however, that neither federal due process nor any principle of California law requires FTB to refund the entire amount Ventas paid. The refund should be limited to the amount Ventas paid for the years in issue that exceeds the amount it would have been assessed, without violating the Commerce Clause, using a method of fair apportionment.[3] We therefore shall reverse the judgment in part, and remand with directions to redetermine the amount of the refund. In all other respects, we shall affirm the judgment.
We shall also hold that section 19717 is not the exclusive means of obtaining attorney fees in a tax refund suit, and that fees may be awarded pursuant to Code of Civil Procedure section 1021.5, if the criteria specified therein are otherwise established. In light of the partial reversal of the underlying judgment, however, we cannot say with certainty that the court would exercise its discretion in the same manner. We therefore shall also reverse the postjudgment order awarding attorney fees, and remand with directions that the court may redetermine eligibility and the amount of reasonable fees in light of our partial reversal of the judgment.
*1213 FACTS[4]
1. The Suit for Refund.
Ventas was formed in 2001 as a limited liability company under the laws of the State of Delaware. It is wholly owned by Ventas, Inc., a Delaware real estate investment trust, and was formed to obtain financing secured by certain skilled nursing facilities to which Ventas held title. From 2001 to 2003, Ventas owned 39 to 40 facilities, three of which were located in California. Ventas had no other property, employees, or representatives working on its behalf in California.
On November 19, 2001, Ventas registered as a foreign LLC with the California Secretary of State, and remained registered through 2003. In 2001, 2002, and 2003 Ventas paid the $800 minimum tax imposed under section 17941. It also paid the following amounts imposed under former section 17942 based upon its "total income from all sources reportable to this state for the taxable year" (former § 17942, subd. (a)): 2001$6,000; 2002 $11,790; 2003$11,790. In accordance with FTB's interpretation of former section 17942, Ventas reported its total income from all geographic sources to calculate the amount owed without apportionment to California sources. It was stipulated that if the apportionment methodology California uses for corporations (see § 25128 et seq.) were applied, Ventas's California apportionment percentage would have been only 8.06 percent, 8.34 percent and 6.94 percent, respectively, for these years.
On January 4, 2005, Ventas filed a timely claim for refund on the ground that former section 17942 contained no method for apportioning the levy to the proportionate amount of income earned, or attributable to economic activity, in California and therefore violates the Commerce Clause and the due process clause of the United States Constitution. On February 24, 2005, and again on March 1, 2005, FTB informed Ventas that it had denied the refund claim. Although Ventas did not file an appeal to the State Board of Equalization, it did exhaust its administrative remedies for the purpose of filing a suit for refund, and timely filed its complaint seeking a refund.
After a trial based upon stipulated facts, the court held that former section 17942 is a tax and, as applied to Ventas, violates the Commerce Clause and due process, because it is based upon all income unapportioned to activities *1214 within California. The court refused FTB's request to reform former section 17942 to add an apportionment mechanism because the legislative history showed that the Legislature had considered and rejected including an apportionment mechanism, and neither the statute nor the legislative history contained any indication of the type of apportionment mechanism the Legislature would have enacted. The court ordered that Ventas was entitled to a refund of the entire amount it paid pursuant to former section 17942, plus interest and costs for the years in issue. FTB filed a timely notice of appeal from the judgment.
2. The Motion for Attorney Fees.
Ventas thereafter filed a motion seeking attorney fees pursuant to Code of Civil Procedure sections 1021.5 and 1032, subdivision (b). The case was accepted on a contingency fee basis. Based upon standard billing rates, the attorney fees actually incurred through November 2006 would have totaled $143,343.75. Ventas sought $30 million in fees.
This request for a substantial upward adjustment of the lodestar figure was largely predicated upon the theory that this case was the second of two filed by the same attorneys for different plaintiffs that, if upheld, would entitle tens of thousands of LLC's registered in California to obtain refunds estimated to total as much at $1.4 billion, and no less than $300 million.
In the first case, Northwest Energetic Services, LLC v. Franchise Tax Bd. (Super Ct. S.F. City and County, 2006, No. CGC-05-437721), the same attorneys who represented Ventas had already obtained a judgment ruling that former section 17942 was unconstitutional as applied, and an award of $3.5 million in attorney fees.[5] The plaintiff LLC in that case, however, did not earn any income that could be sourced to California, and there had been no dispute that it was entitled to a refund of all amounts it had paid. Ventas argued the instant litigation was necessary to address FTB's position that only those LLC's that had no income attributable to California sources were entitled to a full refund. In all other cases, FTB maintained that the appropriate remedy was to refund the difference between the amount the LLC paid and the amount it would have paid if former section 17942 included a fair apportionment mechanism. Ventas reasoned that this litigation conclusively resolved issues left unresolved after the Northwest trial by establishing *1215 that former section 17942 could not be judicially reformed, and that any LLC who paid the levy is entitled to a full refund.
FTB, on the other hand, estimated the amount of potential refunds as a result of the Northwest trial and this case was closer to $215 million. FTB based its much smaller estimate on its determination that approximately 93 percent of LLC's earned all of their income from California sources. It reasoned that, as applied to these LLC's, former section 17942 would not violate the Commerce Clause. FTB argued that the decision following the Northwest trial and in this case therefore only applied to 7 percent of registered LLC's that had no income from California sources, or, like Ventas, had income from both inside and outside California. These two categories of LLC's together paid 21.5 percent of the levy paid annually under former section 17942.
The court found both estimates to be somewhat speculative, but concluded that the economic benefit secured by this case was "at least the $215 million" in refunds "due to California LLCs with activities within and without California." The court relied upon this estimate both as a factor in concluding that the litigation had produced considerable pecuniary benefits for a large class of persons, and as a factor in applying an upward adjustment to the lodestar figure, albeit a much more modest increase than Ventas had sought.[6]
In selecting a multiplier of 1.5, the court weighed the additional benefits conferred by the litigation, including "the preservation of valuable resources, both public and private, and particularly those of the judiciary, by obviating the need for duplicative litigation; and the vindication of important constitutional rights under the Commerce and Due Process Clauses of the United States Constitution, particularly the right to engage in interstate commerce without undue burdens." The court also considered the skill of Ventas's lead counsel, the fact that compensation was contingent and that no one else in the last 10 years had been prepared "to take on this litigation." Against these factors, the court weighed the fact that the work involved was not "wholly" novel because except for the issue of reformation and the related issue of the measure of the refund, this litigation was duplicative or "substantially similar" to the issues litigated in the Northwest trial.
*1216 The court applied the multiplier of 1.5 to the lodestar figure of $143,343.75, to award fees in the amount of $215,016.
3. Postjudgment[7]Legislation.
On October 10, 2007, the Governor signed into law Assembly Bill No. 198 (2007-2008 Reg. Sess.), amending former section 17942 for taxable years beginning on and after January 1, 2007, and adding section 19394 (Stats. 2007, ch. 381, § 3). The amendment changed the language of former section 17942, subdivision (a) from "total income from all sources reportable to this state" to "total income from all sources derived from or attributable to this state." It also added the following language: "`total income from all sources derived from or attributable to this state' shall be determined using the rules for assigning sales under Sections 25135 and 25136 and the regulations thereunder, as modified by regulations under Section 25137, other than those provisions that exclude receipts from the sales factor." (§ 17942, subd. (b)(1)(B).)
Assembly Bill No. 198 (2007-2008 Reg. Sess.) also added section 19394, which specifies that if the levy under former section 17942 is "finally adjudged" to be unconstitutional, the remedy shall be for the FTB to recompute it "only to the extent necessary to remedy the discrimination or unfair apportionment," and refund the difference.
Section 4 of Assembly Bill No. 198 (2007-2008 Reg. Sess.) further provides as follows:
"SEC. 4. (a) The Legislature is aware of pending litigation challenging the validity of the fee imposed pursuant to Section 17942 of the Revenue and Taxation Code.
"(b) The amendments made by Section 2 of this act to Section 17942 of the Revenue and Taxation Code, if enacted, shall apply to taxable years beginning on and after January 1, 2007.
"(c) Section 19394 of the Revenue and Taxation Code, as added by Section 3 of this act, shall apply to suits for refunds filed on or after the date of enactment of this act and suits for refunds filed before that date that are not final as of that date.
*1217 "(d) Refunds of fees payable as a result of the litigation described in subdivision (a) shall be limited to the amount by which the fee paid, and any interest assessed thereon, exceeds the amount that would have been assessed if the fee had been computed in accordance with subparagraph (B) of paragraph (1) of subdivision (b) of Section 17942 of the Revenue and Taxation Code, as added by the amendments to that section made by Section 2 of this act.
"(e) It is the intent of the Legislature that no inference be drawn in connection with the amendments made by this act to Section 17942 of the Revenue and Taxation Code for any taxable year beginning before January 1, 2007." (See § 19394.)
ANALYSIS
I.
Constitutional Validity of Former Section 17942 As Applied to Ventas
Former section 17942 was enacted in 1994 as part of the Beverly-Killea Limited Liability Company Act (LLC Act),[8] which authorized the formation, operation, and regulation of LLC's within California. The LLC Act requires any LLC that registers with the Secretary of State to pay the annual minimum tax set forth in section 17941, and to pay a levy pursuant to former section 17942. Subdivision (a) of former section 17942 provides that in addition to the minimum tax, "every limited liability company subject to tax under Section 17941 shall pay annually to this state a fee equal to" specified amounts based upon the amount of "the total income from all sources reportable to this state for the taxable year."
FTB first asks us to determine whether application of the levy under former section 17942 to the income of Ventas, wherever earned and without apportionment according to the percentage of business or income attributable to activities within California, violated the Commerce Clause. We shall conclude that it did, and that former section 17942 is unconstitutional as applied to Ventas. We therefore need not, and do not, decide whether former section 17942 is unconstitutional on its face or whether it violates due process.[9]
*1218 "The negative or dormant implication of the Commerce Clause prohibits state taxation [citation], or regulation [citation], that discriminates against or unduly burdens interstate commerce and thereby `imped[es] free private trade in the national marketplace . . . .'" (General Motors Corp. v. Tracy (1997) 519 U.S. 278, 287 [136 L.Ed.2d 761, 117 S.Ct. 811].) State statutes imposing taxes on income earned outside the state, or imposing a tax on total income without apportionment to activities within the state, have long been held to violate the Commence Clause. (See, e.g., Gwin, etc., Inc. v. Henneford (1939) 305 U.S. 434, 439-440 [83 L.Ed. 272, 59 S.Ct. 325] [state tax "measured by the entire volume of the interstate commerce" in which taxpayer participates and "not apportioned to its activities within the state" violates the Commerce Clause]; Greyhound Lines v. Mealey (1948) 334 U.S. 653, 662-664 [92 L.Ed. 1633, 68 S.Ct. 1260] [tax on gross receipts from transportation violates Commerce Clause to extent receipts were attributable to activities outside the state].)
FTB contends that former section 17942 is not a tax, but a regulatory fee, and that as such the appropriate Commerce Clause analysis is the three-part balancing test outlined in Pike v. Bruce Church, Inc. (1970) 397 U.S. 137, 142 [25 L.Ed.2d 174, 90 S.Ct. 844] (Pike). FTB asserts that the levy imposed under former section 17942 would pass the Pike test because (1) the LLC Act effectuates a legitimate local public interest in promoting a new business form, preventing the flow of business and jobs from the state, and protecting Californians who deal with LLC's; (2) the effects of the levy on interstate commerce are only incidental and de minimis because it required Ventas to pay during the years in issue only a fraction of one percent of its total income; and (3) the local benefits Ventas derived from registering with the Secretary of State exceed the minimal burden of the levy.
FTB further contends that, even if the levy imposed by former section 17942 is a tax, it still does not violate the Commerce Clause under the four-part test set forth in Complete Auto Transit, Inc. v. Brady (1977) 430 U.S. 274, 279 [51 L.Ed.2d 326, 97 S.Ct. 1076 (Complete Auto). Specifically, FTB asserts the dispositive question in this case is whether former section 17942 satisfies the second prong of the Complete Auto test, i.e., is it fairly apportioned. Fair apportionment requires both "internal consistency"[10] and *1219 "external consistency."[11] (Jefferson Lines, supra, 514 U.S. at p. 185.) FTB contends that the internal consistency test is inapplicable, and that Ventas should have been required to demonstrate that the levy imposed by former section 17942 actually adversely impacts interstate commerce more than intrastate commerce.
FTB also contends that the levy imposed by former section 17942 is distinguishable from other state taxes found to violate the Commerce Clause because under the LLC Act, an LLC that registers in California may elect to be taxed as a corporation pursuant to a statutory scheme that does provide a method of apportionment. (§ 23038, subd. (b)(1).) Ventas instead elected to be subject to the levy under former section 17942. FTB asserts this election ameliorates the burden imposed on interstate commerce, and constitutes a waiver, or estops Ventas from challenging the constitutional validity of former section 17942.[12]
All of the foregoing arguments were carefully considered, thoroughly analyzed, and rejected by Division Five of this court in Northwest, supra, 159 Cal.App.4th 841. In that case Northwest Energetic Services (Northwest), an LLC organized under the laws of the State of Washington, registered as an LLC with the California Secretary of State pursuant to Corporations Code section 17451. It paid the $800 minimum tax imposed under section 17941, but failed to pay an amount imposed under former section 17942, based on an LLC's "total income from all sources reportable to this state for the taxable year." (Former § 17942, subd. (a).) Northwest had no California customers, made no deliveries in California, and had "no operations, property, inventory, employees, agents, independent contractors or place of business in California." (159 Cal.App.4th at p. 849.) When FTB notified Northwest that it owed $27,458.13 for amounts due for tax years 1997, 1999, 2000, and 2001, Northwest paid the $27,458.13 and cancelled its registration with the Secretary of State. After exhausting its administrative remedies, it filed a suit for refund. The trial court ruled that, as applied to Northwest, former section 17942 violated the Commerce Clause, and ordered a refund of the entire amount Northwest had paid for the years in issue. (159 Cal.App.4th at p. 850.)
*1220 On appeal, FTB raised all the same arguments it does here. Division Five held that former section 17942 is a tax, not a regulatory fee[13] (Northwest, supra, 159 Cal.App.4th at pp. 857-861), and that it violates the Commerce Clause under Complete Auto, supra, 430 U.S. 274, because it is not fairly apportioned. (Northwest, at pp. 861-864.) The court held former section 17942 failed the internal consistency test for the following reason: "[I]f the Levy were replicated in every state, an LLC engaging in business in multiple states with the same total income as Northwest would pay the maximum levy in every state in which it did business or registered to do business. An LLC operating only in one state would pay the maximum levy only once. Thus, the Levy places a greater burden on interstate commerce than intrastate commerce." (159 Cal.App.4th at p. 862.)
The court rejected FTB's argument that the internal consistency test was inapplicable and that Northwest had to demonstrate by some other means that the tax burdens interstate commerce. It explained that the case upon which FTB relied, American Trucking Assns., Inc. v. Michigan Pub. Serv. Comm'n (2005) 545 U.S. 429 [162 L.Ed.2d 407, 125 S.Ct. 2419] (American Trucking), was distinguishable. (Northwest, supra, 159 Cal.App.4th at p. 862.) "The Michigan fee in American Trucking was a flat fee, `which does not seek to tax a share of interstate transactions, which focuses upon local activity, and which is assessed evenhandedly.' [Citation.] Here, by contrast, the Levy is not a flat fee imposed on all LLC's for the privilege of doing business locally in California, but a percentage of the LLC's total worldwide income, which therefore does tax a share of interstate transactions. Moreover, the court in American Trucking did not reject the internal consistency requirement altogether. Instead, it found no Commerce Clause violation notwithstanding the absence of internal consistency, because the petitioners would incur intrastate (local) fees in multiple states only by engaging in local business in those states. Here, by contrast, an LLC incurs the Levy based on its total worldwide income merely by registering with the state, even if it does no business there." (Northwest, at p. 863.)
The court further observed that, as is also the case here, FTB advanced no argument addressing external consistency. (Northwest, supra, 159 Cal.App.4th at p. 864.) The court concluded that the levy imposed by former section 17942 also failed the external consistency test "[b]ecause the Levy is measured by the LLC's total income wherever earned, and not just what is earned in California, [and thus] the Levy `reaches beyond that portion of *1221 value that is fairly attributable to economic activity within the taxing State.'" (Northwest, at p. 864, quoting Jefferson Lines, supra, 514 U.S. at p. 185.)
Finally, the court rejected FTB's voluntary choice arguments based upon the fact that Northwest could have elected to be taxed as a corporation, a statutory scheme that, unlike former section 17942, provided a method for apportionment and thereby avoided taxation under former section 17942. The court declined to characterize Northwest's decision as consent to be taxed on all income without apportionment, or as a voluntary choice, because an election "to be taxed as a corporation rather than as a passthrough LLC would have more dramatic consequences. Among other things, such an election would require Northwest to make the same election with the Internal Revenue Service, thus changing the manner in which Northwest and its members would be taxed at the federal level, with likely similar changes in all the other states in which Northwest did business. Avoiding the doubletaxation aspect of a corporation (by which the entity is taxed on profits and its members on distributions) is one of the hallmark benefits of an LLC. Indeed, in passing the LLC Act, our Legislature recognized this facet of LLC's as one of the major reasons for such interest in LLC's in the first place. The FTB now would have LLC's surrender this advantage not only in California, but in all other states in which the LLC pays taxes and on its federal tax returns as well, simply so California can impose a tax based on income generated outside of California. The idea that this could somehow ameliorate the burdens on interstate commerce, or insulate the Levy from scrutiny under the Commerce Clause altogether, is simply untenable. Nor do we think that LLC'swhich our Legislature wanted to attract to California in passing the LLC Actshould be forced to endure an unconstitutional assessment merely because they proceeded under the auspices of a California statute (former § 17942)." (Northwest, supra, 159 Cal.App.4th at p. 868.)
The court concluded that, as applied to Northwest, former section 17942 violated the Commerce Clause and that Northwest, "which conducted no business in California, is entitled to a refund of the amounts it paid under former section 17942." (Northwest, supra, 159 Cal.App.4th at p. 868.) The FTB agreed in Northwest that the refund should be of the entire amount the LLC had paid for the years in issue because "none of its total income derived from California sources." (Northwest, at p. 868 & fn. 16.)[14] We find the reasoning in Northwest persuasive, adopt it as our own, and conclude that, as *1222 applied to Ventas, former section 17942 violates the Commerce Clause to the extent that it fails to provide a method of fair apportionment.
II.
Remedy
FTB next raises two issues concerning the appropriate remedy that were not raised in Northwest, supra, 159 Cal.App.4th 841, because the LLC in that case did not conduct any business in California, and FTB did not dispute that Northwest was entitled to a refund of the entire amount it paid for the years in issue. In this case, Ventas conducted at least a portion of its business in California. Therefore, Ventas could have been required to pay a portion of the levy without violating the Commerce Clause had former section 17942 included a method of fair apportionment. The parties stipulated that if the apportionment methodology California uses for corporations (§ 25128 et seq.) were applied, Ventas's California apportionment percentage would have been 8.06 percent, 8.34 percent and 6.94 percent, respectively, for the years in issue.
In light of the foregoing facts, FTB argues that instead of ordering a refund of the entire amount of tax Ventas paid for the years in issue, the court should either: (1) judicially reform former section 17942 to preserve it against constitutional invalidity and apply it as reformed to Ventas; or (2) limit the amount of the refund in this case to the difference between the amount Ventas actually paid and the amount Ventas could have been taxed without violating the Commerce Clause using a method of fair apportionment. FTB asserts that the amount Ventas could have been taxed for the contested years using a method of fair apportionment can easily be determined by using the allocation and apportionment provisions of the Uniform Division of Income for Tax Purposes Act set forth in sections 25120 to 25139 and the applicable regulations. The parties have already stipulated that Ventas's California apportionment percentage would have been 8.06 percent, 8.34 percent and 6.94 percent, respectively, for the years in issue. FTB further contends that this measure of the refund is, in any event, now mandated by the new section 19394 added by Assembly Bill No. 198 (2007-2008 Reg. Sess.). Section 19394 specifies that if the levy under former section 17942 is "finally adjudged" to be unconstitutional, the remedy in any suit for refund that is not final shall be to recompute the tax in accordance with the apportionment methodology added to former section 17942 by Assembly Bill No. 198, and refund the difference.
*1223 Ventas contends that the judicial reformation FTB proposes is not an appropriate remedy because it is inconsistent with the legislative intent at the time former section 17942 was enacted. It further contends that when a state tax violates the Commerce Clause because it is not fairly apportioned, the state must refund the entire amount paid, even if a portion of the tax could have been collected without violating the Commerce Clause using a method of fair apportionment. Ventas further contends that the statutory changes enacted by Assembly Bill No. 198 (2007-2008 Reg. Sess.) are either invalid or inapplicable to this case because: (1) The changes constitute a new tax, and as such had to be approved by a two-thirds vote, pursuant to California Constitution, article XIII, section 3. Since it was not, Ventas asserts the changes made by Assembly Bill No. 198 are ineffective and invalid. (2) Application of section 19394 to any suit for refund that was not final as of the date of enactment is a retroactive application of the law that violates due process.
We shall conclude that FTB fails to establish the limited conditions that would support exercise of the power of judicial reformation, and shall decline to reform former section 17942 in the manner FTB suggests. We, however, also conclude that a refund of the entire amount Ventas paid pursuant to former section 17942 is not compelled by the due process clause, or by any principle of state law. A refund of the difference between the amount Ventas paid and the amount it would have paid based upon income derived from or attributable to California sources, using a method of fair apportionment, would fully cure the Commerce Clause violation. This remedy does not place an unreasonable burden on Ventas because the parties have already agreed what Ventas's California apportionment percentage would have been for the years in issue, if this apportionment methodology were used. We shall therefore reverse and remand to the trial court for further proceedings to determine the amount of the refund. In light of this disposition, we need not reach the question whether application of the changes made by Assembly Bill No. 198 (2007-2008 Reg. Sess.) after the judgment in this case was entered would violate the due process clause.
1. Reformation.
FTB argues that former section 17942 can and should be judicially reformed to cure the constitutional invalidity by requiring an LLC's income be sourced to California using the allocation and apportionment provisions of the Uniform Division of Income for Tax Purposes Act set forth in sections 25120 to 25139. It urges this court to judicially reform former section 17942 to so provide. The proposed reformation would essentially rewrite former *1224 section 17942 in accordance with the changes added by Assembly Bill No. 198 (2007-2008 Reg. Sess.).
"`[A] court may reformi.e., "rewrite"a statute in order to preserve it against invalidation under the Constitution, when we can say with confidence that (i) it is possible to reform the statute in a manner that closely effectuates policy judgments clearly articulated by the enacting body, and (ii) the enacting body would have preferred the reformed construction to invalidation of the statute.'" (Ceridian Corp. v. Franchise Tax Bd. (2000) 85 Cal.App.4th 875, 889 [102 Cal.Rptr.2d 611] (Ceridian).) "By applying these factors, courts may steer clear of `judicial policymaking' in the guise of statutory reformation, and thereby avoid encroaching on the legislative function in violation of the separation of powers doctrine." (Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 661 [47 Cal.Rptr.2d 108, 905 P.2d 1248] (Kopp).) (6) The power of judicial reformation has typically been exercised in three categories of cases: "(i) cases concerning procedural safeguards required by the First Amendment and/or principles of procedural due process; (ii) cases concerning classifications underinclusive under the equal protection clause; and (iii) cases concerning otherwise vague or overbroad criminal statutes." (Id. at p. 629.)
In the context of cases involving tax statutes that violate the Commerce Clause, the courts have consistently declined to exercise the power of judicial reformation to cure the constitutional violation. For example, in Ceridian, the court declined FTB's request that it judicially reform a tax provision that violated the Commerce Clause by, among other things, allowing a deduction for insurance subsidiary dividends only to corporations domiciled in California. FTB suggested the court could reform the challenged statute by rewriting it also to allow non-California corporations to take the deduction. The court explained that the suggested reformation was not appropriate because the plain language of the deduction provision stated that it applies only to corporations "`commercially domiciled'" in California. (Ceridian, supra, 85 Cal.App.4th at p. 889.) Since the provision was clear and unambiguous on its face, it could not be rewritten based upon divination of some contrary legislative intent from other sources. (Ibid.) The court further noted that even if it could reform the provisions to expand the availability of the deduction, "[t]he deductions thus more broadly allowed would still be calculated in accordance with a formula that we have determined violates the commerce clause. As [FTB] recognizes, attempting to rewrite subdivision (b) would involve us in precisely the type of judicial policymaking and encroachment on the legislative function in violation of the separation of powers doctrine, against which the Kopp court warned. [Citation.] Thus, reformation is not possible in this case." (Id. at p. 889.)
*1225 Similarly, in City of Modesto v. National Med., Inc. (2005) 128 Cal.App.4th 518 [27 Cal.Rptr.3d 215] (City of Modesto), a city filed suit to recover a tax deficiency assessed under a municipal license tax. The trial court held the license tax was not fairly apportioned to reflect the percentage of the business actually taking place within the taxing jurisdiction as required under the California constitution. (Id. at pp. 522-523.) The city amended the ordinance to include an apportionment mechanism, and asked the Court of Appeal to judicially reform the original ordinance in a similar manner. The court declined to do so. It explained: "[T]he original ordinance was adopted in 1958. Thus, it is not possible to divine the intent of that enacting body. Further, reforming the 1958 ordinance to comply with constitutional mandates requires adding a substantive change to the law. Such judicial policymaking and encroachment on the legislative function is improper." (Id. at p. 528.)
Nonetheless, FTB asserts that judicial reformation of former section 17942 is possible, without encroaching upon the legislative function, because the phrase "reportable to this state" as used in former section 17942 is, at least arguably, susceptible to the interpretation that it describes only "total income from all sources derived from or attributable to this state." Therefore, FTB reasons, the proposed reformation is not necessarily at odds with the plain language of former section 17942, and would be consistent with the legislative policy judgment underlying this legislation. FTB further suggests that if the Legislature knew that an unapportioned LLC tax would be declared unconstitutional, the Legislature would certainly have chosen to include an apportionment mechanism, because collection of some revenue would always be preferable to none.
We cannot say with confidence that the proposed reformation would be consistent with the legislative policy judgment underlying former section 17942, because the legislative history reflects that the Legislature actually considered, and rejected, a version including precisely the language the FTB now suggests. This rejected version based the tax imposed on "gross receipts. . . derived from or attributable to sources within this state." (Sen. Bill No. 469 (1993-1994 Reg. Sess.) § 15, as amended Sept. 10, 1993.) As the court in Northwest observed, it is not clear why this language was changed, but "[g]iven the oft-stated legislative desire to maintain revenue neutrality, a reasonable inference is that legislators were concerned that the revenue generated from a fee based only on receipts derived from or attributable to sources within this state would not be sufficient. In other words, California would lose money unless the `fee' was imposed on non-California business." (Northwest, supra, 159 Cal.App.4th at p. 858, fn. 9.) FTB does not suggest an alternate explanation for the deletion of this language from the final version *1226 of former section 17942 that would allow us to conclude FTB's proposed reformation "closely effectuates policy judgments clearly articulated by the enacting body" (Kopp, supra, 11 Cal.4th at p. 661) at the time former section 17942 was enacted.[15] The remedy of judicial reformation "is improper when the suggested reformation is inconsistent with the Legislature's intent, or when that intent cannot be ascertained." (Kopp, at p. 643.)
2. Measure of Refund.
FTB alternatively contends that the court erred by requiring it to refund the entire amount Ventas paid pursuant to former section 17942 for the years in issue. It argues that no principle of federal due process or of state law compels it to refund the entire amount Ventas paid for the years in issue. Instead, FTB argues that Ventas is only entitled to a refund of the difference between the amount it paid pursuant to former section 17942 and the portion that could have been collected consistent with the dictates of the Commerce Clause by apportioning the tax to income derived from or attributable to California sources. Ventas, on the other hand, asserts that in McKesson Corp. v. Florida Alcohol & Tobacco Div. (1990) 496 U.S. 18 [110 L.Ed.2d 17, 110 S.Ct. 2238] (McKesson), the court held that when a state tax violates the Commerce Clause because it is not fairly apportioned the only remedy consistent with federal due process is to refund the entire amount.
The appropriate remedy for collection of a tax in violation of the Commerce Clause is, in the first instance, a matter left to the state so long as the remedy it affords comports with federal due process. (McKesson, supra, 496 U.S. at p. 32, fn. 16.) In McKesson, a licensed wholesale distributor of alcoholic beverages filed a tax refund suit challenging Florida's liquor excise tax scheme on the ground that it discriminated against interstate commerce by giving special rate reductions for beverages that were manufactured from products grown in Florida. (Id. at pp. 22-24.) The Florida courts granted injunctive and declaratory relief enjoining future enforcement of the preferential rate reductions, thereby leaving all distributors subject to the liquor tax's nonpreferred rates, but denied McKesson's claim for a refund of at least "`the difference between the disfavored product's tax rate and the favored product's tax rate.'" (Id. at p. 25.)
*1227 The issue before the court in McKesson, supra, 496 U.S. 18 was not the measure of the refund, but rather whether due process required the state to provide any refund at all, or whether the state could remediate collection of tax in violation of the Commerce Clause retrospectively by other means, such as retroactive assessments upon taxpayers who had received preferential treatment. The court held that when a state requires a taxpayer to pay taxes first and raise objections to the tax in a "postdeprivation refund action," the state "must provide taxpayers with, not only a fair opportunity to challenge the accuracy and legal validity of their tax obligation, but also a `clear and certain remedy,' [citation] for any erroneous or unlawful tax collection to ensure that the opportunity to contest the tax is a meaningful one." (Id. at p. 39, fn. omitted.) The court held the remedy must include some form of retrospective relief, but does not necessarily require that the state provide a refund.
The court explained that where the tax is not invalid "in its entirety," but, as in the case before it, was unconstitutional only insofar as it operated in a manner that discriminated against interstate commerce, the state "retains flexibility in responding to this determination. Florida may reformulate and enforce the Liquor Tax during the contested tax period in any way that treats petitioner and its competitors in a manner consistent with the dictates of the Commerce Clause. Having done so, the State may retain the tax appropriately levied upon petitioner pursuant to this reformulated scheme because this retention would deprive petitioner of its property pursuant to a tax scheme that is valid under the Commerce Clause." (McKesson, supra, 496 U.S. at pp. 39-40.) Therefore, the court held that Florida could, consistent with due process, provide a remedy for the Commerce Clause violation of the excise tax in several ways. It could: (1) refund to the taxpayer "the difference between the tax it paid and the tax it would have been assessed were it extended the same rate reductions that its competitors actually received," (2) "assess and collect back taxes from petitioner's competitors who benefited from the rate reductions during the contested tax period, calibrating the retroactive assessment to create in hindsight a nondiscriminatory scheme," or (3) fashion a remedy consisting of "a partial refund to petitioner and a partial retroactive assessment of tax increases on favored competitors, so long as the resultant tax actually assessed during the contested tax period reflects a scheme that does not discriminate against interstate commerce." (496 U.S. at pp. 40-41.)
Ventas argues that McKesson, supra, 496 U.S. 18 further held that, in contrast to a tax that is discriminatory, where, as here, the tax violates the Commerce Clause because it is not fairly apportioned, the state has "no choice" (496 U.S. at p. 39) but to refund the entire amount of taxes paid, even if it is possible to calculate with reasonable certainty the amount the *1228 taxpayer would have paid for the years in question if the tax had been fairly apportioned, without placing an undue burden on the taxpayer.[16]
Ventas's argument is based upon a misreading of the discussion in McKesson, supra, 496 U.S. 18 contrasting the range of remedies a state may offer when a state tax violates the Commerce Clause by, for example, taxing intrastate commerce at preferential rates, versus the more limited range of relief that could be offered to redress the collection of a state tax that violates the Commerce Clause because it is not fairly apportioned. In the course of determining whether the state was required to provide any refund at all, as opposed to some other form of retrospective relief, the court did draw a distinction between taxes that are "beyond the State's power to impose," and a tax such as the one before it that was "unconstitutional only insofar as it operated in a manner that discriminated against interstate commerce." (McKesson, supra, 496 U.S. at p. 39.) In the former circumstance, the court stated the "State would have had no choice but to `undo' the unlawful deprivation by refunding the tax previously paid under duress . . . ." (Ibid.) The clearest example the court gave of such a tax was the collection of a tax on Indian lands that are immune from state taxation. (Id. at pp. 33, 39.) The state could not reformulate such a tax to cure its invalidity and enforce it as reformulated during the contested period because the object of the tax, i.e., Indian lands, was absolutely immune regardless of how the tax might be formulated. Therefore, in such a case, the state would have no alternative remedy but to refund the tax. The court did also cite Atchison &c. Ry. Co. v. O'Connor (1912) 223 U.S. 280 [56 L.Ed. 436, 32 S.Ct. 216] (O'Connor), invalidating a franchise tax most of which "was apportioned to business conducted wholly outside the State" (McKesson, at p. 32), as another example where the only remedial option is a refund. When a tax unduly burdens interstate commerce due to lack of apportionment, an alternative remedy, such as retroactive assessments upon other taxpayers in lieu of a refund, would not cure that type of Commerce Clause violation. The court's point, however, was simply that some type of refund would be the only remedy in such a case. It did not discuss what the measure of the refund should be, and certainly did not hold, or even imply, that a state would be required to *1229 provide a refund of the entire amount collected under such a state tax provision, even if the state could have collected some portion of the tax for the years in issue using a method of fair apportionment without violating the Commerce Clause. To the contrary, earlier in the opinion, when summarizing the holding in O'Connor, the court stated that "the railroad company was entitled to a refund of the portion of the tax imposed on out-of-state activity." (McKesson, at p. 32, italics added.) Thus, to the extent that the court made any reference at all to the measure of the refund, the court implied that the state was required to refund only the portion that could not be imposed without violating the Commerce Clause.[17] In any event, it certainly did not create any kind of categorical rule concerning the measure of a refund when a state tax violates the Commerce Clause because it is not fairly apportioned.
We conclude that, although McKesson, supra, 496 U.S. 18 does hold that when a tax violates the Commerce Clause because it is not fairly apportioned, a refund is the appropriate remedy, it does not support Ventas's assertion that the refund must be of the entire amount paid. McKesson held only that when a tax violates the Commerce Clause because it is not fairly apportioned, the state has "no choice" but to provide a refund because the Commerce Clause violation cannot be cured by other means such as retroactive assessments against those who were taxed at preferential rates. It did not, however, specify the measure of the refund that must be provided when a tax violates the commerce clause because it is not fairly apportioned.
We therefore look to several California decisions that have addressed the question of the appropriate measure of a refund in a tax refund suit when the tax collected is found to violate the Commerce Clause, or equivalent provisions under the state Constitution.[18]
*1230 In General Motors Corp. v. City and County of San Francisco (1999) 69 Cal.App.4th 448 [81 Cal.Rptr.2d 544] (General Motors), this court held that General Motors was entitled to a refund of all taxes it had paid under a municipal ordinance that discriminated against General Motors and other out-of-city manufacturers because in-city manufacturers would be subject to only one tax upon gross receipts from the sale of goods whereas out-of-city manufacturers would be subject to "two taxesa tax upon the portion of gross receipts attributable to selling activity within the City, and any tax upon gross receipts imposed by another municipality where the seller manufactures its goods." (Id. at p. 452.) Our determination that General Motors was entitled to a full refund was not, however, based upon categorizing the tax as violating the Commerce Clause because it was "discriminatory" or "unapportioned." Instead, we analyzed whether the specific remedy proposed by the city in lieu of a full refund satisfied the due process parameters for postdeprivation relief outlined in McKesson, supra, 496 U.S. 18. The city proposed to refund all selling taxes General Motors could prove it had paid on goods upon which another city had also assessed a manufacturing tax. We held that the proposed remedy failed substantively to cure the Commerce Clause violation because, among other reasons, it did not "fully eliminate the discrimination suffered by General Motors . . . because it would still be paying a selling tax to San Francisco while local manufacturers pay a manufacturing tax." (General Motors, at p. 456.) Moreover, procedurally the proposed remedy was less than the "clear and certain" relief McKesson requires, because it placed the burden on the taxpayer to demonstrate double taxation had actually occurred. Moreover, to meet this burden, General Motors would have been required to "produce documentation from 17 years ago that it was otherwise never required to maintain." (General Motors, at p. 455.) On those facts, we concluded the alternative remedy proposed by the city would not provide "clear and certain" relief, because it imposed an unreasonable burden of proof upon the taxpayer rendering the proffered remedy inadequate. Absent a reasonable, clear, and certain method of determining the amount of tax the city could have collected without violating the state and federal commerce provision and deducting that from the total amount of tax collected, we held the city was required to refund the entire tax payment General Motors had made under the challenged tax provision. (Id. at pp. 454-456, 461.)
In Macy's Dept. Stores, Inc. v. City and County of San Francisco (2006) 143 Cal.App.4th 1444 [50 Cal.Rptr.3d 79] (Macy's), Division Three of this court addressed the question whether McKesson, supra, 496 U.S. 18 or any principle of state law compelled the city to refund all of the business taxes Macy's had paid under a municipal tax scheme found to violate state and federal Commerce Clause provisions. The challenged tax required a business operating in San Francisco to calculate its tax liability based upon its payroll *1231 expense, and again based upon gross receipts, and then to pay whichever amount was greater. (Macy's, at p. 1447.) It was undisputed on appeal that the tax failed the internal consistency test because it "could hypothetically discriminate against intercity taxpayers, who might be subject to tax under a payroll expense measure in one jurisdiction and under a gross receipts measure in another, unlike a local taxpayer, who would pay tax only to San Francisco under only one measure." (Macy's, at p. 1448.) The trial court had concluded that this court's decision in General Motors, supra, 69 Cal.App.4th 448 compelled it to order a refund of the entire amount Macy's had paid for the contested years, and the city appealed. (Macy's, at p. 1448.)
The Court of Appeal reversed. It held that the remedy the city proposed, consisting of a partial refund in an amount sufficient to remedy the hypothetical discrimination, effectively placed Macy's in the same position as a local taxpayer, and that no principle of due process or state law required that the city instead refund the entire amount Macy's had paid. (Macy's, supra, 143 Cal.App.4th at pp. 1451-1454.) Division Three correctly stated that this court's decision in General Motors, supra, 69 Cal.App.4th 448 did not establish a categorical rule that the only remedy is to provide a full refund.[19] (Macy's, at p. 1451.) An expert had calculated that Macy's would have paid 1.2 percent more than a hypothetical taxpayer with only local business, and Macy's did not dispute this estimate. (Id. at pp. 1448, fn. 5, 1451.) It therefore was possible to use the estimate to calculate the amount of tax Macy's had been required to pay that a hypothetical local taxpayer would not have had to pay, without placing the burden upon Macy's to prove this amount, or to come forward with documentation in support of its refund claim that it would not otherwise have had reason to keep. Division Three distinguished this court's holding in General Motors on these grounds. (Macy's, at pp. 1451-1452.) Division Three observed, "[T]here is no claim here that the City's proposed remedy is deficient because it is uncertain or would not eliminate the discriminatory effect . . ." of the challenged tax, by placing Macy's in the same position as a local taxpayer. (Id. at p. 1451.) The court also rejected the argument that a full refund was required on the ground that the challenged tax provision was void, and therefore of no force and effect. (Id. at p. 1454.) Nor was a full refund compelled by article XIII, section *1232 32 of the California Constitution, because that section merely "recognizes the taxpayer's right to refund of an illegal tax, as a corollary to the prohibition against enjoining the collection of any tax, but it does not address the proper measure of refund." (Macy's, at p. 1453.)
The court concluded that the measure of the refund the city proposed satisfied all the state and federal requirements of due process. "Macy's is entitled to be placed in a position equivalent to that occupied by local taxpaying businesses so it will have paid a valid measure of taxes. [Citation.] In this way, the City may limit Macy's tax refund to the amount necessary to remedy any discrimination from the City's former tandem tax. [Citation.] Macy's is not entitled to a full refund of all business taxes paid between 1995 and 1999. Such a refund would place Macy's in a more favorable position than a local taxpayer during the same period." (Macy's, supra, 143 Cal.App.4th at pp. 1454-1455.)
Finally, in City of Modesto, the court indirectly addressed some of these same due process principles, in a procedurally different context, when it declined to judicially reform a municipal tax ordinance to include a method of fair apportionment. The ordinance had been amended to cure the constitutional invalidity by adding a method of fair apportionment, but the court had found that the amendments applied prospectively only. The court explained that due process concerns were among its reasons for declining to judicially reform the ordinance to include a fair apportionment mechanism like the one added by the amendments: "Although here the disputed tax has not yet been collected, the amended ordinance places the burden on [the taxpayer] to prove which gross receipts should be excluded based on out-of-city activities. Thus, if we were to retroactively validate the tax by applying the apportionment provisions, we would be requiring [the taxpayer] to produce documentation from up to nine years ago that it otherwise was never required to maintain. If [the taxpayer] were unable to document its claimed out-of-city activities, the assessed deficiency would remain the same as it was under the unconstitutional tax. This is not a `clear and certain remedy' but, rather, places an unreasonable and unfair burden on [the taxpayer]." (City of Modesto, supra, 128 Cal.App.4th at pp. 529-530.)
Due process concerns similar to those identified in General Motors, supra, 69 Cal.App.4th 448 and City of Modesto, supra, 128 Cal.App.4th 518 do not exist with respect to FTB's proposed remedy in this case. Ventas does not contend that the partial refund proposed by FTB would not substantively redress the Commerce Clause violation. FTB proposes only to retain that portion of the levy under former section 17942 that may be fairly apportioned to Ventas's in-state activity, and to refund the balance that would represent the amount collected in violation of the Commerce Clause. Using FTB's *1233 measure of the refund does not create any procedural or practical burden for Ventas that would undermine the clarity or certainty of the remedy in a manner inconsistent with due process. The parties have already stipulated to Ventas's California apportionment percentage for each of the years in issue using California's apportionment methodology for corporations. Therefore, allowing the FTB to recalculate the levy for the years in issue will not require Ventas to bear any burden to prove the appropriate apportionment percentage, or to produce documentation in support of the calculation that it might not have retained. If FTB is allowed to recalculate the levy using the stipulated California apportionment percentages for the years in issue, to retain the portion of the levy thereby fairly apportioned to the state, and to refund the difference, Ventas will be placed in the same position it would have been in if it earned all of its income from California sources, or if the levy had been properly apportioned. We know of no other principle of state law of state or federal due process that would entitle it to a remedy that does more than that.[20]
We conclude that the court erred by ordering that Ventas was entitled to a full refund of the entire amount of tax it paid pursuant to former section 17942 for the years in issue. The court should instead have ordered a refund of the difference between the levy actually paid and the amount that could be collected without violating the Commerce Clause using a proper method of apportionment. Accordingly, we shall reverse the judgment to the extent that it orders FTB to refund the entire amount of taxes Ventas paid for the years in issue, and remand to the trial court for further proceedings to redetermine the amount of the refund, in accordance with the view expressed in this opinion.
III.
Attorney Fees
The foregoing disposition, reversing the judgment to the extent that it ordered a refund of the entire amount Ventas paid pursuant to former section 17942, requires that we also reverse the postjudgment award of attorney fees pursuant to Code of Civil Procedure section 1021.5, because we cannot say with certainty that the court would exercise its discretion the same way had Ventas not prevailed on its contention that it was entitled to a full *1234 refund. For example, the trial court's determination that Ventas had demonstrated that a large ascertainable class of persons would significantly benefit from the litigation was based, at least in part, upon an estimate of the total amount of potential refunds that assumed LLC's that had some income attributable or derived from California sources would nonetheless be entitled to a full refund.[21] Similarly, the partial reversal of the underlying judgment could also affect the court's determination that it was appropriate to apply a 1.5 multiplier to the lodestar figure of $143,343.75. One of the factors the court weighed was that much of the work in this case was duplicative of the work in Northwest, supra, 159 Cal.App.4th 841, except for the issue of reformation and whether a full or partial refund was due. The court explicitly weighed the duplicative nature of the work factor against the "considerable benefits" secured by Ventas's litigation in determining that the 1.5 multiplier was reasonable. The trial court's assessment of the relative weight of these factors could also reasonably change in light of this court's determination that Ventas was not entitled to the full refund it had obtained from the trial court. Finally, because a "successful party" within the meaning of Code of Civil Procedure section 1021.5 is not the same as the definition of the "prevailing party" pursuant to Code of Civil Procedure section 1032, the partial reversal could conceivably also affect the court's discretionary determination that Ventas is a successful party for the purpose of a fee award.
We also briefly address FTB's contention that section 19717 is the exclusive means of recovering attorney fees in a tax refund suit, because if FTB were correct, Ventas would be ineligible for fees in any amount since it failed to file an appeal to the Board of Equalization. (§ 19717, subd. (b)(1).)[22] We therefore would simply reverse, rather than remand for further proceedings to allow the court to exercise its discretion pursuant to Code of Civil Procedure section 1021.5.
In Northwest, supra, 159 Cal.App.4th at pp. 869-875, the court carefully considered and rejected each of the arguments FTB raises here in support of its contention that section 19717 is the exclusive means of recovering attorney fees in a tax refund suit. The court in Northwest ultimately concluded: "Attorney fees are not recoverable under Code of Civil *1235 Procedure section 1032, subdivision (b) unless they are recoverable under some contract, statute or law. [citation]. Most tax refund cases are not pursuant to a contract, statute or law that would afford such relief; few would meet the standards of Code of Civil Procedure section 1021.5 or the common fund doctrine. Section 19717 therefore provides an alternative means of recovering attorney fees in the limited instance in which FTB's position is without substantial justification. [¶] Section 19717 and Code of Civil Procedure sections 1032, 1033.5, and 1021.5 are thus readily harmonized. (15) Code of Civil Procedure section 1032, subdivision (b), in conjunction with Code of Civil Procedure section 1033.5, provides a general right to attorney fees where another statute, contract, or law authorizes such an award. One such statute is section 19717, which requires the movant to prove it was a prevailing party within the meaning of section 19717 and limits the movant's recovery as set forth therein. Another such statute is Code of Civil Procedure section 1021.5, which does not compel the movant to prove the requirements of section 19717, but instead requires the movant to establish that it was a `successful party' in an action resulting in the `enforcement of an important right affecting the public interest,' conferring a `significant benefit. . . on the general public or a large class of persons.' [Citation.] Thus, section 19717 and Code of Civil Procedure section 1021.5 (and the common fund doctrine) provide different remedies befitting different situations." (Northwest, supra, at p. 875.)
For the foregoing reasons, we shall also reverse the order granting attorney fees pursuant to Code of Civil Procedure section 1021.5, and remand to allow the court to again exercise its discretion in light of our partial reversal of the underlying judgment. Nothing we have said should be construed as an expression of an opinion as to how that discretion should be exercised.
CONCLUSION
The judgment is affirmed in part and reversed in part. We affirm the court's determination that, as applied to Ventas, former section 17942 violates the Commerce Clause, and that judicial reformation is not an appropriate remedy. We reverse the judgment only with respect to the amount of the refund due, and remand with directions to redetermine the amount, limiting the refund to the difference between the amount Ventas paid pursuant to former section 17942, and the amount Ventas would have been required to pay had the tax been fairly apportioned, as more fully described in this opinion.
*1236 The postjudgment order awarding attorney fees is also reversed, and the matter is remanded with directions that the court may redetermine eligibility and the amount of reasonable fees in light of our partial reversal of the judgment.
Each party shall bear its own costs on appeal.
Marchiano, P. J., and Swager, J., concurred.
NOTES
[1] We refer to the version of Revenue and Taxation Code section 17942 at issue in this appeal as former section 17942, because in 2007, after the judgment was entered, and after the court entered a postjudgment order awarding attorney fees, the Legislature amended Revenue and Taxation Code section 17942. (Stats. 2007, ch. 381, § 2; see, post, at pp. 1216-1217.)
[2] All subsequent statutory references are to the Revenue and Taxation Code unless otherwise indicated.
[3] In light of this disposition we shall not reach the question whether the newly enacted section 19394, which specifies a method for calculating the amount of refunds in the event that former section 17942 is finally adjudged to violate the Commerce Clause, may be applied to this case or whether any principle of due process would preclude its retroactive application.
We deferred ruling on FTB's request that we take judicial notice of a September 2007 legislative committee analysis and reanalysis of Assembly Bill No. 198 (2007-2008 Reg. Sess.), which added section 19394, and Ventas's request that we judicially notice the complete bill history. We do not reach any of the issues relating to the application of section 19394 and therefore deny these requests for judicial notice.
[4] This statement of facts is based primarily upon a "Joint Stipulation of Facts" and "Joint Stipulation Regarding Documents."
[5] FTB appealed that judgment and attorney fee order, and on January 21, 2008, Division Five of this court filed its opinion in the consolidated appeals Northwest Energetic Services, LLC v. California Franchise Tax Bd. (2008) 159 Cal.App.4th 841 [71 Cal.Rptr.3d 642], review denied June 11, 2008 (Northwest).
[6] FTB does not dispute that Ventas demonstrated the cost of private enforcement exceeded the potential benefit to any individual LLC. Ventas submitted an expert declaration below explaining that one of the reasons former section 17942 had not been challenged was that the maximum refund for any LLC would be $11,790 per year, and that the cost of litigating the Commerce Cause issue would far exceed that amount.
[7] The notice of entry of judgment in this case was filed on December 14, 2006, and FTB filed a timely notice of appeal on December 19, 2006. The notice of entry of the order awarding fees and costs was filed on May 1, 2007, and FTB filed a timely notice of appeal of this postjudgment order. Ventas filed a cross-appeal of the attorney fee order, but states in its brief that it has withdrawn the cross-appeal.
[8] The LLC Act was codified as new Title 2.5 to the Corporations Code (Corp. Code, § 17000 et seq.) with conforming amendments to the Revenue and Taxation Code and other codes.
[9] A statute should be found facially unconstitutional only if there are no circumstances under which it can be validly applied. (See United States v. Salerno (1987) 481 U.S. 739, 745 [95 L.Ed.2d 697, 107 S.Ct. 2095]; Sanchez v. City of Modesto (2006) 145 Cal.App.4th 660, 678-679 [51 Cal.Rptr.3d 821].) FTB argues that former section 17942 may be constitutionally applied to other LLC's, including those formed and doing business solely within the state of California.
[10] "Internal consistency is preserved when the imposition of a tax identical to the one in question by every other State would add no burden to interstate commerce that intrastate commerce would not also bear." (Oklahoma Tax Comm'n v. Jefferson Lines, Inc. (1995) 514 U.S. 175, 185 [131 L.Ed.2d 261, 115 S.Ct. 1331] (Jefferson Lines).
[11] "External consistency . . . looks . . . to the economic justification for the State's claim upon the value taxed, to discover whether a State's tax reaches beyond that portion of value that is fairly attributable to economic activity within the taxing State." (Jefferson Lines, supra, 514 U.S. at p. 185.)
[12] We deferred ruling on Ventas's motion to strike the waiver argument, and other arguments from FTB's reply brief, on the grounds that the arguments were new issues raised for the first time in the reply. The motion to strike is hereby denied.
[13] Division Five further held that even if former section 17942 were a regulatory fee, it would violate the Commerce Clause under the balancing test articulated in Pike, supra, 397 U.S. 137. (Northwest, supra, 159 Cal.App.4th at pp. 865-866.)
[14] The court in Northwest, supra, 159 Cal.App.4th 841 also reversed the attorney fee award. It held that the trial court failed to provide adequate explanation or justification for upward adjustment of the lodestar figure of $219,566.95 to $3.5 million, and directed the trial court, if it chose to enhance the lodestar amount again on remand, to provide a more specific explanation of its reasons. (Id. at p. 882.)
[15] The amendments and new section added by Assembly Bill No. 198 (2007-2008 Reg. Sess.) leave no doubt that the Legislature now intends to impose the tax only upon income derived from or attributable to California sources. FTB does not argue that this subsequent legislation sheds any light upon the Legislature's intent when it deleted this language from former section 17942, and we therefore express no opinion on that issue.
[16] We note that the distinction between taxes that are invalid because they are not fairly apportioned and those that are discriminatory can also be elusive because "[a] tax that unfairly apportions income from other States is a form of discrimination against interstate commerce." (Armco Inc. v. Hardesty (1984) 467 U.S. 638, 644 [81 L.Ed.2d 540, 104 S.Ct. 2620], italics added.) Similarly under California law a tax that is not fairly apportioned to reflect the percentage of business taking place within the taxing jurisdiction is also sometimes characterized as a tax that "unfairly discriminate[s]" against intercity businesses by placing a burden upon them that is not placed on entirely intracity businesses. (City of Modesto, supra, 128 Cal.App.4th at p. 525.)
[17] The tax in O'Connor, supra, 223 U.S. 280 was upon the privilege of doing business and consisted of 2 cents on every $1,000 of the corporation's capital stock. Failure to pay the tax resulted in forfeiture of the privilege of doing business. The court held the "tax is of the kind decided by this court to be unconstitutional, since the decision below in the present case, even if the temporary forfeiture of the right to do business declared by the statute be confined by construction, as it seems to have been below, to business wholly within the State." (Id. at p. 285.) At the time of the decision in O'Connor, the Commerce Clause was interpreted to preclude any state tax on interstate commerce, even if fairly apportioned, in effect creating a zone of immunity from state taxation. (See Complete Auto, supra, 430 U.S. at p. 278 [overruling Spector Motor Service v. O'Connor (1951) 340 U.S. 602 [95 L.Ed. 573, 71 S.Ct. 508] and related line of authority that "reflect[] an underlying philosophy that interstate commerce should enjoy a sort of `free trade' immunity from state taxation"].)
[18] "Despite the absence of a specific `commerce clause' in the California Constitution, the requirements of equal protection and due process proscribe local taxes that operate to unfairly discriminate against intercity businesses by subjecting them to a tax that is not fairly apportioned to reflect the percentage of the business actually taking place within the taxing jurisdiction." (City of Modesto, supra, 128 Cal.App.4th at p. 525.)
[19] When the court in Macy's, supra, 143 Cal.App.4th 1444 stated the case before it was "not a case where a full tax refund is required because the tax `was beyond the State's power to impose, as was the unapportioned tax'" in O'Connor, supra, 223 U.S. 280 (Macy's, at p. 1452), it merely recognized the same distinction the court in McKesson, supra, 496 U.S. 18 drew between the appropriate remedy when a tax is invalid in its entirety because it is beyond the state's power to impose under any formulation, and one that is invalid only insofar as it discriminates against interstate commerce. In any event, any reference in Macy's to the appropriate measure of a refund when a tax is not fairly apportioned was dicta, and we do not construe it to create a categorical rule that in such a case the taxing authority has no choice but to refund the entire amount paid.
[20] Only Ventas's refund claim is before us, and our holding is based upon the particular facts in this case. Accordingly, we express no general opinion regarding the appropriate remedy in other cases. Since we are concerned here only with the Ventas's refund claim, the possibility that the remedy FTB proposes could impose an unreasonable burden on a hypothetical taxpayer whose California apportionment percentage is less readily ascertainable, does not preclude application of the remedy in this case, where it is stipulated.
[21] The court relied upon FTB's lower estimate of the amount of potential refunds, but even FTB's estimate assumed LLC's that had some income attributable or derived from California sources would nonetheless be entitled to a refund of all tax paid pursuant to former section 17942.
[22] We hereby grant FTB's request that we take judicial notice of an excerpt from a federal Joint Committee on Taxation report describing Internal Revenue Code section 7430 as an exclusive provision for an award of litigation costs. For the same reasons stated by the court in Northwest, supra, 159 Cal.App.4th at p. 874, we nonetheless reject FTB's argument that this legislative history supports the conclusion that the California Legislature intended section 19717 to be the exclusive means of recovering attorney fees in a tax refund suit. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266305/ | 238 P.3d 804 (2008)
COURSEY (DARRELL)
v.
STATE.
No. 50529.
Supreme Court of Nevada.
February 29, 2008.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266306/ | 461 F.Supp. 714 (1978)
INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS and Gregory Ferguson on Behalf of all Members of the International Society for Krishna Consciousness
v.
George SCHRADER, City Manager of Dallas, Texas, Donald Byrd, Police Chief of Dallas, Texas, and Jerry Barshop, Director of Dallas Convention Center.
Civ. A. No. CA-3-77-1329-G.
United States District Court, N. D. Texas, Dallas Division.
May 5, 1978.
*715 John F. Jordan and Howard C. Rubin of Jordan, Rubin & Pace, Dallas, Tex., for plaintiffs.
Joe G. Werner, Asst. City Atty., Dallas, Tex., for defendants.
MEMORANDUM OPINION
PATRICK E. HIGGINBOTHAM, District Judge.
On October 17, 1977, this court denied the International Society for Krishna Consciousness (ISKCON)'s application for temporary injunction. The City of Dallas (City) by enforcement of an ordinance sought to bar ISKCON from entering the environs of its Convention Center to solicit funds and proselytize surgeons attending a medical meeting. The doctors had leased the convention auditorium from the City, its owner. ISKCON asked the court to enjoin the ordinance. As then stated:
"The quarrel is precipitated by the desire of Iskcon members to proselytize people in attendance at events conducted at the convention center and the desire of the City to prevent activity that might annoy its tenants and reduce the attractiveness of the convention center to prospective tenants. Iskcon asserts that the City Ordinance is constitutionally anemic in that it stifles First Amendment expression, is impermissibly vague, grants standardless discretion to officials to determine the propriety of views to be disseminated and impermissibly delegates to lessees of the City the right to censor use of public facilities." Order Denying Application for Temporary Injunction.
The court did not reach the constitutional question because it found the ordinance otherwise unenforceable against ISKCON. The City fell back to its "rights" as a landowner and invoked state trespass laws. Because the City continues to offer the Center for rent, the question of the legality of ISKCON's exclusion from certain areas of the Convention Center remains.
ISKCON urges that the First Amendment bans the City's efforts to exclude their activity. The City responds that it is acting only as a landowner leasing its facility to all with financial means, denies that it *716 lets the auditorium in a discriminatory manner, and lastly denies it influences a lessee's admission practices. The material facts are not in dispute.
The Facility
The parties stipulated that the Dallas Convention Center is owned by the City of Dallas, but leased for compensation.[1] The Convention Center is a large building containing an arena, theater, ballroom, meeting rooms, and several meeting halls, all connected with wide interior corridors. Each are available for rent under a standard form lease (Defendants' Exhibit 39) that provides ". . . Lessee shall have reasonable rights of ingress and egress through the halls, passageways, lobbies and corridors, subject to the terms and conditions of this agreement, including but not limited to Section 12 herein." Section 12 provides "No portion of the sidewalks, ramps, entries, corridors, passageways, vestibules, halls, lobbies, stairways, aisles, driveways, or access to public utilities of said Dallas Convention Center shall be obstructed by Lessee or used for any other purpose other than for ingress or egress from the demised premises without the written consent of the Director of the Dallas Convention Center. The doors, skylights, stairways or openings that reflect or admit light into any place in the building, including hallways, fire hose cabinets, corridors and passageways, radiators and house lighting appurtenances shall not be covered or obstructed by Lessee without written approval of the Director." The general public does not use the interior corridors, passageways, sidewalks, or other places to gather. They are in fact of little practical value except as means of ingress and egress to parts of the Center. Admission to all events is controlled by the Center's lessees on conditions determined by each lessee. Part of the Center's construction cost came from revenue bonds issued pursuant to City ordinance. Evidence at trial revealed that the Center has occasionally received additional money from general funds of the City.
Public Forum
ISKCON's activity[2] in a public forum would indisputedly be protected by the First Amendment. Equally basic is the principle that not all city owned property is a public forum. ISKCON contends that the Civic Center is a public forum, relying upon Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); Southeastern Promotions, Ltd. v. City of West Palm Beach, 457 F.2d 1016, 1079 (5th Cir. 1972); Wolin v. Port of New York Authority, 392 F.2d 83 (2nd Cir. 1968). ISKCON seems to argue that the auditorium is a public forum solely because it is financed by general revenue bonds of the City or otherwise occasionally draws for its operation upon the local public fisc; alternatively, that the Center is a public forum by virtue of the use to which it has been put.
Stating what is not presented may assist in the framing of what is. There is no contention (because apparently the City has not) that the City in any way censors either in its rental practices or in its practice of allowing use of interior passageways only as means of ingress and egress. Instead the question is whether the City, either by its control over all interior corridors *717 or by enforcement of any "right" of its tenant to censor and exclude, is violating the First Amendment. No one would seriously urge that a city can legally engage in "content-based discrimination" in renting its municipal auditorium.[3] The Southeastern Promotions cases, supra, relied upon by ISKCON so held but are not here factually apposite because the City of Dallas has not censored in its rental activity nor discriminated in its uniform ban on usage of interior ways for other than ingress or egress. That the facility is municipally owned and supported by tax money alone will not fix its status as a public forum. This argument would swallow too much if a municipality can own any nonpublic forum property, and obviously a city can. As the Supreme Court stated in Adderley v. Florida:
"The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated. For this reason there is no merit to the petitioners' argument that they had a constitutional right to stay on the property . . the United States Constitution does not forbid a State to control the use of its own property for its own lawful nondiscriminatory purpose." 385 U.S. 39, 47-48, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966).
Instead, as ISKCON recognizes by the emphasis of its briefs, the use made of the facility is important in answering the question of public forum status.
It is more than appropriateness. That facilities are appropriate for public expression is insufficient to make them a public forum. Adderley v. Florida, 385 U.S. 39, 47, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966), cf. Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972). And more than frequent public usage of property is required. Lloyd Corp. v. Tanner, supra. As the Supreme Court stated in Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968):
"The public is invited to the premises but only in order to do business with those who maintain establishments there . ." 391 U.S. at 338, 88 S.Ct. at 1619.
In Wolin the general public had free access to the Port Authority Concourse, shops, waiting rooms, and services. In Wolin there was both state ownership and an invitation to the public; and real property notions of dedication to the public ran through it all. The result was that a public place became a public forum. The cases suggest two ingredients first, operation by the state, and second, a place usually associated with places of public expression such as streets, parks, or airports. The parties seek a declaration that the Convention Center, or as a lesser unit, its interior passageways, is or is not a public forum. The difficulty is that censorship by a tenant enforced by the City is not wholly private ordering. As the amount of state involvement increases, so correspondingly does the required justification for any censorship. Although city participation is not great, it is not absent. Moreover, the second element is a changing one. With state ownership there is a lessened tension between First Amendment and private property values. It follows that Wolin is distinguishable from Tanner in part by who owned the property. Here, although the City owns the property, there is a tension between the private property interests of the tenant and the First Amendment. Accordingly, the standards of Tanner for determining whether a public forum exists ought to be applied.
The City seems to seek a declaration of the nonpublic status of the physical plant. Such a blanket exception from the First Amendment is neither constitutionally permissible nor procedurally available. Although the City might act in a proprietary role as landowner and let the premises on nondiscriminatory terms, it cannot furnish as part of its rental package assurance to a tenant that the tenant's activity is insulated from the First Amendment.
*718 The measuring standard for the access due ISKCON turns on a tenant's usage of the rented facility measured in terms of Tanner. It follows that the absence of a public forum on these facts is not necessarily a permanent status. For example, a convention of dental supply technicians may well wish to rent the facility for its own purposes and admit only its members. The exclusion's legality (which would probably give us little pause) is measured by quite different standards from situations where the usage creates a public forum.[4] On the other hand, conducting a public meeting of the City Council in the facility would not increase the City's rights of censorship. Indeed this would present a state not private usage of property for a traditional public event concerning matters usually in the public forum. And various activities on this spectrum can be imagined.
Any suggestion that a tenant enjoys unfettered rights to exclude because its activity is wholly private ignores the dual role of the City as sovereign and as landlord in enforcing that censorship; it equally ignores the reality that public forum is not a concept controlled by the common law of real property, running with the land or reverting to and among tenancies. Given the interrelationship of the City, private property owners and the sometime propinquity to public events of the center's usage, the concept here serves as an analytical tool for assaying the relative interest of owners of private property and the interest of a free society in the highly placed value of open markets for ideas. A tenant of the city need not take his private property, here a leasehold interest into that marketplace, but if he does, he must abide its rules; and access to its public forum could include access to the interior passageways. That is, the City's limited grant of usage to the passageways as found in Section 12 of the standard form lease may then well have to give way. It follows from this reasoning that whether ISKCON can peddle its wares and ideas within the environs of the Center turns on the usage then being made of it.
That the City does not rent but only grants rights of ingress and egress to the interior passageways is of no aid to ISKCON, at least in the absence of a tenant's creating a public forum. In government institutions not performing speech-related functions such as a hospital or jail even peaceful speech and assembly which interferes with the government may be barred. This power is qualified by the idea of alternative access. See Albany Welfare Rights Organization v. Wyman, 493 F.2d 1319 (2nd Cir. 1974) allowing "orderly leaf-leting" in a county welfare office. Putting to one side the force of this substantive principle, the court finds ISKCON's argument that it has no alternative access to the Convention Center audience is not factually sound. The sidewalks outside the auditorium provide access to those attending events within. ISKCON wants, however, to be able to enter the facility and gain access to the corridors inside the overall structure but outside its auditorium or meeting halls. In the context of the "alternative" qualification to the right to exclude the public from certain government work places, ISKCON is not entitled to a place of confrontation where its audience cannot escape. That is, ISKCON is not entitled to a captive audience, only access.[5] Justice Black in Adderley emphatically rejected the idea ". . . that people who want to propagandize protests or views have a constitutional *719 right to do so whenever and however and wherever they please." 385 U.S. at 47-48, 87 S.Ct. at 247.
The principal lesson of the alternative access proviso is that even with nonpublic centers of government, there are few absolutes. When the usage of the Center by a tenant does not effectively render it a public forum, ISKCON may be excluded from the interior of the buildings because the outside sidewalks provide a reasonable effective means of soliciting and proselyting.[6]
This refusal to categorize forever the Convention Center as a nonpublic forum, although obviously to an extent open-ended, is a recognition of both of the limited role of declarative answers to factually barren constitutional issues and of the fluidity of state involvement and uses of the leased property inherent in this leasing operation. Given the circumstance that most usage of the facility appears to be essentially private and that these private property interests of a tenant would not be lightly overborne despite the state's role as landlord, it will be the rare case that a public forum is created. Rare though it may be, this court is not prepared to rule it out. Nor is it prepared to pass on situations yet not ripe. This explanation is made only to make plain that the narrowness of the possibility left open today ought negate any inference that the court is extending an invitation for review of usage by each tenant of the Convention Center.
All requests for injunctive relief are denied except those consistent with this memorandum. The parties will submit a proposed form of judgment.
NOTES
[1] The premises of the Dallas Convention Center is that area bounded by the west and southwest right-of-way line of Akard Street between Marilla Street and Canton Street; the northwest and north right-of-way line of Canton Street between Akard Street and Griffin Street; the east right-of-way line of Griffin Street between Canton Street and Young Street; and the south right-of-way line of Young Street between Griffin Street and Marilla Street and the northeast right-of-way line of Marilla Street between Young Street and Akard Street; save and except for that area known as Pioneer Park or Masonic Cemetery.
[2] The chants, solicitation, and dress of ISKCON are described in the Order of October 17, 1977, and cases there cited. Even in a public forum ISKCON's activity would be subject to a time, place, and manner restriction although there is little doubt that access at least to the interior corridors would then be sustainable, and that is the access sought.
[3] Some have urged that confinement of general subject matter such as opera to opera houses might not be barred discrimination. See J. Rehnquist dissenting in Southeastern Promotions, Ltd. v. Conrad, 420 U.S. at 570, 95 S.Ct. 1239.
[4] There may well be a more flexible notion of limited public forum. See Toward a Gayer Bicentennial Committee v. Rhode Island Bicentennial Foundation, 417 F.2d 632 (D.R.I.1976). See also Bonner-Lyons v. School Committee of City of Boston, 480 F.2d 442 (1st Cir. 1973). There the court stated: "[O]nce a forum is opened for the expression of views, regardless of how unusual the forum, under the dual mandate of the first amendment and the equal protection clause neither the government nor any private censor may pick and choose between these views which may or may not be expressed." 480 F.2d at 444 (emphasis the court's).
[5] The court in Tanner distinguished Logan Valley on the basis, inter alia, that in Logan Valley the pickets would ". . . have been deprived of all reasonable opportunity to convey their message to patrons of the . . . store . . ." 407 U.S. at 566, 92 S.Ct. at 2227.
[6] ISKCON's fight is for access to the interior walkways, not the auditorium, theatre, or meeting halls themselves. Although the City wants the line drawn along particular exterior sidewalks, that is, it would also deny ISKCON access to certain exterior sidewalks, its interest (or any tenant's interest) is too tenuous to sustain the exclusion. Although the exterior sidewalks are not all used daily by pedestrian traffic bound for places other than the Center, they are in appearance and location difficult to distinguish from city sidewalks. Moreover, an exterior-interior line is much more practicable. A bright clear line will best serve these competing interests. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1373805/ | 111 Ga. App. 591 (1965)
142 S.E.2d 298
UNDERCOFLER, Commissioner
v.
STANDARD OIL COMPANY.
41075.
Court of Appeals of Georgia.
Argued January 11, 1965.
Decided April 7, 1965.
Rehearing Denied April 22, 1965.
*592 Eugene Cook, Attorney General, John A. Blackmon, Assistant Attorney General, for plaintiff in error.
King & Spalding, Robert L. Steed, contra.
FRANKUM, Judge.
The Department of Revenue, Motor Fuel Tax Unit, notified the Standard Oil Company by letter of its assessment of motor fuel taxes, interest and penalties claimed to be due on account of sales by the Standard Oil Company of motor fuels to E. F. Hughs of Gainesville, Georgia. The Standard Oil Company protested the assessment and appealed to the Commissioner requesting a hearing on the question of whether the tax was due. The Commissioner denied Standard's appeal, and Standard appealed that ruling to the Superior Court of Fulton County under the provisions of Code Ann. § 92-8446. After the appeal was transmitted by the Commissioner to the superior court and filed therein, Standard amended it by alleging the following facts: "4. During the tax period here involved, March, 1962, through December 31, 1962, the Appellant sold motor fuel of the type described in Ga. L. 1962, pp. 646, 647 (Georgia Code Annotated § 92-1402 (B) (2) in lots exceeding 500 gallons per month to E. F. Hughs of Gainesville, Georgia. 5. The assessment herein complained of seeks to tax the motor fuel in question under Ga. L. 1937, pp. 167, 174, as amended by Ga. L. 1955, Ex. Sess., pp. 52, 53 (Georgia Code Annotated § 92-1403 (A)). 6. The motor fuel in question was sold by Appellant, under an agreement dated August, 1959, to Hughs for resale by him as heating fuel and not for propelling motor vehicles on public highways. 7. The motor fuel in question was resold by Hughs to the ultimate consumers and the ultimate consumers did in fact use the motor fuel for heating purposes and it was not used for the propulsion of motor vehicles on the public highways. 8. The motor fuel in question was neither sold for nor used for the propulsion of motor vehicles on the public highways and thus the tax sought to be imposed is, by *593 the terms of Ga. L. 1962, pp. 646, 649, 650 (Georgia Code Annotated § 92-1403 (E)), illegal, erroneous and contrary to law and should be so declared by this honorable court. 9. During the period here involved Appellant was a distributor under the Motor-Fuel Tax Law." To the appeal as finally amended the Revenue Commissioner filed a general demurrer by which he contended that the amended appeal set forth no grounds which under the law would relieve the appellant of the motor fuel taxes assessed. The judge of the superior court entered an order overruling the general demurrer, and that judgment is excepted to.
The motor fuel involved and which is sought to be subjected to the tax in this case is that motor fuel defined by Section 1 (B) (2) of the Act approved March 6, 1962, amending Code Ann. § 92-1402 (B) (2), as being all liquid petroleum products (other than gasoline) which are susceptible of use as a fuel for the propulsion of motor vehicles, including kerosene. Under the provisions of Code Ann. Ch. 92-14 as amended by the aforesaid Act, an excise tax is imposed on all distributors of motor fuel upon the sale or use of such motor fuel by such distributors in this State at the rate of six and one-half cents per gallon. Standard claims that the sales of the motor fuel here in question were exempt from the tax sought to be levied by the Commissioner under the provisions of Code Ann. § 92-1403 (E) as amended. This paragraph reads as follows: "Notwithstanding the provisions of paragraph (A) of this section, the tax provided thereunder shall not be imposed upon the sale of those motor fuels specified in paragraph (2) of section 92-1402 (B) when such products are neither sold for use nor used for the propulsion of motor vehicles on the public highways: Provided, however, that the exemption contained in this paragraph (E) shall not be allowed unless the distributor making such sales can prove that such motor fuels were neither sold for use nor used for the propulsion of motor vehicles on the public highways: and Provided, further, however, that the exemption contained in this paragraph (E) shall not be allowed upon the sale of such motor fuel to the ultimate consumer if the distributor making such sale shall have reasonable cause to believe that all or any portion of such motor fuel might be used for the propulsion of motor vehicles on the public highways, unless such ultimate consumer *594 is a licensed distributor under this Chapter. A distributor may terminate his liability for the collection and remittance of said tax on those motor fuels specified in this paragraph (E), when sold to an ultimate consumer, or sold to a dealer purchasing 500 gallons or less of such fuel in any calendar month, by taking an affidavit, in good faith and without reasonable cause to believe that the contrary might be true, from the purchaser that such purchaser does not store, sell or use such motor fuels for the propulsion of motor vehicles on the public highways, such affidavit to be taken in such form as may be required by the State Revenue Commissioner."
In the view which we take of this provision, its meaning is plain and unambiguous. This court, therefore, has no authority to construe the exemption but must apply it as written by the legislature. Floyd County v. Salmon, 151 Ga. 313, 315 (106 S.E. 280). However, a discussion and analysis of its language may be helpful in understanding the exact intent of the General Assembly with respect to the exemptions thereby granted. Reading the portion of § 92-1403 (E) which precedes the first proviso, it is plain that the tax here in question is not imposed upon the sale of motor fuel of the kind here involved when it is neither sold for use nor used for the propulsion of motor vehicles on the public highways. This is the exemption. Standing alone its meaning is plain. It is what follows which, to the casual reader, may seem to becloud the meaning and intent of the legislature. The first proviso merely has the effect of placing the burden of proving the exempt character of the sale upon the distributor claiming the exemption. The second proviso refers only to sales made by a distributor directly to the ultimate consumer claimed to be exempt and disallows the exemption if the distributor making such sale had reasonable cause to believe that all or any portion of the motor fuel thus sold would be used for the propulsion of motor vehicles on the public highways. This latter proviso is limited in its application, however, to ultimate consumers other than licensed distributors.
Thus, under the second proviso, if the sale in question is by one distributor to another distributor for use or for resale by the latter distributor, such distributor-vendee is required to report and pay the tax due on the motor fuel upon the use, *595 consumption or resale thereof by it, because, under the provisions of paragraph (F) of § 92-1403, the taxes imposed by the Act shall be collected by and paid to the State but once in respect to the sale, use or consumption of the same motor fuel. This conclusion necessarily follows, for otherwise double taxation would be the result of any sale by one distributor to another distributor. Further, with respect to the second proviso of § 92-1403 (E), the distributor making the first sale of such motor fuel may terminate its liability for the collection and remittance of the tax when selling to an ultimate consumer or when selling to a dealer purchasing 500 gallons or less of such fuel in any calendar month by taking an affidavit, in good faith and without reasonable cause to believe that the contrary might be true, from the purchaser that such motor fuels will not be used for the propulsion of motor vehicles on the public highways. Neither of the two provisos attached to § 92-1403 (E) in any way limits or restricts the exemption granted by the section in the first instance. Both merely relate to presumptions as to taxability and to the burden of proving the exempt character of particular sales.
With respect to dealers or jobbers purchasing in excess of 500 gallons of such fuel in any calendar month, § 92-1403 (C) (2.1) provides that such dealer or jobber will be considered as a distributor of such motor fuels for the purposes of taxation and requires such dealer or jobber to make the same reports, pay the same taxes, post the same bond and secure the same licenses, and be subject to all the other provisions of the chapter as other distributors. This language has the effect of making a dealer or jobber who buys in excess of 500 gallons of motor fuel a month a distributor and renders such dealer or jobber primarily liable for the tax. Such a dealer or jobber, then, is within the limitation placed on the second proviso of paragraph (E) of § 92-1403, and sales to it are by the express language of that limitation not taxed, if for use other than in propelling motor vehicles on the public highways. Under the allegations of the appeal Hughs was a distributor within the meaning of § 92-1403 (C) (2.1). We, therefore, conclude that the sales of motor fuel by the appellant fall squarely within the exemption granted by § 92-1403 (E), in that they were made to Hughs for resale by him as heating fuel and not for propelling motor vehicles on *596 public highways, and said fuels were in fact sold by Hughs to the ultimate consumers who in fact used them for heating purposes and not for the propulsion of motor vehicles on the public highways. The Commissioner's general demurrer admits the truth of these allegations contained in the amended appeal, and if these allegations be in fact true, and proof thereof submitted by the appellant, the appellant would be entitled to a judgment declaring the sales in question exempt from the tax.
It is manifest from the terms of the Act that the legislature did not intend to impose motor fuel tax on the fuels here in question if they were neither sold for use nor used in the propulsion of motor vehicles on the public highways. The scheme of the Act affords to the distributor, the dealer, and the ultimate consumer the means of ascertaining the taxability or nontaxability of such motor fuels, the means of reporting the sales and paying the tax, or claiming the exemption, and where the exemption is drawn in question, of proving the exemption.
The conclusion which we have reached is further supported by the fact that under the provisions of Code Ann. § 92-1403 (C) (1), the tax is imposed upon the consumer and the levy on the distributor is declared to be merely as agent of the State for the collection of the tax. The clear policy of the Act is to impose the tax only with respect to motor fuels actually used in the propulsion of motor vehicles on the public highways. In the instant case, however, taking the allegations of the appeal to be true, as the general demurrer admits them to be, the fuel was not so used, and no such tax was due to be paid by the consumer. In making the assessment against the distributor, the Commissioner sought to require the distributor to pay motor fuel taxes on fuel where none was due to be paid by the ultimate consumer, and thus he sought to compel the distributor to pay taxes which could not be collected from the consumer. The mere fact that the appellant's vendee held no distributor's license as required under the provisions of § 92-1403 (C) (2.1) affords no reason for ascribing to the legislature an intent to punish a distributor selling to such an unlicensed distributor by requiring him to pay the tax where none was due.
It follows that the trial court did not err in overruling the Commissioner's general demurrer to the amended appeal.
Judgment affirmed. Bell, P. J., and Hall, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1373822/ | 111 Ga. App. 416 (1965)
142 S.E.2d 99
GRAHAM, Executrix
v.
STATE STREET BANK & TRUST COMPANY et al.; and vice versa.
41004, 41031.
Court of Appeals of Georgia.
Decided March 5, 1965.
Rehearing Denied March 25, 1965.
*417 Congdon & Holley, William P. Congdon, Fulcher, Fulcher, Hagler & Harper, E. D. Fulcher, Harris, Chance, McCracken & Harrison, Henry T. Chance, Barry Williams, for plaintiffs in error.
Cumming, Nixon, Eve, Waller & Capers, Samuel C. Waller, contra.
BELL, Presiding Judge.
1. Defendant rests this appeal mainly upon the contention that for thirteen of the cars no right to recover was shown as the plaintiffs failed to prove an actual conversion of the thirteen cars and failed to prove a demand for any of the cars and a subsequent refusal to redeliver them. This contention ignores the fact that defendant's answer to the petition denied plaintiffs' allegation of title to the property.
In trover conversion is the gist of the action. Southern Express Co. v. Sinclair, 130 Ga. 372, 373 (60 S.E. 849); Shore v. Brown, 19 Ga. App. 476, 477 (5) (91 S.E. 909); Wood v. Frank Graham Co., 91 Ga. App. 621, 622 (86 SE2d 691). Ordinarily the plaintiff must show a conversion in order to recover. Raines v. Graham, 85 Ga. App. 815 (1) (70 SE2d 125); Ben Hyman & Co., Inc. v. Solow, 103 Ga. App. 152, 153 (118 SE2d 706). However, this requirement is not without exception.
Code § 107-101 provides that "it shall not be necessary to prove any conversion of the property where the defendant is in possession when the action is brought."
*418 An exception to the exception (Code § 107-101) exists if the defendant acquired possession lawfully, and in this event it is necessary to prove either actual conversion or a demand for return of the property and defendant's failure or refusal to redeliver. See Wood v. Sanders, 87 Ga. App. 84, 86 (73 SE2d 55); Colonial Credit Co. v. Williams, 95 Ga. App. 76 (1) (97 SE2d 197); Robbins v. Welfare Finance Corp., 95 Ga. App. 90, 96 (96 SE2d 892).
There is even an exception to the exception to the exception: "In an action in trover it is not necessary to prove any conversion of the property where the defendant is in possession when the action is brought [Code § 107-101] . . . and in his answer denies the averments of the plaintiff's title as contained in the petition. Scarboro v. Goethe, 118 Ga. 543 (45 S.E. 413)." Securities Trust Co. v. Marshall, 30 Ga. App. 379, 380 (3) (118 S.E. 478); Dickerson v. Universal Credit Co., 47 Ga. App. 512, 513 (4) (170 S.E. 822); Carter v. Hornsby, 68 Ga. App. 424, 427 (23 SE2d 95); Stanley v. Ellis, 77 Ga. App. 12, 13 (47 SE2d 776); King v. Loeb, 93 Ga. App. 301, 305 (91 SE2d 532); Stephens v. Millirons Garage, Inc., 109 Ga. App. 832, 833 (137 SE2d 563).
Since the defendant had denied plaintiffs' allegations of title to the property, the status of the evidence in this case authorized the jury to find for the plaintiffs under the latter rule even in the absence of proof of conversion or of demand and refusal. Evidence establishing plaintiffs' interest in the property was uncontradicted. As the evidence also authorized the inferences that defendant was in possession of the property when the action was brought and that plaintiffs had the right of immediate possession, the trial judge did not err in overruling the motion for new trial on the general grounds.
Special grounds 4, 5, 6 and 7 of the amended motion present nothing more than elaborations on the general grounds. The ruling on the general grounds necessarily disposes of them adversely to the movant.
2. Special ground 13 assigns as error the admission in evidence of three documents over defendant's objection. These documents were copies of three bills of sale to secure debt by *419 which the deceased defendant attempted to convey nine of the plaintiffs' cars to a third party. The defendant's objection was that these bills of sale to secure debt were "irrelevant and immaterial" to any issue involved in the case under the pleadings.
Under the short or "Jack Jones" form of pleading used by plaintiffs in this case, a plaintiff merely alleges the primary issue, rather than ultimate facts required under the common law form of pleading. In determining the admissibility of evidence and other trial matters, this pleading of the primary issue is treated as if the plaintiff actually pleaded whatever ultimate facts would be appropriate to the evidentiary facts available to support the action. Instead of proving the demand and refusal alleged sometimes fictionally, he may prove an actual conversion. Wilkin v. Boykin, 56 Ga. 45, 46. Under this form of action all proof would be admissible that would be admissible at common law for trover, detinue or replevin. Macon & Western R. Co. v. Meador Bros., 67 Ga. 672, 674; Breen v. Barfield, 80 Ga. App. 615, 617 (56 SE2d 791).
The documents showing the attempted conveyances were evidence of conversion. See Hogg v. Simmons, 94 Ga. App. 83, 85 (1) (93 SE2d 779). As such evidence, two of these instruments were clearly admissible against defendant's objection.
As to the remaining document, defendant interposed the additional objection that it was inadmissible because it was not properly executed so as to entitle it to record. However, the fact which plaintiffs sought to prove by this document was established by another document, which was properly introduced in evidence and which was uncontroverted. Thus the latter of the three documents objected to was merely cumulative evidence of a fact which was already conclusively proven and thus, if error, was harmless to defendant.
3. Considering the portions of the charge objected to in special grounds 8 and 12 in connection with the charge as a whole, it is clear that the jury could not have been misled by the instructions complained of in these grounds. So far as material to the errors assigned, the matters dealt with in these portions of the charge were adequately explained to the jury elsewhere in the charge.
*420 4. Ground 9 alleges that the court erred in a portion of the charge to the jury defining conversion because there was no evidence authorizing the charge. This ground is without merit, for the evidence referred to in Division 2 of this opinion was evidence of conversion authorizing the charge complained of here.
5. Ground 10 of the motion for new trial assigns error upon a portion of the charge to the jury in which the court explained that if the defendant had conveyed the property to another by means of a security instrument that act would constitute a conversion. Defendant contends that the charge was not authorized by the pleadings.
As shown in the above discussion of the "Jack Jones" form of pleading, the charge complained of was on an issue made by the pleadings. Regardless of whether the charge was not "authorized by the pleadings" as defendant contends, it still would not have been erroneous, because it was authorized by the evidence. It is not error if the court charges the jury upon a contention made by the evidence even if the contention was not made in the pleadings. Davis v. McDuffie, 35 Ga. App. 786, 787 (4) (134 S.E. 800).
6. Ground 11 assigns error upon an excerpt from the court's charge and contends that the court should have gone on to charge the jury as to the measure of damages that plaintiff would be entitled to recover. The ground does not allege the principles that the court should have given in charge. "Error may not be assigned on a pertinent and applicable instruction because another applicable provision of law is not also given in connection therewith." Selman v. Central of Ga. R. Co., 108 Ga. App. 843, 845 (134 SE2d 816). An assignment of error complaining of the court's omission to charge some principle of law is insufficient to raise any question of error for determination where the assignment does not state in substance any definite principle which it is contended the court should have charged. Elliott v. Robinson, 198 Ga. 811, 812 (5) (33 SE2d 95).
7. Since the trial court committed no error in overruling the defendant's motion for new trial and the case must be affirmed, the plaintiffs' cross bill of exceptions is dismissed.
Judgment affirmed on the main bill of exceptions; cross bill dismissed. Jordan and Eberhardt, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266373/ | 165 Cal.App.4th 660 (2008)
NORBERT GEHR, Plaintiff and Appellant,
v.
BAKER HUGHES OIL FIELD OPERATIONS, INC., et al., Defendants and Respondents.
No. B201195.
Court of Appeals of California, Second District, Division Four.
July 30, 2008.
*662 Ezer & Williamson and Mitchell J. Ezer for Plaintiff and Appellant.
Keesal, Young & Logan, William H. Collier, Jr., Marc R. Greenberg and Frances L. Keeler for Defendants and Respondents.
OPINION
SUZUKAWA, J.
After granting defendants' summary judgment motion and denying plaintiff's summary adjudication motion, the trial court entered judgment for defendants. We affirm the judgment.
BACKGROUND
This action involves a 13-acre commercial property (the property or the site) in the City of Commerce. Allegedly, defendants, the former owners, polluted the property with chemical solvents before they sold it to plaintiff in 1985.[1] In 2006, plaintiff sued defendants for damages under a continuing nuisance theory. Specifically, plaintiffs sought to recover interest rate differential damages, contending that because of the contamination, a prospective lender had refused to refinance plaintiff's note secured by a first trust deed to the property.
*663 (1) Under California law, damages for diminution in value may only be recovered for permanent, not continuing, nuisances. (Santa Fe Partnership v. ARCO Products Co. (1996) 46 Cal.App.4th 967, 977-978 [54 Cal.Rptr.2d 214] (Santa Fe Partnership).) In this case, it is undisputed that because the limitations period for bringing a permanent nuisance claim has expired, damages for diminution in value are unavailable. Plaintiff contends, however, that he is not seeking damages for diminution in value, but for the loss of use of his property as collateral. He contends that because damages for loss of use are available under a continuing nuisance theory, the trial court erred in granting summary judgment for defendants.
I. Pleading Allegations
The following allegations are taken from the second amended complaint. In 1985, plaintiff Norbert Gehr purchased the property from a division of defendant Baker Hughes Oil Field Operations, Inc. Plaintiff encumbered the property with a note secured by a first trust deed in favor of California Federal Bank/Citibank (the first trust deed). In 2002, plaintiff applied with Union Bank of California to refinance the first trust deed at a lower interest rate. As a condition of refinancing the first trust deed, Union Bank required an environmental assessment of the property. The resulting assessment revealed that the property was contaminated with chemical solvents, including tetrachloromethane (PCE) and trichloromethane (TCE), which defendants had used on the site before they sold it to plaintiff.
After discovering the contamination, plaintiff requested that defendants either "`remediate the contamination to the degree and extent necessary to . . . satisfy Plaintiff's lender,' [or] issue an indemnity in favor of Union Bank . . . so that the refinancing could proceed." After defendants refused to comply, Union Bank declined to refinance the first trust deed.
On August 11, 2006, plaintiff sued defendants for interest rate differential damages of $681,228.14,[2] plus prejudgment interest. According to the second amended complaint, the contamination constituted "a continuing nuisance within the meaning of Section 3479 of the Civil Code, in that it is an obstruction to Plaintiff's free use of the Property, so as to interfere with the comfortable enjoyment of the Property, and said nuisance is continuing because the contamination is abatable through feasible environmental remediation."
*664 II. Summary Adjudication and Summary Judgment Motions
Plaintiff moved for summary adjudication of the issue of damages.[3] Plaintiff argued that interest rate differential damages may be recovered under a continuing nuisance theory based on the following legal principles: (1) a former owner's contamination of property can constitute a continuing nuisance (Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1134 [281 Cal.Rptr. 827]); (2) a private nuisance is a tort (KFC Western, Inc. v. Meghrig (1994) 23 Cal.App.4th 1167, 1181 [28 Cal.Rptr.2d 676]); (3) the proper measure of damages for tort claims "is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not" (Civ. Code, § 3333); and (4) special damages may be recovered in tort actions as well as in contract actions (Miller v. Hassen (1960) 182 Cal.App.2d 370, 380 [6 Cal.Rptr. 202] [interest rate differential damages may be awarded for fraud]).
Defendants opposed the summary adjudication motion on the ground that California law does not allow the recovery of interest rate differential damages for a continuing private nuisance. Defendants also argued that plaintiff had failed to state a claim for breach of contract.
Defendants moved for summary judgment on the ground that under the parties' 1985 purchase agreement, which contained no indemnity clause, they had no duty to indemnify Union Bank. Defendants pointed out that the 1985 purchase agreement (1) contained no representations or warranties regarding the condition of the soil; (2) stated that the property was being sold in its existing physical condition; (3) imposed upon plaintiff the obligation to conduct an independent investigation of the property, including the soil; and (4) contained an addendum that made the close of escrow contingent upon plaintiff's "inspection and subsequent approval of the physical condition of the Property, including, but not limited to plumbing, HVAC, roof, floors, soils, foundations, etc." (Italics added.)
Defendants asserted that under existing California law, damages for a continuing nuisance are limited to either the abatement of the nuisance or *665 general compensatory damages. Defendants noted that although there was one decision, Carson Harbor Village, Ltd. v. Unocal Corp. (C.D.Cal. 2003) 287 F.Supp.2d 1118, which discussed the availability of interest rate differential damages under a continuing nuisance theory, that case was distinguishable because it involved a contractual indemnity claim.[4]
In opposition to the summary judgment motion, plaintiff denied that he was seeking to recover "on any form of indemnification theory, contractual, implied or otherwise."
III. Summary Judgment Ruling and Judgment
Upon considering the cross-motions for summary judgment and summary adjudication, the trial court treated plaintiff's claim for interest rate differential damages as akin to diminution in value, which may only be recovered for permanent nuisances. As previously stated, it is undisputed that the statute of limitations has expired on any permanent nuisance claim.[5]
The trial court stated in its written order: "While `nuisance' is broadly defined in the Civil Code, a distinction is made as to available damages in actions for `permanent' versus `continuing' nuisances. When suing for a continuing nuisance, future or prospective damages are not allowed, such as damages for diminution in the value of the subject property; a nuisance can only be considered `continuing' if it can be abated, and therefore a plaintiff suing under this theory may only recover the costs of abating the nuisance. (Santa Fe Partnership[] v. ARCO Products Co.[, supra,] 46 Cal.App.4th 967, 977-978 [54 Cal.Rptr.2d 214]; see also Camsi IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1542 [282 Cal.Rptr. 80], disallowing leave to amend to assert a continuing nuisance, as the damages request for diminution in value was inconsistent with this theory.) Plaintiff brings this action based on a continuing nuisance theory. [Citation.] This is the only available nuisance theory upon which plaintiff could potentially recover."
The trial court further stated that plaintiff's request for "`excessive interest special damages'" was akin to a request for damages for the decline in property value, which are not available under "a continuing nuisance theory, *666 and plaintiff may not amend to assert a permanent nuisance theory because of a statute of limitations bar. Therefore, defendant[s'] motion for summary judgment is granted. [¶] Because plaintiff is unable to assert a valid claim for excessive interest special damages in this suit, his cross-motion for summary adjudication asserting the right to recover such damages must be denied."
Based on the summary judgment and summary adjudication ruling, the trial court entered judgment for defendants. This appeal followed.
DISCUSSION
I. Standard of Review
The standard of review for summary judgment is well established. The motion "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) We independently review an order granting summary judgment. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767 [107 Cal.Rptr.2d 617, 23 P.3d 1143].) In performing our independent review of the evidence, "we apply the same three-step analysis as the trial court. First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue. [Citation.]" (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1438 [111 Cal.Rptr.2d 534].)[6]
II. Permanent and Continuing Private Nuisances
(2) The available remedies and limitations periods for private nuisance claims differ according to whether the nuisance is classified as continuing or permanent. (Santa Fe Partnership, supra, 46 Cal.App.4th at p. 975.) If the nuisance has inflicted a permanent injury on the land, the plaintiff generally must bring a single lawsuit for all past, present, and future damages within three years of the creation of the nuisance. (Ibid.; Baker v. Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal.3d 862, 868-869 [218 Cal.Rptr. 293, 705 P.2d 866].) But if the nuisance is one *667 "`which may be discontinued at any time, it is considered continuing in character and persons harmed by it may bring successive actions for damages until the nuisance is abated. [Citation.] Recovery is limited, however, to actual injury suffered prior to commencement of each action. Prospective damages are unavailable.' (Baker v. Burbank-Glendale-Pasadena Airport Authority, supra, 39 Cal.3d 862, 868-869 . . . .)" (Santa Fe Partnership, supra, 46 Cal.App.4th at p. 976, italics omitted.)[7] This means that if a private nuisance is deemed to be a continuing nuisance, the plaintiff may bring successive actions for damages (except for diminution in value) incurred prior to the commencement of each successive action until the nuisance is finally abated.
(3) "`The classic example of a continuing nuisance is an ongoing . . . disturbance, . . . caused by noise, vibration or foul odor. (E.g., Vowinckel v. N. Clark & Sons (1932) 216 Cal. 156, 158 [13 P.2d 733] [vibration, noise and noxious soot, smoke and gases emanating from pottery factory].) Indeed, even more substantial physical invasions of land have been held to be continuing in character. (E.g., Tracy v. Ferrera (1956) 144 Cal.App.2d 827, 828 [301 P.2d 905] [deflection of rain water and emission of noxious odors and fumes from neighbor's pipes and furnace].) As emphasized in Tracy, the distinction to be drawn is between encroachments of a permanent nature erected upon one's lands, and a complaint made, not of the location of the offending structures, but of the continuing use of such structures. (Id., supra, 144 Cal.App.2d at p. 828.) The former are permanent, the latter is not.' (Baker v. Burbank-Glendale-Pasadena Airport Authority, supra, 39 Cal.3d at pp. 869-870, fns. omitted.)" (Mangini v. Aerojet-General Corp., supra, 230 Cal.App.3d at p. 1146.)
It is sometimes difficult to classify a nuisance as either continuing or permanent, particularly if it is uncertain whether the nuisance can actually be abated. (Spaulding v. Cameron (1952) 38 Cal.2d 265, 269 [239 P.2d 625] (Spaulding).) As the Supreme Court stated in Spaulding: "In early decisions of this court it was held that it should not be presumed that a nuisance would continue, and damages were not allowed for a decrease in market value caused by the existence of the nuisance but were limited to the actual physical injury suffered before the commencement of the action. [Citations.] The remedy for a continuing nuisance was either a suit for injunctive relief or successive actions for damages as new injuries occurred. Situations arose, however, where injunctive relief was not appropriate or where successive *668 actions were undesirable either to the plaintiff or the defendant or both. Accordingly, it was recognized that some types of nuisances should be considered permanent, and in such cases recovery of past and anticipated future damages were allowed in one action. (Eachus v. Los Angeles Consol. Elec. Ry. Co., 103 Cal. 614, 622 [37 P. 750]; Williams v. Southern Pac. Co., 150 Cal. 624, 626-628 [89 P. 599]; Rankin v. DeBare, 205 Cal. 639, 641 [271 P. 1050] . . . .)" (38 Cal.2d at p. 267.)
(4) If the trial court orders a defendant to abate a nuisance, it implies that "the nuisance was abatable and therefore of a continuing nature." (Santa Fe Partnership, supra, 46 Cal.App.4th at p. 975.) One reason a plaintiff in a continuing nuisance case may not recover diminution in value damages is that the "[p]laintiff would obtain a double recovery if she could recover for the depreciation in value and also have the cause of that depreciation removed." (Spaulding, supra, 38 Cal.2d at p. 269.) Another reason is that "if the defendant is willing and able to abate the nuisance, it is unfair to award damages on the theory that it will continue. [Citations.]" (Id. at p. 268.)
(5) "If the defendant is not privileged to continue the nuisance and is able to abate it, he cannot complain if the plaintiff elects to bring successive actions as damages accrue until abatement takes place. [Citations.] On the other hand, if it appears improbable as a practical matter that the nuisance can or will be abated, the plaintiff should not be left to the troublesome remedy of successive actions. [Citations.]" (Spaulding, supra, 38 Cal.2d at pp. 268-269.)
III. Plaintiff's Nonphysical Damages Claim
In this case, we must decide whether plaintiff's claim for interest rate differential damages is actually a claim for diminution in value, which may not be recovered under a continuing nuisance theory. (Spaulding, supra, 38 Cal.2d at pp. 269-270.) Plaintiff urges us to treat his claim as one for the loss of use of property, not for diminution in value.
However, the inability to encumber property is not a physical injury to the property. Indeed, plaintiff has not alleged any actual physical loss of use of his property. Accordingly, he is not seeking the type of damages generally associated with a continuing nuisance.
Although plaintiff argues that a physical loss of use is not required in order to prevail under a continuing nuisance theory, the cases that he cites are readily distinguishable. None involved a claim for interest rate differential damages or discussed whether to allow such damages under a continuing nuisance theory. Accordingly, they do not compel a reversal in this case. *669 (Citing, e.g., Mangini v. Aerojet-General Corp. (1996) 12 Cal.4th 1087 [51 Cal.Rptr.2d 272, 912 P.2d 1220] [judgment for defendant affirmed because, given plaintiff's failure to prove the existence of continuing nuisance, the claim was time-barred]; Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967 [132 Cal.Rptr.2d 635] [triable issues existed as to whether the plaintiff's delay in developing the property because of possible postremediation contamination was a compensable loss of use under a continuing nuisance theory]; McIvor v. Mercer-Fraser Co. (1946) 76 Cal.App.2d 247 [172 P.2d 758] [affirmed damages awarded for the plaintiff's loss of use and enjoyment of his property resulting from a mining operation conducted on the neighboring property]); Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903 [162 Cal.Rptr. 194] [reversed and remanded for further proceedings on tenant's claim that landlord had created a dangerous and unsafe condition on the premises]; Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160 [52 Cal.Rptr.2d 518] [judgment for plaintiff reversed]; Cutujian v. Benedict Hills Estates Assn. (1996) 41 Cal.App.4th 1379 [49 Cal.Rptr.2d 166] [reversed and remanded for further proceedings on plaintiff's claim for breach of an affirmative covenant running with the land and an essentially identical nuisance claim arising from the same violation of duty]; Spaulding, supra, 38 Cal.2d 265 [affirmed in part, reversed in part, and remanded for further proceedings on whether the physical damage to plaintiff's property was permanent or continuing].)
The case most helpful to our analysis, Santa Fe Partnership, supra, 46 Cal.App.4th 967, was decided by Division Seven of this district. In Santa Fe Partnership, the plaintiffs acquired the property next to the defendant ARCO's property, which was being remediated for contamination. Four years later, the plaintiffs sued ARCO for private nuisance and other torts, claiming that the remediation might take many more years and that it was "difficult, if not impossible, to sell or secure a loan against the land due to the stigma which attaches to previously contaminated property. They argue[d] this prevents a land speculator or investor from realizing his or her profit, and, because investment moneys are locked up in the contaminated property, prevents such persons from using that investment money for other projects. [They] therefore request[ed that the court] `overrule' existing law and allow `stigma' damages as a proper remedy for a continuing nuisance caused by chemical pollution of the land." (Id. at pp. 977-978.)
As in this case, the plaintiffs in Santa Fe Partnership did not seek to abate the nuisance or claim any physical loss of use of their property. The only damages they claimed were for "postcleanup stigma damages" (Santa Fe Partnership, supra, 46 Cal.App.4th at p. 972), as "a component of the diminution in value of the land caused by the contamination, whether or not complete remediation is feasible in the immediate future." (Id. at p. 978.)
*670 In rejecting the plaintiffs' claim, Division Seven relied upon F.D.I.C. v. Jackson-Shaw Partners No. 46, Ltd. (N.D.Cal. 1994) 850 F.Supp. 839, which it quoted in Santa Fe Partnership as follows: "`[T]he weight of California courts which have spoken to this issue have rejected attempts to recover such damages under continuing trespass or continuing nuisance theories. It is easy to see why. The principal assumption underlying continuing trespass and continuing nuisance theories is that the activity causing the injury can be abated. Thus, the damages are distinct from those arising from conduct constituting permanent trespass and permanent nuisance. To accept [the plaintiffs'] reasoning would permit parties seeking recovery for time-barred permanent trespass and permanent nuisance claims to avoid the statute of limitations simply by recharacterizing them as continuing trespass and continuing nuisance claims. The Court cannot permit the statute of limitations to be eviscerated in this fashion.'" (Santa Fe Partnership, supra, 46 Cal.App.4th at p. 980, quoting from F.D.I.C. v. Jackson-Shaw Partners, supra, 850 F.Supp. at p. 844.)
Although the appellate court in Santa Fe Partnership "acknowledge[d] the logic and general appeal of [the plaintiff's] argument in the context of contamination from extensive toxic or hazardous waste," it stated that it was "bound to follow and apply the decisions of our highest court, which expressly disallow prospective damages in cases of continuing nuisance. (Spaulding v. Cameron, supra, 38 Cal.2d 265; Auto Equity Sales, Inc. v. Superior Court [(1962)] 57 Cal.2d 450, 455 [20 Cal.Rptr. 321, 369 P.2d 937].) Accordingly, we reject appellants' request to create new law to permit recovery of diminution in value damages in a continuing nuisance case." (Santa Fe Partnership, supra, 46 Cal.App.4th at p. 978, fn. omitted.)
In this case, because the statute of limitations has expired on the permanent nuisance claim, plaintiff's only hope of recovery is to distinguish interest rate differential damages from diminution in value damages. The undisputed facts lead us to conclude, however, that plaintiff's claim, like the "stigma" damages claim in Santa Fe Partnership, is a component of diminution in value. Just as the plaintiffs in Santa Fe Partnership sought to recover damages for their inability to "secure a loan against the land," which prevented them from realizing the full profit of their investment (Santa Fe Partnership, supra, 46 Cal.App.4th at p. 977), plaintiff seeks to recover interest rate differential damages based on his inability to refinance the first trust deed.
(6) We can discern no meaningful difference between the damages resulting from the inability to refinance the first trust deed in this case, and the "stigma" damages resulting from the inability to sell or secure a loan against the land in Santa Fe Partnership. In both cases, the damages are "a component of the diminution in value of the land caused by the contamination, whether or not complete remediation is feasible in the immediate *671 future." (Santa Fe Partnership, supra, 46 Cal.App.4th at p. 978.) We therefore conclude that plaintiff's interest rate differential claim is indistinguishable from a diminution in value claim, which is barred, as a matter of law, by the statute of limitations.
DISPOSITION
The judgment is affirmed. Defendants are awarded their costs on appeal.
Epstein, P. J., and Willhite, J., concurred.
NOTES
[1] We granted plaintiff's request to take judicial notice of a postjudgment October 12, 2007 order by the California Regional Water Quality Control Board (RWQCB). The RWQCB found that defendants were responsible for the site's contamination and directed defendants to begin the remediation process.
[2] Plaintiff calculated the difference between $1,408,229.12, the interest paid on the Citibank loan during the 53-month period before the complaint was filed, and $727,000.98, the interest that would have been paid at the lower rate offered by Union Bank.
[3] The summary judgment statute provides in relevant part: "A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty." (Code Civ. Proc., § 437c, subd. (f)(1), italics added.)
[4] The indemnity clause in Carson Harbor stated: "the Partnership Defendants agreed to indemnify and hold Carson Harbor harmless `from and against any . . . damage, cost, expense . . . liability . . . suffered by [Carson Harbor] resulting, directly or indirectly, from . . . any liability or obligation of [the Partnership Defendants] which [Carson Harbor] is not specifically required to assume hereunder.'" (Carson Harbor Village, Ltd. v. Unocal Corp. (9th Cir. 2001) 270 F.3d 863, 888.)
[5] The trial court concluded that the three-year limitations period for a permanent nuisance (Code Civ. Proc., § 338, subd. (b)) had expired because the contamination must have occurred in 1985 or earlier. Plaintiff does not challenge this determination on appeal.
[6] Defendants object that the notice of appeal, which mentioned only the judgment, was insufficient to include the order denying plaintiff's summary adjudication motion. The judgment, however, incorporated by reference the orders granting defendants' summary judgment motion and denying plaintiff's motion. Given that an order denying a summary adjudication motion is appealable as an order after an appealable judgment (Code Civ. Proc., § 904.1, subd. (a)(2)), we conclude that defendants' contention lacks merit.
[7] Because a continuing nuisance can be abated at any time, granting damages for both diminution in value and the cost of remediation would unjustly enrich the plaintiff. (Santa Fe Partnership, supra, 46 Cal.App.4th at p. 977.) Once the nuisance is eliminated, the cause of the diminution in value will also be eliminated, thereby making an award of damages for future harm unnecessary and unjust. (Ibid.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266421/ | 461 F.Supp. 449 (1978)
In the Matter of the tax indebtedness of James F. GERWIG.
No. CV 78-1377-RMT.
United States District Court, C. D. California.
October 31, 1978.
Andrea Sheridan Ordin, U. S. Atty., Charles H. Magnuson, Asst. U. S. Atty., Chief, Tax Div., William J. James, Asst. U. S. Atty., Los Angeles, Cal., for United States.
MEMORANDUM
TAKASUGI, District Judge.
The United States Attorney has made an ex parte application to this court *450 for an order authorizing entry into taxpayer's premises by Internal Revenue Service (IRS) agents to seize property therein in satisfaction of allegedly unpaid federal taxes. Pursuant to 26 U.S.C. § 7402(a), this court has jurisdiction to issue such an order.[1]
According to the affidavit of the revenue officer, filed with the application, an assessment of tax, pursuant to I.R.C. §§ 6201, 6202 and 6303, has been made against the taxpayer. The type of tax involved is Withholding, Federal Insurance Contributions Act (WT:FICA). The affidavit states that, pursuant to I.R.C. §§ 6303 and 6321, demand for payment has been made on two occasions and that the taxpayer has refused to pay the full amount of the tax assessed within ten (10) days of the notice and demand and that this neglect and refusal continues.
By reason of the assessment, a lien has arisen on all property and rights to property of the taxpayer as prescribed by I.R.C. §§ 6321 and 6322. A levy may now be made on the property.
The ex parte procedure used herein is without notice to the taxpayer. While a prompt post-seizure remedy prior to sale is provided for in 26 U.S.C. §§ 6337 and 7426, the invasion of the right to privacy, once it has occurred, cannot be so remedied.
Nevertheless, this court, with some reluctance, will permit an ex parte, unnoticed proceeding in light of the guidelines hereinafter set forth, the collection and assessment procedures utilized by the IRS, and the policy factors involved. This court, in the case at bar, has established guidelines with which the IRS must comply and which will hopefully eliminate the unwarranted intrusions into the privacy interests of the taxpayer. Additionally, the assessment and collection procedures of the IRS in regards to the type of tax in question provide notice to the taxpayer that he or she is delinquent in his or her taxes[2] from which the taxpayer will recognize a reasonable expectation that action possibly will be taken by the IRS if payment is not forthcoming. Furthermore, an unnoticed ex parte proceeding is consistent with "[t]he policies favoring expeditious tax enforcement procedures," United States v. First National City Bank, 568 F.2d 853, 858 (2nd Cir. 1977), as well as the fact that search warrants traditionally are issued without notice without violating due process.[3]
*451 Prior to the decision of the Supreme Court in G. M. Leasing Corp. v. United States, 429 U.S. 338, 97 S.Ct. 619, 50 L.Ed.2d 530 (1977), the practice of the IRS was to have its agents, under administrative sanction, levy upon the taxpayer's property by service of notice of levy following entry and to then physically seize the property. In G. M. Leasing the Court held that, under the Fourth Amendment, a search warrant was required when the property to be seized is "situated on private premises to which access is not otherwise available for the seizing officer." 429 U.S. at 354, 97 S.Ct. at 630. It is under this mandate that the IRS applies for what it captions an "Order for Entry on Premises to Effect Levy" and which should be properly labeled an application for a search warrant.
The issues now posed before this court are: (1) what standard of probable cause must be met in order for a warrant to issue, and (2) whether that standard has been met in the case at bar.
PROBABLE CAUSE
A. Necessary Showing.
A Tenth Circuit decision, In the Matter of Carlson, 580 F.2d 1365 (10th Cir. 1978), interpreted the Supreme Court decision in G. M. Leasing as requiring an administrative warrant as opposed to a search warrant, and, therefore, based its decision on administrative inspection decisions (for example, Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) and Marshall v. Barlow's Inc., 436 U.S. 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978)). The Carlson court held that such warrants "in conjunction with administrative proceedings cannot be equated with the `probable cause' requirement of the `traditional' Fourth Amendment search in the criminal law setting. [Citations]." 580 F.2d 1381. It is evident that the court was interpreting G. M. Leasing as requiring the lesser standard of probable cause usually associated with administrative warrants.
With due respect, this court feels that the Supreme Court in G. M. Leasing spoke of search warrants, not administrative warrants.
In G. M. Leasing, the existence of probable cause was not in issue. The Court accepted certain findings as determined by the Court of Appeals, which findings stated the Court, "necessarily establish[ed] probable cause to believe that assets held by petitioner were properly subject to seizure in satisfaction of the assessments." 429 U.S. at 351, 97 S.Ct. at 628. There being probable cause for the search and seizure, the question before the court was whether warrants were required to "make `reasonable' . . . the entry into and seizure of goods in the cottage." Id.
The Court, in focusing on the reasonableness of the warrantless entry and seizure of property in the office of petitioner corporation, recognized the different standard of reasonableness used with regards to a business; that "by its special nature and voluntary existence, [a business] may open itself to intrusions that would not be permissible in a purely private context." Id. at 353, 97 S.Ct. at 629. But the Court went on to explain how this lower level of privacy is inapplicable:
In the present case, however, the intrusion into petitioner's privacy was not based on the nature of its business, its license, or any regulation of its activities. *452 Rather, the intrusion is claimed to be justified on the ground that petitioner's assets were seizable to satisfy tax assessments. This involves nothing more than the normal enforcement of the tax laws, and we find no justification for treating petitioner differently in these circumstances simply because it is a corporation.
Id. at 354, 97 S.Ct. at 629.
This court is guided by the above distinction made by the Supreme Court. Here, as in G. M. Leasing, the nature of petitioner's business may open it to intrusions relevant to its business nature. But, the lower level of expected privacy is inapplicable here, where the question is regarding an intrusion, not related to the business, but rather to enforce tax laws.
The probable cause required in a tax case was recently compared to that required in a criminal case by the Ninth Circuit:
We start by observing that just as police need probable cause to believe that evidence sought is to be found in the area to be searched and that such evidence relates to a crime, so, too, the Internal Revenue Service needs probable cause at the time assets are initially seized to connect those assets to a taxpayer with outstanding taxes due.
Flores v. United States, 551 F.2d 1169, 1174-1175 (9th Cir. 1977) (footnote omitted) (emphasis added).
The courts must be concerned as to whether the assets seized belong in some way to the taxpayer, i. e., whether he or she has an interest in it. The courts cannot be used to rubber-stamp applications for search warrants that lack sufficient specificity to enable the judge to make an independent determination of whether probable cause exists to believe that:
(1) An assessment of tax has been made against the taxpayer;
(2) Notice and demand have been properly made;
(3) The taxpayer has neglected or refused to pay said assessment within ten days after notice and demand; and
(4) Property, subject to seizure, presently exists at the premises sought to be searched and that said property either belongs to the taxpayer or is property upon which a lien exists for the payment of the taxes.
B. The IRS Application.
The application and affidavit of the revenue officer submitted in this matter lack the requisite specificity.[4] The three-page affidavit [see appendix A] in question is replete with conclusionary statements concerning the points set out above. No acceptable fact is offered as to what the nature of the notice and demand were. No support is offered to the conclusions that the "taxpayer is doing business at the premises." The revenue officer states that he obtained information that the taxpayer has certain assets at the premises: "Liquor Licenses (2), Cash Register Contents, Furnishings, Fixtures, Liquor Inventories." He further states that he "obtained this information from personal visits and observations in addition to receiving verification of the liquor licenses from the Alcoholic Beverage Control of San Bernardino, California." Missing are the answers to questions such as: When did visits occur?; What was the nature of the visits?; Who at the Alcoholic Beverage Control verified exactly what? Yet the district court is expected to independently determine that probable cause exists to believe that assets subject to seizure, properly connected to the taxpayer, are presently at the site sought to be searched.
Additionally, while the Court in G. M. Leasing spoke to the need for probable cause to search where privacy rights may be invaded, but not to seize, the district court cannot, of course, allow IRS agents total, uncontrolled discretion, once validly *453 inside the premises pursuant to a warrant, to rummage everywhere in search of seizable items. Thus, while clearly it would be too burdensome to require, in all cases, that the IRS list specifically what they plan to seize and be limited solely to that list, some restraint is necessary. Obviously there is a difference between seizing the taxpayer's liquor licenses, desks, or chairs and seizing his filing cabinet or private desk which may contain private papers (or perhaps searching the papers to see if other seizable items exist). To do the latter would require an additional showing. Thus, without an additional specific showing, the court's warrant must contain within it certain limitations protecting the taxpayer's privacy from unnecessary intrusions beyond those needed to allow the IRS agents enough discretion to seize. The area to be searched must be adequately described so that the court can determine if any privacy right exists.
The affidavit and proposed order on file are inadequate. The Government may file a new affidavit and proposed order consistent with the standard enunciated in this decision.
APPENDIX A
AMENDED AFFIDAVIT OF REVENUE OFFICER
Revenue Officer ROBERT L. PATTERSON, having been first duly sworn, states as follows:
1. I am a revenue officer employed in the Collection Division of the Office of the District Director, Internal Revenue Service, Los Angeles, California. As a revenue officer, I have the duty and authority to collect federal taxes by seizure and sale under the provisions of I.R.C. § 6331.
2. Pursuant to I.R.C. §§ 6201, 6202, and 6303, an assessment of tax (plus penalty and interest to the extent applicable) has been made against the above-captioned taxpayer as follows:
Year or Assessment
Period Date Type of Tax Amount
4th Qtr '77 03-28-78 Withholding, Federal $10,853.64
Insurance Contributions
Act (WT:FICA)
The total amount assessed for said period was $10,853.64; notice and demand for payment pursuant to I.R.C. §§ 6303 and 6321 was made on March 29, 1978 and April 10, 1978.
3. The said taxpayer has neglected or refused to pay the full amount of the tax assessed within ten (10) days after notice and demand and this neglect or refusal continues.
4. There is now due, owing and unpaid with respect to such tax, penalty and interest a total amount of $3,948.09 plus statutory additions.
5. By reason of the assessment, a lien has arisen on all property and rights to property of said taxpayer as prescribed by I.R.C. §§ 6321 and 6322.
6. By reason of the taxpayer's neglect and failure to pay such unpaid tax within ten (10) days after notice and demand, a levy may be made on all property and rights to property belonging to the taxpayer or to which the federal tax lien attaches.
7. The taxpayer is doing business at the premises located at 1050 E. Main Street and 103 E. Main, Barstow, California. The nature of the business of taxpayer is that of restaurant and cocktail bar.
The said taxpayer continues to fail to comply with the tax laws in that taxpayer untimely filed fourth quarter 1977 tax returns and has failed to make the required quarterly deposit of taxes withheld from wages for the first quarter 1978.
I have information that the taxpayer has the following types of assets at the above premises: Liquor Licenses (2), Cash Register Contents, Furnishings, Fixtures, Liquor Inventories.
I have obtained this information from personal visits and observation in addition to receiving verification of the liquor licenses from the Alcoholic Beverage Control of San Bernardino, California.
*454 I have attempted to obtain consent to seizure of the above premises under I.R.C. § 6331 from taxpayer on March 29, 1978 and again on April 10, 1978. Said taxpayer refused to consent to seizure on both occasions.
(s) Robert L. Patterson
Revenue Officer
NOTES
[1] § 7402. Jurisdiction of district courts.
(a) To issue orders, processes, and judgments. The district courts of the United States at the instance of the United States shall have such jurisdiction to make and issue in civil actions, writs and orders of injunction, and of ne exeat republica, orders appointing receivers, and such other orders and processes, and to render such judgments and decrees as may be necessary or appropriate for the enforcement of the internal revenue laws. The remedies hereby provided are in addition to and not exclusive of any and all other remedies of the United States in such courts or otherwise to enforce such laws.
The language of § 7402(a) is clear and encompassing. United States v. First National City Bank, 568 F.2d 853, 855 (2nd Cir. 1977). While not specifically addressing the jurisdiction of the district court to grant a warrant upon a proper application, the Court in G. M. Leasing Corp. v. United States, 429 U.S. 338, 97 S.Ct. 619, 50 L.Ed.2d 530 (1977), raised no hint of a jurisdictional problem. Therefore, it is concluded that jurisdiction would lie in this court pursuant to § 7402(a). In the Matter of Carlson, 580 F.2d 1365 (10th Cir. 1978).
[2] Under the general assessment and collection provisions of §§ 6201-6203 and §§ 6302-6303, an assessment is made and notice is given to the taxpayer that his or her taxes are delinquent. Thereafter, pursuant to § 6331, the taxpayer is given ten days to pay, and if no payment is made the IRS proceeds to levy on the taxpayer's property after authorization by a court of an ex parte application. It is ironic that under other IRS code sections a taxpayer whose payment is specifically found to be in jeopardy has more procedural protection than the taxpayer named herein, i. e., under the jeopardy assessment procedures, the taxpayer can obtain a stay of any collection or levy on his or her property by posting a bond. 26 U.S.C. § 6863(a).
[3] Since the United States Attorney proceeded in this matter ex parte, without notice to the taxpayer, the normal adversary system was not at work. This places on the Government an obligation to inform the court of the current state of statutory and decisional (even non-controlling) law relating to the issues presented in the matter.
Yet, when the instant application was filed, the points and authorities attached thereto did not alert the court to the fact that there was a serious difference in the federal courts as to all of the issues discussed in this Memorandum. The Tenth Circuit had not yet reversed Carlson, supra. There are no controlling decisions in the Ninth Circuit on these issues. However, this court's attention was not drawn to the Carlson case or the controversies therein. Only the court's independent research revealed the divergence of views and the unsettled issues.
In the future, this court expects, attached to any application presented in a non-adversarial context, points and authorities thoroughly apprising the court of the current status of the issues presented, with divergent points of view exposed. Of course, the Government may then strongly urge its viewpoint and analysis. While this is an added burden on the Government, it is a useful, albeit small, step towards resolving one of the inherent weaknesses in non-adversarial hearings.
[4] This court earlier informed the Government that it felt the original affidavit lacked necessary specificity. Subsequently, an amended affidavit of revenue officer was submitted, which is identical in all respects to the first affidavit except for the amount owing being substantially reduced. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266424/ | 461 F.Supp. 311 (1978)
GORDON H. BALL, INC., a Nevada Corporation, Plaintiff,
v.
UNITED STATES of America, Defendant.
Civ. No. R-78-0116 BRT.
United States District Court, D. Nevada.
December 6, 1978.
Woodburn, Wedge, Blakey, Folsom & Jeppson, Casey W. Vlautin, Reno, Nev., for plaintiff; Oles, Morrison, Rinker, Stanislaw & Ashbaugh, Stuart G. Oles, Seattle, Wash., of counsel.
Bruce E. Titus, Atty., Civil Div., Dept. of Justice, Washington, D. C., B. Mahlon Brown, Jr., U. S. Atty., Shirley Smith, Reno, Nev., for defendant.
MEMORANDUM OPINION
BRUCE R. THOMPSON, Senior District Judge.
Plaintiff has instituted this action under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80. Venue lies in this Court by virtue of plaintiff's incorporation in the State of Nevada. 28 U.S.C. §§ 1346(b) & 1402(b). Plaintiff alleges that it has pursued its administrative remedies, as required by 28 U.S.C. § 2675, as amended in 1966, P.L. 89-506, 80 Stat. 306, by filing an unsuccessful claim with the Department of *312 Interior under the Teton Dam Disaster Assistance Act, P.L. 94-400, 90 Stat. 1211 (1976). The government has filed a motion to dismiss contending that plaintiff should have filed a separate claim under the Federal Tort Claims Act. Because more than two years has passed since the occurrence giving rise to the alleged liability, the government urges that the dismissal be with prejudice, as the defect, if any, is incurable. 28 U.S.C. § 2401 (imposing a two-year limitations period within which to present claim to agency involved); e. g., Blain v. United States, 552 F.2d 289 (9th Cir. 1977) (dismissal with prejudice when did not present proper administrative claim within two years).
This is the question posed:
Does the filing of an unsuccessful claim with the Department of Interior under the Teton Dam Disaster Assistance Act suffice as the exhaustion of administrative remedies made jurisdictionally prerequisite to suit under the Federal Tort Claims Act, 28 U.S.C. § 2675?
The facts are undisputed. In 1976, the plaintiff, Gordon H. Ball, Inc., was under contract with the United States to construct a new American Falls Dam on the Snake River in Idaho. Work was to commence in the first week of June. On June 5, 1976, the Teton Dam failed. The waters in the Snake River rose to flood level and did not subside until June 22, 1976. No work could be performed on the American Falls project during that period, and plaintiff incurred standby labor and equipment costs of $37,899.52. In its complaint, plaintiff attributes these costs to the failure of the Teton Dam, and the failure of the Teton Dam to negligent design and construction by the Bureau of Reclamation, United States Department of Interior.
On February 14, 1978, plaintiff filed a claim under the Teton Dam Disaster Assistance Act with the officer specially designated by the Department of Interior as the Teton Claims Officer, 43 C.F.R. § 419.0-5(g) (1977). Relief under the Teton Dam Disaster Assistance Act has been geographically limited to claims arising in the area declared by the regulations as a "major disaster area," 43 C.F.R. §§ 419.0-5(o) & 419.1-1(a)(3). Plaintiff's area of operations fell outside the major disaster area and its claim was denied by the Teton Claims Officer.
Had plaintiff wished to pursue an objection to the ruling that its claim was not covered by the Teton Dam Disaster Assistance Act, it could have appealed that ruling to the United States District Court, for the District of Idaho. Section 9(b), P.L. 94-400. Instead, plaintiff filed this action under the Federal Tort Claims Act. The complaint does not allege the filing and denial of an administrative claim under the Tort Claims Act. The affidavit of Morgan W. Pace, Regional Officer in Charge of tort claims against the Bureau of Reclamation, U.S. Department of Interior, states that his office never received an administrative torts claim from the plaintiff. It should be noted that the limitations period imposed by 28 U.S.C. § 2401 did not run until June 5 or possibly 22, 1978. Inasmuch as plaintiff's Teton Dam claim was finally denied on May 1, 1978, it still could have filed a torts claim with the Department of Interior at that time.
This case presents an issue of first impression. Other cases which have addressed the administrative filing requirements of the Federal Tort Claims Act have regarded them as jurisdictional prerequisites, deserving of strict construction and not susceptible to waiver. Irregularities in filing have, in certain instances, been forgiven when the route taken by the claimant afforded the government opportunities for administrative settlement equal to those it would have had if a proper claim had been filed.
Liability under the Teton Dam Disaster Assistance Act is without regard to fault or proximate cause. See Preamble to P.L. 94-400; 43 C.F.R. § 419.0-2(c); H.R.Rep. No. 94-1423, 94 Cong., 2d Sess.; Sen.Rep. No. 94-963 (94th Cong., 2d Sess. Plaintiff's claim under the Teton Dam Disaster Assistance Act thus did not include any allegation regarding negligence or fault. Plaintiff has not directed our attention to any principle *313 of Idaho tort law which imposes liability without fault under the circumstances. Moreover, the Teton Dam Disaster Assistance Act stresses the independence of relief thereunder from that affordable under any other provision of law. See P.L. No. 94-400, § 9(b); 43 C.F.R. § 419.9-2(c); cf. also P.L. No. 90-400, §§ 3(c) & (f).
Section 2675(a), Title 28, of the Federal Tort Claims Act requires any person having a tort claim against the United States to present the claim to the "appropriate Federal agency" and await a final denial before initiating court proceedings. The failure of an agency to act on a claim within six months of its submission is deemed a "final denial." The administrative claim must be submitted within two years "after such claim accrues," and court proceedings instituted within six months of final agency action, or be "forever barred," 28 U.S.C. § 2401(b). The regulations elaborate on these provisions, detailing the information needed properly to submit a claim:
"For purposes of the provisions of section 2672 of Title 28, United States Code, a claim shall be deemed to have been presented when a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, personal injury, or death alleged to have occurred by reason of the incident. If a claim is presented to the wrong Federal agency, that agency shall transfer it forthwith to the appropriate agency."
28 C.F.R. § 14.2(a) (1977).
Numerous cases have held that compliance with section 2675(a) is a "jurisdictional prerequisite" which cannot be waived. See House v. Mine Safety Appliances Co., 573 F.2d 609, 614 (9th Cir. 1978), cert. den. ___ U.S. ___, 99 S.Ct. 182, 58 L.Ed.2d 171 (1978); Blain v. United States, 552 F.2d 289 (9th Cir. 1977); Best Bearings Co. v. United States, 463 F.2d 1177 (7th Cir. 1972); cases collected in Annot., 13 A.L.R. Fed. 762, 768 (1972). This rules flows from the ancient precept that, as sovereign, the government "is immune from suit save as it consents to be sued," United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941), and from the corollary proposition that, as a waiver of sovereign immunity, the Federal Tort Claims Act must not be judicially expanded to invite liability on terms and conditions more lenient than those Congress saw fit to impose. See Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957); Collazo v. United States, 372 F.Supp. 61, 62 (D.Puerto Rico, 1973). The courts should not lose sight, however, of the broadly remedial purposes the Act was intended to serve, and at least one court has taken the position, "[t]hat the Act ends the immunity defense does not furnish a ground for niggardly interpretation ..." Kelley v. United States, 568 F.2d 259, 262 (2d Cir. 1978), cert. denied, ___ U.S. ___, 99 S.Ct. 106, 58 L.Ed.2d 124 (1978); see also Kielwien v. United States, 540 F.2d 676, 681 (4th Cir. 1976), cert. denied 429 U.S. 979, 97 S.Ct. 491, 50 L.E.2d 588 (1976) (dictum).
No case has directly addressed the issue before this Court. Indeed, the government has cited only one case in which a party sought to proceed under the Federal Tort Claims Act on the basis of having filed an administrative claim for benefits pursuant to another federal statute, Waggoner v. United States, Civ. No. 74-5-C (N.D.W.Va., filed October 18, 1974) (unpublished). In that case, plaintiff had submitted a claim to the Veterans Administration for survivor's benefits under 38 U.S.C. § 351. Thereafter, she commenced suit under the Federal Tort Claims Act, alleging malpractice on the part of the Veteran's Hospital in its misdiagnosis of her late husband's condition. Stressing the independence of plaintiff's remedies under the Federal Tort Claims Act from her right to benefits under 38 U.S.C. § 351, the Court granted the government's motion to dismiss. The plaintiff correctly argues in its memorandum of points and authorities the case is not dispositive and is clearly distinguishable.
*314 The reported decisions which have addressed the question of when an irregular filing constitutes compliance with section 2675(a) are not entirely consistent with one another. One consideration which helps explain some, but not all the results reached, is the extent to which the irregularity involved implicates the declared purpose of section 2675(a), that of easing court congestion by ensuring full agency review of claims with an eye towards their early administrative settlement. See 1966 U.S.Code Cong. & Admin.News, pp. 2515-17. Thus, in Van Fossen v. United States, 430 F.Supp. 1017 (N.D.Cal.1977), the court held that survivors need not await the appointment of a "personal representative," as required in wrongful death cases by Virginia law before initiating their FTCA claim against the agency involved, stating:
"[T]he fact that plaintiffs' names and not that of a personal representative appeared on the face of the complaint in no way hindered the government's desire to settle the claim or its efforts to prepare a defense on the merits. In fact, were the government to pursue either course of action, one of the first steps that it would have to undertake would be to ascertain which survivors are entitled to claim under the Virginia statute. Furthermore, even if plaintiffs had procured a Virginia personal representative, under the Regulations, that representative would have had to present the claim in the name of the claimant. Thus the government can in no way contend that it was surprised or deceived in its pretrial deliberations. In short, the expediting function which Congress envisioned as the role of the administrative procedure was not impeded here."
Id. at 1023-24 (footnotes omitted). Similarly, the Court of Appeals for the Second Circuit has held that a party who, unaware that his tortfeasor was a federal employee, commences suit in the state court need not be remanded to the agency involved in search of an administrative settlement following removal to federal court. Kelley v. United States, supra. In so holding the court stressed the fact that the "Federal Drivers Act" of 1961 expressly authorizes the Attorney General to settle such actions, 28 U.S.C. § 2679(e), and that "notice" to the government and concomitant settlement opportunities were the same as if an administrative claim had been filed. Contra, Driggers v. United States, 309 F.Supp. 1377 (D.S.C.1970); also Smith v. United States, 328 F.Supp. 1224 (W.D.Tenn.1971).
The cases that elevate the requirement that the claim demand a "sum certain" (28 C.F.R. § 14.2(a), supra) to the status of a jurisdictional prerequisite find similar justification in the policies underlying the enactment of section 2675: without knowing the amount at stake the government is seriously hampered in its settlement negotiations. See Van Fossen v. United States, 430 F.Supp. at 1024 n. 9. A mother thus cannot sue for medical expenses incurred as a result of her daughter's injuries based on her daughter's administrative claim. The agency in that instance would not have had the opportunity to review the damages claimed, as those attributable to medical expenses were not properly includable in the daughter's claim. Green v. United States, 385 F.Supp. 641 (S.D.Cal.1974); accord. Collazo v. United States, 372 F.Supp. 61 (D.Puerto Rico 1973). In House v. Mine Safety Appliances Co., supra, the court held that, as a jurisdictional matter, claimants who failed to specify the amount of their claim were barred, even though their claims were in the same group with a number of others based on the same incident, each of which contained a prayer for $1,000,000.
The cases interpreting the requirement that an administrative claim filed in a representative capacity document the authority to so act illustrate the foregoing principles. Thus, in Caidin v. United States, 564 F.2d 284 (9th Cir. 1977), the court held that a self-declared class representative had not properly presented his administrative claim because he had failed to establish his authority to act on behalf of the class; his failure to have done so rendered the amount actually involved uncertain, as the agency was unsure which, if any, of the claims he was attempting to assert should *315 be settled. Accord. Blain v. United States, supra. These cases should be compared with Executive Jet Aviation, Inc. v. United States, 507 F.2d 508 (6th Cir. 1974). The court held that an insurer was not barred by its failure to have filed a claim when its insured had done so within the statutory period:
"Within one year after the crash, the Federal Aviation Administration received a formal written notice fully detailing the nature and amount of the claim that Executive Jet was asserting against the United States. It does not appear that the Government would have been more inclined or better able to negotiate a settlement of the claims if the insurers had been listed as claimants."
Id. at 515.
Relief under the Teton Dam Disaster Assistance Act is expressly made available without regard to "proximate cause" and without reference to government "fault." Preamble to P.L. 94-400; 43 C.F.R. § 419.1-0(b). Relief under the Federal Tort Claims Act, by contrast, depends upon proof of actionable conduct. See 28 U.S.C. §§ 2674 & 2675; 28 C.F.R. § 14.4 (requiring submission of evidence bearing upon the government's responsibility for damages claimed). Plaintiff urges that the failure to have alleged the grounds upon which liability may have been predicated is immaterial, citing a government report in which the Department of Interior apparently concluded that negligent design and construction caused the Teton Dam to fail. Thus, it is argued that the settlement opportunities and incentives were identical whether a claim was filed under the Teton Dam Disaster Assistance Act or the Federal Tort Claims Act.
It is true that in determining the amount to be awarded a claimant, both the Teton Dam Disaster Assistance Act and the Federal Tort Claims Act authorize agency investigation of the sum claimed. However, the amount claimed as damages by the plaintiff was never reviewed by the Teton Claims Officer, as the claim was denied for the reason that plaintiff's area of operations fell outside the "major disaster area," as defined by the regulations. Critical review of that claim thus was never given. Furthermore, assuming that the government has admitted fault in conjunction with the failure of the Teton Dam, the inquiry into liability under the Federal Tort Claims Act would not have ended there. Issues of proximate cause and foreseeable consequences surely would have been explored in settlement negotiations. More important, the government would have considered the possibility that its alleged negligence came within the "discretionary function" limitation on the waiver of immunity otherwise effected by the Act. Indeed, both the House and Senate Reports appear to have believed this to be the case: in support of the appropriations request, the failure of the Teton Dam was expressly analogized to the Texas City, Texas disaster of 1955, where disaster relief legislation was passed in response to a Supreme Court ruling that the government's activities were within the "discretionary function" exemption from tort liability. H.R.Rep. No. 94-1423, 94th Cong., 2d Sess. (1976); S.Rep. No. 94-963, 94th Cong., 2d Sess. (1976). Thus, it cannot be said that plaintiff's filing under the Teton Dam Disaster Assistance Act afforded the government the same opportunities to review and settle the claim as it would have had if plaintiff had filed under the Federal Tort Claims Act.
Plaintiff urges next that section 9(a) of the Teton Dam Disaster Assistance Act contemplates a claimant's initiating a court action under the Federal Tort Claims Act once his claim has been denied by the Teton Claims Officer. That section provides as follows:
"An action shall not be instituted in any court of the United States upon a claim against the United States which is included in a claim submitted under this Act until the Secretary or his designee has made a final disposition of the pending claim. A pending claim may be withdrawn from consideration prior to final decision upon fifteen days written notice, and such withdrawal shall be deemed an *316 abandonment of the claim for all purposes under this Act. After withdrawal of a claim or after the final decision of the Secretary or his designee on a claim under this Act, a claimant may elect to assert said claim or institute an action thereon against the United States in any court of competent jurisdiction under any other provision of applicable law, and upon such election there shall be no further consideration or proceedings on the claim under this Act."
The legislative history of that section suggests that, rather than dispensing with the filing requirements of the Federal Tort Claims Act, it was intended to establish the independence of claims under the Teton Dam Disaster Assistance Act from those that may exist under any other provision of applicable law. Thus, as originally drafted, section 9(a) read as follows:
"No action shall be instituted in any court of the United States upon a claim against the United States submitted to the Secretary, or his designee under this Act, unless and until the Secretary, or his designee shall have made a final disposition of such claif. Provided, that the claimant may, upon fifteen (15) days written notice, withdraw such claim from consideration by the Secretary, or his designee."
Sen.Rep. No. 94-963, 94th Cong.2d Sess. The explanation accompanying its amendment by the House Committee on the judiciary indicates that it was intended to make clear that:
"When a claim has been withdrawn and thereafter abandoned as provided in the amended section, the claimant may elect to assert a claim based upon the same subject matter by taking administrative or legal action against the United States under any other provision of applicable law."
H.R.Rep. No. 94-1423, 94th Cong., 2d Sess. (emphasis added). Moreover, the regulations dispel any ambiguity on this score, expressly providing:
"No provision of these regulations shall be construed as providing or creating a right of action against the United States, its agents or employees, nor shall these regulations be construed as waiving or extending any applicable statute of limitations or any other requirement prerequisite to any such right of action."
43 C.F.R. § 419.0-2(c) (emphasis added). Plaintiff's argument that section 9(a) of the Teton Dam Disaster Assistance Act "waives" the administrative filing requirements of the Federal Tort Claims Act thus is untenable.
Finally plaintiff urges an estoppel against the government. As the foregoing case discussion indicates, the cases unanimously reject the proposition that an estoppel or waiver may be attributed to the sovereign. See also Mann v. United States, 399 F.2d 672 (9th Cir. 1968). Recognizing that it has no literal application to the case at bar, plaintiff nonetheless argues that 28 C.F.R. § 14.2(a) imposed an obligation on the Teton Claims Officer to forward plaintiff's claim to the individual charged with the responsibility of reviewing tort claims against the Bureau of Reclamation. That section provides in pertinent part:
"If a claim is presented to the wrong federal agency, that agency shall transfer it forthwith to the appropriate agency."
Plaintiff did not simply file its claim with the wrong agency, but failed to file any tort claim at all. As the court in Green v. United States, supra, stated in rejecting the argument that the agency should have alerted the mother that a separate claim, in addition to that filed by the daughter, would be required to recover medical expenses for which the mother took responsibility:
"[I]nherent in plaintiffs' argument is a suggestion that if the United States has received some sort of constructive or actual notice of a potential claim it has an affirmative duty to go out and solicit an administrative claim to ensure that the jurisdictional prerequisite to suit by the claimant is properly laid. Such a proposition is not only [foreign] to the concept of adversary, administrative jurisprudence, but is also unsupported as a matter of law." *317 385 F.Supp. at 644. See also Provancial v. United States, 454 F.2d 72 (8th Cir. 1972) (Department of Justice not obligated to forward claim to Veteran's Administration which, on its face, appeared to be directed only to the Department of Interior); Hejl v. United States, 449 F.2d 124 (5th Cir. 1971); Muldez v. United States, 326 F.Supp. 692 (E.D.Va.1971).
In consideration of the premises,
IT HEREBY IS ORDERED that the action entitled above be dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267221/ | 999 F. Supp. 1404 (1998)
UNITED STATES of America, Plaintiff,
v.
Gaspar LOPEZ-BUSTAMANTE, et al., Defendants.
and ConcerningJose Rodolfo Najera-Aguilar, Material Witness.
No. 96-CR-93-S.
United States District Court, D. Colorado.
March 13, 1998.
*1405 David Gaouette, Asst. U.S. Atty., Denver, CO, for U.S.
Lauren Cleaver, Boulder, CO, for Defendants.
MEMORANDUM OPINION AND ORDER
BORCHERS, United States Magistrate Judge.
THIS MATTER comes before the Court on the request of Jose Rodolfo Najera-Aguilar (Najera) for payment of witness fees pursuant to 28 U.S.C. § 1821. Various hearings have been held concerning Najera, including the most recent on March 11, 1998. Plaintiff has been represented by David Gaouette, Assistant United States Attorney, and Najera has been represented by Lauren Cleaver.
I.
Najera was indicated by the Grand Jury with various narcotics violations. He requested and received appointed counsel to represent him. In due course, Najera entered a plea of guilty pursuant to a plea agreement with the prosecution. This plea agreement included Najera's cooperation in the prosecution of other co-defendants. Najera was sentenced to a term of confinement of eighteen months.
Najera was committed to the custody of the Attorney General of the United States. With credit for pretrial confinement and good time, Najera was released from custody after service of slightly over fifteen months. Najera was to be transferred into the custody of the Immigration and Naturalization Service (INS), as he is a citizen of Guatemala and is not in the United States legally.
The prosecution made a request in July, 1997 that Najera be detained as a material witness pursuant to 18 U.S.C. § 3144. The prosecution alleged that Najera had information that was crucial to its case against codefendants. The prosecution further alleged that Najera was a flight risk, since he had completed his term of imprisonment and would leave the United States, if given the opportunity.
Najera appeared before the Court on July 18, 1997 pursuant to a warrant for his arrest. The Court determined on July 24, 1997 that Najera was a crucial witness for the prosecution. Najera was ordered detained, as the Court found that Najera would be deported if released and/or would flee to limit further involvement in the judicial process. The Court further determined that Najera could or would not return voluntarily from Guatemala if deported.
The Court authorized on August 27, 1997 that a videotape deposition of Najera would be taken. It does not appear the deposition was ever held. Then on November 4, 1997 the prosecution advised the Court that one co-defendant had entered a plea of guilty and that Najera did not need to be detained as a material witness.
Before Najera was deported, the prosecution filed on November 21, 1997 a second request that Najera be held, as another codefendant had been arrested in El Paso, Texas and that Najera was a crucial witnesses in the prosecution of that individual. The Court appointed counsel for Najera, held a hearing, and ordered him detained as a material witness.
In December, 1997, Najera through his counsel made a request for witness fees pursuant to 28 U.S.C. § 1821. The prosecution initially agreed in December, 1997 that Najera should be paid the daily witness fee of $40.00, as authorized by 28 U.S.C. § 1821(b). Another Magistrate Judge of this Court ordered the fees to be paid.
On March 5, 1998, the prosecution advised the Court that the last remaining co-defendant *1406 had entered into a plea agreement. That agreement was executed through use of Fed.R.Crim.P.20 in the United States District Court for the Western District of Texas. Therefore, there was no need for Najera to remain in the United States. The prosecution, though, argued that Najera was an illegal alien and had been ordered deported. Therefore, it was argued that Najera was not entitled to witness fees.
The Court continued the matter until the hearing on March 11, 1998 in order to allow counsel to argue the issue. The Court then entered an oral ruling, indicating that this written opinion would follow.
II.
There is no dispute that Najera had finished his term of imprisonment in 1997. He was not deported to Guatemala solely because he was incarcerated at the request of the prosecution as a material witness. There is no question that as of March 5, 1998 Najera was no longer needed by the prosecution, as the last codefendant had entered his plea of guilty pursuant to a plea agreement.
Najera has requested that he receive the daily witness fees since he was incarcerated solely as a material witness and was unable to depart from the United States. The prosecution has opposed the request, arguing that payment of a fee is prohibited by law and would constitute an unjust enrichment.
The Court notes that Congress has provided for witness fees and mileage for witnesses. 28 U.S.C. § 1821(b). The statute reads as follows:
(b) A witness shall be paid an attendance fee of $40 per day for each day's attendance. A witness shall also be paid the attendance fee for the time necessarily occupied in going to and returning from the place of attendance at the beginning and end of such attendance or at any time during such attendance.
Congress further provided for material witnesses as follows:
When a witness is detained pursuant to section 3144 of title 18 for want of security for his appearance, he shall be entitled for each day of detention when not in attendance at court, in addition to subsistence, to the daily attendance fee provided by subsection (b) of this section.
28 U.S.C. § 1821(d)(4).
The prosecution argued that Najera was not entitled to $40 per day while detained as a material witness. The prosecution pointed to 28 U.S.C. § 1821(e) and 28 C.F.R. § 21.3. The former reads as follows:
(e) An alien who has been paroled into the United States for prosecution, pursuant to section 212(d)(5) of the Immigration and Nationality Act (8 U.S.C. 1182(d)(5)), or an alien who either has admitted belonging to a class of aliens who are deportable or has been determined pursuant to section 242(b) of such Act (8 U.S.C. 1252(b)) to be deportable, shall be ineligible to receive the fees and allowances provided by this section.
The latter regulation reads, in part, as follows:
(b) Aliens entitled to payment of $1 per day. An alien who is "excludable" in accordance with 8 U.S.C. 1226, but whose removal is stayed by the Attorney General (in accordance with 8 U.S.C. 1227(d)) because:
(1) The testimony of the alien is necessary on behalf of the United States in the prosecution of offenders against the United States, or
(2) The testimony of the alien is necessary on behalf of an indigent criminal defendant in accordance with Rule 17(b) of the Federal Rules of Criminal Procedures, is entitled to a $1 per day witness fee. No other fees and allowances are authorized.
(c) Aliens not entitled to payment. An alien who has been paroled into the United States for prosecution pursuant to 8 U.S.C. 1182(d)(5) ...., or an alien who has admitted belonging to a class of aliens who are deportable, or an alien who has been determined pursuant to 8 U.S.C. 1252(b) to be deportable ...., is prohibited from receiving fees and allowances in accordance with 28 U.S.C. 1821(e).
(d) Doubtful cases. If the Immigration and Naturalization Service advises that the alien has admitted deportability, or that he or she was paroled into the United States *1407 for prosecution, or that deportation proceedings have been completed against the alien with a result favorable to the Government, no payment under 28 U.S.C. 1821 may be made.
The prosecution argued that these provisions prohibit payment to Najera because it is not disputed that he is in a deportable status.
The United States Supreme Court examined 28 U.S.C. § 1821 in Hurtado v. United States, 410 U.S. 578, 93 S. Ct. 1157, 35 L. Ed. 2d 508 (1973). In that case, plaintiffs were citizens of Mexico who had been detained as material witnesses for criminal cases pending in the United States. All plaintiffs had entered the United States illegally. All were unable to post bond in order to be released from custody.
In Hurtado, plaintiffs argued that they were entitled to the full witness fee for each day they remained in custody. The government argued that plaintiffs were not entitled to any payment except for the days when a plaintiff was actually in attendance at court. The Supreme Court disagreed with these interpretations. The Court, in part, held:
We conclude that a material witness who has been incarcerated is entitled to the $20 compensation for every day in confinement during the trial or other proceeding for which he had been detained.... Because the Court of Appeals upheld a construction of the statute that would allow the $20 to be paid to incarcerated witnesses only for those days they actually appear in the courtroom, its judgments must be set aside.
Id. at pp. 586-87. The Court went on to hold that $1 per day, as authorized by the language of § 1821 as it was then written, would be payable for each day prior to judicial proceedings commencing. The Court refused to find the $1 per day level unconstitutional, holding that "the Constitution provides no license to impose the levels of compensation we might think fair and just." Id. at p. 591.
Section 1821 was re-examined by the Supreme Court in Demarest v. Manspeaker, 498 U.S. 184, 111 S. Ct. 599, 112 L. Ed. 2d 608 (1991). Plaintiff in that case had been subpoenaed to testify for the defense at a criminal prosecution in this Court. Plaintiff was serving a sentence in the Colorado Department of Corrections, and he made a request for payment of witness fees after conclusion of his testimony. An order was entered denying the fees, based upon the belief that a person who is incarcerated is not entitled to witness fees if subpoenaed to testify in a criminal matter. The Supreme Court disagreed, finding that the statute was clear. Id. at p. 189. The Court held that plaintiff was entitled to be paid the daily rate for attendance pursuant to the subpoena served upon him.
As a result of the Demarest decision, Congress added an additional section to § 1821.
(f) Any witness who is incarcerated at the time that his or her testimony is given (except for a witness to whom the provisions of section 3144 of title 18 apply) may not receive fees or allowances under this section, regardless of whether such witness is incarcerated at the time he or she makes a claim for fees or allowances under this section.
This section prohibited payment of fees for a witness in custody, but excluded this provision from applying to detained material witnesses.
The statute provides that a material witness is entitled to the daily attendance fee if detained. Congress provided in its amendment to § 1821 that an incarcerated witness was not entitled to witness fees, unless the person was a material witness pursuant to 18 U.S.C. § 3144. As in Demarest, the clear language of the statute indicates that a detained material witness is to be provided subsistence and the daily witness fee.
The Court finds that § 1821(e) applies to aliens who are not detained as material witnesses. An alien subpoenaed from an INS detention facility who is deportable is not entitled to the witness fee. The regulation relied upon by the prosecution is not inconsistent with this. The Attorney General has provided that an alien "whose removal is stayed" in order to be a witness is entitled to $1 per day. This means a witness who was in INS custody and whose departure from the United States was stopped for a period of time to allow testimony. The provisions of *1408 28 C.F.R. § 21.3 do not affect the provisions of § 1821(d)(4) and (f).
The prosecution chose to seek an order detaining Najera as a material witness. That decision was not improper under the circumstances faced at the time. Once the order was entered detaining Najera as a flight risk, he was entitled to payment pursuant to § 1821(d)(4). Congress made the decision to compensate those detained as material witness at the rate of $40 per day. As in Hurtado, it is not this Court's prerogative to question that policy decision.
Najera would have been deported to Guatemala, as he had finished his term of imprisonment. Once he was placed back into custody as a material witness, he was entitled to the daily witness fee. Hurtado is still controlling, and has been strengthened by Demarest. Najera is entitled to the amount set forth in the previous order of March 5, 1998.
IT IS HEREBY ORDERED that the United States shall compensate Jose Rodolfo Najera-Aguilar in accordance with 28 U.S.C. § 1821(d)(4) and shall pay the amount set forth in the order of March 5, 1998. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1113639/ | 624 So. 2d 373 (1993)
Albert McKINNEY, Appellant,
v.
STATE of Florida, Appellee.
No. 92-3315.
District Court of Appeal of Florida, First District.
September 22, 1993.
*374 Nancy A. Daniels, Public Defender, and Nada M. Carey, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Joseph S. Garwood, Asst. Atty. Gen., Tallahassee, for appellee.
ON MOTION FOR REHEARING
JOANOS, Judge.
Appellant seeks rehearing of the opinion issued June 28, 1993, in which we remanded this cause to the trial court for entry of an order specifying the conditions of community control the court deemed appellant violated. We grant the motion for rehearing in part, withdraw the prior opinion issued in this cause, and substitute the following therefor.
This appeal is from the revocation of appellant's community control and the resulting sentence. Appellant contends the trial court erred in failing to articulate the specific grounds for the revocation. We affirm the revocation, but remand for entry of a written order specifying the conditions of community control which the trial court found appellant violated.
The affidavit of violation of community control filed in this cause alleged that appellant violated his community control by leaving his residence without approval of his community control officer on eight separate occasions, by leaving the county of his residence without consent of his community control officer on four separate occasions, and by changing his residence without consent of his community control officer. At the hearing on the alleged violations, appellant's community control officer testified regarding each of the violations charged in the affidavit. Appellant testified on his own behalf, contesting most of the violations alleged by his community control officer, and offering explanations for violation of those conditions which he admitted. The trial court found that by appellant's own testimony, he violated the conditions of his community control. However, the court made no oral pronouncement, and entered no order specifying the conditions of community control relied upon for the revocation.
It was the trial court's prerogative to accept the community control officer's testimony over that of appellant. Moreover, appellant does not challenge the sufficiency of the evidence to support the revocation. In view of appellant's admissions that he violated some of the conditions of his community control, revocation of community control was warranted, and we decline to disturb the trial court's determination in this regard. However, remand is required for entry of an order specifying the community control conditions which appellant was determined to have violated. See Hogwood v. State, 615 So. 2d 780 (Fla. 1st DCA 1993); Boggs v. State, 557 So. 2d 203 (Fla. 5th DCA 1990).
Accordingly, this cause is remanded for entry of an order specifying the conditions of community control violated. The trial court's disposition is affirmed in all other respects.
SMITH and KAHN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1726456/ | 465 So. 2d 1388 (1985)
W.G. MILLS, INC., a Florida Corporation, and United States Fidelity & Guaranty Company, Appellants,
v.
M & MA CORPORATION, a Florida Corporation, D/B/a McCain Building Supply, and Florida Ceiling & Partitions, Inc., a Florida Corporation, Appellees.
No. 84-1299.
District Court of Appeal of Florida, Second District.
March 20, 1985.
*1389 Daryl J. Brown and David E. Gurley of Abel, Band, Brown, Russell & Collier, Sarasota, for appellants.
Charles M. Phillips, Jr. of Jacobs, Robbins, Gaynor, Burton, Hampp, Burns, Bronstein & Shasteen, Clearwater, and Robert M. Barker, Largo, for appellee M & MA Corp.
BOARDMAN, EDWARD F. (Ret.),
W.G. Mills, Inc. (Mills), a general contractor, and United States Fidelity Guaranty Company (USFG), its surety, appeal the final judgment obligating them to compensate M & MA Corporation d/b/a McCain Building Supply (McCain) for materials supplied to a public works construction project. The question presented is whether McCain is entitled to recovery against the contractor and surety under section 255.05, Florida Statutes (1983), the Little Miller Act.
Section 255.05(1) provides subcontractors and suppliers not in privity with the general contractor with a cause of action against the contractor and its bond for materials and labor provided on construction projects involving publicly held property.[1] Recovery under the statute is conditioned upon compliance with the following notice provisions of section 255.05(2):
*1390 (2) A claimant, except a laborer, who is not in privity with the contractor and who has not received payment for his labor, materials, or supplies shall, within 45 days after beginning to furnish labor, materials, or supplies for the prosecution of the work, furnish the contractor with a notice that he intends to look to the bond for protection. A claimant who is not in privity with the contractor and who has not received payment for his labor, materials, or supplies shall, within 90 days after performance of the labor or after complete delivery of the materials or supplies, deliver to the contractor and to the surety written notice of the performance of the labor or delivery of the materials or supplies and of the nonpayment. No action for the labor, materials, or supplies may be instituted against the contractor or the surety unless both notices have been given. No action shall be instituted against the contractor or the surety on the bond after 1 year from the performance of the labor or completion of delivery of the materials or supplies.
On August 26, 1980, Pinellas County entered into a contract with Mills for the construction of the Pinellas County Criminal Court's building. Mills delivered to the county a performance and payment bond in compliance with section 255.05(1), Florida Statutes (1983). Mills then subcontracted with Florida Ceiling & Partitions, Inc. (Florida Ceiling) for the waterproofing, metal studding, and drywall installation on the project. McCain became involved in the project by agreeing to supply Florida Ceiling with drywall building material.
McCain furnished materials to the project from April 10, 1981, to December 18, 1981. On August 7, 1981, 119 days after the first delivery of materials, McCain sent Mills and USFG a notice to owner informing them that it was supplying materials and therefore intended to rely on the performance bond for compensation protection. On March 9, 1982, McCain sent a notice of nonpayment in the amount of $36,631.58, the balance allegedly due and owing to McCain from Florida Ceiling. Having fully compensated Florida Ceiling, Mills, of course, refused payment. McCain then brought suit against Mills and USFG to recover on the surety bond. The trial court entered final judgment in favor of McCain, concluding that Mills "had actual notice of the plaintiff's furnishing labor, materials and/or supplies for the prosecution of the work."
Mills contends the trial court erred in concluding that Mills' knowledge of McCain's involvement with the project was sufficient notice under the statute. McCain, on the other hand, claims that in addition to actual notice, Mills also received timely written notice in the form of a waiver of lien issued to Mills. We agree with Mills.
It is clear that a condition precedent to the maintenance of an action of this kind is compliance with the statutory notice requirement within the prescribed time limit. *1391 School Board of Palm Beach County v. Fasano, Inc., 417 So. 2d 1063 (Fla. 4th DCA 1982); Fuller Industries, Inc. v. R. Terry Balzier & Son, Inc., 188 So. 2d 2 (Fla. 2d DCA 1966); § 255.05(2), Fla. Stat. (1982). However, what constitutes proper notice is not clearly delineated by the statute and therefore poses a difficult question. As stated by the Fourth District in School Board of Palm Beach County v. Fasano, Inc., our objective is to "determine the intent of the legislature and, if possible, to see that the purpose of the statute is accomplished." 417 So.2d at 1065. With respect to the legislative purpose behind section 255.05, the court stated:
Clearly, the major purpose of Section 255.05(1) is to protect subcontractors and suppliers by providing them with an alternative remedy to a mechanics lien on public projects. City of Ft. Lauderdale v. Hardrives Co., 167 So. 2d 339 (Fla. 2d DCA 1969). In addition, however, Section 255.05(2) protects the contractor and the contractor's surety from having to account to unknown suppliers and subcontractors by putting the burden on the claimants to advise the contractor and surety of their participation on the project and to advise if they are not promptly paid.
417 So.2d at 1065.
In Fasano, a case relied upon by McCain, Palm Beach County contracted with Fasano for the construction of a technical school. Fasano obtained a performance bond from USFG. Carter Electric was Fasano's electrical subcontractor for the project. On September 18, 1978, Major Electrical Supplies sent a written notice to the school board stating that it was furnishing electrical materials to the project under an agreement with Carter Electric. The supplier sent a copy of the notice to both Fasano, as general contractor, and USFG. The supplier furnished materials from October 2, 1978, until February 22, 1980. On March 14, 1980, the supplier submitted a request for payment which was refused. The supplier then filed suit against the contractor and surety. The trial court dismissed the supplier's claim on the basis that it had failed to comply with the notice provisions of section 255.05(2). The general contractor and the surety argued on appeal that the trial court's decision should be affirmed because the supplier's notice did not state that it intended to look to the bond for protection.
On appeal the Fourth District reversed and held that Major Electric's letter substantially complied with the requirements of the statute. In so holding, the court relied on the fact that the notice was in writing and was delivered by certified mail to the surety as well as the general contractor. The court felt that by noticing both the surety and the contractor, Major evinced an intent to rely on the bond. For this reason, the court discounted the fact that the notice lacked a specific statement by Major that it intended to rely on the bond.
While we agree with the result reached in Fasano, we do not find it controlling of the instant case. McCain's only basis for asserting that Mills received written notice is the fact that Mills had in its files a waiver of lien executed by McCain which was one of several from sub-subcontractors and materialmen that were attached to a prior Florida Ceiling draw request. This was insufficient to serve as the statutory notice that McCain intended to look to the bond for protection. Our remaining concern, therefore, is whether Mills' knowledge of McCain's deliveries can suffice as the notice required by the statute.[2]
We previously addressed this question in a related context in Bishop v. James A. Knowles, Inc., 292 So. 2d 415 (Fla. 2d DCA 1974). In Bishop, one of the owners of *1392 certain land held in trust had knowledge of a subcontract through his capacity as president of the general contractor. The subcontractor sued under section 713.06, Florida Statutes (1973) (amended 1977, 1980), for monies due under the subcontract and sought to impose a mechanics lien on the land. Like the Little Miller Act, section 713.06 conditioned recovery under proper notice.[3] At trial, the subcontractor successfully argued that in view of the owner's knowledge of the subcontract, there was no necessity to serve notice of intent to claim a lien. We disagreed, however, and said:
The statutory intent appears clear. The notice is more than written advice that a particular subcontractor is working on the job. If this were the only purpose, there would be many instances where there would be no need for the notice to be served because owners often have knowledge of the identity of one or more of the subcontractors involved in the construction of their building. The notice of intent to claim a lien is a notification that pursuant to the statute the subcontractor is looking to the owner for payment.
We think the reasoning of Bishop is applicable in the instant case. Although section 713.06 required a written and more detailed notice than section 255.05, the intent of the statutes appears the same that an owner or contractor know of a claim for payment. Thus, we read the notice of section 255.05(2) as requiring something more than an awareness that a particular subcontractor or supplier is on the job. To hold otherwise would render the statute a nullity for general contractors often know that a company is furnishing materials to a project without knowing that they have not been paid.
In sum, because McCain did not notice Mills in accordance with the legislative intent it cannot recover under section 255.05. Accordingly, we reverse the final judgment and remand for proceedings consistent herewith.
GRIMES, A.C.J., and CAMPBELL, J., concur.
NOTES
[1] The right of action allowed by section 255.05(1) is the legislative alternative to a mechanics lien, which cannot be secured against government owned land. § 713.01(14), Fla. Stat. (1983). Section 255.05(1) provides:
(1) Any person entering into a formal contract with the state or any county, city, or political subdivision thereof, or other public authority, for the construction of a public building, for the prosecution and completion of a public work, or for repairs upon a public building or public work shall be required, before commencing the work, to execute a payment and performance bond with a surety insurer authorized to do business in this state as surety. Such bond shall be conditioned that the contractor perform the contract in the time and manner prescribed in the contract and promptly make payments to all persons defined in s. 713.01 whose claims derive directly or indirectly from the prosecution of the work provided for in the contract. Any claimant may apply to the governmental entity having charge of the work for copies of the contract and bond and shall thereupon be furnished with a certified copy of the contract and bond. The claimant shall have a right of action against the contractor and surety for the amount due him. Such action shall not involve the public authority in any expense. However, at the discretion of the director of the Department of General Services when such work is done for the state, or at the discretion of the official or board awarding such contract when such work is done for any county, city, political subdivision, or public authority, any person entering into such a contract which is for $100,000 or less may be exempted from executing the payment and performance bond. The director of the Department of General Services may delegate to state agencies the authority to exempt any person entering into such a contract amounting to $100,000 or less from executing the payment and performance bond. In the event such exemption is granted, the officer or officials shall not be personally liable to persons suffering loss because of granting such exemption.
[2] It was undisputed that Mills did not receive McCain's notice to owner until August 7, 1981, well after the forty-five-day time period had run.
[3] Section 713.06(2)(a):
All lienors under this section, except laborers, as a prerequisite to perfecting a lien under this chapter and recording a claim of lien, shall be required to serve a notice on the owner setting forth the lienor's name and address, a description sufficient for identification of the real property, and the nature of the services or materials furnished or to be furnished. This notice must be served before commencing or not later than forty-five days from commencing to furnish his services or materials but in any event before the date of furnishing the affidavit under subsection (3)(d)1, of this section, or abandonment, whichever shall occur first. The serving of this notice shall not dispense with recording the claim of lien. This notice shall not be deemed to constitute a lien, cloud or encumbrance on said real property nor actual nor constructive notice of any of the same. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2751258/ | Dismissed and Memorandum Opinion filed November 13, 2014.
In The
Fourteenth Court of Appeals
NO. 14-14-00583-CV
ALPER KARAALI, Appellant
V.
PETROLEUM WHOLESALE, L.P., Appellee
On Appeal from the 333rd District Court
Harris County, Texas
Trial Court Cause No. 2011-44275
MEMORANDUM OPINION
According to information provided to this court, the trial court signed a final
judgment April 15, 2014, and appellant filed a timely motion for new trial. The
trial court denied the motion for new trial by an order signed May 27, 2014.
Appellant then filed a pro se notice of appeal on July 18, 2014. Appellant also filed
an affidavit of indigence. See Tex. R. App. P. 20.1(a)(2).
The record has not been filed in this appeal, and both the district clerk’s
office and the court reporters have stated appellant has not paid for preparation of
the record. On August 27, 2014, one of the court reporters on this case notified this
court that appellant’s request to proceed as a pauper was denied by the trial court.
We ordered a partial record containing the documents related to appellant’s claim
of indigence, which was filed September 24, 2014. The reporter’s record from the
indigence hearing was filed September 26, 2014. The record reflects that the Harris
County District Clerk and the official court reporter filed timely contests to
appellant’s affidavit of indigence. See Tex. R. App. P. 20.1(e). The trial court
granted an extension of time to conduct a hearing on the contest. See id. 20.1(i)(3).
A hearing on the contests was held August 15, 2014. On August 19, 2014, the trial
court signed an order sustaining the contest to appellant’s affidavit of indigence
and ordering him to pay the costs of appeal. See id. 20.1(i)(4).
On October 7, 2014, this court ordered appellant to pay the appellate filing
fee on or before October 31, 2014. See Tex. R. App. P. 5. In addition we ordered
appellant to pay the costs for preparation of the clerk’s record and provide this
court with proof of payment on or before October 31, 2014. See id. 37.3(b). The
court’s order stated that if appellant failed to comply, the appeal would be
dismissed. See id. 42.3. Appellant filed no response. The appellate filing fee has
not been paid and the complete clerk’s record has not been filed.
Accordingly, the appeal is ordered dismissed.
PER CURIAM
Panel consists of Justices McCally, Brown, and Wise.
2 | 01-03-2023 | 11-13-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1005485/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-7072
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LAUREN ANTHONY WATSON, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry M. Herlong, Jr., District Judge.
(CR-97-262, CA-01-2115-8-20)
Submitted: October 4, 2001 Decided: October 12, 2001
Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Lauren Anthony Watson, Jr., Appellant Pro Se. E. Jean Howard,
OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Lauren Anthony Watson, Jr., appeals the district court’s
orders denying his motions filed under 28 U.S.C.A. § 2255 (West
Supp. 2001) and Fed. R. Civ. P. 59(e). We have reviewed the record
and the district court’s orders and find no reversible error.
Accordingly, we deny a certificate of appealability and dismiss the
appeal on the reasoning of the district court. United States v.
Watson, Nos. CR-97-262; CA-01-2115-8-20 (D.S.C. Apr. 27, 2001;
filed June 14, 2001, entered June 18, 2001). We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
DISMISSED
2 | 01-03-2023 | 07-04-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266454/ | 681 A.2d 1102 (1996)
Mildred WRIGHT, Appellant,
v.
Abraham HODGES, et al., Appellees.
No. 93-CV-1298.
District of Columbia Court of Appeals.
Argued April 11, 1995.
Decided July 26, 1996.
David J. Farber, Washington, DC, with whom Michael D. Esch and Ruth L. Ramsey were on the brief, for appellant.
*1103 Sunanda K. Holmes, Silver Spring, MD, for appellees.
Before WAGNER, Chief Judge, and STEADMAN and SCHWELB, Associate Judges.
Opinion for the court PER CURIAM.
Dissenting opinion by Associate Judge SCHWELB at 1106.
PER CURIAM:
This case concerns a landlord-tenant dispute regarding the conditions in an apartment in southeast Washington, D.C. Following a bench trial on the landlords' action for possession, the trial court entered judgment of possession in favor of the landlords, Abraham and Loretta Hodges, against the tenant, Mildred Wright. The court ruled that Mrs. Wright would be required to pay the Hodges the full amount of rent due in order to redeem her tenancy. On appeal, Mrs. Wright contends that the trial court erred in ruling for the Hodges because significant housing code violations allegedly existed on the premises, justifying her failure to pay the full rent due. She contends that the judge made inadequate findings of fact and that he applied incorrect legal standards to the evidence presented. We affirm.
I.
On August 23, 1993, the Hodges filed an action for possession against Mrs. Wright, alleging non-payment of rent. Mrs. Wright defended on the ground that conditions in the apartment amounted to violations of the housing code.[1] The case came on for a bench trial on September 27, 1993. All parties appeared pro se,[2] and the court heard the testimony of Mrs. Wright, Mr. and Mrs. Hodges, and Carlos Adorno, a housing inspector employed by the District's Department of Consumer and Regulatory Affairs.
A.
Mrs. Wright testified that she rented the apartment in question from Mrs. Hodges, an acquaintance of hers, in December 1991. The agreed upon monthly rent was $325. Mrs. Wright testified that in April 1993, she received notice from the Hodges that her rent would be raised to $375 per month. Mrs. Wright refused to pay the raised rent, contending that the apartment was in unacceptable condition and that no increase was warranted. Mrs. Wright claimed, inter alia, that her toilet and bathtub were backed up by sewage, that she had to pour water in the toilet to make it flush, that the exterior door locks were broken, that her ceiling leaked, that "all the light switches had electrical sensations in them," and that there were no lights on the outside of the building or in the hallway. She testified that some of these conditions, including the defective state of the toilet, existed when she moved into the unit, and that she had called Mrs. Hodges about these conditions immediately after moving in. According to Mrs. Wright, as of the date of trial, the backup in the toilet and bathtub still had not been fixed.[3]
B.
The Hodges provided an account of the events in question which contradicted Mrs. Wright's version in a number of significant particulars. Mrs. Hodges denied that, upon *1104 moving in, Mrs. Wright had called her to complain about conditions in the apartment. The Hodges insisted, on the contrary, that Mrs. Wright's complaints were precipitated by the rent increase. Mr. Hodges testified that, in June 1993, "Mrs. Wright started calling all the housing inspectors . . . telling them all these violations that [were in] the apartment."
The housing inspector first visited the apartment on July 20, 1993. Mr. Hodges acknowledged that, on that occasion, the inspector found some violations, but Mr. Hodges testified that he corrected those violations "at that particular time." Mr. Hodges suggested that Mrs. Wright had intentionally caused some of the problems of which she was complaining. According to Mr. Hodges, on July 22, 1993, two days after his initial inspection of the apartment, the housing inspector found white paint in the sink, although nobody had been doing any painting in the building. Mr. Hodges also testified that, during the July 22 inspection, it was determined that Mrs. Wright "had taken the changer loose off the flusher so that the toilet wouldn't flush."
C.
Housing inspector Carlos Adorno testified that on July 20, 1993, he inspected Mrs. Wright's apartment in response to a complaint of a sewage obstruction or leak. He testified that he found "emergency violations" as well as "numerous routine violations within the apartment." With respect to the emergency violations, Adorno stated that
I did find a brown ring around the [kitchen] sink, but there was no obstruction. The lavatory and the bathtub did have some backup. I wasn't able to determine where that was coming from. There was a smoke [detector] that was defective in the first mechanism as well. And the exterior entrance door locks, they were defective as well.
Adorno testified that he returned to the apartment on three separate occasions to check the status of the repairs and determined that all of the emergency items (as listed above) had been corrected by the time of his last inspection on August 2, 1993.[4]
Adorno testified that the "routine" violations which he found included "peeling paint, cracks in the ceiling, electrical outlet that was defective, windows that needed reputting and stuff like that, just your basic routine wear and tear." He explained that he had been scheduled to return to the unit in order to determine whether the routine violations had been abated, but that Mr. Hodges had received an extension to October 4, 1993 with respect to those violations.
D.
At the conclusion of the evidence, the judge made oral findings of fact and conclusions of law. After outlining the history of the case and the testimony of the housing inspector, and indicating that he had examined the photographs submitted by the parties, the judge found that all of the emergency violations had been abated within thirty days. The judge then concluded that the Hodges had not "done anything wrong," and that "there has been no breach of the implied warranty of habitability here, and there is no defense to [not] paying the rent here." In addition, the judge noted that "the housing inspector is on top of this situation."[5] The judge ruled that, in order to redeem her tenancy,[6] Mrs. Wright would be required to pay the Hodges the full amount that the Hodges claimed was due on the rent. This appeal by Mrs. Wright followed.
*1105 II.
A.
When a case is tried by the court sitting without a jury, the trial judge's "[f]indings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses." Super. Ct. Civ. R. 52(a); see Super Ct. L & T R. 2 (making Civ. R. 52 applicable to proceedings in the Landlord and Tenant Branch). In determining whether the judge's findings are supported by the record, "we must consider the evidence in the light most favorable to [the Hodges], giving full play to the right of the judge, as the trier of fact, to determine credibility, weigh the evidence, and draw reasonable inferences." In re T.M., 577 A.2d 1149, 1151 (D.C.1990) (citations omitted).
Under Super Ct. Civ. R. 52(a), the trial court in a nonjury case is required to "state sufficient findings of fact and conclusions of law to permit meaningful appellate review." United States Fidelity and Guar. Co. v. Kaftarian, 520 A.2d 297, 299 (D.C. 1987) (citation omitted). These findings must be "sufficient to indicate the factual basis for the ultimate conclusion." Kelley v. Everglades Drainage District, 319 U.S. 415, 422, 63 S.Ct. 1141, 1145, 87 L.Ed. 1485 (1943) (per curiam). "Where the trial court provides only conclusory findings, unsupported by subsidiary findings, or by an explication of the court's reasoning with respect to the relevant facts, a reviewing court simply is unable to determine whether or not those findings are clearly erroneous." Kaftarian, supra, 520 A.2d at 299-300 (internal quotation and citations omitted).
Nevertheless, a deficiency in factual findings does not always constitute reversible error. We will uphold the trial court's ruling against such a challenge, for example, "where the record clearly reflects the grounds of the trial court's decision," Don't Tear it Down, Inc. v. District of Columbia, 395 A.2d 388, 391 (D.C.1978) (citing Warner Corp. v. Magazine Realty Co., 255 A.2d 479, 481 n. 4 (D.C.1969); other citation omitted), or where the trial court's "decision is clearly supported by the record." Simpson v. Lee, 499 A.2d 889, 893 (D.C.1985) (citations omitted). Moreover, "we have often sustained rulings of the trial court on the basis of implied findings." Battocchi v. Washington Hosp. Center, 581 A.2d 759, 768 (D.C.1990). Finally, while "[f]indings of fact which result from a misapprehension as to the applicable law ... lose the insulation of the `clearly erroneous' rule," In re L.L., 653 A.2d 873, 880 (D.C.1995) (citation omitted), trial judges are presumed to know and apply the proper legal standards. See, e.g., Walton v. Arizona, 497 U.S. 639, 653, 110 S.Ct. 3047, 3057, 111 L.Ed.2d 511 (1990); Hightower v. United States, 117 U.S.App.D.C. 43, 46, 325 F.2d 616, 619 (1963), cert. denied, 384 U.S. 994, 86 S.Ct. 1903, 16 L.Ed.2d 1009 (1966).
B.
In the District of Columbia, every lease for residential housing includes an implied warranty of habitability. Javins v. First National Realty Corp., 138 U.S.App. D.C. 369, 380, 428 F.2d 1071, 1082, cert. denied, 400 U.S. 925, 91 S.Ct. 186, 27 L.Ed.2d 185 (1970); George Washington Univ. v. Weintraub, 458 A.2d 43, 46 (1983). "[T]o fulfill this warranty landlords are required to comply substantially with the Housing Regulations of the District of Columbia.. . ." Weintraub, supra, 458 A.2d at 46. In order to establish a violation of the warranty of habitability, a tenant must show that any noncompliance with the housing regulations is more than de minimis. Id. at 47 n. 5. "`[O]ne or two minor violations standing alone which do not affect habitability are de minimis and would not entitle the tenant to a reduction in rent.'" Id. (quoting Javins, supra, 138 U.S.App.D.C. at 380 n. 63, 428 F.2d at 1082 n. 63).
"[A]pplication of the implied warranty is contingent upon the tenant's affording the landlord notice of defective conditions and a reasonable time within which to make repairs." Robert S. Schoshinksi, American Law of Landlord and Tenant § 3:16, at 127-28 (1980) (footnote omitted); see also Weintraub, supra, 458 A.2d at 49 (notice can be *1106 actual or constructive and burden is on landlord to show lack thereof). "[T]enants are not entitled to an abatement when the landlord repairs the defective condition within a reasonable time after learning of its existence." Chess v. Muhammad, 179 N.J.Super. 75, 430 A.2d 928, 931 (N.J.Super.Ct.App.Div.1981); see also id., 430 A.2d at 930 (collecting authorities).
C.
Trial court judgments come to us with a presumption of correctness. Cobb v. Standard Drug Co., 453 A.2d 110, 111 (D.C. 1982). We think that Mrs. Wright has failed to overcome this presumption, as well as the presumption that the trial judge knows and applies the proper legal standards. See Walton, supra, 497 U.S. at 653, 110 S.Ct. at 3057; Hightower, supra, 117 U.S.App.D.C. at 46, 325 F.2d at 619.
Although more detailed findings might have been preferable for purposes of appellate review, the trial court's express findings necessarily imply[7] that the court (1) credited the Hodges' testimony with regard to when they received notice of the defects; (2) found that the Hodges cured the emergency violations within a reasonable time[8]; and (3) found that the remaining routine violations,[9] which the housing inspector characterized as "just your basic routine wear and tear," were de minimis and did not entitle the tenant to a reduction in rent. Considering the evidence in the light most favorable to the Hodges, see In re T.M., supra, 577 A.2d at 1151, we cannot say that such findings are clearly erroneous. Moreover, they support the trial court's ruling that Mrs. Wright had no valid defense for her failure to pay the full rent due. See Weintraub, supra, 458 A.2d at 46-47 & n. 5; Chess, supra, 430 A.2d at 931.
Thus, in our judgment, "the record clearly reflects the grounds of the trial court's decision," Don't Tear it Down, supra, 395 A.2d at 391, and the trial court's ruling is "clearly supported by the record." Simpson, supra, 499 A.2d at 893. Accordingly, the judgment on appeal is
Affirmed.
SCHWELB, Associate Judge (dissenting):
In my opinion, the trial judge's findings in this case are not susceptible of meaningful appellate review. Accordingly, I would vacate the judgment and remand the case for further proceedings.
I.
I think it important to emphasize, at the outset, that Mrs. Wright's allegations in this case are quite serious. If they are true, then she was compelled to live, for a considerable time, in conditions unsuitable for human habitation. Moreover, according to Mrs. Wright's testimony, the Hodges knew about at least some of these conditions from the beginning of the tenancy, but consciously and deliberately refused to do anything about them.
Mrs. Wright moved into the apartment in December 1991. Twenty-one months later, on September 27, 1993the day on which this case was triedMrs. Wright testified that
the sewer is still coming up in the toilet, as it was; the bathtub has still not been fixed; and the violations that I consider important to me, which is sewage, because I haven't eaten in that apartment since July, I haven't washed any dishes in there since July because it's unsafe and unsanitary. So I was told that if I was under such bad circumstances, that I should move out. *1107 But no one has any reason to live in the type of situation that exists in that whole building. . . .
Mrs. Wright further testified that she had brought the defective conditions to the attention of Mrs. Hodges immediately after she moved in. According to Mrs. Wright, however,
[Mrs. Hodges'] response was, well, Mrs. Wright, you know that you're not paying but X number of dollars, and if there's anything wrong, you should be able to do it [your]self.
Mrs. Wright thus alleged, in essence, that because the rent for her unit was modest, the Hodges consciously and deliberately gave her the Hobson's choice of either living with the violations or of making her own repairs as best she could.
Mrs. Wright was entitled to have these troubling allegations considered seriously and, I suggest, in some detail. It was the judge's obligation, in my view, to go beyond generalities and to make "a meaningful attempt to come to grips with the difficult factual issues raised by the record." Eilers v. District of Columbia Bureau of Motor Vehicles Servs., 583 A.2d 677, 685 (D.C.1990). Rule 52(a) of the Superior Court's Civil Rules "means there must be findings on material issues. Failure to do so requires remand." Tauber v. District of Columbia, 511 A.2d 23, 28 (D.C.1986).
The judge did not, however, take up the specific factual issues raised by Mrs. Wright, nor did he directly address her credibility. Rather, he ruled in conclusory fashion that the Hodges had not "done anything wrong" and that there had been no breach of the implied warranty of habitability. The judge then completed his oral decision with a little homily which may have led Mrs. Wright to wonder how seriously her case was being taken:
I find that the housing inspector is on top of this situation, has been on top of this situation, is apparently going to continue to be on top of this situation since we all dieuntil we all die, and so I amI take a lot of comfort in that, a lot of comfort that everybody is going to be looking out for everybody in this case.
For the reasons set forth below, this simply will not do.
II.
Although the judge's focus at the bench trial was on the summer of 1993, when the inspector first examined the apartment, the most significant factual issue, in terms of relief to which Mrs. Wright might be entitled, related to events that substantially predated that summer. Mrs. Wright testified, as we have seen, that serious housing code violations existed from the day she moved into the unit, and that Mrs. Hodges deliberately refused to do anything about them and treated the tenancy, in effect, as an "as is" arrangement. Her testimony on these matters was very definite and very specific; it was either true or fabricated, but it could hardly have been the result of a mistake.
Mrs. Hodges denied, without elaboration, that Mrs. Wright had complained about conditions at the time that she moved in to the apartment. Mrs. Hodges, however, was not asked about, nor did she admit or deny, the alleged conversation in which she was said to have told Mrs. Wright that repairs were the tenant's own responsibility. The question whether Mrs. Hodges made the remarks which Mrs. Wright ascribed to her appears to me to hold the key to this case, and I do not see how the merits can be fairly determined without dealing with that question directly.
It is, of course, possible that Mrs. Wright was not telling the truth regarding the condition of the apartment at the beginning of the tenancy, and that she invented out of whole cloth the conversation in which Mrs. Hodges allegedly refused to do anything about the condition.[1] If Mrs. Wright did not fabricate her story, however, then she was entitled to some abatement for a year and a half or more, for the implied warranty of habitability cannot be waived. Javins v. First Nat'l *1108 Realty Corp., 138 U.S.App.D.C. 369, 379-80, 428 F.2d 1071, 1081-82, cert. denied, 400 U.S. 925, 91 S.Ct. 186, 27 L.Ed.2d 185 (1970).
In his oral decision, the judge did not address at all the condition of the apartment during the first year and a half of Mrs. Wright's tenancy, nor did he mention Mrs. Hodges' alleged refusal to make repairs or the explanation that Mrs. Hodges allegedly gave Mrs. Wright for that refusal. The judge did not award Mrs. Wright any abatement, and I suppose that one could therefore infer that the judge "must have" disbelieved Mrs. Wright's testimony on these subjects, even though he did not say a word about it.
I suggest, however, that the decisive factual issue was far too specific and far too well-defined to warrant a disposition of it which would require the appellate court to guess at what the judge "must have" meant.[2] To hold, as my colleagues do, that findings as perfunctory as those which the judge made here "necessarily imply" that Mrs. Wright's account was false appears to me to eviscerate the principle, acknowledged by the majority, that the court must "state sufficient findings of fact and conclusions of law to permit meaningful appellate review." Maj. op. at 1105-1106 (quoting United States Fidelity & Guar. Co. v. Kaftarian, 520 A.2d 297, 299 (D.C.1987)). If it is enough for the judge to state that the landlords did not violate the implied warranty of habitability and did nothing wrong, then there is no incentive, Kaftarian and like cases notwithstanding, to address and resolve the hard factual issues on which the ultimate decision is based. My colleagues acknowledge that "more detailed findings might have been preferable." Maj. op. at 1107. I think they were essential.
Even if the judge disbelieved Mrs. Wright's testimony that she apprised Mrs. Hodges in 1991 of serious housing code violations, the Hodges should at least arguably have known about some of the violations e.g., the defective condition of the exterior locksbecause these defects may have been readily noticeable irrespective of whether Mrs. Wright complained. If Mrs. Wright had to live in an apartment which could not be locked, and if the Hodges knew or should have known about this circumstance, then the rental value of the premises was surely reduced at least in some measure. The judge made no finding directly addressing what the Hodges knew or should have known about the defective exterior door, or about any other violation.
III.
Turning to the "routine" violations, the judge made no specific finding as to what they were, or how long they had existed, or when the Hodges knew or should have known about them, or whether they had been abated.[3] In fact, the judge denied Mrs. Wright any rent reduction, although it was undisputed that many non-emergency violations existed at the time of the inspection, and even though, at Mr. Hodges' request, the apartment had not been re-inspected between August 2, 1993 and the day of trial eight weeks later. Cf. Novak v. Cox, 538 A.2d 747, 751 (D.C.1988).
It may well be that the judge, after having examined photographs of the conditions complained of, viewed the non-emergency violations as "de minimis." The housing inspector described them as "just your basic routine wear and tear." If that is what the judge intended, however, he made no such finding, explicitly or, in my view, even implicitly. Moreover, although "one or two" de *1109 minimis violations would not entitle a tenant to a reduction in rent, Javins, supra, 138 U.S.App.D.C. at 380 n. 63, 428 F.2d at 1082 n. 63, there were numerous "routine" violations in Mrs. Wright's unit, and it is not at all clear to me that the words "one or two" in Javins can be so readily disregarded. Counsel for Mrs. Wright argue, not unreasonably, that "the extensive list of housing code violations written by the inspector... amply portray[s] an apartment in far more severe shape than [one] suffering from `routine wear and tear.'"
The record in this case establishes that there were numerous non-emergency housing code violations in the unit for a protracted period of time, and that they had not been abated at the time of trial. In my opinion, the trial judge did not adequately explain why, under these circumstances, no abatement was appropriate.
IV.
The majority acknowledges that more detailed findings might have been preferable, but presumes "that the trial judge knows and applies the proper legal standards" and that "[t]rial court judgments come to us with a presumption of correctness." Maj. op. at 1107 (citations omitted). I do not challenge the existence of these presumptions, but I think that they have been amply rebutted in this case by the judge's own words. I agree with counsel for Mrs. Wright that
Javins and its progeny do not stand for the proposition that rent will not be abated if a housing inspector "is on top of the situation" or will "continue to be on top of the situation." Nor do these cases support a ruling that the court may ignore housing code violations because they may be abated at some point in the future. Rather, the law of this jurisdiction requires that the court make some adjustment in the rent in failure to pay rent cases, when defendants like Ms. Wright counterclaim for a reduction of rent based upon [demonstrated and substantial] housing code violations. Javins, [138 U.S.App.D.C. at 380], 428 F.2d at 1082; Winchester Management Corp. [v. Staten], 361 A.2d 187, 190 (D.C.1976); Hsu [v. Thomas], 387 A.2d [588], 589 (D.C.1978); Cooks [v. Fowler, 147 U.S.App.D.C. 213, 213-14], 455 F.2d 1281, 1281-82 (1971).
To be sure, the trial judge found, with little elaboration, that the Hodges had not violated the implied warranty of habitability. If the trial judge actually applied to this case the legal principles implicit in his oral ruling, however, then the ultimate finding cannot be sustained. "Findings of fact which result from a misapprehension as to the applicable law ... lose the insulation of the `clearly' erroneous rule." In re Application of L.L., 653 A.2d 873, 880 (D.C.1995) (citation omitted).
For the foregoing reasons, I respectfully dissent.
NOTES
[1] In addition, on August 27, 1993, Mrs. Wright filed a petition with the Rental Accommodations and Conversion Division, seeking a rent abatement of $401. While Mrs. Wright argues on appeal that the trial court erred in awarding the Hodges the full amount of rent due, no issue regarding the rent abatement petition as such is before us.
[2] On appeal, however, the parties are represented by counsel.
[3] Mrs. Wright also indicated that each of the other apartments in the building had been renovated to add a back room, but that her apartment still had a back porch instead of a back room. Mr. Hodges testified that Mrs. Wright's back porch was cluttered up with junk, so that "you can't even take two steps onto that porch." He claimed that he had repeatedly asked Mrs. Wright to move her things so that he could renovate that portion of the building, but that Mrs. Wright refused to do so. Commenting on the photographs which the parties had presented, the judge found that Mrs. Wright had cluttered up the enclosed porch with so many bags and items that "I don't know how you could pass through this room, either [to] get into it or get out of it."
[4] On the occasion of Adorno's August 2 visit, Mrs. Wright complained that the kitchen sink was still obstructed. According to Adorno's testimony, he investigated and determined that someone had poured fresh white paint into the sink. (Mr. Hodges described these events as having occurred on July 22, 1993, rather than on August 2.) Adorno testified that the apartment was located at the top of a hill, and that "[t]here is no way you can get a sewage backup at that level."
[5] Here, the judge was apparently referring to the as-yet unabated routine violations, with regard to which the Hodges had received an extension until October 4, 1993, shortly after the trial date.
[6] See Trans-Lux Radio City Corp. v. Service Parking Corp., 54 A.2d 144 (D.C.Mun.App.1947).
[7] See Battocchi, supra, 581 A.2d at 768.
[8] The trial court specifically found that the emergency violations were abated within thirty days. The record reflects that the housing inspector found the emergency violations to be abated within thirteen days of his initial inspection. With regard to the alleged sewage backup, the trial court presumably credited the testimony of the inspector that "[t]here is no way that you can get a sewage backup at that level [where the apartment is located]," and that the only obstruction remaining in the sink on August 2 was white paint that someone had poured into it. See supra note 4.
[9] As discussed above, see supra note 5, the deadline for correction of the routine violations had not yet passed on the date of trial.
[1] There is some limited implicit corroboration for parts of Mrs. Hodges' account, for the housing inspector did find numerous housing code violations when he examined the premises in 1993, several of them of an emergency nature.
[2] There is an additional reason to question whether the judge gave any consideration at all to the 1991 events. The alleged conversation between Mrs. Wright and Mrs. Hodges about repairs either occurred or did not occur. If it did not, then Mrs. Wright must have fabricated it. If the judge believed that Mrs. Wright was deliberately lying under oath, then I question whether he would have ended the trial with his ostensibly warm words about how glad he was that "everybody is going to be looking out for everybody in this case."
[3] As the housing inspector explained, the Hodges had requested, and had been granted, an extension, and the premises were to be reinspected approximately one week after the trial. Accordingly, the judge could not and did not find, at the time he ruled in the Hodges' favor, that the violations had been abated. The pro se litigants did not ask the judge to keep the record open for evidence as to the results of the reinspection and, unfortunately, the judge did not do so sua sponte. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266466/ | 545 Pa. 309 (1996)
681 A.2d 167
PETERS CREEK SANITARY AUTHORITY, Appellant,
v.
Thomas WELCH, Janice Welch and Mark Welch, Appellees.
Supreme Court of Pennsylvania.
Argued March 4, 1996.
Decided August 21, 1996.
*310 Susan M. Key, Jeffrey A. Watson, for Peters Creek Sanitary Authority.
James A. Ashton, Dana P. Murphy, James R. Cooney, for Thomas, Janice and Mark Welch.
*311 Before FLAHERTY, ZAPPALA, CAPPY, CASTILLE and NIGRO, JJ.
OPINION OF THE COURT
CASTILLE, Justice.
The sole issue on appeal is whether a trial court may strike an answer to a complaint as untimely where it is filed approximately twenty-three (23) months after the complaint was served and one (1) day before trial was set to begin even though the plaintiff failed to move for default judgment. Because we find that it is within the trial court's broad discretion to strike as untimely an answer which blatantly ignores the time limits set by procedural rules and that the trial court does not abuse its discretion in striking an answer where the moving party has failed to seek a default judgment, we reverse the order of the Commonwealth Court and reinstate the order of the trial court striking appellees' answer and new matter.
The relevant facts giving rise to this appeal are that on August 29, 1991, Peters Creek Sanitary Authority (Peters Creek) filed a complaint in the Washington County Court of Common Pleas against appellees, Thomas Welch, Janice Welch and Mark Welch, for delinquent sewer charges in the amount of $1,602.27 plus interest. All appellees were served with the complaint on September 4, 1991.
The case then proceeded to arbitration in late 1991. When arbitration occurred, appellees still had not filed an answer to Peters Creek's complaint. On December 23, 1991, a board of arbitrators found in favor of Peters Creek and against appellees. On January 23, 1992, Janice Welch filed a pro se appeal from the arbitration award and demanded a jury trial in the Washington County Court of Common Pleas (trial court).
Ms. Welch remained unrepresented by counsel until March 12, 1993. On that date, an attorney entered her appearance on behalf of Ms. Welch. On that same date, the trial court held a pre-trial scheduling conference. The trial court scheduled a non-jury trial to begin on July 27, 1993.
*312 On July 26, 1993, Ms. Welch's attorney filed an answer and new matter to Peters Creek's complaint. At trial on July 27, 1993, Peters Creek made an oral motion to strike Ms. Welch's Answer and New Matter since it was filed almost twenty-three months after Peters Creek served Ms. Welch with its complaint, in violation of Rule 1026 of the Rules of Civil Procedure.[1] The trial court, relying on Francisco v. Ford Motor Co., 397 Pa.Super. 430, 580 A.2d 374 (1990), appeal denied, 527 Pa. 633, 592 A.2d 1301 (1991),[2] granted Peters Creek's motion because it found that Ms. Welch was unable to establish a reasonable basis for the extended delay in filing her answer and new matter almost twenty-three (23) months after Peters Creek served her with its complaint. Since Ms. Welch indicated to the trial court that it was her intent to appeal immediately the decision to strike her Answer and New Matter, the trial court granted Ms. Welch's oral motion to delay the nonjury trial so that she could appeal the court's ruling.
Ms. Welch appealed that decision to the Commonwealth Court.[3] The Commonwealth Court, relying on Colonial School District v. Romano's School Bus Service, 118 Pa. Commw. 460, 545 A.2d 473 (1988),[4] held that the opposing *313 party must attempt to secure a default judgment before the trial court could strike an answer as untimely since failure to seek a judgment by default automatically extends the time within which a defendant is permitted to file an answer. Because Peters Creek never attempted to secure a default judgment, the Commonwealth Court held that the trial court abused its discretion in striking Ms. Welch's Answer and New Matter. Thus, the Commonwealth Court remanded the matter to the trial court with instruction to reinstate the Answer and New Matter.
On May 12, 1995, Peters Creek filed a petition for allowance of appeal from the Commonwealth Court's order. We granted allocatur to resolve the conflict between the Superior Court and the Commonwealth Court on the necessity of a party's filing for a default judgment before being able to succeed on a motion to strike a pleading as untimely.
Rule 1026(a) of the Pennsylvania Rules of Civil Procedure provides that:
[E]very pleading subsequent to the complaint shall be filed within twenty days after service of the preceding pleading, but no pleading need be filed unless the preceding pleading contains a notice to defend or is endorsed with a notice to plead.
Pa. R. Civ. P. 1026(a). Rule 126 of the Pennsylvania Rules of Civil Procedure requires that:
[T]he rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.
Pa. R. Civ. P. 126. In that regard, this Court has interpreted the timing requirements of Rule 1026 as follows:
[T]his rule is not mandatory but permissive. We have held that late pleadings may be filed `if the opposite party is not *314 prejudiced and justice requires. Much must be left to the discretion of the lower court.'
Paulish v. Bakaitis, 442 Pa. 434, 441, 275 A.2d 318, 321-22 (1971), quoting, Fisher v. Hill, 368 Pa. 53, 57, 81 A.2d 860, 863 (1951).
Both parties and both intermediate appellate courts recognize that the granting of a motion to strike lies within the trial court's broad discretion. The parties and courts, however, disagree over when the trial court abuses its discretion. Commonwealth Court precedent holds that the trial court abuses its discretion in granting such a motion when the party moving to strike has not filed for default judgment since the failure to seek a default judgment automatically extends the period within which the party may file its late pleading. See Colonial School District, supra; Davis v. Pennsylvania Liquor Control Board, 130 Pa. Commw. 287, 568 A.2d 270 (1989), appeal denied, 525 Pa. 637, 578 A.2d 931 (1990). Superior Court precedent, however, requires a party who files an untimely answer to show just cause for the delay and it is only after such a showing has been made that the trial court must require the moving party to demonstrate prejudice resulting from the late pleading. Moreover, Superior Court precedent also holds as a general rule that the trial court may strike the answer of a party who blatantly ignores the time limits set by the Rules of Civil Procedure even though the moving party has not sought a default judgment. See Francisco, supra; Joyce v. Safeguard Mutual Insurance Co., 362 Pa.Super. 522, 524 A.2d 1362 (1987), rev'd on other grounds, 517 Pa. 488, 539 A.2d 340 (1988) (per curiam).
Today, we adopt the standard established by Superior Court precedent and hold that the trial court does not abuse its discretion in granting a motion to strike an answer even though the moving party has not sought a default judgment since the failure to seek a default judgment does not act to automatically extend the period in which to file an answer. When a party moves to strike a pleading, the party who files the untimely pleading must demonstrate just cause for the delay. It is only after a showing of just cause has been *315 made that the moving party needs to demonstrate that it has been prejudiced by the late pleading. See Francisco, supra at 438, 580 A.2d at 378. Thus, the trial court does not abuse its discretion in striking a pleading as untimely where it finds that a party's blatant disregard for the time limits established by the Rules of Civil Procedure, without just cause for the delay, constitutes an abject indifference to the Rules.
Here, the trial court found that Ms. Welch failed to show just cause for her extended delay in filing an answer and new matter to Peters Creek's complaint and that the twenty-three months delay constituted an abject indifference of the Rules of Civil Procedure.[5] Moreover, despite Peters Creek's failure to move for a default judgment, the trial court found no reason to extend the twenty (20) day filing period established by Rule 1026. It is clear that such a decision was wholly within the trial court's broad discretion. Thus, the trial court did not abuse its discretion in granting Peters Creek's motion to strike Ms. Welch's Answer and New Matter as untimely.[6]*316 Accordingly, the order of the Commonwealth Court is reversed and the trial court's order striking the answer and new matter is reinstated.
NIX, former C.J., and NEWMAN, J., did not participate in the consideration or decision in this case.
NOTES
[1] Under Rule 1026, every pleading subsequent to the complaint must be filed within twenty (20) days after service of the preceding pleading.
[2] In Francisco, the trial court struck an answer filed forty-five (45) months after the complaint was filed. The Superior Court found that this delay constituted an "abject indifference" towards the Rules of Civil Procedure. Moreover, the Superior Court held that a party who files an untimely answer must show just cause for its delay and it is only after such a showing has been made that the trial court must require the moving party to demonstrate prejudice resulting from the late pleading.
[3] The Commonwealth Court sua sponte considered the appealability of the trial court's ruling. The Commonwealth Court, relying on Urban v. Urban, 332 Pa.Super. 373, 378, 481 A.2d 662, 665 (1984) concluded that the trial court's order striking appellant's answer constituted a sufficiently final order since it prevented appellant from challenging the averments of the complaint and from asserting affirmative defenses.
[4] In Colonial School District, the Commonwealth Court held that the trial court abused its discretion by striking defendant's answer, even though filed 23 months after the complaint was filed, where the plaintiff did not avail itself of the opportunity to take a default judgment prior to the filing of the answer and plaintiff did not demonstrate that it was prejudiced by the delay.
[5] While not raised on appeal, the trial court found that the fact that Ms. Welch acted pro se for the majority of time after Peters Creek filed its complaint did not amount to just cause for filing an untimely answer. This holding comports with this Court's view on pro se litigants. See Vann v. Unemployment Compensation Board of Review, 508 Pa. 139, 148, 494 A.2d 1081, 1086 (1985) (pro se litigant must to some extent assume the risk that his lack of legal training will prove his undoing); Commonwealth v. Abu-Jamal, 521 Pa. 188, 200, 555 A.2d 846, 852 (1989) (pro se litigant "is subject to same rules of procedure as is a counseled defendant; he has no greater right to be heard than he would have if he were represented by an attorney"); See also, Jones v. Rudenstein, 401 Pa.Super. 400, 404, 585 A.2d 520, 522, appeal denied, 529 Pa. 634, 600 A.2d 954 (1991) (pro se litigant not absolved of complying with procedural rules and courts have no affirmative duty to walk pro se litigant through the rules).
[6] While Peters Creek was not required to demonstrate prejudice since Ms. Welch was unable to show just cause for her delay, a review of the hearing on the motion to strike shows that Peters Creek articulated a colorable claim of prejudice. In particular, Peters Creek claimed it was prejudiced by the filing of the Answer and New Matter one day before trial since it had not been made aware of the facts or allegations in its complaint that Ms. Welch would deny (See Pa. R. Civ. P. 1029 which states that averments not denied specifically or by necessary implication are deemed admitted) and it was never made aware of or had time to prepare for any affirmative defenses intended to be raised (See Pa. R. Civ. P. 1032 which provides that a party waives all defenses and objections that are not presented in preliminary objections or the answer). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266481/ | 461 F.Supp. 554 (1978)
UNITED STATES of America, Plaintiff,
v.
Emma M. KANE and Town of North Hempstead, Defendants.
No. 76 C 1459.
United States District Court, E. D. New York.
November 27, 1978.
*555 David G. Trager, U. S. Atty., E. D. N. Y., Brooklyn, N. Y., for plaintiff, by Herbert G. Johnson, Asst. U. S. Atty., Brooklyn, N. Y.
Corwin & Matthews, Huntington, N. Y., for defendant Kane, by Charles T. Matthews, Huntington, N. Y.
Joseph A. Guarino, Town Atty., Town of North Hempstead, N. Y., for defendant Town of North Hempstead, by Bruce M. Migatz, New Hyde Park, N. Y.
MEMORANDUM DECISION AND ORDER
SIFTON, District Judge.
This is an action brought by the United States pursuant to 33 U.S.C. § 406 seeking an order directing defendants to remove two six-foot-high chain link fences which are said to be obstructing public access along the foreshore of property along Manhasset Bay owned by the defendant Town and leased by it to the defendant Kane. An injunction is also sought to restrain defendants from putting the fences up again or extending them without first obtaining authorization from Secretary of the Army, pursuant to 33 U.S.C. § 403. In response to the Government's lawsuit, defendant Kane has filed a counterclaim against the Secretary of the Army seeking an order of this Court directing the Secretary to issue a permit pursuant to 33 U.S.C. § 403 authorizing the fences to be maintained.
Defendant Kane has now moved for summary judgment dismissing the complaint and in her favor on the counterclaim.[1]
*556 The Government has filed in opposition to defendant's application and seeks summary judgment in its favor on both the complaint and the counterclaim. See, Procter & Gamble Independent Union v. Procter & Gamble Mfg. Co., 312 F.2d 181, 190 (2d Cir. 1962), cert. denied, 374 U.S. 830, 83 S.Ct. 1872, 10 L.Ed.2d 1053 (1963); Robertson v. Nat'l Basketball Ass'n, 389 F.Supp. 867, 894-95 (S.D.N.Y.1975), aff'd, 556 F.2d 682 (1977); Moore's Federal Practice, ¶ 56.12 (2d Ed. 1976).
The first question for determination by this Court on the cross-motions for summary judgment is whether there are disputed issues of material fact. There appears to be no such issues with regard to the claim asserted by the United States. There is no dispute that the two fences were erected by Mrs. Kane following the grant of a building permit allowing their construction by the defendant Town in the Spring of 1973. Nor is it disputed that the fences extended into Manhasset Bay, 45 feet seaward of the high water mark to the mean low water mark. Finally, it is undisputed that no authority has been obtained from the Secretary of the Army for the construction or maintenance of the two fences.
These being the undisputed facts, there can be no question that the United States is entitled to judgment as a matter of law on its complaint (unless, of course, defendant Kane is entitled to prevail on her counterclaim). The fences are "obstructions . . to the navigable capacity of . . . waters of the United States" since they obstruct the capacity for navigation over a part of the waters in question at all times, except at mean low water. Cf. Hubbard v. Fort, 188 F. 987, 996 (D.N.J.1911); Sierra Club v. Leslie Salt Co., 412 F.Supp. 1096, 1100-02 (N.D.Cal.1976). As such, they require Congressional authorization unless they are the sort of "structure" permitted under Clause 2 of Section 403 or the sort of "work" permitted under Clause 3 of the same section with the authorization of the Secretary of the Army.[2] Assuming that the fences are either "structures" or "works" referred to in those two clauses, there has been no such authorization from the Secretary of the Army. If they are not "structures" or "works", then they are prohibited since no law of the United States authorizes their existence. Sierra Club v. Leslie Salt Co., supra.
Defendant's only answer to the Government's case is that both defendants have a vested property right in the portion of the foreshore across which the fences extend, the defendant Town, as the owner of the foreshore, and defendant Kane, as lessee of the Town. The answer to this argument, as the Government points out, was given by the Supreme Court in United States v. Virginia Electric & Power Co., 365 U.S. 624, 628, 81 S.Ct. 784, 5 L.Ed.2d 838 (1961), quoting from its earlier opinion in United States v. Chicago, M., St. P. & P. R. Co., 312 U.S. 592, 596-97, 61 S.Ct. 772, 775, 85 L.Ed. 1064 (1941):
"The dominant power of the federal Government, as has been repeatedly held, extends to the entire bed of a stream, which includes the lands below ordinary *557 high-water mark. The exercise of the power within these limits is not an invasion of any private property right in such lands for which the United States must make compensation. [Citations omitted.] The damage sustained results not from a taking of the riparian owner's property in the streambed, but from the lawful exercise of a power to which that property has always been subject."
Thus, even if the Town had not reserved to itself under the lease the power to compel compliance with Federal statutes (which it did) and even if defendant Kane had not affirmatively agreed to comply with all Federal statutes and specifically agreed that "the occupancy . . . will not unlawfully obstruct navigation", neither the restrictions of the lease nor, on the other hand, the extensive rights of an owner of fee of real estate serve to restrict the application of a statute of the United States relating to the use to which such real estate can be put. See, Sanitary Dist. v. United States, 266 U.S. 405, 45 S.Ct. 176, 69 L.Ed. 352 (1925); United States v. Republic Steel Corp., 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903 (1960); In re Kinsman Transit Co., 338 F.2d 708, 718 (2d Cir. 1964), cert. denied, Continental Grain Co. v. City of Buffalo, 380 U.S. 944, 85 S.Ct. 1026, 13 L.Ed.2d 963 (1965); United States v. Sexton Cove Estates, Inc., 526 F.2d 1293, 1298 (5th Cir. 1976); United States v. Benton & Co., 345 F.Supp. 1101, 1103-04 (M.D.Fla.1972). Accordingly, there appears no reason why plaintiff is not entitled to summary judgment on its complaint, unless, of course, plaintiff improperly withheld issuance of authorization for the fences an issue raised by defendant's counterclaim.
With regard to defendant Kane's counterclaim, the initial problem raised by defendant's pleading is jurisdictional. Jurisdiction is claimed under 28 U.S.C. § 1346 and 28 U.S.C. § 1361 providing for mandamus proceedings against a Federal officer. None of the provisions of Section 1346 (which includes the Tucker Act and the Federal Tort Claims Act) would appear to have application here. Even if some tort is alleged against the United States, 28 U.S.C. § 2680 would appear to rule out the application of that statute to a discretionary act such as that at issue here. The limitations placed on 28 U.S.C. § 1361 by case law requiring that the Federal officer's duty be "plain" rather than discretionary, Lovallo v. Froehlke, 468 F.2d 340, 344 (2d Cir. 1972), cert. denied 411 U.S. 918, 93 S.Ct. 1555, 36 L.Ed.2d 310 (1973), likewise indicate the lack of application of that statute to the case at bar. Nor is there jurisdiction under the Administrative Procedure Act, 5 U.S.C. § 701, Califano v. Sanders, 430 U.S. 99, 107, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). However, as Califano v. Sanders, supra, suggests, jurisdiction to review agency action previously founded on 5 U.S.C. § 701, cf., Citizens Committee for Hudson Valley v. Volpe, 425 F.2d 97 (2d Cir.), cert. denied, 400 U.S. 949, 91 S.Ct. 237, 27 L.Ed.2d 256 (1970), can now properly be founded on the revised terms of 28 U.S.C. § 1331(a) since a plaintiff no longer need meet the amount in controversy requirement in a suit brought against a Federal officer in his official capacity.
The "cause of action" defendant asserts in his counterclaim is an action pursuant to 5 U.S.C. § 702 seeking review of the Secretary's action or inaction in failing to grant authorization for the fences. The basis for the cause of action is that the Secretary acted unlawfully in refusing to authorize the fences since he based his decision not on navigational considerations, but rather on the consideration that "the public has a right of free access along the foreshore." This consideration defendant Kane urges is improper, first, because only navigational considerations are, it is argued, to be taken into account in determining whether to grant a permit under Section 403 and, secondly, because there is, under New York Property Law, no public right to free access along the foreshore with which the fences can interfere.
Defendants first argument is without merit. Certainly, in the face of the National Environmental Policy Act of 1969 ("NEPA"), 42 U.S.C. §§ 4331 et seq. it is too *558 late to urge that the Secretary of the Army is confined to considering the impact of the permit authorization on navigation. See, Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970), cert. denied, 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed.2d 808 (1971). Section 102 of NEPA, 42 U.S.C. § 4332, explicitly provides:
"The Congress authorizes and directs that, to the fullest extent possible (1) the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act. . . ."
Consistent with this instruction by Congress the Secretary and the Courts have regarded the obstruction of navigable water of the United States necessitating an application for a permit as an occasion to analyze and take into account the environmental considerations set forth in NEPA, rather than as the sole issue to be evaluated in determining whether a Section 403 structure should be authorized. See, Zabel v. Tabb, supra; Citizens for Clean Air, Inc. v. Corps, 349 F.Supp. 696, 708-09 (S.D.N.Y.1972).
Nor is there any basis for concluding that furthering public access to the foreshore of a navigable water of the United States is not furthering one or more of the broadly stated policies of NEPA. Included among those policies are "a national policy which will encourage . . . enjoyable harmony between man and his environment", 42 U.S.C. § 4331, and "the continuing policy of the Federal government . . . to use all practicable means and measures . . to foster and promote the general welfare, [and] to create and maintain conditions under which man and nature can exist in productive harmony," id. Most to the point, it is stated to be the continuing responsibility of the Federal Government to improve its functions to the end "that the Nation may . . . attain the widest range of beneficial uses of the environment [and] achieve a balance between population and resource use which will permit . . a wide sharing of life's amenities." Id. Clearly, the "amenities" and "beneficial uses of the environment" referred to include access to the shoreline of Manhasset Bay between mean high and mean low water. Equally clearly the decision not to authorize the chain link fences is consistent with "wide sharing" of such amenities and the "widest range" of these beneficial uses.
Defendant Kane in her reply brief expresses concern that "if the court finds that the public has an absolute right to free and unhampered access to these fragile beach areas whether the upland is owned by the Federal, State or local governments or by private individuals then grave consequences will follow." However, neither NEPA nor this decision recognizes any such absolute right. The statute explicitly provides that the attainment of the widest range of beneficial uses of the environment be the widest range attainable "without degradation, risk to health or safety or other undesirable or unintended consequences." 42 U.S.C. § 4331(b)(3). The "wide sharing of life's amenities" is to be achieved on the basis of a strict "balance between population and resource use." The fact that in a democracy the sharing of environmental amenities will, in and of itself, have detrimental effects on the environment did not go unrecognized by Congress. However, Congress explicitly decided that the environment was to be saved not for the few, but for the many and that the environmental injury inevitable as a result of democratic sharing of natural resources should not, in and of itself, rule out a deliberate effort to expand public enjoyment of those resources in all cases in which health and safety was not jeopardized and environmental degradation could not be demonstrated. Defendant has shown no basis for this Court to conclude that the Secretary was arbitrary or capricious in deciding that no such adverse impact can be anticipated from the absence of the chain link fences in this case. As a matter of law, the Secretary clearly had authority in law to consider public access to the shoreline in determining whether to authorize the fences under Section 403.
Defendant's final argument is that neither Federal, State nor local law recognizes a right on the part of the public to access to the shoreline between the mean *559 low water mark and the mean high water mark in the circumstances here existing. Although in other circumstances and locations the public may have access to the nation's beaches, the argument goes, this is not so in North Hempstead because of peculiarities of local land law. However, the cases cited by defendant recognizing that title to the lands under Long Island's harbors and bays exists in the local towns Trustees of Freeholders and Commonalty of Town of Southampton v. Mecox Oyster Co., 116 N.Y. 1, 22 N.E. 387 (1889); Grace v. Town of North Hempstead, 166 App.Div. 844, 152 N.Y.S. 122 (2d Dep't 1915), aff'd, 220 N.Y. 628, 115 N.E. 1040 (1917), do not resolve the question at issue here. That title exists in the towns does not mean that there is no right of free passage on the part of the public across the foreshore. On the contrary, the New York cases recognize that rights to passage over the foreshore (possessed by the local towns, if at all, in their sovereign rather than proprietary capacity) are not capable of conveyance and extinction by transactions such as the lease here at issue, but on the contrary remain in the Town in its sovereign capacity and in the public at large. Cox v. State, 144 N.Y. 396, 39 N.E. 400 (1895); Tucci v. Salzhauer, 40 A.D.2d 712, 336 N.Y.S.2d 721 (2d Dep't 1972), aff'd, 33 N.Y.2d 854, 352 N.Y.S.2d 198, 307 N.E.2d 256 (1973); People of Town of Smithtown v. Poveromo, 71 Misc.2d 524, 336 N.Y.S.2d 764 (D.Ct.Suff.Cty.1972), rev'd on other grounds, 79 Misc.2d 42, 359 N.Y. S.2d 848 (App.Term Sup.Ct.1973); cf. Riviera Ass'n, Inc. v. Town of North Hempstead, 52 Misc.2d 575, 276 N.Y.S.2d 249 (Sup.Ct.1967); see also, Martin v. Waddell's Lessee, 16 Pet. 367, 41 U.S. 367, 10 L.Ed. 997 (1842). It is such rights of public access that the Secretary could, in his discretion, determine should be fostered by denying the authorization requested.
Accordingly, summary judgment is granted in plaintiff's favor for the relief sought in its complaint and dismissing defendant's counterclaim. Plaintiff shall submit a form of judgment consistent with this opinion on two (2) days notice to defendant.
SO ORDERED.
NOTES
[1] The motion is defective since no statement of material facts as to which plaintiff claims there is no genuine issue of fact to be tried, required by Rule 9(a) of the local rules of this Court, has been filed. See,, S. E. C. v. Research Automation Corp., 585 F.2d 31 (2d Cir. 1978).
[2] Title 33, Section 403 reads as follows:
"The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor or refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same."
See Judge Renfrew's discussion of the meaning of the three clauses of 33 U.S.C. § 403 in Sierra Club v. Morton, 400 F.Supp. 610, 633 (N.D.Cal. 1975). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266487/ | 57 N.J. 24 (1970)
269 A.2d 1
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DANIEL ARTIS, DEFENDANT-APPELLANT.
The Supreme Court of New Jersey.
Argued December 2, 1969.
Decided September 15, 1970.
*26 Mr. Anthony C. Blasi argued the cause for defendant-appellant.
Mr. David S. Baime, Assistant Prosecutor, argued the cause for plaintiff-respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney; Mr. Baime, on the brief).
PER CURIAM.
Defendant was convicted of the first degree murder of George Kayser. The jury made no recommendation so the death penalty was imposed. The State's theory of this particularly gruesome homicide was felony murder, occurring in connection with the perpetration of a robbery of the decedent's person. There was no doubt from the medical evidence that death was caused by an automobile running over decedent's body while he lay upon the ground in an alley in Orange in an intoxicated condition. The prosecution's proofs sought to establish that defendant had just robbed the decedent and had deliberately driven the car over his body to dispose of him and to preclude defendant's identification as the robber. The principal defense was alibi.
*27 The State's case rested essentially upon the testimony of two men, McClain and Newkirk, who were friends of defendant and said they were with him and decedent at the time in question, and upon some especially incriminating physical evidence.
McClain testified that he met defendant and Newkirk in an Orange tavern late in the evening of September 11, 1967. A bottle of wine and one of gin were purchased and the three went outside to a car, which proved to be the decedent's, parked nearby. The decedent, a white man (all the others involved were black) whom McClain had never seen before, was sitting in the front seat on the passenger side, drinking out of another bottle. His condition was described as "real high." A fifth man, one Johnson, known to McClain, was seated in the back seat of the car, very drunk. Defendant entered the driver's seat and McClain and Newkirk got in the rear. They proceeded to drink out of the recently acquired bottles. Some little time later they decided "to go somewhere," with defendant driving. They took Johnson home and then cruised about Orange streets to a point where defendant stopped the car and made a gesture to McClain to grab the decedent around the head, which he did. Defendant then got out of the car, took McClain's position in the rear seat, grabbed the decedent from the back, rifled his pockets and removed his wallet. McClain then, at defendant's direction, drove the car into the alley some distance away. He, defendant and Newkirk got out of the car and defendant pulled the decedent, now helpless, out onto the ground. Defendant straddled the decedent and started to choke him. McClain asked defendant what he was going to do and he replied that "the man with the car knew his name * * * so he said that he was going to kill him." McClain protested and defendant said he "was going to run him over." Whereupon McClain left the scene on the run. On his way out of the alley he heard the wheels of the car spinning.
*28 Newkirk's story was substantially in accord with McClain's although perhaps implicating McClain more deeply in the robbery and assault of decedent. (The witnesses were sequestered and did not hear each other testify). Newkirk said that he was an eye-witness to the killing. After McClain left the alley, he said defendant got into the driver's seat and directed him to seat himself on the passenger's side of the front seat. Defendant then backed the car, turned it around to go out the alley and "ran over the man going out the alley." Newkirk said he jumped from the car when it stopped for a red light and made an anonymous telephone call to Orange police headquarters, advising that there was a body in the alley. He further stated that he met the defendant about a month later who said "You know, nobody ain't killed the white man but me."
The car was found against a tree on a street in East Orange some time later that night, with the decedent's wallet lying on the rear seat and the registration in his name in the glove compartment. Defendant's fingerprint was discovered on the left door adjoining the driver's seat and there was fresh blood on the frame underneath the car.
Defendant was not arrested until some months later, when he surrendered to police at his attorney's office in Newark. After he was brought to Orange police headquarters and directed to empty his pockets and wallet, a pawn ticket was found in the wallet. Investigation thereof disclosed that it covered a wristwatch, identified by the decedent's sister with whom he lived as belonging to him. The ticket stub in the pawnbroker's possession contained a fictitious name, but the address given was that of defendant's residence in Newark.
Defendant's story was that he had met the decedent for the first time on the morning of September 11, when the latter was in his car in the company of a friend of defendant's. Defendant, the decedent and various other friends of defendant, including Johnson, spent most of the day drinking in various taverns and in a trip in the car to Newark to defendant's lawyer's office to borrow some money. He *29 said he last saw the decedent in one of the taverns at about 6:00 P.M. and had seen Newkirk only early in the evening. He denied having seen McClain at all or having been in the alley at any time that day. He claimed that he left a tavern for the last time about 8:15 P.M., went to the home of a relative for a while and returned to his home at about 10:00 P.M. when he went to bed. No witnesses were called to substantiate the alibi and no explanation was offered concerning the pawn ticket.
Defendant also stressed his physical condition at the time. He had injured his legs in a motor vehicle accident many months before and said that his leg movements were so restricted that he could not perform many of the movements attributed to him and that he had to use crutches. (McClain testified the crutches were on the floor of the rear seat of decedent's car during the entire period involved). There was considerable testimony, however, that defendant did not use the crutches at any time on the day in question. He disclaimed driving the decedent's car at any time and said that he had entered the vehicle only from the right door.
Our thorough study of the full trial transcript demonstrates that many of defendant's contentions are so lacking in merit as not to require extensive discussion.
Defendant urges that the jury verdict was against the weight of the evidence because the testimony of McClain and Newkirk "was so fraught with inconsistencies and contradictions as to render such testimony incredible." While there were some differences between them as to certain details, the variations were not vital or particularly significant. Clearly they did not even approach the point of requiring it to be said that their testimony was beyond belief. The differences were simply matters for jury consideration in assessing credibility. The evidence was more than ample to find defendant guilty of first degree murder. The devastating effect of the physical evidence, especially the pawn ticket for the decedent's watch found in defendant's possession, itself fully justified the jury in believing the vital elements *30 of the stories told by McClain and Newkirk and disbelieving the defendant's version of the day's events.
Defendant also suggests errors by the trial court in limiting cross-examination of certain State's witnesses and in failing to grant a mistrial based on certain comments of the prosecutor during the trial, as well as urging plain error in comments during the State's summation upon defendant's failure to produce witnesses in support of his alibi. We are satisfied, without dealing with the points in detail, that no prejudicial error whatever was committed in any of the respects complained of.
Defendant further advances three contentions related to the charge. The first concerns the refusal of the trial judge to charge manslaughter as a possible verdict. The charge limited the verdict to felony (first degree) murder, second degree murder or acquittal. Manslaughter was specifically excluded. The argument is based on the theory that the prosecution evidence, viewed in the light most favorable to defendant, could be taken to indicate that his running over decedent's body with the car was accidental and amounted only to criminal negligence rather than a deliberate act. Since the jury found first degree rather than second degree murder, it is indeed far fetched to think that it would have returned a manslaughter verdict even if that crime had been charged as a possibility. But more important, we fail to find any evidence which would support such a theory. It is elementary that a trial judge should not instruct as to a possible verdict as to which there is no proof. State v. Sinclair, 49 N.J. 525, 540 (1967). The defendant is, of course, entitled to utilize facts of justification or mitigation arising out of the most favorable view of the evidence produced against him, even though he does not affirmatively espouse that view, and to a charge based thereon. State v. Williams, 29 N.J. 27, 31 (1959). (Here defendant did not suggest an accidental killing either in opening or summation). The only evidence defendant points to in support of the manslaughter possibility is Newkirk's testimony that, after the *31 decedent had been pulled out of the car and lay on the ground and McClain had left, defendant backed the car, turned it around, and "ran over the man going out the alley." The suggestion is that this language could be considered as indicative of an accidental occurrence. But this testimony has to be read in context with that of McClain and the remainder of Newkirk's, which recited defendant's assaulting and choking the decedent and saying that he was going to kill him and "was going to run him over." Taken as a whole, it cannot reasonably be said that Newkirk meant anything less than that defendant deliberately ran over decedent in the alley or that a jury could think otherwise. We are convinced the trial court properly refused to charge manslaughter as a permissible verdict.
The second claim of error in the charge, asserted as plain error since the matter was not raised at the trial, is the failure to instruct the jury that if the felony (robbery) had been completed at the time defendant rifled decedent's person before they reached the alley and some minutes prior to the killing, the felony murder rule was not applicable. Parenthetically it may be noted that, even if no felony was involved in the killing, the trial judge could have properly left to the jury under the proofs the possibility of a first degree murder conviction based on a willful, premeditated and deliberate killing. The trial court did charge that the jury could find defendant guilty of first degree murder if the killing occurred while he was engaged in perpetrating or attempting to perpetrate a robbery of decedent, but if the killing did not so occur, he could only be found guilty of second degree murder. We are satisfied that under the established law in this state the jury could properly find that the killing did occur during the perpetration of a robbery and that the trial judge's instruction in this connection was adequate and not erroneous. In fact, the charge as given was overly favorable to the defendant since, under the prosecution proofs, the court would have been justified in telling the jury that *32 the felony had not been legally completed at the time of the killing, for purposes of the felony murder rule.
This is so because New Jersey follows fully the so-called res gestae theory in this connection. That thesis is well set forth in the opinion of the Court of Errors and Appeals in State v. Gimbel, 107 N.J.L. 235, 240-241 (E. & A. 1930):
The robbery had not been completed so far as the killing in the perpetration of the robbery was present. State v. Turco, 99 N.J.L. 96, 122 A. 844 is entirely apposite on the question of robbery involved in this case. In the Turco case we held that when, incident to a robbery, one of the robbers kills a third party after the goods have been taken out of the possession of the owner (or his agents), while the robbery is complete, so as to render the perpetrators liable to conviction for it, yet the killing being done in an attempt to conceal the crime, protect the robbers in the possession of the loot and facilitate their flight, is so closely connected with the robbery as to be a part of the res gestae thereof, which may be an emanation of the act of robbery, and, although an act committed after the fact of robbery it still constitutes part of the res gestae of that act, and is murder committed in the perpetration of a robbery within the meaning of our statute, and, consequently, murder in the first degree. * * *
See also State v. Mule, 114 N.J.L. 384, 392-393 (E. & A. 1935); State v. Hauptmann, 115 N.J.L. 412, 427-428 (E. & A. 1935), cert. den. 296 U.S. 649, 56 S.Ct. 310, 80 L.Ed. 461 (1935); State v. Metalski, 116 N.J.L. 543 (E. & A. 1936); State v. Zupkowsky, 127 N.J.L. 218, 224 (E. & A. 1941). 2 Schlosser, Criminal Laws of New Jersey (3rd ed. 1970) § 57.18. Perkins, Criminal Law (1957) 35. While some jurisdictions hold that a killing occurring during an attempt to escape after the felony has taken place is not within the felony murder rule and our application of it in such situations has been the subject of dissent here (see 1 Wharton, Criminal Law and Procedure (Anderson ed. 1957) § 251, p. 541; State v. Metalski, supra, dissenting opinion, 116 N.J.L. at 553), there can be no doubt in the instant case, under the evidence for the prosecution, that this killing "was woven into the fabric of the planned crime, and was *33 inseparable from it." State v. Mule, supra, 114 N.J.L. at 392. Insofar as the felony murder rule is concerned, defendant's direction to McClain to drive into the alley after the robbery of the intoxicated victim had taken place and his statements that he was going to kill decedent because the latter knew his name clearly demonstrate that the killing must be said to legally have occurred in the perpetration of the robbery.
The third contention of error in the charge is the failure to give the "accomplice rule", i.e., a specific cautionary instruction that the evidence of an accomplice is to be carefully scrutinized and assessed in the context of his interest in the proceeding. The claim is made as plain error since the charge was not requested. Reference was, of course, intended to be made to the testimony of McClain at least, who by his own story and that of Newkirk, was a participant in the robbery. While a defendant is entitled to such a charge if requested and a judge may give it on his own motion if he thinks it advisable under the circumstances, it is generally not wise to do so absent a request, because of the possible prejudice to the defendant. State v. Begyn, 34 N.J. 35, 54-56 (1961); State v. Gardner, 51 N.J. 444, 460-461 (1968). Certainly it is not error, let alone plain error, for a trial judge to fail to give this cautionary comment where it has not been requested. In any event, in this case the jury had been told, upon cross-examination of McClain, that he had been threatened with a charge of murder unless he gave the police a statement as to defendant's acts and the court did charge that, in determining the credibility of witnesses, the jury should take into account the interest of a witness in the outcome of the trial.
Finally, defendant raises certain constitutional issues. The first concerns the selection of the jury in the light of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and State v. Mathis, 52 N.J. 238 (1968). While conceding that the jurors excused for cause because of scruples aaginst capital punishment technically met the test *34 set forth in Witherspoon and Mathis, he urges that the manner in which their questioning was conducted did not fairly examine or evaluate their positions on the death penalty and that it was too mechanical.
The point relates to 18 veniremen, out of the total of 87 examined, who were excused for this cause. 36 were also excused by consent. The prosecution exercised 11 peremptory challenges and the defense 8; neither utilized all available challenges. See R. 1:8-3 (d) (formerly R.R. 3:7-2(c)). It is especially to be noted that defendant did not object to the granting of a challenge for cause in any instance. In fact, counsel, in answer to the court's query, expressly assented each time.
The contention is based on the form of a question put to these veniremen by the judge. The inquiry was made either when the prospective juror had been adamant and positive in his views against capital punishment from the beginning of the examination or when the prior questioning, frequently quite lengthy, had produced ambiguous, equivocal or unresponsive answers. In such instances the judge would typically inquire:
When you say you don't approve of the death penalty, are you saying to me that in no event, under no circumstances, regardless of what the evidence may disclose, would you vote for the death penalty? Is that what you are saying?
This query would generally be preceded or followed by a comment reminding the examinee that the jury had the discretion and choice to decide on either life imprisonment or death after guilt had been found and by a further question inquiring whether the person was also saying that in every case he would vote for life imprisonment regardless of the proofs. If all of this produced clear and positive responses of refusal or inability to consider the death penalty, the challenge for cause was granted.
*35 The controlling principle of Witherspoon was summarized in Mathis as follows:
As we understand Witherspoon, it holds that, at least for the time being, the State is entitled to a jury which is "neutral" on the subject of penalty, and to that end may challenge for cause a juror who "would not even consider returning a verdict of death" (88 S.Ct., at p. 1776), but that a jury is not representative of the community and hence is not impartial if "it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction" (88 S.Ct. 1777). In other words, we read Witherspoon to recognize that the State is entitled to jurors who are impartial as to punishment, but it holds that a juror is impartial even though he has a bias against the State upon that topic, provided his bias is not so strong as to preclude him from considering the issue of punishment. Although a lesser bias might constitute "cause" if it ran against a defendant (i.e., racial, religious, or ethnic prejudice), the bias here involved is deemed to be logically relevant to the question whether the death penalty should be imposed in a given case and hence a jury would be unrepresentative of the community conscience if there were excluded all who would have a distaste for capital punishment. But the State is entitled to "a jury capable of imposing the death penalty" (88 S.Ct. at p. 1776; emphasis added). (52 N.J. at 243-244)
To this may be added two pertinent sentences from Witherspoon:
* * * Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial might reveal, it simply cannot be assumed that that is his position. (391 U.S. at 515, n. 9, 88 S.Ct. at 1774, 20 L.Ed.2d at 781)
* * * The most that can be demanded of a venireman in this regard is that he be willing to consider all of the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings. * * * (391 U.S. at 522, n. 21, 88 S.Ct. at 1777, 20 L.Ed.2d at 785)
See also Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970).
*36 Examination of the voir dire transcript makes it clear that the trial judge correctly understood the controlling principle. See State v. Mathis, supra (52 N.J. at 250-251). He was obviously attempting to find out from the patently adamant or the ambiguous and equivocal venireman, following the preliminary questioning, whether the prospective juryman was willing to or could consider all of the penalties provided by our law and whether he was irrevocably committed to vote against the death penalty regardless of the evidence and circumstances. Both sides, as well as the court, were entitled to a final clear and unambiguous expression of the juror's views thereon. We are satisfied the examinations were adequate, not merely perfunctory or productive only of general objections to the death penalty. While the questions pointed to might perhaps have been better framed in the affirmative rather than in the negative, it is plain to us from the transcript that the particular jurors excused for cause would have expressed the same positive opinion even if the questions had been so framed or the inquiry had been more extensive and that this was fully realized by the very experienced trial judge. We are thoroughly convinced, even without regard to defendant's acquiescence, that the questions of the judge were within the ambit of the quoted principles and that no reversible error exists in this connection. Cf. Ladetto v. Commonwealth, 356 Mass. 541, 254 N.E.2d 415 (1969).
Defendant's other constitutional argument has several facets, all of which this court has previously rejected. The first is a claim of unconstitutionality of N.J.S. 2A:113-3 precluding the death penalty if the court accepts a non vult plea to a murder indictment and is based on the claimed analogous decision of the United States Supreme Court in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). The other facets relate to claims of invalidity directed to the procedure prescribed by N.J.S. 2A:113-4 in that the same jury in the same trial determines both punishment and guilt in a first *37 degree murder case on whatever evidence may be presented and without any prescribed standards for its decision as to death or life imprisonment. The validity of our procedure in all these respects was sustained by a divided court in State v. Forcella, 52 N.J. 263 (1968), a conclusion to which we continue to adhere. These issues are, however, pending before the United States Supreme Court in cases from this and other jurisdictions having similar procedures.[1] Since a death sentence is involved, we think the entry of our judgment in this case should be withheld until that court has decided these questions definitively. Cf. State v. Conklin, 54 N.J. 540, 549-550 (1969).
The judgment of the County Court is affirmed but entry of such judgment in this court is directed to be withheld until our further order.
For affirmance but withholding entry of judgment Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN 7.
For reversal None.
NOTES
[1] Forcella filed a petition for certiorari in the United States Supreme Court on October 1, 1968. The matter was rendered moot, however, by his death from natural causes before the petition was determined and it has been dismissed for that reason. 397 U.S. 959, 90 S.Ct. 999, 25 L.Ed.2d 252 (1970). One Funicello, who was also a party involved in the Forcella appeal in this court (52 N.J. 263) joined in Forcella's petition for certiorari (No. 18 Misc.) and we understand that the petition has not yet been acted upon by the Supreme Court as to him. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374056/ | 101 Ariz. 465 (1966)
420 P.2d 940
STATE of Arizona, Appellee,
v.
Raymundo VILLEGAS, Appellant.
No. 1529.
Supreme Court of Arizona. In Division.
November 30, 1966.
*466 Darrell F. Smith, Atty. Gen., Gary K. Nelson, Asst. Atty. Gen., for appellee.
Lawrence C. Cantor, Phoenix, for appellant.
STRUCKMEYER, Chief Justice.
Appellant Raymundo Villegas was charged with the crime of robbery, in violation of A.R.S. § 13-641. After waiver of a jury, he was tried and found guilty and has appealed the conviction to this Court.
The State presented evidence showing that appellant, in the company of three other men, entered the grocery store of the complainant, Ping Hom. Hom's wife and two sons, Jerry and Terry, were with him behind the counter when the men entered. One of the men approached the counter and asked for a bottle of Cream of Kentucky whiskey. A second man took a position near the soda pop box. A third man stood near the street door. The appellant stood about fifteen feet from the counter. Mrs. Hom handed the whiskey to the first man, who then pointed a knife at her and announced that this was a holdup. Jerry Hom attempted to wrest the knife from the man's hand, but the second man grabbed a bottle of Barq's root beer and was about to strike Jerry with it, when Mr. Hom told Jerry to desist, and opened the cash register. The money in it was taken, and all four men fled. Mr. Hom followed them outside to observe the car in which they departed, and then called the police. An hour later, a police officer observed four men riding in a car that fitted Hom's description of the getaway car, and these men were taken into custody. In the car was a bottle of Cream of Kentucky whiskey with Hom's price mark on it and a bottle of Barq's root beer similar to the one handled by the man who threatened to use it as a club on Jerry Hom.
About one hour later, Mr. and Mrs. Hom were summoned to the police station to view a line-up. A police officer, John Tabor, testified that Mr. and Mrs. Hom positively identified the man who wielded the knife, but were not sure about the other three men. At the trial, however, Hom identified all four men.
The morning after the robbery, Jerry Hom identified all four men at the station. At the trial, Jerry testified as follows:
"Q [Defense Counsel] What did your father say to you when you got home that night?
"A I don't remember that.
"Q Did he say that they have caught the four men?
"A Yes. No, he said * * * he saw one of them real clearly, except he wasn't sure about the rest of them.
"Q But he said that they had in essence, something like, `They have caught the men that robbed us?'
"A Yes, sir."
Appellant argues that the trial court erred in allowing hearsay evidence concerning identifications made at the police station by Hom, Jerry Hom and Officer Tabor. We have previously rejected this proposition in State v. Taylor, 99 Ariz. 151, 407 P.2d 106, for the reason that such identifications are more reliable than later ones. The principal objection to hearsay evidence is not present because the witness is available for cross-examination as to his conduct and statements made at the time of the identification. State v. Miranda, 98 Ariz. 11, 401 P.2d 716.
Appellant next attacks the identification because made at a line-up when only the accused were present in the line. He cites several cases from courts of other states to support his position. We believe, however, that any deficiencies in line-up go to the credibility of the evidence and not to its admissibility. See People v. Branch, 127 Cal. App. 2d 438, 274 P.2d 31; and People v. Brinkley, 33 Ill. 2d 403, 211 N.E.2d 730.
Appellant next urges that the trial court erred in taking under advisement its ruling on his motion for a directed verdict of acquittal made at the close of the State's case and thereafter, at the close of the entire case, denying the motion. Appellant *467 argues that prejudice resulted from the court's failure to rule, because it forced him to take the stand, at which time he admitted his presence at the scene of the crime, thereby providing the evidence the absence of which was one of the grounds for his motion.
There is precedent for holding that the reservation of a ruling on a motion for directed verdict made at the close of the State's case is reversible error. See Jackson v. United States, 5 Cir., 250 F.2d 897; Bennett v. People of State of Colorado, 155 Colo. 101, 392 P.2d 657; Adams v. State (Fla.App. 1958), 102 So. 2d 47. We think, however, that a defendant can protect himself against being forced into a premature election by refusing either to rest or to introduce evidence until the trial judge rules on the motion. This state has held for over fifty years that where a motion to acquit made at the close of the State's case is overruled and the
"defendant elects to go forward with his proof and does not stand on his motion, he takes the chances of having deficiencies in the state's case supplied by later testimony of either the defense or prosecution. [On appeal] the question of the sufficiency of the evidence to sustain the verdict * * * is then determined * * * by a consideration of all the evidence presented in the case." State v. Weis, 92 Ariz. 254, 261, 375 P.2d 735, 740.
A defendant is in no worse position where a ruling has been reserved than where his motion for acquittal has been erroneously overruled. If the court had denied his motion, he then would have had the choice of resting or of introducing further testimony. Since he elected to introduce other testimony, we will not place him in a better position than if the court had denied his motion at the conclusion of the State's case.
Appellant argues that the evidence at the close of the State's case was not sufficient to warrant a conviction, and that the motion for a directed verdict should have been sustained. Likewise, he argues, the evidence at the conclusion of the case was insufficient to support a finding of guilty and this Court should reverse the trial court.
Since, as we have seen, error, if any, in not directing a verdict at the close of the State's case, was waived by appellant's proceeding with his case, it is with the evidence as a whole that we are concerned rather than with just the State's evidence. Appellant's position is that mere presence at the scene of a crime is not enough to justify a finding that the accused aided and abetted in the commission of the robbery. With this abstract legal proposition, we agree. State v. Sims, 99 Ariz. 302, 409 P.2d 17.
However, in the instant case we are not dealing with the mere presence of the appellant. Appellant had known his companions for several years, and knew that one of them had a criminal record. He was with them from 9:30 or 10:00 a.m. the day of the robbery until the evening of the robbery, riding around and drinking with them in the car that took them to the scene of the crime; they arrived at the scene together; they deployed themselves for maximum intimidation and efficiency, with one man threatening the proprietress, one nearby to assault anyone who interfered, one at the door as a lookout, and the appellant between the door and the action. Appellant saw the robbery take place and saw the second man raise the root beer bottle over Jerry Hom's head, but said nothing and did nothing; he saw the money taken; he fled with the others; he drove away with them in the car. He was still in the car with the others when he was apprehended an hour later.
Opposed to these facts is appellant's disclaimer of any knowledge that his companions were going to engage in a robbery. His testimony that he left when he saw what was taking place is contradicted by the other witnesses. Such exculpatory testimony is of a nature that is easy to fabricate and virtually impossible to disprove.
*468 The trial court saw the appellant's demeanor on the witness stand, and was in a position to judge appellant's truthfulness. On appeal, we will view the evidence in its strongest light in favor of the trial court's finding of guilty, and all reasonable inferences therefrom must be taken against the accused. State v. Jackson, 101 Ariz. 399, 420 P.2d 270 (1966); State v. Denton, 101 Ariz. 455, 420 P.2d 930 (decided 11/22/66); State v. Reyes, 99 Ariz. 257, 408 P.2d 400; State v. Galbreath, 97 Ariz. 361, 400 P.2d 842; State v. Perez, 94 Ariz. 290, 383 P.2d 745; State v. Mathis, 92 Ariz. 194, 375 P.2d 388.
Whether appellant aided and abetted his companions in the commission of this robbery is a difficult question. Cases can be found to support and refute convictions in a wide variety of circumstances. We believe that the following language, taken from People v. Moore, 120 Cal. App. 2d 303, 260 P.2d 1011, is applicable. In that case, the accused "just stood at the steps. He did not do nothing. He did not say nothing; he just stood there." The Court said:
"The presence of one at the commission of a felony by another is evidence to be considered in determining whether or not he was guilty of aiding and abetting; and it has also been held that presence, companionship, and conduct before and after the offense are circumstances from which one's participation in the criminal intent may be inferred." 120 Cal. App.2d at p. 306, 260 P.2d at p. 1013.
See also State v. Thompson, 101 Ariz. 38, 415 P.2d 566, in which a conviction was upheld where the accused did not even enter the store but remained outside in the automobile used by the perpetrators to make their escape.
It is difficult to believe that three persons would plan a robbery and take along with them a fourth who, being ignorant of their plans, might decide that he would oppose their criminal action or later inform against them. It was within the peculiar province of the trial judge to infer the presence or absence of a criminal intent and of a concert of action among the persons present at the time of the offense.
Judgment affirmed.
BERNSTEIN, V.C.J., and UDALL, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1062840/ | 657 S.E.2d 796 (2008)
51 Va. App. 337
Wilbert ABNEY, Jr.
v.
COMMONWEALTH of Virginia.
Record No. 1366-06-4.
Court of Appeals of Virginia, Alexandria.
March 4, 2008.
*798 Dawn M. Butorac, Assistant Public Defender (Whitney E. Minter, Assistant Public Defender; Office of the Public Defender, on brief), for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Present: FITZPATRICK, S.J., McCLANAHAN and PETTY, JJ.
McCLANAHAN, Judge.
A jury convicted Wilbert Abney, Jr., of first-degree murder (Code § 18.2-32). On appeal, Abney contends the trial court committed reversible error in admitting certain evidence in violation of the hearsay rule and/or his Sixth Amendment right to confront witnesses. For the following reasons, we affirm Abney's conviction.
I. BACKGROUND
On appeal, we review the evidence in the light most favorable to the Commonwealth, as the prevailing party at trial. Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). That principle requires us to "discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true all the credible evidence favorable to the Commonwealth and all fair inferences that may be drawn therefrom." Kelly v. Commonwealth, 41 Va.App. 250, 254, 584 S.E.2d 444, 446 (2003) (en banc) (internal quotation marks and citations omitted).
It is undisputed that Abney killed his wife, Mona, by strangling her with a belt wrapped around her neck. The issue at trial was whether Abney murdered her or killed her by accident.
Abney's wife was found dead in a hotel room in Fairfax County in January 1978. Her body was on the floor, unclothed from *799 the waist down, with multiple abrasions on the neck. Police suspected her death was a homicide, involving sexual assault. Dr. James Beyer, a medical examiner, conducted an autopsy and concluded the cause of death was "asphyxiation secondary to strangulation (ligature)," as stated in his autopsy report. During the autopsy, Dr. Beyer took vaginal swabs from the victim, which revealed the presence of semen in the victim's vaginal area. At that time, however, DNA analysis on the semen (which would later be conducted and identify Abney as the donor) was not available to the police. Throughout this initial investigation, Abney represented to police that his wife had traveled alone to Fairfax County for an overnight shopping trip and that he was at their home in Richmond at the time of her death. He also claimed he had not engaged in sexual intercourse with his wife in several weeks due to her recent gynecological problems. Though Abney was a suspect, the police eventually closed the investigation of the case as an unsolved homicide.
Shortly after Mona's death, Abney filed a claim for benefits under a large life insurance policy on her. Abney had made an application for the policy less than two months prior to her death. When the insurance company refused to pay, Abney sued the company. The case was dismissed on the ground that the policy never went into effect due to questions regarding Mona's health in the application process. In defending the case, the company obtained an affidavit from L. Davis, who was Abney's girlfriend around the time of his wife's death. Davis' affidavit, which she executed in November 1978, set forth details of her relationship with Abney. She also testified about their relationship at a hearing in the case.
In 2004, twenty-six years after Mona's death, the cold case unit of the Fairfax County Police Department re-opened the homicide case. At that time, DNA analysis was available, and was conducted on both the semen sample that had been retained from the original investigation and a current buccal sample from Abney. The DNA analysis resulted in a match of the DNA profile of both samples.
During Abney's first meeting with Fairfax County Police Detectives Steven Milefsky and Robert Murphy, in September 2004, Abney stated he could not remember if he and his wife had engaged in sexual intercourse around the time of her death. In April 2005, the detectives met again with Abney and advised him of the results of the DNA analysis. He then finally admitted that he had sex with his wife shortly before her death and that he lied about it to the police during the initial investigation and during his testimony in the trial on his claim to the life insurance benefits. However, he still denied he had been in his wife's hotel room or had anything to do with her death.
Detectives Milefsky and Murphy then met with Abney in May 2005, at which time he admitted to killing his wife, but claimed it was an accident. According to Abney at this meeting, Mona called and asked him to come to her hotel room. When he arrived, she wanted to engage in "what [Abney] described as kinky sexual intercourse, that she would be choked while [they were] having sex, and her preference was even further that she wanted him to be behind her" while engaged in the act. Abney also told the detectives that, because he was not able to use his hands to choke her when they had sexual intercourse in that manner, he choked her with his belt. In the past, she would "tap him on the leg if it got too tight." This time, however, "she just went limp" and died. Abney gave the same explanation for his wife's death during his testimony at trial, adding that they were engaged in what is known as "erotic asphyxiation" at the time of her death.
Abney was indicted on the charge of first-degree murder. His jury trial was in March 2006. The Commonwealth prosecuted its case against Abney on the theory that his motive for murdering his wife was to collect proceeds from the large life insurance policy on her, and to enable him to pursue his obsessive relationship with his girlfriend at that time, L. Davis.
At trial, Abney objected to, inter alia, the Commonwealth's introduction of: (i) Davis' testimony in the form of past recollection recorded, consisting of her recitation of *800 portions of her affidavit given during the 1978 litigation over the subject life insurance policy; (ii) the autopsy report and accompanying expert testimony based on the report; and (iii) a request for analysis and two certificates of analysis offered to establish the chain of custody of the vaginal swabs taken during the victim's autopsy. The trial court overruled Abney's objections and admitted the evidence.
The jury convicted Abney of first-degree murder as charged. This appeal followed in which Abney challenges the trial court's evidentiary rulings.
II. ANALYSIS
"Decisions regarding the admissibility of evidence `lie within the trial court's sound discretion and will not be disturbed on appeal absent an abuse of discretion.'" Michels v. Commonwealth, 47 Va.App. 461, 465, 624 S.E.2d 675, 678 (2006) (quoting Breeden v. Commonwealth, 43 Va.App. 169, 184, 596 S.E.2d 563, 570 (2004)). "Only when reasonable jurists could not differ can we say an abuse of discretion has occurred." Tynes v. Commonwealth, 49 Va.App. 17, 21, 635 S.E.2d 688, 689 (2006) (citation and internal quotation marks omitted). However, to the extent the trial court makes an error of law in the admission of evidence, "an abuse of discretion occurs." Bass v. Commonwealth, 31 Va.App. 373, 382, 523 S.E.2d 534, 539 (2000). Furthermore, such evidentiary issues presenting a "question of law" are "reviewed de novo by this Court." Michels, 47 Va.App. at 465, 624 S.E.2d at 678 (whether certificates from governmental agency were "testimonial hearsay" implicating the Confrontation Clause was subject to de novo review).
A. Davis' Affidavit
Davis reviewed her 1978 affidavit arising from the litigation involving the subject life insurance policy, and the transcript of her testimony in that case, to refresh her memory in preparation for her testimony at Abney's criminal trial. Having done so, Davis, based on her independent recollection, testified at trial to a number of details regarding her relationship with Abney during the period of December 1977 through February 1978 (a period both before and after the time of Mona's death). There were other details in her affidavit, however, which she could not independently recall after reviewing the affidavit. Consequently, the Commonwealth introduced Davis' recitation of those portions of her affidavit. The Commonwealth based the introduction of this part of her testimony on the "past recollection recorded" exception to the hearsay rule. See Scott v. Greater Richmond Transit Co., 241 Va. 300, 305, 402 S.E.2d 214, 218 (1991) ("When a witness reads a record of past recollection to a jury, he merely is telling the jury what he knew and recorded at a prior time, but has since forgotten.").
Abney contends this testimony did not qualify under the "past recollection recorded" hearsay exception. Alternatively, Abney argues the testimony consisted of "testimonial hearsay" prohibited under the Confrontation Clause of the Sixth Amendment, as interpreted in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
(i)
"The general rule of past recollection recorded allows, over a hearsay objection, a witness with no independent recollection of an incident to testify directly from [some form of written document] if certain requirements are met." Bailey v. Commonwealth, 20 Va.App. 236, 240, 456 S.E.2d 144, 146 (1995). The foundational requirements for this hearsay exception are as follows:
"(1) the witness must have had firsthand knowledge of the event; (2) the written statement must be an original memorandum made at or near the time of the event, when the witness had a clear and accurate memory of it; (3) the witness must lack a present recollection of the event; and (4) the witness must vouch for the accuracy of the written memorandum."
Id. at 240-41, 456 S.E.2d at 146 (quoting James v. Commonwealth, 8 Va.App. 98, 102, 379 S.E.2d 378, 380-81 (1989)). Furthermore, "`it is not essential that the record of past recollection shall have been made by the witness, if he knows that it is true as written. *801 It is sufficient if the memorandum was made by someone else but has been examined by the witness and is known by him to be correct.'" Id. at 241, 456 S.E.2d at 146 (quoting 81 Am.Jur.2d Witnesses § 783 (1992)).
Abney acknowledges that Davis "had first hand knowledge of the events for which she testified," i.e., the events involving her relationship with him, and that she "lacked a present recollection of [some of those] events." Abney contends, however, in reference to foundational requirements two and four of the above-stated rule, that Davis' affidavit was not timely when given in November 1978 and that she did not adequately vouch for its accuracy during her testimony at Abney's criminal trial. Thus, Abney argues, the trial court erred in allowing Davis to read portions of her affidavit to the jury on the basis of the "past recollection recorded" hearsay exception. We disagree.
Abney contends the affidavit was not timely because Davis executed the affidavit ten months after the occurrence of the "events" she described in it. The trial court rejected this argument, finding that this foundational requirement was met. Given the nature of the events set forth in the affidavit, we cannot say the trial court abused its discretion in making that finding. See Stevens v. Commonwealth, 46 Va.App. 234, 246, 616 S.E.2d 754, 760 (2005) ("[W]hether [an evidentiary] foundation is sufficient is a question within the sound discretion of the trial judge." (citation and internal quotation marks omitted)). What Davis recounted from memory in her affidavit was not some highly technical information or some incident of which she had only been a disinterested and casual observer. Rather, Davis recited facts about her intimate relationship with Abney over a period of approximately two-and-a-half months, including places they went, things they did, and conversations they had, which were "events" she reasonably could have accurately recalled ten months later. See United States v. Williams, 571 F.2d 344 (6th Cir.1978) (affirming admission of statement given by witness to Secret Service agent six months after the events recited in the statement, under past recollection recorded rule); see generally, Kent Sinclair, Joseph C. Kearfott, Paul F. Sheridan, & Edward J. Imwinkelried, Virginia Evidentiary Foundations § 9.6[A] (2007) (characterizing the timeliness requirement in terms of whether the witness made or adopted a record of the facts "when the matter was fresh in the witness's memory").
We further find no merit in Abney's argument that Davis did not adequately vouch for the accuracy of her affidavit. Davis testified that she went to an attorney's office in 1978, in conjunction with the litigation involving the insurance policy on Mona, and gave a statement in the presence of two lawyers and a court reporter. Davis was "sure" that she then reviewed her affidavit containing the information from her recorded statement. She stated unequivocally that the information she provided in her statement, as subsequently set forth in her affidavit, was "[t]rue." In terms of her recollection of that information at the time she gave her statement, she considered it "[p]robably crystal clear on many points." Davis also identified her affidavit, dated November 14, 1978, and remembered signing it before a notary public, and, as indicated on the affidavit, it was both "[s]ubscribed and sworn to" by Davis. Finally, the trial court found Davis to be a credible witness. Based on these facts, viewed in the light most favorable to the Commonwealth, we find no abuse of discretion in the trial court's determination that the vouching foundation requirement to the "present recollection recorded" doctrine was met.
(ii)
We also reject Abney's alternative argument, as did the trial court, that the portion of Davis' testimony admitted as a "past recollection recorded" hearsay exception violated his Sixth Amendment right to confront witnesses against him, as a matter of law, based on the Crawford decision.
In Crawford, the United States Supreme Court held that the Confrontation Clause prohibits the introduction of "testimonial hearsay" in a criminal trial where the declarant is unavailable to testify and the defendant had no prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at 68, *802 124 S. Ct. 1354. Abney asserts that Davis' affidavit constituted testimonial hearsay, as defined in Crawford, and that he had no prior opportunity to cross-examine her on it. He then asserts that, because Davis did not have an independent recollection of the events she read into evidence from her affidavit, she was effectively "unavailable for purposes of the Sixth Amendment." Thus, Abney argues, he was "denied his constitutional right to fully cross-examine the witnesses against him" at trial.[1]
We find no support for Abney's argument in Crawford. The Supreme Court made clear in Crawford that the Confrontation Clause applies only to "testimonial statements of witnesses absent from trial." Crawford, 541 U.S. at 59, 124 S. Ct. 1354. "[W]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. It is therefore irrelevant that the reliability of some out-of-court statements cannot be replicated, even if the declarant testifies to the same matters in court." Id. at 59 n. 9, 124 S.Ct. at 1369 (citations and internal quotation marks omitted). See Blackman v. Commonwealth, 45 Va.App. 633, 644, 613 S.E.2d 460, 466 (2005) ("For all its novelty, . . . Crawford confirms the traditional view that the Confrontation Clause `does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.'" (quoting Crawford, 541 U.S. at 59 n. 9, 124 S. Ct. 1354)).
This explanation in Crawford is consistent with previous pronouncements by the Supreme Court on the scope of the Confrontation Clause, as it relates to Abney's argument. In Delaware v. Fensterer, 474 U.S. 15, 21-22, 106 S. Ct. 292, 295-96, 88 L. Ed. 2d 15 (1985) (per curiam), the Court stated: "The Confrontation Clause includes no guarantee that every witness called by the prosecution will refrain from giving testimony that is marred by forgetfulness, confusion, or evasion." Similarly, in United States v. Owens, 484 U.S. 554, 108 S. Ct. 838, 98 L. Ed. 2d 951 (1988), the Court explained that "the Confrontation Clause guarantees only an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Id. at 559, 108 S.Ct. at 842-43 (citations and internal quotation marks omitted). In short, as the Supreme Court stated in California v. Green, 399 U.S. 149, 157, 90 S. Ct. 1930, 1934-35, 26 L. Ed. 2d 489 (1970), "it is this literal right to `confront' the witness at the time of trial that forms the core of the values furthered by the Confrontation Clause." (Emphasis added.)[2]
Accordingly, courts in a number of other jurisdictions, both before and after Crawford, *803 have held that the past recollection recorded hearsay exception does not violate the Confrontation Clause where the declarant, despite his or her memory loss, was subject to cross-examination as a witness at trial. See, e.g., pre-Crawford cases: Isler v. United States, 824 A.2d 957, 961 (D.C.App. 2003); United States v. Picciandra, 788 F.2d 39, 42-43 (1st Cir.1986); United States v. Riley, 657 F.2d 1377, 1385-86 (8th Cir.1981); United States v. Marshall, 532 F.2d 1279, 1285-86 (9th Cir.1976); United States v. Kelly, 349 F.2d 720, 770-71 (2d Cir.1965); post-Crawford cases: State v. Real, 214 Ariz. 232, 150 P.3d 805, 806-09 (2007); People v. Linton, 21 A.D.3d 909, 800 N.Y.S.2d 627, 628 (N.Y.App.Div.2005); State v. Gorman, 854 A.2d 1164 (Me.2004); Clark v. State, 808 N.E.2d 1183, 1189-90 (Ind.2004). See also Advisory Committee Notes to Fed.R.Evid. 803(5) ("Recorded Recollection") (explaining that courts accept the hearsay exception for recorded recollection despite Confrontation Clause challenges, citing Kelly, 349 F.2d at 770).[3]
Here, Davis was available at trial and extensively cross-examined by the defense. Among other things, defense counsel closely questioned Davis regarding the circumstances under which she gave her affidavit, even though she did not independently recall certain portions of the information in it. She was nevertheless extensively cross-examined as to both what she could and could not presently recall, as well as the details of what she did remember. Davis was also subject to cross-examination regarding any bias she may have had against Abney at the times in question. We thus conclude that Abney's constitutional right to confront witnesses against him was met here, where he had "`an opportunity, not only of testing the recollection and sifting the conscience of [this] witness, but of compelling [her] to stand face to face with the jury in order that they [could] look at [her], and judge by [her] demeanor upon the stand and the manner in which [she gave her] testimony whether [she was] worthy of belief.'" Green, 399 U.S. at 157-58, 90 S.Ct. at 1934-35 (quoting Mattox v. United States, 156 U.S. 237, 242-43, 15 S. Ct. 337, 339-40, 39 L. Ed. 409 (1895)).
B. The Autopsy Report and Accompanying Expert Testimony
Dr. James Beyer performed the autopsy and prepared the autopsy report on the victim. Dr. Beyer was deceased, however, at the time of Abney's criminal trial. The Commonwealth introduced the autopsy report at trial through Dr. Frances Field, an assistant chief medical examiner for the Commonwealth. Dr. Field testified, as an expert in forensic pathology, that the cause of the victim's death was "[a]sphyxiation secondary to strangulation by ligature," the same cause of death stated in the autopsy report. Dr. Field reached this conclusion, as she explained, based on her "review of Dr. Beyer's autopsy report and the photographs taken at the autopsy." Dr. Field then described the features on the victim's body, as noted in the autopsy report and as shown in the autopsy photographs, all of which, according to Dr. Field, were consistent with strangulation of the victim by ligaturea ligature being "an article put around the neck to cause strangulation."
Abney argues the admission of the autopsy report, along with Dr. Field's testimony as to the cause of death, violated his Sixth Amendment right to confront witnesses against him, based, again, on Crawford. More specifically, Abney argues that the autopsy report was testimonial hearsay. Thus, according to Abney, because Dr. Beyer was not available to testify at trial regarding the autopsy report, Abney "must have been given a prior opportunity to cross-examine Dr. Beyer," but "he was not given that opportunity." Consequently, Abney argues, this "testimonial" evidence was inadmissible, as the "two prong *804 Crawford test" of "unavailability" and a "prior opportunity to cross-examine the declarant" was not met. For the same reasons, Abney argues that Dr. Field's testimony as to the cause of the victim's death was inadmissible, because that opinion was, in turn, based on inadmissible evidence under Crawford, i.e., the autopsy report. Abney further asserts that Code § 19.2-188, which provides for the admissibility of an autopsy report made by a medical examiner without requiring the examiner to testify, was rendered unconstitutional under the holding in Crawford. The Commonwealth argues that Abney's contentions are without merit because the autopsy report was not testimonial evidence for purposes of the Confrontation Clause, as defined in Crawford and its progeny.
It is a well established principle of appellate review that this Court should not decide constitutional questions "`if the record permits final disposition of a cause on non-constitutional grounds.'" Luginbyhl v. Commonwealth, 48 Va.App. 58, 64, 628 S.E.2d 74, 77 (2006) (en banc) (quoting Keller v. Denny, 232 Va. 512, 516, 352 S.E.2d 327, 329 (1987)). Similarly, we should decide cases "`on the best and narrowest ground available.'" Id. (quoting Air Courier Conference v. Am. Postal Workers Union, 498 U.S. 517, 531, 111 S. Ct. 913, 921-22, 112 L. Ed. 2d 1125 (1991) (Stevens, J., concurring)).
We thus assume without deciding, for purposes of this appeal, that the admission of both the autopsy report and Dr. Field's testimony as to the cause of death based on that report was prohibited under the Confrontation Clause. We do so because it is unnecessary for us to decide that issue. In light of Abney's confession as to the cause of death, as adduced at trial, we conclude that any error in the admission of the autopsy report and Dr. Field's subject testimony was harmless beyond a reasonable doubt. See Luginbyhl, 48 Va.App. at 64, 628 S.E.2d at 77 (violations of the Confrontation Clause are subject to harmless error review (citing United States v. McClain, 377 F.3d 219, 222 (2d Cir.2004))).
"When a federal constitutional error is involved, a reviewing court must reverse the judgment unless it determines that the error is harmless beyond a reasonable doubt." Clay v. Commonwealth, 262 Va. 253, 259, 546 S.E.2d 728, 731 (2001). "`We decide whether the erroneous admission of evidence was sufficiently prejudicial to require reversal on the basis of our own reading of the record and on what seems to us to have been the probable impact on the fact finder.'" Corado v. Commonwealth, 47 Va.App. 315, 323, 623 S.E.2d 452, 456 (2005) (quoting Green v. Commonwealth, 32 Va. App. 438, 446, 528 S.E.2d 187, 191 (2000)). "`An error is harmless only when it plainly appears from the record and the evidence that the error has not affected the verdict. Whether an error does not affect the verdict must be determined without usurping the jury's fact finding function.'" Id. (quoting Hooker v. Commonwealth, 14 Va.App. 454, 457, 418 S.E.2d 343, 345 (1992)).
In this case, Abney confessed to Detectives Milefsky and Murphy, as they testified at trial, that he strangled his wife to death with a ligature, his belt. Abney claimed it was an accident, however, that occurred when he and his wife were engaged in what he described as "kinky" sex. Abney made the same admission when he testified at trial, while still claiming he killed her by accident. He further described the act of strangling her with his belt wrapped around her neck, while they were engaged in sexual intercourse, as "erotic asphyxiation."[4]
Given Abney's own testimony, as well as his admission to police, there was no dispute whatsoever at trial as to (a) the fact that Abney killed his wife, and (b) the manner in which he killed her, which was precisely the stated cause of death in the autopsy report and by Dr. Field in her testimony at trial: asphyxiation secondary to strangulation by ligature. The issue at trial was, instead, whether Abney, in strangling his wife to death with his belt, intended to kill her, or *805 killed her by accident. Therefore, any error in the admission of the autopsy report, and Dr. Field's testimony as to the cause of death based on that report, was harmless beyond a reasonable doubt, as "`it plainly appears from the record'" that such error "`has not affected the verdict.'" Corado, 47 Va.App. at 323, 623 S.E.2d at 456 (quoting Hooker, 14 Va.App. at 457, 418 S.E.2d at 345).
C. Request for Analysis and Certificates of Analysis on Vaginal Swabs
Finally, Abney challenges the trial court's admission of three documents introduced by the Commonwealth pertaining to the chain of custody and analysis of the vaginal swabs taken from the victim's body at the autopsy. The first of these documents is a "Request for Laboratory Examination," dated January 29, 1978, indicating Dr. Beyer's transfer of the swabs to the Commonwealth's forensic laboratory for analysis. The second document is a "Certificate of Analysis," dated March 2, 1978, consisting of the first page of what appears to be a three-page report, which indicates the return of the swabs from the laboratory to the Fairfax County Police Department. The third document is a "Certificate of Analysis," dated October 28, 2004, consisting of a duly certified two-page report summarizing the DNA analysis of the semen sample on the swabs and Abney's buccal sample, which resulted in matching DNA profiles. Abney argues that the documents were admitted into evidence in violation of the hearsay rule, the Confrontation Clause, as applied in Crawford, and/or other evidentiary principles specifically governing chain of custody issues.
We dispose of these arguments in the same way and for the same reasons that we dispensed with Abney's arguments regarding the admission of the autopsy report and Dr. Field's testimony. Assuming without deciding that admitting Dr. Beyer's request for analysis and the two certificates of analysis was constitutional error, we conclude that such error was harmless beyond a reasonable doubt.
Absent this documentary evidence, Abney asserts, there would have been no DNA evidence against him, and, without it, the Commonwealth would not have been able to establish his guilt. More specifically, Abney contends that, without such evidence, the Commonwealth could not have "impeach[ed][his] 1978 statement to the police regarding his prior sexual contact with his wife," nor could the Commonwealth have "establish[ed][his] presence in the hotel room on the night of [his wife's] death." The DNA evidence was, no doubt, significant in aiding the police in their investigation, and in leading to Abney's indictment. The obvious fallacy in Abney's contention, however, is that, at trial, there was no dispute about the fact that he killed his wife, as well as the fact that he had sexual intercourse with her shortly before her death, based on his confession to the police and his own testimony at trial. The record thus clearly establishes that any error in admitting the DNA evidence was harmless beyond a reasonable doubt.
III. CONCLUSION
For these reasons, we affirm Abney's conviction.
Affirmed.
NOTES
[1] For purposes of this argument, we assume without deciding that Davis' affidavit constituted "testimonial hearsay" under Crawford. We need not decide that issue because we conclude that Davis was available for cross-examination in accordance with the Confrontation Clause and, thus, on this basis alone, Abney's argument fails.
[2] Issues regarding memory loss for hearsay purposes and what constitutes availability for cross-examination for purposes of the Confrontation Clause are subject to distinct considerations; and the overriding constitutional consideration in this context is that the lack of memory of a witness at trial does not necessarily implicate the Confrontation Clause. See Owens, 484 U.S. 554, 108 S. Ct. 838, 98 L. Ed. 2d 951 (holding Confrontation Clause not violated by admission of testimony concerning prior, out-of-court identification where the identifying witness/victim was unable, because of memory loss, to explain at trial the basis for identifying defendant to an FBI agent while witness was being hospitalized for his injuries); Fensterer, 474 U.S. 15, 106 S. Ct. 292, 88 L. Ed. 2d 15 (holding Confrontation Clause not violated where expert witness testified as to what opinion he had formed, but could not recollect the basis on which he had formed it). As explained in Owens, the fact that a witness' testimony is "`marred by forgetfulness, confusion, or evasion'" does not mean that the defendant has not been given his right to cross-examine the witness as guaranteed by the Confrontation Clause. Owens, 484 U.S. at 558, 108 S. Ct. 838 (quoting Fensterer, 474 U.S. at 22, 106 S. Ct. 292). "`To the contrary, the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony.'" Id. Thus, the Supreme Court further stated: "The weapons available to impugn the witness' statement when memory loss is asserted will of course not always achieve success, but successful cross-examination is not the constitutional guarantee." Id. at 560, 108 S.Ct. at 843. As indicated above, Crawford did not change the applicability of these principles.
[3] See also United States v. Ghilarducci, 480 F.3d 542, 548-49 (7th Cir.2007); State v. Rockette, 294 Wis. 2d 611, 718 N.W.2d 269, 275-77 (2006); State v. Pierre, 277 Conn. 42, 890 A.2d 474, 495-502 (2006); State v. Price, 158 Wash.2d 630, 146 P.3d 1183, 1186-93 (2006); People v. Sharp, 355 Ill.App.3d 786, 292 Ill. Dec. 118, 825 N.E.2d 706, 710-15 (2005); and People v. Candelaria, 107 P.3d 1080, 1086 (Colo.Ct.App.2004) (all addressing similar issues under Crawford, and holding that Confrontation Clause was not violated by introduction of witness' prior out-of-court statement).
[4] In response to defense counsel's questions on cross-examination, Dr. Field explained that "erotic asphyxiation" is the act of one person cutting off the supply of blood to the head of another by "put[ting] something around her neck in order to heighten sexual response." | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374028/ | 220 Ga. 801 (1965)
142 S.E.2d 239
TAYLOR
v.
THE STATE.
22891.
Supreme Court of Georgia.
Submitted March 8, 1965.
Decided April 8, 1965.
*802 Sullivan, Herndon & Smith, for plaintiff in error.
Andrew J. Ryan, Jr., Solicitor General, Andrew J. Ryan, III, Eugene Cook, Attorney General, Rubye G. Jackson, Assistant Attorney General, contra.
GRICE, Justice.
The denial of a motion for new trial following a conviction of murder is here for review. Bobby Taylor was indicted by the grand jury of Chatham County for the murder of Walter Myers, and upon trial in the superior court of that county was found guilty with a recommendation of mercy. His motion for new trial contains the general as well as five special grounds.
1. The general grounds are without merit since the verdict was amply supported by the evidence. There was testimony from which the jury was authorized to find that the defendant, without provocation or justification, drew a knife and fatally stabbed the deceased.
2. The first special ground, complaining of admission in evidence of testimony as to a threat made against the deceased by the defendant a considerable time prior to the homicide, was expressly abandoned in this court and therefore will not be considered.
3. The second special ground asserts that, for certain specified reasons, the trial court erred in admitting in evidence the defendant's purported confession. However, that statement was admitted without objection by the defendant, and for this reason alone this ground of the motion is without merit. Hill v. State, 214 Ga. 794 (1) (107 SE2d 662). *803 4. Special ground 3 contends that the trial court should have charged on the principle of mutual combat. But the evidence shows no agreement or mutual intention of the deceased and the defendant to fight. Mutual combat was not involved so as to require a charge thereon. Porter v. State, 213 Ga. 325 (99 SE2d 110). See also, Mathis v. State, 196 Ga. 288 (26 SE2d 606). This ground was properly overruled.
5. Special ground 4 insists that a portion of the charge on the principle of reasonable fears was erroneous because that principle has no connection with the offense of voluntary manslaughter, which was charged simultaneously. The portion of the charge complained of was as follows: "A bare fear of any of these offenses, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable man and that the party killing really acted under the influence of those fears and not in a spirit of revenge." This portion was not given simultaneously with that as to voluntary manslaughter, as contended. It was given as a part of the charge on justifiable homicide. The language objected to was given immediately after the definition of justifiable homicide and immediately preceding further exposition of that defense. It is the verbatim language of Code § 26-1012, which relates to justifiable homicide. This ground of the motion for new trial is without merit.
6. Special ground 5 urges that the following portion of the charge was error: "If the jury should believe that the defendant killed the person in the indictment and in the manner therein set forth, but that at the time of the killing, the deceased was committing or attempting to commit a serious injury on the person of the defendant less than a felony or that the circumstances were such as to justify the fears of a reasonable man that the deceased intended, endeavored or was about to commit a serious personal injury on the person of the defendant less than a felony, or that other equivalent circumstances surrounding the killing were such as to justify the excitement of passion and to exclude all idea of deliberation or malice, either express or implied, then *804 in that event, the jury would be authorized to convict the defendant of voluntary manslaughter."
Complaint is made that this portion of the charge tended to confuse and remove from the jury's mind the idea of acquittal even though the defendant was endeavoring to protect himself against an assault by the deceased, and that it erroneously mingled the principle of reasonable fears with the crime of voluntary manslaughter.
This portion of the charge was not subject to this criticism.
In our view, it correctly instructed the jury as to the relationship between reasonable fears of an injury less than a felony and the crime of voluntary manslaughter.
It was in accordance with the rule applied to a similar charge in Johnson v. State, 72 Ga. 679 (1), 695. There, this court said: "If the facts and circumstances surrounding the accused were such as to excite the fears of a reasonable man that a joint felonious assault was being made upon him, the verdict should be justifiable homicide; it should be voluntary manslaughter, if they were such only as to excite the fears of a reasonable man that some bodily harm less than a felony was imminent and impending; it should be murder, if the circumstances were not such as to excite the fears of a reasonable man that he was in any serious danger at all." (Emphasis ours.) See also, Keener v. State, 18 Ga. 194 (10) (63 AD 269); Battle v. State, 103 Ga. 53, 60 (29 S.E. 491).
This charge was not contrary to the holdings of such cases as Rawls v. State, 160 Ga. 605 (2) (128 S.E. 747), and Booker v. State, 183 Ga. 822 (4) (190 S.E. 356), that the doctrine of reasonable fears has no connection with the offense of voluntary manslaughter. Although the doctrine of reasonable fears does not constitute a defense to voluntary manslaughter so as to authorize an acquittal, it does apply in determining whether the homicide was voluntary manslaughter rather than murder. Johnson v. State, 72 Ga. 679 (1), supra; Gresham v. State, 70 Ga. App. 80 (2) (27 SE2d 463).
This ground of the motion for new trial was not meritorious.
Since the denial of the motion shows no error, the judgment is
Affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374026/ | 111 Ga. App. 532 (1965)
142 S.E.2d 313
ADAMSON
v.
MADDOX.
41159.
Court of Appeals of Georgia.
Submitted February 3, 1965.
Decided April 6, 1965.
*533 Victor Higgins, Barrett & Hayes, Mose S. Hayes, for plaintiff in error.
Grant, Spears & Duckworth, Wm. G. Grant, Hodges & Oliver, G. Robert Oliver, contra.
BELL, Presiding Judge.
1. As the plaintiff amended his petition to meet the order sustaining the general demurrer to the original petition and allowing him time within which to amend the petition, he thereby acquiesced in the order, and cannot now be heard to object to it. Sherling v. Continental Trust Co., 175 Ga. 672 (1) (165 S.E. 560); Stainback v. Dunn, 53 Ga. App. 464, 465 (3) (186 S.E. 220). The holdings of these cases have been reinstated by the amendment to Code Ann. § 81-1001 found in *534 Ga. L. 1962, p. 682. If plaintiff desired to stand upon the petition as filed, he should have refused to amend. This court will not consider plaintiff's assignment of error upon the trial court's order sustaining the demurrer to the original petition.
2. Plaintiff admits that the contract prepared by defendant was invalid because of the insufficient description of the land that was the subject matter of the contract. He even bases his action upon the premise, claiming that the property was "tied up" by an invalid contract for its sale and that he was thus deprived of the commission that he expected to receive for selling the property.
The contract is also invalid for another reason. The petition avers that plaintiff was agent for the owner of the land "prior to March 26, 1963," while the contract attached as an exhibit to the petition shows that it was executed by plaintiff on April 3, 1963. In the absence of any positive indication that plaintiff was authorized to execute the instrument for the owner on April 3, 1963, we cannot assume that plaintiff's authority as agent extended beyond the time alleged.
It requires no degree of perspicacity to comprehend that if the contract was unenforceable the property was not "tied up." All rights in the property were unaffected by the invalid agreement. Plaintiff cannot plead, in effect, that the property was unaffected and at the same time claim damages for an artifice affecting the property, for legally and logically his claim is a non sequitur.
3. There is no merit in plaintiff's contention that defendant committed fraud by promising several times "to go ahead and close the transaction," when defendant "did not have any intention of going through with the deal at any time." The general rule is that "Fraud cannot be predicated upon statements which are promissory in their nature as to future acts." Jackson v. Brown, 209 Ga. 78, 80 (2) (70 SE2d 756); Beach v. Fleming, 214 Ga. 303, 306 (104 SE2d 427); S. & S. Builders v. Equitable Investment Corp., 219 Ga. 557, 564 (4) (134 SE2d 777); Rogers v. Sinclair Refining Co., 49 Ga. App. 72, 74 (174 S.E. 207); Monroe v. Goldberg, 80 Ga. App. 770, 775 (57 SE2d 448). On the other hand, "When a promise is made with no intention of performance, *535 and for the very purpose of accomplishing a fraud, it is a most apt and effectual means to that end, and the victim has a remedy by action or defense." Floyd v. Morgan, 62 Ga. App. 711, 715 (5) (9 SE2d 717); Johnston v. Dollar, 83 Ga. App. 219, 223 (3) (63 SE2d 408); Hill v. Stewart, 93 Ga. App. 792, 796 (92 SE2d 829). See Coral Gables Corp. v. Hamilton, 168 Ga. 182, 194-199 (147 S.E. 494). Cf. Thomson v. McLaughlin, 13 Ga. App. 334, 337 (79 S.E. 182).
We do not believe that the latter rule can be extended to include those cases in which the promise upon which the promisor is charged with fraud is for any reason unenforceable at the time of its utterance. "Misrepresentations are not actionable unless the hearer was justified in relying on them in the exercise of common prudence and diligence." Daugert v. Holland Furnace Co., 107 Ga. App. 566, 569 (130 SE2d 763) and citations. It is contrary to common sense to rely upon a promise that is not legally binding upon the person making it. "To make the following obligations binding on the promisor, the promise must be in writing, signed by the party to be charged therewith, or some person by him lawfully authorized, viz . . . Any contract for sale of lands, or any interest in, or concerning them." Code § 20-401 (4). This is merely the most obvious one of several reasons why the defendant's statements that he would complete the transaction were not binding upon defendant. It is elementary that plaintiff must be charged with knowledge of the law. Thus knowing defendant's promises to be unenforceable, plaintiff was not justified in relying upon them.
Judgment affirmed. Frankum and Hall, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374034/ | 142 S.E.2d 569 (1965)
206 Va. 153
Clara Holt BARHAM
v.
VIRGINIA NATIONAL BANK, Successor of National Bank of Commerce of Norfolk, Adm'r, etc.
Supreme Court of Appeals of Virginia.
June 14, 1965.
*570 John F. Rixey, Norfolk (Rixey & Rixey, Norfolk, on brief), for plaintiff in error.
Luther W. White, III, Norfolk (Thomas L. Woodward, Suffolk, Worthington, White & Harper, Norfolk, on brief), for defendant in error.
Before EGGLESTON, C. J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO, and GORDON, JJ.
I'ANSON, Justice.
This action was instituted by plaintiff, Virginia National Bank, successor to the National Bank of Commerce, as administrator of the estate of Lucy Mason Holt, against Clara Holt Barham and Arthur Lee Phillips, defendants, to recover for the wrongful death of Miss Holt, who died as a result of injuries sustained when an automobile driven by Miss Barham, in which the deceased was riding as a guest, collided with a pick-up truck driven by Phillips.
There was a jury trial, and at the conclusion of plaintiff's evidence, and again after all evidence was heard, defendant Barham moved the court to strike the evidence and enter summary judgment for her on the ground that there was not sufficient evidence of gross negligence as a matter of law to make out a jury question. The motions were overruled and the jury returned a verdict of $8,000 for the administrator against the defendant Barham, and Phillips was exonerated of any negligence. We granted Miss Barham, sometimes hereinafter referred to as defendant, a writ of error.
Defendant contends (1) that she was not guilty of gross negligence as a matter of law, and (2) that the court erred in granting certain instructions.
The jury's verdict having resolved all conflicts in the evidence, plaintiff is entitled to have the evidence considered in the light most favorable to it.
The accident occurred at approximately 6:50 P.M. on August 21, 1961, at the intersection of state routes 308 and 652 in Southampton county, Virginia. It was daylight, the weather was clear, the roads were dry, and the visibility was good.
Route 308 runs generally north and south and is 18 feet wide; route 652 runs east and west and is approximately 16 feet wide. The two roads meet at right angles to form an intersection which is controlled by stop signs facing traffic traveling east and west on route 652. The stop sign for traffic traveling west on route 652 was approximately 36 feet from the eastern edge of the intersection. At the southeast corner *571 of the intersection there was an embankment estimated to stand about six feet above the level of the roadway, and on the edge of the embankment and running parallel with highway 308 there was a fence approximately three or four feet high. About 600 feet south of the intersection on route 308 there is a crest of a small hill, and a motorist proceeding west on 652 could see as far as the crest of the hill only if he had reached a point approximately 22 feet east of the edge of route 308.
On the day in question, defendant was proceeding west on 652 at a speed of approximately 35 miles per hour. She was thoroughly familiar with the intersection and said she slackened her speed when she reached the stop sign facing her and brought her car to a stop at the intersection. She looked first to her left and then to her right, and not seeing any traffic on route 308 she started through the intersection. She did not see the truck operated by Phillips until it struck her car on its left front fender.
Mrs. Nancy G. Barham, also a guest in Miss Barham's car, corroborated her host's testimony that she stopped at the intersection.
An investigating officer testified that Miss Barham told him that she did not stop back at the stop sign but crept up to the east edge of "route 308 and hesitated, looked both ways, and then started across the intersection"; and that she never saw the Phillips truck until it struck her car.
Phillips testified that he was traveling north on route 308 at a speed of approximately 40 to 50 miles per hour (which was within the legal limit) and that when he was approximately 100 feet from the intersection Miss Barham's car "popped in the highway" ahead of him. He applied his brakes but was unable to stop his truck and it struck the left front fender and door of the Barham car, after laying down 33 feet of skid marks. He also said that he was unable to estimate the speed of the Barham car, but that it was moving the entire time he saw it.
The point of impact between the vehicles was 3½ feet west of the center line of route 308. The Barham car came to rest in a ditch at the northwest corner of the intersection, 39 feet from the point of impact. The Phillips truck was turned completely around by the impact and came to rest on its side in the same lane in which it had been traveling, 27 feet from the point of impact.
Defendant says that the evidence does not show that she was grossly negligent, Code § 8-646.1, 1957 Repl. Vol., and the case should not have been submitted to the jury.
We have repeatedly said that "gross negligence is that degree of negligence which shows an utter disregard of prudence amounting to complete neglect of the safety of another." Whether gross negligence has been proved depends on the facts and circumstances of each case. If the evidence is such that reasonable men should not differ as to the conclusions drawn from what has been proved, the question is one of law for the court; and conversely, if reasonable men may differ, then the question is one of fact for determination by a jury. See Rigney v. Neauman, 203 Va. 822, 826, 127 S.E.2d 403, 406; Fleming v. Bowman, 203 Va. 876, 879, 128 S.E.2d 290, 292; Bond v. Joyner, 205 Va. 292, 296, 136 S.E.2d 903, 906.
In Solterer v. Kiss, 193 Va. 695, 701-703, 70 S.E.2d 329, 333-335, the facts were quite similar to the case at bar except there was no stop sign at the intersection. There the host-defendant was driving on a secondary road which intersected a primary road at right angles and the view to his left at the intersection was obstructed by an embankment at the corner. The host-defendant did not stop his vehicle at the intersection or look to see if it was free from oncoming traffic before entering the intersection, and we held that the question as *572 to whether the host-defendant was guilty of gross negligence was a factual one for the jury's determination. See also Fleming v. Bowman, supra, 203 Va. at p. 879, 128 S.E.2d at p. 292.
Here the evidence shows that the defendant drove her automobile directly into the path of an oncoming truck in an intersection controlled by a stop sign and with her view obscured by an embankment and fence. She either entered the dangerous intersection, with which she was thoroughly familiar, without looking to her left for traffic proceeding north on route 308, or looked at a time when her lookout was not effective. Obviously she did not see what she should have seen, if she did look, because she had a clear view of oncoming traffic from her left for a distance of 600 feet when her car was within 22 feet of the east edge of highway 308. Whether defendant drove her automobile into the intersection "in utter disregard of prudence amounting to complete neglect of the safety of others" was a factual question upon which reasonable men may differ, and thus the trial court correctly submitted the question of gross negligence to the jury for its determination.
Defendant next contends that the court erred in granting certain instructions.
Instruction No. 2 reads as follows:
"At the time and place of the accident involved herein, it was the duty of the defendant, Barham, as to Lucy Mason Holt, to exercise slight care:
1. To stop her vehicle in compliance with the stop sign she faced and to look for other traffic before proceeding forward;
2. To keep her vehicle under proper control;
3. To keep a proper lookout;
4. To operate her vehicle at a reasonable speed under all circumstances, having due regard to the width, surface and other conditions on the highway then and there existing.
"And if the jury believes from the evidence that the defendant, Barham, failed to exercise slight care in the performance of any one or more of the foregoing duties, then she was grossly negligent; and if you further believe from the evidence that any such gross negligence was a sole proximate cause of the accident, then you shall return your verdict in favor of plaintiff and against the defendant Barham." (Italics supplied.)
The instruction is misleading and prejudicially erroneous. It told the jury that it was the duty of the defendant Barham to exercise slight care as to the four duties enumerated, and that if she failed to exercise slight care in any one or more of the duties she was grossly negligent. The four duties enumerated in the instructions indicate to the average person those duties necessary to be performed in the exercise of ordinary care. Mere failure to use "slight care" in the performance of any one of the duties does not necessarily constitute gross negligence. "Slight care" includes also such care as careless or inattentive persons usually exercise, while gross negligence is carelessness manifestly and materially greater than want of common prudence. Defendant's general duty was to exercise reasonable care; but she was liable to her guest passenger only if she was grossly negligent in failing to do so. Cross negligence is "that degree of negligence which shows an utter disregard of prudence amounting to complete neglect of the safety of another." Since the instruction failed to clearly define the difference between ordinary and gross negligence, it was misleading and confusing. It also in effect directed a verdict for the plaintiff.
The first two sentences in instruction No. 1[1] were taken from the Court's *573 language in Umberger v. Koop, 194 Va. 123, 131, 72 S.E.2d 370, 375. The language used is argumentative, and the instruction should be rephrased if given in a retrial of the case.
The two other instructions complained of dealt with the defendant Phillips. Since he will not be a defendant on a retrial of the case we deem it unnecessary to discuss those instructions here.
For error in the instructions, the judgment below is reversed, the verdict is set aside, and the case is remanded for a new trial.
Reversed and remanded.
NOTES
[1] "A stop sign is a notice that danger lies ahead, and it is the duty of the driver of a vehicle faced with a stop sign to stop at a point from which, in the exercise of proper care, he can see traffic moving on the highway proposed to be entered. The duty to look requires not only the physical act of looking, but also reasonably prudent action to avoid the dangers which an effective lookout would disclose. And if you believe from the evidence that Clara Barham violated any of the foregoing duties then she was guilty of negligence, and if you believe such violation was gross, wanton or culpable, and was a proximate cause of the collision, then you should return your verdict in favor of the plaintiff against Clara Barham." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1744033/ | 286 S.W.3d 680 (2008)
Eric D. MARTIN, Appellant,
v.
STATE of Arkansas, Appellee.
No. CR 08-767.
Supreme Court of Arkansas.
September 4, 2008.
Phillip A. McGough, Little Rock, for appellant.
No response.
MOTION FOR RULE ON CLERK.
PER CURIAM.
Appellant Eric D. Martin, by and through his attorney, Phillip A. McGough, has filed a motion for rule on clerk. On December 23, 1997, Appellant pled guilty to two counts of residential burglary, one count of theft of property, and one count of breaking or entering and was sentenced to probation for a total of thirty-six years on all counts. By judgment and commitment order entered February 20, 2008, Appellant's probation was revoked, and he was sentenced to a total of 432 months in the Arkansas Department of Correction. Appellant filed a notice of appeal on May 5, 2008, from the judgment and commitment order entered February 20, 2008. The record was tendered to the clerk of this *681 court on June 26, 2008. The supreme court clerk refused to file the record because the notice of appeal was filed more than thirty days after the first judgment and commitment order was entered.
Appellant's counsel filed this motion for rule on clerk, candidly admitting therein that he did not file the notice of appeal within thirty days of the entry of the judgment. Where a motion for rule on clerk is filed in error, it will be treated as a motion for belated appeal. McDonald v. State, 356 Ark. 106, 146 S.W.3d 883 (2004). Despite Appellant's failure to properly perfect this appeal, the State cannot penalize a criminal defendant by declining to consider his appeal when counsel has failed to follow appellate rules. Morris v. State, 373 Ark. 190, 282 S.W.3d 757 (2008) (per curiam) (citing Franklin v. State, 317 Ark. 42, 875 S.W.2d 836 (1994) (per curiam)). Consistent with our explanation of handling motions for rule on clerk and belated appeals in McDonald, 356 Ark. 106, 146 S.W.3d 883, we consider this a motion for belated appeal and direct the clerk of this court to accept the record and docket the appeal. We forward this opinion to the Committee on Professional Conduct.
Motion treated as belated appeal; granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1867776/ | 956 So. 2d 455 (2007)
ALTERRA HEALTHCARE CORP.
v.
BRYANT.
No. SC06-2088.
Supreme Court of Florida.
April 16, 2007.
Decision without published opinion. Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374077/ | 420 P.2d 5 (1966)
ISLANDIA, INC., a Nevada Corporation, Appellant,
v.
Lauri MARECHEK, Respondent.
No. 5084.
Supreme Court of Nevada.
November 15, 1966.
*6 Jones, Wiener & Jones, of Las Vegas, for Appellant,
Stanley W. Pierce, of Las Vegas, for Respondent.
OPINION
ZENOFF, Distrist Justice.
Appellant contends on this appeal that the lower court erred in granting the respondent's motion for summary judgment. We agree.
The appellant and Bruce T. Little had entered into an "AGREEMENT" which recited: "For services rendered the undersigned agree to pay to the order of BRUCE T. LITTLE the sum of $5,916.67 as Power of Attorney for the sole and singular purpose of locating and negotiating for the purchase of the 71 acres of property more fully described as:
"Portion of the North One-Half (N 1/2) of the Northeast Quarter (NE 1/4) of Section 29, Township 20 South, Range 61 East, M.D.B. & M.
"Islandia Inc.
________________
"Alvin J. Vitek."
________________
On June 4, 1965 an action for the $5,916.67 was commenced by the respondent (Marechek) as Little's assignee alleging that Little had performed services for Islandia pursuant to the agreement for which payment had not been received. The complaint did not allege the nature of the services nor did it allege whether or not Little was a licensed real estate broker or agent. This omission was not raised by the initial answer.
Four months later plaintiff moved for summary judgment. His motion was supported by Little's affidavit that he had found the land, introduced Vitek (Islandia's representative) to one Ford, a real estate broker, and that a deal was later consummated. The "agreement" was attached to this affidavit.
No counter affidavits were filed by the defendant and a summary judgment was granted. The judgment was later set aside on defendant's request for a rehearing. Thereafter, defendant presented an affidavit from the Nevada Real Estate Division to the effect that Little was not a licensed broker or salesman at the time the services were rendered as required by NRS 645.030 (a), 645.260, 645.270.[1] A motion was also made at this time to amend the answer to affirmatively allege respondent's *7 failure to set forth Little's licensing status, and, among others, that the complaint failed to state a claim upon which relief could be granted.
On January 21, 1966 another hearing was held at which the trial court denied the motion to amend and again entered summary judgment for the respondent. Islandia appeals from that order.
Unlike the Statute of Frauds (Coray v. Hom, 80 Nev. 39, 389 P.2d 76 (1964), requirements of the real estate licensing statutes cannot be waived. The public interest in realty transactions requires pleading and proof that those who come within the statute have licenses, without which, the right to recover for services rendered does not exist. Whiddett v. Mack, 50 Nev. 289, 258 P. 233 (1937).
1. When the plaintiff's motion for summary judgment was reheard, the record before the court showed: First, that Bruce T. Little (plaintiff's assignor) performed services for the defendant which services may have placed Little within the intendment of NRS 645.030 (2) reading: "Any person * * * who, for another and for a compensation, aids, assists, solicits or negotiates the procurement, sale, purchase, rental or lease of public lands shall be deemed to be a real estate broker within the meaning of this chapter"; and Second, that Bruce T. Little was not licensed as a broker when he performed services for the defendant. If, in fact, Little's services were such as to bring him within the Real Estate Act, he could not prevail, for he was not a licensed broker. Whiddett v. Mack, supra. On the other hand, if the services are not within the act, a broker's license was not required. The nature of Little's services was not presented in sufficient detail to allow the court to decide that factual issue the key issue in the case. The cause, therefore, must be remanded for trial as a genuine issue of material fact remains. Magill v. Lewis, 74 Nev. 381, 333 P.2d 717 (1958); Dredge Corp. v. Husite Co., 78 Nev. 69, 369 P.2d 676 (1962); McColl v. Scherer, 73 Nev. 226, 315 P.2d 807 (1957); Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d 979 (1963); Buss v. Consolidated Casinos Corp., 82 Nev. ___, 418 P.2d 815 (1966).
Our determination on this question controls the course of the entire proceeding. It becomes unnecessary to review the trial court's refusal to allow an amended answer.
Reversed.
THOMPSON and COLLINS, JJ., concur.
NOTES
[1] NRS 645.030(a). "Who for another and for a compensation, or who with the intention or expectation of receiving a compensation, sells, exchanges, options, purchases, rents, or leases, or negotiates or offers, attempts or agrees to negotiate the sale, exchange, option, purchase, rental, or lease of, or lists or solicits prospective purchasers of, or collects or offers, attempts or agrees to collect rental for the use of, any real estate or the improvements thereon; * * *"
NRS 645.260. "One act constituting a person a real estate broker or real estate salesman. Any person, copartnership, association or corporation who, for another, in consideration of compensation by fee, commission, salary or otherwise, or with the intention or expectation of receiving compensation, does, offers or attempts or agrees to do, engages in, or offers or attempts or agrees to engage in, either directly or indirectly, any single act or transaction contained in the definition of a real estate broker in NRS 645.030, whether the act be an incidental part of a transaction, or the entire transaction, shall constitute such person, copartnership, association or corporation a real estate broker or real estate salesman within the meaning of this chapter."
NRS 645.270. "Allegation and proof of licensed status in action for compensation. No person, copartnership, association or corporation engaged in the business or acting in the capacity of a real estate broker or a real estate salesman within this state shall bring or maintain any action in the courts of this state for the collection of compensation for the performance of any of the acts mentioned in NRS 645.030 without alleging and proving that such person, copartnership, association or corporation was a duly licensed real estate broker or real estate salesman at the time the alleged cause of action arose." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266434/ | 545 Pa. 233 (1996)
681 A.2d 130
COMMONWEALTH of Pennsylvania, Appellee,
v.
Robert FISHER, Appellant.
Supreme Court of Pennsylvania.
Argued January 28, 1993.
Reargued January 22, 1996.
Decided June 25, 1996.
Reargument Denied September 6, 1996.
*241 David R. DeStefano, Joseph Hylan, Norristown, for Robert Fisher.
Bruce L. Castor, Patricia E. Coonahan, Norristown, Robert A. Graci, Office of Atty. Gen., for Com.
Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.
OPINION OF THE COURT
ZAPPALA, Justice.
We have before us an automatic direct appeal from the judgment of sentence of death imposed upon Appellant, Robert Fisher, by the Court of Common Pleas of Montgomery County, Criminal Division.[1] For the following reasons, we affirm the conviction of murder in the first degree, but vacate the judgment of sentence of death and remand for a new sentencing hearing. The relevant facts of this case are as follows.
In the month preceding her murder, Linda Rowden, the victim in the instant matter, had been in contact with the Norristown police. Rowden had complained that her boyfriend, the Appellant, had been harassing her regarding her *242 earlier statements to the police in response to their investigation of the murder of Nigel Anderson. The police had questioned Appellant regarding the Anderson murder case.[2]
On July 10, 1980, Rowden was driving her car at a slow rate of speed on Dekalb Street, in Montgomery County. Richard Mayo was seated in the front passenger seat, and Appellant was seated in the backseat. It was daylight, and the windows of the car were down. According to eyewitnesses, Appellant leaned forward and shot the driver, Linda Rowden, twice with a revolver.
The victim slumped forward and her vehicle, uncontrolled, swerved to the right and crashed into parked cars on DeKalb Street. Appellant exited the rear door of the vehicle and walked hastily down an intersecting street with a pistol in his hand. Mayo exited the right front passenger door, yelled for help, went to an emergency telephone and called the police. Subsequent forensic tests and an autopsy performed on the victim confirmed that the victim died of the gunshot wounds.
Immediately following the shooting, Appellant went to Denise Walker's apartment. He told Walker that he had just shot the victim because she "was running her face to the detectives."[3] Appellant changed clothes, told Walker that he was *243 leaving town, and fled the area shortly thereafter. A subsequent search of Walker's apartment uncovered a set of Appellant's clothes and a box of unused bullets. Six of the eight remaining bullets were found to be analytically indistinguishable from the bullets retrieved from the victim's body. Appellant was not apprehended until the fall of 1987 in New York City. Following extradition proceedings in New York, he was returned to Pennsylvania.
In 1988, Appellant was tried and convicted of first degree murder. Following his conviction, Appellant was sentenced to death. On direct appeal, this Court vacated the conviction and the matter was remanded for a new trial. Appellant was retried in August of 1991, and was convicted of first degree murder. The jury found that the aggravating circumstances outweighed the mitigating circumstances and Appellant was sentenced to death. This appeal follows.
Although Appellant does not argue that the evidence was insufficient to convict him of murder in the first degree, under Commonwealth v. Zettlemoyer, 500 Pa. 16, 26-27, n. 3, 454 A.2d 937, 942, n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983), reh'g denied, 463 U.S. 1236, 104 S.Ct. 31, 77 L.Ed.2d 1452 (1983), this Court is mandated to conduct an independent review of the sufficiency of the evidence and determine whether the evidence presented was sufficient to support the jury's verdict. The test for determining the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the jury could have determined all elements of the crime to have been established. Commonwealth v. Jermyn, 516 Pa. 460, 533 A.2d 74 (1987). The evidence as described above is more than sufficient to support a first degree murder conviction. Mayo, who was seated in the front seat of the vehicle, directly beside the victim, testified that he observed Appellant shoot the victim. Several other eyewitnesses testified that they observed Appellant *244 quickly leave the crime scene carrying a revolver. Walker testified that Appellant admitted shooting the victim immediately following the event. Appellant himself evidenced his guilt by immediately fleeing the Philadelphia area. Forensic and ballistic reports corroborated all of the eyewitness testimony. A person is guilty of criminal homicide if he intentionally, knowingly, recklessly, or negligently causes the death of another human being. 18 Pa.C.S.A. § 2501(a). The Crimes Code defines murder of the first degree as "a criminal homicide. . . committed by an intentional killing," i.e., a "willful, deliberate and premeditated killing." 18 Pa.C.S.A. § 2502(a) and (d). The evidence adduced at trial was clearly sufficient to support the jury's verdict of guilt of murder of the first degree.
Appellant asserts a total of thirty separate issues for our review.[4] First, Appellant asserts that the trial judge erred in not recusing himself. Appellant argues that the trial judge was incapable of remaining objective and unbiased in light of its participation in Appellant's first conviction in Fisher I. This argument fails. Recusal is required whenever there is substantial doubt as to a jurist's ability to preside impartially. Code of Judicial Conduct, Canon 3, subd. C(1)(a); Commonwealth v. Boyle, 498 Pa. 486, 447 A.2d 250 (1982). Before the trial commenced, the trial court entered an order which clearly set forth that if Appellant chose a bench trial or entered a guilty plea, the court would recuse itself; but if *245 Appellant demanded a jury trial, the court would not recuse itself. The court stated clearly that if a jury trial was demanded, the jury would decide all issues of fact, and that the court was able to set aside anything that was adduced at the previous trial and had no preconceived ideas concerning the second trial. Further, a reading of the trial court opinions in both Fisher I and Fisher II illustrate that the court's rulings were based on the appropriate application of legal principles and not improper personal opinion or bias of the trial judge. If a judge rules that he or she can hear and dispose of the case fairly and without prejudice, that decision will not be disturbed on appeal absent an abuse of discretion. Commonwealth v. Frank, 395 Pa.Super. 412, 577 A.2d 609 (1990). There was no abuse of discretion.
Next, Appellant alleges that the trial court erred by failing to dismiss the charges against Appellant under Pa.R.Crim.P., Rule 1100. Appellant points to the eight year period between July 11, 1980, when the Commonwealth filed a criminal complaint against Appellant, and July 18, 1988, when his trial commenced. However, Appellant was arrested in the Fall of 1987, in New York City where he had been hiding out since the 1980 murder.
Rule 1100(c)(3)(i) provides as follows:
"(c) In determining the period for commencement of trial, there should be excluded therefrom: (3) such period of delay at any stage of the proceedings as results from: (i) the unavailability of the defendant. . . ."
Accordingly, under Rule 1100(c)(3)(i), that portion of the delay which can be attributed to Appellant's seven year absence from the Commonwealth is excludable. Appellant insists that the Commonwealth must show that it exercised due diligence in its efforts before it may take advantage of a Rule 1100(c) exclusion. However, the due diligence requirement "does not demand perfect vigilance and punctilious care, but rather a reasonable effort." Commonwealth v. Polsky, 493 Pa. 402, 407, 426 A.2d 610, 613 (1981). "Common sense, the public interest, and justice demand that a defendant not be *246 permitted the windfall of an absolute dismissal under Rule 1100 when he voluntarily absents himself from the jurisdiction, refuses to return, and due diligence by law enforcement authorities fails to secure his return." Polsky 493 Pa. at 407-08, 426 A.2d at 613. A review of the record reveals that local police authorities continued reasonable efforts to apprehend Appellant throughout his eight year absence. Local authorities submitted his name and description to a national wanted persons list, set up a stake-out upon reports that Appellant was returning to the area, followed up leads, and continued to interview witnesses, friends and families regarding the murder and Appellant's possible whereabouts. The authorities exercised due diligence, and thus, there was no error.
Next, Appellant contends that the trial court erred by refusing to suppress physical evidence discovered by police officers during a search pursuant to a warrant at Appellant's apartment immediately following the shooting. Appellant contends that the affidavit of probable cause did not support a finding of probable cause, in that Appellant's criminal "street activity", if any, did not bear a "substantial nexus" to Appellant's residence, citing Commonwealth v. Way, 342 Pa.Super. 341, 492 A.2d 1151 (1985). However, the affidavit sets forth the following pertinent facts: Rowden had been shot; witnesses to the shooting saw Appellant leave Rowden's car holding a pistol and wearing a white shirt; officers had reliable information that Appellant had been living at the specified address, and that shortly after the shooting Appellant had been seen entering the apartment wearing a white shirt and then shortly thereafter leaving the apartment wearing a burgundy colored shirt; Appellant was still at large and the weapon used in the shooting had not been recovered. Thus, police had reason to believe that Appellant had left the clothes he was wearing at the time of the shooting, and possibly the murder weapon and other evidence, at the premises to be searched. Accordingly, the Commonwealth met its burden of showing a substantial nexus between the crime and Appellant's apartment.
*247 Next, the Appellant alleges various incidents of trial court error throughout voir dire. Preliminarily, we note that the scope of voir dire rests in the sound discretion of the trial judge and his or her decisions will not be reversed unless palpable error is established. Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977). First, Appellant contends that the trial court erred by not conducting individual voir dire as is required in capital cases under Pa.R.Crim.P. 1106. However, no objection was made to the group voir dire employed, and thus the issue is waived. In addition, our review of the record indicates that although group voir dire was initially employed to ask general questions regarding the venire-persons' potential sight or hearing impairments, the venire-persons' potential relationships with law enforcement officers, witnesses or other significant parties, or the venire-persons' prejudices or preconceptions about the case, counsel did have an opportunity to individually voir dire any venire-person in private if desired. See Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656 (1986). There was no error.
Second, Appellant contends that the Commonwealth's peremptory challenges of two black women, Spears and Mooring, were not supported by racially neutral reasons as required under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We begin by noting that the record reveals that four black individuals were randomly called to the venire pool; one black man was not reached before the jury selection was complete; two black women, Spears and Mooring, were peremptorily struck by the Commonwealth; and one black person, Jettie Phillips, was chosen to participate as a juror in the trial.
The record reflects that the Commonwealth explained that its peremptory challenge of venire-person Mooring was based on the fact that Mooring's son was facing trial on assault charges for beating his girlfriend. The evidence to be presented by the Commonwealth at trial involved allegations that the Appellant had threatened and abused the victim, his girlfriend, prior to the shooting. Thus, the reason offered by *248 the Commonwealth in support of its peremptory challenge of Mooring was sufficient and race neutral.
The record also reflects that the Commonwealth explained that its peremptory challenge of venire-person Spears was based on the fact that Spears' uncle was the Chief Justice of the United States Court of Appeals in the District of Columbia. The prosecutor explained that this relationship would give Spears greater general knowledge of the law and might cause her to hold the Commonwealth to a higher standard of proof. This, coupled with the prosecutor's concern regarding Spear's initial response that she would not be able to impose the death sentence, was a sufficient race neutral reason for utilizing the peremptory challenge.
Third, Appellant contends that the trial court erred in failing to strike for cause venire-person Shutes. Shutes indicated that he was employed as a police dispatcher for Montgomery County. He stated that he had called detectives in the county but had never met them. He also indicated that he could not impartially assess the testimony of Halbert Fillinger, M.D., the Commonwealth's forensic witness, because he was aware of Fillinger's excellent professional reputation through his work as a dispatcher. Appellant contends that under these conditions, Shutes should have been struck for cause, and that because the court would not so strike Shutes for cause, Appellant was forced to use a peremptory challenge and was thereby prejudiced. However, Shutes did state, "I think I can follow what the law would warrant" and that he would be able to consider the evidence in this case fairly and impartially. Moreover, the record does not indicate, nor does Appellant contend that he had exhausted his peremptory challenges prior to the completion of the jury selection process. Thus, Appellant has failed to show prejudice. Commonwealth v. Jones, 477 Pa. 164, 383 A.2d 874 (1978).
Fourth, Appellant contends that the trial court erred in striking venire-person Strauss for cause. When asked if she had any religious, moral, or conscientious scruples against sitting as a juror in this case, Strauss answered, "I *249 don't feel comfortable having to make a decision on someone else's life." She also indicated that "there is always doubt in [her] mind if [imposing the death sentence] is right," and that she would have to be convinced "beyond all doubt" before she would be able to impose the death penalty. Although Strauss did indicate, at times, that she would be able to apply the law, these assurances were equivocal at best, and the trial court found that she had never definitively answered the question of whether she could impose the death penalty if convinced beyond a reasonable doubt. The decision to strike for cause is within the discretion of the trial court and will not be disturbed absent an abuse of that discretion. We do not find that the trial court abused its discretion in striking Strauss for cause under the instant facts. Commonwealth v. Westerfer, 308 Pa.Super. 474, 454 A.2d 633 (1982).
Fifth, Appellant contends that the trial court erred in failing to strike venire-person Hipp for cause. Appellant contends that Hipp's answers demonstrated a degree of mental instability, and a fear of losing a weekend employment financial bonus if sequestered over the weekend. A review of the record does not support Appellant's suggestion that Hipp was mentally unstable to any degree. Hipp's concern that she might lose a weekend bonus, while substantiated by the record, is not a sufficient basis for striking her for cause.
Sixth and finally, Appellant contends that the trial court erred in sustaining the Commonwealth's objections to defense counsel's questioning of venire-person Ritter as to her prior experiences as a juror. Ritter indicated that she had served as a juror in a civil trial and as an alternate juror in a criminal rape trial. She indicated that neither experience would in any way predispose her in the instant matter. When asked if the criminal trial resulted in a conviction, the Commonwealth's objection was sustained. In light of Ritter's unequivocal statement that her prior experiences as a juror and alternate juror would not affect her considerations in the instant case, the court's ruling was proper.
*250 Next, Appellant argues that the trial court erred by sustaining the Commonwealth's objection to defense counsel's opening statement wherein defense counsel referred to Appellant's military record. However, Appellant improperly characterizes the nature of the Commonwealth's objection. At sidebar, the Commonwealth noted that defense counsel stated during his opening that he did not know if the Appellant would testify or not, but then referred to Appellant's military record. The prosecutor noted that, as the military record had been mentioned, defense counsel was now obliged to call Appellant or find some other way to prove the military record. The prosecutor reserved the right to point out during his own closing that the military record had not been proven, if no such evidence had been offered. The Court merely acknowledged the Commonwealth's right to do so. There was no error.
Next, Appellant argues that the trial court erred in permitting the introduction of evidence regarding the investigation of the murder of Nigel Anderson. In 1980, Nigel Anderson was murdered. Subsequently, Linda Rowden was murdered. Eight years later, Appellant was convicted of obstruction of justice and conspiracy to violate the civil rights of Nigel Anderson in federal court. Appellant was then tried and convicted of the murder of Linda Rowden. ("Fisher I"). During that trial, reference was made to Appellant's conviction in the Nigel Anderson case. Appellant's conviction in the federal "Anderson" case was later reversed, and a Judgment of Acquittal was entered. As a result of the acquittal entered in the federal matter, and the references made to the federal conviction in the Fisher I trial, the Appellant's conviction in Fisher I was reversed and Appellant was ordered to again stand trial. Appellant was tried again and convicted in the instant matter.
During the trial in the instant matter, a number of law enforcement officers testified regarding various aspects of the Anderson murder investigation. Several officers testified that Appellant voluntarily came in for questioning regarding Anderson's murder. They also testified that Linda Rowden *251 also voluntarily came in for questioning, and that Appellant saw Rowden talking to the officers. One officer testified that Appellant stated that Rowden was his girlfriend and that he had driven Rowden's car to a motel, where Anderson's body had been found, to meet another woman. Another officer testified that Rowden had given him additional information and that Rowden was a potential witness in the Anderson case. A final officer testified that two days before her murder, Linda Rowden filed a criminal complaint against Appellant alleging that he had assaulted and harassed her because she was giving information to police officers regarding the Anderson murder investigation. Rowden wanted Appellant to be arrested because she was afraid that he would do her bodily harm. The officer contacted Appellant, informed him that Rowden had filed a complaint against him, and warned him to stay away from her. Several officers also testified that no charges were ever filed in Montgomery County against anyone for the murder of Nigel Anderson.
The Court gave the following limiting instruction to the jury in regard to the Anderson murder investigation testimony.
THE COURT: Okay, Members of the jury, the Assistant District Attorney has told you in his opening statement that you will hear evidence concerning the murder of one Nigel Anderson at the Crossroads Motel, Whitpain Township, Montgomery County, on June 1, 1980, and that Mr. Fisher was questioned as part of that murder investigation.
The fact that Mr. Fisher was questioned concerning the murder of Nigel Anderson may not be used by you as any evidence that he, in fact, was involved in that murder. Mr. Fisher does not stand convicted of that murder; nor is he currently under indictment of it. No indictments are pending or contemplated.
Members of the jury, the Commonwealth, in offering this evidence, is doing so for an extremely limited purpose. You may consider evidence surrounding the murder of Nigel Anderson only as it relates to Mr.Fisher being questioned at that time and for no other purposes. You will consider the evidence introduced by the Commonwealth relating to the *252 murder of Nigel Anderson for a limited purpose. The Commonwealth introduced this evidence in an effort to prove that Mr. Fisher was questioned as part of the investigation in that killing. Again, let me remind you that the defendant does not stand convicted of that murder; nor are any indictments pending or contemplated. The Commonwealth introduced this evidence solely to prove that Mr. Fisher was questioned. The Commonwealth is doing this solely as a background to indicate that Mr. Fisher was questioned with regard to that murder investigation and that, at the same time that he was questioned, Linda Rowden was likewise questioned with regard to what she knew about that particular murder investigation, and that each of them knew that the other was being questioned in regard thereto.
The jury was reinstructed on the same points during the Court's general charge prior to deliberations.
Appellant argues that because his federal court conviction (regarding his alleged involvement in the Anderson murder) had been reversed and a judgment of acquittal entered, the Commonwealth was collaterally estopped from suggesting that Appellant was in any way involved in the murder and that, therefore, the admission of the various officers' testimony regarding the Anderson murder investigation was error to the extent that it tended to implicate Appellant in the Anderson killing. We disagree. First, the testimony offered was only that the Appellant was questioned in regard to that killing, not that he was suspected or was otherwise involved in any manner. Second, the evidence was highly probative as to a motive for Appellant's killing of Linda Rowden. Third, the Court gave a lengthy and explicit instruction to the jury regarding the limited purposes for which the evidence could be considered.
The Commonwealth did not seek to relitigate the Anderson murder case or to prove that Appellant was involved in the Anderson killing. The Commonwealth offered the above evidence solely on the issue of what Appellant thought or believed at the time of Rowden's murder. The evidence tended *253 to show that Appellant believed that Rowden was implicating him in the Anderson murder. This evidence, whether the Appellant was actually involved in the Anderson killing, was extremely relevant to the Commonwealth's argument regarding the Appellant's motive to kill Rowden.
Appellant further contends that it was error to deny Appellant's offer of evidence that he was acquitted of the federal charges. However, as discussed above, no reference to any charges against Appellant regarding the Anderson killing was ever made. Accordingly, there was clearly no need to offer evidence that Appellant was acquitted of those charges.
Next, Appellant contends that the admission of hearsay statements made by the victim, Linda Rowden, to a police officer two days before her murder, was impermissible. Appellant asserts that the evidence was admitted over defense objections; however, the defense objections were directed only at evidence regarding Appellant's alleged assault of Rowden. The trial court allowed the testimony, with the cautionary instruction that any evidence of an alleged assault by Appellant against Rowden may only be considered as evidence of Rowden's state of mind and not as evidence of a propensity towards violence in Appellant. Thus, the issue is waived.
Even if the issue had been properly preserved, Appellant's argument would fail. Officer Salamone testified as follows:
Basically [Rowden] contended that the assault and the harassment [by the Appellant] had been taking place upon her due to the fact that she was providing information to the Montgomery County Detectives concerning the Nigel Anderson investigation of the homicide that occurred at the Crossroads Motel ... [S]he was in fear he might do her bodily harm.
As defense counsel never raised an objection on the basis that the statements were hearsay, the Commonwealth made no offer of proof. If given the opportunity, the Commonwealth could have successfully argued that the statements were not offered to prove the truth of the matters asserted. *254 The Commonwealth offered evidence that Rowden alleged, truthfully or untruthfully, that Appellant had harassed and assaulted her because of her cooperation with authorities in the Anderson murder investigation and that Rowden's allegations, true or untrue were communicated to Appellant. Evidence that Rowden believed that the Appellant was harassing and assaulting Rowden because of her cooperation in the Anderson murder, whether or not Appellant did, in fact, harass Rowden, is clearly relevant to the Commonwealth's argument that Appellant killed Rowden in retribution for and in order to stop her cooperation with authorities in the Anderson investigation.
Out-of-court statements by a murder victim may be admitted to establish the motive of the defendant when those statements are not offered to prove the truth of the matter asserted. Commonwealth v. Griffin, 511 Pa. 553, 515 A.2d 865 (1986). Further, the Commonwealth offered the testimony of Richard Mayo which corroborated the victim's out-of-court statements.[5]
Next, Appellant argues that the trial court erred in allowing the testimony of Commonwealth witness Mayo which referred to Appellant's involvement in the Anderson murder. Although Appellant does not cite to a specific statement in the record, we assume that Appellant is referring to Mayo's testimony that Appellant and the victim were arguing over the victim's involvement in the Anderson killing immediately before Appellant shot the victim. Defense counsel objected to this testimony to the extent that it involved the Anderson killing. The prosecutor argued that the testimony was relevant to motive. The trial court allowed the testimony but cautioned the prosecutor that "I don't want to get too deeply into it." As explained above, the testimony was relevant to motive and in light of the limited reference made as well as *255 the court's admonition to limit references to the Anderson killing we find no error.
Next, Appellant argues that the trial court erred in granting the Commonwealth's request that defense counsel be precluded from arguing to the jury with regard to Commonwealth witness Mayo's use of heroin at or about the time of the murder. However, a review of the record reveals that defense counsel had ample opportunity to address the subject. Moreover, it is clear that defense counsel did argue the existence of Mayo's heroin addiction at the time of the killing, specifically, during cross-examination and on three separate occasions during closing arguments.
Next, Appellant contends that the trial court erred by making light of witness Mayo's criminal and drug-related history by stating that Mayo was not a "choir boy." However, a review of the record reveals that when asked by defense counsel if he was aware that it was against the law to use drugs, Mayo shook his head, presumably indicating "yes." The trial judge then stated that "I think he admits he wasn't a choir boy." To which defense counsel stated, "That's true, Your Honor." The court's comment does not amount to error.
Next, Appellant contends that the trial court erred in precluding the cross-examination of Mayo as to his crimen falsi convictions. A witness may be impeached by showing a prior conviction only if the crime involved dishonesty or false statement. Commonwealth v. Randall, 515 Pa. 410, 528 A.2d 1326 (1987); Commonwealth v. Yost, 478 Pa. 327, 386 A.2d 956 (1978). Defense counsel asked Mayo if he had been convicted of robbery and burglary in 1973. Mayo answered that he did not recall. Defense counsel then began to ask if Mayo recalled being sentenced to one to two years of imprisonment for one of those offenses. The Commonwealth objected on the basis that Mayo had already stated that he did not recall being convicted of the crimes, and that the question was getting into a collateral matter. The defense was not precluded from offering proof of Mayo's convictions of burglary and robbery, but only of evidence regarding the length of his sentences *256 attendant to the alleged convictions for burglary and robbery. The sentences themselves are not crimen falsi, and thus, were not proper impeachment evidence. The court properly sustained the objection.
Next, Appellant contends that the trial court erred in precluding the cross-examination of Walker as to her crimen falsi convictions. Defense counsel asked Walker what sentence she received as the result of a forgery conviction. She answered that she did not recall. At that point, the Commonwealth objected to the question as irrelevant and the court properly sustained the objection. Later, defense counsel asked Walker if she had ever stolen in order to support her heroin addiction. The Commonwealth objected again on the basis that the question was irrelevant. The trial court properly sustained the objection. As discussed above, the defense was not precluded from offering evidence of Walker's conviction of forgery; the defense was precluded only from offering evidence of the sentence Walker received as a result of her forgery conviction. Walker's sentence is not crimen falsi. In addition, prior criminal acts not resulting in a conviction are not admissible to impeach a witness' credibility. Commonwealth v. Burton, 491 Pa. 13, 417 A.2d 611 (1980); Commonwealth v. Ross, 434 Pa. 167, 252 A.2d 661 (1969). Thus, any evidence in the form of allegations that Walker stole to support her heroin addiction, absent a criminal conviction, is inadmissible to impeach Walker. The court properly sustained the objections.
Next, Appellant argues that the court erred in admitting the identification testimony of Commonwealth witness, Frieda Sambrick. Frieda Sambrick was sitting on the steps of a nursing clinic located approximately 20 to 25 feet from the spot where Rowden's vehicle crashed. Sambrick observed the Appellant, whom she had known for eleven years, seated in the back seat of the vehicle which Rowden was driving. Sambrick observed Appellant lean forward, heard gunshots, heard Rowden scream, saw the car crash, and saw the Appellant run from the back seat of the car.
*257 Sambrick originally identified the wrong man in a police line-up. At Appellant's trial, however, Sambrick unequivocally identified Appellant as the man she observed leaving Rowden's car immediately following the shooting. Sambrick explained that she had initially lied at the line-up because she did not want to get involved in the investigation, as she believed that doing so would endanger herself and her family.
Appellant contends that the Commonwealth did not establish an independent basis upon which the reliability of Sambrick's in-court identification testimony could have been based. Appellant contends that Sambrick's earlier misidentification of Appellant "tainted" the police line-up and that Sambrick did not have sufficient opportunity to observe the Appellant at the time of the shooting. We disagree. Appellant misapplies the prior independent basis requirement for in-court identification testimony. Although Sambrick did identify the wrong man in the police line-up, there is no indication in the record, nor does Appellant allege that the police identified the Appellant to Sambrick or engaged in any other suggestive behavior at any time. Thus, there was no need to provide an independent basis for Sambrick's in-court identification.
In resolving the issue of the reliability of an in-court identification the court looks to the totality of the circumstances surrounding the identification. The relevant factors are as follows:
[T]he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and confrontation.
Commonwealth v. Ransome, 485 Pa. 490, 496, 402 A.2d 1379, 1382 (1979), quoting Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977).
The record reflects that Sambrick had ample opportunity to observe the Appellant at the time of the shooting itself. Sambrick testified that she knew the Appellant prior to the shooting, and that she observed the sequence of significant *258 events from within a clear and visible distance. Her description of the Appellant and the significant events surrounding the murder were accurate and corroborated by other witnesses. When challenged by defense counsel, Sambrick did not equivocate. Sambrick's observations of the shooting itself provided a sufficient independent basis for her in-court identification of Appellant.
Moreover, misidentification is merely a factor the jury may have considered in assessing the credibility of Sambrick's testimony. We have no reason to question the jury's determination in this regard. This argument is without merit.
Next, Appellant contends that the trial court erred in denying defense counsel the opportunity to cross-examine and impeach Sambrick by way of prior inconsistent statements allegedly made during the suppression hearing. However, a review of the record indicates only that the trial court insisted that the witness be given an opportunity to refresh her recollection by reading her suppression hearing testimony before that testimony was introduced into evidence as a prior inconsistent statement. Commonwealth v. Dennison, 441 Pa. 334, 272 A.2d 180 (1971); Steffy v. Carson, 422 Pa. 548, 222 A.2d 894 (1966). There was no error.
Next, Appellant argues that the trial court erred by admonishing defense counsel during the cross-examination of Commonwealth witness, Sambrick. Defense counsel had asked Sambrick, "[W]hen did you first hear of or see Mr. Fisher?", at which point the trial court interrupted, stating, "Counsel, I don't want to caution you, but stop asking open-ended questions without any precision." The court then directed the witness to answer the following question, "When did you first meet or see Mr. Fisher?", to which the witness replied, "ninety sixty-nine," [sic] meaning, presumably, 1969. The court's interruption and rephrasing of defense counsel's question merely facilitated the development of defense counsel's intended line of inquiry with a heightened degree of precision. There was no error.
*259 Next, Appellant argues that the trial court erred by sustaining the Commonwealth's objection to defense counsel's cross-examination of Commonwealth witness Sambrick regarding her use of alcohol. Again, Appellant fails to cite to a specific statement in the record, but we assume Appellant is referring to the following question of defense counsel to Sambrick: "And, in fact, between 1980 and 1987, you frequented other bars in this area, correct?" The Commonwealth objected to this question as irrelevant, and the trial court sustained the objection. Appellant offered no evidence that Sambrick was intoxicated on the day she witnessed the shooting. As the question was clearly irrelevant to Sambrick's condition or her ability to observe events on the day of the shooting, there was no error.
Next, Appellant argues that the trial court erred in failing to sustain defense counsel's objection to conclusory evidence offered by Commonwealth witness Sambrick. Sambrick testified to those facts which she witnessed. Specifically, that she heard a woman scream; saw the Appellant in the backseat of a car behind the victim; saw Appellant lean forward; heard a "boom" indicating a gunshot; and then saw the car crash into parked cars. There was nothing inappropriate or conclusory about Sambrick's testimony.
Next, Appellant contends that the trial court erred in failing to instruct the jury that inconsistent statements by witnesses could be used as substantive evidence and not only for impeachment purposes. However, the record reveals that at the close of the court's instructions to the jury, the court asked both counsel if any additional charges or corrections were necessary. The Commonwealth pointed out that the court had not yet instructed on prior inconsistent statements. The Court then proceeded to instruct the jury as requested by the Commonwealth. The Court instructed that the jury was to determine whether there existed any prior inconsistent statements, and whether the statements challenged the truthfulness of the witnesses' statements at trial. However, as defense counsel never requested a different instruction or a correction to the instruction which was given, before the *260 beginning of jury deliberations, the issue is waived. Commonwealth v. Johnson, 484 Pa. 545, 400 A.2d 583 (1979); Commonwealth v. Kampo, 480 Pa. 516, 391 A.2d 1005 (1978).
Next, Appellant contends that the court erred by sustaining the Commonwealth's objection to testimony concerning statements made by an individual identified as "Butch" to Appellant. Appellant testified that at the time of the murder he was physically ill, by reason of his use of alcohol and drugs, and was vomiting in a nearby alley when word of the shooting began to race through the neighborhood. The Appellant then began to testify as to what "Butch" said to him, when the Commonwealth objected to the testimony on the grounds that "Butch's" statement to Appellant was inadmissible hearsay. The objection was properly sustained. Johnson v. Peoples Cab Co., 386 Pa. 513, 126 A.2d 720 (1956); McCormick, Evidence, § 246 (2nd ed. 1972). Defense counsel took no exception to the ruling. Appellant argues that the statement related to the recent shooting and therefore fell within the res gestae/excited utterance exception to the general rule of exclusion of hearsay evidence. However, a review of the record reveals that defense counsel neither took an exception to the ruling nor made an offer of proof as to the statement being in the nature of an excited utterance entitled to exception from the general rule of exclusion. Thus, we have no means of determining what the contents of "Butch's" statement may have been and are therefore unable to determine whether the statement may have fallen within the res gestae/excited utterance exception. The Superior Court dealt with this precise issue in Williamson v. Philadelphia Transp. Co., 244 Pa.Super. 492, 368 A.2d 1292 (1976) and stated:
In the instant case the appellant did not make an offer of proof as to what the two female bystanders actually stated to the police officer. Appellant did not establish that the two declarants actually saw the accident or that their statements related to the litigated event. Because we do not know the substance of their statements, we cannot determine if the lower court erred in excluding the disputed testimony.
*261 Williamson, at 500, 368 A.2d at 1296. Accordingly, the evidence as offered was clearly inadmissible hearsay and was properly excluded.
Next, Appellant contends that the trial court erred in sustaining the Commonwealth's objection to defense counsel's cross-examination of Lt. Durante with regard to fingerprints. Lt. Durante testified that he had lifted fingerprints from the car in which the victim was murdered, but did not personally compare the lifted prints to Appellant's known fingerprints. On cross-examination, defense counsel asked Lt. Durante if any of the prints lifted matched Appellant's prints. The Commonwealth objected to the question as outside the scope of the witness' knowledge. The trial court agreed, indicating that, at best, the question was eliciting hearsay testimony. See Johnson v. Peoples Cab Co., 386 Pa. 513, 126 A.2d 720 (1956). The court then properly sustained the objection. There was no error.
Next, Appellant contends that the trial court erred by instructing witness Manilla to lecture the jury thereby giving Manilla's testimony more credence than it was due. However, a review of the record reveals that, upon Manilla's entry into the witness box, the court instructed Manilla to "run your voice across [the microphone]. The last lady near the leather door has to hear you. So pretend that you're in civics class and giving a speech." The Court's instructions were obviously intended to instruct the witness to keep his voice at a level so that he could be heard by the jury. There was no error.
Next, Appellant argues that the trial court erred in sustaining the Commonwealth's objection during cross-examination of Commonwealth witness, Lt. Woodward, based on the question having been asked and answered. During cross-examination, defense counsel asked Lt. Woodward if he had interviewed people other than the victim and the Appellant in regard to the Nigel Anderson murder. Lt. Woodward answered in the affirmative. Defense counsel then asked if Lt. Woodward could give a rough estimate of how many people were interviewed. Lt. Woodward answered, "I wouldn't hazard a guess, no, sir." Defense counsel then asked whether several specific *262 individuals were interviewed. Lt. Woodward acknowledged that they were. When defense counsel asked Lt. Woodward again if he could give a rough estimate of the number of people interviewed, the Commonwealth objected on the basis that the question had been asked and answered. Commonwealth v. Stoner, 284 Pa.Super. 364, 425 A.2d 1145 (1981). The trial court properly sustained the objection.
Next, Appellant contends that the court erred in overruling defense counsel's objection to the testimony of FBI Technician Riley as not responsive to the question. On direct examination, Riley testified to scientific comparisons of bullets found in the Appellant's apartment and bullets found in the victim's body. From this evidence, Riley opined that the bullets came from the same box of bullets. On cross-examination, defense counsel asked Riley what the term "homogenous" meant in the context of a "homogenous" melt of lead in the bullet making process. Riley answered the question by thoroughly describing how in a typical factory bullet making process, a single melt of lead does not provide bullets of a consistent nature i.e., that the melt is not homogenous. There was absolutely nothing improper about Riley's detailed explanation. In the course of this explanation, defense counsel interrupted Riley and asked the court to discontinue the answer; the court declined, accurately indicating that the answer was in response to defense counsel's question. There was no error.
Next, Appellant contends that the trial court erred in refusing to sustain defense counsel's objection to a question which had been asked and answered. On direct examination the Commonwealth asked Riley his opinion of the similarity between the bullets found in Appellant's apartment and the bullets found in the victim's body. Riley indicated that in his opinion there was a high degree of similarity. On cross-examination, defense counsel attempted to completely discredit Riley and the techniques upon which he based his opinion. On re-direct, the Commonwealth merely asked Riley whether in light of defense counsel's cross examination, Riley's opinion as to the similarity of the bullets remained the same. Defense counsel objected to the question as asked and answered on *263 direct. The trial court overruled the objection and allowed the answer. We note that the trial court has broad discretion as to the admission or exclusion of evidence. Commonwealth v. Claypool, 508 Pa. 198, 495 A.2d 176 (1985). We find no error in the trial court's decision to allow the question.
Next, Appellant argues that the trial court erred in refusing the Appellant's requested points for charge 1, 2, and 3. However, defense counsel made no specific objection to the court's decision, and the issue is waived. Commonwealth v. Martinez, 475 Pa. 331, 380 A.2d 747 (1977).
As all of Appellant's arguments regarding the guilt phase of his trial have been found meritless, we will affirm Appellant's conviction of murder in the first degree.
We now turn to Appellant's arguments of error pertaining to the penalty phase of the trial. As we find it necessary to vacate the judgment of sentence and remand this case for a new sentencing hearing we will only address that issue upon which we base our decision.[6]
The issue as presented by Appellant is that the trial court erred by allowing the Commonwealth to present "victim impact" evidence during the penalty phase hearing. Specifically, Appellant argues that although the United States Supreme Court in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), has reversed its earlier position on "victim impact" testimony, the sentencing scheme enacted by our legislature does not encompass such testimony, and thus, the trial court erred in allowing its admission. We agree with Appellant that the capital sentencing scheme in effect at the *264 time of his trial precluded the admission of "victim impact" testimony.[7]
Prior to Payne, the United States Supreme Court had prohibited the use of "victim impact" testimony in capital cases as such testimony was considered to violate the Eighth Amendment.[8] In Payne the Court reversed its earlier position and declared that "victim impact" testimony is not violative of the Eighth Amendment. Only where the States allow the introduction of evidence which is unduly prejudicial will the United States Supreme Court find that the process utilized has been fundamentally unfair and the due process rights of the accused violated.
We thus hold that if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence *265 about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed. There is no reason to treat such evidence differently than other relevant evidence is treated.
Payne, 501 U.S. at 827, 111 S.Ct. at 2609.
In abandoning the per se rule proscribing victim impact evidence in a capital trial, the U.S. Supreme Court emphasized the traditional latitude of the States to establish the sentencing procedures and appropriate punishment.
Under our constitutional system, the primary responsibility for defining crimes against state law, fixing punishments for the commission of these crimes, and establishing procedures for criminal trials rests with the States. The state laws respecting crimes, punishments, and criminal procedure are, of course, subject to the overriding provisions of the United States Constitution. Where the State imposes the death penalty for a particular crime, we have held that the Eighth Amendment imposes special limitations upon that process.
* * * * * *
"Within the constitutional limitations defined by our cases, the States enjoy their traditional latitude to prescribe the method by which those who commit murder shall be punished." Blystone v. Pennsylvania, 494 U.S. 299, 309, 110 S.Ct. 1078 [1084], 108 L.Ed.2d 255 (1990). The States remain free, in capital cases, as well as others, to devise new procedures and new remedies to meet felt needs. Victim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities.
Payne, 501 U.S. at 824-25, 111 S.Ct. at 2608.
The U.S. Supreme Court held that "if the state chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar." Id. at 827, 111 S.Ct. at 2609. The Court's *266 holding did not automatically rewrite the death penalty statute of any state, including that of Pennsylvania, to allow a prosecutor to introduce victim impact evidence at the capital sentencing hearing. The Court's decision merely eliminated the federal constitutional prohibition against the use of such evidence.
In light of the decision in Payne this Court must consider whether our capital sentencing scheme would permit the admission of relevant "victim impact" testimony. The pertinent part of the Pennsylvania Sentencing Code provided as follows:
(2) In the sentencing hearing, evidence may be presented as to any matter that the court deems relevant and admissible on the question of the sentence to be imposed and shall include matters relating to any of the aggravating or mitigating circumstances specified in subsections (d) and (e). Evidence of aggravating circumstances shall be limited to those circumstances specified in subsection (d).
42 Pa.C.S. § 9711(a)(2).
Appellant asserts that the above section should be read as limiting the admission of evidence at the penalty stage to only that which is specifically relevant to an enumerated aggravating or mitigating factor. Guided by the fundamental principle of statutory construction that penal provisions are to be strictly construed, 1 Pa.C.S. § 1928, we must agree. The imposition of capital punishment may not rest on a mere supposition that the Legislature intended victim impact evidence to be considered by a jury, but only upon the clear and unambiguous language of the death penalty statute. The absence of any reference to victim impact evidence in the death penalty statute, and the historical development of the statute, compel us to conclude that the above language did not authorize a trial court to allow the introduction of any evidence unrelated to the aggravating circumstances or mitigating circumstances presented during the sentencing procedure.
In Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990), the U.S. Supreme Court upheld the *267 constitutionality of the Pennsylvania death penalty statute. The Court summarized the constitutional limitations in imposing the death penalty.
First, there is a required threshold below which the death penalty cannot be imposed. In this context, the State must establish rational criteria that narrow the decisionmaker's judgment as to whether the circumstances of a particular defendant's case meet the threshold. Moreover, a societal consensus that the death penalty is disproportionate to a particular offense prevents a State from imposing the death penalty for that offense. Second, States cannot limit the sentencer's consideration of any relevant circumstance that could cause it to decline to impose the penalty. In this respect, the State cannot channel the sentencer's discretion, but must allow it to consider any relevant information offered by the defendant.
Id. at 308-09, 110 S.Ct. at 1084. (Citation omitted.)
The Pennsylvania death penalty met those limitations because a sentencing jury is permitted to consider all relevant mitigating evidence and death is not automatically imposed upon conviction for certain types of murder. "Section 9711 does not limit the types of mitigating evidence which may be considered, and subsection (e) provides a jury with a nonexclusive list of mitigating factors which may be taken into account including a "catchall" category providing for the consideration of `any other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense.'" Id. at 304, 110 S.Ct. at 1082.
The death penalty statute as originally enacted did not permit the defendant to introduce evidence of mitigation concerning his character, record, or circumstances of his offense. The "catchall" provision was nonexistent. Instead, mitigating circumstances were restricted to: (1) the age, lack of maturity, or youth of the defendant at the time of the killing; (2) the victim was a participant in or consented to the defendant's conduct or was a participant in or consented to the killing; and (3) the defendant was under duress. This statute was found to be unconstitutional because it limited the sentencing *268 jury's consideration of relevant circumstances that could cause it to decline to impose the death penalty.
The earlier death penalty statute provided, in part:
(c) Procedure at sentencing hearing.
After such verdict is recorded and before the jury is permitted to separate, the court shall proceed to receive such additional evidence not previously received from the trial as may be relevant and admissible upon the question of aggravating and mitigating circumstances and shall permit such argument by counsel, and deliver such charge thereon as may be just and proper in the circumstances.
(Emphasis added.) Once the statute was amended, however, to allow a broad spectrum of evidence to be introduced as a mitigating circumstance, this provision was amended also. The amendment resulted in the language of 42 Pa.C.S. § 9711(a)(2), that "evidence may be presented as to any matter that the court deems relevant and admissible on the question of the sentence to be imposed. . . ."
When the historical context of the amendments to the death penalty statute is examined, it becomes obvious that § 9711(a)(2) was rewritten in response to the expansion of mitigating circumstances that could be introduced at trial. The amendment gave latitude to the Commonwealth to introduce evidence to counter and respond to whatever mitigating evidence was introduced that fell within the "catchall" provision for mitigating circumstances. It was not intended to supply the Commonwealth with its own "catchall" provision for "any other" evidence, such as victim impact evidence, in its penalty phase case.
Having determined that "victim impact" testimony is not admissible during the penalty phase of a capital case, we now turn to the specific testimony at issue and the instructions given to the jury regarding that testimony. The Commonwealth offered the testimony of Betty Rowden, the victim's mother, regarding the impact which the victim's murder had on the victim's family.
*269 Betty Rowden testified regarding the closeness of the family, specifically, that the family never had baby-sitters, never went on vacation except as a whole family, and kept in close contact by telephone when they could not be physically near one another. She testified that following the murder, the family was forced to move to another state, away from the home that Linda's father had built when Linda was a baby, because Linda's mother and father "just could not stay in that area anymore. . . . It just had too many memories. . . . We always had big Christmases, big holidays, and everybody always came to our place for Christmas. . . . Linda and our other daughter was [sic] always involved. . . . And there were too many things she had given us, pictures on the wall." Betty Rowden further testified that before the move to their new home, Linda's mother and father were unable to use the upstairs of their home because of all the memories "we just closed off the upstairs of the house and didn't live there." When asked, "Did the murder of Linda have any effect on physical effect on you or any member of your family?," Betty Rowden replied, "Well my husband has been very sick since then, heart problem, plus a severe COPD," (indicating an obstructive pulmonary disease). Betty Rowden further testified that their move out of the state left her with a feeling that she had "left our our other daughter and our grandchildren." She also testified that she felt that her "grandchildren were cheated out of an aunt," that "[Linda Rowden] idolized [the oldest grandson]," and that "the [two younger grandchildren who were born after Linda Rowden's death] can only hear the [rest of the family] talking about Aunt Linda."
Over the objection of the Appellant, the trial court admitted Mrs. Rowden's testimony and charged the jury in the penalty phase instructions with regard to that testimony as follows:
Members of the jury, you have now heard testimony from the victim's mother, Mrs. Rowden. In order that you may assess meaningfully the Defendant's moral culpability and blameworthiness, this evidence of the specific harm caused by the Defendant should be considered by you during the penalty phase of this trial.
*270 The Commonwealth is permitted to and has a legitimate interest in counteracting the Defendant's mitigating evidence by reminding you that, just as the murderer should be considered as an individual, so too the victim, Linda Rowden, is an individual whose death represents a unique loss to society and, in particular, to her family.
The trial court's charge in the penalty phase improperly instructed the jurors that the victim impact evidence could be considered in determining whether the death sentence should be imposed. The charge directed the jurors to consider the victim impact evidence in deciding whether to impose a life sentence or the death penalty upon Appellant. The impact of the victim's death on society and her family is not a legitimate factor on which a sentence of death can be based. There was only one mitigating circumstance submitted to the jury Appellant's service record and his conduct in the service of his country during the Vietnam War. The trial court obviously mischaracterized the victim impact evidence as evidence counteracting Appellant's mitigating evidence.
The trial court's charge confused the jurors and prompted them to inquire whether the victim impact evidence should be used as an aggravating circumstance on a form supplied to them, or whether "it should be considered verbally-mentally but not written on the form." N.T. August 28, 1991, pp. 126-27. The trial court instructed the jurors "do not place the victim's family's effects on the form," but to "consider it mentally" in their deliberations. N.T. p. 127. The clear import of the inquiry was that the jurors did not understand what significance was to be given to the victim impact evidence, but believed that the evidence was being introduced as an aggravating circumstance. The trial court's response did not alleviate this problem. Instead, the jurors were sent a mixed message. They were told to consider the evidence "mentally," without guidance as to how to weigh evidence which neither established an aggravating circumstance nor rebutted evidence of a mitigating circumstance.
*271 The jury was obviously confused as to the weight this testimony was to be given in their deliberations and may have viewed the victim impact testimony as an aggravating circumstance. This interjected an arbitrary and impermissible factor into the sentencing decision of the jury. Accordingly, this Court affirms the conviction for murder in the first degree, vacates the judgment of sentence, and remands this matter for a new sentencing hearing.
CAPPY, J., files a concurring opinion.
CASTILLE, J., files a dissenting opinion in which NEWMAN, J., joins.
CAPPY, Justice, Concurring:
Although I concur in the decision of the majority that this case must be remanded for a new penalty hearing, I strongly disagree with the majority's conclusion that "victim impact" testimony is not admissible at the penalty phase of a capital case.
As the majority so eloquently sets forth, prior to Payne,[1] the United States Supreme Court had prohibited the use of "victim impact" testimony in capital cases as such testimony was considered to violate the Eighth Amendment. In Payne, the Court reversed its earlier position and declared that "victim impact" testimony is not violative of the Eighth Amendment. The Payne decision focused upon the role of the States in deciding what factors are to be relevant in a determination of the appropriate penalty in a capital case.
We thus hold that if the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that subject, the Eighth Amendment erects no per se bar. A State may legitimately conclude that evidence about the victim and about the impact of the murder on the victim's family is relevant to the jury's decision as to whether or not the death penalty should be imposed. There *272 is no reason to treat such evidence differently than other relevant evidence is treated.
Payne, 501 U.S. at 827, 111 S.Ct. at 2609.
In light of the decision in Payne, this court must now consider whether our capital sentencing scheme would permit the admission of relevant "victim impact" testimony. The pertinent part of the Pennsylvania Sentencing Code necessary to such a consideration provides as follows:
(2) In the sentencing hearing, evidence may be presented as to any matter that the court deems relevant and admissible on the question of the sentence to be imposed and shall include matters relating to any of the aggravating or mitigating circumstances specified in subsections (d) and (e). Evidence of aggravating circumstances shall be limited to those circumstances specified in subsection (d).
42 Pa.C.S.A. § 9711(a)(2) (emphasis added).[2]
The Majority reads the above section as limiting the admission of evidence at the penalty stage to only that which is specifically relevant to an enumerated aggravating or mitigating factor. I respectfully disagree and instead read the above language as empowering the trial court to allow the introduction *273 of any evidence "relevant and admissible on the question of the sentence to be imposed."
In Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846 (1989), this court specifically rejected the argument that 42 Pa.C.S. § 9711(a)(2) limits the presentation of evidence to only those matters specifically enumerated as aggravating and mitigating factors. In that case, the defendant sought to introduce information to the jury about his character and background which would influence them in favor of a life sentence, and to prohibit the prosecution from rebutting that testimony and presenting evidence in contradiction to the defendant's statements. The defendant based his argument on the language of § 9711(a)(2), claiming that the prosecution could only introduce evidence relevant to an enumerated aggravating or mitigating factor. This court rejected that argument:
We do not read the statute as limiting the scope of the sentencing hearing to this extent.... If matters relating to the aggravating and mitigating circumstances were the only matters capable of being explored, the first phrase emphasized above would be surplusage, indeed, misleading surplusage. Such a reading would, of course, be contrary to the most basic rules of statutory construction.
Abu-Jamal, 521 Pa. at 213, 555 A.2d at 858 (1989). The Abu-Jamal court then went on to explain that, although a sentence of death can only be imposed because of the factors enumerated within the statute, that does not require that the sentencing hearing be limited only to evidence going to one of the specific aggravating or mitigating factors. All relevant evidence, that does not unduly prejudice the defendant, should be admitted so that the jurors may have the benefit of as much information as possible when considering such a grave decision.[3]Id. at 214, 555 A.2d at 859.
*274 In non-capital cases a "victim impact" statement is a required portion of all pre-sentence investigation reports. See Pa.R.Crim.P., Rule 1403 A(4). Further, the Pennsylvania legislature obviously considers "victim impact" testimony to be a relevant and important consideration in sentencing. The BASIC BILL OF RIGHTS FOR VICTIMS, 71 P.S. § 180-9.3, provides in part as follows:
Victims of crime have the following rights:
(5) To have the opportunity to offer prior comment on the sentencing of a defendant to include the submission of a written victim impact statement detailing the physical, psychological and economic effects of the crime on the victim and the victim's family, which statement shall be considered by the judge when determining the defendant's sentence.
The "victim" is defined at 71 P.S. § 180-9.1(3) to include: "A family member of a homicide victim, including stepbrothers or stepsisters, stepchildren, stepparents or a fiance. . . ." (emphasis supplied).
In all non-capital sentencing hearings "victim impact" statements are provided to the sentencing authority for consideration in the deliberative process which culminates in the imposition of a particular sentence upon a particular defendant as a result of the specific crime at issue. I can see no justification for requiring "victim impact" statements to be considered in non-capital cases and simultaneously prohibiting the consideration of such evidence in capital cases.[4]
"It is the province of the legislature to determine the punishment imposable for criminal conduct." Commonwealth v. Wright, 508 Pa. 25, 40, 494 A.2d 354, 361 (1985), aff'd sub nom. McMillan v. Pennsylvania, [477] U.S. [79], 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) (citing cases). The legislature has enacted a statutory scheme so that a determination can be made as to whether the death penalty *275 should be imposed in a given case. The statute embodies the legislature's judgment as to what specific factors relating to the nature of the crime and the character and record of the accused should be considered in making that determination. The discretion of the sentencing body is thereby limited and channeled in a manner which we have held is adequate to prevent the arbitrary and capricious imposition of the death sentence. Commonwealth v. Zettlemoyer, [500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983)].
Commonwealth v. DeHart, 512 Pa. 235, 263, 516 A.2d 656, 671 (1986).
As it is clear that our legislature has decided that victim impact statements are a relevant consideration for the sentencing authority, and has authorized the trial court to allow the admission of all relevant information in a penalty phase hearing, I would conclude that "victim impact" testimony may be considered by the jury as relevant to their sentencing determination in a capital case.
In reaching this conclusion I find compelling the reasoning employed by Justice Souter in the concurring opinion in Payne:
To my knowledge, our legal tradition has never included a general rule that evidence of a crime's effects on the victim and others is, standing alone, irrelevant to a sentencing determination of the defendant's culpability. Indeed, . . . criminal conduct has traditionally been categorized and penalized differently according to consequences not specifically intended, but determined in part by conditions unknown to a defendant when he acted.
. . . .
Murder has foreseeable consequences. When it happens, it is always to distinct individuals, and after it happens other victims are left behind. . . . The fact that the defendant may not know the details of a victim's life and characteristics, or the exact identities and needs of those who may *276 survive, should not in any way obscure the further facts that death is always to a "unique" individual, and harm to some group of survivors is a consequence of a successful homicidal act so foreseeable as to be virtually inevitable.
Payne, 501 U.S. at 835 and 838, 111 S.Ct. at 2614 and 2615, 115 L.Ed.2d at 742 and 744.
Although I would hold that "victim impact" testimony is not, per se, prohibited during the penalty phase of a capital case, and is a relevant consideration, I am compelled to agree with the majority that a new sentencing hearing is required in the instant case. However, I reach this conclusion only because I believe that the instructions given to the jury regarding the "victim impact" testimony in the case at bar were inadequate, and, thus a new penalty hearing is required.
CASTILLE, Justice, Dissenting:
I dissent from the majority's reversal of appellant's sentence of death and holding that "victim impact" testimony is not admissible during the penalty phase of a capital case. Instead, I agree with the concurring opinion's determination that "victim impact" testimony is a relevant consideration for a jury during the penalty phase of a capital case. I write separately, however, because I believe that even if the challenged testimony did constitute "victim impact" testimony, the trial court's instructions in the case sub judice were adequate to advise the jury of the proper light in which it would consider such evidence. Hence, I would affirm appellant's sentence of death.
In addition to holding that "victim impact" testimony is per se, inadmissible, the majority also speculates that the jury was confused about the effect the "victim impact" testimony was to play in their deliberations upon the sentence.[1] The majority asserts that the jury may have believed that the "victim *277 impact" testimony was to be weighed equally in their deliberations with the submitted aggravating and mitigating factors, or that the testimony was to be considered evidence of another aggravating circumstance. The majority contends that this confusion resulted from the trial judge's instruction to the jury which "mischaracterized" the victim's testimony as evidence counteracting appellant's mitigating evidence.
However, contrary to the majority's assertion, the trial judge's charge to the jury did not in any way instruct the jury to consider the victim's testimony as evidence of an aggravating circumstance. The words "aggravating circumstance" were never used in the context of "victim impact" testimony. Rather, the trial judge instructed the jury that in considering the "victim impact" testimony and the Commonwealth's interest in counteracting the defendant's mitigating evidence, they should consider that "just as the murderer should be considered an individual, so too the victim, Linda Rowden, is an individual whose death represents a unique loss to society and, in particular, to her family."
It is well settled that there is a presumption in the law that a jury will follow the court's instructions, thus, I believe any confusion that the majority speculates the jury may have suffered was cured by the additional information provided to the jury by the trial judge after the jury presented its question regarding the testimony during their deliberations. Commonwealth v. Tilley, 528 Pa. 125, 142, 595 A.2d 575, 583 (1991). The trial judge adequately instructed the jury that such testimony was not to be considered evidence of an aggravating circumstance but rather, it should only be considered mentally in their deliberations. The judge's answer adequately ensured that the jury understood the manner in which they would consider the "victim impact" testimony.
*278 Moreover, the majority's reversal of appellant's death sentence on the basis of speculation regarding the jury's deliberations is unnecessary because the aggravating circumstance found by the jury was wholly unrelated to the "victim impact" testimony. The jury found that appellant murdered the victim, his ex-girlfriend, because he believed she was providing the police with information concerning appellant's alleged previous involvement in another murder. See, 42 Pa.C.S. § 9711(d)(15).[2] This aggravating circumstance is not related in any manner to the substance of the testimony of the victim's mother, Betty Rowden. Ms. Rowden's testimony concerned how the murder of her daughter devastated her life and the close relationship her family had enjoyed before her daughter was murdered by appellant. Such testimony did not provide any evidence that the victim was providing the police with any information regarding appellant's criminal activities; thus, even if the jury was confused about the effect the "victim impact" testimony was to play upon their deliberations, such confusion resulted only in harmless error. The jury's finding that the aggravating circumstance outweighed the mitigating evidence mandates that the death penalty be imposed. 42 Pa.C.S. § 9711(c)(1)(iv). There is simply no indication in this case that the jury, following the trial judge's accurate instruction and his subsequent curative answer to their question, improperly considered the "victim impact" testimony during their deliberations or in determining that the aggravating circumstance was proven beyond a reasonable doubt and outweighed the mitigating evidence presented. Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988); Commonwealth v. Young, 524 Pa. 373, 572 A.2d 1217 (1990), cert. denied, ___ U.S. ___, 114 S.Ct. 1389, 128 L.Ed.2d 63 (1994). Accordingly, I dissent from the majority and would affirm the sentence of death.
NEWMAN, J., joins in this dissenting opinion.
NOTES
[1] See 42 Pa.C.S. §§ 722(4), 9711(h)(1); Pa.R.A.P. 702(b) and 1941.
[2] Appellant was charged and initially convicted in federal court of violating Anderson's civil rights. Anderson had been scheduled to testify as a government witness in a federal drug prosecution case, but was murdered before he had an opportunity to testify. Appellant's federal conviction in the Anderson murder was ultimately overturned. The subsequent reversal of the federal "Anderson" conviction served as the basis for the reversal of Appellant's state murder conviction in Commonwealth v. Fisher, 527 Pa. 345, 591 A.2d 710, (1991) (hereinafter Fisher I, the case sub judice shall be referred to as Fisher II). Appellant's alleged involvement in the Anderson killing had been admitted into evidence during Appellant's first state court trial for the Rowden murder, Fisher I.
[3] Prior to the instant murder, the victim had complained to police that Appellant had assaulted her and had been harassing her because of her cooperation with authorities in the investigation of the murder of Nigel Anderson. Evidence was offered which indicates that the victim wanted Appellant to be arrested and a complaint was prepared. An officer spoke to Appellant at the time the complaint was issued and told him that the victim was going to press charges and that he should stay away from her. According to Mayo, Appellant and the victim were arguing in the car immediately before the shooting about the victim's cooperation with police investigating the Anderson murder.
[4] This Court encourages zealous advocacy, particularly in the context of capital appeals; it does not, however, condone unsupported and conclusory argumentation. Many of the arguments asserted in the instant appeal are presented in only the most cursory of form, and are often completely devoid of merit. However, in light of the paramount importance which this Court places upon full and detailed review of capital convictions on direct appeal, the Court has endeavored, in these instances, to the extent practical, to fully review the asserted arguments. Nonetheless, upon full and complete review of all of the arguments, the Court is satisfied that these arguments are meritless. We see no reason to set forth Appellant's arguments in any greater detail than that offered by Appellant himself and do not believe that setting forth our full analysis on each issue would result in meaningful guidance to the Bar. Accordingly, we have, in these instances, merely set forth each asserted argument and a short disposition.
[5] Mayo was seated in the front seat of the car that the victim was driving when she was murdered. He testified that the victim and Appellant had been arguing about a statement the victim had made to the police regarding the Anderson killing.
[6] The penalty phase issues which we do not reach are stated by Appellant as follows: 1. The sentencing court erred in permitting the Commonwealth to proceed under the aggravating circumstance set forth in 42 Pa.C.S. § 9711(d)(15), which was promulgated after the killing but before Appellant's trial; 2. The sentencing court erred in permitting Lt. Timothy Woodward to testify concerning "records" which were not properly authenticated; 3. The sentencing court erred in instructing the jury on only one mitigating circumstance; and, 4. The sentencing court erred in sustaining the Commonwealth's objection to defense counsel's closing argument during the penalty phase.
[7] On October 11, 1995, the death penalty statute was amended so as to permit evidence concerning the victim and the impact that the victim's death had on the family of the victim to be admitted in the sentencing hearing. The amendment, which was to take effect 60 days thereafter, applies only to sentences imposed for offenses which took place on or after its effective date. Thus, the amendment does not apply to the offense committed by the Appellant. References in this opinion to our capital sentencing scheme are limited to the scheme in effect prior to the 1995 amendment.
[8] The initial decision declaring "victim impact" testimony violative of the Eighth Amendment came in the case of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987). The Booth Court found that such evidence would be emotionally charged and thus, interfere with the reasoned decision making process required in capital cases. Id. at 508-09, 107 S.Ct. at 2535-36.
Following Booth, the court considered in South Carolina v. Gathers, 490 U.S. 805 [109 S.Ct. 2207, 104 L.Ed.2d 876] (1989), the question of whether the prosecutor could urge the jury in his closing statements to sentence Gathers to death on the basis of the personal characteristics of Gathers' victim. Analogizing the prosecutor's argument to the introduction of victim impact statements utilized in Booth, the Court found the prosecutor's argument improper as the victim's character was irrelevant to the circumstances of the crime.
Booth and Gathers reflect the sentencing philosophy that the defendant should be punished for his actions upon careful consideration of the defendant's character and background and the circumstances of the particular crime. The punishment should not be related to "factors about which the defendant was unaware, and that were irrelevant to the decision to kill." Booth, 482 U.S. at 505, 107 S.Ct. at 2534.
[1] Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).
[2] I note that this section of the statute has recently been amended and that the amendment specifically authorizes the admission of "victim impact" testimony. The section as amended now reads:
(2) In the sentencing hearing, evidence concerning the victim and the impact that the death of the victim has had on the family of the victim is admissible. Additionally, evidence may be presented as to any other matter that the court deems relevant and admissible on the question of the sentence to be imposed. Evidence shall include matters relating to any of the aggravating or mitigating circumstances specified in subsections (d) and (e), and information concerning the victim and the impact that the death of the victim has had on the family of the victim. Evidence of aggravating circumstances shall be limited to those circumstances specified in subsection (d).
The amendment was enacted October 11, 1995 to be effective 60 days thereafter; thus, it is not dispositive of appellant's claim. Further, I do not find the specific amendment of this section to alter my position on this issue, as we conclude that "victim impact" testimony is always a "relevant" consideration and within the scope of the sentencing scheme. I believe that the legislature's amendment specifically referring to "victim impact" testimony merely clarifies the matter and makes this statute consistent with the legislative enactment at 71 P.S. § 180-9, titled Basic Bill of Rights For Victims.
[3] If "victim impact" testimony is used by the Commonwealth to argue that the defendant should be put to death because of the impact the killing of this particular victim had upon his/her family, then the proffered "victim impact" testimony would be inadmissible as unduly inflammatory and beyond the scope of our decision in Abu-Jamal, and beyond the intent of the legislative scheme set forth in 42 Pa.C.S. § 9711.
[4] As noted in footnote 2 supra, the legislature has now amended 42 Pa.C.S. § 9711 (a)(2); with this amendment, section 9711(a)(2) is now wholly consistent with 71 P.S. § 180-9.3.
[1] I do not believe that the jury's single question during deliberations inquiring whether the effect of the victim's death on the victim's family should be used as an aggravating circumstance proved confusion. As discussed infra, in response to the question, the trial court gave a clear instruction that the jury was not to place the effect of the victim's death on the victim's family on the verdict form, but rather the jury must only consider it mentally in their deliberations. Furthermore, appellant's counsel did not at any time poll the jury or attach affidavits from the jurors to substantiate the allegation that the jurors were still confused about the use of the "victim impact" testimony, assuming such confusion existed, which would arguably give the majority a basis for its present ruling on this topic. Commonwealth v. Patrick, 416 Pa. 437, 440, 206 A.2d 295, 296 (1965)(a defendant has an absolute right to poll the jury; however, such a right is dependent upon the defendant to make such a request).
[2] The Commonwealth presented evidence that appellant believed the victim was providing the police with evidence implicating appellant in a conspiracy which resulted in the murder of a federal narcotics witness. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374078/ | 4 Ariz. App. 420 (1966)
420 P.2d 992
STATE of Arizona ex rel. Justin HERMAN, Director, Arizona Highway Department, Appellant,
v.
Jack A. WILSON and Violet R. Wilson, his wife, Appellees and Cross Appellants. STATE of Arizona ex rel. Justin HERMAN, Director, Arizona Highway Department, Appellant,
v.
James L. FINLEY and Margaret I. Finley, Appellees.
No. 2 CA-CIV 126.
Court of Appeals of Arizona.
December 6, 1966.
Opinion Supplemented and Rehearing Denied January 19, 1967.
*424 Darrell F. Smith, Atty. Gen., William E. Kimble, Sp. Asst. Atty. Gen., Tucson, for appellant.
Dunseath, Stubbs & Burch, by Robert C. Stubbs, Tucson, for appellees and cross appellants.
Opinion Supplemented and Rehearing Denied January 19, 1967. See 4 Ariz. App. 577, 422 P.2d 408.
MOLLOY, Judge.
This is an appeal from judgments rendered in two condemnation actions which were consolidated for trial purposes. The actions involved the conversion of State Highway 86, running between Benson and Willcox, Arizona, into U.S. Interstate 10. The two properties concerned lie in Texas Canyon near the intersection of this interstate highway with Dragoon Road, a county road which runs into the interstate highway from the south. The land taken from both property owners was to be used to construct a traffic interchange at this road junction.
As the result of these condemnation actions, both properties would be deprived of all direct access to the interstate highway. In the "before" situation, both properties had substantial frontages on a highway consisting of two strips of pavement conducting, respectively, east and west traffic. In the vicinity of the two subject properties, there were three crossovers so that westbound traffic could turn into the respective properties. The two strips of pavement in the "after" situation remained in place, but the crossovers were eliminated and the only access to the properties in question in the future was to be by means of the Dragoon Road interchange, which was designed for low speed, low density traffic.
*425 A jury trial lasted for fifteen full trial days and resulted in jury verdicts (1) allowing the Finleys $17,220 for the property taken and $10,530 for severance damages, and (2) allowing the Wilsons $65 for the property taken and $20,763 severance damages. The state has appealed from both judgments and the defendants Wilson have cross-appealed from the judgment in their favor, contending that the damages allowed were inadequate insofar as severance damages are concerned.
The appeal taken by the state is presented in thirteen questions for review. The first seven all question the trial court's rulings upon the nature and extent of an abutting property owner's access rights in a public highway, and the extent to which the damages to access rights sustained in this action were noncompensable because caused by an exercise of the police power of the state. Generally, the state contends that a property owner's right of access in an abutting public highway is a private easement which does not extend to patrons, clients and customers, nor to the traveling public upon the through highway, and that any damage caused to the property owner by interference with access pertaining to such persons is damnum absque injuria because resulting from an exercise of police power.
It is, of course, well-established law that damages resulting from an exercise of the police power of the state are noncompensable. 1 Nichols on Eminent Domain, § 1.42, p. 87 (3d ed. 1964). We believe it also to be the law that a condemnation action may present items of damage which are both compensable and noncompensable, and that if proper objections and requests for jury instructions are made, the trial court has the duty to segregate the compensable from the noncompensable. The following language in Rose v. State, 19 Cal.2d 713, 123 P.2d 505 (1942), is deemed pertinent:
"Whenever it becomes necessary to estimate the amount of damage inflicted upon private property for the benefit of the public, whether or not there is a taking of property in conjunction with the damage, there is a danger that the decline in market value may be attributable to causes other than those for which the landowner is entitled to recover." 123 P.2d at 519
* * * * * *
"Damages resulting from an interference with private rights of property must be estimated with reference to the diminution in value caused by that legal injury. The presence of a single compensable injury, such as the impairment of an easement, should not be made the basis for a recovery of the total depreciation in value of a landowner's property where it appears that much of the depreciation is attributable to legally noncompensable factors." 123 P.2d at 521-522
The foregoing is well-established law in the State of California. People v. Ricciardi, 23 Cal.2d 390, 144 P.2d 799 (1943), the landmark decision dealing with loss of access rights, is in accord:
"Not every depreciation in the value of the property not taken can be made the basis of an award of damages." 144 P.2d at 802
Other leading California cases to the same effect are: Sacramento and San Joaquin Drainage District etc. v. Reed, 215 Cal. App.2d 60, 29 Cal. Rptr. 847 (1963); People ex rel. Dept. of Public Works v. Ayon, 54 Cal.2d 217, 5 Cal. Rptr. 151, 352 P.2d 519 (1960); Blumenstein v. City of Long Beach, 143 Cal. App.2d 264, 299 P.2d 347 (1956).
The following are supportive and illustrative of this view: Campbell, The Limited Access Highway Some Aspects of Compensation, 8 Utah L.Rev. 12, 18-19 (1962-1964); 5 Nichols on Eminent Domain § 18.42(1), pp. 240, 249 (3d ed. 1962); State v. Ensley, 240 Ind. 472, 164 N.E.2d 342 (1960); State v. Fox, 53 Wash.2d 216, 332 P.2d 943 (1958); 26 Am.Jur.2d Eminent Domain § 160, pp. 829-31.
*426 We believe it also to be well-established law that the property owner has no property right in the traffic flowing by his property, as such, and that a diversion of such traffic by the state authorities is noncompensable. Rayburn v. State, 93 Ariz. 54, 58, 378 P.2d 496 (1963); Mabe v. State, 86 Idaho 254, 385 P.2d 401 (1963); People v. Ricciardi, 23 Cal.2d 390, 144 P.2d 799, 804 (1943).
While the difference between the "before" and the "after" value of real estate has been suggested by our Supreme Court as being a measure of severance damages in condemnation actions, State ex rel. Morrison v. Thelberg, 87 Ariz. 318, 325, 350 P.2d 988 (1960), we do not believe that our Supreme Court has intended the "before" versus "after" test to be used in such manner as to include noncompensable damage within the award to property owners in condemnation actions. Accordingly, we approach the problems presented to us on this appeal accepting these basic contentions of the state.
However, in attempting to apply this well-established law to this case, we believe that the state fundamentally misconceives the nature of an abutting property owner's rights of access as established by prior Supreme Court decisions in our state and that much of its argument pertaining to the police power therefore misses the mark.
In State ex rel. Morrison v. Thelberg, supra, the Supreme Court stated:
"* * * an abutting property owner to a highway has an easement of ingress and egress to and from his property which constitutes a property right." 87 Ariz. at 324, 350 P.2d at 991.
Also:
"When the controlled-access highway is constructed upon the right of way of the conventional highway and the owner's ingress and egress to abutting property has been destroyed or substantially impaired, he may recover damages therefor." 87 Ariz. at 325, 350 P.2d at 992.
Limiting the nature of this property right is the following in Thelberg:
"It seems to be the law, however, that where land is condemned or purchased for the construction of a controlled-access highway upon a new right of way alongside the old road that an abutting owner of land on the old highway, which is retained as a service road, cannot recover damages for destruction or impairment or loss of access for the reason that his access to the old highway has not been disturbed in the slightest degree. State v. Peterson, 134 Mont. 52, 328 P.2d 617-628." 87 Ariz. at 324-325, 350 P.2d at 992.
In Thelberg, damages were allowed on the basis that by placing the Thelberg property upon a new frontage road and depriving it of its access to the old roadway, the highest and best use of the remaining portion had been changed from that of commercial to residential. (87 Ariz. at 326, 350 P.2d 988.) It is most apparent in Thelberg that damages were being allowed for the deprivation of access to the through traffic. The result reached is completely inconsistent with appellant's thesis here that the abutting owner's access rights do not include prospective customers who may be a portion of this through traffic. The Thelberg result is also reached in a somewhat different factual situation in State ex rel. Morrison v. Jay Six Cattle Company, 88 Ariz. 97, 353 P.2d 185 (1960).
The same court deciding these cases, however, has held:
"`The benefits which come and go from the changing currents of travel are not matters in respect to which any individual has any vested right against the judgment of the public authorities.'" Rayburn v. State, 93 Ariz. 54, 58, 378 P.2d 496, 499 (1963), quoting from State v. Peterson, 134 Mont. 52, 328 P.2d 617 (1958)
The rationale of these decisions must lie in the essence of the right of access, as recognized by our Supreme Court. *427 The decisions are only reconcilable if the right of access in question is regarded as an easement appurtenant to the abutting, privately owned land attaching to the specific land occupied by the abutting highway as the servient estate. That this is the basic nature of the right in question is indicated by: 26 Am.Jur.2d Eminent Domain § 199, pp. 880-882; 25 Am.Jur. Highways § 154, pp. 448-451; 29A C.J.S. Eminent Domain § 105(1), pp. 424-429; 39 C.J.S. Highways § 141, pp. 1079-1083; Clarke, The Limited Access Highway, 27 Wash.L.Rev. 111, 115.
Most publicists speculating upon the origin of the easement in question suggest that it harks back to the time when roads were established by property owners through their lands, without compensation from the public, for the mutual convenience of themselves and the public. Hendrickson v. State, 267 Minn. 436, 127 N.W. 2d 165, 171 (1964); Campbell, The Limited-Access Highway Some Aspects of Compensation, 8 Utah L.Rev. 12, 14 (1962-1964); Covey, Frontage Roads: To Compensate or Not to Compensate, 56 N.W. U.L.Rev. 587, 596-97 (1961); 1959 Wash. U.L.Quarterly 310, Note: Limited-Access Highways: Public Interest v. Access Rights of Abutting Owners; Cunningham, The Limited-Access Highway From a Lawyer's Viewpoint, 13 Mo.L.Rev. 19, 31 (1948). Even in this day, it is well known that many property owners dedicate roads to the public, free of charge, for the mutual benefit of the public and the landowner so dedicating. It is also part of our statutory law that abutting property owners are often charged the cost of improving and widening the public streets in front of their properties. See Weitz v. Davis, 4 Ariz. App. 209, 419 P.2d 113 (1966).
The equities inherent in the origins of this right of access urge that it be dignified as a right-in-land and our court has so considered it. When this right is considered as a real property right, it no longer appears "absurd"[1] that there are remarkable differences in the value of rights of access depending upon the particular location of the interstate non-access highway. All real estate has relative value by reason of its location. This is an economic axiom affecting the value of access rights as well as all other real property. When public authority through its power of eminent domain severs from the dominant tenement of the landowner the appurtenant easement over the servient real estate (in this case, the highway),[2] and if the servient estate by reason of its particular location is used and is going to be used in the foreseeable future as an interstate highway, it seems clear that the property owner has been damaged by such extinguishment substantially more than if the servient estate was an untraveled dirt road. The additional damage caused by reason of the fact that the servient estate is a well-traveled highway cannot be relegated to the classification of damnum absque injuria merely because such traffic is subject to being diverted to another location at some speculative future time. The important thing in cases such as this is that the traffic has not been diverted; rather the land over which the abutting property owner has an easement carries heavy traffic and will continue to do so into the foreseeable future.
*428 With this basic understanding as to the nature of an abutting property owner's right of access, we consider the first question presented by the state for review, which relates to whether the court erred in permitting the jury to consider loss of business to the Wilson guest ranch as an item of damage. In the state's brief it is pointed out that Mrs. Wilson, one of the property owners, was permitted to testify, over objection, that the gross volume of the guest ranch business conducted on their property had dropped one-third after the access rights were taken. In overruling an objection to such testimony the court stated that such evidence "* * * cannot be used for the purpose of showing the non-compensable injury of loss of profits. It will be admitted by the court for the purpose of showing or running to the establishment of the value before and after of this property."
Further, in instructing the jury, the court stated:
"You are instructed that you are not to consider any claimed loss or impairment of business of the defendants in assessing damages to the remainder of the property, inasmuch as the law permits damages to be awarded for injury to property but not injury to business conducted thereon."
It seems to be the general law that in a condemnation action evidence of profits derived from a business conducted on the property is too speculative or uncertain to be considered as a basis for computing or ascertaining market value of property. For general statements of this law, see Orgel, Valuation Under Eminent Domain, Vol. 1 (2d ed. 1953) § 162, pp. 655-62; Jahr, Law of Eminent Domain, § 147, p. 226 (1953); annotations 7 A.L.R. 164, 65 A.L.R. 455, 134 A.L.R. 1125, 16 A.L.R.2d 113, and 27 Am.Jur.2d § 286, p. 87. However, the courts have consistently distinguished between profits from a business and income from the real property itself, which is considered to have relevancy as to the market value of the land. See treatises and annotations cited above. Though this distinction has almost universal acceptance, the courts have had difficulty in determining when income arises from a "business" as opposed to that derived from the intrinsic nature of the property itself.
In drawing a dividing line between the two types of income involved, we believe that considerable room for the discretion of the trial court must be allowed. We see sufficient relationship between the income from a guest ranch and the value of the real property used as that guest ranch so that we do not consider the admission of the evidence in question to be an abuse of discretion. Neither do we feel that the jury was permitted by the court to consider this evidence of loss of profits for an improper purpose, in view of the limiting instructions quoted above.
The next question for review is whether the trial court erred in permitting the jury to consider loss of traffic as an item of damage. During the trial traffic counts conducted by the State Highway Department of the interstate highway in question were admitted in evidence without objection on the part of the state. At the time the jury instructions were settled, the state requested an instruction telling the jury to completely disregard whether motor traffic, other than that of the owners of the properties themselves, would be less likely to see or stop at the properties remaining. This instruction further informed the jury that the right of access in question was a "* * * purely personal right in the owners themselves" and the fact that the state in making the highway changes had removed the general flow of traffic from a point immediately in front of, and accessible to, the properties in question should not to any extent whatever be considered in determining severance damages. This instruction runs counter to the case law of this state discussed above, and we hold the instruction was properly refused. Contrariwise, the trial court gave, over objection, an instruction that the jury might consider evidence concerning the amount of *429 traffic which passed along the highway in the vicinity of the defendants' property. There was no objection to this instruction on the basis of its singling out evidence for comment, State v. Eisenstein, 72 Ariz. 320, 331, 235 P.2d 1011 (1951), the objection presented to the trial court being a reiteration of the state's concept of the limited nature of the access rights of an abutting property owner, a concept we have rejected in this opinion. Accordingly, we see no error in the giving of this instruction. Rule 51(a), Rules of Civil Procedure, 16 A.R.S.
The third question presented is whether the court permitted the jury to consider inconvenience by virtue of circuity of travel as an item of damage. The state had requested an instruction that the jury was not to consider any impairment of access in determining damages to be awarded unless the jury found that the owners' access had been impaired to a degree which decreased the fair market value of the property. Though this instruction was refused by the court, the manner of presenting this case to the jury made it crystal-clear that inconvenience alone would not affect the verdict unless it affected property values.
The verdicts submitted to the jury were in such form that the jury found the "before" value of the land, the "after" value, the value of the land taken, and the value of the severance damages. In each case, the total of the severance damages as found by the jury, plus the value of the land taken, equalled the difference between the "before" and the "after" value of the land. There was no objection taken by the state to the form of these verdicts. The entire tone of the case as revealed by the transcript indicates that the trial was an inquiry into the amount that real property values were affected by the construction of the improvements in question. Insofar as this instruction pertained to convenience of access, we see no harm in the instruction, but, contrariwise, we see no reversible error in the failure to so instruct under these circumstances. We do not pass on the instruction in other regards.
The state complains that the jury was instructed that "* * * it could consider any matters a knowledgeable purchaser would consider in arriving at its opinion as to value." (Emphasis added.) The actual instruction given informed the jury:
"Matters that anyone contemplating the purchase of land might take into consideration, in determining its value, are to be considered by you in determining the value of land sought to be condemned."
The only objection made to this instruction at the time of trial was:
"This is not a correct statement of the law inasmuch as the test that is applied involves that of a knowledgeable purchaser purchasing with full knowledge of all circumstances affecting the value of the property." (Emphasis added.)
On appeal the appellant has reversed its field. There is no argument made pertaining to the subject instruction that has any pertinency to the objection made in the trial court. Accordingly, we do not consider arguments in the appellant's brief which revolve around the question of whether, under this instruction, the jury was permitted to consider noncompensable items of damage caused by an exercise of the police power. Rule 51(a), Rules of Civil Procedure, 16 A.R.S.
The state presents the following question for review:
"Did the Court err in admitting and then failing to strike testimony of value based on noncompensable items of damage?"
At the conclusion of the property owners' opening case the state made the following motion:
"MR. KIMBLE: All right. It seems appropriate at this time for me to move the Court to strike the testimony of Mrs. Wilson and Mr. Finley and Mrs. Oaks and Mr. Mattingly insofar as it pertains to their opinion as to the value of this *430 property, either in the before or after condition, because their testimony has shown that they have based their testimony as to damages on legally non-compensable factors."
The "non-compensable factors" argued to the trial court, for the most part, pertained to the theory that the right of access involved was personal to the property owner and that any consideration of loss of access to the traveling public was non-compensable, a theory we have rejected here. However, the state also argued below that the loss of the crossovers was non-compensable and that this loss was considered by the value witnesses of the defendant.
It seems to be established law that the converting of a two-way street into a one-way street and the construction of dividers in the center of the street to prevent crossovers by vehicular traffic is so closely related to promoting safety on the highways that any resulting loss in value to abutting property owners is damnum absque injuria, because resulting from an exercise of the police power. Rayburn v. State, 93 Ariz. 54, 378 P.2d 496 (1963); Goycoolea v. City of Los Angeles, 207 Cal. App.2d 729, 24 Cal. Rptr. 719 (1962); People ex rel. Dept. of Public Works v. Ayon, 54 Cal.2d 217, 5 Cal. Rptr. 151, 352 P.2d 519 (1960); annotation 73 A.L.R.2d 694. We believe that the elimination of the three crossovers in question falls within this category and that any damage thus resulting is noncompensable.
If an appropriate instruction had been presented to the trial court instructing the jury that any such loss in value should be eliminated from computations of "before" value, or from damages awarded, we believe it would have been error to refuse such an instruction. However, no such instruction was requested. We are concerned only with whether it was error to fail to strike the testimony of value given by the owners of the property and their two professional real estate appraisers.
We believe the following to be a proper statement of law in the area under discussion:
"Where cross-examination reveals that loss-of-value testimony was based on noncompensable items, the testimony will be stricken in response to a proper motion." Sacramento and San Joaquin Drainage District v. Reed, 215 Cal. App.2d 60, 29 Cal. Rptr. 847, 850 (1963).
However, the granting of a motion to strike testimony after the same has been given without objection is the exception rather than the rule. 88 C.J.S. Trial § 136, p. 279; 53 Am.Jur. Trial § 152, p. 137. A motion to strike inadmissible evidence is properly denied when it embraces evidence which is admissible as well as that which is inadmissible. 5 Nichols, Eminent Domain § 18.42(1) (3d ed. 1962), p. 250; Rose v. State of California, 19 Cal.2d 713, 742, 123 P.2d 505, 522 (1942); 88 C.J.S. Trial § 140, p. 285; 53 Am.Jur. Trial § 151, p. 137.
As to the testimony given by the real estate appraisers, we see no possible error because both real estate appraisers testified that the elimination of the crossovers had no effect upon the values of the properties in question. Their credibility in this regard was considerably shaken on cross-examination, but neither of these professional appraisers directly repudiated sworn testimony in this regard.
The situation is different as to the value testimony of the property owners, Mrs. Wilson and Mr. Finley. Both testified, without objection, as to their opinions of the respective properties in the "before" situation as did Mrs. Wilson to her value in the "after" situation. Objection was overruled as to Mr. Finley testifying to an "after" value. On cross-examination, Mrs. Wilson admitted that it was "important" that there was a crossover in front of her property. Mr. Finley, on cross-examination, stated that one of his reasons for believing that his property had commercial value was because of the crossover permitting westbound traffic to patronize any *431 business located thereon. We hold that the degree to which the value testimony of these owners was contaminated by the influence of the crossovers does not support the motion to strike.
In giving opinion as to values, it is most natural for the witness to give an opinion as to property as it actually exists. This is the normal manner in which property is evaluated on the open market. Buyers do not stop to consider whether certain benefits enjoyed by property may be eliminated by some future exercise of the police power. It is difficult for this court to accept as an absolute requirement that all opinion evidence given in a condemnation case such as this should have to evaluate, not the actual properties existing, but rather hypothetical properties deprived of crossovers, or other conveniences eliminated under the police power. We hold that opinion evidence as to market values of property as it actually exists in the "before" situation has some probative value, even if the improvements contemplated to be made include some exercise of the police power, as in this case. We believe the proper method of decontaminating such testimony is to establish the degree to which the opinion of value has been influenced by the convenience of access which is eliminated under the police power and then to instruct the jury to disregard such in fixing damages.
But even if this were not the rule of law, the result would be the same here, because this motion to strike included too much. City of Gilroy v. Filice, 221 Cal. App.2d 259, 34 Cal. Rptr. 368 (1963); Rose v. State of California, supra; and treatises cited supra. The value testimony of the two appraisers was an integral part of this motion to strike, and the testimony of these witnesses was technically immune as to the motion to strike. Also, the motion included the "after" value of the owners, which was not contaminated for such testimony was given in proper theoretical context, the crossovers in questions neither existing in theory nor in actuality in the "after" situation.
The state asserts that it was error to admit into evidence the easement held by the defendants Finley to take water from a well on adjoining property owned by Lloyd Adams and wife, for the reason that the easement granted in writing was one for the "* * * construction, operation and maintenance of a domestic well and pipeline * * *." (Emphasis added.)
The answer to this assertion of error is overwhelming. Foremost, there was no objection to the admission of the subject exhibit by the state. But even if objection had been made, the result would be the same. Prior to the introduction of this easement, Mr. Whelan, a witness for the state, had testified that the state was taking in the action an "* * * easement to use water from the well on the Adams property." Mr. Finley was permitted to testify about his easement for water without objection. Certainly the easement was admissible in evidence for some purpose, inasmuch as the state was taking all rights under the document, whatever their nature. There is no requested instruction before us for review. We do not deem it necessary in view of this state of the record to determine whether under the wording of this easement water could have been used for commercial purposes.
The next two questions presented for review concern the recitation of hearsay by value witnesses. Mrs. Wilson, a property owner, was permitted to testify over objection of the state that the Travelodge Motel chain had made "inquiries" as to purchasing the Wilson property as a motel site. Mrs. Oaks, a professional real estate appraiser, was permitted over objection, to testify that her "investigation" revealed that there was an adequate supply of water for the well used by the improvements on the Finley property. Mrs. Oaks identified a document on the letterhead stationery of a construction company (defendants' H in evidence) as being the "log" of water pumped from this well in January and February *432 of 1957. Subsequently, this "log" was admitted in evidence over the objection of the state.
The admission of this evidence is defended on the basis that a value witness may discuss hearsay testimony in eminent domain cases, not as independent evidence of value, but rather to qualify the expert witness and to establish the basis for his opinion. A statement in State ex rel. Morrison v. Jay Six Cattle Company, 88 Ariz. 97, 102, 353 P.2d 185, 189 (1960), is relied upon. The Jay Six decision states that "* * * inquiries * * * received from, people, locally and outside the state, who wanted to buy land in the area, as well as to the terms on which they were willing to make a purchase" were admitted for the purpose of qualifying the expert witnesses and not to prove value. (88 Ariz. at 102, 353 P.2d 185.) There is no authority cited to support this statement made by the court and the point is not discussed in the dissenting opinion. An examination of the briefs in the Jay Six case indicates that the admission of such testimony was not one of the issues on appeal. We conclude that this statement of the court was not a holding, but a statement of fact as to the purpose for which such testimony was admitted by the trial court, apparently without objection, as similarly occurred during the trial of this case as to testimony of comparable sales by the real estate appraisers. We do not consider the Jay Six decision to be determinative of the question now before us.
There is great diversity of authority in this country as to the degree to which hearsay statements may be used by expert witnesses in condemnation cases.
Generally, it is said that ordinary rules of evidence governing civil actions are applicable in eminent domain cases and that "[h]earsay evidence is inadmissible." 30 C.J.S. Eminent Domain § 428, p. 563. Our Supreme Court has taken a firm view in the general area of expert testimony which, if it is applicable in an eminent domain case, would clearly condemn the testimony under discussion:
"An expert may be allowed, in cases where expert opinion is appropriate, to interpret facts in evidence which the jury are not qualified to interpret for themselves, McCormick, Evidence § 13, p. 28 (1954). He may base such an opinion either on his personal observations given into evidence, Gray v. Woods, 84 Ariz. 87, 324 P.2d 220 (1958), or upon assumption that some portion of the testimony of others already in evidence is true. Patterson v. Chenowth, 89 Ariz. 183, 360 P.2d 202 (1961), Burdick v. Mann, 60 ND. 710, 236 N.W. 340, 82 A.L.R. 1443 (1931). He must, however, base his opinion only upon competent evidence." (Emphasis added) Gilbert v. Quinet, 91 Ariz. 29, 32, 369 P.2d 267, 268 (1962)
In Gilbert, our Supreme Court recognized by note 1 of its opinion, which immediately followed the above quotation, that there was an exception in the case of a physician disclosing the history related to him by his patient. Whether and to what extent there is an analogous exception pertinent to professional real estate appraisers and salesmen is a matter which we believe the case law of this state leaves open for decision.
Generally, there are four views in this country as to whether professional real estate appraisers may give the details of comparable sales when the knowledge of the witness is based upon hearsay. The authorities are annotated at 95 A.L.R.2d 1217 et seq., and are divided between (1) those holding that such hearsay evidence is inadmissible on direct examination,[3] (2) *433 those authorities holding that such evidence is admissible for the limited purpose only of showing the basis on which the witness arrived at his opinion (this view is referred to in the annotation as the "Texas rule" 95 A.L.R.2d 1221),[4] (3) those holding that the admission of such evidence lies within the discretion of the trial court[5] and (4) those holding that such testimony may be detailed by the expert witness for general purposes.[6]
A parallel analysis of this divergence of authority is to be found at 27 Am.Jur.2d Eminent Domain § 429, p. 331, at 334. One recent decision appears to favor the "Texas rule" of limited use, City and County of Honolulu v. Bishop Trust Co., 404 P.2d 373, 385 (Hawaii 1965), and another to favor the admissible-for-all-purposes doctrine, State Highway Commission v. Greenfield, 145 Mont. 164, 399 P.2d 989 (1965).
It is to be noted that in Town of Williams v. Perrin, 70 Ariz. 157, 217 P.2d 918 (1950), in passing upon the related but separate problem of whether comparable sales are admissible at all as direct proof, our Supreme Court expressly adopted the "Massachusetts rule," (70 Ariz. at 163, 217 P.2d 918) which permits the introduction of evidence of comparable sales on direct examination, as opposed to the "Pennsylvania rule," holding evidence of comparable sales to be irrelevant except to test the expert witness on cross-examination.[7] If in Perrin, our court intended to adopt the Massachusetts view in its entirety, in this area of law, then it is clear that while evidence of comparable sales may be introduced on direct examination as evidence of the value of the condemned property, such evidence of comparable sales must be developed by witnesses who have direct personal knowledge of such sales:
"Although an expert witness may give the reasons for his opinion, even if gained from hearsay, Davenport v. Haskell, 293 Mass. 454, 459, 200 N.E. 409, this should be done in such terms that inadmissible hearsay is not introduced in a manner prejudicial to a party. Without producing a party to the sale, who could be subjected to cross-examination, direct testimony about the terms of a particular *434 transaction should not have been admitted over objection. See Hunt v. City of Boston, 152 Mass. 168, 171, 25 N.E. 82; Commonwealth v. Sinclair, 195 Mass. 100, 106, 80 N.E. 799. See also by analogy Tigar v. Mystic River Bridge Authority, 329 Mass. 514, 519-520, 109 N.E.2d 148." Newton Girl Scout Council, Inc. v. Massachusetts Turnpike Authority, 335 Mass. 189, 138 N.E.2d 769, 776 (1956)
5 Nichols on Eminent Domain § 18.45(1), p. 267, at 268 (3d ed. 1962), indicates that the requirement of personal knowledge in the witness is the general law:
"A witness who has given his opinion as to value may state the reasons for his opinion, and he may of course state as such reasons any circumstances which he would be allowed to give in evidence as independent facts; but he cannot under the guise of fortifying his opinion state to the jury any facts, which, either because the facts themselves are not relevant or because his knowledge of the facts is entirely based on hearsay, are themselves inadmissible." (Emphasis added)
Jahr, Eminent Domain § 134, p. 207 (1953), is in accord.
California courts, which have been among the more liberal in permitting expert witnesses to detail hearsay in explaining their opinions,[8] are fortified in their results by a statutory provision of which we have no counterpart, Code of Civil Procedure, section 1872:
"Whenever an expert witness gives his opinion, he may, upon direct examination, be asked to state the reasons for such opinion, and he may be fully cross-examined thereon by opposing counsel."[9]
As indicated above, the body of law under discussion pertains to hearsay testimony of comparable sales by professional real estate appraisers or salesmen. Many of the decisions in this area go to some pains to limit the rule in this regard, as for instance:
"Therefore, confining the effect of this opinion to witnesses whose qualifications include experience in appraising or dealing in real estate as a business, we hold that testimony as to the prices paid in comparable sales is not inadmissible merely because it is secondary or hearsay evidence." Stewart v. Commonwealth, 337 S.W.2d 880, 885 (Ky. 1960)
There is comparable language in State Highway Commission v. Greenfield, 145 Mont. 164, 399 P.2d 989, 992 (1965).
A landmark decision permitting an expert witness to testify as to his opinion when based on inadmissible sources is National Bank of Commerce v. City of New Bedford, 175 Mass. 257, 56 N.E. 288 (1900), in which Justice Holmes stated:
"An expert may testify to value, although his knowledge of details is chiefly derived from inadmissible sources, because he gives the sanction of his general experience. But the fact that an expert may use hearsay as a ground of opinion does not make the hearsay admissible." (Emphasis added) 56 N.E. at 290
That this is the principal reason for the extension of the Massachusetts rule in California, permitting the experts to detail the hearsay upon which their opinions are based, is indicated by the decision of Young v. Bates Valve Bag Corp., 52 Cal. App.2d 86, 125 P.2d 840, 846 (1942), and the cases cited therein.
*435 We know of no substantial body of law which would approve the hearsay testimony admitted in this case. It is to be noted that the testimony as to "inquiries" by Travelodge was elicited, not from a professional appraiser, but rather from the owner of the property.
Offers to purchase property, when not established to be bona fide, are inadmissible in this state. State v. McDonald, 88 Ariz. 1, 352 P.2d 343 (1960). We believe that a fortiori "inquiries" as to property, at least when testified to by other than a professional appraiser or real estate salesman, are inadmissible. The only possible relevancy of such testimony would be to show that there was a highest and best use of the property for motel purposes. Hearsay may be by conduct. McCormick on Evidence, § 229; Udall, Arizona Law of Evidence, Hearsay § 171, pp. 340-41. The assertion by conduct in this case would be that Travelodge, by its inquiries, considered the subject property to be suitable for motel purposes. Such an assertion should be subject to cross-examination by the opposing party. We hold that it was error to admit such testimony over objection. We reserve the question of whether such error was reversible for later comment.
As to the admission of the log of the well drilling, again we believe the court erred. Conceding, without holding, that an expert may detail hearsay to a jury, when such is within the scope of his expertise, we know of no authority that would permit a log such as this into evidence for general purposes. It is to be noted that we are at least on the border if not outside of the sanction-of-general-experience concept when a real estate appraiser is permitted to testify as to the adequacy of a water supply.[10]
We do not believe that cases approving testimony as to comparable sales by expert witnesses are controlling as to hearsay of the type under discussion. The very nature of market value makes it more reasonable that hearsay testimony should be admitted, because market value itself is so closely related to what people accept as the going value of an article. See 3 Wigmore, Evidence § 719, pp. 51-54 (3d ed. 1940). The amount of water pumped from a well during a specific period of time is a far more factual object of proof and we see no reason to depart from ordinary rules of evidence designed to safeguard the search for truth.
The defendants seek to justify the ruling of the trial court by arguing that the state waived its hearsay objection to the exhibit when state's counsel thoroughly cross-examined Mrs. Oaks as to her conclusions derived from the subject log.[11]
No law has been cited holding that cross-examination under these circumstances is a waiver of the hearsay objection, and we reject the contention. In the first *436 place, such cross-examination as occurred did not include most of the dates and figures in the "log." Secondly, if an expert witness is to be permitted to detail hearsay for the limited purpose of supporting an opinion, as both counsel at the trial below assumed was proper as to comparable sales testimony by appraisers, then certainly opposing counsel should be permitted to cross-examine thoroughly upon the statements so admitted without authorizing such evidence to be admitted for all purposes, as was done here when the log itself was admitted into evidence over objection without any cautionary instruction as to the use to be made thereof. City and County of Honolulu v. Bishop Trust Co., 404 P.2d 373, 384 (Note 9) (Hawaii 1965); Weymouth v. Colorado Interstate Gas Co., 217 F. Supp. 204 (N.D.Tex. 1962).
As to whether the admission of this log is prejudicial, Mrs. Oaks testified that her opinion of the Finley property was not affected by her conclusion that the property had an adequate water supply for commercial purposes. However, the inescapable facts of the case tell a different story. In Arizona, probably more than in most areas, without water there can be no life and certainly no commerce. A great deal of the testimony in this case was devoted to the question of whether there was an adequate supply for commercial development of the properties in question. All evidence is to the effect that there was no ground water reservoir below the property and that the waters used upon the properties was either captured from the subsurface flow of washes, or from crevices in the underlying granite structure, or was hauled from other areas. One of the properties taken by the state in this condemnation action was the well in question to which the Finleys had an easement for the use thereof. This was the only existing source of water to the Finley property. Mr. Finley testified that this well and the easement thereto enhanced the value of his property to the extent of $25,000. We are constrained to conclude that the erroneous admission of this log was prejudicial.
The next question for review presented is whether the trial court erred in permitting Mrs. Wilson to testify as to an oral agreement on the part of the State of Arizona to establish a crossover in front of her property purportedly made at the time of the granting of a written easement by the Wilsons to the State of Arizona in May of 1956. The consideration expressed in the easement, which was admitted as Exhibit "CR," is the sum of $206.50. The easement granted a right of way on both sides of a then existing highway so as to widen it to the 260 foot width that existed at the time of the commencement of this condemnation action. Over objection that the testimony would be a violation of the parol evidence rule and a violation of the statute of frauds, Mrs. Wilson was permitted to testify that there was "* * * additional consideration * * *" for the granting of this easement in that representatives of the State Highway Department had promised to construct a crossover between the two strips of pavement proposed for the new highway so that westbound traffic could crossover to the Wilson guest ranch.
The document in question has the following "conditions":
"1. It is understood and agreed that the amount of money mentioned herein is accepted by the Grantor as full compensation for the land taken as right of way and in settlement for all claims for damage, and for injury or damage to the contiguous land from which the right-of-way is severed, now owned by Grantor, and for his assigns and successors in interest thereof, that may hereafter arise or result from the construction, alteration and maintenance of the road bed, its embankment or grade.
"2. It is further understood and agreed that the present fence on south side of the present road will not be moved during construction at this time nor until future construction necessitates same, but that *437 the right of way line will be monumented so there can be no misunderstanding as to the new right of way line.
"3. A new paved turn out or entrance shall be contructed at approximate Highway Engineer's Station 724+00 using material from small hill (leveling same off) to make fill for approach.
"4. Necessary side road sign or signs to be put at above mentioned entrance.
"5. The present fence on North side shall not be taken down till new fence is erected.
"6. The water line shown on plans at Station 726+00 which is grantor's water supply shall not be disrupted for more than 48 hours at one time without written consent of grantors."
Defendants Wilson contend that the admission of the oral agreement was proper under the doctrine that the true consideration for a deed may always be shown, reliance being made upon Loganbill v. Zook, 38 Ariz. 540, 3 P.2d 273 (1931), Cashion v. Bank of Arizona, 30 Ariz. 172, 186, 245 P. 360 (1926), and upon cases involving equitable actions to reform deeds and other instruments, such as Berardi v. Ohio Turnpike Comm'n, 1 Ohio App.2d 365, 205 N.E.2d 23 (1965). This latter line of cases we distinguish in that the instant action is not one to reform an instrument.[12] As to the Cashion and Loganbill decisions, we recognize that the law is well established that the nominal consideration expressed in a deed may be varied by testimony as to the true consideration, sections 242, 243, Restatement of Contracts. There are decisions extending this doctrine to deeds which express more than merely nominal consideration, as in Loganbill, supra. But we have been cited no case which goes so far as to permit the testimony elicited here.
In Loganbill, our court quoted with approval from Jost v. Wolf, 130 Wis. 37, 110 N.W. 232 (1907), in part, as follows:
"Of course deeds vary in form, and some contain more or less expression of the contractual undertakings of one or both parties. As to such subjects the written expression, like any other, is exclusive of oral proof." (Emphasis added) 38 Ariz. at 545, 3 P.2d at 274.
In the subject document there are expressly set out various acts to be performed by the state in conjunction with the granting of the subject easement. The oral promise of a crossover is of the same general type of promise as several of those contained in the written instrument, and it would have been natural to have included it with the other conditions.[13]
To add a new condition by parol, requiring the state to install a crossover, would be a direct violation of the parol evidence rule. Restatement, Contracts § 237.
As to the problem of prejudicial error, we believe there was prejudice. While the professional witnesses employed by the property owners testified that the presence of this crossover had no effect upon their estimate of the value of the Wilson property, common sense indicates otherwise. We agree with Mrs. Wilson that, considering the Wilson property from the standpoint of commercial use, the existence of this crossover was important. The jury may very well have added to the "before" value of the property, by reason of this oral agreement. We are therefore constrained to reverse the Wilson judgment, without regard to whether the admission of the "inquiries" by Travelodge was prejudicial.
*438 The last question for review pertains to whether the court erred in failing to direct a verdict for the state as to the Wilson property, on the grounds that the easement given in 1956, a portion of which is quoted above, was a waiver of the right to compensation for the damage caused by the 1962 highway improvements which are the subject of this condemnation action. Reliance is made upon condition "1" of the easement, which is quoted above, and also the following language in the granting clause reading as follows:
"* * * and waives all claim for damages or compensation for and on account of the establishment and construction of said highway other than set forth herein."
We hold that this easement was intended to cover damages caused by the highway construction performed in 1956, and that it was not intended to cover the additional damage resulting from the taking of access rights in 1962. State ex rel. Ashworth v. State Road Commissioners, 147 W. Va. 430, 128 S.E.2d 471 (1962). We consider the decisions relied upon by the state to be distinguishable either because they relate to damage caused by the specific improvements authorized by the particular easement granted or because the release instruments by their express provisions pertained to the future damage which later occurred. We distinguish Busby v. State, Ariz., 420 P.2d 173, released November 3, 1966, on the basis that the language of the conveyances there construed included "* * * permanent impairment or obstruction of any easements, public utilities service, right of access or right of ingress and egress to the highway from the abutting properties remaining in possession of the Grantor." Language of similar import is lacking in the subject instrument. The instrument in question is on a form prepared by the state and any ambiguity therein should be construed against it. Covington v. Basich Bros. Const. Co., 72 Ariz. 280, 233 P.2d 837 (1951). When interpreted as a whole, we see no intent to release the state from claims for taking of access rights which are the subject of this condemnation action.
We now consider the cross appeal. The defendants Wilson assert:
(1) that the court erred in permitting in evidence the price paid by the Wilsons when they purchased the subject property in 1950;
(2) that the court erred in failing to instruct the jury that a public road could not be acquired by prescription, and
(3) that the damages rendered were inadequate and that the appellate court should therefore grant an additur in an appropriate amount without sending the case back for a new trial.
The last assertion of error we do not rule upon, both because the matter of an additur was not brought to the attention of the trial court, Rule 59(a), Rules of Civil Procedure, 16 A.R.S., and because we are directing a new trial as to all issues.
As to the first two contentions, they seem from the arguments made in the cross appellants' brief to be fairly maintainable and supported by the citation of authority submitted therein. Other than to point out that the cross appellants are not seeking a new trial in the instant action, the state has cited no authority and made no argument in opposition to these two contentions. Though we have been cited no law on this question, we conclude that, though the cross appellants were not seeking a new trial, now that a new trial is to be had, their assertions of error, which are as to problems that will probably present themselves on retrial, should be answered. Inasmuch as the state has filed no authority in opposition, we assume that it was unable to find opposing authority to counter that cited by the cross appellants. Silva v. Traver, 63 Ariz. 364, 162 P.2d 615 (1945); DeHeer v. Seattle Post-Intelligencer, 60 Wash.2d 122, 372 P.2d 193 (1962). Accordingly, we uphold these two contentions and direct that on retrial the court should, unless substantially different factual *439 foundations be established, exclude the testimony pertaining to the purchase price of the Wilson property in 1950, and should instruct the jury in accordance with the cross appellants' request that a public road cannot be acquired by prescription.
Judgment in these two actions are set aside and the causes are remanded for new trial.
KRUCKER, C.J., and JACK G. MARKS, Judge of the Superior Court, concur.
NOTE: Judge JAMES D. HATHAWAY having requested that he be relieved from consideration of this matter, Judge JACK G. MARKS was called to sit in his stead and participate in the determination of this decision.
NOTES
[1] In commenting upon the difference in access rights between the situation where the new non-access highway is to be located in the same location as the old highway (as in Thelberg), as opposed to where the non-access highway will be located in an adjoining area with the old highway retained as an access road (as in State v. Peterson, 134 Mont. 52, 328 P.2d 617), our Supreme Court commented: "This appears absurd at first glance but it is based upon sound reasoning as will appear from cases hereinafter cited." (Emphasis added) (State ex rel. Morrison v. Thelberg, 87 Ariz. 318, 325, 350 P.2d 988, 992)
[2] See Restatement of the Law of Property, Division V, Servitudes, §§ 450, 453 and 507 for pertinent general law on easements appurtenant and the condemnation thereof by public authority.
[3] State Highway Department v. Wilkes, 106 Ga. App. 634, 127 S.E.2d 715 (1962); State ex rel. State Highway Commission v. Dockery, 300 S.W.2d 444 (Mo. 1957); Newton Girl Scout Council, Inc. v. Massachusetts Turnpike Authority, 335 Mass. 189, 138 N.E.2d 769 (1956); Ellis v. Ohio Turnpike Commission, Ohio App., 124 N.E.2d 424, 70 Ohio Law Abst. 417, rev'd on other grounds 164 Ohio St. 377, 131 N.E.2d 397, 58 O.O. 179, cert. denied 352 U.S. 806, 77 S.Ct. 51, 1 L.Ed.2d 39 (1955); City and County of Denver v. Quick, 108 Colo. 111, 113 P.2d 999, 134 A.L.R. 1120 (1941); Aspegren v. Tax Assessors of Newport, 125 A. 213 (R.I. 1924).
[4] State v. Oakley, 163 Tex. 433, 356 S.W. 2d 909, 95 A.L.R.2d 1207 (1962); Baker Brothers Nursery v. State, 357 S.W.2d 163 (Tex.Civ.App. 1962), rev'd on other grounds 366 S.W.2d 212 (1963); City of Houston v. Collins, 310 S.W.2d 697 (Tex.Civ.App. 1958); City of Houston v. Huber, 311 S.W.2d 488 (Tex.Civ. App. 1958); Wichita Falls R. & F.W.R. Co. v. Cooper, 235 S.W. 927 (Tex. Civ.App. 1921).
[5] United States v. 18.46 Acres of Land, 312 F.2d 287 (2d Cir.1963); District of Columbia Redevelopment Land Agency v. 61 Parcels of Land in Squares, 98 App.D.C. 367, 235 F.2d 864 (1956); International Paper Co. v. United States, 227 F.2d 201 (5th Cir.1955); United States v. Katz, 1 Cir., 213 F.2d 799, cert. denied 348 U.S. 857, 75 S.Ct. 82, 99 L.Ed. 675 (1954); United States v. 5139.5 Acres of Land, 200 F.2d 659 (4th Cir.1952).
[6] People ex rel. Department of Public Works v. Alexander, 212 Cal. App.2d 84, 27 Cal. Rptr. 720 (1963); Stewart v. Commonwealth, 337 S.W.2d 880 (Ky. 1960); State Highway Com. v. Parker, 225 Or. 143, 357 P.2d 548 (1960); Recreation and Park Commission, etc. v. Perkins, 231 La. 869, 93 So.2d 198 (1957); New Jersey Highway Authority v. Rue, 41 N.J. Super. 385, 125 A.2d 305 (1956) (by statute); City of Baltimore v. Hurlock, 113 Md. 674, 78 A. 558 (1910).
[7] See annotation at 85 A.L.R.2d 110 et seq., comparing the two views, indicating the Massachusetts rule to be the majority and the Pennsylvania rule to be the minority, with Arizona listed in the majority column by reason of the Perrin decision, and State v. McDonald, 88 Ariz. 1, 352 P.2d 343 (1960), both decisions, however, being labeled as "dictum." (85 A.L.R.2d 115.)
[8] In McElligott v. Freeland, 139 Cal. App. 143, 33 P.2d 430 (1934), an accountant was permitted to describe an "investigation" conducted through "* * * our New York office * * *" to ascertain that a certain corporation had "* * * no assets and no liabilities * * *" in order to support his opinion that a certain promissory note was worthless. This case is cited with approval in People ex rel. Dept. of Public Works v. Donovan, 57 Cal.2d 346, 19 Cal. Rptr. 473, 369 P.2d 1 (1962).
[9] This section repealed by Stats. 1965, c. 299, p. 1360, § 60, effective Jan. 1, 1967; comparable provisions now contained in §§ 721, 802, Evidence Code of California.
[10] The following is a part of the cross-examination of Mrs. ____, the appraiser who identified this log:
"Q My question, Mrs. ____, is that for a residential development such as Arizona Sun Sites a plentiful supply of water is absolutely essential and the development couldn't exist without a plentiful supply of water?
"A Yes. Any residential development would need water.
"Q How much water would you figure?
"A Fifteen gallons a day, at the most.
"Q Fifteen gallons a day for a house?
"A Wait a minute. I have to think.
"Q How much water do you use when you flush a toilet?
"A You use several gallons when you flush a toilet. Just a minute."
[11] Mrs. Oaks had reached the conclusion that because the particular well had been pumped at the rate of 60 gallons per minute for an average of less than three hours a day over a period of 36 days, it was therefore capable of pumping 86,400 gallons per day and that in her opinion this water supply was "adequate and reliable."
[12] We similarly distinguish State of Arizona ex rel. Herman v. Tucson Title Insurance Company, Ariz., 420 P.2d 286 (1966), a Supreme Court decision in this area of law released since the drafting of this opinion. This latter case is further distinguishable in that in the Tucson Title decision the consideration expressed was nominal ($10 and other valuable consideration).
[13] Compare Jamison v. Southern States Life Insurance Company, 3 Ariz. App. 131, 412 P.2d 306 (1966). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266647/ | 57 N.J. 56 (1970)
269 A.2d 161
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WILBERT SINCLAIR, DEFENDANT-APPELLANT.
The Supreme Court of New Jersey.
Argued April 20, 1970.
Decided September 29, 1970.
*59 Mr. Richard Newman, Deputy Public Defender, argued the cause for defendant-appellant (Mr. Stanley C. Van Ness, Public Defender, attorney; Mr. Richard Newman on the brief).
Mr. M. Richard Altman, Assistant Prosecutor, argued the cause for plaintiff-respondent (Mr. Joseph P. Lordi, Prosecutor of Essex County, attorney; Mr. M. Richard Altman on the brief).
The opinion of the court was delivered by PROCTOR, J.
Wilbert Sinclair was found guilty by a jury of first degree murder on two indictments, one for the murder of Esther Friedman and the other for the murder of Shep Binyard. The jury did not recommend life imprisonment and he was sentenced to death on both convictions. He appeals to this Court under R.R. 1:2-1(c) (now R. 2:2-1(a)(3)). Previously Sinclair had been jointly tried with Jesse Edward Wilson who had also been indicted for the same crimes, and both men were convicted and sentenced to death. This Court reversed those convictions because of the trial court's failure to instruct the jury on the possibility of returning a verdict of second degree murder. 49 N.J. 525 (1967). At our suggestion (Id. at 550) the defendants were retried separately, and it is from the conviction in Sinclair's separate trial that he now appeals.
*60 At the trial evidence regarding the shootings was virtually the same as that presented in State v. Wilson, 57 N.J. 39 (1970) decided today. The main prosecution witness was again Abraham Friedman, the husband of one of the two murder victims, Esther Friedman. He testified that at about 8:30 P.M. on October 24, 1964, he and Esther were working in his liquor store in Newark. One customer, Shep Binyard, was in the store when two men, later identified by Friedman as Wilson and Sinclair, entered the store. Wilson attempted to sit down on a chair but fell off. Binyard offered to help Wilson, but Wilson refused the aid and picked himself up. Friedman believed Wilson was intoxicated and refused to sell liquor to Sinclair. Sinclair then drew a pistol and announced a "stick up." Mrs. Friedman told the men to "take whatever you want but just leave us alone."
Sinclair then directed Wilson to go behind the counter to the cash register. At that time Binyard approached Sinclair and said, "Why don't you leave these nice people alone." Thereupon Sinclair shot him. Mrs. Friedman screamed and began to run outside, but before she could escape Sinclair shot her and ran out of the store. Both shootings were fatal. Friedman, seeing Wilson at the cash register alone, picked up a bottle of whiskey and struck Wilson over the head with it. Friedman then retreated to the rear of the store to reach the burglar alarm in the refrigerator. Wilson attempted to follow him, but was threatened by Friedman with the broken neck of the bottle and ran out of the store. Friedman sounded the alarm and went to the aid of his wife who was lying on the sidewalk outside the store.
Friedman further testified that about an hour later that evening, he was taken by the police to Newark City Hospital where he identified Wilson who was sitting with other men in the emergency room. Shortly thereafter at the police station, Friedman identified photographs of both Wilson and Sinclair from a number of photographs shown to him. As *61 he was leaving the interrogation room, he spotted Sinclair in an adjoining room and identified him to the police as "the man who killed my wife." Finally, on the stand Friedman unequivocally stated that the man he identified that night was the defendant Sinclair.
Over objection, the State also introduced corroborating evidence of Wilson's involvement in the crimes. Officers Patterson and Lebo testified that at 8:45 P.M. in response to a general alarm they proceeded to the vicinity of the crimes where they saw a man staggering on the street and bleeding from the head. They drove the man, who was later identified as Wilson, to the Newark City Hospital. At the hospital slivers of glass were removed from Wilson's head and clothing. Expert testimony later revealed that these slivers were part of the liquor bottle Friedman used to strike the intruder at the cash register.
The State also introduced evidence regarding Sinclair's apprehension and arrest. After Friedman had identified Sinclair's photograph, the police went to Sinclair's apartment but found no one there. Upon leaving the apartment, the police spotted Sinclair walking on 12th Avenue. They shouted for him to halt, but he quickened his pace and was pursued into a parking lot. There he threw an object under a parked car. The object was identified by the police as a .38 caliber revolver. Expert evidence was later introduced showing that the bullet fatal to Mrs. Friedman was fired from the gun, and that the bullet fatal to Binyard was probably fired from the gun. Sinclair was searched at the scene of his arrest and the police found several .38 caliber bullets.
Sinclair was the principal defense witness. On direct examination he admitted that he had a record of prior convictions for atrocious assault and battery and carnal abuse. He also admitted that he knew Wilson and had been with him on the night of the shootings. According to Sinclair, he and Wilson were in a bar that night and Wilson left the bar with a tall dark-skinned man. He, Sinclair, remained *62 at the bar where he talked with a Mary Wells. About fifteen minutes later, Wilson returned to the side door of the bar, bleeding from the head. He told Sinclair that he had been in a fight with three men and asked Sinclair to keep the gun and ammunition for him until the next morning. Sinclair admitted that he threw the gun away just before his arrest, but said he did so because he knew it was illegal to possess a dangerous weapon. However, on cross examination he was unable to explain why he did not similarly dispose of an illegal knife that the police found in his possession at the time of his arrest.
Sinclair's sister testified that she had unsuccessfully attempted to locate Mary Wells, her brother's alleged companion at the time of the shootings. On rebuttal a police officer testified that after a thorough search it was his opinion that Mary Wells did not exist.
The defense also produced testimony by a police officer and a newspaper reporter in an effort to show that Friedman was emotionally upset, and might have been mistaken in his identification of Sinclair shortly after the killings.
On this appeal, Sinclair urges several trial errors and violations of his constitutional rights. We will consider them in the order raised.
I
Sinclair first urges that the State's use of evidence pertaining to his prior convictions infringed upon his constitutional right to a fair trial. Defendant's prior convictions were first brought out by his own counsel on direct examination. According to his brief, counsel took this step in order to lessen the impact of these convictions upon the jury since the State had the statutory right to bring them out on cross examination to attack his credibility (N.J.S.A. 2A:81-12; see State v. Hawthorne, 49 N.J. 130 (1967)). On cross examination the State referred to the convictions brought out on the direct examination and showed more *63 fully the dates and sentences of the prior convictions. Additionally, the State referred to these convictions in its summation to the jury.
Defendant concedes that, by statute, the State may use prior conviction evidence in order to affect the credibility of an accused where the accused takes the stand. N.J.S.A. 2A:81-12, supra. He may also be interrogated regarding the number of previous convictions and the duration of the sentences. State v. Merra, 103 N.J.L. 361 (E. & A. 1927); State v. Nagy, 27 N.J. Super. 1 (App. Div. 1953). And there is no doubt that the State may refer to the prior convictions in summation as long as it limits its references to the credibility of the accused. See State v. Wade, 40 N.J. 27, 39 (1963). Defendant contends that in the present case the State overstepped the bounds and used the evidence to show that the defendant had a criminal disposition. We disagree. In its summation, the State was careful to point out to the jury that the prior conviction evidence could only be considered as affecting the defendant's credibility. Nor do we believe that the State dwelt too heavily on the point. Credibility was a most important issue in the case since Sinclair's story was so completely at odds with Friedman's version of the murders. Moreover, the trial court carefully instructed the jury on the limited use of such evidence. We reject defendant's contentions regarding the futility of limiting instructions. Although there are areas in which it has been held that limiting instructions are insufficient to overcome prejudice to the accused, see e.g., Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); State v. Young, 46 N.J. 152 (1965), the defendant has cited no case and we have found none which holds that a limiting instruction on the use of prior conviction evidence is per se insufficient. Cf. Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); compare dictum in Weaver v. United States, 133 U.S. App. D.C. 66, 408 F.2d 1269, 1273 (1969), cert. *64 denied, 395 U.S. 927, 89 S.Ct. 1785, 23 L.Ed.2d 245 (1969).
Defendant also contends that the use of the prior conviction evidence denied him due process of law because there "is no rational connection between truth telling and specific prior criminal conduct." It is true that if there were no rational connection between prior convictions and credibility, the defendant's due process rights would be violated. See Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943); State v. DiRienzo, 53 N.J. 360 (1969). N.J.S.A. 2A:81-12 is clearly founded on the "widespread belief that a conviction for crime has probative value with respect to credibility of a witness." State v. Hawthorne, supra at 145 (concurring opinion by Chief Justice Weintraub). We cannot say that the Legislature's finding of a nexus between conviction of a crime and credibility is unwarranted. In State v. Harless, 23 Utah 2d 128, 459 P.2d 210 (1969), the Supreme Court of Utah dealt cogently with the problem. There it was noted that admission of prior conviction evidence "derives from the idea that there is a basis in reason and experience why one may place more credence in the testimony of one who has lived within the rules of society and the discipline of the law than in that of one who has so demonstrated antisocial tendency as to be involved in and convicted of serious crime. * * * [I]t hardly seems fair to suppress such facts and let him testify with the same credit as one who has led a more blameless life." Id. at 130, 459 P. 2d at 211. We agree with the above statement. Of course, the trial judge, as here, must carefully explain to the jury the limited purpose for which the evidence can be used. We conclude that the use of defendant's prior criminal record by the State did not infringe on defendant's rights.
II
Defendant next contends that his right to be presumed innocent was unconstitutionally diluted by remarks *65 in the State's summation and trial court's charge that the jury could consider the defendant's interest in the outcome of the case when adjudging his credibility. We disagree. It is well settled that when a defendant takes the witness stand in a criminal case, he puts his character in issue and it is proper for the State and the trial judge to call attention to his interest in the result. E.g., State v. Randall, 95 N.J.L. 452, 454 (E. & A. 1921); State v. Smith, 100 N.J. Super. 420, 426 (App. Div. 1968). Moreover, it should be pointed out that in the present case the trial court did not even emphasize defendant's interest in the outcome of the case. Its instruction applied to all witnesses and did not single out the defendant.
III
We also reject defendant's contention that the first two arguments taken together require reversal. We can see no merit in the arguments individually or in combination.
IV
Defendant next contends that the trial court committed reversible error in allowing testimony regarding the apprehension and identification of Wilson. He argues that such testimony was inadmissible because the events testified to occurred after the shootings and hence were not in furtherance of any common purpose. In particular, defendant objects to testimony relating to Wilson's apprehension, testimony of his identification at the hospital, testimony of his head injury, testimony regarding the origin of the glass in his head and clothes, and the introduction into evidence of his coat.
Defendant contends that the alleged concerted action ended after the shootings or at least after Wilson's arrest, and that therefore any evidence relating to Wilson after those events was inadmissible against Sinclair. Of course, the acts of a co-actor in furtherance of the common plan are *66 admissible in evidence against any other co-actor once the State establishes that several persons have acted in concert in the commission of a crime as it did here. State v. Carbone, 10 N.J. 329, 339-340 (1952). Subject to certain exceptions, the acts of an alleged co-conspirator are generally not binding on another once the conspiracy ends. See Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892); see generally 3 Underhill, Criminal Evidence § 864 (5th ed. 1957). In the present case most of the evidence relating to Wilson at the time of and after his arrest consisted of physical exhibits which buttressed Friedman's testimony of the conspiracy to rob. Friedman had testified that two men had attempted to hold up his store and that one of them had shot his wife and a customer, that he had broken a bottle on one's [Wilson's] head, and that the latter had fled. Evidence that Wilson's head was bleeding when he was apprehended, that he had glass slivers in his head and on his clothes, was corroborative of Friedman's testimony. In addition, the coat worn by Wilson was corroborative of Friedman's description of him as was Friedman's identification of Wilson. The only evidence which could possibly be considered as a post-conspiracy act of Wilson was his staggering on the street with his head bleeding. We think this evidence was admissible to lend credence to Friedman's testimony that he hit his assailant on the head with a bottle. Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1952); Abbate v. United States, 247 F.2d 410 (5th Cir.1957). The remainder of the evidence, although gathered after his arrest, did not concern post-conspiracy acts of Wilson, but rather was evidence of events which occurred during the alleged concerted action and supported the State's theory that Sinclair and Wilson acted together in committing the crimes in Friedman's store.
V
Sinclair next contends that the trial court improperly admitted into evidence the knife found on him. During *67 cross examination the State attempted to cast doubt on the defendant's explanation for disposing of the murder weapon just before his arrest. Later, it introduced the knife into evidence. As previously mentioned, the defendant maintained that Wilson had given him the gun and that he had disposed of it only because he was aware that it was against the law to carry a gun. The State introduced a knife which had been found on the defendant's person at the time of his arrest and obtained from him an admission that he also knew possession of the knife was illegal yet had not disposed of it. There is no question but that the State had the right to point out to the jury the inconsistency in the conduct of the accused in disposing of the gun and not the knife. While we do not believe that the introduction of the knife into evidence was necessary and do not encourage the placing of such peripheral evidence before the jury, we cannot say the trial court misused its discretion or that the rights of the defendant were in any way prejudiced. The jury was fully aware that the knife was in no way related to the crimes for which the defendant was charged. We are satisfied that the introduction of the knife as an exhibit could not have affected the verdict. See State v. Rusnak, 108 N.J.L. 84, 88-89 (E. & A. 1931).
VI
Defendant urges for the first time on this appeal that his out-of-court identification by Friedman was conducted under circumstances which denied him his right to due process of law.[1] It should be pointed out defendant's *68 failure to object below was apparently based on our resolution of this issue in his appeal from his first conviction. State v. Sinclair, supra, 49 N.J. at 544-546. There we said:
In the present case Friedman had ample opportunity to observe the two men who committed the crimes in his store, and he identified both defendants within a few hours after the crimes when the events and recollections were still fresh in his memory. See State v. Matlack, supra, 49 N.J., at p. 491. Moreover, Friedman before seeing Sinclair although after seeing Wilson picked out their photographs from among those of eight or ten other persons. We are satisfied that these identifications were made under circumstances which precluded unfairness and unreliability. Id. at 545-546.
Defendant has not presented any new arguments on this point and we see no reason to change the view expressed in Sinclair, supra.
VII
Defendant attacks the trial court's instruction to the jury regarding the possibility of parole if life imprisonment were recommended. This objection, not raised below, is based on the thesis that the instruction deprived the defendant of a fair consideration by the jury of a life sentence. The argument is without merit. The trial court's instruction was substantially identical with the model charge set forth in State v. White, 27 N.J. 158, 179 (1958). Moreover, we rejected this same argument in defendant's appeal from his first conviction. 49 N.J. at 447-448. Accordingly, there is no merit to this point.
*69 VIII
Defendant argues that the exclusion of two veniremen for cause by reason of their position on capital punishment denied him a representative jury guaranteed by the sixth and fourteenth Amendments.
During the voir dire 118 prospective jurors were examined: four were excused for cause on grounds unrelated to capital punishment; 41 were excused by consent; 29 were challenged peremptorily, 19 by the defense and 10 by the State; 30 were successfully challenged for cause on the issue of capital punishment. The defendant attacks the exclusion of two of 30 veniremen excused for cause on the issue of capital punishment. When first questioned venireman Kerr thought he could impose the death penalty in a given case. Under subsequent questioning, he equivocated and ultimately stated that, since he would be given the option between the death penalty and life imprisonment, he would always vote for life imprisonment. Venireman Greene was even more equivocal. Initially he said he was "not certain" that he "believed in the death penalty." In his view it would be more "practical" to put a murderer "to hard useful labor for the rest of his life" and that he would lean in all cases toward recommending life imprisonment. Later he indicated that he did not think his mind was "completely closed to the matter of capital punishment." Both Kerr and Greene were excused for cause by the trial judge.
As we said in State v. Wilson, 57 N.J. 39 (1970), decided today, a venireman must be able to affirmatively say whether he could vote for the death penalty where the circumstances warranted it. Id. at 54. See also State v. Artis, 57 N.J. 24 (1970); State v. Mathis, 52 N.J. 238 (1968). In the present case Kerr was clearly excusable for cause under criteria set forth in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Although his first responses were unclear, he ultimately *70 indicated that, given the option, he would always vote for life imprisonment. Greene, on the other hand, was equivocal throughout the questioning, probably because he had not resolved the matter in his own mind. We agree with the trial court's determination that the State was entitled to more than a juror who is uncertain whether he could vote for the death penalty. State v. Mathis, supra at 248. In any event, we are satisfied from our examination of the record that the trial judge correctly understood the principles of Witherspoon, supra, and even if one or two jurors were erroneously excluded, which we do not believe, there is no prejudice where, as here, the jury ultimately selected was representative in character. State v. Mathis, supra at 249-251.
IX
Finally, defendant attacks the imposition of the death penalty on the same grounds advanced in State v. Wilson, supra at 55 of 57 N.J. For the reasons we have stated there, we think judgment should be withheld until the United States Supreme Court acts on these questions.
X
The judgment of the trial court is affirmed but entry of the judgment is to be withheld until further order of this Court.
For affirmance but withholding entry of judgment Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN 7.
For reversal None.
NOTES
[1] Defendant was not represented by counsel when Friedman saw him for pre-trial identification. The United States Supreme Court has held that a post-indictment viewing of an accused by a witness arranged by the police to determine identification is a "critical stage" at which the accused has a sixth amendment right to be represented by counsel. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). However, the same day it was held that Wade and Gilbert were not retroactive and applied only to identifications made after June 12, 1967. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Defendant in the present case is not entitled to assert the Wade and Gilbert exclusionary rule since his identification was made on October 24, 1964. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266459/ | 681 A.2d 546 (1996)
111 Md. App. 233
Wallace Newton EDMONDS, et al.
v.
CYTOLOGY SERVICES OF MARYLAND, INC., et al.
No. 1619, Sept. Term, 1995.
Court of Special Appeals of Maryland.
August 29, 1996.
*547 Terrell N. Roberts, III (Roberts & Wood, on the brief), Riverdale, for Appellants.
Edward A. Gonsalves (Gary A. Godard and Godard, West & Adelman, P.C., on the brief, for appellees Jaffurs and Cytology Services), Fairfax, VA, Larry A. Ceppos (Andrew J. Marter and Armstrong, Donohue & Ceppos, Chartered, on the brief, for appellees Rivera and Mattei), Rockville, for Appellees.
Argued before MOYLAN, HOLLANDER and EYLER, JJ.
HOLLANDER, Judge.
This appeal requires us to interpret Maryland Code (1974, 1995 Repl.Vol.), § 5-109(a) of the Courts and Judicial Proceedings Article ("C.J."), which sets forth the statute of limitations governing actions against health care providers.
Debra Ann Edmonds succumbed to cancer in 1990, following an alleged misdiagnosis in 1983. In 1993, Wallace Newton Edmonds and Amanda Bree Edmonds (the husband and daughter of Ms. Edmonds), and the Estate of Debra Edmonds, all appellants, filed wrongful death and survival claims against Dr. William Jaffurs, Cytology Services of Maryland, Inc. ("Cytology"), Dr. Myrna Rivera, and Ivan Mattei, M.D., P.A., appellees, alleging that, in 1983, appellees had negligently failed to diagnose Ms. Edmonds's cervical cancer. When the matter proceeded to court, appellees moved for summary judgment, contending that appellants' claims were barred by limitations under C.J. § 5-109(a). The Circuit Court for Prince George's County granted the motion as to all claims. Appellants now present two questions for our consideration:
I. Did the lower court err by granting summary judgment against Wallace Newton Edmonds and Amanda Bree Edmonds on the grounds that their wrongful death claims were barred by the applicable statute of limitations?
II. Did the lower court err by granting summary judgment against the Estate of Debra Edmonds on the grounds that the survival claim was barred by the applicable statute of limitations?
For the reasons stated below, we conclude that the court erred in granting summary judgment. Accordingly, we shall vacate the judgment and remand the case for further proceedings.
FACTUAL SUMMARY
In 1980, Debra Edmonds, who was then twenty-four years old and the mother of a young child, came under the care of Dr. Joseph Murgalo, a gynecologist who is not a party to this litigation. While under Dr. Murgalo's care, Ms. Edmonds experienced vaginal bleeding, abnormal discharge, and cervical eversion[1] and erosion. On February *548 19, 1981, Dr. Murgalo performed a cryoconization of Ms. Edmonds's cervix.[2]
Ms. Edmonds continued to experience problems associated with cervical eversion. In September 1981 and April 1982, she had abnormal Pap smears.[3] In October 1982, Dr. Murgalo noted that the cervix needed attention.
On July 15, 1983, Dr. Murgalo performed a biopsy on a portion of white epithelium of the cervix.[4] The biopsy specimen was sent to Cytology, where Dr. Jaffurs, a Cytology employee, examined it. Dr. Jaffurs diagnosed "severe epithelial dysplasiaepidermoid carcinoma-in-situ (cervical intraepithelial neoplasia3)."[5] In a "comment" on his written report, Dr. Jaffurs stated: "Patient should be considered for further diagnostic surgery."
On July 28, 1983, Dr. Murgalo ordered an additional biopsy of Ms. Edmonds's cervix. The specimen was examined by Dr. Rivera, an employee of the laboratory of Ivan R. Mattei, M.D., P.A.[6] Dr. Rivera diagnosed "foci of severe epithelial dysplasia5." Shortly thereafter, Dr. Murgalo performed a cervical conization.[7] The specimen was sent to the pathology department of Prince George's Hospital and Medical Center. Dr. Abolghassem Hatef, a pathologist who is not a party to this litigation, examined the specimen and stated in a subsequent report: "Cervical cone showing two minute foci of severe dysplasia. All margins are free5."
Following the cervical conization, Ms. Edmonds remained under Dr. Murgalo's care. Between the evaluation of the conization in 1983 and August 1988, Dr. Murgalo continued to follow Edmonds and took periodic Pap smears that were benign.[8] During this period, *549 Ms. Edmonds apparently did not report any symptoms suggestive of cervical cancer, and she did not undergo any further diagnostic procedures.
In August 1988, Edmonds began to experience pain in her right sacroiliac and low back regions. X-rays taken at that time showed a "density" in the right mid-abdomen. That same month, Edmonds was admitted to the hospital for removal of her gallbladder. At that time, she complained of "continuous low back pain."
On May 1, 1989, Edmonds returned to Dr. Murgalo for an office visit, complaining of "severe pain" in the right buttocks, radiating down the right thigh. She also indicated that the pain had been "off and on for four months."[9] She saw Dr. Murgalo again on June 5, 1989 and complained of pain in the right sacroiliac area, radiating down to the groin and to the interior thigh. Dr. Murgalo referred her to an orthopedist. Despite the orthopedic care, Ms. Edmonds's back pain persisted.
On August 28, 1989, an electromyogram and nerve conduction study revealed "profound denervation of the adductors in the right leg consistent with a severe neuropathy involving the right obdurator nerve."[10] Ms. Edmonds continued to suffer excruciating pain in her right mid-lumbar spine and low back areas. She also began to lose a significant amount of weight.
Dr. Guy Gargour examined Ms. Edmonds on October 17, 1989 and performed a CT scan. He discovered a "mass" in the right pelvic area. On November 5, 1989, Edmonds was admitted to Georgetown University Hospital for a cancer evaluation. She was diagnosed on November 8, 1989 as having "squamous cell cancer of unknown origin."[11] She began to receive chemotherapy and radiation treatment. After twenty-five days in the hospital, Edmonds was discharged. She returned to the hospital for cancer treatment on an outpatient basis.
On April 5, 1990, Edmonds was re-admitted to the hospital with symptoms of jaundice, anorexia, nausea, and vomiting. She died on April 11, 1990, at the age of thirtyfour.
On April 9, 1993, Wallace and Amanda Edmonds filed a statement of claim in the Health Claims Arbitration Office.[12] The claim included both wrongful death and survival actions. They alleged that Dr. Jaffurs, Dr. Rivera, Cytology, and Ivan R. Mattei, M.D., P.A. were negligent. After the parties waived the jurisdiction of the Health Claims Arbitration Office, appellants filed a complaint in the circuit court on June 3, 1994.[13] They alleged that appellees (1) failed to diagnose "invasive cancer" in the cervical specimens that they had analyzed in 1983; (2) failed to advise Dr. Murgalo "of the need for surgical treatment to remove the tumor"; (3) failed "to obtain an adequate history" from Edmonds and Dr. Murgalo; and (4) failed "to consider the diagnosis of invasive cancer and discuss appropriate treatments."
Dr. Thomas F. Rocereto, one of appellants' experts, testified at deposition that Ms. Edmonds had "microscopic cervical cancer" at the time the original biopsies were taken in July 1983. He stated that, at that time, she had "at least ... Stage I" cervical cancer, meaning that "[t]he tumor, as far as I could *550 tell from the record, was confined to the cervix." He added, however, that, with Stage I tumors, there is a "ten to fifteen percent chance" that the lymph nodes are also involved.
Dr. Rocereto also opined that, had Ms. Edmonds been correctly diagnosed, the standard of care for her treatment would have been a radical hysterectomy and lymph node dissection. Moreover, he said that, if she had been treated properly in 1983, she would have had at least a seventy-five to eighty-five percent probability of survival. Dr. Rocereto added that Ms. Edmonds's chances of survival could have been more than ninety percent if her cervical cancer were truly microscopic in 1983. He also testified that, by 1989, when Ms. Edmonds complained of severe pain, she had no chance of survival. He was unable to identify, however, the point in time when Ms. Edmonds's cancer became incurable.
Appellees disputed appellants' contentions and denied all liability. They asserted that the biopsy specimens were correctly analyzed in 1983. They also claimed that Ms. Edmonds did not die from cervical cancer. Appellees based this contention, in part, on the autopsy report from Georgetown University Hospital, which stated in its "History" section that "Primary cervical ... carcinoma[ ] had been previously excluded." The autopsy report also said, in its "Summary," that "the major part of the tumor appeared to be located within the pancreas," although the pathologist was unable to determine the origin of the cancer. Further, the Summary indicated that "[c]areful gross and microscopic examination did not reveal any other possible site [other than the pancreas] for primary carcinoma."[14] In addition, Dr. James F. Barter testified at a deposition that "there was no evidence that [Ms. Edmonds] had an invasive squamous cell carcinoma of the cervix."
Notwithstanding these factual disputes, appellees filed motions for summary judgment, asserting that appellants' claims were timebarred under C.J. § 5-109(a), which requires that an action be filed within three years of the date on which "the injury was discovered" (C.J. § 5-109(a)(2)), or within five years from the time "the injury was committed" (C.J. § 5-109(a)(1)), whichever is shorter. In their opposition, appellants contended that there was a genuine dispute of material fact as to when the five year limitations period in C.J. § 5-109(a)(1) had commenced; they argued that an "injury" within the meaning of that provision occurred only when Ms. Edmonds's cervical cancer metastasized to other parts of her body, and the medical experts were unable to state when that occurred. They also claimed that there was a factual dispute that precluded summary judgment with respect to the three year limitations period in C.J. § 5-109(a)(2), because "[t]here is absolutely no way that Debra Edmonds, as a person of ordinary prudence, would then suppose that it was necessary to re-examine the original tissue biopsies to be absolutely certain that they were correctly read." After a hearing, the court granted the motions, although the judge stated that he believed that the result was "extremely unfair."
We shall include additional facts in our discussion of the issues presented.
STANDARD OF REVIEW
Maryland Rule 2-501 governs summary judgment motions. It is well settled that, in resolving a summary judgment motion, the court does not decide disputed facts. Rather, the court must determine whether there are disputes of material fact so as to make a trial on the merits necessary. Maryland Casualty Co. v. Lorkovic, 100 Md.App. 333, 353-54, 641 A.2d 924 (1994). "In order to defeat a motion for summary judgment, the opposing party must show with some particularity that there exists a genuine dispute as to a material fact." General Accident Insurance Co. v. Scott, 107 Md.App. 603, 611-12, 669 A.2d 773, cert. denied, 342 Md. 115, 673 A.2d 707 (1996). A "material fact" is one whose resolution will somehow affect the outcome of the case. King v. Bankerd, 303 Md. 98, 111, 492 A.2d 608 (1985); Seaboard Surety *551 Co. v. Richard F. Kline, Inc., 91 Md.App. 236, 242, 603 A.2d 1357 (1992). In ruling upon the motion, the court must view the facts, including all reasonable inferences from those facts, in the light most favorable to the opposing party. Baltimore Gas and Electric Co. v. Lane, 338 Md. 34, 43, 656 A.2d 307 (1995). But, "[m]ere formal denialsor general allegations of a dispute are not sufficient to establish" a material dispute. Bagwell v. Peninsula Regional Medical Center, 106 Md.App. 470, 488, 665 A.2d 297 (1995), cert. denied, 341 Md. 172, 669 A.2d 1360 (1996); Bond v. NIBCO, Inc., 96 Md.App. 127, 135, 623 A.2d 731 (1993). "[T]he mere existence of a scintilla of evidence in support of the plaintiff's claim is insufficient to preclude the grant of summary judgment." Beatty v. Trailmaster Products, Inc., 330 Md. 726, 738, 625 A.2d 1005 (1993).
In the absence of disputed facts, the court must determine whether a party is entitled to judgment as a matter of law. Beatty, supra, 330 Md. at 737, 625 A.2d 1005. Therefore, the ultimate standard for appellate review is whether the court was "legally correct." Southland Corp. v. Griffith, 332 Md. 704, 712, 633 A.2d 84 (1993); Donovan v. Kirchner, 100 Md.App. 409, 416, 641 A.2d 961, cert. denied, 336 Md. 299, 648 A.2d 202 (1994). Ordinarily, we will not affirm summary judgment on a ground upon which the trial court did not rely, if the court would have had discretion to deny summary judgment on the alternative ground. Cheney v. Bell National Life Insurance Co., 315 Md. 761, 764, 556 A.2d 1135 (1989); Warner v. German, 100 Md.App. 512, 517, 642 A.2d 239 (1994).
DISCUSSION
A.
C.J. § 5-109(a), the statute of limitations in issue, states:
An action for damages for an injury arising out of the rendering of or failure to render professional services by a health care provider, as defined in § 3-2A-01 of this article, shall be filed within the earlier of:
(1) Five years of the time the injury was committed; or
(2) Three years of the date the injury was discovered.
Statutes of limitation are intended, in part, to ensure fairness by preventing "stale" claims. Feldman v. Granger, 255 Md. 288, 296-97, 257 A.2d 421 (1969). See also McMahan v. Dorchester Fertilizer Co., 184 Md. 155, 159, 40 A.2d 313 (1944). Limitations periods rest on the notion that a defendant should not be called upon to defend against a claim when "evidence has been lost, memories have faded, and witnesses have disappeared." Doughty v. Prettyman, 219 Md. 83, 92-93, 148 A.2d 438 (1959) (quotation omitted). Accord Bertonazzi v. Hillman, 241 Md. 361, 367, 216 A.2d 723 (1966). While C.J. § 5-109 serves this policy, it was enacted to alleviate a special problem in the context of medical malpractice claims.
Prior to the enactment of C.J. § 5-109, medical malpractice claims were governed by the general statute of limitations in C.J. § 5-101. That section provides, in part, that "[a] civil action at law shall be filed within three years from the date it accrues...." Under this rule, a medical malpractice cause of action was deemed to "accrue" when the claim was discovered, i.e., at the time when the plaintiff either knew of his or her injury or, in the exercise of reasonable diligence, should have discovered it. See Waldman v. Rohrbaugh, 241 Md. 137, 139-45, 215 A.2d 825 (1966); Hahn v. Claybrook, 130 Md. 179, 182, 100 A. 83 (1917); Lutheran Hospital of Maryland v. Levy, 60 Md.App. 227, 232-33, 482 A.2d 23 (1984), cert. denied, 302 Md. 288, 487 A.2d 292 (1985); Jones v. Sugar, 18 Md.App. 99, 102-05, 305 A.2d 219 (1973).[15]
As the plaintiff's claim did not accrue until it was discovered, there could be a considerable time lag between the date when the physician rendered services and the date on which the cause of action accrued. Such time lags led to a phenomenon known as the "long tail effect" on medical malpractice insurance carriers. Because of the prospect that a physician's services could result in *552 claims years after the service, insurance companies faced uncertainties in estimating their potential liabilities. The result was an increase in medical malpractice insurance rates.
In 1975, in the midst of a perceived crisis in medical malpractice insurance, the General Assembly enacted C.J. § 5-109. We have interpreted C.J. § 5-109(a)(2) to provide the plaintiff with three years from the date the wrong was discovered or reasonably should have been discovered. See Russo v. Ascher, 76 Md.App. 465, 469-73, 545 A.2d 714 (1988). Nevertheless, C.J. § 5-109(a)(1) serves as an outer limit on the time period in which the plaintiff may sue. It provides that an action may not be brought more than five years after "the injury was committed". (Emphasis supplied.) Moreover, this five year period runs irrespective of whether the injury was discovered or reasonably discoverable during that time. Hill v. Fitzgerald, 304 Md. 689, 700, 501 A.2d 27 (1985).
In Hill, the Court described the operation and purpose of C.J. § 5-109(a)(1):
[W]e think that the words of § 5-109 expressly place an absolute five-year period of limitation on the filing of medical malpractice claims calculated on the basis of when the injury was committed, i.e., the date upon which the allegedly negligent act was first coupled with harm. The purpose of the statute, readily evident from its terms, was to contain the "long-tail" effect of the discovery rule in medical malpractice cases by restricting, in absolute terms, the amount of time which could lapse between the allegedly negligent treatment of a patient and the filing of a malpractice claim related to that treatment. The statute is a response to the so-called crisis in the field of medical malpractice claims ... and contains no room for any implied exceptions.
Id., 304 Md. at 699-700, 501 A.2d 27 (citations omitted). Thus, "Hill indicates that the primary objective of the legislature was to promote society's interest in maintaining malpractice insurance coverage and managing the costs of malpractice litigation." Newell v. Richards, 323 Md. 717, 727-28, 594 A.2d 1152 (1991).
Appellants assert that the trial court erred in entering summary judgment, because there was a genuine dispute of fact as to when Ms. Edmonds suffered an "injury" within the meaning of C.J. § 5-109(a)(1). They claim that the trial court erroneously concluded, as a matter of law, that Ms. Edmonds suffered an injury in 1983, when appellees allegedly misdiagnosed the biopsy specimens. They point out that the decedent did not become ill until August 1988, when she began to experience back pain.[16] Because of this "lack of any discernible effect" on Ms. Edmonds, appellants argue that there was a factual dispute as to when appellees' negligence harmed or "injured" the decedent.
Appellants further contend that the word "injury" in C.J. § 5-109(a)(1) is ambiguous, and that interpreting it in the manner suggested by appellees would produce "absurd and unjust consequences"; Ms. Edmonds would have been required to file her lawsuit prior to July 1988, a time period in which she was in apparent good health and free from any signs or symptoms of cancer. Appellants assert that the General Assembly could not have intended such "unjust, oppressive or absurd consequences." Finally, appellants suggest that, if C.J. § 5-109(a)(1) required Ms. Edmonds to file her claim while she was in apparent good health, then it constitutes an unconstitutional denial of access to the courts, in violation of Article 19 of the Maryland Declaration of Rights.[17]
In response, appellees vigorously contend that, if appellants' allegations are accepted as true, then Ms. Edmonds suffered an "injury" when appellees negligently failed to diagnose her cancer in 1983 or "certainly soon thereafter." Thus, they assert that appellants' claim is time-barred, because it was filed more than five years after the "injury was committed."
B.
At the outset, we focus on appellants' contention that there is a factual dispute as to *553 when Ms. Edmonds suffered an "injury." Appellants seemingly argue that Ms. Edmonds was injured when she experienced pain and other symptoms in 1988; they assert that "[t]he record is devoid of any evidence that after Dr. Murgalo performed the conization on August 1, 1983[she] had any signs or warnings of cancer, such as bleeding, loss of weight, change in appetite, nausea, pain, or discomfort."
We have found some authority, not cited by appellants, to support the position that an "injury" occurs when a person first experiences symptoms. The statute of limitations for medical malpractice actions in California is similar to Maryland's, see CAL.CIV.PROC. CODE § 340.5 (West 1982),[18] and the California courts have consistently interpreted the word "injury" to mean the "damaging effect" of the negligent act. See Larcher v. Wanless, 18 Cal.3d 646, 135 Cal.Rptr. 75, 80, n.11, 557 P.2d 507, 512 n. 11 (1976) ("[T]he word `injury' ... seems clearly to refer to the damaging effect of the alleged wrongful act and not to the act itself."); Tresemer v. Barke, 86 Cal.App.3d 656, 665, 150 Cal.Rptr. 384, 388-89 (1978) ("injury" is "not synonymous with `wrongful act,' but refers to the `damaging effect' of the wrongful act"); Wells Fargo Bank v. Superior Court for Sacramento County, 74 Cal.App.3d 890, 896, 141 Cal.Rptr. 836, 838 (1977) (to the same effect). The California courts have also stated that a patient does not suffer an "injury" within the meaning of the statute until he or she has suffered "appreciable harm" as a result of the health care provider's act or omission. Christ v. Lipsitz, 99 Cal.App.3d 894, 897, 160 Cal.Rptr. 498, 500 (1979). See also McNall v. Summers, 25 Cal.App.4th 1300, 1307-13, 30 Cal.Rptr.2d 914, 917-20 (1994), rev. denied, (Sept. 7, 1994) (in case alleging negligent performance of electroconvulsive therapy that resulted in a stroke, "injury" occurred when patient noticed continuous memory loss).
But California's "appreciable harm" or "damaging effect" interpretation could result in a time lag between the date of the wrongful act and the date on which the limitations period would commence. In Larcher v. Wanless, 18 Cal.3d 646, 135 Cal.Rptr. 75, 557 P.2d 507, the California Supreme Court held that, in a wrongful death action, the word "injury" in the statute referred to the death of the patient, and not the patient's earlier illness. The court recognized that such an interpretation would not eliminate the "long tail effect" on medical malpractice insurers. It stated:
Defendants seem to argue from the premise that the undiluted purpose of section 340.5 was to lower malpractice insurance rates by enabling insurers to reduce the amount of reserves they need maintain to meet potential claims. They urge that because a statute of limitations in wrongful death actions which extinguishes a large number of claims before they accrue might substantially curtail malpractice exposure, the legislation should be construed in conformity with that end.
But section 340.5 evinces no such singleminded purpose. Instead, as originally worded, the statute appears to have been a compromise between concern over the extended exposure of medical practitioners to malpractice liability and a desire not to bar potentially worthy plaintiffs from court before they have a fair chance to bring suit. The Legislature declined to adopt other proposals before it which held out the promise of substantially greater reductions in malpractice exposure and necessary insurance reserves. Thus the Legislature did not date the limitation period from the "alleged wrongful act," as provided in one proposal. (Assem. Bill No. 135 (1969 Reg. Sess.).) Instead, the limitation period was tied to "injury," a word of art which might refer to an event occurring some time after the commission of a "wrongful act." *554 Id., 135 Cal.Rptr. at 80, 557 P.2d at 512 (emphasis supplied).
In Steingart v. Oliver, 198 Cal.App.3d 406, 243 Cal.Rptr. 678 (1988), California's intermediate appellate court applied § 340.5 to a fact pattern quite similar to the one in this case. In 1982, Theresa Steingart, the plaintiff, noticed a lump in her right breast. On February 12, 1982, she went to Dr. John White, a gynecologist, who diagnosed the lump as a group of benign cysts, and told Steingart not to be concerned. Steingart, who was a registered nurse, questioned the doctor's diagnosis and requested a biopsy. But White told her that she did not need one. He then sent her to another doctor, Joseph Oliver, who confirmed White's diagnosis.
Steingart did not notice any change in the lump between 1982 and 1985. In 1985, however, she "noticed a change in the contour of the upper outer quadrant of her right breast." 198 Cal.App.3d at 410, 243 Cal. Rptr. at 679. In April of 1985, she was diagnosed with Stage II breast cancer, and had to undergo a radical mastectomy. On March 24, 1986, she filed her complaint against the physicians, alleging negligent misdiagnosis; suit was filed more than four years after White's examination but less than one year after the diagnosis of breast cancer.
The lower court held that the claim against White was barred by limitations, but the appellate court reversed. It noted the general rule that "`the event which activates the three-year limitations period is the moment the plaintiff discovers the harm caused by the alleged negligence.'" Id., 198 Cal. App.3d at 413, 243 Cal.Rptr. at 681 (quoting Hills v. Aronsohn, 152 Cal.App.3d 753, 762, 199 Cal.Rptr. 816, 822 (1984)). Quoting the Hills case, the court added:
"We do not see how the rule can be otherwise. In a medical malpractice action, where an element of the cause of action is damages, a cause of action cannot accrue until the plaintiff has suffered some legally compensable injury. To adopt a rule that the statute begins to run on the date of the alleged negligence would mean that a plaintiff is denied all possibility of recovery simply because the injury did not manifest itself until sometime after three years from the date of the negligent act. Indeed, where the injury does not manifest itself within three years of the negligent act, a plaintiff would have no opportunity whatsoever to recover since the three-year period would effectively bar the action before the cause of action even accrued."
Steingart, 198 Cal.App.3d at 413, 243 Cal. Rptr. at 681 (quoting Hills, 152 Cal.App.3d at 762 n. 7, 199 Cal.Rptr. 816, 822 n. 7).
Applying these rules, the court concluded that Steingart's complaint was timely filed. As for the three year period, the court stated: "[I]t must be concluded [that] Steingart suffered no damaging effect or appreciable harm from White's asserted neglect until Newman discovered her cancer in April 1985." Steingart, 198 Cal.App.3d at 414, 243 Cal.Rptr. at 682. The court rejected the contention that Steingart suffered an injury when she knew about the lump: "[A]lthough Steingart knew about the lump at the time White examined her, such a condition is not a clear indication of injury, either damaging effect or appreciable harm." Id., 198 Cal. App.3d at 415, 243 Cal.Rptr. at 682. As for the one year "discovery" period, the court held that there was "at minimum" a triable issue of fact: "Reasonable minds could easily conclude [that] Steingart did everything within her power to ascertain what, if any, illnesses she had after receiving White's initial diagnosis." Id., 198 Cal.App.3d at 416, 243 Cal.Rptr. at 683.
As we see it, the view of the California courts, typified by Steingart and Hills, is essentially that an "injury" occurs when the patient "discovers" the harm caused by the physician's negligent act. We cannot adopt that view, because it would effectively reincorporate into C.J. § 5-109(a) the same open-ended discovery rule that the General Assembly sought to abolish. Moreover, such an interpretation would render meaningless the dichotomy between C.J. § 5-109(a)(1) and C.J. § 5-109(a)(2).[19] It would also contradict *555 the Court's statement in Hill v. Fitzgerald that the five year period in C.J. § 5-109(a)(1) runs "without regard to whether the injury was reasonably discoverable." Id., 304 Md. at 700, 501 A.2d 27. Therefore, appellants' contention that Ms. Edmonds did not suffer an "injury" until she began to experience pain or other symptoms from the cancer must fail.
C.
Appellees argue that, on the facts of this case, the failure to diagnose resulted in an immediate "injury" to Ms. Edmonds for purposes of C.J. § 5-109(a). Appellees' position rests on the premise that, in this case, the "injury" contemplated by C.J. § 5-109(a) necessarily occurred at the same time as the negligent act or omission. Our research reveals that Delaware subscribes to the view that the time of "injury" coincides with the time the negligent act was committed.
Like Maryland's, Delaware's statute of limitations in medical malpractice actions includes a discovery provision and focuses on the time of "injury." DEL.CODE ANN. tit. 18, § 6856 (1989) provides, in pertinent part:
No action for the recovery of damages upon a claim against a health care provider for personal injury, including personal injury which results in death, arising out of malpractice shall be brought after the expiration of 2 years from the date upon which such injury occurred; provided, however, that:
(1) Solely in the event of personal injury the occurrence of which, during such period of 2 years, was unknown to and could not in the exercise of reasonable diligence have been discovered by the injured person, such action may be brought prior to the expiration of 3 years from the date upon which such injury occurred, and not thereafter.... (Emphasis supplied.)
The Delaware courts have construed the statutory phrase "injury occurred" as referring to the date when "the wrongful act or omission occurred." Benge v. Davis, 553 A.2d 1180, 1183 (Del.1989). The Delaware Supreme Court's decision in Dunn v. Saint Francis Hospital, Inc., 401 A.2d 77, 80 (Del. 1979), illustrates the application of this rule. The plaintiff, Fred Dunn, had a back operation in 1970. In April 1975, he began to experience leg pain. In January 1977, he discovered that the leg pain might have been caused by the negligence of the doctors who performed the operation in 1970. When Dunn filed suit in March 1977, the court held that his suit was barred by limitations. It concluded that "there is no doubt that the phrase `injury occurred' refers to the date when the wrongful act or omission occurred," i.e., the 1970 operation. Id., 401 A.2d at 80. The court relied heavily on the purpose of the special statute of limitations to contain *556 the "long tail" effect of the discovery rule. Id. at 79-80.
The court also rejected Dunn's contention that limitations did not begin to run until he began to experience pain in 1975. Dunn argued that, in the five preceding years, he had no "damages" that would be cognizable in a negligence action, and thus no "injury." The court said:
The answer, however, must be that the statute was a response to a particular issue in a particular context and that to construe it broadly without the bounds of that context, as plaintiff desires, would emasculate its very purpose. Furthermore, if the General Assembly intended there to be a line of demarcation based on the no painno injury rationale, it would have said so in some precise manner. We cannot frustrate the clear legislative intent....
Id., 401 A.2d at 80.
The Delaware Supreme Court has since applied Dunn `s injury-equals-wrongful-act interpretation in cases involving alleged negligent misdiagnoses. See Benge v. Davis, 553 A.2d 1180 (failure to diagnose breast tumor); Reyes v. Kent General Hospital, Inc., 487 A.2d 1142 (Del.1984). Reyes is notable, because it involved alleged negligent misdiagnosis of cervical cancer, and the issue was whether a wrongful death claim was timebarred. The court stated unequivocally: "The clear language of the statute dictates that whether the action be one for personal injury or personal injury resulting in death, the Statute of Limitations begins to run on the date of the alleged wrongful act or omission." Id., 487 A.2d at 1145-46. But cf. Pearson v. Boines, 386 A.2d 651 (Del.1978) (doctor negligently told patient that she had multiple sclerosis, and she underwent voluntary sterilization on his advice; held, "injury" occurred on date of sterilization).
We cannot accept the Delaware rule either. C.J. § 5-109(a)(1) does not date the five year limitations period from when the "wrongful act or omission" occurred. Instead, it specifically declares that the period begins to run on the date when the "injury was committed."
A comparison of C.J. § 5-109(a) with medical malpractice statutes of limitations in other jurisdictions illustrates the importance of this phraseology. Like Maryland, many states enacted special medical malpractice statutes of limitations during the medical malpractice insurance crisis of the 1970's. But most of these statutes use the date of the health care provider's "act" or "omission" as a reference point, and not the date of the patient's "injury." Some of these statutes contain both a "discovery" period and a longer "outer limit" period, and provide that the action must be filed within the time period that expires earlier. (See the statutes listed in Appendix A.) Other statutes that have attempted to counteract the "long tail effect" provide that limitations begins to run on the date of the "act" or "omission," but they do not include a discoverability clause. (See the statutes listed in Appendix B.)
In 1977, the American Bar Association's Commission on Medical Professional Liability recommended implementation of a statute of limitations requiring an action to be brought within two years from the date of the "incident which gave rise to the action," or one year from when the injury was discovered or reasonably should have been discovered, whichever occurred later, but in no event more than "eight years after the occurrence of the incident which gave rise to the injury." (Emphasis supplied).
The Maryland Legislature could have followed the great majority of jurisdictions by enacting a statute providing for the commencement of limitations on the date of the defendant's alleged "act" or "omission."[20]*557 Such language would have compelled the conclusion that limitations begins to run from the date of the misdiagnosis. See Humphreys v. Roche Biomedical Lab., Inc., 990 F.2d 1078, 1080 (8th Cir.1993) (interpreting Arkansas statute providing that suit must be filed within two years of the "wrongful act," except in cases of foreign objects; held, limitations began to run on the date of misreading of Pap smear). But see Bonz v. Sudweeks, 119 Idaho 539, 808 P.2d 876, 878-79 (1991) (interpreting statute requiring that suit be filed within two years of "the occurrence, act or omission complained of"; despite this language, limitations does not begin to run until plaintiff sustains "some damage"). Despite the plethora of statutes in other states to this effect, our Legislature did not adopt such a provision. Instead, it provided that the period specified in C.J. § 5-109(a)(1) would begin to run on the date the "injury" was committed.
In fact, while enacting amendments to C.J. § 5-109 in 1987, see 1987 Md. Laws, ch. 592, the General Assembly considered and rejected a proposal that would have brought the statute more in line with those in other jurisdictions. Senate Bill 225, as originally proposed, would have amended C.J. § 5-109(a)(1) to provide that the five year period would begin to run from the date of "the allegedly wrongful act or omission," rather than from the date when "the injury was committed." This amendment was proposed by the Governor's Oversight Committee on Liability Insurance, along with another proposal to change the limitations period for medical malpractice claims by minors. A briefing paper prepared by the Legislative Office of the Governor, explaining the proposed changes, stated, in part:
[T]he proposed legislation clarifies that the statute begins to run from the occurrence of the allegedly wrongful act or omission.
* * * * * *
The Court of Appeals has recently given an expansive reading to the term "injury" in § 5-109. The Court ruled in Hill v. Fitzgerald, 304 Md. 689, 501 A.2d 27 (1985), that an "injury" is committed on the date that the allegedly negligent act was first coupled with harm. Accordingly, it would be possible under this interpretation to bring an action for a harm that had not manifested itself for years after the negligent act. In some cases, this interpretation effectively negates the limitations period. Such unexpected expansions of risk exposure diminish predictability and pricing stability and, generally, contribute to the soaring premiums in the Maryland malpractice insurance marketplace.
* * * * * *
The proposed bill modifies current law... [to] make it express that the statutory periods begin to run from the date of the "allegedly wrongful act or omission" in place of the common law term "injury."
This proposal, however, was deleted from the bill in the Senate Judicial Proceedings Committee. The Committee's report for the bill stated: "The intent of the deleted language was to overturn the decision of the Court of Appeals in Hill v. Fitzgerald, 304 Md. 689, 501 A.2d 27 (1985). In that case, the court ruled that an `injury' is committed on the date the allegedly negligent act was first coupled with harm."
This history provides strong evidence that the General Assembly did not intend to create an ironclad rule that a medical malpractice claim would be barred if filed more than five years after the health care provider's wrongful act. Instead, as the California Supreme Court suggested in Larcher v. Wanless in reference to that state's statute, the Legislature sought to balance two competing interests. First, it wished to combat the "long tail effect" on medical malpractice insurance. See Committee Report for Senate Bill 225, at 1 ("The intent of this bill is to promote predictability and pricing stability and reduce the huge increase in medical malpractice insurance premiums by shortening the `long tail' for claims involving injury to minors."). Simultaneously, however, it wished to lessen the potential unfairness to victims of malpractice by not overly restricting their ability to present their claims. The Legislature reconciled these competing interests by providing that the five year "cutoff" period in C.J. § 5-109(a)(1) would begin to run on the date when the "injury" resulting *558 from the health care provider's wrongful act or omission occurred, rather than from the date of that act or omission.
In sum, the General Assembly was evidently made aware of the potential ramifications of retaining the term "injury." Nonetheless, it elected to leave that language unchanged. Adopting the Delaware rule, therefore, would be to adopt a rule that the General Assembly has rejected.
D.
Our analysis focuses on the concept of "injury," because the five year limitations period embodied in C.J. § 5-109(a) is triggered when the "injury" occurs. According to the Court in Hill, an injury occurs when "the negligent act [is] coupled with some harm [to create] a legally cognizable wrong." Id., 304 Md. at 696, 501 A.2d 27.
In our view, a negligent misdiagnosis is not necessarily an "injury" for purposes of limitations; a wrongful "act" or "omission" is not the same as an "injury". Indeed, the two need not necessarily occur simultaneously.[21]
The distinction between an injury and a wrongful act is reflected in the elements of a negligence claim, for which a plaintiff must plead and prove the following: (1) the defendant had a duty to protect the plaintiff from injury; (2) the defendant breached that duty; (3) the plaintiff suffered actual injury or loss; and (4) that injury or loss was the proximate result of the defendant's breach. Baltimore Gas and Electric Co. v. Lane, 338 Md. 34, 43, 656 A.2d 307 (1995); Rosenblatt v. Exxon Co., 335 Md. 58, 76, 642 A.2d 180 (1994). Furthermore, in order to recover, the plaintiff's injury or loss must be proven with reasonable probability or certainty, and cannot be the subject of mere speculation or conjecture. See Mount Royal Cab Co. v. Dolan, 166 Md. 581, 584, 171 A. 854 (1934); DiLeo v. Nugent, 88 Md.App. 59, 76, 592 A.2d 1126, cert. granted, 325 Md. 18, 599 A.2d 90 (1991), dismissed, September 16, 1992. The Court of Appeals has also stated: "In a negligence claim, the fact of injury would seemingly be the last element to come into existence. The breach, duty, and causation elements naturally precede the fact of injury." Owens-Illinois, Inc. v. Armstrong, 326 Md. 107, 121, 604 A.2d 47, cert. denied, 506 U.S. 871, 113 S.Ct. 204, 121 L.Ed.2d 145 (1992). See also Hawley v. Green, 117 Idaho 498, 788 P.2d 1321, 1325 (1990) ("In many medical malpractice cases, the damage occurs contemporaneously with the negligent act.... In some instances, however, the damage may not occur until some time after the negligent act" [citations omitted]).
The California courts, in their interpretation of CAL.CIV.PROC.CODE § 340.5, supra, have also recognized the distinction between the health care provider's "act" and the patient's "injury." Although we disagree with their "appreciable harm" standard for determining when the injury occurs, we completely agree with their recognition of the distinction between the two concepts:
"Wrongful act" and "injury" are not synonymous.... The word "injury" signifies both the negligent cause and the damaging effect of the alleged wrongful act and not the act itself.... The date of injury could be much later than the date of the wrongful act where the plaintiff suffers no physical harm until months or years after the wrongful act.
Steketee v. Lintz, Williams & Rothberg, 38 Cal.3d 46, 210 Cal.Rptr. 781, 694 P.2d 1153, 1156 (1985).
To determine whether an "injury" has been "committed" so as to trigger the limitations period in C.J. § 5-109(a)(1), the touchstone of the inquiry is whether the patient has suffered harm that is "legally cognizable." In Hill, which involved an alleged negligent misdiagnosis, the Court held that, to activate the limitations period in C.J. § 5-109(a)(1), "all that is required is that the negligent act be coupled with some harm in *559 order for a legally cognizable wrongand, therefore, injuryto have occurred." Id., 304 Md. at 696, 501 A.2d 27 (emphasis supplied).
Hill claimed that his doctor had negligently diagnosed him as having multiple sclerosis, when he actually had a spinal tumor. He contended that the incorrect diagnosis "was made as early as [Hill's] first visit on January 27, 1975 and certainly not later than February 14, 1975." Id., 304 Md. at 692, 501 A.2d 27. The issue in the case was whether Hill suffered an "injury" after July 1, 1975, in which case C.J. § 5-109 would apply, or before that date, in which case the discovery rule would be applicable. The Court did not say that the "injury" occurred on the date of the negligent act. Instead, it stated: "Whether the original allegedly negligent misdiagnosis of Hill's condition caused some harm and therefore `injury' prior to July 1, 1975 is a question of fact to be determined in light of the principles articulated in Oxtoby [v. McGowan, 294 Md. 83, 447 A.2d 860 (1982) ]." Hill, 304 Md. at 697, 501 A.2d 27.[22]
In Oxtoby, the Court construed the word medical "injuries" in the effective date clause of the Health Care Malpractice Claims Act, C.J. §§ 3-2A-01 to 3-2A-09. The Act provided an effective date of July 1, 1976 and said it "shall apply only to medical injuries occurring on or after that date." 1976 Md. Laws., ch. 235, § 5. If the patient suffered a "medical injury" on or after the effective date, the claimant would have been required to submit to arbitration.
The defendant doctor in Oxtoby undertook to perform a total vaginal hysterectomy and bilateral salpingo-oophorectomy (the removal of both fallopian tubes and ovaries) in February 1974, in order to prevent the patient from developing ovarian cancer. The doctor allegedly failed to remove all of the left ovary and fallopian tube. The patient developed ovarian cancer in April 1977 and died in 1980.
The Court specifically rejected the definition of "injury" contained in § 7(1), comment a of the Restatement (Second) of Torts (1965), which stated that the "invasion of a legally protected interest" could constitute an "injury," even in the absence of harm. Id., 294 Md. at 93, 447 A.2d 860. Instead, the Court said that "[t]he Act is concerned with the invasion of legally protected interests coupled with harm." Id., 294 Md. at 93, 447 A.2d 860 (emphasis added). In describing the concept of "injury," the Court quoted from the Wisconsin case of State ex rel. McManus v. Board of Trustees of Policemen's Pension Fund, 138 Wis. 133, 119 N.W. 806, 807 (1909):
"The word `injury,' in ordinary modern usage, is one of very broad designation. In the strict sense of the law, especially the common law, its meaning corresponded with its etymology. It meant a wrongful invasion of legal rights and was not concerned with the hurt or damage resulting from such invasion. It is thus used in the familiar law phrase damnum absque injuria [damage without violation of a legal right, for which no legal action will lie]. In common parlance, however, it is used broadly enough to cover both the damnum and the injuria of the common law, and indeed is more commonly used to express the idea belonging to the former word, namely, the effect on the recipient in the way of hurt or damage, and we cannot doubt that at this day its common and approved usage extends to and includes any hurtful or damaging effect which may be suffered by any one [sic]."
Oxtoby, 294 Md. at 94, 447 A.2d 860.
The Court concluded that, "in general, `medical injuries' as used in the effective date clause refers to legally cognizable wrongs or *560 damage arising or resulting from the rendering or failure to render health care." Id. (Emphasis supplied.) It added that the "concurrence of an invasion of [the decedent's] rights and of harm to [her]" would constitute a medical injury and an actionable tort. Id.
To set forth a viable claim for negligence, a plaintiff must allege, inter alia, "damages." For example, in Owens-Illinois v. Armstrong, 87 Md.App. 699, 591 A.2d 544 (1991), aff'd in part and rev'd in part on other grounds, 326 Md. 107, 604 A.2d 47 (1992), we held that workers who claimed injuries from asbestos could not recover damages for "pleural plaques" or "pleural thickening," as medical experts had testified that those conditions had no health significance and did not cause any pain, dysfunction, symptoms, or other problems. Id., 87 Md.App. at 732-35, 591 A.2d 544. We stated:
To have a cause of action based on claims of product liability or negligence law submitted to the jury, the plaintiff must produce evidence of a legally compensable injury.
* * * * * *
Sections 388 and 402A of The Restatement (Second) of Torts (1965) identify "harm" as one of the necessary elements of a cause of action in both negligence and strict liability. The Restatement, 7(2), defines "[t]he word `harm' [as] used throughout the Restatement ... to denote the existence of loss or detriment in fact of any kind to a person resulting from a cause." Comment b to section 7 further explains that "`[h]arm' implies a loss or detriment to a person, and not a mere change or alteration in some physical person, object or thing.... In so far as physical changes have a detrimental effect on a person, that person suffers harm." These definitions, as used in the Restatement (Second) of Torts, have been cited with approval in Maryland.
Id., 87 Md.App. at 734, 591 A.2d 544. Because of the clear and uncontradicted evidence that "pleural scarring does not cause a functional impairment or harm as defined the Restatement § 7," we concluded that damages could not be awarded for pleural plaques or pleural thickening. Id. at 735, 591 A.2d 544.
In view of the foregoing authorities, we conclude that an "injury" within the meaning of C.J. § 5-109(a) is not "committed" unless, as a proximate result of the wrongful act, the patient sustains damages. Once damages are sustained, the health care provider's wrong is actionable, or "legally cognizable," within the meaning of Hill and Oxtoby.[23] As we see it, this is the most reasonable interpretation of C.J. 5-109(a), given its language and the interpretive case law.[24]
In appellees' view, the limitations clock began to tick at the moment of the alleged misdiagnoses in 1983. Yet if Ms. Edmonds had filed suit against appellees immediately after their allegedly negligent acts, her suit may have been dismissed for lack of damages or lack of damages that could be proven with reasonable certainty. See Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 666, 464 A.2d 1020 (1983) ("highly likely" that risk of developing lung cancer as a result of asbestos exposure would be "too speculative to support a damage award"). According to appellees, however, the limitations period would continue to run and, if Edmonds filed suit once she sustained legally cognizable damages, her claim may have been beyond the five year window, and thus would have been dismissed on limitations grounds. It is plainly *561 evident that appellees' interpretation could create a situation in which the limitation period runs before all the elements of a viable cause of action even exist. The plaintiff would be caught in an impossible "Catch-22" situation, because she would never be able to file suit; her suit would always be either premature or untimely.
Appellees' interpretation also flies in the face of the familiar principle of statutory construction that, in choosing between competing interpretations of a statute, "the court `may consider the consequences resulting from one meaning rather than another, and adopt that construction which avoids an illogical or unreasonable result, or one which is inconsistent with common sense.'" Maryland Automobile Insurance Fund v. Erie Insurance Exchange, 105 Md.App. 377, 386, 660 A.2d 929 (1995) (quoting Tucker v. Fireman's Fund Insurance Co., 308 Md. 69, 75, 517 A.2d 730 (1986)). See also Frost v. State, 336 Md. 125, 137, 647 A.2d 106 (1994) ("we seek to avoid constructions that are illogical, unreasonable, or inconsistent with common sense"); Lemley v. Lemley, 102 Md.App. 266, 291, 649 A.2d 1119 (1994) (same); Reuter v. Reuter, 102 Md.App. 212, 225, 649 A.2d 24 (1994) (same).
The cases that appellees cite in support of their position that Ms. Edmonds suffered an immediate "injury" at the time of the alleged misdiagnosis are not persuasive. Appellees rely on Oxtoby to argue that an "injury" always occurs at the time of the physician's wrongful act. But, contrary to appellees' assertion, the Court in Oxtoby did not hold that the patient suffered an "injury" at the time of the failed surgery. The trial court found that the patient suffered a medical injury prior to July 1, 1976, and the Court held that, because the record was inadequate to permit review of the finding, the finding had to stand. Id., 294 Md. at 92, 447 A.2d 860. The Court noted that the lower court's "ruling may well have been based on the evidence, alluded to by plaintiffs' counsel at the time, that cancer developed in [the patient] before July 1, 1976." Id. (Emphasis supplied).[25]
Appellees also rely on our decisions in Russo v. Ascher, supra, 76 Md.App. 465, 545 A.2d 714 (1988) and Dennis v. Blanchfield, 48 Md.App. 325, 428 A.2d 80 (1981), modified on other grounds, 292 Md. 319, 438 A.2d 1330 (1982). These cases are distinguishable, however, because it appears that the patient in each case had incurred legally cognizable damages more than five years before filing her action. Thus, the issue of whether a patient could suffer injury in the absence of legally cognizable harm was not before the Court in either case.
In Russo, the patient filed a claim in 1985 with the Health Claims Arbitration Office, alleging that the defendant psychiatrist had negligently failed to diagnose a cyst in her brain during the course of her treatment from 1971 to 1982. The only test that could detect this type of cyst was a CAT scan. Id., 76 Md.App. at 472, 545 A.2d 714. The psychiatrist's expert testified in a deposition that the CAT scan first became available as a diagnostic tool in 1978, and the patient failed to rebut this testimony. Therefore, we held that the five year limitations period in C.J. § 5-109(a)(1) had begun, at the latest, in 1978, when the psychiatrist allegedly failed to use a CAT scan to diagnose the patient's brain cyst. Id.
Appellees suggest that this holding means that a plaintiff invariably suffers an "injury" immediately upon a misdiagnosis. To the contrary, we made clear that the patient, "[d]uring the course of her treatment by the psychiatrist from 1971 to 1982, "experienced headaches, vomiting, dizziness, a gait problem and recurrent episodes of falling," and that her "condition had been deteriorating for over eleven years to the point where she could not walk unassisted." Id., 76 Md.App. at 467, 470-71, 545 A.2d 714. Thus, it appears that this Court assumed that the patient, around the time of the misdiagnosis in 1978, suffered legally cognizable damages, in the form of pain and discomfort, that she *562 would not have suffered in the absence of the psychiatrist's negligence. Therefore, Russo does not alter our conclusion.
In Dennis v. Blanchfield, 48 Md.App. 325, 428 A.2d 80 (1981), the issue, as in Oxtoby, was whether the patient had suffered a "medical injury" on or after July 1, 1976, requiring submission of the claim to arbitration. The plaintiff, Blanchfield, asserted that, in March 1976, Dr. Dennis negligently misdiagnosed her as having incurable cancer. From March to April of 1976, she underwent chemotherapy, but the treatment had to be discontinued due to "the severity of the side effects." Id., 48 Md.App. at 326, 428 A.2d 80. Blanchfield claimed that she sustained physical and mental suffering as a result of the erroneous diagnosis and treatment.
She testified that the chemotherapy caused nausea, vomiting, diarrhea, and weakness. She further testified that the treatment caused an uncomfortable dryness of the mouth, nose, and eyes, and that she still suffered from this condition at the time of trial.... Mrs. Blanchfield testified that the diagnosis and treatment had caused her to become extremely nervous and that she had lived for months in a state of severe depression; she stated that she suffered from chronic memory loss, an inability to concentrate, "head swims," and nightmares. A psychiatrist testified that she suffered from "anxiety depressive reaction," that this condition had been caused by the improper diagnosis and treatment, and that she would require some two years of psychotherapy to alleviate her condition. It was also testified, that during the period when she believed her death to be imminent, she broke off her engagement to be married and was forced by the side effects of the chemotherapy to quit her job as a school bus dispatcher. She testified that she had been unable to regain this job and that, as a result, she had lost wages.
Id., 48 Md.App. at 327-28, 428 A.2d 80. We concluded that Blanchfield had sustained a medical injury prior to July 1, 1976, stating: "By April 27, 1976 [the last day of her chemotherapy treatments], the harm was done and the medical injuries had occurred." Dennis, 48 Md.App. at 330, 428 A.2d 80. Yet it is clear from the excerpt that we have quoted that Blanchfield had suffered harm, in the form of legally cognizable damages, prior to July 1, 1976.
The case of Jones v. Speed, 320 Md. 249, 577 A.2d 64 (1990), is to the same effect. The patient, Jones, claimed that Dr. Speed had negligently failed to diagnose her brain tumor. She "suffered from severe and often debilitating headaches" from 1975 until a brain tumor was discovered and removed in 1986. Id., 320 Md. at 254, 577 A.2d 64. She was under the care of Dr. Speed from July 17, 1978 until September 16, 1985. Although the issue was not contested before the Court, the Court stated that Jones's claim for the alleged misdiagnosis on July 17, 1978 was barred by limitations. "[I]f one accepts the allegations of the plaintiffs, negligence producing an `injury' within the meaning of the statute occurred on 17 July 1978.... Claims for that medical injury are therefore barred by § 5-109(a)(1)." Id., 320 Md. at 255, 577 A.2d 64 (citations omitted).
But Jones, like Russo and Dennis, did not hold that a physician's negligent act automatically results in immediate "injury," even in the absence of legally cognizable damages. First, the issue of the definition of "injury" was not before the Court. Second, Jones did apparently have legally cognizable damages immediately after her misdiagnosis, in the form of pain from her "severe and often debilitating headaches," that would not have occurred if Dr. Speed's diagnosis had been correct, as shown by the fact that surgical removal of her tumor in 1986 eliminated her symptoms. Jones is, therefore, also not inconsistent with our view.
Finally, appellees refer to our decision in Johns Hopkins Hospital v. Lehninger, 48 Md.App. 549, 429 A.2d 538 (1981). But we did not hold there that an "injury" automatically occurs immediately upon misdiagnosis. The plaintiff, Lehninger, fractured his hip in a fall in 1971. He filed suit in 1979, claiming that, the day after the fall, the hospital negligently diagnosed his fracture as a bruise, causing him to walk around with "chronic severe pain" for three days before falling again. He also claimed that, after a surgical procedure on the hip in 1973, the hospital *563 negligently assured him that he would not develop a bone condition called "avascular necrosis," in which the bone deteriorates due to a disruption of the blood supply. Lehninger had no difficulties until he began to experience symptoms of avascular necrosis in 1977.
The hospital contended that the claim should have been submitted to arbitration. Although the hospital conceded that Lehninger had suffered a "medical injury" prior to July 1, 1976, it argued that arbitration was required because (1) Lehninger's claim was filed after July 1, 1976, and (2) the injuries continued to manifest themselves after July 1, 1976. Id., 48 Md.App. at 556-57, 429 A.2d 538. Based on the hospital's concession, the issue of the date when Lehninger's injury first occurred was not before us. Moreover, we stated that Lehninger had suffered "chronic severe pain" after the alleged misdiagnosis in 1971pain that would constitute legally cognizable damages.
We cannot ignore Newell v. Richards, supra, 323 Md. 717, 594 A.2d 1152 (1991), although the parties have not referred to it. There, the Court concluded that the burden of proof with respect to limitations in a medicalof proof with respect to limitations in a medical malpractice case is on the health care provider. It stated:
[T]he health care provider ha[s] the burden of pleading and proving that the claimant's action is time-barred by either of the two statutory provisions. If a health care provider pleads and proves that an action was filed after five years from the alleged negligent act, the action is time-barred. If suit is brought within the five-year limitations period, the action will still be barred if the health care provider pleads and proves that the claim was not brought within three years of the date when "the injury was discovered."
Id., 323 Md. at 728, 594 A.2d 1152 (emphasis added).
While the foregoing statement in Newell could be read to say that the five year limitations period in C.J. § 5-109(a)(1) runs from the date of the health care provider's "negligent act," the issue of when an "injury" is committed within the meaning of the statute was not before the Court in Newell. See id., 323 Md. at 724-25, 594 A.2d 1152. We do not regard Newell as overruling the principles of Hill and Oxtoby, which make clear that there must be an "injury" in addition to the "negligent act" in order for the limitations period in C.J. § 5-109(a)(1) to begin to run. As we have stated, "[S]tare decisis is ill served if readers hang slavishly on every casual or hurried word as if it had bubbled from the earth at Delphi. Obiter dicta, if noticed at all, should be taken with a large grain of salt." State v. Wilson, 106 Md.App. 24, 39, 664 A.2d 1, cert. denied, 340 Md. 502, 667 A.2d 342 (1995), cert. granted, ___ U.S. ___, 116 S.Ct. 2521, 135 L.Ed.2d 1046 (1996). See also St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 2751, 125 L.Ed.2d 407 (1993) ("we think it generally undesirable, where holdings of the Court are not at issue, to dissect the sentences of the United States Reports as though they were the United States Code").
To be sure, we make no judgments about the General Assembly's ability to declare that limitations shall run from the date of the health care provider's wrongful act, regardless of the existence of legally cognizable damages. For example, in C.J. § 5-108(b), it has provided that no action may be brought against an architect, engineer, or contractor for injuries caused by the defective condition of an improvement to real property if the injury "occurs more than 10 years after the date the entire improvement first became available for its intended use." We hold only that the Legislature did not express such an intention in this case. The Legislature is, of course, free to amend the statute.
We emphasize, however, that we are not re-introducing a discovery rule into C.J. § 5-109(a)(1); the Legislature specifically abolished the discovery rule when it enacted that provision. But, the five year limitations period begins to run from the time of injury; that occurs when the patient sustains legally cognizable damages, even if the damages are hidden, undiscovered, and undiscoverable. See Hill, supra, 304 Md. at 700, 501 A.2d 27 (limitation period runs "without regard to *564 whether the injury was reasonably discoverable or not").[26]
In addition, we reiterate the rule from the preceding case law that the five year period begins to run when injury (or "damages") first arises, and not when all damages resulting from the physician's negligence have arisen. The Hill Court stated that all that is required for an injury to exist "is that the negligent act be coupled with some harm." Id., 304 Md. at 696, 501 A.2d 27 (emphasis supplied). The other cases that we have discussed have also made clear that the date of the injury is the date when the injury first arises, even if all of the resulting damages do not occur until later. See Oxtoby, supra, 294 Md. at 97, 447 A.2d 860 ("a medical injury occurs, within the meaning of the effective date clause, even though all of the resulting damage to the patient has not been suffered prior to the Act's effective date"); Lehninger, supra, 48 Md.App. at 556-57, 429 A.2d 538 (Health Care Malpractice Claims Act did not apply, because injury occurred prior to effective date of Act, even though injuries "continued to manifest themselves after the Act's effective date"); Dennis, supra, 48 Md.App. at 330, 428 A.2d 80 ("By April 27, 1976, the harm was done and the medical injuries had occurred. That the effects of those injuries continued to be felt by Mrs. Blanchfield thereafter is irrelevant.")
CONCLUSION
A patient sustains an "injury" within the meaning of C.J. § 5-109(a)(1) when, as a result of the tort, he or she first sustains compensable damages that can be proven with reasonable certainty. See Davidson v. Miller, 276 Md. 54, 62, 344 A.2d 422 (1975); Straughan v. Tsouvalos, 246 Md. 242, 257, 228 A.2d 300 (1967). Therefore, the patient could suffer an "injury" as a result of a negligent misdiagnosis, when (1) he or she experiences pain or other manifestation of an injury; (2) the disease advances beyond the point where it was at the time of the misdiagnosis and to a point where (a) it can no longer effectively be treated, (b) it cannot be treated as well or as completely as it could have been at the time of the misdiagnosis, or (c) the treatment would entail expense or detrimental side effects that would not likely have occurred had treatment commenced at the earlier time; or (3) the patient dies. This is not, of course, an exhaustive checklist; the overriding inquiry in all cases must be when the patient first sustained legally compensable damages. In any event, the injury occurs, as we have observed, when legally compensable tort damages first occur, regardless of whether those damages are discoverable or undiscoverable.
In the instant case, the trial judge determined, as a matter of law, that Debra Edmonds suffered an "injury" at the moment of the alleged misdiagnoses in 1983. Given the posture of a summary judgment proceeding, and in light of the evidence proffered by appellants, the court erred. Dr. Rocereto testified that it was not possible to determine the point between 1983 and 1988 when the cervical cancer spread to other sites in Ms. Edmonds's body:
Q: Can you tell me if you are able to stage her disease in December of 1984 what stage she was in at that point?
A: That's impossible.
* * * * * *
Q: If we assume that 75 to 85 percent cure ratio in 1983 and zero in 1989, can you tell me what her cure rate would have been in 1984?
A: Now, are you asking me if it was diagnosed at that time or if she had proper treatment?
Q: Diagnosed?
A: In 1983.
Q: Diagnosed?
A: I have no records to help me on that so I really can't tell you where the tumor was at that time.
Q: Untreated.
A: I still can't tell you.
Q: You can't tell me what stage her disease would have been in 1984.
*565 A: There isno, I can't. I can assume it was the same, hadn't progressed much. It's impossible. There's no records that give me any hint at all on that. The only other time I can tell you when theabout the disease is when nerve root involvement was involved.
Q: When was that?
A: That was about a year or two before she was diagnosed.
(Emphasis supplied.)
Dr. Rocereto also indicated that this inability stems in part from the nature of cancer:
Q: There's no rule you can look at through your experience to work our way backwards from 1989?
A: No.... [C]ancer in one instance may spread rapidly and in other instances may be very slow growing, may lay dormant, so someone that does have a very early stage cancer that's undetected in one year, five years later may be the same then suddenly a year later has a lot of discomfort and advancing cancer. It's one of those things about cancer we don't understand completely.
(Emphasis supplied.) He later testified: "[T]here obviously was a microscopic tumor present and that tumor may have been spreading all those years as microscopic disease very slowly, it may have been sitting dormant somewhere." (Emphasis supplied).
In addition, Dr. Stanley Burrows testified at his deposition:
I can only say, certainly at the time she was seen at Georgetown she was incurable. I am suspicious she may have been incurable, or at least have a much lower probability of cure, as early as December `84, but I can't say that with any certainty. Perhaps I am going out on a limb even raising that particular date.
Appellants did not proffer any expert opinion that Ms. Edmonds's cancer had not spread at any time prior to April 9, 1988 (i.e., the date five years prior to the filing of the claim) or April 11, 1985 (i.e., the date five years prior to Ms. Edmonds's death). But appellees did not advance any evidence, beyond conclusory assertions, to show that Ms. Edmonds's cancer had advanced during those time periods. Nor do appellees contend that Edmonds suffered any symptoms from the cancer prior to August 1988. Therefore, we conclude that the circuit court erred in ruling, as a matter of law, that appellant's claims were time-barred under the five year limitations provision in C.J. § 5-109(a)(1).[27]
SUMMARY JUDGMENT VACATED.
CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
COSTS TO BE PAID BY APPELLEES.
APPENDIX A
The following twenty-two medical malpractice statutes of limitation include a discoverability clause, but also use the health care provider's "act" or "omission" as a reference point:
ALA.CODE § 6-5-482 (1983): action must be brought within two years after "act, omission, or failure" or within six months after wrong was discovered or should have been discovered; but in no event more than "four years after such act."
COLO.REV.STAT. ANN. § 13-80-102.5 (West 1989): two years after cause of action accrues, but in no event more than three years after "the act or omission which gave rise to the action," except in cases of fraud or foreign objects.
CONN. GEN.STAT. ANN. § 52-584 (West 1991): two years from date when injury is sustained, discovered, or should have been discovered, but not more than three years from the "date of the act or omission complained of."
FLA. STAT. ANN. § 95.11(4)(b) (West 1982): two years from the "incident" or two years from date the incident is discovered or should have been discovered; but in no event more than three years from the date of the "incident or occurrence."
*566 APPENDIX AContinued
GA.CODE ANN. § 9-3-71(b) (1995): five year statute of repose, capped by "date on which the negligent or wrongful act or omission occurred."
ILL. ANN. STAT. ch. 735, para. 5/13-212(a) (Smith-Hurd 1992): two years after patient knew or should have known of injury, but in no event more than four years after the "act or omission or occurrence."
IOWA CODE ANN. § 614.1(9) (West Supp. 1996): two years after patient knew or should have known of injury, or death occurs; but in no event more than six years after "the act or omission or occurrence," except in cases of foreign bodies.
KAN. STAT. ANN. § 60-513(c) (1994): two years after "occurrence of the act" or the injury becomes "reasonably ascertainable," whichever is later; but in no event more than four years after the "act."
KY.REV.STAT. ANN. § 413.140(2) (Baldwin 1991): one year after injury discovered or should have been discovered, but in no event more than five years from "the alleged negligent act or omission."
LA.REV.STAT. ANN. § 9:5628 A (West Supp. 1996): one year from act or discovery of act, but in no event more than three years "from the date of the alleged act, omission, or neglect."
MASS. ANN. LAWS ch. 260, § 4 (Law.Coop.1992): three years after "the cause of action accrues," but in no event more than seven years after "occurrence of the act or omission," except in cases of foreign objects.
MICH. COMP. LAWS ANN. § 600.5838a (West Supp.1996): two years from "the act or omission" or six months after the patient discovers or should have discovered existence of claim, whichever is later; but in no event more than six years after the "act or omission."
NEB. REV. STAT. § 44-2828 (1993): two years after act, or date when the cause was discovered or should have been discovered; but in no event more than ten years "after the date of rendering or failing to render such professional service which provides the basis for the cause of action."
N.C. GEN. STAT. § 1-15(c) (1994): outer limit of four years "from the last act of the defendant giving rise to the cause of action."
N.D. CENT.CODE § 28-01-18(3) (1991): two years after "claim for relief has accrued," but no more than six years after the "act or omission of alleged malpractice," except in cases of fraud.
OHIO REV.CODE ANN. § 2305.11(B) (Supp. 1995): one year "after the cause of action accrued," but in no event more than four years after "the occurrence of the act or omission."
OR. REV. STAT. § 12.110(4) (1995): two years from when injury was discovered or should have been discovered, but no more than five years after "treatment, omission, or operation," except in cases of fraud.
S.C.CODE ANN. § 15-3-545 (Law.Co-op. Supp.1996): three years from date of "treatment, omission, or operation" or date injury was discovered; but in no event more than six years from "date of occurrence."
TENN.CODE ANN. § 29-26-116 (1980): one year from discovery, but in no event more than three years after the "negligent act or omission."
UTAH CODE ANN. § 78-14-4 (1992): two years after plaintiff discovers or reasonably should have discovered "the injury," whichever comes first; but in no event more than four years after "the alleged act, omission, neglect or occurrence."
WASH. REV.CODE ANN. § 4.16.350 (West Supp.1996): three years after "act or omission" or one year from when injury was discovered or reasonably should have been discovered, whichever is latest; but in no event more than eight years after the "act or omission."
WIS. STAT. ANN. § 893.55 (West 1983): three years from "date of the injury" or one year from when the injury was discovered or reasonably should have been discovered; but not more than five years "from the date of the act or omission."
We observe that the statutes in Kentucky, Ohio and Colorado are no longer valid, as the highest courts of those states have declared the statutes unconstitutional. See McCollum *567 APPENDIX AContinued
v. Sisters of Charity of Nazareth Health Corp., 799 S.W.2d 15 (Ky.1990) (statute unconstitutional as a violation of the "open courts" provision of the Kentucky constitution); Hardy v. VerMeulen, 32 Ohio St.3d 45, 512 N.E.2d 626 (1987), cert. denied, 484 U.S. 1066, 108 S.Ct. 1029, 98 L.Ed.2d 993 (1988) (patient did not discover injury until eleven years after the surgical procedure at issue; statute of repose violated "open courts" guarantee, as it "unconstitutionally locks the courtroom door before the injured party has an opportunity to open it"); Austin v. Litvak, 682 P.2d 41 (Colo.1984) (statute of repose violated equal protection; no rational basis for giving the benefit of the discovery rule only to patients alleging fraud or the negligent leaving of a foreign object in their bodies, and not to any other classes of patients).
APPENDIX B
The following ten medical malpractice statutes of limitation provide that the limitations periods begin to run on the date of the health care provider's "act" or "omission," without regard to the date of the injury or its discoverability:
ARK.CODE ANN. § 16-114-203 (Michie Supp.1996): two years of "wrongful act," except in cases of foreign objects.
IND.CODE ANN. § 27-12-7-1(b) (Burns 1994): two years "after the date of the alleged act, omission, or neglect."
ME.REV.STAT. ANN. tit. 24, § 2902 (West 1990): three years after "the date of the act or omission giving rise to the injury," except in cases of foreign objects.
MO. ANN. STAT. § 516.105 (Vernon Supp. 1996): two years from "the date of occurrence of the act or neglect complained of," except in cases of foreign objects.
N.H.REV.STAT. ANN. § 507-C:4 (1983): two years from "the act, omission or failure complained of," except in cases of foreign objects.
N.M. STAT. ANN. § 41-5-13 (1991): three years "after the date that the act of malpractice occurred."
N.Y. CIV. PRAC. L. & R. 214-a (McKinney 1990): two years and six months from "the act, omission or failure complained of," except in cases of foreign objects.
S.D. CODIFIED LAWS § 15-3-545 (Supp. 1996): two years after the "alleged malpractice, error, mistake or failure to cure."
TEX. REV. CIVIL STAT. ANN. art. 4590i, § 10.01 (West Supp.1996): two years "from the occurrence of the breach or tort."
V.I.CODE ANN. tit. 27, § 166d (1993): two years from "the alleged act, omission or neglect," except in cases of foreign objects and concealment.
At least two of these statutes have also been declared unconstitutional. See Nelson v. Krusen, 678 S.W.2d 918 (Tex.1984) (statute violates "open courts" provision of Texas constitution); Carson v. Maurer, 120 N.H. 925, 424 A.2d 825, 833 (1980) (statute violates equal protection clause of New Hampshire constitution; "the legislature may not abolish the discovery rule with respect to any one class of medical malpractice plaintiffs").
In addition, the Idaho Legislature enacted a statute, IDAHO CODE § 5-219(4) (1990), that provides that the two year limitations period begins to run at "the time of the occurrence, act or omission complained of." Notwithstanding this language, the Idaho Supreme Court has interpreted the statute as meaning that the period does not begin to run at the time of the wrongful act "unless some damage has occurred." Hawley v. Green, 117 Idaho 498, 788 P.2d 1321, 1325 (1990) (quotation omitted); Bonz v. Sudweeks, 119 Idaho 539, 808 P.2d 876, 878 (1991). Otherwise, the statute begins to run "only when there is objective proof that would support the existence of some actual damage." Chicoine v. Bignall, 122 Idaho 482, 835 P.2d 1293, 1298 (1992). The court has reasoned that reading the statute literally could produce "an absurd result," because a negligence cause of action "does not accrue until the fact of injury becomes objectively ascertainable." Davis v. Moran, 112 Idaho 703, 735 P.2d 1014, 1020 (1987).
NOTES
[1] "Eversion" is defined as a "turning outward." STEDMAN'S MEDICAL DICTIONARY 545 (25th ed. 1990). Cervical eversion occurs when cells that normally appear on the surface of the inner portion of the cervical canal begin to appear on the outer portion of the canal.
[2] "Cryoconization" is the "[f]reezing of a cone of endocervical tissue with a cryoprobe." STEDMAN'S, supra, at 375. A "cryoprobe" is an instrument used in "cryosurgery"that is, "[a]n operation using freezing temperature (achieved by liquid nitrogen or carbon dioxide) to destroy tissue." Id.
[3] A "Pap smear test" is a "microscopic examination of cells exfoliated or scraped from a mucosal surface after staining with Papanicolaou's stain." STEDMAN'S, supra, at 1572. It is "used especially for detection of cancer of the uterine cervix." Id. The test is named after Dr. George N. Papanicolaou (1883-1962), a Greek-born physician, anatomist, and cytologist.
[4] "Epithelium" is a general term for "[t]he purely cellular avascular layer covering all the free surfaces, cutaneous, mucous, and serous..." STEDMAN'S, supra, at 527.
[5] "Dysplasia" means "[a]bnormal tissue development." STEDMAN'S, supra, at 479. "Epithelial dysplasia" signifies "nonmalignant disorders of differentiation of epithelial cells."
"Carcinoma in situ" of the cervix "has been classically defined as a microscopic pattern in which the full thickness of the cervical squamous epithelium is completely replaced by undifferentiated abnormal cells morphologically indistinguishable from cancer." Howard W. Jones, III, M.D., et al., NOVAK'S TEXTBOOK OF GYNECOLOGY 652 (11th ed. 1988). The "in situ" term means that the lesion is confined to the lining epithelium and has not spread to adjacent structures. See STEDMAN'S at 246.
"Neoplasia" is "[t]he pathologic process that results in the formation and growth of a neoplasm," i.e., a tumor. STEDMAN'S at 1029, 1030. "Cervical intraepithelial neoplasia" (also known as "CIN") consists of "dysplastic changes beginning at the squamocolumnar junction in the uterine cervix which may be precursors of squamous cell carcinoma." Id. at 1029. There are three grades of CIN, which depend on how much thickness of the cervical epithelium is involved. Grade 1 is "mild," Grade 2 is "moderate," and Grade 3 is "severe dysplasia or carcinoma in situ." Id.
[6] Appellants alleged that Dr. Rivera was acting within the scope of her employment with Dimensions Health Care Corporation and Prince George's County, and initially named these two entities as defendants in the statement of claim filed in the Health Claims Arbitration Office. Appellants voluntarily dismissed their claims against Dimensions and the County.
[7] A "cervical conization" is a diagnostic procedure in which a cone of tissue is excised from the cervix. STEDMAN'S, supra, at 343; NOVAK'S TEXTBOOK OF GYNECOLOGY, supra, at 664-65.
[8] At a deposition, Dr. Thomas F. Rocereto, one of appellants' experts, was asked to explain how the Pap smears could be benign if Ms. Edmonds had cervical cancer at that time. He responded:
Obviously, there was nothing abnormal in that area of the cervix. Remember, when you do a PAP smear, you're only doing the surface.
* * * * * *
So you can have a cancer that's growing underneath the cervix, you can have an obvious cancer growing underneath the cervix and do a normal PAP smear.
[9] At his deposition, Dr. Rocereto stated that this pain was most likely "sciatic nerve irritation. And most likely at that time there was tumor already involved in the nerve root."
[10] "Neuropathy" is a "classical term for any disorder affecting any segment of the nervous system," though in "contemporary usage" it refers to "a disease involving the cranial or spinal nerves." STEDMAN'S, supra, at 1048.
[11] "Squamous cell" is a general term denoting "a flat, scale-like epithelial cell." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 298 (27th ed. 1988). "Squamous cell carcinoma," in turn, is "carcinoma developed from squamous epithelium, and having cuboid cells." Id. at 272.
[12] Under C.J. § 5-109(d), "the filing of a claim with the Health Claims Arbitration Office in accordance with § 3-2A-04 of this article shall be deemed the filing of an action" for purposes of the limitations periods prescribed by the section.
[13] C.J. § 3-2A-06A(a) provides, in relevant part: "At any time before the hearing of a claim with the Health Claims Arbitration Office, the parties may agree mutually to waive arbitration."
[14] At his deposition, Dr. Rocereto questioned the pathologists' methodology, but could not say whether the autopsy report was mistaken.
[15] In 1981, the Court of Appeals extended the discovery rule to civil actions in general. See Poffenberger v. Risser, 290 Md. 631, 431 A.2d 677 (1981).
[16] Dr. Rocereto opined at his deposition that this back pain was the result of gallbladder disease.
[17] Based on our resolution of this case, we need not consider this issue.
[18] Calif.Civ.Proc.Code § 340.5 provides, in relevant part:
In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for [fraud, intentional concealment, or the presence of an unauthorized foreign body in the patient].
(Emphasis supplied.)
[19] At least two California courts have recognized that interpreting the word "injury" to mean "discovered" or "appreciable" harm in CAL.CIV.PROC. CODE § 340.5's three year cutoff provision could render the statute's one year discovery provision meaningless. See Marriage and Family Center v. Superior Court, 228 Cal.App.3d 1647, 1654, 279 Cal.Rptr. 475, 480 (1991) (criticizing the Hills interpretation and holding that "damage is `manifested' for purposes of commencing the threeyear period when it has become evidenced in some significant fashion, whether or not the patient/plaintiff actually becomes aware of the injury"); Bispo v. Burton, 82 Cal.App.3d 824, 830, 147 Cal.Rptr. 442, 445 (1978) ("If one were to simply lift the language from those cases concerning the definition of injury and apply it without analysis to all situations, the result would render the four-year limitation meaningless.")
One California court has attempted to remedy this problem by interpreting § 340.5 as follows: "First, the plaintiff must file within one year after she first `discovers' the injury and the negligent cause of that injury. Secondly, she must file within three years after she first experiences harm from the injury." Dolan v. Borelli, 13 Cal.App.4th 816, 825, 16 Cal.Rptr.2d 714, 718 (1993) (emphasis in original).
The problems with this interpretation are twofold. First, it causes the word "injury" to have two different meanings in the same statute: one meaning being "injury and the negligent cause," and the other meaning being "harm that is experienced." Cf. Whack v. State, 338 Md. 665, 673, 659 A.2d 1347 (1995) (when identical words are used in the same statute, it is presumed that they have identical meanings, but the presumption is rebutted "where it is apparent that the words used warrant the conclusion that they were employed in different parts with a different intent"). Second, the one year limitations period in § 340.5 does not speak of discovery of the injury "and the negligent cause." Rather, it only speaks of discovery of the "injury." The California court thus added words to the statute that are not there. Such an interpretation would violate settled Maryland principles of statutory construction. See Claggett v. State, 108 Md.App. 32, 41, 670 A.2d 1002, cert. denied, 342 Md. 330, 675 A.2d 992 (1996).
[20] In addition to California and Delaware, the following states have medical malpractice statutes of limitation that use the patient's "injury" as a reference point: Nevada, see NEV.REV.STAT. ANN. § 41A.097 (Michie 1996) (action must be commenced not more than "4 years after the date of injury or 2 years after the plaintiff discovers or through the exercise of reasonable diligence should have discovered the injury, whichever occurs first"); Montana, see MONT.CODE ANN. § 27-2-205 (1995) (three years after the injury occurs or is discovered, but in no event more than five years "from the date of injury"); and West Virginia, see W. VA.CODE § 55-7B-5 (1994) (two years after date of injury or date when injury should have been discovered, whichever occurs latest, but in no event more than "ten years after the date of injury").
[21] To illustrate, we offer the following examples. If someone throws a snowball at another person fifty yards away and injures that person, the "injury" occurs not when the perpetrator commits the act of throwing the snowball, but rather when it strikes the other person's body. Likewise, if someone carelessly leaves dynamite on a city sidewalk, a negligent "act" may have occurred, but an "injury" may not occur until much later, when the dynamite explodes and causes damage to persons or property.
[22] We recognize, as we noted earlier, that the Hill Court, while commenting on the purpose of C.J. § 5-109, stated: "The purpose of the statute, readily evident from its terms, was to contain the `long-tail' effect ... by restricting, in absolute terms, the amount of time that could lapse between the allegedly negligent treatment of a patient and the filing of a malpractice claim related to that treatment." Id., 304 Md. at 700, 501 A.2d 27. But this statement must be read in context. In two separate instances prior to this statement, the Court explicitly said that the triggering event for the five year period is not the negligent treatment but the "injury," i.e., "the date upon which the allegedly negligent treatment was first coupled with harm." Id. Therefore, the date of the injury is not necessarily the date of the negligent treatment.
[23] We recognize that there will not necessarily be a delay between the health care provider's negligent act and the resulting injury. We can certainly conceive of cases in which the negligent performance of a medical procedure causes legally cognizable damages immediately.
[24] The Nevada Supreme Court adopted such a view in Massey v. Litton, 99 Nev. 723, 669 P.2d 248 (1983), when it considered a medical malpractice statute of limitations that is similar to Maryland's. NEV.REV.STAT. ANN § 41A.097 (1996) provides, in relevant part: "[A]n action for injury or death against a provider of health care may not be commenced more than 4 years after the date of injury or 2 years after the plaintiff discovers or through the exercise of reasonable diligence should have discovered the injury, whichever occurs first...." (Emphasis supplied.) The court construed the word "injury" in the statute as meaning " `legal injury,' i.e., all essential elements of the malpractice cause of action." Id., 669 P.2d at 250, 251. (Emphasis supplied.)
[25] In addition, it could also be argued that the patient in Oxtoby had a legally cognizable injury, and thus a cause of action in negligence, immediately after the operation. Because a portion of one of the ovaries sought to removed was left in her body, one could argue that she immediately had a cause of action in that she could have had another operation to remove it.
[26] A cause of action in negligence may "arise" in the sense that facts exist to support each elementbefore the cause of action is discovered or discoverable. See Owens-Illinois v. Armstrong, supra, 326 Md. at 121, 604 A.2d 47.
[27] Appellees do not argue in their briefs that either of appellants' claims were time-barred under the three year "discovery" period in C.J. § 5-109(a)(2). Therefore, we shall not consider whether the claims were barred on that ground. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266494/ | 217 Pa. Superior Ct. 244 (1970)
Fowler, Appellant
v.
Smith.
Superior Court of Pennsylvania.
Argued April 15, 1970.
September 18, 1970.
*245 Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.
John H. Pope, with him Reed J. Davis, for appellant.
Frederick N. Egler, with him Richard C. Schomaker, and Egler, McGregor & Reinstadtler, for appellee.
OPINION BY CERCONE, J., September 18, 1970:
This is an appeal from the lower court's grant to defendant of a judgment n.o.v. after a jury's verdict in favor of the plaintiff in the amount of $7,500.00. The lower court found plaintiff to be contributorily negligent as a matter of law and thus not entitled to the jury's verdict. Plaintiff has appealed to this court.
Our study of the case compels us to affirm the jury's verdict in favor of plaintiff and to hold as error *246 the grant of the judgment n.o.v. Viewing, as we must, the evidence in the light most favorable to plaintiff and giving him the benefit of all favorable inferences, and resolving all conflicts in the testimony in his favor, we find that the record and the law supports the jury's determination.
The record reveals that plaintiff was proceeding west on Jamison Street, in the County of Allegheny, Borough of Monroeville, Pennsylvania, approaching that street's "T" intersection with Monroeville Road which runs north and south. Jamison Street and Monroeville Road are two-lane highways. Plaintiff was approaching Monroeville Road for the purpose of making a right turn thereon, and as he so approached the intersection, the traffic light, which is suspended in the center of the intersection, showed red for his direction of travel. He stopped ten (10) feet from the curb lane, from which point his view to the left was 150 feet, and looked both to his left and right. When the light turned green, plaintiff again looked to his left and then to his right, noting that a car to his right, which he had been observing, had come to a stop at the light. Plaintiff then began his right turn onto Monroeville Road, and when he was ten (10) feet onto Monroeville Road, with the rear of his car still on Jamison, the left front of his car was struck by the automobile driven by defendant, who had come from the left on Monroeville Road, the impact knocking the right side of plaintiff's car into a corner telephone pole. Defendant's car proceeded 300 feet down the road after the impact.
One of the plaintiff's witnesses testified that defendant had been driving slowly (but gave no estimate of the speed), talking and gesturing to his wife, and that the light was red before defendant entered the intersection, and that defendant went through the red light, struck the plaintiff's car and continued 200 or 300 feet down the road.
*247 Another of plaintiff's witnesses testified that the light was red for a second or more as the defendant's car approached from the opposite direction, and that the defendant's car never stopped but came through and hit the plaintiff.
Under the above facts the court below held the plaintiff not entitled to the jury's verdict, it relying on the rule which it states to be "If the facts surrounding an intersection collision show conclusively that the motorist must not have looked for approaching traffic before entering the intersection, then the motorist is deemed not to have looked, whether he said he did or not, and is contributorily negligent as a matter of law." For this rule and the application thereof, the court below relies on the decision in Perpetua v. Philadelphia Transportation Company, 380 Pa. 561 (1955). However, a reading of that decision clearly reveals it was limited to the fact situation there involved, that of an intersection of three avenues "each wide enough to accommodate at least six lanes of traffic" which complicated situation imposed the duty to continue to look while traversing the intersection. The Court there held, at page 563, that the record was barren of any testimony as to whether plaintiff "continued to look as he proceeded through the intersection", the Court noting "the law only makes obligatory the rule of common sense regarding the duty of a driver at the intersection of streets, where traffic is very dangerous because conflicting."
The intersection in the instant case is that of one two-lane highway leading into and ending at its intersection with another two-lane highway, or what is commonly known as a "T" highway. Once plaintiff stopped and had a clear view of 150 feet, he could logically and legally assume that it was safe for him to commence his turn in accordance with the authority of the green light which was in his favor. After that, it was his *248 duty to continue to look in the direction of his turn. In Cericola v. Redmon, 182 Pa. Superior Ct. 19 (1956), plaintiff looked as he approached the intersection, saw nothing, then proceeded and was struck by defendant whom plaintiff stated he saw only 4 or 5 feet away, almost at the time of impact. We there emphasized the fact that the green light was in plaintiff's favor and stated: ". . . he must not be held to the exact degree of care that would have been required of him had there been no light or stop sign in his favor at the intersection. To hold otherwise would thwart the purpose of through highways and traffic lights to facilitate the flow of traffic . . . Cericola did not have a legal right to go blindly into the intersection regardless of other vehicles that might have already been within it. But, this he did not do. As he approached the intersection he did look for traffic and saw nothing approaching. Under the circumstances of this case the question of contributory negligence was for the jury."
The fact that plaintiff may have had a more distant view at some point closer to the curb would not convict him of contributory negligence in failing to avail himself of that additional view, for there is no duty imposed upon one proceeding with the authority of the green light to look all the way down the intersecting street to ascertain the presence of a motorist whose collision with plaintiff could not be anticipated in view of the distance and the traffic signal. See Kline v. Kachmar, 360 Pa. 396 (1948).
Futhermore, the testimony of one of plaintiff's witnesses would indicate that plaintiff's view from the curb would not be as great as estimated by plaintiff himself, and of course, it was for the jury to reconcile any conflicting testimony. As stated in Cardone v. Sheldon Hotel Corp., 160 Pa. Superior Ct. 193 (1947): ". . . if on one part of the plaintiff's testimony or that of a witness he is entitled to go to the jury and on another *249 part he is not . . . it is for the jury to reconcile such conflicting statements and say which shall prevail." So, also, with respect to the testimony of the plaintiff's witness that defendant proceeded slowly on Monroeville Road, through the red light and to the point of collision, it was for the jury to reconcile this general testimony, which did not include any estimate as to rate of speed, with the uncontradicted evidence that defendant did not avoid the collision though plaintiff was already committed to making his right turn and that the force of the impact caused plaintiff's vehicle to be pushed into the corner telephone pole and defendant's vehicle to travel another 300 feet before coming to a stop.
It is our holding that under all the facts and circumstances of this case, it was for the jury to determine first, whether or not plaintiff had allowed himself a sufficient view to the left before making his right turn and second, whether or not defendant was within such view at the time plaintiff committed himself to making that turn. Such findings were matters peculiarly within the province of the jury as they depended not on incontrovertible physical facts but on the existence of varying and estimated distances and speeds, which distances and speeds in turn depended on oral testimony as supplemented by the evidence of the force and manner of collision.
Judgment and order entered below reversed and record remanded with directions to enter judgment on the verdict.
DISSENTING OPINION BY JACOBS, J.:
I respectfully dissent because I feel that the court below correctly analyzed the facts and properly applied our case law in granting judgment n.o.v.
To the facts as stated by the majority I would add the following: The collision occurred at about 1:45 p.m. *250 on a clear and sunny day. The roadway was dry. Appellant testified that appellee was moving at approximately 20 miles per hour after the impact.
A jury returned a verdict for the appellant. Appellee moved for judgment n.o.v. on the ground that appellant was guilty of contributory negligence as a matter of law. The court en banc granted appellee's motion. It held that the circumstances of the case, including the fact that appellant did not see appellee prior to the collision, were positive proof that he could not have looked before entering the intersection and made him automatically contributorily negligent in the absence of some reasonable explanation. The court found that there was no reasonable explanation why appellant did not see appellee.
As argued by appellant a motorist with a green light in his favor cannot be held to the same high degree of care as a driver at an unregulated intersection. Jordan v. Kennedy, 180 Pa. Superior Ct. 593, 119 A. 2d 679 (1956), quoted with approval in Smith v. United News Co., 413 Pa. 243, 196 A. 2d 302 (1964). If in fact appellant looked to his left after the light changed in his favor when he was a scant ten feet from the intersection, could see 150 feet and saw no one coming, he had a right to assume that any driver approaching outside his vision would stop for the red light and he could not be declared negligent as a matter of law. Topelski v. Universal South Side Autos, Inc., 407 Pa. 339, 180 A. 2d 414 (1962). However, a driver who fails to look for traffic on an intersecting street before he enters an intersection convicts himself of contributory negligence even though he has a traffic signal in his favor. Lewis v. Quinn, 376 Pa. 109, 101 A. 2d 382 (1954). The case thus turns on whether or not the appellant looked to his left after the light turned green.
In the usual case such a factual determination would be for the jury. The court below, in determining *251 that appellant did not look, held that the facts in the case showed that had appellant looked he would have seen appellee. We held such a determination by the court to be proper in an intersection case and granted judgment n.o.v. in Clee v. Brinks, Inc., 135 Pa. Superior Ct. 345, 5 A. 2d 387 (1939). In that case plaintiff could see 100 feet down the intersecting avenue from whence defendant came. We stated the rule as follows: "The law will not permit a driver to say that he looked where he had an unobstructed view without seeing what must have been within the range of his vision." 135 Pa. Superior Ct. at 354, 5 A. 2d at 392. In Sargeant v. Ayers, 358 Pa. 393, 398, 57 A. 2d 881, 883 (1948), a case sustaining a compulsory nonsuit where the physical circumstances made it evident that a good view of approaching vehicles was available to both drivers, the Supreme Court said, "The plaintiff's admitted failure to see the approaching truck is explainable only on the ground that he was inattentive; and inattention in such a situation is negligence." See also Smith v. United News Co., supra at 249, 196 A. 2d at 306.
In considering the testimony in the light most favorable to the appellant, the court was not required to ignore the limiting evidence of appellant's own witnesses or the undisputed physical facts. Litwinowitch v. Oriental Nav. Co., 311 Pa. 257, 166 A. 911 (1933). A witness called by appellant had followed appellee for a mile prior to the collision and testified that appellee was driving "extremely slow" and continued at the same speed into the intersection. Appellant himself testified that he could see 150 feet to his left as the light changed in his favor. Appellee came down Monroeville Road from appellant's left. Only one-half of appellant's car had entered the intersection when he was hit. Appellant testified that he did not see appellee *252 at any time prior to the collision.[1] He further said that appellee was going approximately 20 miles an hour after the impact. In my opinion these facts and circumstances demonstrate that appellant must have had a view of appellee's approaching automobile had he looked when the light turned green in his favor. I am satisfied that appellant either did not look or was inattentive when the light turned green and convicted himself of contributory negligence as a matter of law.
I would affirm the court below.
NOTES
[1] In Ratcliff v. Myers, 382 Pa. 196, 201, 113 A. 2d 558, 560 (1955), the Supreme Court gave great factual weight to a similar admission when it said: "Myers himself admitted that `seeing and hitting was one,' which is proof positive that he could not have looked up Highway Route 194 before entering the intersection. . . ." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266510/ | 269 A.2d 781 (1970)
CEDAR INN, INC., a Delaware Corporation
v.
KING'S INN, INC., a Delaware Corporation and the United States of America.
Superior Court of Delaware, New Castle.
August 5, 1970.
David S. Keil, Wilmington, for Cedar Inn, Inc.
James A. Walsh, Wilmington, for King's Inn, Inc.
F. L. Peter Stone, Wilmington, for United States.
William R. Hitchens, Jr., and Jay P. James, of Morris, James, Hitchens & Williams, Wilmington, for Aims, Inc.
Clair J. Killoran, Wilmington, for J and J Corporation.
Peter Sieglaff, Wilmington, for Delaware Trust Co.
John Biggs, III, Wilmington, for Investment and Service Co., Inc.
John A. Faraone, Wilmington, for Francis W. Corridori, Inc.
Joseph Longobardi, Wilmington, for John J. Smith, Sheriff of New Castle County.
*783 OPINION
CHRISTIE, Judge.
The facts in this case have been stipulated to by all of the parties and may be summarized as follows:
On February 10, 1970, a sale pursuant to writ of levari facias was held on the steps of the Public Building, at 11th and King Streets, Wilmington, Delaware. There were numerous people present.
At that time the Sheriff's auctioneer read aloud the sale poster which included a description of the subject real estate, the terms of the sale, and the fact that the real estate had been taken in execution as the property of King's Inn, Inc., a Delaware corporation.
David S. Keil, Esquire, attorney for Cedar Inn, Inc., which held the second mortgage on the property, read aloud a letter he had written to the Sheriff concerning Delaware Trust Company's first mortgage, wherein it was stated that the property "is being sold subject to a first mortgage and lien held by Delaware Trust Company * * *" The date, original amount, interest rate and recording information as to the mortgage were stated.
Peter Sieglaff, Esquire, attorney for Delaware Trust Company, read aloud a similar statement on behalf of Delaware Trust Company, in which he stated that the property was being sold "subject to a first mortgage lien held by the Delaware Trust Company". He announced that the principal unpaid balance due on the mortgage was $32,241.11, unpaid interest was $962.14 and the per diem rate was $5.37.
The Sheriff's auctioneer announced that he had been advised that certain announcements were going to be made concerning the sale, and that the Sheriff made absolutely no representations in respect to liens, nor would he be held accountable for any announcements in respect thereto, no announcements having been authorized by the Sheriff.
Mr. Keil opened the bidding at $30,000. A Mr. Spiro, of Aims, Inc., bid against Mr. Keil until Mr. Keil dropped out of the bidding upon Mr. Spiro's bid of $63,000. A Mr. Shannahan, of J and J Corporation, entered the bidding at $70,000. The bidding progressed with Mr. Spiro eventually bidding a high of $118,000 followed by Mr. Shannahan's bid of $120,000. There were no other bids and the Sheriff's auctioneer closed the bidding, knocking down the property at $120,000 to J and J Corporation.
On March 5, 1970, Aims, Inc., filed a petition for a rule to show cause why the sale should not be set aside and this Court signed an order to stay the confirmation of the sale, originally scheduled to be confirmed on March 6, 1970. The order also required that a rule to show cause why the sale should not be set aside be served upon Cedar Inn, Inc., J and J Corporation, and John J. Smith, Sheriff, returnable to this Court on March 12, 1970.
On that date a presentation of the facts, issues and positions thereon of all interested parties (excepting the Sheriff, who was not present) was made to the Court. In addition, an order to deposit the $120,000 held by the Sheriff (the balance of which was earlier deposited with him) in Wilmington Savings Fund Society was signed by the Court pending further order of the Court.
A search of the records in the Office of the Recorder of Deeds and the Office of the Prothonotary in and for New Castle County would disclose inter alia liens of record in order of their priorities as follows:
1. Mortgage held by Cedar Inn, Inc., dated December 12, 1962, recorded in Mortgage Record O-57-413 in the original amount of $70,000. At the time of sale the amount due on the mortgage was about $61,000.
*784 2. Mortgage held by Delaware Trust Company dated November 19, 1963, in the original amount of $64,000 and recorded in Mortgage Record Y-58-385.
On or about the date of this mortgage Delaware Trust Company and Cedar Inn, Inc., had entered into an agreement under the terms of which the Cedar Inn, Inc., mortgage was subordinated to the lien of the Delaware Trust Company mortgage rendering the Delaware Trust Company mortgage a first lien. This agreement was recorded November 19, 1963, in Deed Record E-72-292.
3. Judgment bond in favor of Delaware Trust Company dated November 19, 1963, in the original amount of $60,000 and recorded in Judgment Record M-9-539 on November 20, 1963.
There are other later liens held by various creditors, some of whom were bidders at the sale.
It is the position of counsel for the petitioner, Aims, Inc., who was second highest bidder at the sale, that Aims was led to believe, by the announcements made at the sale, that Delaware Trust Company by stating that the sale was "subject to the first mortgage" had elected to rely solely on its first mortgage and had given up any position it had under its bond. Thus, Aims was under the impression that the successful bidder would be required to pay the bid price and would still be liable for the entire balance announced as being due on the first mortgage. Based upon that understanding of the announcements Aims dropped out of the bidding at $118,000, believing that it had in effect offered a total price of the $118,000 bid plus the $34,000 unpaid mortgage balance, a total obligation of approximately $152,000.
Petitioner alleges that only after the sale was over it was disclosed that the Delaware Trust Company also relied on its judgment bond securing the same indebtedness and, therefore, Aims learned for the first time that the mortgage indebtedness would be paid off out of the proceeds of the sale.
Petitioner argues that Delaware Trust Company's failure to instruct prospective bidders that it was relying on its first mortgage only to the extent that the debt was not discharged by the application of sale proceeds to its judgment lien, was misleading to all the bidders and resulted in depressed bidding. Petitioner was not aware that the judgment bond covered the same debt as the mortgage and apparently assumed that it was a separate debt.
Petitioner wishes to set the sale aside and promises to bid at least $120,000 at a resale. All other interested parties oppose the motion to set aside the sale but they are in sharp disagreement as to whether the bank which holds a first mortgage may participate in the distribution of the proceeds of the sale under a judgment bond securing the same debt.
Delaware Trust Company has argued that the recorded order and time of filing of the mortgage and bond was sufficient to put petitioner on notice that the mortgage and the bond covered the same debt. It further argues that under the provisions of 10 Del.C. § 4985, as discussed by Judge Woolley in Woolley on Delaware Practice (Vol. II), § 140, proceeds of the sale must be distributed after payment of the second mortgage first to Delaware Trust Company as first general lienholder and that payment of this lien will be applied to the mortgage indebtedness which both the mortgage and bond secured. The statute reads as follows:
§ 4985. Discharge of liens upon execution sale; exceptions
"Real estate sold by virtue of execution process shall be discharged from all liens thereon against the defendant, or against one or more of the defendants (if there is more than one), whose property such real estate is, except such liens as have been created by mortgage or mortgages prior to any general liens; and with respect *785 to such, the sale shall be a discharge to the extent to which the proceeds thereof may be legally applicable to a judgment or judgments obtained for the debt, to secure the payment of which the mortgage or mortgages respectively (if there is more than one) appear to have been given, and the real estate shall also be discharged from all right of dower and curtesy therein of any defendant in the execution." (10 Del.C. § 4985)
Woolley on Delaware Practice (Vol. II).
Section. 1140, construes the above quoted statute as follows:
"If the order of liens against the land, created by the defendant in the writ, is (a) mortgage lien, (b) general lien and (c) general lien or liens, and the sale is upon (a) the mortgage lien, the distribution is made first to costs, second to taxes, third to the mortgage lien, fourth to the first general lien and fifth to the second general lien and all succeeding liens in the order of their entry and priority, and the land is wholly discharged from all liens, whether the proceeds are sufficient to reach and satisfy all of them or not.
But if the order of liens is, as in the last illustration, (a) mortgage lien, (b) general lien and (c) general lien or liens, and the sale is held upon an execution upon (b) the second lien, which is a general lien, or upon (c) the third lien, which is another general lien, the statute determines the method of application and discharge, by providing that `real estate * * * shall be discharged from all liens thereon against the defendant * * * except such liens as have been created by mortgage or mortgages, prior to any general liens.' The first lien being a lien `created by mortgage,' and being prior to a general lien, is within the exception, and is not discharged by the sale and does not share in the distribution of the proceeds. The proceeds of sale are then applied, first to costs, second to taxes, third to (b) the first general lien, and fourth to (c) the second general lien and succeeding liens in the order of their entry and priority. The land is purchased subject to the mortgage lien, and it is discharged from all liens subsequent to it, whether the proceeds are sufficient to reach and satisfy all of them or not.
But in the last illustration of (a) mortgage lien (b) general lien and (c) general lien or liens, if (b), a general lien is the lien of a judgment entered upon the bond accompanying (a) the mortgage lien, and the sale is held upon (c) a general lien and the third of the liens, the money applied to (b) the general lien entered on the bond accompanying the mortgage lien, will operate as a discharge of the first mortgage lien to the extent to which the proceeds may be legally applicable to (b) the judgment obtained on the bond to secure the debt for which the (a) mortgage was given, but will not operate as a discharge of the mortgage as a security for the residue of the debt."
Delaware Trust Company argues that this case is exactly the same in all material respects as the case discussed in Woolley. The sale was brought on the Cedar Inn second mortgage foreclosure and because Delaware Trust did not join in the foreclosure, no proceeds are to be applied directly to its first mortgage lien as such. However, as in Judge Woolley's example, the proceeds are applicable to Delaware Trust's judgment bond since such judgment was the first entered and any such payment will operate to discharge the mortgage lien to the extent that the balance on the mortgage obligation is reduced by payment on the underlying judgment.
In view of the statute and the recorded judgment I conclude that petitioner knew or should have known that such would be the order of distribution of the sale proceeds. If petitioner had any doubt about the status of the judgment, the burden *786 was on petitioner to make inquiry. Any announcements made at the sale did not change the statutory law.
The successful bidder, J and J Corporation, supports the position of Delaware Trust Company and argues that, under the circumstances, it is entitled to the property free and clear of the mortgage since the sale price was sufficient to pay off the second mortgage and also the entered judgment bond which was secured by the first mortgage.
Investment and Services Co., Inc., and Francis W. Corridori, Inc., two of the judgment creditors with liens junior to those of Cedar Inn and Delaware Trust Company have argued that the sale should not be set aside, but that Delaware Trust Company, by virtue of its announcement that sale was "subject to" its first mortgage has elected to pursue only its remedy through the first mortgage lien and has waived any position it may have had on account of its first judgment lien.
The position taken by Investment and Services Co. and by Francis W. Corridori, Inc., as to the application of the proceeds of the sale finds no support in the authorities cited. Delaware law as contained in the statute and explained by Woolley contemplates that the holder of a first mortgage lien may participate as a judgment creditor in the proceeds of a sale even though the sale was subject to the first mortgage. The authorities cited for a different rule deal with marshalling of assets where there is more than one property subject to liens. Such case law finds no application here.
Under 10 Del.C. § 4985 the bank may look to its position as a lien creditor for satisfaction of the debt. By electing to permit the sale to be made "subject to" the first mortgage, it has in no way forfeited its right to participate in the distribution of the sale proceeds as a general lienholder in accord with its priority as an ordinary judgment creditor. The sale was indeed "subject to the first mortgage" but under the law all or some part of the debt secured by the first mortgage might be paid off on account of the banks additional standing as a judgment creditor.
The entire law on this subject was not explained before the auction but the bidders cannot have the sale set aside on account of lack of familiarity with the fine points of the statutory provisions. Since Delaware Trust had both a first mortgage and a judgment bond the world was on notice that any payment on the judgment bond "legally applicable" to the indebtedness secured by the mortgage would be so applied without disturbing the priority of any remaining balance due of the mortgage. The mere existence of a judgment held by the same party as the first mortgage brings the statutory provision into possible operation and puts prospective bidders on notice that they should inquire further.
It is the opinion of the Court that any misunderstanding which may have resulted from the announcement was not such as to justify the setting aside of the sale. There is no contention by any party that the sale price was grossly inadequate and there is no assurance from anyone that on resale a price of substantially more than $120,000 may be anticipated.
Most of the cases cited by petitioner where sheriffs' sales were set aside are cases where a grossly inadequate price was shown to exist in addition to other defects in the sale. No party was able to find a case closely paralleling this case in its facts.
It is the further opinion of the Court that Delaware Trust Company, although it announced that the sale was to be made subject to its first mortgage, is still entitled to participate in the sale proceeds as first general lienholder under its judgment bond given to secure the same indebtedness as the mortgage. Had no announcement been made at the sale such participation in the proceeds would clearly have been proper *787 under 10 Del.C. § 4985 and in accordance with Judge Woolley's construction of the statute. The proceeds of the sale remained "legally applicable" to the judgment of the Delaware Trust Company within the meaning of 10 Del.C. § 4985 and without regard to any announcement.
A better announcement might have included a more complete analysis and application of the statutory law. It would have been clearer to all concerned if the announcement had indicated that the indebtedness secured by the first mortgage was the same indebtedness as that secured by the first judgment lien and that the first mortgage indebtedness might be reduced by any available proceeds from the sale if funds remained after payment of expenses, taxes and the indebtedness secured by the second mortgage. This would, however, have been nothing more than an application of the provisions of statutory law to facts which were known or could have been found out by reasonable inquiry. The bank was not required to make any announcement. Its failure to make the best possible announcement did not change the applicable law or amount to a waiver or an estoppel.
In light of the above, it is the ruling of the Court that the sale was properly conducted. The announcements were understood by and did not mislead the bidders who knew the statutory provisions and had taken reasonable steps to learn the state of the title. The cash proceeds of the sale after sale expenses and tax liens are to be distributed to Cedar Inn, Inc., the second mortgagee, and then to the general lienholders in order of priority. Under the unusual facts here present since Delaware Trust Company happens to be the first lienholder under its judgment bond it will receive funds it must apply to the debt which happens to have been also secured by its first mortgage.
The attorney for Delaware Trust Company is requested to prepare an appropriate order to carry out the decisions herein contained including:
1. A denial of the petition to set aside the Sheriff's sale by dismissing the rule to show cause why the sale should not be set aside.
2. A confirmation of the sale.
3. An instruction that the distribution of proceeds of the sale (after expenses and taxes) shall be made in accord with the provisions of 10 Del. C. § 4985 as interpreted in this opinion so as to permit Delaware Trust Company to participate in the proceeds of the sale as the holder of a first judgment lien subject to the further requirements of the statute.
Approval of the form of the order should be sought from all counsel. If such approval is not promptly available presentation of the proposed order, after notice to all counsel, is requested. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266513/ | 441 Pa. 28 (1970)
Commonwealth
v.
Fletcher, Appellant.
Supreme Court of Pennsylvania.
Argued May 7, 1970.
October 9, 1970.
Before BELL, C.J., COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
*29 Harold Yaskin, Assistant Defender, with him Melvin Dildine, Assistant Defender, and Vincent J. Ziccardi, Acting Defender, for appellant.
Richard Max Bockol, Assistant District Attorney, with him James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
OPINION BY MR. JUSTICE ROBERTS, October 9, 1970:
On October 15, 1969, appellant appeared for trial on indictments charging robbery and related offenses. At that time he informed the court that he had filed, some two weeks earlier, a petition for the appointment of new counsel to replace the Voluntary Defender. The following then occurred: "THE COURT: State your reason for a court-appointed attorney? LEROY FLETCHER [the defendant]: Well, I put in a petition two weeks ago. I have copies of it if you would like to see it. THE COURT: I will hear your petition right now. State your reasons right now? LEROY FLETCHER: The reason I want court-appointed counsel, I feel the case is major and I was down here about a month ago on an assault and battery and the Defender was asking me about a deal. I didn't want the deal. THE COURT: This is two charges of aggravated robbery, not assault and battery. You say you don't want the Voluntary Defender? LEROY FLETCHER: No. THE COURT: Mr. Yaskin [the Voluntary Defender], you are relieved of your duties. *30 There will be no court-appointed counsel. You will go to trial by yourself. The voluntary defender, Mr. Yaskin, will sit along side of you at the table. He will carry out whatever you wished carried out. Your petition for court-appointed counsel is refused. Now, Mr. Fletcher, do you have a pretrial motions [sic] to make at this time? LEROY FLETCHER: I will make them later. THE COURT: You will make them now. LEROY FLETCHER: I will make them later. THE COURT: It will be right now and not later. LEROY FLETCHER: I have nothing to say at this time, your Honor. THE COURT: Very well. Your trial will start tomorrow morning with a jury. The Court is not taking any orders from you. MR. MOLDOVSKY [Assistant District Attorney]: May it please the Court, is Mr. Yaskin in particular assigned to sit or any assistant defender? THE COURT: He is, because he is the most familiar with the case. Notify the Jury Assembly Room to have thirty jurors ready tomorrow morning. THE CRIER: Very good, your Honor. THE COURT: Mr. Fletcher, are there any witnesses you wish summoned in your behalf? LEROY FLETCHER: Nothing to say at this time. THE COURT: You will say an answer of yes or no? LEROY FLETCHER: (No response.) THE COURT: Answer me, yes or no? LEROY FLETCHER: (No response.) THE COURT: I adjudge you in Contempt of Court and sentence you to one year in prison. (3:15 o'clock p.m., October 15, 1969) MR. MOLDOVSKY: May we still proceed? THE COURT: We will proceed tomorrow morning. MR. YASKIN: Your Honor, I had filed motions on behalf of the defendant preliminary motions. THE COURT: You will do whatever the defendant says to do. You will continue to sit along side of him at counsel table. That will be all for today. (Recess for the day.)"
Following the judgment of sentence of one year in prison, appellant prosecuted this appeal. We reverse the judgment of sentence, and discharge appellant.
*31 Initially we note that the Commonwealth agrees that appellant has been denied his right to a jury trial in these proceedings. Under Bloom v. Illinois, 391 U.S. 194, 88 S. Ct. 1477 (1968), an accused is entitled to a trial by jury in all cases of "serious" criminal contempts. Since these proceedings occurred after Bloom, Bloom is applicable in the instant case. See DeStefano v. Woods, 392 U.S. 631, 88 S. Ct. 2093 (1968) (holding Bloom not retroactive). To determine whether a contempt is "serious" under Bloom, "we are to look to the penalty actually imposed as the best evidence of the seriousness of the offense." Bloom, 391 U.S. at 211, 88 S. Ct. at 1487.[*] The penalty imposed in the instant case was a prison sentence of one year, and the United States Supreme Court has recently held that "no offense can be deemed `petty' for purposes of right to trial by jury where imprisonment for more than six months is authorized." Baldwin v. New York, 399 U.S. 66, 69, 90 S. Ct. 1886 (1970). Hence, appellant was entitled to a jury trial in these proceedings.
Our inquiry, however, does not stop there, for there need not be a remand for a jury trial if appellant's conduct could not be found contemptuous. The trial judge justified his actions on that ground that "[t]he refusal of the witness to answer questions in criminal proceedings when lawfully ordered to do so is contempt," citing as authority Commonwealth v. Bell, 145 Pa. 374 (1891).
Bell was a case where a witness, under oath, refused to testify on the grounds of privilege; the court, holding that the privilege could not be invoked, then found Bell in contempt of court. Such cases, however, dealing with the failure of a witness to testify, have no *32 relevance to the instant proceeding. Appellant was the defendant not a witness and he was not under oath, nor was the court in the midst of an actual trial. Thus the policy reasons for compelling testimony under oath at trial are certainly not present in this case.
Further, appellant, when he stood mute, had just had his motion for new counsel denied, without any apparent reason, and he found himself suddenly without any attorney to represent him. Immediately thereafter, he was called upon to answer questions of trial strategy, something he was clearly not prepared to do on the spur of the moment. Then he was asked whether he had any witnesses he wished to call, a question which, to a layman, could very well have seemed a request to "give away" the details of his defense. While the Commonwealth suggests that the judge may merely have wanted to request the Defender to subpoena the witnesses appellant wished to call, there is no indication in the court's opinion, or in the record, that this was the judge's intent. But even if it were, we cannot expect a layman to interpret questions as if he were an attorney. Certainly a layman who insists on representing himself and it is far from clear that appellant desired to have no counsel rather than the Defender cannot be held to the same level of competence as counsel, nor can he be punished for not having legal knowledge at his fingertips.
We do, of course, recognize that "our courts, palladiums of liberty as they are, cannot be treated disrespectfully with impunity. Nor can the accused be permitted by his disruptive conduct indefinitely to avoid being tried on the charges brought against him. It would degrade our country and our judicial system to permit our courts to be bullied, insulted, and humiliated and their orderly progress thwarted and obstructed by defendants brought before them charged *33 with crimes. . . . Being manned by humans, the courts are not perfect and are bound to make some errors. But, if our courts are to remain what the Founders intended, the citadels of justice, their proceedings cannot and must not be infected with . . . scurrilous, abusive language and conduct . . . ." Illinois v. Allen, 397 U.S. 337, 346-47, 90 S. Ct. 1057 (1970). That type of outrageous conduct is not, however, involved here. The record shows only that the defendant, suddenly unrepresented by counsel, did not wish to answer questions of legal strategy which, to a layman, might have seemed unfair. Such conduct, in the circumstances of this case, cannot be termed contemptuous.
The judgment of sentence of contempt of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia is reversed, and the appellant is discharged.
Mr. Justice JONES took no part in the consideration or decision of this case.
DISSENTING OPINION BY MR. CHIEF JUSTICE BELL:
I believe defendant's conduct was contemptuous, and I would reverse and remand for imposition of a "petty" sentence, viz., six months or less: Baldwin v. New York, 399 U.S. 66, 90 S. Ct. 1886 or for the appointment of new counsel and a new trial with a jury if the sentence imposed is over six months.
If the Legislature has fixed a maximum sentence or penalty which exceeds six months, the sentence or penalty is "serious" and requires a trial by jury. If the Legislature has not fixed a maximum sentence or penalty which exceeds six months, the sentence or penalty actually imposed is determinative of whether the contempt was "petty" or "serious." Bloom v. Illinois, 391 U.S. 194.
NOTES
[*] However, where the legislature has expressed a judgment as to the seriousness of the offense by fixing a maximum penalty, this will control. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266515/ | 269 A.2d 117 (1970)
Malcolm H. WALLACE
v.
The COCA-COLA BOTTLING PLANTS, INC.
Supreme Judicial Court of Maine.
September 17, 1970.
*118 Berman, Berman & Simmons, by Jack H. Simmons, Lewiston, for plaintiff.
Marshall, Raymond & Beliveau, by John G. Marshall, Lewiston, for defendant.
Before WILLIAMSON, C. J., and WEBBER, MARDEN, DUFRESNE, WEATHERBEE and POMEROY, JJ.
POMEROY, Justice.
At the conclusion of a trial, an Androscoggin County jury awarded Plaintiff $2,000 damages against the Defendant.
The complaint, the filing of which commenced this action, alleged Defendant was liable to the Plaintiff because of, (a) a breach of warranty and (b) negligence. The case was submitted to the jury only on the issue of negligence, the breach of warranty count having been removed from the jury's consideration by the Court on Defendant's motion. The Plaintiff has not appealed from this ruling.
In the posture in which the case is before us for review, we must accept the evidence in the light most favorable to the Plaintiff. Scammon v. City of Saco, Me., 247 A.2d 108.
We conclude the jury was justified in finding from the evidence.
On December 23, 1966, the Plaintiff entered a store known as Lindley's in Canton, Maine. After ordering a pizza he went to the back of the store in the company of a friend and there removed a Coca-Cola bottle from a cooler and opened it. The cooler was not coin-operated and contained not only Coca-Cola bottles but other bottled products as well. Customers in the store usually served themselves from the cooler, a practice having the owner's approval.
After opening the bottle, Plaintiff placed it to his lips and drank from it. While doing so, a foreign object came in contact with his lips and tongue. He thereupon called the owner of the store to the cooler and in her presence poured the remaining contents of the bottle into a cup. It was then discovered the foreign object was an unpackaged prophylactic. When the bottle was opened it reacted normally, "the cap came off as it normally would." Upon opening the bottle the Plaintiff heard a sound, "kind of a fizzle like a bottle does when it opens, the carbonation I presume." The Plaintiff became ill after he returned home and began to think about his experience.
The jury was justified in believing from the evidence that the illness persisted for some time and caused the Plaintiff to be absent from his work. The Coca-Cola bottle had been purchased from the Defendant.
The Defendant says in its Points of Appeal:
"1. The Court erred in admitting certain testimony on the part of the plaintiff as to the cause of his sickness or illness which the plaintiff claimed followed his consuming some of the contents of the bottle of Coca-Cola.
"2. It was error to submit the matter to the jury because there was no evidence from which it could be inferred that the defendant was negligent and no evidence that there was any foreign matter in the bottle of Coca-Cola when it was delivered to the store where it was allegedly purchased.
*119 "3. It was error on the part of the Court to deny the defendant's motion for a new trial.
"4. It was erroneous on the part of the Court to submit the matter to the jury on the issue of damages because there was no injury to the plaintiff, that is no physical injury that could be compensated for under the rules of our law.
"5. There was nothing in the plaintiff's evidence to show that there was any contamination or deleterious substance that rendered the contents of the bottle Coca-Cola allegedly purchased by the plaintiff that was harmful to him or to any reasonable person. There was no evidence that the contents of the bottle were injurious to any human."
We start our discussion, as we must in view of the jury's finding, from the premise that the bottle in which the foreign object was found was purchased from the Defendant and at the time of the purchase by Plaintiff there was a foreign object in it.
This having been established, the only possible conclusions to be reached are, (a) the foreign object was in the bottle when it left the Defendant's plant and was delivered to the storekeeper, or (b) there was tampering with the bottle after it left the Defendant's plant and before it was purchased from the storekeeper by the Plaintiff. Was it the Plaintiff's responsibility to negate tampering or was it the responsibility of the Defendant to establish the fact of tampering?
This question is one of first impression in this State. Authorities are not in accord in other jurisdictions. See for example: Ashland Coca-Cola Bottling Co. v. Byrne, 258 S.W.2d 475 (Ky.1953); Williams v. Paducah Coca-Cola Bottling Co., 343 Ill. App. 1, 98 N.E.2d 164; Heimsoth v. Falstaff Brewing Corp., 1 Ill.App.2d 28, 116 N.E.2d 193; Jordan v. Coca-Cola Bottling Company of Utah, 117 Utah 578, 218 P.2d 660; LeBlanc v. Louisiana Coca-Cola Bottling Co., 221 La. 919, 60 So.2d 873; Dr. Pepper Co. v. Brittain, 234 Ala. 548, 176 So. 286; Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal.2d 453, 150 P.2d 436; Wichita Coca-Cola Bottling Co. v. Tyler, Tex.Civ.App., 288 S.W.2d 903; Keller v. Coca-Cola Bottling Co. of Walla Walla, 214 Or. 654, 330 P.2d 346.
In Lajoie v. Bilodeau, 148 Me. 359, 93 A.2d 719 (1953), our Court said:
"The mere presence of the brush in the bottle is evidence of negligence on the part of the defendant, where there is testimony which, if believed, indicates that the bottle had not been opened since leaving the defendant bottler. It could be properly inferred that the brush was there when the processing of the bottle began, or was introduced during the filling of the bottle with ginger ale, and that there was negligence on the part of the defendant in permitting it to get into the bottle * * *."
We hold the rule in Maine to be that in those cases involving beverages sold in a capped and airtight bottle a plaintiff who has been damaged by a foreign body in the bottle makes out a prima facie case when he establishes that:
1. The bottle he purchased was processed by the Defendant;
2. There was nothing unusual about it when it was opened.
This is so even though the cap on the bottle is capable of being removed and replaced, and the fact of uncapping and recapping is difficult to discover.
If a defendant asserts there has been tampering with the bottle after it left its plant, such claim is an affirmative defense. The burden of establishing such defense is upon the defendant.
"* * * it is difficult to discern why a plaintiff, suffering illness as the result of consuming deleterious matter contained in a bottled beverage, should *120 shoulder the burden of establishing a negative fact by producing the middleman, or others if need be, to show that no one handling the bottle after it left the defendant's plant removed the cap and permitted foreign substances to enter its contents. Properly, since proof of tampering by others would provide an avenue of escape from liability, it would seem to be a matter of defense."
LeBlanc v. Louisiana Coca-Cola Bottling Co., 221 La. 919, 60 So.2d 873, at 875.
We turn now to a consideration of the Defendant's claim that there was no physical injury received by the Plaintiff for which compensation could be had.
In what was then a case of first impression, the Supreme Court of Massachusetts in 1897 decided the oft-quoted case of Spade v. Lynn & B. R. Co., 168 Mass. 285, 47 N.E. 88, 38 L.R.A. 512. Mr. Justice Allen, speaking for the Court, said:
"The law of negligence, in its special application to cases of accidents, has received great development in recent years. The number of actions brought is very great. This should lead courts well to consider the grounds on which claims for compensation properly rest, and the necessary limitations of the right to recover. We remain satisfied with the rule that there can be no recovery for fright, terror, alarm, anxiety, or distress of mind, if these are unaccompanied by some physical injury; and, if this rule is to stand, we think it should also be held that there can be no recovery for such physical injuries as may be caused solely by such mental disturbance, where there is no injury to the person from without. The logical vindication of this rule is that it is unreasonable to hold persons who are merely negligent bound to anticipate and guard against fright and the consequences of fright, and that this would open a wide door for unjust claims, which could not successfully be met."
More recently Spade was reaffirmed in Sullivan v. H. P. Hood & Sons, 341 Mass. 216, 168 N.E.2d 80 (1960). In that case, an able opinion by Mr. Chief Justice Wilkins, the Court declared: "We have not been asked to overrule the Spade case and we are not disposed to do so."
In the opinion specific attention was directed to the application of the Spade rule in two food cases. Wheeler v. Balestri, 304 Mass. 257, 23 N.E.2d 132; Kennedy v. Brockelman Bros., Inc., 334 Mass. 225, 134 N.E.2d 747.
In Sullivan Chief Justice Wilkins described the Spade rule as having been subjected to considerable refinements. Homans v. Boston Elev. Ry., 180 Mass. 456, 62 N.E. 737; Freedman v. Eastern Mass. St. Ry., 229 Mass. 246, 12 N.E.2d 739, and other cases were cited as examples of the refinements to which he referred.
Freedman v. Eastern Mass. St. Ry., supra, is of particular interest because in it is said:
"We are of opinion that it cannot be said as a matter of law that a blow or impact must be shown to prove a physical injury from without. The phrase `from without' as used in our cases excludes purely psychological or emotional consequences when they stand alone, but includes all physical injury not resulting solely from mental shock or emotional disturbances. The question, therefore, in each such case is whether the physical injury resulting from the defendant's negligence is in fact one which was not caused solely by mental disturbances."
In 1921 our Court quoted Spade with approval. Herrick v. Evening Pub. Co., 120 Me. 138, 113 A. 16. By that case the rule in Maine became:
"In case of physical injury to the person caused by negligence, mental suffering resulting from such injury is a legitimate element of damage; but if no bodily injury is alleged or proved, there *121 can be no premise upon which to base a conclusion of mental suffering. * * * Such elements of damage, when there is no physical injury, are outside the principle of compensation."
This is the first occasion we have had to reexamine the rule in Herrick. Spade's reasoning on which Herrick was based, has been the object of much critical comment, in legal periodicals and cases. See, for example: Goodrich, Emotional Disturbance as Legal Damage, 1922, 20 Mich.L.Rev. 497, listing, upon medical authority, a variety of physical symptoms, from accelerated pulse to Pyorrhea; Tibbetts, Neurasthenia, the Result of Nervous Shock, as a Ground for Damages, 1904, 59 Cent.L.J. 83; Earengey, the Legal Consequences of Shock, 1934, 2 Medico-Legal & Crim.Rec. 14; Crile, The Origin and Nature of the Emotions, 1915; Throckmorton, Damages For Fright, 1921, 34 Harv.L.Rev. 260, 270, 57 Am.L. Rev. 828, 153 L.T. 24, 89. Chiuchiolo v. New England Wholesale Tailors, 1930, 84 N.H. 329, 150 A. 540; Simone v. Rhode Island, 28 R.I. 186, 66 A. 202; Kenney v. Wong Len, 81 N.H. 427, 128 A. 343; Bosley v. Andrews, 393 Pa. 161, 142 A.2d 263 (1958). (Dissenting opinion of Musmanno, J.)
The New Hampshire Court has long rejected the reasoning in Spade, starting with Chiuchiolo v. New England Wholesale Tailors, supra, in 1930. Mr. Justice Allen, speaking for a unanimous Court, said:
"The only possibly adequate reason suggested for the exception to the rule of liability is that of expediency, and the argument is made that in the long run justice will be better promoted with, rather than without, the exception, because otherwise `this would open a wide door for unjust claims, which could not successfully be met.'"
The opinion then discusses with compelling logic the incongruity of allowing damages for pain and suffering when accompanied by physical harm, however, slight, and denying it in those many cases in which the proof is clear there was mental suffering induced by a negligent act, but there was no physical impact. The discussion concludes with these words:
"If the subject has not caused undue judicial alarm over the prospect of a multitude of actions for pretended injuries or pretended causes of trouble obscure in their nature and not readily tested objectively, it is at least a doubtful issue in which the burden in showing good reason for the denial of liability is not sustained. That it may be wise and better to have such a rule is the most that is shown. This falls short of making out a case for it."
In the light of advances which have been made by medical science and the improvement in investigatory techniques since this Court decided Herrick in 1921, we decline to follow it any longer. Instead, we adopt the rule that in those cases where it is established by a fair preponderance of the evidence there is a proximate causal relationship between an act of negligence and reasonably forseeable mental and emotional suffering by a reasonably forseeable plaintiff, such proven damages are compensable even though there is no discernable trauma from external causes. The mental and emotional suffering, to be compensable, must be substantial and manifested by objective symptomatology.
In applying this rule, however, we recognize that it must be so limited within the bounds of foreseeability as to preclude a host of false and groundless claims.
In the case at hand such proximate causal relationship was established. The jury found that the defendant negligently caused or permitted a foreign object to enter a bottle of Coca-Cola it had processed. The foreign object was of such a loathsome nature it was reasonably foreseeable its presence would cause nausea and mental distress upon being discovered in the *122 place it was by a consumer who was in the process of drinking from the bottle. The mental distress was manifested by vomiting.
The jury found the negligence of the defendant produced and was the proximate cause of the exact effect one could reasonably expect under the circumstances. The ordinary knowledge acquired from everyday experience by the jurors justifies such conclusion. No expert medical testimony on the point was necessary.
The jury, whose duty it was, found the facts. We cannot, on the record before us, say they were not justified.
The amount awarded as damages seems high to us. However, damage assessment is the sole province of the jury and the amount fixed must stand unless it can be demonstrated that, "the jury acted under some bias, prejudice or improper influence, or made some mistake of law or fact." Cayford v. Wilbur, 86 Me. 414, 29 A. 1117.
"* * * It is not for the reviewing court to interfere merely because the award is large, or because the court would have awarded less. Unless a verdict very clearly appears to be excessive, upon any view of the facts which the jury are authorized to adopt, it will not be disturbed. * * *"
Baston v. Thombs, 127 Me. 278, 281, 143 A. 63, 64. (Quoted in McMann v. Reliable Furniture Co., 153 Me. 383, at 391, 140 A.2d 736.)
Since no appeal was taken from the Order of the Superior Court Justice dismissing the Count for breach of implied warranty of fitness, we have not discussed whether or not such dismissal was proper.[1]
The entry must be
Appeal denied.
WILLIAMSON, C. J., sat at argument but retired before decision.
NOTES
[1] For interesting discussion of implied warranty in food cases see Manzoni v. Detroit Coca-Cola Bottling Co., 363 Mich. 235, 109 N.W.2d 918. Also of especial interest see: the incisive concurring opinion of Mr. Justice Traynor (later Mr. Chief Justice Traynor) in Escola v. Coca-Cola Bottling Co. of Fresno, 24 Cal.2d 453, 150 P.2d 436. See also U.C.C. 11 M.R.S.A. § 2-314. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267202/ | 147 N.J. Super. 143 (1977)
370 A.2d 889
AUGUST C. SIMONS, JR. AND BARBARA J. SIMONS, HUSBAND AND WIFE, PLAINTIFFS-RESPONDENTS,
v.
DOROTHY R. SAAZ, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Submitted January 17, 1977.
Decided January 31, 1977.
*144 Before Judges CARTON, KOLE and LARNER.
Messrs. McLaughlin, Abbotts and Cooper, attorneys for appellant (Mr. Roland R. Formidoni on the brief).
Messrs. Warren, Goldberg and Berman, attorneys for respondents (Mr. Robert A. Gladstone on the brief).
The opinion of the court was delivered by KOLE, J.A.D.
The trial judge held that the amendment to the prejudgment interest rule in tort actions, R. 4:42-11(b), effective April 1, 1975, increasing the interest rate from 6% to 8%, applies to all judgments entered after that date. On this appeal, defendant contends that *145 the 8% rate should not apply retrospectively; that the 6% rate should be used from May 17, 1973, when the action was commenced, until April 1, 1975, the effective date of the amendment to the rule, and that the 8% rate only should be applied for the period from April 1, 1975 until July 1, 1975, when the judgment was entered. We affirm.
Basically, the court rule is one of procedure. Such a rule usually is retrospective in operation, absent a provision to the contrary. R. 4:42-11(b), as amended, neither expressly nor impliedly makes the dichotomy urged by defendant. It continues to provide that the court "shall, in tort actions, * * * include in the judgment interest at 8% [instead of 6%] per annum on the amount of the award from the date of the institution of the action or from a date 6 months after the date of the tort, whichever is later * * *." The 8% prejudgment interest applies to all judgments entered after the effective date of the amended rule, subject to the exception provided therein.[1] The date that the action was commenced or the tort occurred is relevant only as to the beginning point from which the interest is computed. See Busik v. Levine, 63 N.J. 351, 360-361, app. dism. 414 U.S. 1106, 94 S.Ct. 831, 38 L.Ed.2d 733 (1973); Hill v. Newman, 126 N.J. Super. 557, 564 (App. Div. 1973), certif. den. 64 N.J. 508 (1974). See also, Huddell v. Levin, 395 F. Supp. 64, 93 (D.C.N.J. 1975).
Until this court rule is otherwise changed by the Supreme Court, our interpretation makes it, and any later amendments with respect to the prejudgment interest rate, simple and practical in application. The trial courts, in administering the rule, will not be required to refer back to interest rates prescribed by rules prior to any amendment. The rule applicable at the time judgment is entered will govern.
*146 It is true that the rule recognizes that until the judgment is entered, defendant has the use of money rightfully belonging to plaintiff, and that before the change in interest rate effected by the amendment, neither party could conceivably earn more than 6% on that money. But it is not inappropriate to note that often interest rule changes such as this do not occur until long after the interest rate in the commercial market has become well established.
Affirmed.
NOTES
[1] That exception permits the court to suspend the running of prejudgment interest in exceptional cases. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374896/ | 85 Ga. App. 405 (1952)
69 S.E.2d 689
WEBB
v.
SANDOZ CHEMICAL WORKS INC.; and vice versa.
33744, 33745.
Court of Appeals of Georgia.
Decided February 28, 1952.
*408 Dorsey & Dorsey, Scott Hogg, for plaintiff.
T. J. Long, for defendant.
WORRILL, J.
(After stating the foregoing facts.) 1. The petition set forth a cause of action, and the court did not err in *409 denying the defendant's motion to dismiss it. See Blood Balm Co. v. Cooper, 83 Ga. 457 (10 S.E. 118).
2. Recovery in the present case is sought on the theory that the defendant, without disclosing its dangerous properties, was negligent in putting on the market the poisonous medication known as "Cafergone," some of which was taken by the wife of the plaintiff with damaging results. It is not contended, or shown by the evidence, that the product was adulterated or otherwise than what it was supposed to be, a combination of ergotamine tartrate and caffeine. No similar case seems to have been before the appellate courts of this State. Blood Balm Co. v. Cooper, supra, is not in point. There the Supreme Court was dealing with a case where a patent medicine, a secret formula, containing iodine of potash in excess of accepted practice, was sold and recommended indiscriminately to the public, and not merely for use upon the advice and prescription of a physician. Here the medication in tablet form was sold to druggists in sealed bottles with accompanying caution in writing that it was "to be dispensed only by or on the prescription of a physician," and the directions also contained the precaution that it "should be taken under medical supervision." It was testified by a prescriptionist in the drug store from which the tablets used by the plaintiff's wife were purchased that he took them from such a bottle on a shelf, and put them in a "prescription box" with a proper label for the wife.
Certainly no liability attaches merely because injury followed the ingestion of the medicine under such circumstances of marketing. See Armour & Co. v. Gulley, 61 Ga. App. 414 (6 S.E. 2d, 165). The evidence showed that it was good medical practice to prescribe Cafergone within the limitations recommended by the defendant, notwithstanding the fact that sometimes bad results might follow where persons had individual sensitivity to drugs not discoverable in the exercise of ordinary care. The wife's physician testified, "She was idiosyncratic to it or she had vascular disease that I, even though I did all I could within my knowledge, overlooked in my diagnosis of the case." While one physician testified that he would not prescribe Cafergone and considered it dangerous, liability is not thereby fixed. See Mayo v. McClung, 83 Ga. App. 548, 556 (2) (64 S.E. 2d, 330). The *410 degree of care to be exercised by a manufacturing chemist in compounding and selling a medication with a prescription, as here, is that which is prescribed by the Code, § 84-924, as to the "administering of medicine" professionally, to wit, a reasonable degree of care and skill. "This standard prescribed by the Code, `when applied to the facts and circumstances of any particular case, must be taken and considered to be such a degree of care and skill as, under similar conditions and like surrounding circumstances, is ordinarily employed by the profession generally.'" Bryan v. Grace, 63 Ga. App. 373 (1a) (11 S.E. 2d, 241). The evidence demanded a finding that no negligence was shown on the part of the defendant. The doctrine of res ipsa loquitur has no application under the facts presented.
The judgment denying the motion to dismiss was affirmed by this court in division 1 of the opinion on the theory that, under the allegations of the petition, the pleader meant to present a case where the medicine was recommended to the public for the relief of pain from migraine headaches without cautioning that it should be dispensed only by or on the prescription of a physician; whereas the evidence here shows that such caution had been given in writing by the defendant in disposing of its product. Consequently the case was not proved as laid, and no negligence being shown, the court properly granted a nonsuit.
Judgment affirmed. Sutton, C. J., and Felton, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374889/ | 193 Va. 555 (1952)
ROBERT D. CLAYTON
v.
JAMES A. TAYLOR.
Record No. 3881.
Supreme Court of Virginia.
March 10, 1952.
I. W. Jacobs and Murray, Ford, West & Wilkinson, for the plaintiff in error.
Taylor, Hall & Martin and Robert Lewis Young, for the defendant in error.
Present, Hudgins, C.J., and Eggleston, Spratley, Miller, Smith and Whittle,
1. For a litigant to be barred from recovery because his testimony is irreconcilable or at variance with physical facts or other certain proof, it must have been unequivocal and upon matter within his knowledge and so conclusively in conflict with other proved facts as to leave no room for difference of opinion between reasonable men.
2. It is primarily the province of the jury to measure and evaluate the factual meaning of the testimony of all witnesses, and unless it clearly appears that they have erred by abusing or transcending the wide scope of their authority as reasonable men, their findings of fact should not be disturbed.
3. Appellee was awarded a jury verdict and judgment for damages sustained when his vehicle was struck by appellant's as he entered into an intersection. Appellee testified that as he entered the intersection at a slow rate of speed he saw appellant's automobile about one block away. He further testified that appellant was also traveling at a slow rate of speed. Appellant argued that appellee's testimony was irreconcilable with the physical facts, unbelievable and incredible, thus precluding any recovery by him. That contention was without merit. The testimony merely intended to give a rough estimate of the location and distance and not the precise location of the car. The questions of negligence and contributory negligence were properly questions for the jury.
4. Under the facts of headnote 3, an eye witness to the collision was asked whether appellant had time to stop at the rate of speed he was going. The trial court overruled an objection to the question and appellant contended it constituted reversible error. Although the question was improper because it called for an answer which to some degree expressed the opinion of the witness, yet it did not constitute reversible error. Appellant testified concerning the manner in which he brought his car to a stop, which offset any harm that was done.
Error to a judgment of the Circuit Court of the city of Newport News. Hon. F. A. Kearney, judge presiding. The opinion states the case.
MILLER
MILLER, J., delivered the opinion of the court.
A verdict and judgment were recovered by James A. Taylor against Robert D. Clayton for damages resulting from personal injuries sustained by Taylor when an automobile which he was driving was in collision with a car driven by Clayton.
The accident happened about 6:45 p.m. on the 3rd day of March, 1950, at the intersection of Roanoke avenue and 16th street in the city of Newport News. Roanoke avenue extends in a northerly and southerly direction and is intersected at right angles by 16th street which is 44 feet wide. North of 16th street, the width of Roanoke avenue is also 44 feet, but south of 16th street, it has a width of 64 feet. However, from 16th street southwardly Roanoke avenue is divided in the center by a grass plot or island 20 feet wide, thus leaving two vehicular traffic lanes each 22 feet wide.
The northern end of the 20 foot wide grass plot, or island, sits back from and begins three feet south of the southern curb line of 16th street extended across Roanoke avenue. The fact that Roanoke avenue is 20 feet wider south of 16th street than it is north of that street causes its eastern and western curb lines south of 16th street to sit back ten feet more than do those curb lines north of 16th street. Otherwise, briefly stated, Roanoke avenue is 20 feet wider south of 16th street than it is north thereof, and thus its curb lines, if extended straight across 16th street, would not meet.
A block from Roanoke avenue in a westerly direction is Orcutt avenue, and the distance between these two parellel streets is 600 feet. *557
Clayton contends that the testimony of Taylor himself is irreconcilable with the physical facts, unbelievable and incredible, and thus precludes any recovery by him. He also asserts that Taylor's testimony is in conflict with that of his own chief witness, William R. Jennings, and of such character as to convict him (Taylor) of contributory negligence as a matter of law, and that there is insufficient proof of primary negligence on his (Clayton's) part to support the verdict and judgment.
Conflicts in the testimony and all just inferences that may be drawn from the evidence have been resolved by the jury in Taylor's favor, and we must view the evidence in the light most favorable to him. The judgment may not be reversed unless it is clearly against the evidence or is without credible evidence to support it.
The maximum speed at which motor vehicles were permitted to travel upon either Roanoke avenue or 16th street at the location in question is conceded to have been 25 miles per hour.
At the time of the accident it was sufficiently dark to need lights upon motor vehicles, and the headlights of both cars were burning. Many vehicles traverse this crossing and a traffic light to caution drivers was located over the center of the intersection. Its amber light was usually kept operating -- "flashing" -- to warn and caution traffic, and it was so operating at the time of the mishap. As Taylor drove his car southwardly along Roanoke avenue and while he was crossing 16th street, it was struck on the right side by Clayton's automobile which was being driven eastwardly along 16th street.
Summarized, Taylor's testimony bearing upon the speed at which his car was traveling as he approached and entered the intersection, when he first saw Clayton's car, and the manner in which he undertook to negotiate the crossing follows:
He approached the intersection from the north at a moderate speed, well within the limit allowed by law, and when about 40 or 50 feet from 16th street, he looked east and saw no vehicles, and when about to enter or entering 16th street at a speed of from 10 to 15 miles an hour, he looked west and saw Clayton's car, which was down near Orcutt avenue. He undertook to describe its then location by saying, "* * * it was quite a ways down the street * * *"
* * * *558
"He was pretty well down toward the other corner. Of course, that's a short block in there. We know that."
To further inquiries concerning the location of the Clayton car when he first saw it, he answered as below:
"A. No, he wasn't near my corner. He was down the street."
"Q. He was nearer Orcutt avenue?"
"A. Yes, sir."
* * *
"A. I'll tell you when I entered, when I got on to 16th street or was driving over the sidewalk on the north side of 16th street, I saw the car coming all right."
* * *
"Q. But he was right on top of you at that time? He was right on top of you wasn't he?"
"A. No, sir, I don't think that."
"Q. Didn't you tell Mr. Pitts he was?"
"A. I told you what I have told everybody. All of us can be mistaken. I've told everybody that I saw the car, I turned, looked straight ahead and I never knew anything more and that's the straight naked truth."
* * *
"Yes, sir. I saw the car and he wasn't right on me either."
* * *
"* * * I remember mighty well today when I first saw that car I saw it plenty far away."
When asked if he applied his brakes or made any effort to turn left to avoid a collision, he said,
"No, sir, I was going in the mouth of the street at that time when I give up -- I mean when I didn't look any more. I was heading right into 16th street right into Roanoke."
He also said that when he had gotten "practically across the street" his car was struck on the right side by Clayton's car which he then saw for the second time when it was only a foot or two from his automobile.
The testimony of W. E. Pitts, who was at the time a police officer of the city of Newport News, was that he observed skid marks made by the Clayton car which were about 24 feet long, beginning in 16th street about 12 feet west of the intersection *559 and continuing into the intersection 12 feet. Debris in the street and these skid marks indicated that the actual collision took place a foot or two south of the center of 16th street and about 12 feet into Roanoke avenue. The officer said that no skid marks were found to have been made by "Mr. Taylor's car except where his car spun around (indicating) after being in the collision."
The impact was rather severe, and Taylor was thrown from his vehicle and rendered unconscious. Both automobiles were badly damaged and turned almost around in the street, coming to rest in the intersection well south of the center line of 16th street and near the northern end of the grass plot or island.
William R. Jennings, who appeared as a witness for Taylor, testified that when the cars approached and entered the intersection, he was about 125 feet to the east of Roanoke avenue walking in a westerly direction along the north sidewalk of 16th street, and thus facing and approaching the intersection. He says that he saw Taylor's car traveling at about 15 miles per hour "coming into 16th street", and as it "was just entering 16th street," he observed the other car about 100 feet west of the intersection coming toward it as a speed which he estimated to be 25 miles an hour, and that when Taylor's car "got to the center of the street, he picked up speed to get by and then there was a collision" just "a little more than past the middle" of the intersection.
Clayton testified that as he approached the crossing, he was driving at about 25 miles an hour and when about 55 or 60 feet from Roanoke avenue he saw the lights of Taylor's car which were about the same distance from the intersection, and that car was traveling as fast or maybe a little faster than he was. He further said that as soon as he saw Taylor's oncoming car, he realized that Taylor was not going to stop, and he immediately applied his brakes which took effect about 12 feet from the intersection and that his skid marks continued from that point a distance of 24 feet to where the impact occurred.
The specific and chief reason urged by Clayton for setting aside the verdict and judgment is that Taylor by his own testimony has stated a set of facts and circumstances that precludes a recovery. It is argued that if Clayton's car was as far to the west as it was stated to have been by Taylor when he entered the intersection, then at the speeds that the respective cars were going, the collision could not have happened. It is then asserted *560 that Taylor's observation and estimate of the location of Clayton's car was so poor and ineffectual and his conduct so careless as to constitute contributory negligence on his part as a matter of law.
We agree that some of the statements made by Taylor are extravagant, and if the distances and locations mentioned by him are taken to mean and are treated as specific distances and locations, then it would appear to have been impossible for the collision to have happened if the automobiles were traveling at or about the speeds stated by him and other witnesses. However, when his testimony is weighed and considered as a whole, it does not appear to us that he undertook to specifically fix the speed at which his car entered 16th street, or the exact distance that Clayton's car was away at that time. He thought that the block between Roanoke avenue and Orcutt avenue was a short block. His estimate of distances and the location of Clayton's car may have been influenced by that belief, and the jury had a right to so conclude.
His testimony impresses us that he merely intended to give a rough estimate of the location and distance that he thought Clayton's car was away from Roanoke avenue when he entered the intersection rather than a statement of the precise location of the car.
"These statements of the respective parties as to such distances and speed are mere estimates, made in fleeting moments and related months after the occurrence. The fact that such estimates are not precisely correct does not render the testimony of either party incredible as a matter of law. It is merely a circumstance to be considered by the jury in weighing such testimony." Sink Masterson, 191 Va. 618, 623, 61 S.E.(2d) 863.
Clayton relies upon the doctrine and authority of Massie Firmstone,
134 Va. 450, 114 S.E. 652, wherein it is said:
"No litigant can successfully ask a court or jury to believe that he has not told the truth. His statements of fact and the necessary inferences therefrom are binding upon him. He cannot be heard to ask that his case be made stronger than he makes it, where, as here, it depends upon facts within his own knowledge and as to which he has testified."
Other decisions listed below are cited to sustain the principle that a litigant is bound by his own unequivocal factual statements upon matters within his knowledge and may not ask that *561 his testimony upon such matters be disregarded and other evidence in conflict therewith accepted to make out a case in his behalf. Davis Bakery Dozier, 139 Va. 628, 124 S.E. 411; Bassett & Co. Wood, 146 Va. 654, 132 S.E. 700; Maryland Cas. Co. Cole, 156 Va. 707, 158 S.E. 873; Virginia Elec., etc., Co. Lenz, 158 Va. 732, 164 S.E. 572; Thalhimer Bros. Casci, 160 Va. 439, 168 S.E. 433; Lyric Theatre Corp. Vaughan, 168 Va. 595, 191 S.E. 600; South Hill Motor Co. Gordon, 172 Va. 193, 200 S.E. 637; Federal Land Bank Birchfield, 173 Va. 200, 3 S.E.(2d) 405; Chappell White, 182 Va. 625, 29 S.E.(2d) 858.
We do not disagree with the principle invoked by plaintiff in error. However, for a litigant to be barred from recovery because his testimony is irreconcilable or at variance with physical facts or other certain proof, it must have been unequivocal and upon matter within his knowledge and so conclusively in conflict with other proved facts as to leave no room for difference of opinion between reasonable men.
The doctrine enunciated in Massie Firmstone, supra, was analyzed and discussed at length by Mr. Justice Eggleston in Crew Nelson, 188 Va. 108, 114, 49 S.E.(2d) 326. He concluded his discussion on that subject by saying:
"And, so, in a personal injury case, if the plaintiff, a person of average intelligence and in possession of his faculties, while detailing the circumstances of the accident, clearly and unequivocally testifies to facts which show as a matter of law that he has no case, he is bound thereby and cannot recover."
"Whether such has been the effect of the litigant's testimony must be determined from a fair reading of it as a whole, and not merely by reference to isolated statements which are adverse to his claim. See Tignor Virginia Elec., etc., Co., 166 Va. 284, 290, 291, 184 S.E. 234, 236."
"Unless the testimony of the litigant shows clearly and unequivocally that he has no case, or where fair-minded men may differ as to the effect of his testimony, the litigant is not concluded thereby. In such a situation his testimony is to be considered by the jury along with all of the other evidence in the case. See Tennes Tennes, 320 Ill.App. 19, 50 N.E.(2d) 132, 139, and cases there cited."
It is to be remembered that Taylor was rendered unconscious by the collision. When his testimony, which does not undertake *562 to give specific distances and locations, is tested by the above principles, it does not clearly and unequivocally appear that he has no case against Clayton.
The right of the jury to interpret and weigh the testimony of a witness is entitled to wide latitude. It is primarily their province to measure and evaluate the factual meaning of the testimony of all witnesses, and unless it clearly appears that they have erred by abusing or transcending the wide scope of their authority as reasonable men, their findings of fact should not be disturbed. They saw and heard Taylor testify. What he intended and meant by the distances and locations given were matters that they were peculiarly fitted to pass upon.
We think that when all of the facts and circumstances in evidence are considered, the issues of whether or not Clayton was guilty of negligence which proximately caused the collision, and whether or not Taylor was guilty of negligence which efficiently contributed to the mishap were questions to be decided by the jury.
On direct examination of Jennings and after he had been interrogated concerning the manner and speed at which Taylor's car entered 16th street, the distance of Clayton's automobile from the intersection at that time, the speed at which the cars were traveling and where the impact took place, he was asked whether or not Clayton swerved his automobile either to his right or left, and his answer was that he did not. He was then asked, "Did he have time to have stopped at the rate of speed he was going?"
Counsel for Clayton objected to that question because he said that it called for an opinion by the witness. The court overruled the objection, and the witness was permitted to answer as follows:
"A. Well, I have passed there quite a few times since then and it does look like he would have had time to stopped or to have turned."
The ruling of the court was excepted to and assigned as error. Later in the trial certain questions were propounded to Clayton by his counsel concerning how promptly he stopped his car, which to some extent elicited that witness's opinion.
The questions and answers were:
"Mr. Ford: Was that a good stop from your experience driving that car? *563 "
"A. Never had to stop like that before."
"Mr. Ford: Every seen anybody else stop any better than that, driving 25 miles an hour, to avoid an accident?"
"A. Can't say that for sure."
Though we do not approve the form of the question to which objection was made because it called for an answer which to some degree expressed the opinion of the witness, yet we have no difficulty in concluding that the ruling of the court did not constitute reversible error.
In Trant Upton, 159 Va. 355, 165 S.E. 404, a quite similar answer was elicited over objection. There the witness was asked: "Suppose that the Trant truck driver had kept straight over on the right hand side, would he have struck the child?" The answer given was "No, sir; I don't think he would."
In concluding that the ruling of the court was not reversible error, Mr. Justice Browning said:
"* * * Strictly speaking, the jury, with the facts before them, might have been as competent to judge of this matter as the witness, and thus the opinion evidence rule as to a non-expert witness was offended, but the harm, if any, was negatived by counsel for plaintiff eliciting from the witness the fact as to whether there was room enough to pass on the right."
The following authorities are of like import: Rice-Stix Dry Goods Co. Self, 20 Tenn.App. 498, 517, 101 S.W.(2d) 132; 3 Michie, Law of Automobiles, (3d ed.), section 258(1), page 1222; 3 Wigmore, Evidence, (3d ed.), section 1929.
If any harm was here done by the answer complained of, we think that it was offset by Clayton's statement concerning the manner in which he brought his car to a stop.
We have considered but find no merit in any of the other assignments of error. None of them was argued at bar or seriously relied upon in the brief of plaintiff in error. Discussion of them would merely prolong this opinion and serve no good purpose.
The judgment is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2458375/ | 274 S.W.2d 261 (1955)
James WILLIAMS, Jr., By His Parents, Mr. and Mrs. James E. Williams, Respondent,
v.
KANSAS CITY, Missouri, a Municipal Corporation, Appellant.
No. 44179.
Supreme Court of Missouri, Division No. 2.
January 10, 1955.
David M. Proctor, City Counselor, John J. Cosgrove, Associate City Counselor, T. James Conway, Asst. City Counselor, Kansas City, for appellant.
F. L. Thompson, A. C. Popham, Sam Mandell, Kansas City, for respondent. Popham, Thompson, Popham, Mandell, Trusty & Green, Kansas City, of counsel.
*262 BARRETT, Commissioner.
In this action for $15,000 for personal injuries to James Williams, Jr., who was twelve years old in 1950, the jury returned a verdict for $1,000. The plaintiff filed a motion for a new trial as to the amount of the damages only. By reason of the inadequacy of the damages awarded, the trial court sustained the motion and the defendant, Kansas City, has appealed. Upon the appeal the city makes two claims, one, that a verdict should have been directed in its favor because, under the evidence, James was guilty of contributory negligence as a matter of law and, two, that the trial court abused its discretion in granting a new trial solely on the question of damages.
James was injured on the 31st day of August 1950, a bright, clear day, when the bicycle he was riding on 59th Street struck a raised manhole in the street. James and his mother were visiting Mrs. Jones that day and James and Tommy Jones were returning from a grocery store errand. 59th Street, at that point, was downgrade and James was coasting at a speed of fifteen to twenty miles an hour with Tommy riding his sister's bicycle some distance behind. The manhole was directly in the middle of the street with concrete or asphalt built up around the protruding portion of the manhole. It had been there in the street five or six years. According to the plaintiff's evidence the manhole, at its highest point, was elevated above the pavement ten or twelve inches. According to the city's witnesses the manhole was elevated a mere two, three or four inches and was gradually sloped off, presenting no hazard whatever. In fact, several boys in the neighborhood often raced their bicycles over the raised area just for the thrill of the slight "lift." Jimmy had probably seen the manhole when riding in an automobile but he had not paid particular attention to it. On this day, as he coasted downhill, he could see the manhole in the street but he could not see that it was dangerously raised. The street was twenty-six feet wide and James was riding with his bicycle five or six feet, maybe seven or eight, from the curbing and, had he been watching and looking ahead at the moment, would have seen and missed the manhole. But, when he was about fifty feet away, Tommy yelled, "Hey, Jim, look out." Jim thought he was being warned of an approaching automobile and looked back over his shoulder and his bicycle "drifted over towards" the manhole, "kind of glided over thataway," and, as he again looked forward, struck the manhole and overturned.
In these circumstances it is claimed that Jimmy in failing to look in the direction he was traveling, when by looking he could have seen the manhole and avoided it, was guilty of contributory negligence as a matter of law. It is not urged that he was guilty of contributory negligence when he was distracted by Tommy's warning and looked back; on the contrary, the city admits that "He was legally excused for looking back, under these circumstances." Specifically the claim is that "he was not excused for continuing to look back after he saw there was no danger from the rear." It is said that in riding his bicycle "a substantial distance, while looking backward" he was warned with fifty feet away"it (is) we think fairly inferable that the distance was from 30 to 40 feetall the while looking backward," that the distance was great enough for him to have looked forward again and have avoided the manhole and that because of his failure to do so, despite his age, he should be declared guilty of contributory negligence as a matter of law. In connection with the argument of both the appellant and the respondent the cited cases of children walking across or playing near railroad tracks, of automobile collisions, and of pedestrians injured on sidewalks, are helpful and persuasive only in so far as they deal with the general principles governing negligence and contributory negligence, particularly so in view of the numerous cases dealing with bicycles and injuries due to failure to maintain streets in a reasonably safe condition for travel. 7 Am.Jur., Secs. 13, 18; annotation 47 L.R.A. 289. The city tacitly concedes, upon this record, that its liability was for the jury to resolve and while the inferences the city would draw as to Jim's *263 contributory negligence are permissible ones, they certainly are not the only inferences compelled so that the fact could plainly be declared as a matter of law. All the circumstances considered reasonable minds could well differ, and whether Jim's conduct was so negligent as to bar his recovery was likewise a question of fact for the jury to resolve. Beebe v. Kansas City, 327 Mo. 67, 34 S.W.2d 57; Beebe v. Kansas City, 223 Mo.App. 642, 17 S.W.2d 608; Bethel v. City of St. Joseph, 184 Mo.App. 388, 171 S.W. 42; Warren v. Kansas City, Mo., 258 S.W.2d 681; City of Covington v. Exterkamp, 158 Ky. 599, 165 S.W. 967.
The second assignment that the trial court abused its discretion in granting the plaintiff a new trial limited to the single issue of damages, V.A.M.S. § 510.330, is based upon the claim that the city's liability, by reason of the evidence as to Jim's contributory negligence, was not clear and convincing, that from the inadequate award of $1,000 it is obvious "the verdict is the result of compromise on the part of the jury," and, therefore, the new trial as to a single issue only unjustly deprives the city of substantial rights. The granting of a new trial as to a single issue certainly results in the final determination of certain issues and it may well be, depending on the point of view, that the fact results in the deprivation of some rights, but by reason of the policy inherent in the new trial statute, Section 510.330, the trial court's determination in this respect is reviewable only for an abuse of discretion. Annotation 29 A.L.R. 2d 1199, 1213; Murphy v. Kroger Grocery & Banking Co., 350 Mo. 1186, 171 S.W.2d 610. There is neither claim nor demonstration that the verdict resulted from passion and prejudice on the part of the jury, thereby compelling a new trial on all issues. Brown v. Moore, Mo., 248 S.W.2d 553, 559. There is no claim that the issues of liability and of damages are not separable. Wright v. Estep, 194 Va. 332, 73 S.E.2d 371. While the verdict has been found to be inadequate, which is equivalent to a finding that it was against the weight of the evidence on that issue, Widener v. St. Louis Public Service Co., 360 Mo. 761, 230 S.W.2d 698, it was nevertheless substantial and the mere finding of inadequacy does not necessarily compel or demonstrate a finding that the verdict resulted from a compromise by the jury either as to damages or liability. Lilly v. Boswell, 362 Mo. 444, 242 S.W.2d 73. In this case the only issue as to damages was reasonable compensation for Jim's personal injuries. His father and mother have a separate suit pending and the verdict in this case is not flagrantly disproportionate to even the actual medical expense or loss of earnings, a circumstance some courts have considered as demonstrative of a compromise of liability on the part of the jury. Hendrikson v. Koppers Co., Inc., 11 N.J. 600, 95 A.2d 710; Leipert v. Honold, 39 Cal. 2d 462, 247 P.2d 324, 29 A.L.R. 2d 1185. Here the trial court, in exercising its discretion, is deemed to have considered the possibility of unjust prejudice to the defendant, the court simply weighed the evidence, which was undisputed, and found that the jury's award of damages was inadequate, and it is not demonstrated upon this record that the trial court so abused its discretion as to compel this court to grant a new trial upon all the issues. Lilly v. Boswell, supra; annotation 29 A.L.R. 2d 1199; 39 Am.Jur., Secs. 21-24. Accordingly the judgment is affirmed and the cause remanded.
WESTHUES and BOHLING, CC., concur.
PER CURIAM.
The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court. ELLISON, P. J., LEEDY, J., and CAVE and ANDERSON, Special Judges, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375389/ | STATE OF NORTH CAROLINA
v.
STAN ARTHUR SNEED.
No. COA09-367.
Court of Appeals of North Carolina.
Filed October 20, 2009.
This case not for publication
Attorney General Roy Cooper, by Assistant Attorney General Juanita Twyford, for the State.
Ryan McKaig for defendant-appellant.
WYNN, Judge.
To revoke a defendant's probation, a trial court must find evidence sufficient to support a conclusion that the defendant violated a valid condition of probation without lawful excuse.[1] Because the record shows sufficient evidence to find that Defendant Stan Arthur Sneed violated multiple conditions of his probation, we affirm.
On 10 April 2008, Defendant pled guilty to the sale and delivery of cocaine. The trial court sentenced Defendant to sixteen to twenty months imprisonment, suspended his sentence, and then placed him on supervised probation for thirty-six months.
On 27 June 2008, Defendant's probation officer filed a violation report, alleging Defendant violated probation by failing to complete community service; report to the probation office; comply with his curfew; make court-ordered payments; remain current in probation supervision fees; report to a treatment program; and notify his probation officer of his current address. At Defendant's probation revocation hearing, the trial court found that Defendant had committed all of the violations willfully and without lawful excuse. Thereafter, the trial court revoked his probation and activated his original sentence of sixteen to twenty months imprisonment.
On appeal, Defendant argues the trial court erred by (I) revoking his probation because there was insufficient evidence to support the conclusion that his violations were willful and without lawful excuse, and (II) failing to make findings of fact regarding his lawful excuse defense and his ability to comply with the conditions of probation.[2]
I.
First, Defendant argues that there was insufficient evidence to show that his violations of the terms and conditions of probation were willful. A trial court's findings of fact in an order revoking probation must be supported by competent evidence, and will not be disturbed on appeal absent a "manifest abuse of discretion." State v. Sherrod, 191 N.C. App. 776, 778, 663 S.E.2d 470, 472 (2008). "All that is required in a [probation revocation] hearing . . . is that the evidence be such as to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has willfully violated a valid condition of probation[.]" State v. Hewett, 270 N.C. 348, 353, 154 S.E.2d 476, 480 (1967). "The breach of any single valid condition upon which the sentence was suspended will support an order activating the sentence." State v. Braswell, 283 N.C. 332, 337, 196 S.E.2d 185, 188 (1973). Further, once sufficient evidence of the defendant's failure to comply with a term or condition of probation is established, the burden shifts to the defendant to show lawful excuse or lack of willfulness. State v. Crouch, 74 N.C. App. 565, 567, 328 S.E.2d 833, 835 (1985).
Here, the State offered as evidence of Defendant's willful non-compliance his probation officer's verified report detailing the seven probation conditions violated by Defendant: (1) failing to fulfill a community service requirement; (2) failing to report to the probation office on 5 May and 2 June 2008; (3) failing to comply with curfew on 29 April, 14 May, 18 May, 21 May, 27 May, 6 June, 9 June, 11 June, and 12 June 2008; (4) failing to make court-ordered payments; (5) failing to remain current in his probation supervision fees; (6) failing to report to the Treatment Alternatives to Street Crimes Program as scheduled; and (7) failing to notify his probation officer of his current address. See State v. Duncan, 270 N.C. 241, 247, 154 S.E.2d 53, 58 (1967) (holding a verified report of a probation officer is competent evidence to support a finding that defendant violated a condition of his probation).
Defendant also admitted in open court that he committed many of the violations alleged in the report and alleged that many of the violations were not willful. Indeed, regarding Defendant's failure to complete any community service hours, he testified that he knew he was required to complete community service but that he never called or contacted the coordinator after he was placed on probation on 10 April. Defendant asserted that he "didn't have time to do any." Defendant also admitted that he had failed to make curfew because of his work hours but his probation officer was unable to corroborate this claim.
Next, concerning his failure to notify his probation officer of a change of address, Defendant admitted that he moved to a different address temporarily after being hospitalized. However, he failed to notify his probation officer of the change until after he had been arrested for probation violation. Regarding the missed visits to the probation office and missed curfews during the month of June, Defendant testified that he was in the hospital for the entire month but did not provide any evidence or medical records to corroborate his claim, and never informed his probation officer that he was in the hospital. Finally, regarding his failure to make any monetary payments, Defendant contended he was unable to pay the supervision fees because he had just started a new job but then declared, "The money is no problem . . . I can pay that every bit of that off today or tomorrow."
Based on Defendant's own testimony, the verified probation report, and the testimony of Defendant's probation officer, we hold that the record shows sufficient evidence to support the trial court's determination that Defendant willfully violated the terms and conditions of his probation.
II.
Defendant next argues that the court erred by failing to make findings of fact regarding his ability to comply with the conditions of probation or his claim of lawful excuse. This Court has held that the failure of a judge to be more explicit in the findings by stating that he had considered and evaluated Defendant's evidence of inability to comply or lawful excuse is not an abuse of discretion as "[i]t would not be reasonable to require that a judge make specific findings of fact on each of defendant's allegations tending to justify his breach of conditions." State v. Williamson, 61 N.C. App. 531, 535, 301 S.E.2d 423, 426 (1983).
Here, the trial court set forth its findings on a preprinted form entitled "Judgment and Commitment Upon Revocation of Probation or Election to Serve Sentence." The trial court found, inter alia, that the violation report was incorporated by reference. Further, the trial court found that Defendant committed the violations alleged in paragraphs one through seven of the report and that those violations were willful and without lawful excuse. Therefore, we conclude that the order, in combination with the probation violation report incorporated by reference, contained sufficient findings of fact to support the revocation of Defendant's probation. See State v. Henderson, 179 N.C. App. 191, 196-97, 632 S.E.2d 818, 822 (2006) (holding that the completed "Judgment and Commitment Upon Revocation of Probation" form and incorporated probation violation report constituted sufficient findings of fact to support the defendant's probation revocation).
Affirmed.
Judges CALABRIA and STROUD concur.
Report per Rule 30(e).
NOTES
[1] State v. Robinson, 248 N.C. 282, 287, 103 S.E.2d 376, 380 (1958).
[2] Defendant's remaining assignments of error set out in the record on appeal were not brought forward in his brief; accordingly, they are deemed abandoned. N.C. R. App. P. 28(a) (2008). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375475/ | 933 P.2d 851 (1997)
123 N.M. 52
STATE of New Mexico, Plaintiff-Appellee,
v.
Eric SMITH, Defendant-Appellant.
No. 23696.
Supreme Court of New Mexico.
February 7, 1997.
T. Glenn Ellington, Chief Public Defender, Susan Gibbs, Assistant Appellate Defender, Kari Converse, Joseph E. Shattuck, Jeff Rein, Assistant Public Defenders, Santa Fe, for Appellant.
Ron P. Lopez, District Attorney and Madeline Melka, Deputy District Attorney, Estancia, for Appellee.
OPINION
RANSOM, Justice.
1. Eric Smith (Smith) was charged with false imprisonment of his two sons, Eric Smith Jr. and Larry Smith, see NMSA 1978, § 30-4-3 (Repl.Pamp.1994) (false imprisonment), and first-degree murder of Eric Jr. with the aggravating circumstance of murder of a witness, see NMSA 1978, § 30-2-1(A) (Repl.Pamp.1994) (first-degree murder); NMSA 1978, § 31-20A-5(G) (Repl. Pamp.1994) (aggravating circumstance for death-penalty consideration). After a pretrial hearing, the trial court denied Smith's motion to preclude the death-penalty proceedings. On interlocutory appeal, see Rule 12-203 NMRA 1996 (interlocutory appeal procedure); NMSA 1978, § 39-3-3(A)(3) *852 (Repl.Pamp.1991) (interlocutory appeal in criminal cases), we consider whether the State showed probable cause to believe the aggravating circumstance of murder of a witness was present. See State v. Ogden, 118 N.M. 234, 240, 880 P.2d 845, 851 (1994) (holding trial court may conduct pretrial hearing to determine probable cause to proceed with death-penalty charges).
2. We also consider whether evidence inadmissible at trial under Rule 11-403 NMRA 1997 (unfair prejudice as grounds to exclude relevant evidence) and Rule 11-404(B) NMRA 1997 (inadmissibility of evidence of other crimes) may be considered in a hearing to determine probable cause for death-penalty proceedings. We hold that evidence inadmissible under Rule 403 or 404(B) may be considered and, on the Ogden issue itself, we hold that the State failed to meet its probable-cause burden. We remand for dismissal of the death-penalty proceedings without prejudice.
3. Facts. Although the State proffers certain uncontroverted facts, the only evidence contained in the record is a statement given by Larry. From the facts not now controverted and Larry's statement, it is apparent that Smith and his two sons left in a van from Chandler, Arizona, to drive to New York, where Smith intended to kill his mother because he believed that the devil had entered her body. Smith had been ingesting methamphetamine, had not slept for six days, and was experiencing hallucinations. While in New Mexico, Smith decided to turn back to Arizona because he believed that his mother was no longer possessed by the devil.
4. On his way back to Arizona, Smith made his sons sit in the front seat, armed with pocket knives as protection against the devil, who Smith now believed to be in the back of the van. Later, Smith announced to his sons that he would have to kill them because the devil had entered their bodies. He stopped the van and began stabbing Eric Jr. When Larry tried to stop Smith from stabbing Eric Jr., Smith elbowed Larry and continued to stab Eric Jr. to death. Larry hid in the back of the van while, between the front seats, Smith stabbed Eric Jr. Smith beheaded Eric Jr. in the roadway in full view of several witnesses. Smith then drove away. Eric Jr.'s head was found seven-tenths of a mile from his body.
5. According to Larry's statement, Smith had been physically and verbally abusive of both Eric Jr. and Larry in the past, had possessed and used controlled substances in the past, and on two occasions had threatened Larry with death if Larry reported Smith's physical abuse or drug use. These threats occurred six years and two years prior to Eric Jr.'s death. Larry also stated that Eric Jr. was a "daddy's boy" who would never report his father's wrongdoings to the authorities.
6. Aggravating circumstance. To impose the death penalty, evidence must "support the finding of a statutory aggravating circumstance." NMSA 1978, § 31-20A-4(C)(1) (Repl.Pamp.1994). The Eighth Amendment requires that aggravating circumstances "genuinely narrow the class of persons eligible for the death penalty and... reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." State v. Clark, 108 N.M. 288, 304, 772 P.2d 322, 338 (1989) (quoting Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 2742, 77 L.Ed.2d 235 (1983)). To support a finding of the aggravating circumstance of murder of a witness, the State must show the defendant killed his or her victim for the purpose of preventing report of the crime or testimony in any criminal proceeding. See § 31-20A-5(G); State v. Willis, 123 N.M. 55, 60, 933 P.2d 854, 859 (N.M.1997). In Clark, we stated that "[w]hen the motive for the murder was to avoid detection and arrest, the class of murders is adequately narrowed for [E]ighth [A]mendment purposes." 108 N.M. at 304, 772 P.2d at 338.
7. Prior to trial, the trial court may hold a limited evidentiary hearing to determine whether "there is probable cause to believe an aggravating circumstance is present." Ogden, 118 N.M. at 240, 880 P.2d at 851. Before proceeding with death-penalty charges in this case, the State must show there is probable cause to believe that Eric Jr.'s murder "was motivated by a desire to *853 escape criminal prosecution for an earlier felony committed against the victim or some other person." Clark v. Tansy, 118 N.M. 486, 494, 882 P.2d 527, 535 (1994).
8. The State alleges Smith killed Eric Jr. to prevent him from reporting false imprisonment, past and present possession and use of a controlled substance, and driving while under the influence of a controlled substance. It contends that Smith's throwing a knife and Eric Jr.'s head from the van, attempting to ram police vehicles, avoiding a spike strip, and jumping a roadblock indicate he attempted to avoid detection of these crimes. According to the State's theory,
[Smith] murdered [Eric Jr.] to prevent him from reporting both past and present crimes and because, if he had not, [Eric Jr.] most certainly would have reported the events of the hours and days prior to the murder, including his use of controlled substances throughout the trip, a felony, and his abuse of [Larry], as well. Once [Smith] began the process, he could not stop until [Eric Jr.] was dead and then in acknowledgement of his own wrongdoing, he fled, and disposed of or attempted to obliterate evidence.
For the following reasons, we hold there is not probable cause to believe Smith killed Eric Jr. as a witness.
9. False imprisonment. To charge Smith with murdering Eric Jr. to prevent him from reporting the false imprisonment of Eric Jr. and Larry, the State must establish that Smith believed he had falsely imprisoned his sons. False imprisonment occurs when one intentionally confines or restrains another "without his consent and with knowledge that [one] has no lawful authority to do so." Section 30-4-3. There is, however, no evidence that Smith believed he committed this crime. Larry's statement indicates that Smith did not at first accede to his sons' wishes that they go back to Arizona. In doing so, Smith appears to have done nothing more than exercise his lawful authority as a parent of minor children. Therefore, the State has failed to show probable cause that Smith killed Eric Jr. in the belief he was preventing Eric Jr. from reporting the crime of false imprisonment of Eric Jr. and Larry.
10. Possession of controlled substance and driving under influence of controlled substance. While throwing the knife and Eric Jr.'s head from the van might indicate an attempt to avoid detection of the murder of Eric Jr., these actions do not show that Smith murdered Eric Jr. to avoid detection of other crimes. Similarly, attempting to ram police vehicles, avoiding a spike strip, and jumping a roadblock suggest Smith attempted to avoid criminal prosecution after murdering Eric Jr., but they do not show he murdered Eric Jr. in order to avoid criminal prosecution.
11. This case is unlike State v. Henderson, 109 N.M. 655, 789 P.2d 603 (1990), and Clark, 108 N.M. 288, 772 P.2d 322, where we found probable cause to believe the defendants killed their victims as witnesses. In Henderson, the lack of any other plausible motive supported the State's theory that the defendant had murdered the victim to avoid detection of his rape of her. 109 N.M. at 660, 789 P.2d at 608. In Clark, there was evidence that the defendant stated his belief that he could not let the victim go "because that would be the end for him." 108 N.M. at 304, 772 P.2d at 338. In this case, there is affirmative evidence that Smith's motive in killing Eric Jr. was Smith's belief that Eric Jr. was possessed by the devil, and there is no evidence that Smith stated his intention to kill Eric Jr. as a witness to other crimes.
12. Furthermore, it is implausible that Smith would realize that he was driving while under the influence of controlled substances and decide that to avoid detection he must kill his sons. Yet this is the theory offered by the State. It is less plausible than the theory suggested by Smith and corroborated in Larry's statement. On eleven separate occasions in his statement, Larry refers to Smith's hallucinations and his belief that he was killing the devil. The fact that Eric Jr. was a "daddy's boy" and would not tell the authorities about his father's wrongdoings casts further doubt on the State's theory that Smith murdered Eric Jr. to prevent him from reporting Smith's crimes. Larry's statement supports the theory that Smith suffered from a paranoid hallucination that *854 he was being pursued by the devil and that he killed Eric Jr. because he believed that the devil had entered Eric Jr.'s body.
13. The State suggests that Smith's theory of motivation for the killing is not credible because his belief that the devil had entered Eric Jr.'s body is not a credible belief. That Smith's beliefs concerning the devil are not credible is irrelevant because the operative question is not whether a jury could reasonably believe the devil had entered Eric Jr.'s body but whether a jury could reasonably believe Smith believed the devil had entered Eric Jr.'s body. The statement given by Larry indicates Smith believed so. While Smith's actions are shocking beyond description, the aggravating circumstance of murder of a witness is absent on the evidence in the record at this time.
14. Consideration of evidence inadmissible at trial. Smith argues that Larry's allegations of past threats are too remote and too prejudicial to be allowed as evidence at the sentencing phase and should therefore not be considered in an Ogden hearing. Although now moot for purposes of this appeal, we address this question as important for the guidance of future action in this case and others. Smith contends that a trial court's consideration of such evidence at an Ogden hearing would defeat the purpose of such a hearing, which is "to screen out only those cases in which the State does not have any significant factual or legal basis for pursuing the death penalty." 118 N.M. at 240, 880 P.2d at 851. Smith's contention is unpersuasive.
15. In Ogden, we stated that the presence or absence of an aggravating circumstance is to be determined at a "limited evidentiary hearing" which "should be summary in nature." Id. We noted that "[f]ormal rules of evidence should be relaxed, and hearsay will be admissible." Id. Furthermore, we indicated that "we have no intention of allowing a trial within a trial on a pretrial challenge to aggravating circumstances." Id. Evidence inadmissible under Rule 403 or Rule 404(B) is similar to inadmissible hearsay insofar as neither may be used at trial. We see no principled basis for allowing one while excluding the other. Therefore, just as a trial court may consider inadmissible hearsay in an Ogden hearing, so may it consider evidence inadmissible under Rule 403 or Rule 404(B).
16. Conclusion. The State failed to meet its probable cause burden to show the presence of the aggravating circumstance of murder of a witness. Evidence inadmissible at trial, including evidence inadmissible under Rule 403 or Rule 404(B), may be considered by the trial court at an Ogden hearing.
17. IT IS SO ORDERED.
FRANCHINI, C.J., and BACA, MINZNER and SERNA, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2573383/ | 422 F. Supp. 2d 181 (2006)
Harrison SHERWOOD, Plaintiff,
v.
Donald L. EVANS, Secretary, U.S. Department of Commerce Defendant.
No. CIV.A.01-02635 (EGS).
United States District Court, District of Columbia.
March 17, 2006.
*182 Mark David Schneider, Jenner & Block, LLC, Washington, DC, for Plaintiff.
Wyneva Johnson, U.S. Attorney's Office, Civil Division, Washington, DC, for Defendant.
MEMORANDUM OPINION
SULLIVAN, District Judge.
Plaintiff, Harrison Sherwood, filed this action under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621 et seq., alleging that the International Trade Administration at the U.S. Department of Commerce did not hire him because of his age. Pending before the Court is defendant's Motion for Summary Judgment. Defendant argues that the available position was a contract position, and therefore not subject to ADEA. Defendant next argues that even if the ADEA applies, plaintiff cannot establish a prima facie case because he was not qualified for the position. Third, defendant contends that plaintiffs lack of qualification is a legitimate reason for not selecting plaintiff, and that plaintiff has not offered any evidence to demonstrate that this reason is pretext for discrimination. Upon consideration of defendant's motion, and the response and reply thereto, the Court concludes that the ADEA does not apply.[1] Accordingly, defendant's Motion for Summary Judgment is GRANTED and plaintiffs complaint is DISMISSED WITH PREJUDICE.
I. BACKGROUND
On September 19, 1996, Robert Kohn, Senior Commercial Officer, Bonn Office, United States and Foreign Commercial Services ("US & FCS"), International Trade Administration, U.S. Department of Commerce, requested that the U.S. Department of State ("State Department") approve the filling of a Personal Services Contract ("PSC") position in Duesseldorf, Germany. On November 15, 1996, the U.S. Embassy issued a Job Opportunity Announcement for the position (the "Announcement"). Defendant's Statement of Undisputed Material Facts ("Def.Statement") at ¶ 3; Def. Ex. 3. The U.S. & FCS office in Bonn ("the Bonn Office") was to conduct interviews and evaluate candidates, but the selection was a "joint decision" with the U.S. & FCS office in Washington, D.C. ("the D.C. Office"). Def. *183 Statement at ¶ 22.[2]
The position description provided that the Personal Services Contractor would hold the title of "Commercial Representative," and would "carr[y] out the entire range of commercial work with almost no day-to-day supervision." Def. Statement at ¶ 4. Major duties of the position include working to expand U.S. exports to Dusseldorf, supporting the Principal Officer in furtherance of Commercial Service Germany's goals and objectives, helping U.S. companies resolve trade complaints, and contributing to commercial reporting. Announcement at 4-5. In addition, the Commercial Representative would serve as "an analyst and advisor to [Commercial Service] Germany management in planning, organizing and implementing programs to facilitate the expansion of U.S. exports in the region." Def. Statement at ¶ 4, Def. Ex. 13 at 2. The duties of a PSC contractor, however, are inherently limited; a contract employee cannot form policy, plan programming, represent the U.S. government, control money, property, or other valuable resources, or supervise direct-hire employees of the U.S. government. 3 Foreign Affairs Manual ("FAM") 171.2(b)(2), Def. Ex. 20; Affidavit of Kay Kuhlman (Nov. 3, 1997) ("Kuhlman Aff.") at 2, Def. Ex. 9; Affidavit of George Knowles (Oct. 17, 1997) ("Knowles Aff.") at 4, Def. Ex. 8.
Neither party disputes that the Announcement included a residency requirement as a precondition to applying. The six-page Announcement stated this requirement twice. Announcement at 1 (stating that the PSC position was open to "eligible American family members of accredited U.S. Mission personnel in Germany and American citizens residing in Germany"); Announcement at 3 ("In order to be eligible to apply, American citizens must have a valid German residency permit."). The U.S. Department of State Job Announcements routinely include residency requirements. Def. Statement at ¶ 12. The State Department requires its PSC applicants to reside in the country in which the work is to be performed. Id.
Among the eight candidates for the position were Kenneth Keefe (age 40), plaintiff (age 63), and Edward Fantasia (age 47). Def. Statement at ¶ 15; Defendant's Motion for Summary Judgment at 4. Mr. Kohn and Ms. Kuhlman, in the Bonn Office, created a short list for the position and ranked these candidates first through third, respectively, and sent the list to the D.C. office. Def. Statement at ¶ 25. In reviewing the short list from the Bonn Office, Mr. George Knowles, then-Regional Director for Europe, and Ms. Dolores Harrod, Deputy Assistant Secretary, questioned plaintiff's inclusion because plaintiff was not a resident of Germany. Affidavit of Dolores Harrod (Oct. 16, 1997) at 2, Def. Ex. 7; Knowles Aff. at 2-3. Mr. Knowles conveyed to Mr. Kohn and Ms. Kuhlman that plaintiff was not qualified primarily because of his lack of residency and also because of his lack of current knowledge of German trade, economy, and business. Knowles Aff. at 2. Both offices agreed to offer the position to Mr. Keefe, but Mr. Keefe declined the offer. Def. Statement at ¶ 27. Unbeknownst to Mr. Knowles, Mr. Keefe had recently moved from Germany to Florida sometime before he was offered the position and, therefore, he did *184 not meet the residency requirement. Knowles Aff. at 2. Since Mr. Keefe declined the position, however, defendant did not have to address the residency problems. The position was then offered to Mr. Fantasia, who was living in Germany, had a German residency permit, and had current knowledge of German business, trade, and investment practices. Application for PSC position of Edward Fantasia at 1-4, Def. Ex. 23.
II. STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56, summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C.Cir.2002). In determining whether a genuine issue of material fact exists, the court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The nonmoving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by affidavits or other competent evidence setting forth specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); see Celotex Corp., 477 U.S. at 324, 106 S. Ct. 2548.
III. PLAINTIFF IS NOT AN APPLICANT FOR EMPLOYMENT UNDER THE ADEA, BUT RATHER AN APPLICANT FOR A CONTRACTOR POSITION
Liability under the ADEA is not triggered against the federal government unless the complainant is an "applicant for employment" of a federal agency. See 29 U.S.C. § 633a(a); 29 C.F.R. § 1614.103. In order to determine whether the position was for an employee or an independent contractor, the court should "analy[ze] the economic realities of the work relationship." Spirides v. Reinhardt, 613 F.2d 826, 831 (D.C.Cir.1979) (citations omitted). The Spirides Court detailed eleven factors to distinguish an employment position from an independent contractor position, but observed, "the extent of the employer's right to control the `means and manner' of the worker's performance is the most important factor to review . . ." Id. at 831-32. The Circuit later grouped the factors into four categories: 1) the intent of the parties; 2) whether contracting work out is justifiable as a prudent business decision; 3) the defendant's control over the work to be performed; and 4) whether the relationship shares attributes commonly found in arrangements with independent contractors or employees. See Redd v. Summers, 232 F.3d 933, 939 (D.C.Cir.2000) (citing Spirides, 613 F.2d at 831).
1. The intent of the parties
This group consists of one Spirides factor, "the intent of the parties, primarily as reflected in the contract between the `contractor' and its `client.'" Redd, 232 F.3d at 939. Defendant argues that it clearly stated its intent that the PSC position was contractual. Plaintiff conceded at his deposition that one of the things that made the PSC position attractive to him was the fact that it was a contract position because he could earn a contract salary and still draw on his retirement annuity. See Pl's Depo. at 27.
Plaintiff does not argue that he did not intend to apply for a contract position. Rather, plaintiff attempts to distinguish "impersonal" service contracts, such as *185 contracts for cleaning, computer maintenance, security, etc., from "personal" service contracts. Personal service contracts, plaintiff contends, are those in which the contractor is personally responsible to the employer and cannot be substituted with someone from a roster of qualified persons. Plaintiff maintains that while impersonal service contracts may not be governed by ADEA, the PSC position was for a personal service contract, and the position so closely mirrored employee positions that the position in this case is subject to ADEA.
Plaintiff offers no legal authority recognizing a distinction between personal and impersonal service contracts. Indeed, case law indicates the distinction is not legally significant. In Zhengxing v. Nathanson, the Court held that a plaintiff who was hired to perform "broadcast related duties," such as announcing, translating news and features, and producing was an independent contractor. Zhengxing v. Nathanson, 215 F. Supp. 2d 114, 115 (D.D.C.2002). Although the duties of the plaintiff in Zhengxing clearly went beyond impersonal services, the Zhengxing Court made no distinction on the basis of the services offered by the plaintiff. Likewise, in the instant case, the PSC position's duties contemplate that the person hired will perform them; duties include "trade promotion, outreach and contacts, research and reporting, business counseling." Announcement at 4. The Court is aware of no reason to depart from Zhengxing to carve out a special category of "personal" service contracts that would be subject to the ADEA.
Therefore, because both parties intended the position to be a contractual relationship, regardless of the type of services required, this factor weighs in favor of defendant.
2. Whether contract work is justifiable as a prudent business decision
The second Redd group contains three Spirides factors: 1) whether the supervision of the contractor by the client is required; 2) whether the contractor's work requires special skills; and 3) whether the work performed by the contractor is an integral part of the client's business. Redd, 232 F.3d at 939.
The PSC position required a specialist subject to minimal supervision. The position called for knowledge of "Germany's economy, as well as the prevailing business, trade, and investment practices." Announcement at 3. The Announcement also specifies that the position would be minimally supervised. The PSC Commercial Representative "carries out the entire range of commercial work with almost no day-to-day supervision" and serves as "an analyst and advisor to [Commercial Service] Germany management . . . to facilitate the expansion of U.S. exports." Position Description at 2, Def. Ex. 13. Plaintiff argues that the level of supervision of the contractor in Dusseldorf is the same of Principal Commercial Officers in the other U.S. Consulates in Germany, but he does not provide the Court with any information about how other Principal Commercial Officers are supervised. Therefore, he has not provided evidence to dispute defendant's evidence that the PSC position requires minimal supervision.
Under the second factor, the specialized skills sought in this case stand in contrast to the plaintiff in Holt v. Winpisinger, 811 F.2d 1532 (D.C.Cir.1987). In that case, the plaintiff was "trained [by her employer] to use her office equipment, and taught to perform many clerical tasks such as bookkeeping, typing up leases and updating the building directory." Id. at 1539.
*186 Finally, the contract position is not an integral part of defendant's business, but rather a short-term solution that balances U.S. & FCS's conflicting needs. On the one hand, U.S. & FCS needed to keep down the number of full time employees by not replacing Foreign Service Officers who had left. On the other hand, it needed to hire Americans at each of its posts, because "when an American business person walks in he wants to see an American." Kohn Aff. at 2. The temporary contract position was expected to help the "well functioning of the Hamburg and Dusseldorf offices" in the short-term by filling positions that had been vacant for months. Kuhlman Aff. at 2. The long vacancy period and the short-term nature of the PSC solution indicate that these positions are not integral to the business of the employer, but rather stop-gap solutions. Given the circumstances of U.S. & FCS's conflicting needs, the contract position was justifiable as a prudent business decision.
Plaintiff argues that the contract position was not justifiable because the skills required for a contract position in Dusseldorf are the same as that of Principal Commercial Officers in other U.S. Consulates in Germany. Without evidence of this, however, the Court cannot conclude U.S. & FCS's decision to use contractors is an unjustifiable or an imprudent business decision. Thus, the Court finds ample evidence to conclude that the contract position was a justifiable business decision.
3. Defendant's control over the work to be performed
This group of Redd factors addresses 1) whether defendant furnishes the equipment used and place of work; and 2) the manner in which the work relationship is terminated. Redd, 232 F.3d at 939.
Defendant concedes that plaintiff would have used U.S. & FCS equipment and office space. As defendant notes, however, this factor has only a minimal impact on the Court's analysis. See Zhengxing, 215 F.Supp.2d at 118 (finding contractual relationship despite employer's concession that it furnished contractor's equipment and office space).
Moreover, the matter in which the work relationship could be terminated clearly reflects an independent contractor relationship. According to the Announcement, the PSC position was for a fixed period of less than a year, although the agency was permitted to extend the contract up to a maximum of five years. Announcement at 1. Plaintiff contends that because either party can terminate the contract with appropriate notice, the relationship is more like that between an employer and employee. Termination with notice is common to both employer-employee relationships and employer-independent contractor relationships. Fixed period of employments, however, are unique to the independent contractor setting. Plaintiff does not provide the Court with any authority for its position that termination with notice refutes the inference that a fixed period of employment is indicative of an independent contractor relationship. The fixed period of the contract provides strong evidence of a contractual relationship and, therefore, the Court finds that this factor favors the defendant.
4. Employment Benefits
This final Redd group addresses "whether the relationship shares attributes commonly found in arrangements with independent contractors or with employees," specifically: 1) the duration of the engagement; 2) the method of payment; 3) whether annual leave is afforded; 4) whether the worker accumulates retirement benefits; and 5) whether the defendant *187 pays social security taxes. Redd, 232 F.3d at 940.
As mentioned above, the Announcement contemplated a contract for one year, with a possibility for extensions for up to five years, subject to incumbent's performance and "funding availability." Announcement at 1. The method of payment is biweekly distribution of a salaried sum for the fixed term of the position. Plaintiff states, without supporting evidence, that this method of payment is "identical" to "the average Foreign Commercial Service assignment." Plaintiff's Response to Defendant's Motion for Summary Judgment at 3-4. While plaintiff presumably means the biweekly schedule is identical, he does not explain whether the funding for the average Foreign Commercial Service assignment is drawn from an annual salaried sum. Plaintiff also offers no evidence that the average Foreign Commercial Service assignment is paid subject to "funding availability."
Defendant admits that the PSC Commercial Representative accrues annual and sick leave, but argues that every other financial aspect of the position reflects an independent contractor relationship: 1) the incumbent is not eligible under Federal retirement programs or for the "Foreign Earned Income" IRS exclusion; 2) the incumbent must enroll in the German Social Security System and make both employer and employee contributions; 3) the incumbent is ineligible to participate in Federal life insurance and health benefits programs, although the Agency may make a limited contribution toward the actual cost of life and health insurance policies; 4) the incumbent is not eligible for the Incentive Awards Program; 5) the incumbent is not eligible for Labor Union representation or to participate in the Foreign Service Grievance System. Personal Services Contract Action for Edward Fantasia at 3.
Plaintiff disputes defendant's argument that the incumbent is not eligible under Federal retirement programs. He argues that FICA contributions are compulsory and that the employer must also pay social security taxes. Although FICA contributions are mandatory, Personal Services Contract Action for Edward Fantasia at 3, plaintiff points to no other eligibility for retirement benefits.
In sum, although the PSC Commercial Representative would use U.S. & FCS's equipment, accrues sick and annual leave and would make FICA contributions, the balance of the Spirides factors favor the defendant. The parties both knew the position was a contractual one, and plaintiff was attracted to the position for that reason. The contract position required minimal supervision and fulfilled a particular, short-term need for the defendant and, therefore, was justifiable as a prudent business decision. The position was limited to a specific period of time, and was subject to funding availability. Finally, the minimal employment benefits indicate the position was not a relationship between employer and employee.
IV. The Findings and Conclusions of the Equal Employment Opportunity Commission Administrative Judge are not binding on this Court
Plaintiff also relies on the Findings and Conclusions of the Equal Employment Opportunity Commission Administrative Judge ("AJ") to support his contention that the PSC position is subject to ADEA. Although ultimately holding that defendant articulated a legitimate, non-discriminatory reason for not hiring the plaintiff, the AJ did find that the ADEA applied. This Court is not bound by the AJ's holding. *188 Moreover, the AJ's analysis of the Spirides factors is of limited persuasiveness because it does not thoroughly examine each group. Instead, the AJ merely stated:
The record reflects that the duties of the PSC position mirrored the duties of the Commercial Service Officer position in every respect, including supervisory control, with the exception that the PSC incumbent could not supervise employees, dispense or authorize funds, or represent the U.S. Government. The incumbent was eligible for annual and sick leave, holiday pay and life and health insurance benefits . . . Therefore, the position was that of an employee, not a contractor.
Administrative Proceeding, Final Agency Decision at 12, Def. Ex. 10. The AJ's conclusory comparison of the PSC position and the Commercial Service Officer position does not adequately address the Spirides factors. In addition, the AJ exaggerated the emphasis on employment benefits, without detailing his reasons for doing so or explaining why he discounted the other factors. Therefore, plaintiffs reliance on the AJ's opinion is misplaced.
IV. CONCLUSION
For the foregoing reasons, the Court finds that plaintiff was not an "applicant for employment" under the ADEA. Therefore, defendant's Motion for Summary Judgment is GRANTED and this case is DISMISSED WITH PREJUDICE. An appropriate Order accompanies this Memorandum Opinion.
ORDER
For the reasons stated in the accompanying Memorandum Opinion, it is by the Court hereby
ORDERED that defendant's Motion for Summary Judgment is GRANTED; and it is
FURTHER ORDERED that plaintiffs Complaint is DISMISSED WITH PREJUDICE; and it is
FURTHER ORDERED that the Clerk shall enter final judgment in favor of defendant and against plaintiff.
NOTES
[1] Because this conclusion is dispositive of the case, the Court need not reach defendant's other arguments. The Court notes, however, that even if the ADEA did apply, and even if plaintiff could establish a prima facie case, the uncontroverted evidence demonstrates that defendant has, without question, articulated a legitimate nondiscriminatory reason why plaintiff was not selected: he was not a resident of Germany. Neither party disputes that applicants for the position were required to have German residency. Job Opportunity Announcement ("The Announcement"), Def. Ex. 3 at 4 ("In order to be eligible to apply, American citizens must have a valid German residency permit"). Plaintiff admits that at the time that he applied, he did not live in Germany or have a valid residency permit. Affidavit of Harrison Sherwood (Nov. 1, 1997) at 7, Def. Ex. 21; Plaintiff's Deposition (Jan. 10, 2003)("Pl's Depo.") at 46, Def. Ex. 29. Plaintiff has not sufficiently demonstrated that this reason is a pretext for discrimination. See Brown v. Brody, 199 F.3d 446, 458-59 (D.C.Cir.1999).
[2] Plaintiff argues that this statement is inaccurate and that there was no substantive role for U.S. & FCS headquarters to play in the hiring decision. Plaintiff's Response to Defendant's Statement of Undisputed Material Facts ("Pl.Resp.") at 3. Plaintiff states that "Questions of residency and experience were left to the Embassy to determine." Id. Because plaintiff offers no evidence in support of this statement, however, the Court considers defendant's statement uncontroverted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375522/ | 683 S.E.2d 683 (2009)
JONES
v.
CITY OF WILLACOOCHEE.
No. A09A1086.
Court of Appeals of Georgia.
August 18, 2009.
*684 F. Shea Browning, for appellant.
William A. King, Pearson, for appellee.
BERNES, Judge.
This appeal arises out of the trial court's grant of summary judgment to the City of Willacoochee on the negligence claim brought against it by Carlos D. Jones. Because Jones failed to show that he timely presented a written ante litem notice of his negligence claim to the City, we affirm.[1]
To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case. We review de novo a trial court's grant of summary judgment.
(Citations and punctuation omitted.) Duke Galish, LLC v. Manton, 291 Ga.App. 827, 827-828, 662 S.E.2d 880 (2008). See OCGA § 9-11-56(c).
So viewed, the record reflects that on June 5, 2005, Jones brought this damages action against the City of Willacoochee for injuries allegedly caused by a City employee's negligence in mowing grass along a public highway. The complaint, which was unverified, alleged that the mowing incident occurred on July 14, 2003. The complaint further alleged that in accordance with OCGA § 36-33-5, Jones provided written notice of his claim for monetary damages to the City within six months of the mowing incident. Attached to the complaint was the purported ante-litem notice addressed to the City and dated September 4, 2003.
The City filed a verified answer in which, among other things, it denied having been provided with a written ante litem notice from Jones within the required six-month period. The City thereafter moved for summary judgment on that same ground and on several additional grounds.
Jones filed a brief in opposition to the motion for summary judgment in which he argued that a written ante litem notice had been timely presented to the City. Attached as an exhibit to Jones's brief was the same purported ante litem notice that had been attached to his unverified complaint. Jones, however, did not submit any affidavits, deposition testimony, or other documentary evidence in support of his brief opposing summary judgment.
The trial court granted summary judgment in favor of the City without articulating the basis for its decision. On appeal, Jones argues that the trial court erred because he presented sufficient evidence to create a genuine issue of material fact over whether he complied with the ante litem statute, OCGA § 36-33-5. We disagree.
*685 Under OCGA § 36-33-5(b), any person having a claim for money damages against a city arising out of injuries to person or property is required to present a claim, in writing, stating the time, place, extent of injury, and the negligence that caused the injury. The giving of notice in the manner and within the time required by the statute is a condition precedent to the maintenance of a suit on the claim.
(Punctuation and footnote omitted.) City of Atlanta v. Broadnax, 285 Ga.App. 430, 439(5), 646 S.E.2d 279 (2007). See also Davis v. City of Forsyth, 275 Ga.App. 747, 747-748(1), 621 S.E.2d 495 (2005). The written notice must be provided within six months of the occurrence of the event giving rise to the damages claim. OCGA § 36-33-5(b). See Nicholas v. Van, 252 Ga.App. 411, 412, 556 S.E.2d 497 (2001). The burden is upon the plaintiff to prove substantial compliance with the statute. Bostwick v. City of Griffin, 141 Ga. 120, 80 S.E. 657 (1913). If the plaintiff fails to prove such compliance, and if the event giving rise to the plaintiff's claim occurred more than six months prior to the filing of the complaint, then summary judgment in favor of the defendant municipality is appropriate. See City of Chamblee v. Maxwell, 264 Ga. 635, 638, 452 S.E.2d 488 (1994).
Applying these principles, we conclude that summary judgment was appropriate because Jones failed to present any competent evidence that a written ante litem notice was provided to the City within the required six-month period. While Jones attached a copy of a purported ante litem notice to his unverified complaint and brief opposing summary judgment, he did not submit an affidavit or deposition testimony authenticating the notice. And unverified allegations in his complaint and opposition brief concerning the notice were "not evidence for purposes of summary judgment resolution." (Citation and punctuation omitted.) Worley v. Chuck Clancy Ford of Marietta, 206 Ga.App. 296, 297, 425 S.E.2d 376 (1992). See also Cordell v. Bank of North Ga., 295 Ga.App. 402, 404(1)(a), 672 S.E.2d 429 (2008) (exhibits attached to the complaint were not properly authenticated because "the complaint is not evidence and thus may not be considered in deciding a motion for summary judgment") (citation, punctuation, footnote and emphasis omitted). As such, the unauthenticated, purported notice was not competent evidence that could create a genuine issue of material fact for purposes of summary judgment. See Whatley v. Sharma, 291 Ga.App. 228, 231, n. 9, 661 S.E.2d 590 (2008) (unauthenticated letter had no probative value on summary judgment); White v. City of Atlanta, 248 Ga.App. 75, 76, n. 3, 545 S.E.2d 625 (2001) (same). See also Achor Center v. Holmes, 219 Ga.App. 399, 401(1), 465 S.E.2d 451 (1995) ("[E]vidence must be competent and admissible to raise a genuine issue of material fact on review of a summary judgment motion.") (citation and footnote omitted).
Furthermore, even if a copy of the purported notice was itself admissible into evidence, there nevertheless was no competent evidence that the notice was ever presented to the City. "[N]o presumption arises that a letter has been received in the mail unless it is shown that the letter (1) was written; (2) was properly addressed to the party; (3) contained the correct postage; and (4) was duly mailed in the United States Post Office." (Citation and punctuation omitted.) Bank South v. Grizzle, 218 Ga.App. 462(1), 462 S.E.2d 170 (1995). Because there was no affidavit, deposition testimony, certified mail receipt, or other documentary evidence reflecting that the notice was ever mailed with correct postage affixed, Jones failed to create a genuine issue of material fact over whether the notice was ever presented to or received by the City. See id.; American Express etc. Co. v. Berlye, 202 Ga.App. 358, 360(2), 414 S.E.2d 499 (1991).
Given the lack of competent evidence presented by Jones that proper ante litem notice was provided to the City, the trial court correctly granted the City's motion for summary judgment. See, e.g., Maxwell, 264 Ga. at 638, 452 S.E.2d 488; Harris-Jackson v. City of Cochran, 287 Ga.App. 722, 724, 652 S.E.2d 607 (2007). While the trial court did not specify its reason for granting summary judgment, "[a] grant of summary judgment must be affirmed if right for any reason, whether stated or unstated." (Citation and *686 punctuation omitted.) Duke Galish, LLC, 291 Ga.App. at 828, 662 S.E.2d 880.
Judgment affirmed.
SMITH, P.J., and PHIPPS, J., concur.
NOTES
[1] In light of our decision to affirm based upon the failure to timely present a written ante litem notice, we need not address the City's alternative grounds for why summary judgment was proper. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1750805/ | 269 S.W.3d 377 (2007)
John David TERRY, Appellant,
v.
John A. WHITE, in his capacity as Chancellor of the University of Arkansas at Fayetteville; and B. Alan Sugg, in his capacity as President of the University of Arkansas System, Appellees.
No. 07-1143.
Supreme Court of Arkansas.
December 6, 2007.
Motion for Clarification or Reconsideration.
PER CURIAM.
On November 1, 2007, Appellant John David Terry filed a motion for suspension or stay of order. Appellees, John A. White, Chancellor of the University of Arkansas, Fayetteville, and B. Alan Sugg, President of the University of Arkansas System, timely filed a response to the motion. On November 8, 2007, this court issued a summary order granting Appellant's motion for suspension or stay of order. Now before the court is Appellees' motion for clarification or reconsideration of the court's November 8, 2007 order.
Upon consideration of Appellees' motion for clarification and Appellant's response thereto, and for good cause shown, we hereby clarify that all proceedings in the circuit court are stayed pending resolution *378 of the matters on appeal. In other words, all parties are admonished to maintain the status quo. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266543/ | 461 F.Supp. 11 (1977)
Leo M. ZINN, Plaintiff,
v.
Lemar PARRISH, Defendant.
No. 75 C 4235.
United States District Court, N. D. Illinois, E. D.
April 1, 1977.
*12 Ellis E. Reid, Chicago, Ill., for plaintiff.
Warren L. Fuller, Chicago, Ill., for defendant.
DECISION
McMILLEN, District Judge.
Plaintiff sues as an agent "engaged in the business of Public Relations and Personal Management" to recover commissions allegedly due from his client, the defendant, under their contract. Defendant has moved for summary judgment on the issue of liability for the reason that plaintiff was not licensed as a private employment agency under the provisions of Ch. 48, § 197a of the Ill.Rev.Stat. (1975) and therefore that the contract between the parties is unenforceable. We agree with the defendant's contention and will enter summary judgment for the defendant on the Third Amended Complaint. We will also enter judgment in favor of the defendant on his counterclaim against the plaintiff for payments which defendant allegedly made to the plaintiff under contract, on the issue of liability only.
The Illinois statute in question provides in Ch. 48, § 197k in part as follows:
The term "employment agency" means any person engaged for gain or profit in the business of securing or attempting to secure employment for persons seeking employment or employees for employers. However, the term "employment agency" shall not include any person engaged in the business of management consulting or management executive training, and who in the course of such business is retained by, acts solely on behalf of, and is compensated solely by, an employer to identify, appraise or recommend an individual or individuals for consideration for an executive or professional position, provided that: (a) the compensation for each such position is at the rate of not less than $15,000 per year; and (b) in no instance is the individual who is identified, appraised or recommended for consideration for such position charged a fee directly or indirectly in connection with such identification, appraisal or recommendation, or for preparation of any resume, or on account of any other personal service performed by the person engaged in the business of management consulting or management executive training.
*13 This definition has never been acted upon by the Illinois courts. If the case at bar involved a construction of this statute which might bind an agency of the State government or a broad class of plaintiffs, we might be well-advised to abstain from deciding this case until the State courts have had an opportunity to construe the statute. See Kelly Services, Inc. v. Johnson, 542 F.2d 31, 33 (7th Cir. 1976). However, we believe that this court has an obligation to decide diversity cases between private parties as expeditiously as possible, and the statutory provision is not one which raises any constitutional or any difficult problems of construction. Nor are any of the other grounds for abstention presented by this case, as discussed in Colorado River District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). Therefore, we will proceed to decide the merits.
Plaintiff alleges that he contracted "to secure for the [defendant] employment as a professional football player" and that pursuant to this contract he obtained at least three contracts for the defendant with the Cincinnati Bengals. Pursuant to his agency contract, plaintiff was entitled to a ten percent commission from defendant for negotiating employment for him as a professional athlete and was to seek endorsement contracts and other advantageous financial arrangements for him. Therefore, on the face of his verified complaint he falls within the statutory provisions of ". . . any person engaged for gain or profit in the business of securing or attempting to secure employment for persons seeking employment . . ." and is an employment agency under § 197k.
Plaintiff does not contend that he falls within the exceptions of the statute for management consulting or management executive training firms but relies on a deposition of an inspector for the Division of Private Employment Agencies of the Illinois Department of Labor who, after an investigation of plaintiff's operation on June 15, 1976 reported to his supervisor that plaintiff is not covered by the statute. This conclusion of course is not binding on any court but also is not based upon a full knowledge of the facts. The inspector testified that if plaintiff was actually "booking" employment for his clients, then he would be covered by the statute. The inspector did not examine plaintiff's contracts which he had negotiated for the defendant and which are not disputed.
Plaintiff also contends that he was a "manager" and not an employment agency because the defendant was already employed by the Cincinnati Bengals when plaintiff became defendant's agent by a contract dated April 10, 1971. This is an unconvincing argument, not only because plaintiff's contract with the defendant specifically authorizes him to procure employment for the defendant but also because the defendant could have jumped to another league or could have been released by the Bengals in one form or another from his obligations.
The Illinois statute requires licensing by the Division of Private Employment Agencies of the State of Illinois pursuant to Ch. 48, § 197a. Defendant's affidavit from the Superintendent of this Division shows that plaintiff was not so licensed during the period of the contracts which he is now attempting to enforce. This results in an unenforceable and void contract under Illinois law. Tovar v. Paxton Community Memorial Hospital, 29 Ill.App.3d 218, 330 N.E.2d 247 (4th Dist. 1975); Winston v. Kaspar American State Bank, 36 Ill.App.2d 423, 184 N.E.2d 725 (1st Dist. 1962). On the other hand, defendant is permitted by Illinois law to recoup any payments which he has made to the plaintiff under the void contract. Woodall v. Peden, 274 Ill. 301, 113 N.E. 608 (1916); Stamatiou v. United States Gypsum Co., 400 F.Supp. 431 (N.D. Ill.1975), affirmed 534 F.2d 330 (7th Cir. 1976). The defendant was not in pari delicto with the plaintiff. He was an innocent victim of the plaintiff's illegal activities. Therefore, he is entitled to recover payments made to the plaintiff.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that defendant's motion for summary judgment on the *14 Complaint is granted and judgment is entered thereon in his behalf.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that defendant's motion for summary judgment on his counterclaim is granted on the issue of liability, and judgment is entered thereon in favor of the defendant-counterplaintiff. The issue of the measure of damages remains undecided and severed from the issue of liability. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266549/ | 461 F.Supp. 1025 (1978)
John WOOLEN, Jack T. Stephens, and John D. Campisi, Individually and as Class Action Plaintiffs,
v.
SURTRAN TAXICABS, INC., City of Dallas, Texas, City of Fort Worth, Texas, City of Irving, Texas, and City of Grapevine, Texas.
Civ. A. No. CA-3-78-1609-G.
United States District Court, N. D. Texas, Dallas Division.
November 29, 1978.
*1026 Tom Thomas and Robert F. Maris of Kolodey & Thomas, Dallas, Tex., for plaintiffs.
B. Thomas McElroy of White, McElroy & White, Dallas, Tex., for Surtran Taxicabs, Inc.
Lee E. Holt, City Atty., Joseph G. Werner, Kent S. Hofmeister, Asst. City Attys., Dallas, Tex., for City of Dallas, Tex.
*1027 Arthur Petersen, City Atty., David Williams, Jim Lollar, Asst. City Attys., Richard Henderson, City of Fort Worth, Fort Worth, Tex., for City of Fort Worth, Tex.
Don J. Rorschach, City Atty., City of Irving, Irving, Tex., for City of Irving, Tex.
John F. Boyle, Jr., of Hutchison, Price, Boyle & Brooks, Dallas, Tex., for City of Grapevine, Tex.
MEMORANDUM ORDER AND OPINION
PATRICK E. HIGGINBOTHAM, District Judge.
Nature of the Case
Before the opening of the Dallas-Fort Worth Regional Airport in 1974, the cities of Dallas and Fort Worth, as owners of the airport, established by contract the D/FW Surtran System for the purpose of providing ground transportation for the airport. The system, apparently a joint venture, then implemented its responsibility to provide taxi service to the airport by accepting competitive bids for the privilege of picking up passengers at the airport. The winning bid was submitted jointly by Yellow Cab of Dallas, Inc. and the Fort Worth Cab and Baggage Company. These corporations formed Surtran Taxicabs, Inc., which, on August 27, 1973, contracted with the Surtran System for the privilege of picking up taxicab passengers at the airport for transport to points in the ten counties surrounding the airport. The contract set the rates to be charged, and provided that the System would be paid 75¢ per trip plus 50% of all profits above a 5% operating profit.
Dallas and Fort Worth adopted ordinances setting forth a Code of Rules and Regulations for the airport, and the code was later adopted by the cities of Grapevine and Irving. This code provides, inter alia, that only holders of permits issued by the airport board may provide ground transportation from the airport. As Surtran Taxicabs, Inc. holds the sole permit for soliciting taxicab passengers at the airport, the effect of the Code and of the August 27, 1973, contract is that only Surtran Taxicabs, Inc. may pick up taxi passengers at the airport.
This suit challenges the arrangement among the cities of Dallas and Fort Worth and Surtran Taxicabs as a violation of the Sherman Act, 15 U.S.C. § 1 et seq. Plaintiffs seek to represent a class composed of taxicab drivers who hold, or have held since January 13, 1974 (the date of the opening of the airport) permits to operate taxicabs issued by municipalities within the ten county region surrounding the airport. Named as defendants are the cities of Dallas, Fort Worth, Irving, and Grapevine (the cities of Coppell and Euless, named as defendants in the original complaint, have been dismissed), and Surtran Taxicabs, Inc.
The complaint alleges that the cities and Surtran have participated, and continue to participate in a combination in restraint of trade in violation of section 1 of the Sherman Act, 15 U.S.C. § 1 (1976); and that they have created a monopoly in violation of section 2 of the Act, 15 U.S.C. § 2 (1976).[1] The cab drivers seek both injunctive relief and treble damages pursuant to section 4 of the Clayton Act, 15 U.S.C. § 15 (1976).
The cities and Surtran have filed motions to dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. Their contentions will be separately considered.
Discussion
Legal challenge is not new to the transportation arrangement at issue here, see, e. g., Continental Bus System v. City of Dallas, 386 F.Supp. 359 (N.D.Tex.1974); Airport Coach Service v. Fort Worth, 518 S.W.2d 566 (Tex.Civ.App. Tyler 1975, writ ref'd n. r. e.), or to others like it. See, e. g., Walker v. Houston, No. 73-H-648 (S.D.Tex. November 29, 1976); Park 'N Fly of Texas, Inc. v. Houston, 327 F.Supp. 910 (S.D.Texas 1971); Bellew v. Houston, 456 S.W.2d 185 (Tex.Civ.App. Houston [1st Dist.] 1970, writ ref'd n. r. e.). This history of this airport and its development has been described *1028 in other cases. See, City of Dallas, Texas v. Southwest Airlines Co., 371 F.Supp. 1015 (N.D.Tex.1973) and Continental Bus System, Inc. v. City of Dallas, supra. But the landscape has been so changed by recent decisions of the United States Supreme Court that the light of these decisions now fails to illuminate the corners of the presented legal issues.
I. The State Action Exemption.
Defendants argue that the antitrust laws have no application to the activities at issue here because of the operation of the so-called state action exemption of Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943). That case held that certain anticompetitive activities imposed by the state "as sovereign" are not subject to the federal antitrust laws. A few short years ago this case might have succumbed at this stage to the force of Parker. But if recent decisions of the Supreme Court have not narrowed the scope of its state action exemption they at least have recast the analytical construct for resolution of Parker issues.
A. Lafayette v. Louisiana Power & Light.
The starting point for analysis of the applicability of the federal antitrust laws to activity by state and local government must now be the Supreme Court decision in Lafayette v. Louisiana Power & Light, 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978). In that case the Supreme Court refused to extend antitrust immunity to cities that were alleged to have committed antitrust violations in the operation of electric utility systems.
The cities of Lafayette and Plaquemine were authorized by Louisiana law to operate electric utility systems both within and beyond their city limits. The cities sued LP&L for alleged anticompetitive practices, and LP&L counterclaimed, alleging various antitrust offenses including illegal tying arrangements. The cities then moved to dismiss the counterclaim on the ground that the activity fell within the protection of Parker v. Brown.
The district court granted the motion, but the Fifth Circuit reversed and remanded the case for further proceedings to determine whether the anticompetitive activity alleged was of a type contemplated by the state legislature. 535 F.2d 431 (5th Cir. 1976). The Supreme Court affirmed the decision of the Fifth Circuit.
In the only part of the opinion that received the support of a majority of justices, Justice Brennan considered whether, wholly apart from their relationships with the states, municipalities should be shielded from the operation of the antitrust laws. He reasoned that the state action exemption from the antitrust laws has its roots in federalism; that is, the Parker decision was the result of a balancing of antitrust policy against the principles of a dual system of government under which the states are sovereign except insofar as Congress may constitutionally limit their authority. Government activity should be exempt from the antitrust laws, then, only if their application would "severely impinge" upon the system of federalism. Justice Brennan rejected the cities' argument that federal antitrust law should be generally inapplicable to municipalities by virtue of the fact that municipal activities are intended to serve the public weal. Brennan noted that municipalities might make shortsighted economic decisions that could benefit their constituents but disserve others, and might cause severe economic hardship outside of the local government boundaries. Furthermore, he argued, municipalities do not occupy the same status in the system of federalism as the states; application of antitrust sanctions to their activities would not be nearly so injurious to federalism as would their application to activities of a state. For these reasons, Justice Brennan (joined by a majority of the court) concluded that, viewed in isolation from their relationship with the state, the activities of municipalities do not merit exemption from the antitrust laws.
In Part II of his opinion, which was joined by only three other justices, Justice *1029 Brennan considered the impact of the relationship between the municipality and the state upon the question of local government amenability to antitrust actions. He concluded that municipalities should be shielded from antitrust attack only when their actions reflect state policy to displace competition.
We therefore conclude that the Parker doctrine exempts only anticompetitive conduct engaged in as an act of government by the State as sovereign, or, by its subdivisions, pursuant to state policy to displace competition with regulation or monopoly public service. 435 U.S. at 413, 98 S.Ct. at 1137.
Under this view, a state retains broad power to shield activities from antitrust attack. That conclusion apparently stems from deference to the system of federalism, a policy that outweighs the federal policies expressed in the antitrust laws. In this regard, the Parker doctrine is not significantly upset by the decision in Lafayette. At the same time, though, Justice Brennan's conclusion sharply limits the antitrust immunity of municipalities and other state subdivisions. Such entities are within the exemption only if the state law under which they act expresses a "state policy to displace competition with regulation or monopoly public service." In Part III of his opinion, Justice Brennan explained this new standard:
This does not mean, however, that a political subdivision necessarily must be able to point to a specific, detailed legislative authorization before it properly may assert a Parker defense . . . [A]n adequate state mandate for anticompetitive activities . . . exists when it is found "from the authority given a governmental entity to operate in a particular area, that the legislature contemplated the kind of action complained of." (citation deleted). 435 U.S., at 419, 98 S.Ct. at 1138.
Justice Burger, concurring in Part I of the Court's opinion and in the judgment, would have narrowed the Parker exemption even further. While agreeing with the plurality that "the threshold inquiry in determining if an anticompetitive activity is state action of the type the Sherman Act was not meant to proscribe is whether the activity is required by the state acting as sovereign," 435 U.S., at 425, 98 S.Ct. at 1143, Justice Burger would have added the requirement that the implied exemption be "necessary in order to make the regulatory Act work, and even then only to the minimum extent necessary." This standard would, in effect, limit state power to bestow antitrust exemption upon the actors in the fields it chooses to regulate.
What emerges from the plurality and concurring opinions, then, are two rules. First, municipalities are not exempt from the antitrust laws solely by virtue of their status as governmental entities. Second, the activities of municipalities and others are exempt from the antitrust laws only if undertaken pursuant to acts of the state "as sovereign" that evince a state policy "to displace competition with regulation or monopoly public service."
Preparatory to exploration of the question of antitrust immunity for private parties, one other recent decision of the Supreme Court ought to be reviewed because it is closely connected with the principles announced in Lafayette.
Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975) involved an antitrust attack on a minimum fee schedule promulgated and enforced by the Virginia State Bar. The Supreme Court rejected the lawyers' claim of exemption from the antitrust laws, finding insufficient state action to bring the Parker doctrine into play. The court reasoned that the state had not required the fee schedule, and so the state action exemption did not apply. The implication, of course, was that the state could have legitimately required such a fee schedule; in that sense the core of Parker was left intact.
Finally, in one of the first lower court decisions to follow Lafayette, the U. S. District Court in Austin relied upon Lafayette in concluding that the acts of the Texas State Board of Public Accountancy were *1030 not exempt from antitrust attack, because the legislation from which it drew its authority was cast in permissive and not mandatory language. United States v. Texas State Board of Public Accountancy, No. A-76-CA-219 (W.D.Tex. May 5, 1978).
B. Cantor v. Detroit Edison Co.
With regard to the availability of antitrust immunity to a private party, the primary source is the Supreme Court decision in Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976). In that case, the Court faced, but did not fully resolve, the question of whether a private party may claim the state action exemption of Parker v. Brown. The case involved an antitrust attack on an allegedly anticompetitive light bulb distribution program conducted by a regulated public utility, a program sanctioned and, in a sense, required by the Michigan Public Utilities Commission (the practice expressed in a tariff could not have been terminated without commission approval).
In a divided opinion, the Court held the practice not exempt from antitrust attack because the decision to implement the policy was not imposed unilaterally upon the corporation by the state, and because the program was not essential to the success of the state's regulatory program.
Four justices argued that the state action exemption of Parker was not available to private parties, fearing that a rule permitting such immunity would give too much power to state legislatures to authorize exemptions from the antitrust laws. At least five justices, however, agreed that there may be situations where, because a private party has acted in obedience to unilateral state action, it would be unjust to impose antitrust liability. The upshot of this part of the opinion is that while the state action exemption of Parker v. Brown may not be available to a private party, there may nonetheless be cases where antitrust liability will not be imposed upon a private party who acts in response to a unilateral decision by the state. The court held that no such situation was presented by the case before it. The light bulb exchange program had been initiated by the defendant, and was not compelled by the Public Utilities Commission. Consequently, the Court found no unfairness in holding the defendant "responsible for the consequences of his decision" and in subjecting the corporation to antitrust liability.
The other part of Justice Stevens' opinion that received majority support held that state-sanctioned activity is immune from antitrust attack where it is essential to the success of the state's regulatory goals. The mere fact that a state regulatory agency has acquiesced in certain activities, however, does not clothe those activities with immunity.
The Court has consistently refused to find that regulation gave rise to an implied exemption without first determining that exemption was necessary in order to make the regulatory Act work, "and even then only to the minimum extent necessary." 428 U.S., at 597, 96 S.Ct. at 3121.
The Court found that Detroit Edison's light bulb exchange program did not meet this test, and hence was not exempt from the antitrust laws.
Justice Blackmun, concurring in the judgment, urged that the court apply a "rule of reason" in determining whether challenged activity falls within the ambit of the state action exemption. The harm produced by state-sanctioned activity, he argued, should be weighed against the benefits. That analysis is reminiscent of a substantive due process approach, to some failing to approximate a neutral standard, precisely what the court in Parker v. Brown was seeking to avoid.
In sum, Cantor holds, though with less than perfect clarity,[2] that a private party may claim immunity from antitrust liability only when the acts complained of are essential *1031 to the state's regulatory scheme, or when the acts result from decisions in which the state has played such a dominant role that it would be unjust to impose antitrust liability on the private party.
C. The Defendant Cities' Claim of Exemption.
In order for the cities of Dallas, Fort Worth, Grapevine, and Irving to succeed in their claim of exemption, they must show, according to Lafayette, that their implementation of the taxicab service at the airport was "pursuant to state policy to displace competition with regulation or monopoly public service." The cities have pointed to two state laws that, they argue, evince such a policy.
The cities point first to the Municipal Airport Act, Tex.Civ.Stats.Ann. arts. 46d-1-46d-22 (Vernon 1969). The act authorizes municipalities to establish and operate airports both within and without their boundaries. More particularly, article 46d-4 provides:
(a) In operating an airport . . . such municipality may . . . enter into contracts . . . and other arrangements for a term not exceeding forty (40) years with any persons:
. . . . .
(2) conferring the privilege of supplying goods, commodities, things, services or facilities at such airport . . . In each case the municipality may establish the terms and conditions and fix the charges, rentals or fees for the privileges or services . . .
Read in isolation, this statute is ambiguous, at least insofar as the legislative intent is concerned. It is possible to conclude that the legislature intended by this law to displace competition at municipally operated airports. But this article must be read in conjunction with article 46d-7, which provides:
(b) No ordinance, resolution, rule, regulation or order adopted by a municipality pursuant to this Act shall be inconsistent with, or contrary to, any Act of the Congress of the United States or laws of this State, or to any regulations promulgated or standards established pursuant thereto.
The conclusion is all but inescapable that the Texas legislature did not contemplate the implementation of anticompetitive activities by municipalities in their operation of airports. While it is conceivable that this latter provision was not intended to encompass the antitrust laws, its plain meaning cannot be ignored.
The defendant cities also point to the Texas law that specifies the powers of cities that have adopted a home rule charter. Tex.Civ.Stat.Ann. art. 1175 (Vernon 1963). That article provides, in pertinent part:
Cities adopting the charter or amendment hereunder shall have full power of local self-government, and among the other powers . . .
12. To prohibit the use of any street . . . of the city by any . . character of public utility without first obtaining the consent of the governing authorities . . . To determine, fix, and regulate the charges, fares, or rates of any person, firm, or corporation enjoying or that may enjoy the franchise . . and to prescribe the type of person to be furnished by such person
. . . . .
21. To regulate, license and fix the charges or fares made by any person owning, operating or controlling any vehicle of any character used for the carrying of passengers for hire.
It is difficult to find in these provisions any evidence of state policy to displace competition. At most, they seem to contemplate minimum regulation of public transportation by home rule cities with a view toward traffic safety. Moreover, the statute merely authorizes, it does not require. If these provisions are viewed as evincing a state policy to implement the type of activity complained of here, then they would afford almost blanket exemption from antitrust *1032 laws for the activities of municipalities with regard to transportation. That is precisely the result that the Supreme Court sought to avoid in Lafayette. While the court there did not require specific, detailed authorization for anticompetitive activity from the state legislature, it did require greater evidence of state policy than can be gleaned from article 1175.
Finally, the city of Dallas argues that antitrust immunity should flow from the fact that the Texas Constitution authorizes cities of over 5,000 inhabitants to adopt home rule charters. The argument is that, since the powers of such cities flow directly from the state constitution, these cities should be regarded as sovereigns, and their activities should be regarded as equivalent to those of the state itself and hence exempt from the antitrust laws under the Parker doctrine.
This argument stumbles upon the reasoning of Justice Brennan in Part I of his opinion in Lafayette. However "sovereign" home rule cities in Texas may be, they nonetheless carry the status of municipalities so far as federalism is concerned. A majority of the court in Lafayette found that, with respect to the activities of municipalities (viewed in isolation from their relationship with the state), the policies of federalism simply do not outweigh the federal policies expressed in the antitrust laws; hence their activities are not automatically exempt from the operation of the antitrust laws.
The defendant cities, therefore, have failed to show that their establishment and enforcement of taxicab service at the airport was pursuant to a state policy to replace competition "with regulation or monopoly public service." For that reason they do not succeed in their claim that these activities are exempt from antitrust attack.
D. The Private Defendants' Claim of Exemption.
The teaching of Cantor v. Detroit Edison Co., supra, is that the activities of a private party are exempt from the antitrust laws only if essential to the success of a state regulatory scheme, or if performed in compliance with a decision made by the state unilaterally.
In its motion to dismiss, Surtran Taxicabs, Inc. (Surtran) argues that it performs the taxicab service here pursuant to a state policy to displace competition in the service of taxis from the airport. That policy, Surtran argues, is expressed in the Motor Bus Act, Tex.Civ.Stat.Ann. art. 911a (Vernon 1964) and implemented by the Texas Railroad Commission, which has granted to Surtran a certificate of public convenience and necessity to transport passengers from the airport to points in the ten surrounding counties. The act authorizes the Railroad Commission to regulate persons "engaged in the business of transporting persons for compensation or hire over the public highways within the State of Texas," but does not apply "within the limits of any incorporated town or city, and the suburbs thereof." Surtran's argument for exemption based on this law stumbles on several obstacles.
To begin with, there is some doubt whether the Railroad Commission's authority reaches the activity at issue here, since the taxicab service operates largely within the cities of Dallas or Fort Worth and their suburbs. Moreover, the Texas Court of Civil Appeals, in Foster v. Railroad Commission, 215 S.W.2d 267 (Tex.Civ.App. Austin 1948), held that the Motor Bus Act does not even apply to taxicabs.
In addition, if the transportation at issue here is in interstate commerce (the question will be considered below), then the Railroad Commission lacks the power to regulate it. See Hi-Ball Transit Co. v. Railroad Commission, 27 F.2d 425 (N.D.Tex.1928) (Motor Bus Act held unconstitutional insofar as it applies to interstate commerce). More significantly, even if the Railroad Commission has the power to regulate the taxicab service involved here, Surtran must show that the allegedly anticompetitive practices were either mandated by the Commission or else essential to its regulatory scheme. Neither showing can be made.
*1033 The Railroad Commission, in granting the certificate, certainly did not require that Surtran carry on the permitted activities by means of an exclusive contract with Dallas and Fort Worth. At the very most, the Commission acquiesced in the arrangement, and that, according to Cantor, is insufficient state participation in the decisionmaking process to invoke the protection of Parker v. Brown. See also United States v. Pacific Southwest Airlines, 358 F.Supp. 1224 (C.D.Cal.), cert. dismissed, 414 U.S. 801, 94 S.Ct. 16, 38 L.Ed.2d 38 (1973) (state approval of airline merger does not immunize merger from antitrust attack). Finally, it cannot plausibly be argued that the arrangement between Surtran and the cities is essential to the regulatory program under the Motor Bus Act, if indeed such a program exists for taxicabs.
In summary, the defendants in this case do not enjoy a state-action exemption from the operation of the antitrust laws. Their arrangement for providing taxi service at the Dallas-Fort Worth Airport was neither pursuant to a state policy to displace competition, nor essential to any state regulatory scheme, nor required by the state acting as sovereign. Consequently, under recent Supreme Court decisions, defendants do not have this escape from the federal antitrust laws.
II. Interstate Commerce.
Several defendants argue that this case should be dismissed for lack of jurisdiction because the activities complained of are not within the reach of the federal commerce power. The general rule is that this jurisdictional requirement is met if the acts in question are either "in the flow of interstate commerce" or substantially "affect" interstate commerce. That formulation, however, provides only an initial compass heading. The remainder of the course is left for discovery in the facts of each case.
At the outset, though, it should be noted that the courts have consistently held that Congress, in enacting the Sherman Act, intended to avail itself of the full constitutional reach of the commerce power. See, e. g., United States v. Shubert, 348 U.S. 222, 75 S.Ct. 277, 99 L.Ed. 279 (1955). Defendants place great emphasis on the decision in United States v. Yellow Cab Co., 332 U.S. 218, 67 S.Ct. 1560, 91 L.Ed. 2010 (1947). That case involved antitrust claims against the operator of taxicab service at railroad stations in Chicago. In those portions of the opinion pertinent here, the court held that that part of the taxicab service that transported passengers between Chicago's two major railroad stations was in interstate commerce, but that the part of the service engaged in transporting passengers between the railroad stations and their homes and businesses was merely "local" in character and therefore not in interstate commerce.
There is a significant distinction between the taxi service involved in Yellow Cab and that involved here. In Yellow Cab, the taxis that transported passengers between the railroad stations and their homes did so as part of the general taxi service within the city; they did not serve the railroad stations exclusively. In the court's words:
None of them serves only railroad passengers, all of them being required to serve "every person" within the limits of Chicago. . . . To the taxicab driver, it is just another local fare. 332 U.S., at 231, 232, 67 S.Ct. at 1567.
The character of taxicab service provided by Surtran is decidedly different. Surtran taxis serve airport passengers exclusively, the overwhelming majority of whom are completing interstate journeys. (Plaintiffs contend that 90% of deplaning passengers at the airport are arriving from points outside of Texas.) In an earlier portion of its opinion, the court in Yellow Cab suggested that such service fell within the purview of the commerce power:
When persons or goods move from a point of origin in one state to a point of destination in another, the fact that a part of that journey consists of transportation by an independent agency solely within the boundaries of one state does not make that portion of the trip any less interstate in character. 332 U.S., at 228, 67 S.Ct. at 1566.
*1034 Von Kalinowski suggests that the type of service involved here, since it is significantly different from that involved in Yellow Cab, might properly be considered "in" interstate commerce. 2 J. Von Kalinowski, Antitrust Laws and Trade Regulation § 5.01[2] n.94 (1969 & Supp.1978). And at least one court has held that a taxicab service nearly identical to the one in this case serving Houston Intercontinental Airport is within the reach of the commerce power. Walker v. Houston, No. 73-H-648 (S.D.Tex. Nov. 29, 1976).
It is the conclusion of this court, then, that the taxicab service involved here is in interstate commerce, and consequently, that this particular jurisdictional requirement of the Sherman Act is satisfied.
III. Standing.
Defendants advance several arguments in support of their contention that plaintiffs lack standing to maintain this suit. First, they argue that because plaintiffs are taxicab drivers rather than operators of taxicab corporations, they lack the requisite business interest to satisfy standing requirements. Second, they argue that plaintiffs have suffered at most only an indirect injury as a result of the defendants' conduct. Finally, defendants urge that plaintiffs have no legal interest in the outcome of this suit by virtue of their failure to obtain from the Texas Railroad Commission a certificate of public convenience and necessity to operate taxicab service at the Dallas-Fort Worth airport. For the reasons that follow, the court finds all of these arguments unsound.
The general requirements for standing to maintain an action under the Sherman Act have been repeated in various forms by every court that has had to consider the issue. See, Higginbotham, Some Judicial Adjustments to the Rights of Recovery Under the Federal Antitrust Laws, 26 Ala.L. Rev. 309 (1974). The gist of the rule is that a claimant must show that a violation of the antitrust laws was the direct cause of injury to his or her business or property and that he or she is within the class of persons that Congress intended to protect. See, e. g., Hennessey v. NCAA, 564 F.2d 1136 (5th Cir. 1977); Tugboat, Inc. v. Mobile Towing Co., 534 F.2d 1172 (5th Cir. 1976). Before considering in further detail the defendants' arguments with respect to standing, it is worth reflecting in a general way upon the nature of the class of plaintiffs that seeks to maintain this suit.
The putative class is composed of some 2,000 persons who hold permits to operate taxicabs from various cities and towns in the Dallas-Fort Worth region. Most of them operate as independent contractors; they own their own vehicles, provide their own maintenance, and set their own work hours. They pay a weekly "stand fee" to the taxicab companies for the right to use the company's radio-dispatch service and to exhibit the company's name. Others are closer to being employees of taxicab companies, but even these drivers are paid according to the amount of fares generated, which, of course, is directly related to the number of passenger miles traveled; yet, at least in Dallas, they are required to carry passengers to the airport. As a result, they are forced to return from the airport with no passengers, to their obvious economic detriment.
Looking to the allegations of the complaint the proffered class of persons would be directly injured by the arrangement challenged in this suit. Even the taxicab corporations are not harmed as directly, particularly those who earn revenues by means of "stand fees." There can be no serious question that these claimants are within the ambit of persons that the antitrust laws are designed to protect. Consequently, the various objections made by defendants to plaintiffs' standing to sue must be viewed with skepticism.
Surtran's argument that plaintiffs lack standing because they are not corporations seems to be based on the fact that only a corporation could have submitted bids for the privilege of serving the airport in the first place. The argument is circular, and there is no statutory or judicial precedent to support it. There is simply no requirement *1035 that a Sherman Act claimant be a business entity. The requirement is simply that claimants show injury to their business, and this showing has been made here.
Defendants' argument that plaintiffs have no legal interest in the outcome of this suit because of their failure to obtain certificates of public convenience and necessity from the Texas Railroad Commission is equally unavailing. To begin with, there is a significant question as to the power of the Railroad Commission to regulate the taxicab service at issue here, both because it is in interstate commerce (see part II. of this Memorandum) and because decisions of the Texas courts have questioned the applicability of the Motor Bus Act to taxicab service (see part I. of this Memorandum). Moreover, as plaintiffs point out, it would have been futile for the plaintiffs here, or the taxicab companies with which they are associated, to obtain such certificates, for the contract and city ordinances that are the subject of this suit would still have prevented their effective implementation. While standing is both a constitutional and prudential matter, it is in its prudential dimension (to which this argument is addressed) a fundamentally practical concept. Denial of standing should not be premised on failure to obtain a useless document from an agency arguably without power to issue it.
In sum, plaintiffs here have adequately alleged a direct injury to their business, and they are within the sphere of protection contemplated by the antitrust laws. Consequently, they have standing to maintain this suit.
IV. Statute of Limitations.
Several defendants argue that maintenance of this suit is barred by the statute of limitations. Section 4B of the Clayton Act, 15 U.S.C. § 15b prescribes a four year limitations period for treble damages actions, and this suit was commenced on May 22, 1978, more than four years after the contracts at issue here were entered into. Plaintiffs contend, however, that as a result of overt acts by the defendants in enforcing the alleged monopoly, their cause of action has continued to accrue. The point is well taken.
The critical question is when plaintiffs' cause of action accrued for purposes of section 4B of the Clayton Act. The Supreme Court set forth its analysis of this issue in Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971). The court there reasoned as follows:
Generally, a cause of action accrues and the statute begins to run when the defendant commits an act that injures a plaintiff's business. . . . In the context of a continuing conspiracy to violate the antitrust laws . . . this has usually been understood to mean that each time a plaintiff is injured by an act of the defendants a cause of action accrues to him to recover the damages caused by that act and that, as to those damages, the statute of limitations runs from the commission of the act. 401 U.S. at 338, 91 S.Ct. at 806.
In Imperial Point Colonnades Condominium v. Mangurian, 549 F.2d 1029 (5th Cir. 1977), cert. denied, 434 U.S. 859, 98 S.Ct. 185, 54 L.Ed.2d 132 (1977), the Fifth Circuit, citing Zenith, held that a 1975 claim alleging illegal tying arrangements in contracts dating as far back as 1969 was not barred by limitations because a new cause of action arose each time the defendant enforced the contracts by collecting rent. The court there reasoned that "[i]t seems reasonable to us not to permit a defendant to argue that a suit to recover damages caused by his recent acts is barred because a pre-limitations contract . . . purports to authorize the commission of such acts." 549 F.2d at 1041.
The reasoning of Mangurian is apposite here; but the recent decision in El Paso v. Darbyshire Steel Co., 575 F.2d 521 (5th Cir. 1978) is not. El Paso involved a contract to supply steel for a construction project. The court distinguished Mangurian on the ground that any damages that might result from the steel supply contract "were provable with certainty" on the date it was signed. 575 F.2d at 523. No such argument *1036 can be made about the taxicab service arrangement here. One key element of the alleged conspiracy is the enforcement by defendants of the contracts and ordinances involved here, including the levy of fines against members of the plaintiff class who attempted to pick up passengers at the airport. The plaintiffs' claim continued to accrue each time they were denied the right to pick up passengers. Consequently, the statute of limitations does not bar the recovery of damages suffered during the four years before the filing of this suit.
V. Private Property.
Defendants argue that their combination which grants an exclusive right to pick up passengers on their property (D/FW airport) cannot be subjected to antitrust scrutiny. The court has already discussed the present degree of insulation from the federal antitrust laws enjoyed by a Texas municipality qua municipality. This argument is addressed to the rights of the cities as land owners. The distinction is a vital one. Many of the cases relied upon by defendants, and which indeed seem to support them are bottomed on the Parker v. Brown exemptive notion. City of Lafayette has proved that foundation to have been weak. Yet not all such cases were so rooted. Some present instead judicial efforts to resolve supposed conflicts between the rights of a property owner and the Sherman Act as well as judicial fiat that in proffered factual situations the combinations were reasonable as a matter of law. This oddity is noted not to slake the curious but to make plain that no precedent today fully controls this case.
A. Per Se Legality for Location Exclusion.
In 1905 Justice Harlan writing for an unanimous court in Donovan v. Pennsylvania Co., 199 U.S. 279, 26 S.Ct. 91, 50 L.Ed. 192 (1905) found no illegality in an exclusive arrangement between the Pennsylvania Company and the Parmelee Transfer Company. Parmelee was given exclusive access to a favored position within Pennsylvania's Chicago railroad station. Excluded hackmen attacked the combination in defending a suit in equity charging a nuisance. Justice Harlan did note that the exclusive contract was not ". . . a monopoly in the odious sense of the word . . ." id. at 297, 26 S.Ct. at 95; however, the decision to enjoin the defendant taxicab operator from soliciting passengers was bottomed on general principles of property law. The Sherman Act was not the principal focus of the opinion. Regardless of that fact and despite the fact that Donovan preceded maturation of the rule of reason concept,[3] a careful reading reveals a judicial decision with benefit of a developed record that the combination was reasonable.
In United States v. Yellow Cab Co., 332 U.S. 218, 67 S.Ct. 1560, 91 L.Ed. 2010 (1947), the court reversed a trial court dismissal of an attack upon conduct alleged to unreasonably restrain competition for the exclusive right to provide taxi service between Chicago's two major railroad stations. The court, in rejecting an argument that the conduct was legal under Donovan, noted that the restraint here was in competition for the exclusive right, stating ". . . [i]t is true, of course, that exclusive contracts for the transportation service in question are not illegal. Donovan v. Pennsylvania Co., 199 U.S. 279, 26 S.Ct. 91, 50 L.Ed. 192."
Why this exclusive contract should enjoy a virtual judicial exception from antitrust scrutiny is not clear. There are, of course, two possible foundations for this result, distinct in origin and purpose.[4] They must be *1037 identified now if not in the past because we must learn what the erosion of state "immunity" has carried with it.
Some decisions have cited Donovan but have equally relied upon immunity of instrumentalities of state governments or other immunities. For example, in E. W. Wiggins Airways, Inc. v. Massachusetts Port Authority, 362 F.2d 52 (1st Cir. 1966), the First Circuit cited both the Seventh Circuit opinion in Parmelee Transportation Co. v. Keeshin, 292 F.2d 794 (7th Cir. 1961) and Donovan, but also noted:
. . . the only conduct of the defendants, Butler or Butler-Boston, alleged to have been in violation of the antitrust laws had to do with their dealings with the Authority in the exercise of a governmental function. . . . 362 F.2d at 56.
The second foundation for the terminal line of cases seems to be an effort to deal with the occasional factual circumstance that ownership of land may, because of its unique location or other property attributes, give to the landowner a specie of natural monopoly. It supports the idea that a contract that merely transfers exclusivity inherent in the ownership of real property is per se legal. These decisions do not articulate their doctrinal base. In Export Liquor Sales, Inc. v. Ammex Warehouse Co., 426 F.2d 251 (6th Cir. 1970), the owner of a tunnel was held not to violate the Sherman Act by granting to a certain liquor salesperson the exclusive right to sell liquor in the tunnel. Judge McCree writing for the panel noted simply:
Despite its age, Donovan enjoys continued vitality. Id. at 252.
Why such a contract is immune from antitrust scrutiny was not stated by the Sixth Circuit in Export Liquor nor in any of the cases it relied upon. This type of fiat has led to untoward distinctions by other courts seeking to avoid its reach. In TV Signal Co. of Aberdeen v. American Telephone and Telegraph, 462 F.2d 1256 (8th Cir. 1972), the Eighth Circuit was confronted by an argument that AT&T did not have to sell to plaintiff access to its privately-owned utility poles. The court found that the defendants' private property argument did not support dismissal, and Export Liquor was distinguished on the ground that the owner of the tunnel was not a competitor of the plaintiff. The reality of the found difference is unclear. The parties in TV Signal, while in the same general field of communications, were not in the same business.
Export Liquor also relied upon Savon Gas Stations Number Six, Inc. v. Shell Oil Company, 309 F.2d 306 (4th Cir. 1962). In Savon, the Fourth Circuit upheld a restrictive covenant in a shopping center lease. The covenant's only effect there, however, was to deny prospective customers direct access to plaintiff's gas station. The decision does not insulate such covenants from scrutiny but finds the covenant to be reasonable as a matter of law. Significantly, Savon is only the tip of another iceberg the use of restrictive covenants in shopping center development. That body of law is not wholly inapposite. See, Dalmo Sales Co. v. Tysons Corner Regional Shopping Center, 308 F.Supp. 988 (D.D.C.), aff'd, 139 U.S.App. D.C. 22, 429 F.2d 206 (1970). See, also, Final Order, Tysons Corner Regional Shopping Center, [1973-1976 Transfer Binder] Trade Reg.Rep. ¶ 20,933, at 20,777 (1975).
The very notion of property ownership contains the right to enjoy to the exclusion of others the attributes of that property. In that property sense the exercise of "monopoly" power is permissible. But that is not necessarily monopoly power in the sense of the Sherman Act. A second attribute of that property right would be the right to sell or transfer. So far so good, but there remains the question of whether there is a principled distinction between a contract creating the exclusive right to deal by denying to all others the right to enter on land in order to compete and a contract that depends for its exclusivity only on an agreement not to deal with others. That is, why is one but not the other subjected to antitrust scrutiny? It may well be that such scrutiny may result in a great number of determinations that such a combination is *1038 not unreasonable under the Sherman Act, but until the courts have had sufficient experience to conclude that they are inherently and inevitably reasonable, they ought not be dispatched on Rule 12(b) motions without any inquiry.
The natural monopoly argument appears to be a thread through the cases whose strength was not affected by cutting parallel and reinforcing threads of state action exemption. At the same time, however, the erosive force of Cantor and Lafayette has served to expose the thread and it must be independently examined. That it must be examined under the Sherman Act means only that its legality ought to be reviewed; not that it is illegal.
One can argue that the defendants could themselves alone have furnished the transportation; that accordingly, contracting for another to perform the same service has not displaced any competition. The argument would continue that to the contrary, because the exclusive contract was awarded by open bidding, competition for the service was actually enhanced. This argument is not without strength. A supplier of services or products may, consistent with the Sherman Act, agree with a distributor that it will not appoint a second distributor in a defined territory; the manufacturer may also with equal freedom terminate that distributor and replace it with another or by vertical integration distribute itself. In neither case is there a restraint of trade. True, there may be some reduction in intrabrand competition, but a manufacturer enjoys a natural monopoly in its own product and no competition in the product line is restrained.
The analogy of the natural monopolies in one's own product to that conferred by unique location is apt as far as it goes. The right of the manufacturer to a "downstream" exclusive arrangement with a distributor assumes that the other denied distributors have access to competing products; otherwise, even this transfer of a natural monopoly is questionable. By this reasoning the right of the defendants to grant access on an exclusive basis supposes that the other denied suppliers have access. Moreover, the absence of antitrust consequences in distributor substitutions assumes the termination is not for a purpose itself illegal under the antitrust laws; e. g., to punish for failure to adhere to resale prices.
B. The Property Right of the Cities.
The central premise of the cities' argument is that as owners of the airport, they enjoy a right of exclusion much like the owner of the tunnel in Export Liquor. The force of Export Liquor is reduced here, however, because the right to exclude others has been substantially relinquished by dedication to a use at least quasi-public in nature. That is, the essential bundle of property rights is here substantially less.
The right of exclusion, for example, is subject to the First Amendment rights of those who would use the public forum the cities have created. See, International Society for Krishna Consciousness v. Dallas Fort Worth Regional Airport Board, 391 F.Supp. 606 (N.D.Tex.1975). And in a factual situation nearly identical to that presented here, the Seventh Circuit in Chicago Area Military Project v. Chicago, 508 F.2d 921 (7th Cir. 1975) held that Chicago's O'Hare airport was a public facility.
The City's claim that the public receives a limited invitation to use O'Hare Airport for travel purposes only is not supported by the evidence, nor do we find it realistic . . . [T]he fact is that great numbers of people are freely admitted to the public areas of the terminal buildings . . . 508 F.2d at 925.
There would not seem to be any significant difference between the airport discussed there and the Dallas-Fort Worth airport.
In addition, the cities' contention that the airport grounds are private property is undermined by a provision in the contract between the cities to establish the Surtran System. Paragraph Nine of that contract provides:
The acquisition of any land or interest therein pursuant to this Agreement . . are hereby declared to be public and governmental functions exercised for a public *1039 purpose . . .. All lands and other property and privileges acquired are hereby declared to be acquired for municipal, public and governmental purposes.
The teaching of the First Amendment airport cases for our present purposes is not that the cities as owners of the airport do not have property rights; because they obviously do. Nor is the teaching that those property rights are so insufficient that no one can be excluded from the airport grounds.[5] The lesson is that the property right to selectively exclude is subordinate to rights enjoying higher relative rank. That is, these property interests obviously are subordinate to the congressionally mandated policy of the Sherman Act at least when the asserted property interests are so diluted by public dedication. It follows that the validity of the contracts at issue turns on traditional antitrust inquiry into the reasonableness of the restraint one factor of which is the property interests to be protected. The absence of restraint on the face of the complaint, as in many cases where a manufacturer simply substitutes one distributor for another, is not apparent. Nor is it clear now as a matter of law, assuming as we must at this stage of the case that all alleged facts are true, that an unreasonable restraint of trade has not been created.
This analysis does not turn wholly on the rights of the cities to exercise any right they may have to forbid entry for pick up and delivery at the air terminals. The cities of Grapevine and Irving have adopted by ordinance the accused regulations providing that only holders of permits issued by the airport board may provide ground transportation from the airport.[6] Why cities with no ownership interest have joined in cannot be determined on a Rule 12 motion. See discussion below in part VII. of this Memorandum.
VI. Parties.
The final argument advanced by Surtran in support of its motion to dismiss is that plaintiffs have failed to join the Texas Railroad Commission as a defendant in this action. In light of the discussion concerning the question as to the Commissioner's jurisdiction to govern the activities at issue here, the argument that the Commission is a necessary party to this action is without merit.
*1040 VII. Irving and Grapevine.
The cities of Irving and Grapevine are in a somewhat unique position with regard to this lawsuit. Portions of the airport are located within the boundaries of these cities; otherwise, they are connected with the activities challenged here only by virtue of their adoption by ordinance of the airport Code of Rules and Regulations (see part V. above). Irving contends that under the Municipal Airport Act its adoption of the code is of no legal effect. Irving cites the following provision of that Act:
To the extent that an airport or other air navigation facility controlled and operated by a municipality is located outside the territorial limits of the municipality, it shall . . . be under the jurisdiction and control of the municipality controlling or operating it, and no other municipality shall have any authority to charge or exact a license fee or license tax for operations thereon. Tex.Civ.Stat.Ann. art. 46d-7 (Vernon 1969).
The problem with the argument is that article 46d-7 does not prohibit Irving from exercising any authority at the airport; it prohibits only the charging of a license fee or occupation tax. Thus if a driver were prosecuted by Irving for picking up a passenger at the airport, it is at least problematic whether he would be able to defend on the basis of article 46d-7. At this stage of the proceedings, then, Irving and Grapevine cannot be dismissed as defendants in this suit. Their lending of their enforcement regime to the exercise by the cities of Fort Worth and Dallas of a right to exclude from owned property raises further questions not answerable in a Rule 12 motion, including the question of a concerted refusal to deal. See, Klor's, Inc. v. Broadway-Hale Stores, Inc., 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959); Joseph E. Seagram & Sons v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71 (9th Cir.), cert. denied, 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970).
Conclusion
None of defendants' arguments supports dismissal of this suit. There is no warrant for carving an exception from the federal antitrust laws for the cities' delivery of ground transportation at the airport. This opinion does not hold that the present arrangement between Surtran and D/FW is illegal; it only holds that it must stand for antitrust inspection.
When this case is stripped bare of the legal complexities of these thirty pages, the result is both easily stated and hardly startling. If the cities wish to supply the ground transportation to one of the largest airports in the world in competition with those in the business of ground transportation, it must play by the same competition rules as others. It may be that the cities by doing so will not only increase their return but also by competition improve the quality of services to the patrons of the airport. The entrepreneurial spirit that created this airport must subscribe to such types of results. So does the Sherman Act.
The motions to dismiss filed by Surtran Taxicabs, Inc. and by the Cities of Dallas, Fort Worth, Grapevine, and Irving are therefore DENIED. A hearing on class certification will be held before February, 1979.
NOTES
[1] Because the thrust of this Memorandum is whether the antitrust laws are applicable, it does not attempt inquiry separate from § 1 into the merits of the § 2 claim.
[2] If a studied vagueness, its inclusion is not necessarily unwise. The development of a judicial consensus for government goals in a regulated economy may need academic jousting and case-by-case fleshing, both nourished by the vague phrase.
[3] The Sixth Circuit in 1898 (J. Taft) did introduce a concept of reasonableness, see, United States v. Addyston Pipe & Steel Co., 85 F. 271 (6th Cir. 1898), mod. 175 U.S. 211, 20 S.Ct. 96, 44 L.Ed. 136 (1899), but the idea did not receive the imprimatur of the Supreme Court until 1911, six years after Donovan, in United States v. Standard Oil Co., 221 U.S. 1, 31 S.Ct. 502, 55 L.Ed. 619 (1911).
[4] Unreasoned obedience of lower courts is another possibility, but needs no discussion here. The cases are sometimes called the terminal cases.
[5] One aspect of the complex interplay of property rights with First Amendment rights was discussed by this court in International Society for Krishna Consciousness v. State Fair of Texas, (N.D.Tex.1978), 461 F.Supp. 719. It is significant that the first amendment rights of the plaintiffs here are not wholly insubstantial under a recent line of cases finding commercial speech within the ambit of first amendment protection. See, Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 96 S. Ct. 1817, 48 L.Ed.2d 346 (1976) and Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977).
[6] The portions of Dallas-Fort Worth Airport Board Resolution 71-172, October 5, 1971, pertinent here read as follows:
Chapter Two, Section 8, Solicitation of Ground Transportation.
It shall be unlawful for any person to solicit ground transportation business on the Airport, or to pick up passengers or baggage for hire on the Airport without a ground transportation permit from the Airport Board, or without having an Airport Board Concession License or Franchise therefor, and to the extent of any operations outside the Airport Boundaries, without a license, permit or franchise from any City through which said business is conducted if lawfully regulated by the ordinances of any such city.
Chapter Three, Section 4. Soliciting.
(c) It shall be unlawful to solicit any business or trade, including transportation of persons or baggage for hire on the Airport without a permit, concession or franchise from the Airport Board, and, to the extent of any operations outside the Airport Boundaries, without a license, permit, or franchise from any city through which said business or trade is conducted if lawfully regulated by the ordinances of any such city.
Chapter Four, Section 3. Penalty, Continuing Violations.
The violation of any provision of this Code where an act or failure to act is made unlawful or is otherwise prohibited, shall be punished by a fine not to exceed Two Hundred Dollars ($200.00), and each day a violation shall continue shall constitute a separate offense; provided, however, where the offense is one for which a penalty is fixed by state law, the latter penalty shall govern. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266569/ | 441 Pa. 116 (1970)
Zabek Estate.
Supreme Court of Pennsylvania.
Argued March 19, 1970.
October 9, 1970.
*117 Before BELL, C.J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Saul Davis, for appellants.
J. Craig Kuhn, with him James L. Bruggeman, and Wilner, Wilner & Kuhn, for appellees.
OPINION BY MR. CHIEF JUSTICE BELL, October 9, 1970:
*118 This appeal involves the ownership of two bank accounts totaling $33,865.00.
John Zabek died testate on September 14, 1965, leaving an estate of approximately $22,000.[*] Decedent's will, dated July 14, 1962, was duly probated and Walter Zambek,[**] testator's eldest living son, was appointed executor of the estate. Testator's will provided that his estate be distributed equally among his nine children and that the issue of any deceased child take per stirpes. On January 8, 1967, Walter Zambek died, before any account had been filed in his father's estate. Walter was survived by his widow and three children, two of whom are the present appellants. After Walter's death, two of his brothers, Michael and Frank Zombek, were appointed administrators d.b.n.c.t.a. of the estate of their father, John Zabek.
On May 24, 1968, Michael and Frank Zombek in their fiduciary capacity filed a petition in the Orphans' Court which alleged that a part of the funds of the testator, John Zabek, which the deceased executor, Walter Zambek, held in his fiduciary capacity for the benefit of all the testator's beneficiaries, was distributed without administration to some of the beneficiaries under their father's aforesaid will. The administrators asked that a citation be issued directing these distributees to account for the funds in question. On November 29, 1968, the Orphans' Court issued the requested citation.[***]
The testimony presented at the hearing showed that on July 12, 1962 two days before he executed his will and over three years before his death the testator, *119 John Zabek, accompanied by his eldest living son, Walter Zambek, and by Walter Tafelski, went to the Bridgeville Trust Company. After a discussion with the President of said Company, John Zabek and Walter Zambek opened a joint checking account in the amount of $18,865 and a joint savings account in the amount of $15,000. All of the money deposited in each of these accounts was the sole personal property of John Zabek. Both John Zabek (the testator) and Walter Zambek signed the hereinafter quoted bank signature cards for each of the above-mentioned accounts:
"ZABEK, John or Walter Zambek
It is agreed and understood that any and all sums that may from time to time stand on this account, to the credit of the undersigned depositors, shall be taken and deemed to belong to them as joint tenants[*] and not as tenants in common; and in case of the death of either, The Bridgeville Trust Company is hereby authorized and directed to deal with the survivor as sole and absolute owner thereof."
The testimony showed that the testator requested joint accounts and that before the bank signature cards were signed, William McDivitt, Jr., President of the Trust Company, clearly explained to the testator and his son, Walter, that upon the death of either of them the money remaining in each account would be the sole property of the survivor[**] Tafelski in part of his testimony corroborated McDivitt's testimony, but Tafelski's testimony as a whole was so equivocal as to be of very little value.
The Orphans' Court permitted the petitioners to introduce, over appellants' objection, parol evidence to prove that their father, the decedent, lacked the donative *120 intent required to establish an inter vivos gift, because the money in question was deposited for the purpose of enabling Walter to take care of and manage their father's financial affairs until the latter's death, at which time it had been orally agreed between their father and their brother Walter that whatever money was left in the accounts was to be distributed to decedent's children equally.
The Orphans' Court held (1) that the money remaining in these bank accounts was part of the testator's estate and (2) that Mary Zambek, Walter's wife, and Harry Zambek, one of Walter's children, were in possession of the above-mentioned funds. Accordingly, the Orphans' Court ordered Mary Zambek and Harry Zambek to deliver this money to the administrators of the estate of the testator, John Zabek. The Court en banc affirmed, one Judge dissenting.
Appellants contend in this appeal that the Orphans' Court erred because (1) it did not consider the opening of the aforesaid accounts with the accompanying signature cards prima facie evidence of a gift inter vivos; (2) it did not hold that the parol evidence rule was applicable to the present factual situation and barred the present claim; (3) it did not hold that the testimony of Stanley and Frank Zombek was inadmissible because it violated the "Dead Man's" Act, Act of May 23, 1887, P.L. 158, 28 P.S. 322; and (4) in the alternative, that even if the aforesaid oral testimony of the petitioners (appellees) as to the oral agreement was admissible, it was insufficient to overcome the prima facie evidence of a gift inter vivos to the joint tenant.
This Court, in a score of cases, has recently reviewed and reiterated the principles applicable to inter vivos gifts, particularly where the subject matter of the gift is a jointly-owned bank account. See, inter alia, Slavinski Estate, 420 Pa. 504, 218 A. 2d 125; Brozenic *121 Estate, 416 Pa. 204, 204 A. 2d 918; Bunn Estate, 413 Pa. 467, 198 A. 2d 518; Fenstermaker Estate, 413 Pa. 645, 198 A. 2d 857; Sivak Estate, 409 Pa. 261, 185 A. 2d 778; Cox Estate, 405 Pa. 444, 176 A. 2d 894; Rogan Estate, 404 Pa. 205, 171 A. 2d 177; Berdar Estate, 404 Pa. 93, 170 A. 2d 861; Amour Estate, 397 Pa. 262, 154 A. 2d 502; Martella Estate, 390 Pa. 255, 135 A. 2d 372; King Estate, 387 Pa. 119, 126 A. 2d 463; Furjanick Estate, 375 Pa. 484, 100 A. 2d 85; Fell Estate, 369 Pa. 597, 87 A. 2d 310. The principles with respect to inter vivos gifts are well settled; their application, especially when dependent upon a bank's signature card,[*] is sometimes difficult.
In Brozenic Estate, 416 Pa., supra, this Court said (pages 206-207): "In Bunn Estate, 413 Pa., supra, the Court quoting from numerous recent decisions, said (pages 469-470): `". . . `. . . "`". . . `To constitute a valid gift inter vivos . . . two essential elements are requisite: An intention to make an immediate gift and such an actual or constructive delivery to the donee (a) as to divest the donor of all dominion and control, or (b) if a joint tenancy is created, as to invest in the donee so much dominion and control of the subject matter of the gift as is consonant with a joint ownership or interest therein.'"'"' Accord: Secary Estate, 407 Pa. 162, 180 A. 2d 572; Balfour v. Seitz, 392 Pa. 300, 140 A. 2d 441.
"`". . . In Berdar Estate, 404 Pa. 93, 170 A. 2d 861, the Court said (page 95): `. . . When a depositor creates a joint savings account with right of survivorship, *122 and a signature card so stating is signed by both parties, a prima facie inter vivos gift[*] to the other party and of the creation of a joint tenancy with right of survivorship is established: Furjanick Estate, [375 Pa. 484, 100 A. 2d 85]; Lochinger v. Hanlon, 348 Pa. 29, 33 A. 2d 1.'. . ."
"`. . . Although the decision in this class of case often depends upon the exact wording of the deposit account and the signature card and the agreement, if any, accompanying it, the law and the proof required in such cases are well settled: Sivak Estate, 409 Pa. 261, 185 A. 2d 778; Cox Estate, 405 Pa. 444, 176 A. 2d 894. . . .'"
We are in agreement with appellants' first contention, namely, that the bank signature cards executed by both joint tenants established a prima facie gift to Walter Zambek.[**] While the facts and circumstances existing at the time of the opening of the account and the signature of the deposit cards were admissible, we must now consider whether the evidence introduced in the lower Court by appellees, i.e., Walter's subsequent statements to his brother, was admissible, and, if so, whether it was sufficient to overcome the prima facie gift.
Appellants' second contention is that parol evidence, i.e., Walter's subsequent statements, was not admissible to contradict the prima facie gift because of the parol evidence rule.
In Dunn v. Orloff, 420 Pa. 492, 218 A. 2d 314, this Court said (pages 495-496): "In 1924, the present statement *123 of the Pennsylvania parol evidence rule was enunciated by this Court in the landmark case of Gianni v. Russell & Co., Inc., 281 Pa. 320, 126 A. 791 (1924). In Gianni, it was held that if a written agreement was intended by the parties to encompass the entire understanding between the parties, then evidence of a contrary nature, based upon an oral agreement at the time of the execution of the written agreement, was barred in the absence of fraud, accident or mistake. As later stated by former Chief Justice STERN in O'Brien v. O'Brien, 362 Pa. 66, 71, 66 A. 2d 309, 311 (1949): `That principle (the Parol Evidence Rule) is to the effect that, in the absence of any allegation of fraud, accident or mistake, "the writing constitutes the agreement between the parties, and its terms cannot be added to nor subtracted from by parol evidence:."' See also: Speier v. Michelson, 303 Pa. 66, 154 A. 127 (1931); United Refining Co. v. Jenkins, 410 Pa. 126, 189 A. 2d 574 (1963).
"In Gianni, however, the court provided for an exception by saying: `The writing must be the entire contract between the parties if parol evidence is to be excluded and to determine whether it is or not the writing will be looked at and if it appears to be a contract complete within itself. ". . . it is conclusively presumed that the whole engagement of the parties, and the extent and manner of their undertaking, were reduced to writing."' (281 Pa. at 323). From this language has developed an exception to the Rule, i.e., that parol evidence is admissible to explain and supplement a written agreement where such evidence clearly[*] shows that the writing in question was not intended to and did not properly state the entire agreement between the parties. Boyd Estate, supra; Allinger v. Melvin, 315 Pa. 298, 172 A. 712 (1934); Universal *124 Film Exchanges, Inc. v. Viking Theatre Corp., 400 Pa. 27, 161 A. 2d 610 (1960). As stated in Boyd: `. . . the parol evidence rule has never barred the introduction of clear, precise and convincing evidence to show that the party who seeks to enforce the written agreement according to its tenor has admitted and acknowledged that[*]the agreement as written did not express what the parties intended[**] and that what the parties intended was omitted from the written agreement by mistake or accident.' (Emphasis supplied) (394 Pa. at 233). . . . Before examining the trial testimony and pleadings to ascertain if, in fact[**] such an admission[fn**] exists, it must be noted that the burden was upon [the petitioners here, the appellees] to show that [Walter] admitted[**] that the [signature cards] did not express the entire agreement between the parties and such proof must be by `clear, precise and convincing' evidence:[*] Universal Film Exchanges, Inc. v. Viking Theatre Corp., supra. By such qualitative evidentiary standard must [appellees'] evidence be weighed."
An examination of the bank signature cards, especially when supplemented by the testimony of the Bank President as to their meaning and effect, discloses that at the time of opening of these accounts the depositors were expressly informed that any money deposited in the accounts by either of them was to be owned by them jointly and that "in the case of the death of either one of them, the sum on deposit belongs to the survivor."
The signature card in this case is almost identical with the card in Amour Estate, 397 Pa., supra. The bank signature card in Amour Estate provided: "It is understood and agreed that any and all sums that may from time to time stand in this account, to the credit *125 of the undersigned depositors, shall be taken and considered as belonging to them as joint tenants and not as tenants in common . . . The Beneficial Savings Fund Society of Philadelphia is hereby authorized and directed to deal with the survivors or survivor of us as the sole and absolute owners of such sums." In Amour Estate, the Court held the above-mentioned signature card to be a complete written agreement and accordingly stated that in the absence of fraud, accident or mistake parol evidence of a prior or contemporaneous representation or agreement was inadmissible to alter, vary or modify its contents.
Furthermore, two other decisions of this Court assist us in arriving at the conclusion that the signature cards in question represented the complete agreement of the parties. The bank signature card in Slavinski Estate, 420 Pa., supra, provided: "It is agreed and understood that any and all sums that may from time to time stand on this account, to the credit of the undersigned depositors, shall be taken and deemed to belong to them as joint tenants and not as tenants in common. . . This bank is hereby authorized and directed to deal with the survivor as sole and absolute owner thereof." In Slavinski Estate, this Court held that the signature card in question was not as clear in revealing donative intent as that in Amour Estate, 397 Pa., supra, because of the ambiguity arising from the crossed-out markings in front of one of the signers' names. Therefore, the language of the signature card in that case was not per se ambiguous but was made uncertain or ambiguous by the crossed-out markings. The Opinion of the Court clearly implies that if it were not for these additional markings, the Court would have concluded that the bank signature card represented the complete agreement of the parties, and the parol evidence rule would have been applicable.
*126 In Fenstermaker Estate, 413 Pa., supra, the bank signature card provided: "It is agreed and understood that any and all sums that may from time to time stand in this account, to the credit of the undersigned depositors, shall be taken and deemed to belong to them as joint tenants and not as tenants in common . . . and in case of death of either, the Bowmanstown Bank is hereby authorized and directed to deal with the survivor or survivors as sole and absolute owner or owners thereof." In Fenstermaker Estate, the Orphans' Court admitted parol testimony to show that when the decedent created the joint bank account in question no gift was intended. No objection to the admissibility of such evidence was made in the Orphans' Court, and hence no question as to its admissibility could have been raised before this Court. However, this Court, speaking through Mr. Justice JONES in a unanimous Opinion, said, "Under the circumstances, therefore, we will consider such evidence as though properly admitted." It is clear by necessary implication that this Court was of the opinion that the parol testimony was inadmissible in that case and would have so ruled had timely objection been made in the lower Court.
We hold that as to the question of the applicability of the parol evidence rule, the factual situation herein presented is ruled expressly by Amour Estate, 397 Pa., supra, and impliedly by Slavinski Estate, 420 Pa., supra, and by Fenstermaker Estate, 413 Pa., supra, and that the language of the bank signature cards clearly discloses the donor's (John Zabek's) donative intent.
The following evidence was offered by the petitioners (the appellees) and accepted by the Orphans' Court to show that Walter Zambek (executor and a joint tenant) had admitted, after the deposit, that the bank signature cards did not express the entire or even the real agreement between himself and his father. Stanley *127 Zombek, one of testator's sons, testified that Walter had told him, "Everything would be split up equally" among all the children at their father's death. Frank Zombek, one of testator's sons, and now one of his administrators, testified: "A. [Walter] came to my home and he said, `Frank, I have something to tell you.' I said, `Well, let's sit down and talk about it.' He said, `I had dad make the will.' He said, `Don't worry about a thing, everything is to be split up equally.' I said, `That's good.' Then it come to the money part, and he said, `We took the money, we put it on the table, and we counted it all.' So the next day they had put it into a shopping bag and taken it to the bank. He said, `I put some money in the bank, and I put some money in my checking account so I can pay the bills when my dad goes to the hospital, and I put some into a safe deposit box.' I said, `You're not allowed to do that, Walter,' and he said, `we won't have to pay any inheritance tax on it.' . . . Don't worry about a thing, Frank, everything will be split up equally.'"
The above-mentioned testimony was the only evidence of an admission by Walter Zambek (joint tenant) that the bank signature cards did not reflect the entire agreement between himself and his father. There was no testimony of any such statements by John Zabek, their father, the creator of these accounts. Furthermore, McDivitt, the bank's President, made a particularly relevant and convincing statement at the time of the opening of the aforesaid accounts informing John Zabek and Walter Zambek of the legal meaning and effect of these signature cards. Even if the testimony of the two witnesses, Stanley and Frank Zambek who were beneficiaries under their father's will and accordingly would have profited if the aforesaid bank accounts had been declared to be a part of their father's estate were considered, arguendo, to be admissible, it would *128 not suffice to meet the standard of clear, precise and convincing evidence required by our cases to overcome and rebut the prima facie evidence of the inter vivos gift. Compare Universal Film Exchanges, Inc. v. Viking Theatre Corp., 400 Pa. 27, 161 A. 2d 610; Boyd Estate, 394 Pa. 225, 146 A. 2d 816.
Decree reversed, each party to pay own costs.
Mr. Justice COHEN, Mr. Justice EAGEN and Mr. Justice ROBERTS concur in the result.
CONCURRING OPINION BY MR. JUSTICE POMEROY:
I concur in the decision of the Court, but since I reach the result by a somewhat different approach to the problem, I summarize herewith my reasons:
(1) I agree that the bank signature card establishing the joint account with right of survivorship between John Zabek and his son, Walter, in the form here employed constituted under our cases a complete written contract. The funds which went into the account being those of John, the contract was one of gift to Walter.
(2) While the validity of a gift may be challenged by proper evidence of lack of the requisite donative intent, lack of capacity on the part of the donor, or lack of completeness of the gift, no such attempts were made in this case.
(3) The testimony of John's other sons, Stanley and Frank, as to statements in the nature of admissions made by Walter, was objected to at the hearing by appellants. I agree with Judge HAY, dissenting in the court below, that the testimony was violative both of the parol evidence rule and of the so-called Dead Man's Act (Act of May 23, 1887, P.L. 158, 28 P.S. § 322) and should have been excluded. It was violative of the Act because, in seeking to reclaim the proceeds of the joint account Stanley and Frank were, of course, *129 attacking the gift of which John, the decedent, was donor and Walter, now deceased, was donee. Both donor and donee had an interest in maintaining the integrity of the gift; their right and capacity to enter into the transaction are presumed; both donor and donee, through their personal representatives, are parties to the record herein. In seeking to strike down the gift, "the interest of appellants of necessity must be adverse to that of decedent[s]." King v. Lemmer, 315 Pa. 254, 173 Atl. 176 (1934). Pronzato v. Guerrina, 400 Pa. 521, 531, 163 A. 2d 297 (1960); Katz v. Lockman, 356 Pa. 196, 51 A. 2d 619 (1947).
(4) The testimony of William Z. McDivitt, the president of the bank where the account was opened, on the other hand, stands in a different light. While not essential to prove a gift, his testimony was strongly corroborative of John Zabek's donative intent, and was unobjected to by any party. McDivitt's testimony did not violate the Dead Man's Act, since he was a disinterested witness as to both decedents, nor the parol evidence rule, since it was not offered to alter, revoke or amend the contract in question.
Mr. Justice JONES joins in this concurring opinion.
NOTES
[*] This amount does not include the money on deposit at testator's death in either of the two bank accounts.
[**] The family name was Zabek. However, various offspring subsequently changed the name to Zambek or Zombek.
[***] No citation was issued against the Estate of Walter Zambek (the deceased executor).
[*] Italics throughout, ours, unless otherwise noted.
[**] No objection was made to McDivitt's testimony.
[*] All these bank deposit cards are drawn primarily for the benefit of the bank. In Bunn Estate, 413 Pa. 467, the Court, in a footnote, said (page 471): "Banks can avoid a large amount of litigation by modernizing their signature card so that it will clearly set forth the exact status and the rights of the parties. Note the clearly worded signature card in Cox Estate, 405 Pa., supra." (Emphasis in original)
[*] Italics in Brozenic Estate, 416 Pa. 207.
[**] Hosfeld Estate, 414 Pa. 602, 202 A. 2d 69, relied upon by the Orphans' Court and the appellees, is clearly distinguishable. In Hosfeld, we expressly stated that no bank signature cards had been executed in connection with the establishment of the disputed bank accounts. Therefore, we were not presented with evidence of a prima facie gift, and, accordingly, the burden of proof was upon the party claiming an inter vivos gift of the account.
[*] Italics in Dunn v. Orloff.
[*] Italics, ours.
[**] Italics in Dunn v. Orloff. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374413/ | 5 Cal. 2d 237 (1936)
CENTRAL BANK OF OAKLAND (a Corporation), Respondent,
v.
FRANK H. PROCTOR et al., Appellants.
S. F. No. 15599.
Supreme Court of California. In Bank.
January 28, 1936.
John T. Wentz and Booth B. Goodman for Appellants.
Russell H. Pray, John F. McCarthy and Lionel B. Benas, as Amici Curiae on Behalf of Appellants.
Fitzgerald, Abbott & Beardsley for Respondent.
THE COURT.
This cause was taken over after decision in the District Court of Appeal, First Appellate District, Division Two, because of one of the issues involved herein, viz., whether section 2924 1/2 of the Civil Code, enacted in 1933, which section precludes the entry of a deficiency judgment unless one year, as distinguished from the former period of three months, has elapsed between the recordation of the notice of breach and election to sell and the date of sale under a deed of trust, may be applied to deeds of trust, executed *239 prior to the effective date of the section. The trial court and the District Court of Appeal concluded that the section should not be applied retroactively. [1] This is in accord with our decision in Brown v. Ferdon, L. A. No. 14775 (ante, p. 226 [54 PaCal.2d 712]), this day filed, wherein we held that the section could not be retroactively applied without doing violence to the "contract clause" of the Constitution. The decision in Brown v. Ferdon, supra, is determinative of the question in the instant case.
[2] During the trial the defendants, relying on the provisions of section 580a of the Code of Civil Procedure, also enacted in 1933, sought to introduce evidence regarding the market value of the property described in the deed of trust at the date of sale. The evidence was excluded. We find no error in the rulings thereon, for in Bennett v. Superior Court, 5 Cal. App. 2d 13 [42 PaCal.2d 80], hearing denied in this court, it was held that section 580a, supra, was without application to notes and deeds of trust antedating its enactment.
We adopt the remaining portions of the opinion prepared in the District Court of Appeal by Mr. Justice Sturtevant as and for the decision of this court.
"In an action to obtain a deficiency judgment after a sale had under a trust deed the defendants have appealed."
"The name of the plaintiff was formerly Central Savings Bank of Oakland but prior to the commencement of this action its name was changed to Central Bank of Oakland. Heretofore the plaintiff loaned to the defendants $45,000 and in evidence thereof they executed their promissory note dated January 21, 1932. By the terms of the note $100 was payable February 21, 1932, and $100 on the 21st day of each and every succeeding month thereafter until the 21st day of January, 1933, on which day the entire unpaid balance became due and payable. On the same day the note was made the defendants, as grantors, executed to Central National Bank of Oakland a trust deed in favor of the plaintiff as beneficiary. By its terms the trust deed conveyed a lot in Oakland and the apartment house standing thereon. Interest was paid to the 15th day of July, 1932, and $9.21 on account of future interest. * * *"
[3] "The defendants contend that under the terms of the deed the plaintiff agreed to accept the proceeds of the sale as payment in full. Freely conceding that such a contract could *240 have been made, nevertheless we think there is nothing in the deed that supports the contention of the defendants. The covenants contained in the deed on which the defendants base their contention are as follows: 'AND the grantee, or its successors or assigns, shall establish as one of the conditions of such sale, that all bids and payments for said property shall be made in like lawful money as aforesaid, and upon such sale it shall make, execute, and, after due payments made, shall deliver to the purchaser or purchasers, his or their heirs or assigns, a deed or deeds of the premises so sold, and shall apply the proceeds of sale thereof, in payment, FIRSTLY, of the expense of such sale, together with the reasonable expenses of this trust, including therein counsel fees, in lawful money, in an amount equal to five per cent of the amount secured hereby and remaining unpaid, which shall become due upon any default made by the said grantors in any of the payments aforesaid; and also such sums, if any, as said grantee, or said party of the third part shall have paid for procuring an abstract of, or for search of, the title to said premises, or any part thereof, subsequent to the execution of this Deed of Trust, and in payment, SECONDLY, of the said promissory note--and of the amount of the principal and interest thereon then remaining unpaid, and the amount of all other moneys, with interest thereon, herein agreed or provided to be paid by the said grantors; and the balance or surplus of such proceeds of sale it shall pay to the said grantors, their heirs, executors, administrators or assigns.' It will be noted that the covenant quoted contains no expression to the effect that the payments will be accepted 'in full'. On the other hand, the covenant does recite that the grantee '... shall apply the proceeds of sale thereof firstly, of the expense of such sale, together with the reasonable expenses of this trust. ...' For the reasons stated, and others not necessary to state, we think that the contention of the defendants would in effect place a strained construction on the terms of the trust deed."
[4] "In their amended answers the defendants set forth what purported to be contracts modifying the terms of the original contract. In effect the trial court held that no modified contract was proved. In so holding we think the trial court did not commit an error. On the 15th of March, 1933, the defendants were behind in their payments. The plaintiff was pressing them to comply with the terms of their contract. *241 Thereupon the defendant Frank H. Proctor wrote a letter dated March 15, 1933, to Mr. C.J. Gates, who was in charge of the property for the defendants, to pay to Central National Bank all moneys received from the property less current expenses. On the same date he wrote a letter to Central National Bank, directing it to pay said moneys to plaintiff to be credited on account of interest, etc. Thereafter on April 10, 1933, Mr. Proctor sent copies of said letters to the plaintiff. No written document signed by the plaintiff or its agents touching the subject-matter was offered in evidence, however, the defendants sought to prove that Mr. C. D. Bowman, who was on said date assistant cashier of the plaintiff, made certain oral promises to the defendants. It will be observed that the amounts ordered paid to the plaintiff were moneys which the plaintiff was entitled to receive under and by virtue of the original contract. The source from which those moneys came was a matter of no concern to the plaintiff. The letters written by Mr. Proctor do not show on their face any promise made either orally or in writing by the plaintiff. If the defendants would claim that these transactions constituted a written contract they failed to show any writing on the part of the plaintiff. The fact that the letters were signed by the defendants and not by the plaintiff did not establish a written contract. If they would claim that an executed oral agreement was made, such claim must fall for the proof shows that it was not executed. We think there was no evidence that the contract between the parties was modified. (Rottman v. Hevener, 54 Cal. App. 474 [202 P. 329].)"
[5] "During the trial the plaintiff offered in evidence, and over the objection and exception of the defendants the trial court admitted, a ledger sheet. The objection of the defendants was that no proper foundation therefor was made. The objection was well founded and it should have been sustained. (Chan Kiu Sing v. Gordon, 171 Cal. 28 [151 P. 657].) It follows that it was error to admit the sheet. However, the error was not prejudicial. On its face it showed the amount of the loan, $45,000. That item was admitted by the pleadings. It also showed the expenses, etc., of the trustee's sale and the disbursement thereof. The latter entries were made in the handwriting of Mr. Peterson, the witness on the stand, who produced the ledger sheet and who testified that he personally made the disbursements. On the card certain *242 payments on the debt of the defendants were set forth. We do not understand the defendants to claim that said payments were not made. Furthermore the burden rested on the defendants to introduce evidence of and concerning payments made by them. It follows that admitting the ledger sheet was not a prejudicial error."
[6] "The defendant Flora MacD. Proctor offered to prove that she signed the note and deed of trust in the case at bar for a particular purpose and that T. A. Crellin, the executive vice-president of the plaintiff bank, was advised and accepted her signature for the purpose of subjecting her community interest, if any she had, in the real property in question, and that she assumed no personal liability by the signing of said note or deed of trust and that she should have been permitted to introduce that proof. Before going further it should be noted that the pleadings presented no question of fraud, therefore it is not necessary to consider whether fraud was or was not committed. In the absence of any provision contained in the contract limiting her liability, we think that Mrs. Proctor may not complain of the court's ruling. (Hammond Lumber Co. v. Danziger, 2 Cal. App. 2d 197, 200 [37 PaCal.2d 517].)"
[7] "After the notice of default was recorded and after the defendants had been notified in a letter from the attorneys that the arrangement for the payment of the rent to the plaintiff was terminated, the defendants paid $868.19 to the Central National Bank of Oakland. The evidence shows affirmatively that said moneys were not paid to the plaintiff. Nevertheless the defendants complain because the trial court did not allow the jury to pass on the question as to whether such moneys had been paid to the plaintiff. The record shows nothing to the contrary but that the Central National Bank received and now holds the $868.19 on some obligation not germane to the instant litigation. As stated hereinabove, if the defendants claimed that said payments were made on the note dated January 21, 1932, and should have been applied thereto, the burden rested on them to show the facts. They neither did so nor offered to do so, but relied solely on the fact that Central National Bank of Oakland was at one time the trustee named in the trust deed. In that connection the evidence shows affirmatively that it ceased to be such trustee on April 21, 1933. However, by the terms of the contracts *243 between the parties no covenant authorized payments due the plaintiff to be collected by the trustee; but the note provided that the principal and interest were payable to the plaintiff at its office and by the terms of Mr. Proctor's letters the proceeds from the apartment house were to be credited only after they were received by the plaintiff. Under the foregoing facts we think it is clear that after the notice of default the plaintiff received no further payments from the defendants and did not waive the default, and furthermore that there was no evidence received or offered showing that a deficiency judgment was waived."
The judgment is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374435/ | 12 Cal. App. 2d 98 (1936)
CHARLES ISAACS et al., Respondents,
v.
H. M. JONES et al., Defendants; J. EDGAR ROSS, Appellant.
Civ. No. 10010.
California Court of Appeals. First Appellate District, Division Two.
February 24, 1936.
J. Edgar Ross, in pro. per., for Appellant. *99
Arthur T. Stollmack and Samuel V. Goldfarb for Respondents.
Spence, J.
The intervener, J. Edgar Ross, has appealed upon the judgment roll from a judgment awarding to plaintiff Charles Isaacs the sum of $707.01, which was the balance deposited with the clerk of the court by the receiver appointed in the above-entitled action.
Appellant's brief contains the following headings: "Statement of Facts", "Summary of Pleadings" and "Argument".
[1] It fails to present "each point separately under an appropriate heading, showing the nature of the question to be presented or the point to be made". (Sec. 2, Rule VIII of the Rules for the Supreme Court and District Courts of Appeal.) Such failure would justify a dismissal of the appeal. (Sec. 4 of said Rule VIII; Cunnyngham v. Mason-McDuffie Co., Inc., 218 Cal. 196 [22 PaCal.2d 515], and cases cited.)
We have nevertheless examined the briefs and find no merit in appellant's points. [2] The sum awarded to respondent Charles Isaacs represented the balance of rents collected by the receiver who was appointed in this action which was brought to obtain specific performance of the provisions of a deed of trust relating to such rents. (Mines v. Superior Court, 216 Cal. 776 [16 PaCal.2d 732].) Said respondent was the beneficiary under the deed of trust and the purchaser at the foreclosure sale. Appellant was the purchaser upon an execution sale in another action. Said rents were collected by the receiver prior to the foreclosure sale, but after the execution sale and during the period allowed for redemption therefrom. Appellant claims he was entitled to said rents under the provisions of section 707 of the Code of Civil Procedure. But the deed of trust was executed and recorded prior to the levy of attachment in the other action and had priority over the attachment. Appellant, as purchaser at the execution sale, acquired no greater rights than those of the judgment debtor and we therefore conclude that the trial court properly awarded the balance of said rents to respondent Charles Isaacs.
[3] Appellant questions the form of the deed of trust and apparently claims that rents were not made security for the *100 payment of the note. This claim may not be sustained. The deed of trust was somewhat unusual in form and it did purport to appoint a third party as attorney-in-fact of the trustors to collect the rents. These provisions were expressly made "as a part of the consideration for the payment of the sum evidenced by the note herein described and for the purpose of carrying into full force and effect all the terms, provisions and conditions of this indenture contained". The power was declared to be irrevocable and was to remain in effect "until all of the note herein described shall have been fully paid and liquidated". The power was not to be exercised until default. It was to be binding on the trustors' successors in interest, and was made "collateral and in furtherance of the power granted" to the trustee. Apparently the person appointed did not attempt to act under the power granted but this action was brought and the receiver was appointed. Appellant argues that "the power of attorney was never intended by its makers to convey any title," but, disregarding the form and considering the substance of these provisions of the deed of trust, we believe it entirely clear that the rents accruing after default were intended as additional security for the note secured by the deed of trust.
The judgment is affirmed.
Nourse, P. J., and Sturtevant, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374439/ | 11 Cal. App. 2d 724 (1936)
THE PEOPLE, Respondent,
v.
BERT OWENS, Appellant.
Crim. No. 188.
California Court of Appeals. Fourth Appellate District.
February 17, 1936.
Albert Peterson for Appellant.
U.S. Webb, Attorney-General, and R. S. McLaughlin, Deputy Attorney-General, for Respondent. *726
Barnard, P. J.
The defendant was charged with forcible rape and, in a second count, with a violation of section 288a of the Penal Code. The jury found him guilty on both counts and the judgment provided that the two sentences should run concurrently. From that judgment this appeal is taken.
[1] With respect to the first count it is contended that the evidence is not sufficient to sustain the verdict. It is argued that the prosecuting witness was subnormal mentally, that her testimony contained conflicting statements, that portions of it are incredible, and that it appears that she was acting under the domination of her father. The record fails to sustain any of these contentions to an extent that would justify a reversal. While the prosecuting witness may not have been a model of intellectual strength her testimony was clear and direct and indicates a considerable degree of intelligence, and the same was corroborated in many respects. It is further argued that the evidence fails to show resistance on her part to the extent and in the degree required by law. The offenses are alleged to have been committed in a lonely spot in Kern County, in a rolling country some distance from the nearest habitation. The prosecuting witness testified that she resisted to the best of her ability, that she tried to run away and was dragged back, and the court submitted the issue to the jury under proper instructions. In view of all of the circumstances, including the lonely location, we see no good reason for disturbing the jury's finding on this question of fact.
[2] It is next contended that the court committed error in permitting the father of the prosecuting witness to testify as to a complaint made to him by her the first time she saw him after the offenses were committed. In particular, it is contended that this witness was permitted to give particulars of the complaint made by naming the appellant. The case of People v. Avila, 50 Cal. App. 228 [194 P. 768], is relied on in support of this contention. In that case the witness was specifically asked for the name of the person accused by the one making the complaint. In the instant case, an objection was sustained to a question as to the nature of the complaint made, on the ground that the question was too broad. The question was then asked: "What was her complaint?" *727 No objection was made to this question and in reply thereto the witness voluntarily gave the name of the person accused. We find in this no sufficient ground for a reversal.
[3] It is next claimed that the court erred in excluding the testimony of a certain witness. While this witness was testifying an objection was made and sustained. Counsel for appellant then said: "Just a little incident I wanted to show." The matter was then dropped and no offer of proof was made. It is not possible to tell from the record whether or not the matter excluded had any bearing on the case or was of any importance.
The last two points are also raised in connection with the conviction on the second count and require no further consideration. [4] It is also urged, with reference to that count, that the prosecuting witness was an accomplice and that no corroboration appears. The court instructed the jury that corroboration was necessary. It is well settled that the corroboration which is required is not such as would establish all of the precise facts, but that it is sufficient if there be some evidence which, though slight, tends to connect the defendant with the commission of the offense. (People v. Briley, 9 Cal. App. 2d 84 [48 PaCal.2d 734].) A statement made by this appellant to one of the witnesses tended to connect him with the commission of the offense. It also appears that the appellant endeavored to get this witness to leave the state and that he threatened to shoot him if he came to the trial as a witness. Several other witnesses testified to seeing the appellant and the prosecuting witness going toward the place where the offense is supposed to have occurred and, under the circumstances appearing, it must be held that the corroboration was sufficient.
[5] It is claimed that the district attorney was guilty of misconduct in saying, near the close of his address to the jury, "I know you are guilty; this jury knows you are guilty". It is argued that, in effect, the district attorney was allowed to give his conclusions from his own investigation without reference to the evidence produced in court. Not only was this statement not objected to or assigned as error (People v. Harris, 219 Cal. 727 [28 PaCal.2d 906]), but we think the language used is not subject to the interpretation thus placed upon it. The district attorney had just finished summing up the evidence and after referring to the actions *728 of the appellant, as shown by the evidence, he made the remark in question. While the statement should not have been made, it seems impossible that the jury could have taken it otherwise that as referring to the evidence which had been produced in court and as meaning that the district attorney and the jury had acquired their knowledge from the same source, namely, the evidence.
[6] The final point urged is that the district attorney committed prejudicial error by commenting on the fact that the appellant did not take the stand. The contention seems to be that the district attorney abused the privilege given by section 13, article I, of the Constitution of California, as amended in 1934. We have read the comments referred to, which seem to us to be well within the spirit and intent of the constitutional amendment.
The judgment is affirmed.
Marks, J., and Jennings, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374491/ | 726 P.2d 266 (1986)
STATE of Hawaii, Plaintiff-Appellant,
v.
Laverne POWELL, Defendant-Appellee.
No. 11112.
Supreme Court of Hawaii.
October 17, 1986.
Ellen P. Godsey (Arthur E. Ross on opening brief with Law Clerk Loretta A. Sheehan, Ellen P. Godsey on reply brief), Deputy Pros. Attys., Honolulu, for plaintiff-appellant.
Richard Pollack (David K. Kuwahara with him on the brief), Deputy Public Defenders, Honolulu, for defendant-appellee.
Before LUM, C.J., and NAKAMURA, PADGETT, HAYASHI and WAKATSUKI, JJ.
PER CURIAM.
The question in this appeal by the State of Hawaii is whether the Circuit Court of the First Circuit erred in dismissing with prejudice the charge of Theft in the First Degree[1] brought against Laverne Powell. The charge was dismissed because the circuit court concluded the "drunk decoy" operation *267 that culminated in the commission of theft by the defendant constituted entrapment as a matter of law. The State argues the circuit court erred, but we too conclude the defendant was entrapped.
I.
The incidence of thefts and robberies in the vicinity of the intersection of Wilikina Drive and Kamehameha Highway in Wahiawa prompted a police decision to institute a series of "drunk decoy" operations in the area of the reported crimes. And between November of 1984 and March of 1985 officers of the Honolulu Police Department organized such operations on eleven occasions and arrested nineteen individuals. Laverne Powell was arrested on March 21, 1985 when she pilfered a wallet containing nine dollars.
The victim on this occasion was a police officer feigning drunkenness. As he lay on his side in a fetal position with a paper bag containing a beer bottle in his hand, a wallet protruded from a rear pocket of his jeans. That the wallet contained money was rendered obvious by the partial exposure of currency. Several other officers stationed themselves at nearby vantage points and awaited possible criminal activity. Shortly after 11:00 p.m., Laverne Powell walked by the officer posing as a helpless drunkard. She then turned back, approached the apparently vulnerable victim, and stole the wallet planted on his person. Two officers who witnessed the theft sprang from cover and apprehended Ms. Powell as she left the scene.
The Grand Jury returned an indictment charging Laverne Powell with Theft in the First Degree. Averring she had been induced by the police to commit the offense, the defendant moved for dismissal of the charge. The circuit court conducted an evidentiary hearing in which the only testimony offered was that of the police sergeant who supervised the "drunk decoy" operation. The court found the dispositive facts were not in dispute, concluded the police conduct in question constituted entrapment as matter of law, and dismissed the indictment with prejudice.
II.
A.
"Since the defense is not of a constitutional dimension, [the legislature] may address itself to the question and adopt any substantive definition of [entrapment] that it may find desirable." United States v. Russell, 411 U.S. 423, 433, 93 S. Ct. 1637, 1643, 36 L. Ed. 2d 366 (1973) (footnote omitted). "The rationale for providing a defense based on entrapment," in the legislature's view, "does not reside in the fact that entrapped defendants are less culpable or dangerous than those who formulate their intent without outside inducement.... The real basis for the defense... is a purpose to deter improper conduct on the part of law enforcement officials." HRS § 702-237 (1976), Commentary. The Hawaii Penal Code's definition of "entrapment" therefore focuses "not on the [propensities and] predisposition of the defendant to commit the crime charged, but rather... on the conduct of ... law enforcement officials." State v. Anderson, 58 Haw. 479, 483, 572 P.2d 159, 162 (1977). And by virtue of HRS § 702-237
[i]n any prosecution, it is an affirmative defense that the defendant engaged in the prohibited conduct or caused the prohibited result because he was induced or encouraged to do so by a law enforcement officer, or by a person acting in cooperation with a law enforcement officer, who, for the purpose of obtaining evidence of the commission of an offense....
....
(b) Employed methods of persuasion or inducement which created a substantial risk that the offense would be committed by persons other than those who are ready to commit it.
Whether the defendant was entrapped or not ordinarily is a matter for the jury to decide. But when "the evidence is undisputed and ... clear" entrapment may *268 be established as a matter of law. See State v. Kelsey, 58 Haw. 234, 236, 566 P.2d 1370, 1371 (1977); see also Sherman v. United States, 356 U.S. 369, 373, 78 S. Ct. 819, 821, 2 L. Ed. 2d 848 (1958). Here, the circuit court was neither compelled to choose between conflicting witnesses nor judge their credibility. It ruled on the basis of undisputed testimony elicited from the officer who organized the operation in question. Moreover, the findings rendered by the circuit court are not challenged by the State.
B.
The State nonetheless argues a reversal of the court's ruling is in order because the police were "looking to interrupt ongoing criminal activity" and employed means "reasonably tailored to apprehend those involved in stealing from intoxicated persons." But we are convinced from a review of the record that the police "[e]mployed methods of ... inducement which created a substantial risk that [theft] would be committed by persons other than those who [were] ready to commit it." HRS § 702-237(1)(b).
That the police were concerned with reports of "thefts and robberies in the area" is not to be disputed. Nor can the decision to organize covert operations be faulted. "Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer." Sherman v. United States, 356 U.S. at 372, 78 S.Ct. at 820. Yet as the circuit court found, the reported thefts and robberies did not "involve[ ] `sleeping drunks' or thefts of the same nature as the instant case." We would be hard put to contradict the court's further finding that the "drunk decoy" operations were expressly designed to ensnare anyone who would commit theft when "bait money" is placed in plain view and within easy reach.
The stealth and strategy employed here resulted in the apprehension of nineteen persons, including Laverne Powell, for "rolling drunks." Undeniably, "[t]he function of law enforcement is the prevention of crime and the apprehension of criminals." Id. Yet, what was reported previously as happening in the vicinity were thefts of a different nature, including robberies. "Manifestly, [the law enforcement] function does not include the manufacturing of crime." Id. Under the circumstances, we would have to agree with the circuit court that the "drunk decoy" operation "created a substantial risk that [theft] would be committed by persons other than those who [were] ready to commit it." HRS § 702-237(1)(b).
Affirmed.
NOTES
[1] See Hawaii Revised Statutes (HRS) § 708-831(1)(a)(1976). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374493/ | 726 P.2d 1304 (1986)
Vance TOLSTRUP, Appellant,
v.
Joan MILLER, Elizabeth J. Burkhart and Audrey Osborn, Appellees.
No. S-1080.
Supreme Court of Alaska.
October 24, 1986.
*1305 Lawrence A. Pederson, Paul J. Nangle, Paul J. Nangle & Associates, Anchorage, for appellant.
Joel D. DiGangi, Law Offices of Joel D. DiGangi, Anchorage, for appellees.
Before RABINOWITZ, C.J., and BURKE, MATTHEWS, COMPTON and MOORE, JJ.
OPINION
BURKE, Justice.
This case presents the question of whether a stipulation to dismiss with prejudice certain misrepresentation claims precludes a foreclosure on real property when the underlying claims arose from the same transaction. Superior Court Judge Joan M. Katz concluded that the doctrine of res judicata barred the instant nonjudicial foreclosure, and granted plaintiff's summary judgment motion. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 1978, Vance Tolstrup and Michael Huffman were involved in a small computer business called Data-Com Systems, Inc. In June 1978, Huffman arranged for an $80,000 loan from Alaska National Bank of the North (ANBN) for Data-Com. Tolstrup was reluctant to sign the note as a personal co-surety. To protect himself in case he was required to fulfill his guaranty and pay on the note, Tolstrup sought security from Huffman. Huffman pledged to partially indemnify Tolstrup in case Tolstrup had to pay ANBN on the guarantee.[1] Huffman also executed a deed of trust on real property that Huffman owned in Anchor Point, Alaska, in favor of Tolstrup. With this collateral, Tolstrup signed as one of the personal guarantors for the ANBN loan.[2] Tolstrup subsequently paid substantial amounts of money to ANBN on his guarantee. In February 1979, the personal and financial problems of Data-Com caused the corporation to close.
In 1979, Huffman filed a third-party complaint against Tolstrup[3] alleging unlawful activity in connection with their corporation. In 1982, Tolstrup counterclaimed, alleging that Huffman fraudulently induced him to guarantee the $80,000 loan by misrepresenting the value of the property offered as security. Tolstrup concluded "[a]s a result of the foregoing, defendant has been damaged in the amount of $80,000 *1306 plus interest and has been forced to pay approximately $30,000 in repayment."
In November 1982, Huffman and Tolstrup agreed to dismiss their claims and counterclaims with prejudice. Their stipulation specifically included a dismissal of Tolstrup's counterclaim against Huffman, but the parties disagree about exactly which claims were extinguished.
By August 1983, Tolstrup had paid approximately $34,000 to ANBN for the 1978 loan which he had guaranteed. Huffman had defaulted on his agreement to indemnify Tolstrup.[4] Under the terms of the deed of trust, Tolstrup then began a nonjudicial foreclosure on the secured property.[5] At that time, the property was owned by plaintiffs Miller, Burkhart, and Osborn (collectively referred to as Miller). They had purchased various ownership rights from Huffman in late 1978, between the time of the loan transaction and Data-Com's collapse.
Miller sought to enjoin the foreclosure. In her motion for summary judgment, Miller asserted that the 1982 stipulation dismissing Tolstrup's counterclaims against Huffman barred Tolstrup's foreclosure action. The superior court granted the summary judgment motion, concluding that the 1982 stipulation involved the identical transaction and that res judicata, thus, precluded the foreclosure. We agree.
II. DISCUSSION
A. Res Judicata
Tolstrup contends that the claim dismissed by the stipulation was for the tort of fraud, while the present foreclosure is based on Huffman's default on the indemnity agreement. Therefore, he argues, res judicata does not apply and the foreclosure is not barred as a matter of law. Miller, however, argues that res judicata precludes Tolstrup's foreclosure because it is based on either the same claim or one which could have been raised in the earlier lawsuit between Huffman and Tolstrup.
A stipulation to dismiss claims with prejudice operates as an adjudication upon the merits. Civil Rule 41(a)(1). Other jurisdictions have held that such a stipulation is just as valid as a final judgment resulting from a trial on the merits, and is res judicata as to all issues that were raised or could have been determined under the pleadings. Suttle v. Seely, 94 Ariz. 161, 382 P.2d 570, 572 (App. 1963); Bank of America v. Department of Mental Hygiene, 246 Cal. App. 2d 578, 54 Cal. Rptr. 899, 903 (1967).[6] We agree and hold that the dismissal here had the same res judicata effect as a final judgment after trial.
Under the doctrine of res judicata, a final judgment bars a subsequent suit, between the same parties or their privies, upon the same claim or demand. Calhoun v. Greening, 636 P.2d 69, 71-72 (Alaska 1981); Moran v. Poland, 494 P.2d 814, 815 (Alaska 1972). A final judgment extinguishes all claims "with respect to all or any part of the transaction, or series of connected transactions" out of which the previous action arose. Restatement (Second) of Judgments § 24 (1982). In addition, res judicata bars a second suit when the matter therein could have been decided in the first suit. Pankratz v. State, Department *1307 of Highways, 652 P.2d 68, 74 (Alaska 1982).
To decide whether res judicata precludes Tolstrup's foreclosure, we must determine whether the underlying claim is the same as, or transactionally connected with, the claim extinguished by stipulation in the earlier lawsuit. Tolstrup's original counterclaim alleged that Huffman misrepresented the value of the secured property, thereby fraudulently inducing him to accept the deed of trust as collateral and co-sign the ANBN loan. Tolstrup sought $80,000 in damages, which was also the principal amount of the ANBN loan. This claim, although pled in tort, concerns the circumstances surrounding the signing of the guaranty. Tolstrup argues that the present foreclosure is based not upon fraud and misrepresentation, but upon Huffman's default on the indemnity agreement contained in the deed of trust. He contends, therefore, that this is wholly separate from the previous suit.
A mere change in the legal theory is not sufficient to prevent the operation of res judicata. Pankratz, 652 P.2d at 74. We conclude that both the counterclaim for fraud and the nonjudicial foreclosure arose from the same transaction: Huffman's inducements for Tolstrup's co-signing on the $80,000 loan. Characterizing the first claima s a tort and the second as a default will not avoid the effects of res judicata when the underlying claims are part of the same transaction. Tolstrup could have, and should have, joined a claim for default damages or judicial foreclosure to his 1982 counterclaim to Huffman's third-party action against him. The dismissal of the counterclaim waived Tolstrup's right to proceed later against the deed of trust for the default. The claim for default was part of the same transaction as the prior counterclaim, and he cannot now revive that extinguished claim.[7]
We agree with the superior court that Tolstrup's foreclosure action is barred under the general rules of res judicata. First, as a subsequent purchaser of an interest in the property, Miller is in privity with Huffman.[8] Second, the stipulation of dismissal with prejudice is a final judgment on the merits for purposes of res judicata. Third, both the dismissed counterclaim and the foreclosure action involve the same transaction, despite the change in legal theory.
B. Attorney's Fees
Tolstrup argues that the trial court's award of $5,000 in attorney's fees to Miller is excessive in light of the limited time spent on the case. Miller contends that $5,000 is a reasonable amount since it complies with the rate schedule set out in Civil Rule 82(a)(1).[9]
Rule 82(a)(1) grants the trial court discretion to award fees in a reasonable amount. We will not reverse an award of attorney's fees "unless manifestly unreasonable, arbitrary or designed for a purpose other than justly deserved compensation." Fairbanks Builders v. Sandstrom Plumbing & Heating, 555 P.2d 964, 966-67 (Alaska 1976) (footnotes omitted). The trial court based the award on the *1308 potential liability of $57,000, the amount by which Huffman was in default. $5,000 coincides with the fee schedule in Civil Rule 82(a)(1) for a case "without trial." There is no evidence that this award of attorney's fees was manifestly unreasonable. The trial court did not abuse its discretion.
We AFFIRM the grant of summary judgment and the award of attorney's fees.
RABINOWITZ, Chief Justice, dissenting.
Tolstrup's present action for foreclosure is based on Huffman's default in payments to Tolstrup pursuant to the deed of trust. Tolstrup's prior counterclaim asserted that he was fraudulently induced into accepting the deed of trust and co-signing the ANBN loan. I do not view the two actions as arising out of the same transaction and therefore would not hold that Tolstrup's present action for foreclosure is barred by res judicata.
The Restatement (Second) of Judgments § 24 (1982) states that the claim extinguished by a final judgment "includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose." Comment b to § 24 elaborates on the concept of "transaction":
In general, the expression connotes a natural grouping or common nucleus of operative facts. Among the factors relevant to a determination whether the facts are so woven together as to constitute a single claim are their relatedness in time, space, origin, or motivation, and whether, taken together, they form a convenient unit for trial purposes.
A judgment on one claim does not bar a subsequent claim if the two claims are not part of the same transaction.[1]
The majority concludes that "the counterclaim for fraud and the foreclosure action both arose from the same transaction: Tolstrup's co-signing of the $80,000 loan." Tolstrup's counterclaim for fraud clearly arose out of the co-signing. Tolstrup alleged that he had been fraudulently induced to co-sign the loan by Huffman's misrepresentation of the value of the property which secured Tolstrup's guarantee. The dismissal of this counterclaim therefore should serve to bar any subsequent dispute as to the validity of the guarantee between Tolstrup and Huffman, and their privies. Res judicata should bar subsequent suits arising out of Tolstrup's guarantee and co-signing, such as claims of lack of capacity or mistake.
I do not view Tolstrup's foreclosure action, however, in any fair sense as arising out of the co-signing of the ANBN loan. There is no "common nucleus of operative facts" between the two claims. Tolstrup's claim in the foreclosure action is based on Tolstrup's having made payments on the loan and Huffman's not repaying Tolstrup *1309 two-thirds of his payments, as required by the deed of trust. This claim has nothing to do with the circumstances surrounding the co-signing.[2]
NOTES
[1] The obligation secured by the deed essentially provided that if Tolstrup became obligated to pay ANBN on his guarantee, Huffman would pay him two-thirds of any amount Tolstrup paid in excess of what Huffman himself might pay as a co-guarantor.
[2] Tolstrup was one of four co-sureties on this loan; two other officers and Huffman also signed.
[3] The third-party complaint was filed in a case which Alaska Pacific Bank instituted against Huffman to recover other Data-Com debts.
[4] Huffman had neither paid ANBN in his capacity as guarantor, nor had he paid Tolstrup according to the terms of the deed of trust. Huffman was in default already at the time of Tolstrup's 1982 counterclaim. He remained in default after the stipulated dismissal.
[5] Tolstrup filed and recorded a notice of default against the property. The notice stated that it would be sold at a public auction unless Huffman paid him $23,000 plus interest and costs. This is two-thirds of the amount that Tolstrup paid to ANBN.
[6] See also 47 Am.Jur.2d Judgments § 1095 (1967) (a stipulation of dismissal amounts to a decision on the merits barring further litigation on the same subject matter between the parties); Annot., 91 A.L.R. 3d 1170 (1979).
[7] We reach our result solely on the points presented in the parties' briefs and oral arguments. We do not review points neither raised below nor included in the points on appeal. Saxton v. Splettstoezer, 557 P.2d 1126, 1127 (Alaska 1977). Thus, we express no opinion on whether claim preclusion in general applies to nonjudicial remedies.
We further note that nothing in our decision today would prevent a party to a settlement from expressly reserving a right to foreclose nonjudicially. Such reservation could appear in the stipulated dismissal or in a separately executed settlement agreement. The record here, however, reveals no such reservation.
[8] Although the three appellees purchased different interests in the property, each is in privity with Huffman as a successor in interest.
[9] Civil Rule 82 sets out a schedule for computing attorney's fees in average cases according to whether the case was "contested," "without trial," or "non-contested."
[1] See, e.g., Gallagher v. Frye, 631 F.2d 127 (9th Cir.1980) (Mandamus action in state court to require employer to reinstate fired employee with backpay does not preclude subsequent civil rights suit for damages for wrongful discharge. The mandamus action arose out of the employer's failure to comply with a Civil Service Board order while the damages suit arose out of the employer's attempts to discharge the employee in the first instance. It was not necessary to litigate in the mandamus action the merits of the underlying termination. Although the second claim could have been brought at the same time as the first claim, joinder of the claims would have been permissive, not compulsory); Bankers Trust Co. v. Pacific Employers Insurance Co., 282 F.2d 106 (9th Cir.1960) (Action obtaining judgment fixing amount of loss under insurance policy does not bar subsequent action for misrepresentation of the value of the policies. The two actions are maintained by entirely different facts; the first action depending on proof of the contract, plaintiff's performance and defendant's failure to perform, while the second depending on proof of fraud in the inducement of the contract); Chrysler Corp. v. Fedders Corp., 519 F. Supp. 1252 (D.N.J. 1981) (Action obtaining partial summary judgment that plaintiff owned defendant's stock as part of the consideration for sale of company and that defendant owed plaintiff dividends and interest from the stock, did not bar subsequent action alleging that defendant entered into agreement for the stock conveyance as part of a fraudulent conspiracy to obtain corporate assets without proper consideration. The initial claim for dividends and interest was an "independent obligation," separate from whatever breaches may have occurred with respect to the underlying contract).
[2] To illustrate the point, if Tolstrup had not made a payment on the ANBN loan, or if Huffman had not failed to repay Tolstrup under the deed of trust, Tolstrup still would have been able to bring his claim for fraud. The fraud claim was available to Tolstrup from the moment he co-signed the loan. However Tolstrup's foreclosure action could not arise until he had actually made payments and Huffman had failed to repay.
The fact that Tolstrup had made some of his payments on the ANBN loan at the time he pleaded the fraud counterclaim should not mean that dismissal of that counterclaim bars the foreclosure action if the two claims are not part of the same transaction. See, e.g., Gallagher, 631 F.2d 127; Bankers Trust Co., 282 F.2d 106; Chrysler Corp, 519 F. Supp. 1252. If Huffman had assaulted Tolstrup, the dismissal of the fraud counterclaim would not bar a subsequent assault claim even if Tolstrup could have brought an assault claim at the time he brought his fraud counterclaim. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374496/ | 726 P.2d 1386 (1986)
104 N.M. 756
Ernesto Quinones GAMBOA, Jr., by Personal Representative Ernesto GAMBOA, Sr., Plaintiff-Appellee,
v.
ALLSTATE INSURANCE COMPANY, Defendant-Appellant.
No. 15998.
Supreme Court of New Mexico.
October 30, 1986.
*1387 Farlow, Simone, Roberts & Weiss, Norman F. Weiss, LeRoi Farlow, Stephen M. Simone, Albuquerque, for defendant-appellant.
John E. Keithly, Anthony, for plaintiff-appellee.
OPINION
SOSA, Senior Justice.
Plaintiff Ernesto Gamboa, Sr., representative of the estate of Ernesto Quinones Gamboa, Jr., brought a declaratory judgment action in Dona Ana District Court, seeking interpretation and construction of an insurance policy defendant Allstate Insurance Company (Allstate) issued to Wilfred Trujillo. More specifically, plaintiff seeks to determine whether decedent Gamboa is entitled to protection as an "insured" under the uninsured motorist coverage provision of the policy. Both parties filed motions for summary judgment. After a hearing, the trial court entered an order on June 19, 1985, for summary judgment in plaintiff's favor. Allstate appeals and we now reverse the trial court.
FACTS:
On April 28, 1984, the decedent, Ernesto Gamboa, was a passenger in his father's 1978 Chevrolet automobile. The driver, Andrew Trujillo, was also killed when their vehicle was struck "head on" by another vehicle. The other vehicle involved was a 1979 Ford operated by Edward Segovia, an uninsured motorist. At the time of the accident, American Fidelity Insurance Company (American) insured the Chevrolet, providing uninsured motorist coverage in the amount of $15,000 per person limits. The estates of both decedents, Trujillo and Gamboa, filed claims against American and recovered payments under the uninsured motorist coverage provision. In addition, Andrew Trujillo's father, Wilfred Trujillo, also had a policy in effect at the time of the accident issued by Allstate covering a 1978 Ford owned by him. This automobile was not involved in the accident. The uninsured motorist coverage provided under this policy was limited to $25,000 per person.
The plaintiff claims that Allstate is obligated under its policy to Trujillo on the Ford to pay, within policy limits, any judgment rendered against Segovia in favor of plaintiff.
Allstate denies liability, alleging that plaintiff's decedent was not an "insured" within the uninsured motorist coverage of its policy. The trial court, granting summary judgment in favor of plaintiff, found that Gamboa was an "insured" under Allstate's policy and should be entitled to benefits under the uninsured motorist coverage provision.
The sole issue on appeal is whether plaintiff's decedent, an insured under American's policy, is also an "insured" under Allstate's uninsured motorist coverage and thus allowed to "stack" both coverages.
Stacking refers to an insured's attempted recovery of damages by aggregating the coverage under more than one policy or under one policy covering more than one automobile. Lopez v. Foundation Reserve Insurance Co., 98 N.M. 166, 646 P.2d 1230 (1982). In the instant case, plaintiff is attempting to interpolicy stack the uninsured motorist coverages under both American's and Allstate's policies. Allstate, relying on the underlying rationale of Lopez, argues that plaintiff should not be allowed to "stack" the uninsured motorist coverage under its policy because decedent Gamboa is limited to the coverage on the vehicle occupied, the 1978 Chevrolet insured by American. In Lopez, this Court held that an insured who had been paying multiple premiums under one policy was entitled to intrapolicy stacking of uninsured motorist *1388 coverage purchased for two automobiles. More importantly, this Court also held that an occupant involved in an accident who is entitled to uninsured motorist coverage solely because of his status as a passenger may not "stack" uninsured motorist coverage. In so holding, this Court recognized the difference in status between a first class insured and a second class insured. First class insureds are covered by policies no matter where they are or in what circumstances they may be; coverage is not limited to a particular vehicle. Chavez v. State Farm Mutual Automobile Insurance Co., 87 N.M. 327, 533 P.2d 100 (1975). On the other hand, second class insureds are covered only because they occupy an insured vehicle. Several other jurisdictions have recognized the difference between the two classes of insureds. See Sturdy v. Allied Mutual Insurance Co., 203 Kan. 783, 457 P.2d 34 (1969); Holloway v. Nationwide Mutual Insurance Co., 376 So. 2d 690 (Ala.1979); Florida Insurance Guaranty Association v. Johnson, 392 So. 2d 1348 (Fla.App.1980); Thompson v. Grange Insurance Association, 34 Wash.App. 151, 660 P.2d 307 (1983); Babcock v. Adkins, 695 P.2d 1340 (Okl.1984).
The prevailing rationale in permitting first class insureds to "stack" coverages under multi-vehicle policies is because they have paid separate premiums and therefore reasonably expect the fulfillment of the terms of those policies purchased. E.g., Lambert v. Liberty Mutual Insurance Co., 331 So. 2d 260, 263 (Ala.1976); Babcock v. Adkins, 695 P.2d at 1342. This rationale is not applicable to an insured by virtue of vehicle occupancy. The additional uninsured motorist coverage premium paid covering insureds of the second class gives them the coverage they otherwise would not have had. Thompson v. Grange Insurance Association, 34 Wash.App. at 159, 660 P.2d at 312. "Neither the passenger nor the purchaser of the policy would have any legitimate contractual expectation that one insured solely by reason of his presence in a vehicle would be entitled to a recovery under other policies belonging to the named insured covering vehicles which were not involved in the accident." Babcock, 695 P.2d at 1343. As the trial court noted here, "[t]he troublesome aspect of this case is that plaintiff did not contract with defendant for coverage, did not pay a premium and claims coverage from the fortuitous circumstance that plaintiff's decedent was occupying a vehicle operated by defendant's insured."
Plaintiff argues that Lopez, involving intrapolicy stacking, is distinguishable on its facts and not controlling because the Court did not determine whether the passenger there was in fact defined as an "insured" under that policy. Plaintiff maintains that a passenger is not limited to the coverage on the vehicle occupied if another policy under which additional recovery is sought also defines the passenger as an "insured." The plaintiff relies on Merritt v. Farmers Insurance Co., 7 Kan. App. 2d 705, 647 P.2d 1355 (1982), and Sloan v. Dairyland Insurance Co., 86 N.M. 65, 519 P.2d 301 (1974). In both cases, passenger-plaintiffs were allowed to "stack" uninsured motorist coverages under policies covering non-involved vehicles because plaintiffs were defined as "insureds" under those policies. Therefore, the "stacking" issue arises only when it is determined that the person seeking to cumulate benefits on two or more uninsured motorist coverages is an insured under those policies. Seaton v. Kelly, 339 So. 2d 731, 733 (La.1976). Accordingly, Allstate contends that decedent Gamboa is not an "insured" under its policy language and therefore not entitled to coverage. We agree.
Whether plaintiff's decedent was covered by the uninsured motorist clause of Allstate's policy when riding in the 1978 Chevrolet is a question of law for the courts to decide. See Sears v. Wilson, 10 Kan. App. 2d 494, 704 P.2d 389 (1985). "In deciding this question, this court must look to the provisions of the policy; if the terms of the policy are not ambiguous, the language used must be given its natural and ordinary meaning." Id. at 495, 704 P.2d at 390 (citations omitted); Safeco Insurance Co. *1389 of America, Inc. v. McKenna, 90 N.M. 516, 520, 565 P.2d 1033, 1037 (1977).
The 1978 Ford policy provides in pertinent part:
SECTION II PROTECTION AGAINST BODILY INJURY AND PROPERTY DAMAGE BY UNINSURED MOTOR VEHICLES
`Insured' means:
(a) the named insured as stated in the policy and, while residents of the same household, the spouse of any such named insured and relatives of either;
(b) any other person while occupying an insured motor vehicle; and
(c) any person with respect to damages he is entitled to recover because of bodily injury to which this coverage applies sustained by an insured under (a) or (b) above; * * *.
`Insured Motor Vehicle' means a motor vehicle:
(a) described in the declarations as an insured motor vehicle to which the bodily injury and property damage liability coverages of the policy apply;
(b) while temporarily used as a substitute for an insured motor vehicle as described in subparagraph (a) above, when withdrawn from normal use because of its breakdown, repair, servicing, loss or destruction;
(c) while being operated by the named insured or by his spouse if a resident of the same household; * * *.
The trial court, without considering the above definition of insured motor vehicle, found this provision of the policy ambiguous, and more specifically subparagraph (c) which plaintiff relies on under the definition "insured." The trial court resorted to "SECTION IV MEDICAL EXPENSE, DEATH INDEMNITY AND DISABILITY INCOME PROTECTION" of the policy to help in its construction of the term "insured." That portion of the policy provides in pertinent part:
The following persons are insured under this Part
* * * * * *
2. Any other person who sustains bodily injury while occupying:
* * * * * *
(b) a non-owned automobile if the injury results from:
* * * * * *
(2) its operation ... by a relative if such automobile is a private passenger automobile or trailer, provided the use thereof is with the permission ... of the owner and is within the scope of such permission. [Emphasis added].
The court found under this provision that "any injured person is covered if occupying a non-owned automobile if it was being operated by a relative of the named insured with the permission of the owner." The court concluded that the named insured should have expected that any person occupying a non-owned automobile operated by a relative residing in his household would be protected under the uninsured motorist coverage provision of the policy. This provision relied upon by the trial court in its construction of the term "insured" does not relate to the uninsured motorist coverage. Recovery under the uninsured motorist protection should not be likened to medical payments protection. Remsen v. Midway Liquors, Inc., 30 Ill.App.2d 132, 174 N.E.2d 7 (1961). Furthermore, the issue here is not whether the plaintiff is entitled to the benefit of the medical expense coverage of Allstate's policy, but whether he is entitled as an "insured" to the benefits of the uninsured motorist coverage. The courts should not resort to a strained construction of the policy for purposes of creating an ambiguity when no ambiguity in fact exists. Atlas Assurance Co. Ltd. v. General Builders, Inc., 93 N.M. 398, 600 P.2d 850 (Ct.App.1979). An insurance policy can be construed only when the language of the policy is equivocal, indefinite, or ambiguous. 44 C.J.S. Insurance § 290 at 1139 (1945). If the language is clear or unequivocal, construction is unnecessary. Ivy Nelson *1390 Grain Co. v. Commercial Union Insurance Co., 80 N.M. 224, 453 P.2d 587 (1969).
Considering the contract as a whole, we find the policy language unambiguous. Other courts interpreting the same or similar language in Section II above, defining "insured," have found no ambiguity. See Seaton v. Kelly, 339 So.2d at 733; Schmidt v. Estate of Choron, 376 So. 2d 579, 580 (La.App.1979); Continental Casualty Co. v. Darch, 27 Wash.App. 726, 728, 620 P.2d 1005, 1006 (1980).
Allstate's uninsured motorist coverage clearly refers to three classes of insureds: the first class insured includes the named insured, his spouse, and relatives in the same household; the second class insured is any other person while occupying an insured motor vehicle; and the third class encompasses those persons entitled to recover because of bodily injury sustained by an insured as defined under the first and second instance. Plaintiff does not rely on subparagraphs (a) or (b) for his position, but argues that he is any person, a third class of insured, entitled to recover under subparagraph (c). We disagree.
The language under subparagraph (c), "damages he is entitled to recover," refers to a right arising under the applicable law of torts. Thompson, 34 Wash.App. at 160, 660 P.2d at 313; Pearthree v. Hartford Accident & Indemnity Co., 373 So. 2d 267, 271 (Miss.1979). Perhaps plaintiff would be entitled to recover under subparagraph (c) if decedent Gamboa was an "insured" under subparagraphs (a) or (b). Plaintiff's right to recovery is contingent upon "bodily injury ... sustained by an insured under (a) or (b)." Therefore, we must examine subparagraphs (a) and (b) to determine whether decedent Gamboa is an "insured." Plaintiff's decedent is not a first class insured, being neither a named insured nor a relative of Trujillo residing in Trujillo's household. Furthermore, plaintiff's decedent is not a second class insured because he did not occupy an insured motor vehicle to which the Ford policy applied. Plaintiff's decedent occupied the 1978 Chevrolet, not the vehicle described in the declarations of the policy, nor was the Chevrolet a temporary substitute for the insured motor vehicle, nor was it being operated by the named insured or spouse. Thus, plaintiff is not entitled to recover under subparagraphs (a), (b), or (c). The policy does not define decedent Gamboa as an "insured."
Plaintiff would have us find that Allstate's policy language is similar to the defendant's policy in Merritt in which a passenger was permitted to recover under the driver's uninsured motorist coverage, although the driver's automobile was not the vehicle occupied. In Merritt, the defendant's policy defined "insured motor vehicle" as a non-owned automobile with permission of the owner and then defined "insured" as including any other person while occupying an "insured motor vehicle." In that case defendant's policy defined plaintiff Merritt as an insured in clear and unambiguous language. Conversely, in the present case, the plaintiff's decedent was not occupying the insured motor vehicle described in the policy for which a specific premium charge was paid, and by the clear terms of the policy, no coverage was afforded. Plaintiff also relies on Sloan which is distinguishable because there the plaintiff-passenger was covered as a named insured under her own policy and as a passenger under the driver's policy because she occupied the vehicle insured under that policy. Thus, the court permitted the plaintiff to "stack" both coverages.
Here, plaintiff's decedent, by contrast, is not a member of either class and therefore is not entitled to coverage. See Davidson v. Eastern Fire & Casualty Insurance Co., 245 S.C. 472, 478, 141 S.E.2d 135, 138 (1965). Allstate has not written its policy defining plaintiff's decedent as an "insured." Therefore, the trial court erred in allowing plaintiff to "stack" Allstate's uninsured motorist coverage. The trial court's judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
STOWERS and WALTERS, JJ., concur. | 01-03-2023 | 10-30-2013 |
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NELSON
v.
STATE.
No. S07A1625.
Supreme Court of Georgia.
February 11, 2008.
Charles A. Wetherington Jr., Valdosta, for appellant.
Robert L. Moore Jr., Asst. Dist. Atty., J. David Miller, Dist. Atty., Bradfield M. Shealy, Asst. Dist. Atty., Amy E. Hawkins Morelli, *202 Asst. Atty. Gen., Thurbert E. Baker, Atty. Gen., for appellee.
BENHAM, Justice.
James Rowe, Jr., died on October 19, 2003, as a result of being shot in the chest by appellant Alvin Nelson outside a Valdosta bar. Nelson was arrested within hours of the shooting and a jury found him guilty of felony murder (the underlying felony being aggravated assault), possession of a firearm during the commission of a crime, carrying a concealed weapon, and discharging a firearm near a public highway. He appeals from the judgment of conviction and the trial court's denial of his motion for new trial.[1]
The State presented the testimony of the arresting officer who recounted that appellant told him he had shot the victim after the victim had punched him and tried to rob him. The investigating detective testified appellant told him he had agreed to drive several men to the bar in exchange for money and they had entered the bar without paying him. Appellant had followed his passengers into the bar and they exited the bar and argued about payment for the transportation. While appellant and his passengers were outside, the victim approached the crowd and punched appellant, causing appellant to stumble. Appellant righted himself, drew his .32-caliber revolver from his pocket, and shot the victim.
Appellant, a 57-year-old house painter who weighed 165 pounds and is 5'10", testified he fired his weapon because he feared the victim, a 30-year-old man who was 6'2" and weighed 230 pounds, was going to continue to hit him. Two of appellant's passengers testified appellant shot the victim after the unprovoked victim punched appellant while appellant and the witnesses were discussing payment of the fare.
1. It was undisputed that appellant shot the victim and fatally wounded him. The only issue for the jury was whether appellant was justified doing so. "[A] person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily harm to himself or herself or a third person or to prevent the commission of a forcible felony." OCGA § 16-3-21(a). A homicide is not justified if the force used by the defendant exceeds that which a reasonable person would believe was necessary to defend against the victim's unlawful act. Harris v. State, 274 Ga. 422(1), 554 S.E.2d 458 (2001). Inasmuch as the jury was authorized to conclude that appellant used excessive force when he shot the victim in response to the victim having punched him, the evidence was sufficient to authorize the jury's finding that appellant was guilty beyond a reasonable doubt of felony murder. Id. See also Clark v. State, 271 Ga. 27(2), 518 S.E.2d 117 (1999).
2. Appellant contends trial counsel rendered ineffective assistance of counsel by failing to seek a directed verdict of acquittal at the close of the State's evidence and by failing to request jury instructions on voluntary manslaughter, involuntary manslaughter, and reckless conduct. To prevail on a claim of ineffective assistance, appellant "must show counsel's performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel's errors, *203 the outcome of the trial would have been different." Pruitt v. State, 282 Ga. 30(4), 644 S.E.2d 837 (2007).
(a) The failure to seek a directed verdict of acquittal on the felony murder charge does not constitute deficient performance where the evidence presented by the State was sufficient to authorize the conviction. Coggins v. State, 275 Ga. 479(3), 569 S.E.2d 505 (2002). Inasmuch as there was sufficient evidence to authorize the conviction (see Div. 1), trial counsel's failure to seek a directed verdict of acquittal was not deficient performance.
(b) Since appellant used a gun, he was not entitled to a charge on involuntary manslaughter on the theory his act of shooting the victim was a lawful act committed in an unlawful manner. Clark v. State, supra, 271 Ga. at 29, 518 S.E.2d 117. Since it was undisputed that appellant intentionally fired the gun at the victim and did not act in conscious disregard of the substantial and unjustifiable risk that his act would cause harm or endanger the safety of the victim, there was no evidence to support a charge on reckless conduct. Stobbart v. State, 272 Ga. 608(3), 533 S.E.2d 379 (2000). Since the provocation necessary to support a jury instruction on voluntary manslaughter is markedly different from that which supports a justification defense and the only evidence was that appellant acted in an attempt to defend himself and not out of a sudden, violent, and irresistible passion, there was no evidence to support a charge on voluntary manslaughter. Worthem v. State, 270 Ga. 469(2), 509 S.E.2d 922 (1999). Consequently, trial counsel's failure to seek jury instructions on these offenses did not constitute the deficient performance necessary for a successful showing of ineffective assistance of counsel, and the trial court did not err when it denied the motion for new trial.
3. Appellant contends the trial court gave an incorrect jury charge on felony murder during the instructions to the jury at the close of the evidence and again in response to a question from the deliberating jury. In each instance, the trial court inquired whether there were any objections to the instructions given and trial counsel responded in the negative. The failure to voice an objection or to reserve objection at trial constitutes waiver of appellate review of the issue. Pickren v. State, 272 Ga. 421(2), 530 S.E.2d 464 (2000).
Judgment affirmed.
All the Justices concur, except SEARS, C.J., who concurs in Divisions 1, 2(a), and 3, and in the judgment.
NOTES
[1] The victim died on October 19, 2003, and appellant was arrested the same day. The Lowndes County grand jury returned a true bill of indictment against appellant in December 2003, and appellant's trial commenced on October 4, 2004. It concluded the following day with the return of the jury's guilty verdicts and the trial court's imposition of a sentence of life imprisonment for the felony murder conviction, a five-year consecutive sentence for the firearm possession conviction, a twelve-month concurrent sentence for the concealed weapon conviction, and a one-year concurrent sentence for the firearm discharge conviction. Appellant's trial counsel filed motion for new trial and a notice of appeal on November 2, 2004. Appellate counsel filed an amendment to the motion for new trial on February 27, 2007, and the trial court held a hearing on April 18, 2007. The amended motion was denied by the trial court on April 25, 2007, and the notice of appeal filed prematurely in 2004 is deemed as being effectively filed upon entry of the order denying the motion for new trial. Hall v. State, 282 Ga. 294(1), 647 S.E.2d 585 (2007). The appeal was docketed in this Court on July 11, 2007, and was submitted for decision on the briefs. | 01-03-2023 | 10-30-2013 |
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AL-ATTAWY
v.
The STATE.
No. A07A2032.
Court of Appeals of Georgia.
January 25, 2008.
Reconsideration denied February 12, 2008.
*553 Cecil Benjamin Guile III and Christopher J. McFadden, Decatur, for Appellant.
Gwendolyn Keyes Fleming, Dist. Atty. and Leonora Grant, Asst. Dist. Atty., for Appellee.
PHIPPS, Judge.
Hakeem Al-Attawy was convicted of aggravated sodomy, aggravated child molestation, enticing a child for indecent purposes, and two counts of child molestation. The trial court denied his motion for new trial. On appeal, Al-Attawy claims that he received ineffective assistance of counsel because trial counsel did not object when an expert witness testified that she found a videotaped statement by the victim to be "credible." Alternatively, he seeks a remand for an evidentiary hearing on whether his current appellate counsel provided ineffective assistance at the hearing on his motion for new trial. For the reasons set forth below, we affirm the judgment and deny his motion to remand.
The case against Al-Attawy involved a claim by R.A., then ten or eleven years old, that on November 2, 2002, Al-Attawy, a family friend, gave him a "massage," took him into a bedroom, removed some of his clothes and attempted anal intercourse with him. Shortly after the incident, R.A. made a videotaped statement to an interviewer at the Georgia Center for Children describing what had occurred. At trial, the state showed the videotaped statement to the jury. The state elicited testimony from R.A., who was 14 years old at the time of trial. The state also elicited testimony from R.A.'s mother and brother concerning R.A.'s outcry about the incident. In addition, the state elicited testimony from a clinical psychologist who was qualified as an expert in the forensic interviewing of children. The psychologist had not met R.A. but had viewed his videotaped statement.
During direct examination, the psychologist discussed the procedures for interviewing a child who has disclosed an incident of *554 sexual abuse. The state asked: "Now, how are you able to determine whether you think the disclosure is credible? What do you take into consideration?" The psychologist responded with a general discussion about indicia of credibility, including the age and developmental level of the child, motivation on the part of the child or the child's family to lie, and the type of language used by the child to describe the abuse. Al-Attawy's trial counsel explored these topics on cross-examination. On redirect examination, the following exchange occurred between the state and the psychologist:
Q. . . . You mentioned all the things you use to determine whether or not a disclosure is credible. Did you find this disclosure to be credible and why?
A. Yes. I found this disclosure to be credible. He [R.A.] told immediately. He came in and he was able to tell [the interviewer] in detail what happened. He provided contextual details. He didn't seem to elaborate or exaggerate in any way. He used age appropriate language. His demeanor seemed very typical for a child and his disclosure was very consistent with other disclosures of sexual abuse.
Al-Attawy's trial counsel did not object to this testimony. Instead, she addressed the testimony on recross-examination:
Q. When you say that you found him to be credible, does that mean that you found what he said to be the absolute truth?
A. Well, I mean, I wasn't there and I actually have never met this child, so I wouldn't testify to that. I would testify that his disclosure seemed credible and consistent.
In his motion for new trial, Al-Attawy contended that the psychologist's testimony impermissibly bolstered R.A.'s videotaped statement and invaded the province of the jury. He argued, among other things, that his trial counsel's failure to object to this testimony constituted ineffective assistance of counsel. At his new trial hearing, Al-Attawy did not introduce testimony from trial counsel as to why she did not object. Instead, he argued that counsel's failure to object, alone, demonstrated ineffective assistance of counsel. The trial court denied the motion for new trial because it was "not convinced the questions as phrased were objectionable" and because trial counsel may have had a legitimate strategic reason for not objecting to the testimony.
1. To show ineffective assistance of counsel under Strickland v. Washington,[1] Al-Attawy must demonstrate that his counsel's performance was deficient and that there is a reasonable likelihood that, but for counsel's errors, the outcome of his trial would have been different.[2] When reviewing a trial court's determination on these issues, "we accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts."[3] Al-Attawy has shown neither the deficient performance of his trial counsel nor prejudice resulting from counsel's failure to object to the psychologist's testimony.
"Improper bolstering occurs when an expert witness is allowed to give his or her opinion as to whether the complaining witness is telling the truth, because that is an ultimate issue of fact and the inference to be drawn is not beyond the ken of the average juror."[4] Al-Attawy argues that the psychologist impermissibly bolstered R.A.'s statement when she testified that she found his videotaped statement "credible." We agree. A witness may opine that a statement meets indicia of credibility "based on factors beyond the ken of the average juror."[5] Thus, testimony that a child's statement or behavior is consistent with a history of sexual abuse is *555 permissible,[6] but "our courts have consistently held that expert witnesses may not testify regarding truthfulness or credibility."[7] Here, the psychologist's testimony went beyond expressing whether R.A.'s statement showed indicia of credibility. The psychologist testified, "I found [the child's] disclosure to be credible."
Al-Attawy has not shown that his trial counsel's failure to object to the bolstering testimony was deficient, however. We will not find deficient performance if counsel's trial strategy and tactics were reasonable,[8] and Al-Attawy must establish that trial counsel's action fell outside the wide range of reasonable professional assistance.[9] Not objecting to testimony but instead subjecting it to cross-examination may be part of a reasonable trial strategy,[10] and the record reveals that Al-Attawy's trial counsel's cross-examination led the psychologist to qualify her prior bolstering testimony. Al-Attawy has not offered any evidence to show that this performance was not part of a conscious and deliberate strategy or that such strategy was unreasonable.[11]
Moreover, Al-Attawy has not shown that his trial counsel's failure to object to this testimony affected the outcome of his trial. The trial court was not required to grant a new trial based on the bolstering testimony.[12] And we review the bolstering testimony within its context to determine whether it affected the trial's outcome.[13] The challenged testimony was a single comment within the psychologist's otherwise appropriate discussion of the various indicia by which a disclosure of abuse may be assessed.[14] The record shows that, in response to questioning from Al-Attawy's counsel, the psychologist retreated from the bolstering testimony, thus diminishing its impact. Moreover, the jury had other evidence from which it could assess the credibility of R.A.'s videotaped statement, including R.A.'s trial testimony, during which he was subjected to cross-examination, and the testimony of outcry witnesses.[15] Under these circumstances, we find that the challenged testimony did not usurp the authority of the jury on the issue of R.A.'s credibility.[16] Al-Attawy has not shown a likelihood that an objection would have led to a different trial outcome.
*556 2. Al-Attawy moves this court to remand his case to the trial court for a hearing on whether his appellate counsel was ineffective in failing to call trial counsel at the new trial hearing.[17] This motion challenges the effectiveness of counsel still representing Al-Attawy in this appeal. We need not address the procedural propriety of this motion, however, because "[r]emand is not mandated . . . if we can determine from the record that [the appellant] cannot satisfy the two-prong test set forth in Strickland v. Washington."[18] We have found in Division 1 that Al-Attawy was not prejudiced by any alleged deficiencies in his trial counsel's performance, and thus Al-Attawy cannot show that the failure to call trial counsel at his new trial hearing prejudiced his post-conviction efforts.[19] Accordingly, the record shows that Al-Attawy cannot satisfy the Strickland test and we deny his motion to remand.
Judgment affirmed.
JOHNSON, P.J., and MIKELL, J., concur.
NOTES
[1] 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
[2] Williams v. State, 273 Ga.App. 321, 322, 615 S.E.2d 160 (2005).
[3] Suggs v. State, 272 Ga. 85, 88(4), 526 S.E.2d 347 (2000) (footnote omitted).
[4] Maddox v. State, 275 Ga.App. 869, 871(2), 622 S.E.2d 80 (2005) (footnote omitted); see Buice v. State, 239 Ga.App. 52, 55(2), 520 S.E.2d 258 (1999).
[5] Odom v. State, 243 Ga.App. 227, 229(1)(b), 531 S.E.2d 207 (2000).
[6] Id.
[7] Buice, supra at 55, 520 S.E.2d 258 (citations omitted); see Orr v. State, 262 Ga.App. 125, 128-129(2), 584 S.E.2d 720 (2003); Mann v. State, 252 Ga.App. 70, 72(1), 555 S.E.2d 527 (2001).
[8] Bharadia v. State, 282 Ga.App. 556, 559(6)(a), 639 S.E.2d 545 (2006).
[9] Morgan v. State, 276 Ga. 72, 77(9), 575 S.E.2d 468 (2003); Rivers v. State, 271 Ga. 115, 118(2)(b), 516 S.E.2d 525 (1999).
[10] See Evans v. State, 288 Ga.App. 103, 109(3)(c), 653 S.E.2d 520 (2007); Griffin v. State, 281 Ga.App. 249, 251(3), 635 S.E.2d 853 (2006); Williams v. State, 261 Ga.App. 176, 180(3), 582 S.E.2d 141 (2003).
[11] See Baker v. State, 251 Ga.App. 377, 379(2), 554 S.E.2d 324 (2001). Compare Orr, supra at 129(3), 584 S.E.2d 720 (failure to object to bolstering testimony constituted ineffective assistance of counsel where trial counsel testified that he misunderstood the objectionable and harmful nature of the testimony); Mann, supra at 73, 555 S.E.2d 527 (same, where trial counsel testified that this failure was not part of her trial strategy but rather was due to her lack of trial experience).
[12] See Hunt v. State, 268 Ga.App. 568, 572(2), 602 S.E.2d 312 (2004) (grant or denial of mistrial lies in trial court's discretion unless manifestly abused).
[13] See Branesky v. State, 262 Ga.App. 33, 36(3)(a), 584 S.E.2d 669 (2003).
[14] See Moss v. State, 216 Ga.App. 711, 714(5), 455 S.E.2d 411 (1995) (holding it appropriate for qualified expert witness to testify that person's behavior was characteristic of abuse victim).
[15] See Frazier v. State, 278 Ga.App. 685, 691(3)(a), 629 S.E.2d 568 (2006), overruled in part on other grounds, Schofield v. Holsey, 281 Ga. 809, 812, n. 1, 642 S.E.2d 56 (2007); Branesky, supra at 36, 584 S.E.2d 669. Compare Orr, supra at 127-129, 584 S.E.2d 720 (only evidence on one element of crime was testimony of victim, who contradicted her earlier statement); Hilliard v. State, 226 Ga.App. 478, 482(1), 487 S.E.2d 81 (1997) (no other testimony was presented at trial that could allow jury to reach independent conclusion about victim's credibility); Lagana v. State, 219 Ga.App. 220, 221(1), 464 S.E.2d 625 (1995) (bolstering testimony was not accompanied by other testimony that could enable jury to "determine for itself the truthfulness and credibility" of victim and to "accept or reject the [expert's] opinion on this matter").
[16] See Moss, supra at 714, 455 S.E.2d 411.
[17] Al-Attawy conditions this motion on this court finding against him in this appeal.
[18] Freeman v. State, 282 Ga.App. 185, 189(3), 638 S.E.2d 358 (2006) (citation and punctuation omitted).
[19] See id. | 01-03-2023 | 10-30-2013 |
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BENNETT
v.
The STATE.
No. A07A1596.
Court of Appeals of Georgia.
January 8, 2008.
*7 David M. Burns, Jr., for Appellant.
Spencer Lawton, Jr., Dist. Atty., Ronald M. Adams, Christine S. Barker, Asst. Dist. Attys., for Appellee.
MIKELL, Judge.
Following a jury trial, Daniel Bennett was convicted of armed robbery and possession of a firearm during the commission of a crime. One count of aggravated assault and a second charge of possession of a firearm during the commission of a crime were none prossed by the state. The trial court sentenced Bennett to fifteen years, with ten to be served in confinement and the balance on probation. On appeal from the denial of his amended motion for new trial, Bennett contends that the trial court erred in admitting certain evidence that the state failed to produce in violation of OCGA § 17-16-4, in refusing to admit evidence of a prior misidentification of Bennett, and in denying his ineffective assistance of counsel claim. We affirm.
On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury's verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offenses beyond a reasonable doubt.[1]
So viewed, the evidence shows that at approximately 5:00 p.m., on March 25, 2003, a young man wearing a red and black jogging suit, sunglasses, and a "do rag" on his head robbed the Colony Bay Florist in Garden City. An employee, Lisa Lugar, testified that the man mentioned that he had been in the store earlier the same day and had returned to place a delivery order, and that as she was helping him with his order, he pointed a gun at her head and said "give me the money." Lugar gave the man $191 in U.S. currency from the cash register. Lugar further testified that she recognized the man from his earlier visit; that the man purchased two roses at that time; and that he asked what time the store closed. Lugar noticed that the man had skin discoloration around his adam's apple. Lugar identified Bennett at trial.
The owner of the store, Susan Brown, testified that at the time of the robbery she was in the rear of the store and did not observe the man, but that after Lugar described him, Brown realized that she had waited on him earlier that day. Brown recalled that the man had a tattoo of a leaping tiger or lion on his arm; that he purchased two roses; that he said he would return later in the day; and that he repeatedly asked what time the store closed. According to Brown, only three people came in the store that day and made cash purchases. At trial, Brown identified Bennett as the man she had waited on.
Officer Benjie Selph testified that at approximately 5:00 p.m., on March 25, 2003, he was dispatched to an armed robbery and told that the suspect had run toward Westgate Apartments, approximately 200 yards from the store. As Selph approached the apartments he observed a man who fit the physical description given by Brown and Lugar walking toward building 600. Selph noticed that the man had a panther-like tattoo on his right arm and some skin discoloration on his neck. Selph secured the area around building 600 and called for back-up. At trial, Selph identified Bennett as the man he observed walking toward building 600.
*8 Lieutenant Don Chapman testified that he initially was dispatched to the store and then responded to Selph's call for back-up. Chapman conducted a "knock and talk" investigation of the building. When Chapman reached apartment 604, Bennett's mother answered the door and consented to a search of the apartment. When Bennett exited one of the bedrooms, Chapman noticed that he fit the description of the perpetrator. Bennett was detained and transported to the police station where he consented to a search of his bedroom. During the search, Chapman recovered various items from Bennett's bedroom, including an envelope containing $191 in U.S. currency; a loaded handgun; a "dorag"; and a red and black hooded jogging jacket. Chapman also noticed two roses on the dining room table.
Before transporting Bennett to the police station, officers decided to bring Lugar and Brown to the scene for a showup. Both women identified Bennett. Bennett was then transported to the police station, Mirandized, and interviewed by Detective Mark Gunno. A videotape of that interview was shown to the jury. Bennett confessed to the robbery. At trial, Bennett admitted that he had been in the store to purchase two roses earlier in the day, but he recanted his confession, claiming that he admitted to the robbery because he believed he would go home to his family if he did. Bennett also denied that he was wearing sweat pants on March 25, 2003, however, a jail inventory list signed by Bennett and introduced by the state reflected that he was wearing blue sweat pants at the time of his arrest.
1. Bennett contends that the trial court erred in admitting invoices for the three cash sales (including Bennett's purchase of two roses) on March 25, 2003, and a copy of the jail inventory list because the state failed to produce the items ten days before trial as required by OCGA § 17-16-4(a)(3). We disagree.
Pursuant to OCGA § 17-16-6, if the state fails to comply with reciprocal discovery requirements, the trial court may, "order the state to permit the discovery or inspection, . . . grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed." The trial court is vested with broad discretion in fashioning remedies for violations of OCGA § 17-16-4.[2] "Excluding evidence is a harsh sanction and should be imposed only when there is a showing of prejudice to the defense and bad faith by the state."[3]
As to the invoices, the record reflects that defense counsel objected to the admissibility of two of the three invoices because they involved cash transactions by unidentified customers and, therefore, were irrelevant to this case. "In order to raise on appeal an impropriety regarding the admissibility of evidence, the specific ground of objection must be made at the time the evidence is offered, and the failure to do so amounts to a waiver of that specific ground."[4] Since Bennett did not object to the admissibility of the invoices on the ground that the state failed to produce them during discovery, he has waived this issue for purposes of appeal.
As to the jail inventory list, we conclude that the trial court acted within its discretion in admitting the evidence. The record reflects that the state obtained the document the morning of the second day of trial and presented it to Bennett as soon as practicable.[5] Bennett denied the trial court's offer for a continuance and has never explained how he was prejudiced by the discovery violation.[6] Accordingly, we find no grounds for reversing the trial court's ruling on this issue.
*9 2. Bennett next contends that the trial court erred in excluding evidence that a person using his stolen driver's license received two traffic tickets in South Carolina while Bennett was incarcerated. Bennett claims this evidence should have been admitted because it supports his mistaken identity defense, in that the South Carolina officer, issuing the citations mistook the driver for Bennett. We do not agree.
"It is well settled that the admission of evidence is a matter which rests largely within the sound discretion of the trial judge."[7] We find no abuse of discretion here. In Wilkins, we affirmed the trial court's refusal to admit the testimony of a potential witness that he was misidentified by police as the defendant and arrested, finding it irrelevant to any material fact at issue in the case.[8] Likewise here, evidence that an unidentified police officer in South Carolina mistook an unidentified individual for Bennett was irrelevant where both persons present in the store during the robbery identified Bennett at the showup and again at trial as the perpetrator. "[G]enerally[,] the best method of attacking the credibility of an eyewitness' identification is by cross-examination."[9] Even assuming the trial court abused its discretion in excluding the evidence, however, any error was harmless in light of the overwhelming evidence against Bennett.
3. Finally, Bennett contends that trial counsel was ineffective for failing to call a witness necessary to his defense. While Bennett enumerates this alleged error and extensively cites the proper standard of review, he completely fails to identify the witness, and presents no argument, reference to the record, nor citations of authority as to this contention. Accordingly, pursuant to Court of Appeals Rule 25(c)(2), we deem this enumeration abandoned.[10]
Even if Bennett did not abandon this error, we find it meritless. To succeed on his claim of ineffective assistance, Bennett must show that counsel rendered deficient performance and that actual prejudice resulted.[11] "A petitioner has suffered actual prejudice only where there is a reasonable probability . . . that, but for counsel's unprofessional errors, the result of the proceeding would have been different."[12]
At the hearing on his amended motion for new trial, Bennett testified that he wanted defense counsel to call his girlfriend to rebut the state's claim that at some point on March 25, 2003, she and Bennett had been arguing over the phone about money. Regardless of whether Bennett's girlfriend's testimony was relevant, to his defense, she never appeared before the trial court and no proffer of her testimony was made at the motion for new trial hearing. Absent a proffer of what an alleged witness's testimony would have been at trial, an appellant cannot show that there is reasonable probability that the outcome of the trial would have been different had defense counsel taken the suggested course.[13] Accordingly, this claim fails.
Judgment affirmed.
JOHNSON, P.J., and PHIPPS, J., concur.
NOTES
[1] (Footnote omitted.) Brown v. State, 268 Ga. App. 24, 601 S.E.2d 405 (2004).
[2] Rollinson v. State, 276 Ga.App. 375, 378(1)(b), 623 S.E,2d 211 (2005).
[3] (Punctuation and footnote omitted.) Brown v. State, 281 Ga.App. 557, 559, 636 S.E.2d 717 (2006). Accord Brown v. State, 236 Ga.App. 478, 481(3), 512 S.E.2d 369 (1999).
[4] (Punctuation and footnote omitted.) Williams v. State, 270 Ga.App. 480, 481, 606 S.E.2d 671 (2004).
[5] See, e.g., Browner v. State, 265 Ga.App. 788, 793(3), 595 S.E.2d 610 (2004).
[6] See, e.g., Boykin v. State, 264 Ga.App. 836, 840(3), 592 S.E.2d 426 (2003).
[7] (Citation, punctuation and footnote omitted.) Wilkins v. State, 261 Ga.App. 856, 859(4), 583 S.E.2d 905 (2003).
[8] Id. at 858-860(3)-(4), 583 S.E.2d 905. See also Warren v. State, 158 Ga.App. 533, 534(2), 281 S.E.2d 291 (1981) (exclusion of evidence that appellant was misidentified by police on two unrelated occasions was not error where victims in instant case positively identified appellant at a lineup and at trial).
[9] (Citations, punctuation and footnotes omitted.) Wilkins, supra at 860(4), 583 S.E.2d 905.
[10] "Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned." Court of Appeals Rule 25(c)(2). See also Clark v. State, 285 Ga.App. 182, 183(1), 645 S.E.2d 671 (2007).
[11] See Corbett v. State, 277 Ga.App. 715, 719(2), 627 S.E.2d 365 (2006).
[12] (Citation omitted.) Id.
[13] Id. at 720(2), 627 S.E.2d 365. See also Dickens v. State, 280 Ga. 320, 321-323(2), 627 S.E.2d 587 (2006) (counsel's testimony and/or defendant's testimony about potential witness's expected statements cannot be used to establish claim of ineffective assistance of counsel). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374693/ | 657 S.E.2d 218 (2008)
CURRY
v.
The STATE.
No. S07A1333.
Supreme Court of Georgia.
February 11, 2008.
*219 Thomas J. Killeen, Office of the Public Defender, Athens, for Appellant.
Kenneth W. Mauldin, Dist. Atty., Brian Vance Patterson, Asst. Dist. Atty., Athens; Jason Charles Fisher, Asst. Atty. Gen., Thurbert E. Baker, Atty. Gen., Department of Law, Atlanta, for Appellee.
SEARS, Chief Justice.
The appellant, Curtis Curry, appeals from his conviction of several crimes, including murder, stemming from the shooting of his cousin, Brian Robinson.[1] On appeal, Curry contends that the trial court erred in rejecting Curry's offer to stipulate to his status as a convicted felon on the felony murder count of the indictment that was predicated on Curry's status as a convicted felon; that the trial court erred in charging the jury on intent; and that the trial court improperly commented on the evidence when it questioned a witness. We conclude that, even if the trial court erred in rejecting Curry's offer to stipulate to his status as a convicted felon, the error was harmless, and that, although the trial court erred in charging on intent, the error was also harmless. As for Curry's last contention, we conclude that the trial court did not improperly comment on the evidence. For these reasons, we affirm Curry's convictions.
1. In the early morning hours of November 29, 1998, Curry went to a party at the apartment of Shantras Scott with his friends, Rodney Harrison and Charity Dagadu, *220 and his cousin, Brian Robinson. Three eyewitnessesHarrison, Dagadu, and Jacob Woodtestified that Curry, without provocation from Robinson, shot Robinson nine times about 3:30 a.m. Shortly thereafter, Joseph Gwiazdzinski, who was also at the party, called Curry a psychopath, and Curry struck Gwiazdzinski with his gun, knocking him out and cutting his head severely.
When police responded to the scene, Curry was still present and resisted arrest. One officer attempted to put handcuffs on Curry, and Curry told her not "to fucking touch me" and that "you're going to have to kill me first bitch." When another officer attempted to put handcuffs on Curry, Curry punched him, scratched him with his fingernails, and tried to get his gun out of his holster. Ultimately, three officers were able to subdue Curry.
Forensic evidence established that Robinson was shot nine times. Five of Robinson's wounds were fatal, including a wound to the back of the head, one to the right upper chest, one to the right lower chest, one to the middle of the back, and one to the right lower back. Robinson suffered non-fatal wounds to the right upper back, to the right elbow, to the left upper arm, and to the palm of his left hand.
Having reviewed the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found Curry guilty beyond a reasonable doubt of the crimes for which he was convicted.[2]
2. Count 2 of the indictment charged Curry with felony murder, with the possession of a firearm by a convicted felon serving as the underlying felony. The felony for which Curry had been convicted was an aggravated assault with a firearm. At trial, Curry offered to stipulate that he was a convicted felon. The trial court, however, permitted the State to prove Curry's convicted felon status by introducing his prior indictment and his plea of guilty. Curry now contends that this ruling was erroneous.
In Ross v. State,[3] we held that, if the sole purpose of introducing evidence of a defendant's prior conviction is to prove the defendant's status as a convicted felon, and if "a defendant's prior conviction is of the nature likely to inflame the passions of the jury and raise the risk of a conviction based on improper considerations," it is error for the trial court not to permit a defendant to stipulate to his status as a convicted felon.[4] In the present case, we need not address whether Curry's prior conviction was "of a nature likely to inflame the passions of the jury," as we conclude, as we did in Ross, that any error in failing to permit Curry to stipulate to his prior conviction was harmless due to the overwhelming evidence of Curry's guilt.[5]
3. Curry contends that the trial court erred in charging the jury that it could infer the intent to kill from the use of a deadly weapon. Although this charge was error under this Court's holding in Harris v. State,[6] given the overwhelming evidence that Curry repeatedly shot the victim without provocation from the victim, the charge constitutes harmless error.[7]
4. Curry contends that the trial court erred in its questioning of a firearms expert about trigger pulls and hollow point ammunition, improperly intimating the court's opinion regarding Curry's state of mind.
The State presented the testimony of Bernadette Davy as a firearms expert. She testified that the nine shots that Curry fired could be fired "just as fast as you can pull *221 the trigger" and at least within five seconds. As a result of questioning from the trial court, the witness explained that the murder weapon was a semi-automatic weapon and that the trigger had to be pulled to fire each shot. The trial court also asked the witness whether Curry fired hollow point bullets and what the difference was between hollow and solid point bullets. Davy responded that the bullets were hollow point and that they are designed to expand when they hit the target.
A trial judge "may propound questions to a witness to develop the truth of the case, to clarify testimony, to comment on pertinent evidentiary rules and to exercise its discretion when controlling the conduct of counsel or witnesses in order to enforce its duty to ensure a fair trial to both sides."[8] The extent of such examinations "is a matter for the trial court's discretion."[9] A trial court, however, may not during such questioning "express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused."[10] Having reviewed the transcript, we conclude that the trial court's questions did not amount to an improper expression of opinion regarding Curry's guilt. Instead, because the court's questions were entirely objective, did not suggest any particular answer to the witness, and related to the events surrounding the homicide, we conclude that the trial court's questions fell within the court's discretion to ask questions to develop the truth of the case.[11]
Judgment affirmed.
All the Justices concur.
NOTES
[1] The crimes occurred on November 29, 1998. On January 13, 1999, Curry was indicted for malice murder, for two counts of felony murder (with the possession of a firearm by a convicted felon and the aggravated assault of Robinson as the underlying felonies), for the aggravated assault of Joseph Gwiazdzinski, and for felony obstruction. In addition to the foregoing crimes, the trial court charged the jury on voluntary manslaughter. On May 20, 1999, a jury found Curry guilty on all counts. Curry was sentenced to life in prison for the malice murder conviction, to twenty consecutive years for the aggravated assault of Gwiazdzinski, and to five consecutive years for the obstruction offense. The felony murder convictions were vacated as a matter of law. On June 11, 1999, Curry filed a motion for new trial, and on November 1, 2006, he filed an amended motion for new trial. On February 9, 2007, the trial court denied the motion for new trial, as amended, and on March 5, 2007, Curry filed a notice of appeal. On May 18, the appeal was docketed in this Court, and on September 10, 2007, it was orally argued.
[2] Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
[3] 279 Ga. 365, 614 S.E.2d 31 (2005). Although Ross was decided after Curry's trial, Ross applies to cases, such as the present one, that were in the "pipeline" when Ross was decided. Lindsey v. State, 282 Ga. 447, 452, 651 S.E.2d 66 (2007).
[4] Id. at 368, 614 S.E.2d 31.
[5] Id.
[6] 273 Ga, 608, 543 S.E.2d 716 (2001). Although Harris was decided after Curry's trial, Harris expressly held that its rule would apply to all cases in the "pipeline"those cases on direct review or not yet final. Id. at 610, 543 S.E.2d 716.
[7] Flanders v. State, 279 Ga. 35, 40, 609 S.E.2d 346 (2005); Fulton v. State, 278 Ga. 58, 61, 597 S.E.2d 396 (2004).
[8] Dickens v. State, 280 Ga. 320, 324, 627 S.E.2d 587 (2006) (citations omitted).
[9] Mullins v. Stale, 269 Ga. 157, 159, 496 S.E.2d 252 (1998).
[10] OCGA § 17-8-57.
[11] See Dickens, 280 Ga. at 324, 627 S.E.2d 587; Mullins, 269 Ga. at 159, 496 S.E.2d 252. | 01-03-2023 | 10-30-2013 |
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