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https://www.courtlistener.com/api/rest/v3/opinions/1374695/ | 376 S.C. 483 (2008)
657 S.E.2d 752
In the Matter of Kelly Christen EVANS, Respondent.
No. 26430.
Supreme Court of South Carolina.
Submitted January 11, 2008.
Decided February 11, 2008.
*484 Lesley M. Coggiola, Disciplinary Counsel, and William C. Campbell, Assistant Disciplinary Counsel, both of Columbia, for Office of Disciplinary Counsel.
Stephanie N. Weissenstein, of Law Offices of Desa A. Ballard, PA, of West Columbia, for respondent.
PER CURIAM.
In this attorney disciplinary matter, respondent and the Office of Disciplinary Counsel (ODC) have entered into an Agreement for Discipline by Consent pursuant to Rule 21, RLDE, Rule 413, SCACR. In the agreement, respondent admits misconduct and consents to any sanction in Rule 7(b), RLDE, Rule 413, SCACR. She requests that any suspension or disbarment be made retroactive to the date of her interim suspension, February 26, 2007. In the Matter of Evans, 372 S.C. 254, 642 S.E.2d 578 (2007). In addition, respondent agrees to pay the costs incurred by ODC and the Commission on Lawyer Conduct in investigating this matter. We accept the agreement and disbar respondent from the practice of law *485 in this state, retroactive to the date of her interim suspension. The facts, as set forth in the agreement, are as follows.
FACTS
Respondent's misconduct stems from her failure to understand the business operations of her legal practice and her failure to manager her staff. Respondent admits not performing monthly reconciliations as required by Rule 417, SCACR, and, as a consequence of that failure, having individual client accounts with a shortage of funds that went undetected for months.
In particular, respondent admits she had several accounts that were short of funds after loans closings. In one instance, she permitted a refinance equity line closing to take place where the borrower received $150,000.00 in funds although respondent had not received the funds from the lender. This error was carried on respondent's account until brought to her attention by her title insurance company's audit more than one year after the closing. Respondent required seven months to recover the funds from the borrower. Respondent admits she failed in her responsibilities in this closing.[1]
In another loan closing, respondent admits she disbursed approximately $21,000.00 without confirming the funds had been wired to her account. In this matter, respondent has not recovered the funds from the borrower and respondent has replaced the disbursed funds with her own personal funds. Respondent admits she carried the resulting $21,000.00 deficit in her trust account for approximately two years after the closing. Respondent admits she failed in her responsibilities as attorney in this closing.
Respondent admits she did not understand the financial aspects of her business and, therefore, hired an accountant to manage the financial aspects of her practice. While the accountant did perform recordkeeping and reconciliations, respondent now recognizes that the reconciliations were inaccurate, incomplete, and did not come close to meeting the requirements imposed by Rule 417, SCACR. Respondent *486 admits she did not review the accountant's trust account reconciliations.[2]
Respondent admits that, at the time of the initial complaint, she had an outstanding balance due to her title insurance company of $60,000.00. Respondent had failed to hold in trust the title insurance premiums that were collected by her at closings. Respondent's practice with the title insurance premiums had been to deposit the premiums when collected at closings into a bank account titled "K.C.E. Title." Respondent admits that the balance in the K.C.E. Title account was between $3,000.00 and $5,000.00 when it should have been sufficient to pay the outstanding amount due the title insurance company.
Respondent admits she transferred funds from the K.C.E. Title account to bank accounts out of state for personal reasons, including payment of her personal mortgage. She states the title insurance company has been paid from monies from the out of state accounts.
Further, respondent admits she wired personal mortgage payments from her trust account on four occasions. She claims this was done in error and that she discovered the error a month and one half later when she received the bank statement. Respondent admits that she did not have any of her own money in the trust account. She states the monies have since been paid back to the trust account.
Additionally, respondent admits she relied on her staff to handle day to day affairs, including office accounting and document preparation, and that she did not adequately supervise her staff. Respondent permitted staff members to sign her name as attorney to closing documents and, at the same time, sign as witness to respondent's "signature."
Finally, respondent admits she failed to make timely payments to her employees' 401K accounts after withholding the funds from the employees' paychecks. Further, respondent admits that she added the funds to the employees' 401K accounts in October 2007, eight months after her interim *487 suspension. Respondent agrees that she failed to safeguard her employees' funds, some of which were collected from her employees in early 2006.
LAW
Respondent admits that, by her misconduct, she has violated the following provisions of the Rules of Professional Conduct, Rule 407, SCACR: Rule 1.1 (lawyer shall provide competent representation to a client); Rule 1.3 (lawyer shall act with reasonable diligence and promptness in representing a client); Rule 1.15 (lawyer shall hold property of clients and third persons in the lawyer's possession in connection with a representation separate from the lawyer's own property); Rule 5.3 (partner in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that a non-lawyer employees conduct is compatible with the professional obligations of the lawyer); and Rule 8.4(a) (it is professional misconduct for a lawyer to violate the Rules of Professional Conduct).
Respondent further admits her misconduct is grounds for discipline under Rule 7, RLDE, of Rule 413, SCACR, specifically Rule 7(a)(1) (it shall be ground for discipline for lawyer to violate Rules of Professional Conduct). In addition, respondent admits her misconduct violated Rule 417, SCACR.
CONCLUSION
We accept the Agreement for Discipline by Consent and disbar respondent. The disbarment shall be retroactive to the date of respondent's interim suspension. Within thirty (30) days of the date of this opinion, respondent shall pay the costs incurred by ODC and the Commission on Lawyer Conduct as a result of the investigation in this matter. Within fifteen (15) days of the date of this opinion, respondent shall file an affidavit with the Clerk of Court showing that she has complied with Rule 30 of Rule 413, SCACR, and shall also surrender her Certificate of Admission to the Practice of Law to the Clerk of Court.
In addition, should it be determined that any restitution remains outstanding, ODC and respondent shall file a restitution plan with the Court within thirty (30) days of the date of *488 this opinion. In the plan, respondent shall agree to pay restitution to all clients, banks, and other persons and entities who have incurred losses as a result of her misconduct in connection with this matter. Moreover, in the restitution plan, respondent shall agree to reimburse the Lawyers' Fund for Client Protection for any claims paid as a result of her misconduct in connection with this matter.
DISBARRED.
TOAL, C.J., MOORE, WALLER, PLEICONES and BEATTY, JJ., concur.
NOTES
[1] Respondent admits that, while she understood the HUD-1 Settlement Statement, she did not understand that the funds shown on the balance sheet had not been received.
[2] Since her interim suspension, respondent has made efforts to have the accounts reconciled and to bring the client accounts into balance. It is believed there is a surplus of funds in the accounts at this time. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374701/ | 657 S.E.2d 428 (2008)
Karen COULTER, as Guardian for Joshua Coulter, Don and Karen Coulter, individually,
v.
CATAWBA COUNTY BOARD OF EDUCATION.
No. COA07-717.
Court of Appeals of North Carolina.
March 4, 2008.
Bryce O. Thomas, Jr., Hickory, for plaintiff-appellants.
Attorney General Roy A. Cooper, by Assistant Attorney General Tina Lloyd Hlabse, for defendant-appellee.
STEELMAN, Judge.
The Industrial Commission's findings of fact are supported by competent evidence, and the Industrial Commission did not err in concluding that plaintiffs failed to prove that defendant's employee was negligent and that the negligence of defendant's employee caused injury to the minor plaintiff.
I. Factual and Procedural Background
On 17 August 2001, Joshua Coulter (plaintiff) was a student passenger on a school bus driven by Brenda Foster (Foster), an employee of the Catawba County Board of Education (defendant). At approximately 3:30 p.m., Foster was returning to Webb A. Murray Elementary School in Newton, N.C. Foster was traveling on Section House Road towards Garren Drive, the driveway leading into the school. As Foster was making the right turn onto Garren Drive, she saw a car *430 coming towards her at a "fairly fast rate of speed." The front tire of the car was across the center line and in Foster's lane of travel. In order to avoid a collision, Foster turned the bus to the right, causing the rear tire to hit the curb. When the tire went over the curb, plaintiff was thrown against the side window of the bus, breaking the window. Plaintiff was taken to the hospital and treated for cuts to his left neck, chin, upper lip, and scalp.
On 12 August 2004, plaintiffs filed this action against defendant pursuant to Article 31 of Chapter 143 of the General Statutes (Tort Claims Act). This matter was docketed and heard by the North Carolina Industrial Commission. On 2 February 2007, the Industrial Commission filed its Opinion and Award, which held that "Plaintiff failed to prove that defendant was negligent and that negligence caused the damages of which plaintiff complains." Plaintiffs appeal.
II. Commission's Dismissal of Plaintiff's Claim
In their first argument, plaintiffs contend the Commission erred in dismissing their claim. We disagree.
The North Carolina Tort Claims Act provides for payment of damages for personal injuries sustained by any person
as a result of the negligence of any officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, . . . under circumstances where the State of North Carolina, if a private person, would be liable to the claimant in accordance with the laws of North Carolina.
N.C. Gen.Stat. § 143-291 (2007). "To recover under the Tort Claims Act, plaintiff must show that the injuries sustained by his son were the proximate result of a negligent act of a state employee acting within the course and scope of his employment." Bolkhir v. N.C. State Univ., 321 N.C. 706, 709, 365 S.E.2d 898, 900 (1988) (citations omitted). "Under the Act, negligence is determined by the same rules as those applicable to private parties." Id. (citation omitted). "Negligence is the failure to exercise proper care in the performance of a legal duty which the defendant owed the plaintiff under the circumstances surrounding them." Dunning v. Warehouse Co., 272 N.C. 723, 725, 158 S.E.2d 893, 895 (1968) (citation omitted).
N.C. Gen.Stat. § 143-293 governs appeals from the Industrial Commission to this Court, arid provides in pertinent part:
. . . Such appeal shall be for errors of law only under the same terms and conditions as govern appeals in ordinary civil actions, and the findings of fact of the Commission shall be conclusive if there is any competent evidence to support them. . . .
N.C. Gen.Stat. § 143-293 (2007).
On appeal, this Court does not have the right to weigh the evidence and decide the issue on the basis of its weight. The court's duty goes no further than to determine whether the record contains any evidence tending to support the finding.
McGee v. N.C. Dep't of Revenue, 135 N.C.App. 319, 324, 520 S.E.2d 84, 87-88 (1999) (citations and quotations omitted).
Plaintiffs argue that Foster made inconsistent statements, and that these alleged inconsistent statements prove that she was negligent and that this negligence was the proximate cause of the minor plaintiff's injuries.
The Commission found that:
16. As a whole Ms. Foster's testimony is credible. Though there are slight differences in Ms. Foster's reported statements, they are not inconsistent to the point of making Ms. Foster's testimony not believable.
While Foster's testimony was not totally consistent, there is competent evidence in the record to support the Commission's findings of fact. See Vaughn v. Insulating Servs., 165 N.C.App. 469, 472, 598 S.E.2d 629, 631 (2004) (citation omitted). "Moreover, the Commission is the sole judge of the credibility of witnesses and the weight to be given the evidence." Id. (citation omitted).
Plaintiffs point to an alleged statement by Foster to Ms. Coulter that she was going faster than she should have been. However, Foster did not recall making this statement. Foster also testified that she was going less *431 than five miles per hour when she turned off of Section House Road. This testimony is supported by the report prepared by Clarence Teague, Director of Transportation for defendant.
Plaintiffs further contend that the Industrial Commission's findings of fact 7-11 were not supported by the evidence. These findings read as follows:
7. Thereafter, Ms. Foster's attention was focused on turning onto Garren Drive.
8. Ms. Foster slowed her bus, checked her reference points and mirrors and specifically recalled looking out her bus door and seeing the curb, as she was trained to do in order to miss hitting the curb.
9. As she was making the turn, Ms. Foster estimated her speed to be less than five miles per hour.
10. As Ms. Foster was turning onto Garren Drive, she saw a small, dark vehicle coming off of Garren Drive at a high rate of speed toward her school bus and dart across the centerline.
11. Ms. Foster reacted to the oncoming vehicle in her lane by turning the school bus sharply to the right causing the rear tire of the school bus to go up on the curb and off again.
There is competent evidence in the record to support these findings. Foster testified as to facts supporting each of these findings, and the Commission found her testimony to be credible and determined the appropriate weight to give to it. See Vaughn, 165 N.C.App. at 472, 598 S.E.2d at 631.
Plaintiffs further contend that the Commission's findings of fact 22 and 29-32 were not supported by the evidence. These findings read as follows:
22. Dr. Munoz testified that the accident and severity of the scar had an impact on Joshua psychologically. However, there were no new diagnoses made for Joshua after this incident. There are no references made in Dr. Munoz's notes as to what affect, if any, this incident had on Joshua's self-esteem or self-image. . . .
29. Jewell Blount and Darlene Woodruff, both school bus drivers at Murray Elementary, testified that they have run up on the curb as they were turning onto Garren Drive from Section House Road.
30. There was no evidence presented by plaintiff as to what speed was too fast for that turn. The other bus drivers testified that they routinely and safely made the turn onto Garren Drive from Section House Road going ten to fifteen miles per hour.
31. The only testimony as to Ms. Foster's speed on August 17, 2001 was Ms. Foster's testimony that she was traveling less than five miles per hour.
32. There was insufficient evidence to support a finding that Ms. Foster was in violation of any law in her operation of the bus.
As to finding of fact 29, Jewell Blount, a school bus driver, testified "I've hit the curb several times." Darlene Woodruff, another school bus driver, testified that she has hit the curb when turning onto Garren Drive. This testimony constitutes competent evidence supporting this finding.
With respect to finding of fact 30, the record reveals that plaintiffs presented no evidence regarding what speed would have been too fast to make the right turn onto Garren Drive. Jewell Blount and Darlene Woodruff testified that they routinely made the turn safely while traveling at a speed, of ten to fifteen miles per hour.
As to finding of fact 31, Foster testified that she was traveling at less than five miles per hour. As previously discussed, although Ms. Coulter testified that Foster made contradictory statements, the Commission found Foster's testimony to be credible.
Finding of fact 32 is supported by competent evidence in the record. Foster testified that she was going less than five miles per hour and that she checked her mirrors, oncoming traffic, and traffic behind her and to her right and left before making the turn. Before turning, Foster looked to see if there were any vehicles coming out of Garren Drive, and she did not see any. Foster also *432 checked that the curb was visible through the glass door to ensure that she would clear it upon making the turn. The Commission's finding that there is insufficient evidence of a violation of any law is supported by the record.
Each of the above discussed challenged findings of fact is supported by the evidence. The Commission's conclusions of law that plaintiff failed to prove that defendant was negligent and failed to prove that defendant's negligence caused the damages of which plaintiff complains are supported by the findings. Because the Commission did not err in concluding that plaintiff failed to prove that defendant was negligent, we need not discuss finding of fact 22, which pertains only to damages.
We affirm the Commission's dismissal of plaintiffs' claim. This argument is without merit.
III. Alleged Errors by Deputy Commissioner
In their next argument, plaintiffs contend that the Deputy Commissioner erred in denying their request to use deposition testimony in lieu of live testimony. Plaintiffs further contend that the Deputy Commissioner wrongfully expressed an opinion during the 24 August 2005 hearing. We disagree.
Appellate review is limited to the decision and order of the Industrial Commission. See N.C. Gen.Stat. § 143-293 (2007). Although plaintiffs' assigned as error the Deputy Commissioner's alleged errors, they have not assigned as error the Industrial Commission's failure to address this alleged error. Thus, this issue has not been properly preserved for our review.
This argument is without merit.
AFFIRMED.
Chief Judge MARTIN and Judge STEPHENS concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374659/ | 726 P.2d 344 (1986)
104 N.M. 667
Oliver Perry HOVEY, Petitioner,
v.
STATE of New Mexico, Respondent.
No. 16253.
Supreme Court of New Mexico.
October 1, 1986.
*345 Jacquelyn Robins, Chief Public Defender, Sheila Lewis, Asst. Public Defender, Santa Fe, for petitioner.
Paul Bardacke, Atty. Gen., Bill Primm, Asst. Atty. Gen., Santa Fe, for respondent.
OPINION
STOWERS, Justice.
Defendant Oliver Perry Hovey was tried before a jury and convicted of possession of a controlled substance, heroin. He appealed to the Court of Appeals, alleging that he received ineffective assistance of counsel, that the trial court abused its discretion in admitting evidence of his relationship with his estranged family, and that the trial court's communications with the jury outside his presence denied him due process of law. The Court of Appeals, reaching the merits on all three issues, affirmed his conviction.
This Court granted certiorari to review the Court of Appeals disposition of the improper jury contact issue only. We now reverse the Court of Appeals decision on that issue and remand for a new trial.
Defendant was arrested at a friend's apartment during a narcotics raid. Police officers testified that they saw defendant throw to the floor a foil packet, which was later found to contain heroin. A resident of the apartment testified that it was he, not defendant, who dropped the foil packet. The police officers searched defendant and in the pocket of the jacket he was wearing found a cellophane bag containing a syringe and a "cooker." Defendant testified that the jacket he was wearing was not his; another resident of the apartment, Ernesto Maldonado, denied defendant's involvement in drug transactions and testified that he had given defendant an old jacket of his to be worn over defendant's own clothing while defendant worked on Maldonado's car.
*346 During jury deliberations, the jurors sent several written questions to the trial judge. In each case, the court conferred with counsel for the prosecution and the defense, formulated a written response, and sent it to the jury room without objection by defense counsel. Defendant, however, was neither present during these conferences nor, he claims, aware of the communications until after the commencement of his appeal.
Defendant argues that the circumstances surrounding two of the jury communications deprived him of the right to be present during additional instructions to the jury provided by NMSA 1978, Crim.P. Rule 43 (Repl.Pamp.1985), and denied him the constitutional right to due process of law, U.S. Const. amends. V, VI, XIV; N.M. Const. art. II, § 14. The first note, signed by one of the jurors, asked:
1) Do we get to see the evidence (state's # 5 & 6 esp[ecially])?
2) Where did Mr. Hovey reside after the incident? (Was he incarcerated immediatelyor free for some time to obtain his jacket?[)]
The trial court informed the prosecution and defense counsel of the answer he wished to send and asked defense counsel, "Do you waive the presence of your client?" He replied, "I waive the presence of my client, your Honor. I have no objection to the answer the court is sending in." Over the prosecutor's objection on the ground that it was misleading, the trial court sent the following written answer to the jury:
# 1 The evidence will go to the jury room.
# 2 This was not introduced into evidence and cannot be considered, one way or the other.
The second disputed communication occurred while Judge Ashby was temporarily absent. Judge Allen was asked to provide the court's response to a note that asked:
Would it be possible to find out if the reference to the previous "2-hour" testimony given by the defendant was on his on [sic] behalf (i.e. his own trial) or for someone else's?
The trial court, consulting with counsel, asked, "Where is the defendant?" Defense counsel replied, "Billy Blackburn for Mr. Hovey. I would waive his presence at this time." The court inquired, "Is he out there?" "No, he's downstairs," defense counsel responded, "he's down in the holding cell." The court, defense counsel, and the prosecutor discussed an appropriate answer to the jury's question, and, with defense counsel's consent, the court sent to the jury a note stating:
You are only to consider the testimony which you have heard during the trial. We therefore can not answer your question.
The jury returned a verdict of guilty of possession of heroin.
After the jury has begun its deliberations, the jurors need not be recalled into open court for all communications with the trial court. Written communications may be made pursuant to NMSA 1978, Crim.P. Rule 43(d) (Repl.Pamp.1985), which provides that
[c]ommunications between the judge and the jury may be made in writing without recalling the jury after notice to the attorneys and an opportunity for objection. Unless requested by counsel for the defendant, communications not relating to issues of the case at trial may be made without recalling the defendant.
The second sentence of Crim.P. Rule 43(d) clearly implies that the defendant must be recalled when a communication relating to issues of the case at trial is made. This distinction reflects the wellsettled law of New Mexico that it is improper for the trial court to have any communication with the jury concerning the subject matter of the court proceedings except in open court and in the presence of the accused and his counsel. See State v. Orona, 92 N.M. 450, 456, 589 P.2d 1041, 1047 (1979); State v. Beal, 48 N.M. 84, 91, 146 P.2d 175, 180 (1944); State v. Brugger, *347 84 N.M. 135, 137, 500 P.2d 420, 422 (Ct. App.1972).
A presumption of prejudice arises whenever such an improper communication occurs, and the State bears the burden of rebutting that presumption by making an affirmative showing on the record that the communication did not affect the jury's verdict. See State v. Orona, 92 N.M. at 456, 589 P.2d at 1047; State v. Beal, 48 N.M. at 92, 146 P.2d at 180; State v. McClure, 94 N.M. 440, 441-42, 612 P.2d 232, 233-34 (Ct.App.1980); State v. Brugger, 84 N.M. at 137, 500 P.2d at 422. The Court of Appeals here found that no prejudice had resulted because the trial court merely had refused to answer requests for information not introduced into evidence during trial and because defendant failed to argue on appeal that the trial court's responses were erroneous.
We believe that the Court of Appeals misconstrued the record and misinterpreted the law. Defendant's brief in fact did argue that the trial court's response to the jury question about defendant's residence was misleading. We agree with defendant that, unlike the answer given about defendant's previous testimony, the answer that defendant's residence had not been admitted into evidence and could not be considered by the jury was an improper characterization by the trial court of the circumstantial evidence introduced and a direction by the trial court limiting the scope of the jury's deliberations.
Apart from arguing that these responses were accurate, the State made no attempt to demonstrate that the jury's verdict was not affected by the trial court's improper communication. Because the State failed to meet its burden of proof, the presumption of prejudicial error must prevail. See State v. Orona, 92 N.M. at 456, 589 P.2d at 1047; see also State v. McClure, 94 N.M. at 442, 612 P.2d at 234 (no showing that definitional instruction was not prejudicial); State v. Brugger, 84 N.M. at 137, 500 P.2d at 422 (no showing of status of jury deliberations at time of communication). We therefore hold that the Court of Appeals erred in affirming defendant's conviction on the grounds that the jury communications made outside defendant's presence were not prejudicial to defendant and constituted harmless error.
The State further argues that no reversible error occurred when the trial court communicated with the jury in writing outside the presence of defendant because defense counsel waived defendant's presence each time such a communication was made. Defendant argues in response that the defendant's right to be present is a constitutionally protected fundamental right that cannot be waived, at least not by defense counsel.
By promulgating Crim.P.Rule 43(d), this Court has assured defendants the right to be present when written communications are made between the judge and the jury "relating to issues of the case at trial." We therefore do not reach the question whether defendant's right to be present at the time of the jury communications here at issue is of constitutional dimension.
Nevertheless, we long have recognized that defendants' rights, even constitutional rights, may be waived. Cf. Baird v. State, 90 N.M. 667, 669-70, 568 P.2d 193, 195-96 (1977) (defects in grand jury proceedings); Neller v. State, 79 N.M. 528, 532, 445 P.2d 949, 953 (1968) (representation by counsel). Clearly, the defendant need not be present in court in order to waive his right to be present. We have permitted defendants to waive in writing their presence at all phases of the prosecution of offenses punishable by sentences of less than one year. See NMSA 1978, Crim.P.R. 47(c)(2) (Repl.Pamp. 1985). Furthermore, we have deemed certain conduct by defendants a waiver of the right to be present, even in the absence of express consent. See NMSA 1978, Crim. P.R. 47(b) (Repl.Pamp.1985); see also State v. Corriz, 86 N.M. 246, 247, 522 P.2d 793, 794 (1974).
In situations in which the defense counsel seeks to notify the trial court of the defendant's waiver of his right to be present, the trial court should take such *348 steps as are necessary to ascertain that the waiver has been made voluntarily, knowingly, and intelligently. Cf. Neller, 79 N.M. at 532, 445 P.2d at 953 (right to counsel). The validity of the waiver may be established through the defense counsel, the defendant, or both. See People v. Epps, 37 N.Y.2d 343, 351, 372 N.Y.S.2d 606, 613, 334 N.E.2d 566, 572, cert. denied, 423 U.S. 999, 96 S. Ct. 430, 46 L. Ed. 2d 374 (1975); cf. State v. Padilla, 98 N.M. 349, 354, 648 P.2d 807, 812 (Ct.App.), cert. denied, 98 N.M. 336, 648 P.2d 794 (1982) (binding waiver by counsel regarding sentence and fine).
Because defendant was in custody at the time of the communications at issue here, the trial court could not properly infer that he had waived his presence by voluntary absence under NMSA 1978, Crim.P.Rule 47(b)(1) (Repl.Pamp.1985). See, e.g., Diaz v. United States, 223 U.S. 442, 455, 32 S. Ct. 250, 253, 56 L. Ed. 500 (1912); Bustamante v. Eyman, 456 F.2d 269, 274 (9th Cir.1972); Evans v. United States, 284 F.2d 393, 395 (6th Cir.1960); State v. Chavez-Inzunza, 145 Ariz. 362, 365, 701 P.2d 858, 861 (App.1985); State v. Fennell, 218 Kan. 170, 178, 542 P.2d 686, 694 (1975); People v. Asher, 21 Mich.App. 524, 526-27, 175 N.W.2d 538, 539 (1970); Commonwealth v. Diehl, 378 Pa. 214, 218, 107 A.2d 543, 545 (1954); see also People v. Epps, 37 N.Y.2d at 350, 372 N.Y.S.2d at 612, 334 N.E.2d at 571 (defendant in custody is capable of knowing and voluntary waiver). The record indicates that the trial court accepted defense counsel's statement that "I would waive his [defendant's] presence at this time" without determining whether defense counsel was waiving the right or whether defendant voluntarily was doing so through his attorney.
Because defendant, under Crim.P.Rule 43(d), had the right to be present during the jury communications at issue and because the record in this case is insufficient to show a valid waiver of that right, we reverse defendant's conviction and remand for a new trial.
IT IS SO ORDERED.
RIORDAN, C.J., and FEDERICI, J., concur.
WALTERS, J., and SOSA, Senior Justice, specially concurring.
WALTERS, Justice (specially concurring).
I concur in the result, but do so on the basis of defendant's constitutional right of presence at every stage of the trial, not merely upon the implied right granted under Crim.P.Rule 43(d). Rules may be altered, amended, reinterpreted, or withdrawn; constitutional protections are of sturdier stuff. The "constitutional dimension" of the issue which the majority purportedly deems unnecessary "to reach," has already been decided in this jurisdiction and should not be ignored and overlooked.
Although, as the majority notes, even constitutional rights may be waived, New Mexico has long recognized the right of presence as a constitutional right. We have, by reason of Supreme Court decisions (e.g., Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965); Diaz v. United States, 223 U.S. 442, 32 S. Ct. 250, 56 L. Ed. 500 (1912)), modified our early and intractable position that
[i]n felonies, it is not in the province of the prisoner, either by himself or by his counsel, to waive the right to be personally present during the trial.
Territory v. Lopez, 3 N.M. 156, 164, 2 P. 364, 367 (1884). We acknowledged, in State v. Corriz, 86 N.M. 246, 522 P.2d 793 (1974), that a defendant's constitutional right to be present may be voluntarily waived, and that by disruptive conduct a defendant may lose his right to be present by bringing himself into the single exception to non-voluntary waiver enunciated in Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970).
Consequently, unless the defendant voluntarily elects to absent himself, or is excluded from the courtroom by reason of "disruptive, contumacious, or stubbornly defiant" conduct, (Corriz, at 247, 522 P.2d at 794), his right to be present is a constitutional *349 right that may not be waived by the attorney who acts without defendant's express consent.
SOSA, Sr.J., concurs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374810/ | 208 Ga. 754 (1952)
69 S.E.2d 567
SIMPSON
v.
HAYES.
17744.
Supreme Court of Georgia.
Argued January 16, 1952.
Decided February 11, 1952.
Rehearing Denied March 13, 1952.
*755 Pittman, Hodge & Kinney, Alston, Foster, Sibley & Miller, and Wm. B. Spann Jr., for plaintiff.
Mitchell & Mitchell, for defendant.
ATKINSON, Presiding Justice.
(After stating the foregoing facts.) While the precise question presented is the legality of the trial judge's order of January 29, 1951, in striking the plaintiff's third amendment, yet, to determine that question, it becomes necessary to consider the effect of the prior order of the judge issued on June 22, 1950, after the first amendment was filed, the effect of which was to dismiss the petition but allow ten days to reinstate the case by asserting proper allegations. There was no exception to this order. When on June 29, which was within the ten-day period, the second amendment was filed, whether the case would be reinstated or not, would depend upon whether the amendment filed was sufficient to meet the criticism *756 of the demurrer. If so, the cause of action became reinstated. If not, it remained dismissed as of the date of the order of June 22. Pratt v. Gibson, 96 Ga. 807 (23 S.E. 839); Clark v. Ganson, 144 Ga. 544 (87 S.E. 670); Speer v. Alexander, 149 Ga. 765 (102 S.E. 150); Lavenden v. Haseman, 157 Ga. 275 (121 S.E. 646); Humphries v. Morris, 179 Ga. 55 (1) (175 S.E. 242); Smith v. Atlanta Gas-Light Co., 181 Ga. 479 (2) (182 S.E. 603); Howell v. Fulton Bag & Cotton Mills, 188 Ga. 488 (4 S.E. 2d, 181); Gamble v. Gamble, 193 Ga. 591 (19 S.E. 2d, 276). After the amendment was filed, the defendant, on July 17 taking the position that the amendment had not met the criticism of the general demurrer moved to strike the case from the docket. The trial judge overruled this motion, the effect of this ruling being that the judge construed the amendment as meeting the criticism of the demurrer. Exceptions to this ruling were taken, and the Court of Appeals reversed the trial judge Hayes v. Simpson, 83 Ga. App. 22, 62 S.E. 2d, 441), holding that the amendment did not cure the defect asserted by the demurrer. It was thus determined that the plaintiff had not amended his petition to meet the grounds of demurrer. The amendment, not containing the necessary allegations to reinstate the case, was the same as filing no amendment, and it thus remained dismissed as of the date of the court's order and no part of the case was then pending. The ruling of the Court of Appeals that the proffered amendment was not sufficient to reinstate the case became the law of the case. City of Atlanta v. Smith, 165 Ga. 146 (1) (140 S.E. 369), and citations. It had the same effect as if the trial judge had dismissed the case, and is controlled by the rule that, after a general demurrer to a declaration has been sustained and the cause dismissed by the lower court, and that judgment affirmed by the appellate court without condition or direction, the declaration is not amendable, as in Central R. & Bkg. Co. v. Paterson, 87 Ga. 646 (13 S.E. 525); Harp v. Southern Ry. Co., 119 Ga. 927 (4) (47 S.E. 206); City of Rome v. Sudduth, 121 Ga. 420 (1) (49 S.E. 300); Kehr v. Floyd & Co., 135 Ga. 424 (69 S.E. 550); Federal Investment Co. v. Ewing, 166 Ga. 246 (2) (142 S.E. 890); McRae v. Sears, 183 Ga. 133 (187 S.E. 664); Redwine v. Frizzell, 185 Ga. 191 (194 S.E. 175); Durham v. Smith, 188 Ga. 233 (3 S.E. 2d, 719). It does not come under *757 the rule that, where a judgment overruling a demurrer to a petition has been reversed by the appellate court, an amendment may be filed before the appellate-court judgment is made the judgment of the lower court, as in Owens v. Owens, 190 Ga. 191 (8 S.E. 2d, 644), and citations, because under that circumstance the case is still pending in the lower court.
Accordingly, when on January 15, just before the remittitur from the Court of Appeals was transmitted to the lower court, the plaintiff filed a third amendment, it came too late, as no part of the case was pending in the lower court, since, under the terms of the trial judge's order, as determined by the Court of Appeals, it had been dismissed as of June 22; and it was therefore not error for the trial judge to strike the third amendment and strike the case from the docket.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374832/ | 85 Ga. App. 252 (1952)
69 S.E.2d 102
HARPER
v.
THE STATE.
33801.
Court of Appeals of Georgia.
Decided January 22, 1952.
*254 J. T. Sisk, for plaintiff in error.
Carey Skelton, Solicitor-General, contra.
TOWNSEND, J.
(After stating the foregoing facts.) 1. A careful examination of the evidence discloses that the mother of the defendant and Columbus Self had equal opportunity with the defendant to possess the liquor found in the hallway of the house; also, that the mother of the defendant, Columbus Self, and the tenant of the defendant's mother had equal opportunity with the defendant to possess the liquor found in the corn crib.
2. The jury was authorized to disregard the testimony of the hired man to the effect that all the liquor found on the premises was his liquor, and that the defendant was in no way connected with it, because of a prior contradictory statement he had made to the officers. See Code, § 38-1803. When his testimony is thus disregarded, however, he is not eliminated as one of the persons who could have committed the crime merely because the jury elected to disregard his testimony that he was the one who owned it. So treated, it must be placed in the same category as if he had not testified at all. The other persons having equal opportunity with the defendant to commit the crime did not testify. The evidence therefore is not sufficient to exclude every reasonable hypothesis save that of the guilt of the accused.
3. As between husband and wife, there is a presumption of law that whisky found in the home belongs to the husband, who is the head of the house. Morris v. State, 51 Ga. App. 145 (179 S.E. 822); Acker v. State, 78 Ga. App. 819 (e) (52 S.E. 2d, 559); Gilder v. State, 52 Ga. App. 252 (183 S.E. 95). But such a presumption cannot be broadened to include all relatives who may be living in the same house with the defendant, and this is all the more true where the relative here, an adult woman who is the defendant's mother, is not living in her son's home but, *255 on the contrary, the son and his family are living with the mother, who owns the home and farms a part of the adjoining land in her own right, employing a laborer for this purpose. The facts here are such that others than the defendant had equal opportunity to commit the offense. Summerville v. State, 68 Ga. App. 13 (21 S.E. 2d, 909); Cummings v. State, 25 Ga. App. 427 (103 S.E. 687); Wright v. State, 48 Ga. App. 302 (172 S.E. 687); Kennedy v. State, 23 Ga. App. 141 (97 S.E. 894); Palmer v. State, 76 Ga. App. 881 (47 S.E. 2d, 604); Roper v. State, 67 Ga. App. 272 (19 S.E. 2d, 746); Gray v. State, 51 Ga. App. 458 (180 S.E. 758); Graham v. State, 51 Ga. App. 93 (179 S.E. 637); Jelks v. State, 36 Ga. App. 638 (137 S.E. 840).
4. One of the two special assignments of error is considered with the general grounds, and the other is not passed upon, since it is not likely to occur in another trial.
The trial court erred in overruling the motion for a new trial.
Judgment reversed. Gardner, J., concurs. MacIntyre, P. J., concurs specially.
MacINTYRE, P. J., concurring specially. Where the defendant and his family, over whom he has the right of control, reside together, the legal presumption is that the house and the household effects, including intoxicating liquors, belong to him as head of the family. Isom v. State, 32 Ga. App. 75 (122 S.E. 722). This presumption is, of course, rebuttable. In this case, however, Columbus Self, a person other than the defendant or a member of the defendant's family, lived in the defendant's house; and there was no evidence that Self did not have control or possession of such intoxicating liquors as were discovered in the defendant's house, except the testimony of witnesses as to what Self, not the defendant, had told them; and, while this testimony, under the facts of this case, might have been used for the purpose of impeaching the witness Self, it was pure hearsay as far as the defendant's possession of the intoxicating liquors was concerned, and was of no probative value. The State, I think, for that reason did not carry the burden of proving beyond a reasonable doubt that the defendant was in possession of the prohibited liquors. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374835/ | 221 S.C. 160 (1952)
69 S.E.2d 594
JOHNSON
v.
BRANDON CORP.
16591
Supreme Court of South Carolina.
February 8, 1952.
*161 Messrs. Wyche, Burgess & Wyche, of Greenville, Young, Bell & Callison, of Greenwood, and Kerr & Evins and Harvey W. Johnson, of Spartanburg, for Appellant.
Messrs. Haynsworth & Haynsworth and Stephen Nettles, of Greenville, and Grier, McDonald, Todd & Burns, of Greenwood, for Respondent.
*162 February 8, 1952.
OXNER, Justice.
On March 14, 1949, this action was instituted by appellant, a stockholder in the Brandon Corporation, to require said corporation (1) to declare a dividend on the Class B stock held by her, and (2) to cancel or modify the agreement under which the Woodward, Baldwin & Co. is selling the goods manufactured by the Brandon Corporation. It was alleged in the complaint that the dividends paid to plaintiff and other holders of Class B stock had not been commensurate with the earnings and financial condition of the corporation, and that the commissions paid by said corporation to its selling agent, Woodward, Baldwin & Co., were excessive.
Within due time an answer was filed by the Brandon Corporation in which, after denying that its dividend policy had been arbitrary or unfair, it was alleged that the earnings had been used to make necessary plant improvements, set up reasonable reserves, and pay dividends on or retire stock having preference over that held by plaintiff; and that the corporation was not in a position at that time to pay any further dividends on the class of stock held by plaintiff. It was further alleged that the selling agency agreement with Woodward, Baldwin & Co. was fair and reasonable.
In April, 1949, the attorneys for plaintiff sought to examine the president of the Brandon Corporation under Section *163 703 of the 1942 Code. Defendant moved to set aside these proceedings on the ground that there was no statutory provision warranting such examination. On June 9, 1949, Judge Martin granted the defendant's motion and quashed the purported service of the subpoena on its president. Due notice of appeal from this order was given by plaintiff. The parties having been unable to agree on the contents of the case for appeal, on August 17, 1949, plaintiff gave notice that she would move before Judge Martin for an order settling the record for appeal, but no further action or steps have been taken by either party to have the case for appeal settled or otherwise perfected.
Thereafter in November, 1949, the Brandon Corporation, Belton Mills and Abney Mills were merged into one corporation known as the Abney Mills. The plaintiff voted against the merger and within due time demanded the payment of the value of her stock in the Brandon Corporation. The facts with reference to the merger and the various proceedings subsequently had with reference to plaintiff's stock are stated at length in the opinion filed this day in the case of Johnson v. Baldwin, S.C. 69 S.E. (2d) 585, and need not be again repeated. It is sufficient to say that the instant action resulted, as did the case of Johnson v. Baldwin, supra, in an order by Judge Martin, dated March 31, 1951, dismissing the complaint upon the ground that the plaintiff had ceased to be a stockholder of the Brandon Corporation and, therefore, no longer had the capacity to prosecute the action.
The case of Johnson v. Baldwin, supra, and the instant case were heard together in this Court on oral argument. The only issue raised in the instant case which was not disposed of in the opinion filed in the other case is a contention by plaintiff that under Section 792 of the 1942 Code, the appeal by her from the order of Judge Martin filed on June 9, 1949, denying her the right to a pre-trial examination of defendant's president, stayed all further proceedings and, therefore, it was error for the Court, while said appeal *164 was pending, to hear the motion by defendant to dismiss the complaint.
We agree with the defendant that the appeal pending by plaintiff only stayed the proceedings in the Court below in so far as they involved the order appealed from. It is well established that "an appeal from an intermediate or interlocutory order does not divest the trial court of jurisdiction to proceed in matters not involved in the appeal." 3 Am. Jur., Appeal and Error, Section 534, page 195. To the same effect is § 609 of 4 C.J.S., Appeal and Error, page 1094. Also, see Bonner v. Western Union Telegraph Co., 71 S.C. 303, 51 S.E. 117; Marion, Receiver, v. Weston, 128 S.C. 396, 122 S.E. 498; Waring, Receiver, v. Johnson, 152 S.C. 317, 149 S.E. 840. The appeal from the order denying plaintiff the right to examine before trial the defendant's president has no relation to the right of the defendant to dismiss the instant action upon the ground that plaintiff has lost her status as a stockholder in the Brandon Corporation.
It is equally well settled that although a party may have an interest giving him a right of appeal, if that interest is divested pending the appeal, the appeal will be dismissed. 2 Am. Jur., Appeal and Error, Section 151, page 943; 4 C.J.S., Appeal and Error, § 1361. If, as we have held, plaintiff no longer has the capacity to continue this action, the question as to her right to a pre-trial examination of defendant's president becomes academic and moot.
All other issues raised by the exceptions have been duly considered and determined adversely to plaintiff in the companion case. To what was there said, it might not be amiss to add the following from Thompson v. Thompson, 214 S.C. 61, 51 S.E. (2d) 169, 172: "The surplus profits of a corporation are a part of its assets and do not belong to the stockholders individually. The stockholders have no right to demand such profits until they have *165 been set apart for the payment of dividends. Gable v. South Carolina Tax Commission, 189 S.C. 346, 1 S.E. (2d) 244; 13 Am. Jur., Corporations, Section 707. `Corporate earnings and profits remain the property of the company, until severed from the assets and distributed as dividends among the stockholders entitled thereto. It is the declaration of the dividend which creates both a dividend itself and the right of the stockholder to demand and receive it.' Fletcher Cyc. of Corporations, Permanent Edition, Volume 11, Section 5321, page 785. Of course, `if the directors of a corporation abuse their discretion, and fraudulently or arbitarily refuse to pay a dividend, when the condition of the corporation makes it their duty to do so, a court of equity will compel them to do so at the suit of a stockholder.' Fletcher Cyc. of Corporations, Permanent Edition, Volume 11, Section 5325, page 799. Such an action by a stockholder is one in the right of the corporation."
It is our conclusion that having lost her status as a stockholder, plaintiff no longer has the capacity to prosecute this action. Of course, in determining the value of her stock, it will be proper to take into consideration the financial condition of the Brandon Corporation at the time of the merger, including any surplus which plaintiff alleges was excessive and should have been distributed in paying dividends on her stock.
The order appealed from is affirmed, without prejudice, however, to the right of the plaintiff to take such action as she may be advised to have determined and to recover the value of her stock.
BAKER, C.J., and FISHBURNE, STUKES and TAYLOR, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374833/ | 208 Ga. 850 (1952)
69 S.E.2d 774
GILES
v.
GIBSON.
17776.
Supreme Court of Georgia.
Submitted February 12, 1952.
Decided March 12, 1952.
Rehearing Denied March 25, 1952.
Frank Grizzard, Frank A. Bowers and Norman H. Fudge, for plaintiff.
J. C. Savage, J. C. Murphy, J. M. B. Bloodworth, John E. Feagin and Henry L. Bowden, for defendant.
HEAD, Justice.
The ordinance under attack provides in part as follows: "Sec. 1. No person shall occupy the seat of a motor vehicle upon the public streets of the City of Atlanta, immediately under the steering wheel, while under the influence of intoxicating liquors or drugs."
It is contended by counsel for the petitioner that the ordinance of the city is in conflict with the general law of this State, to wit, Code § 68-307 as amended by the act of 1947 (Ga. L. 1947, p. 230), which reads in part as follows: "No person shall operate a motor vehicle or motorcycle upon any public street or highway, or any private way, private street, or private property in this state, whether as owner or operator of such vehicle, if under 16 years of age, or while under the influence of intoxicating liquors, or drugs."
Counsel for the respondent cite Loach v. City of LaFayette, 19 Ga. App. 639 (91 S.E. 1057), and the cases there cited, and emphasize the following language: "An act penalized by a law of the State may be penalized also by a municipal ordinance, if there is in the municipal offense some essential ingredient not essential to the State offense, or if the municipal offense lacks some ingredient essential to the State offense." The quotation from Loach v. City of LaFayette, supra, is not in accord with the correct rule for testing the validity of a municipal ordinance. A municipal ordinance is nothing more than a special law *852 limited in its application to the territory embraced within the municipality.
In City of Atlanta v. Hudgins, 193 Ga. 618, 623 (19 S.E. 2d, 508), Mr. Chief Justice Duckworth, in speaking for this court, stated in part as follows: "This provision of the Constitution [Code, Ann., § 2-401] would be nullified if by play upon words and definitions the courts should hold valid a special law when there existed at the time of its enactment a general law covering the same subject-matter. The mere fact that the special law deals with some remote segment or element of the general subject embraced in the general law, which segment or element is not dealt with by the general law, does not alter the fact that such a special law is enacted in a case where provision has been made by an existing general law. The General Assembly in the exercise of its judgment might wish that portions of the subject dealt with by the general statute should remain free from regulation by law." See also Mayor &c. of Savannah v. Hussey, 21 Ga. 80 (68 Am. D. 452); Jenkins v. Mayor &c. of Thomasville, 35 Ga. 145; Vason v. City of Augusta, 38 Ga. 542; Reich v. State, 53 Ga. 73 (21 Am. R. 265); Rothschild v. City of Darien, 69 Ga. 503; Turner v. Mayor &c. of Forsyth, 78 Ga. 683 (3 S.E. 649); Hood v. Von Glahn, 88 Ga. 405 (14 S.E. 564); Kahn v. City of Macon, 95 Ga. 419 (22 S.E. 641); Strauss v. Mayor &c. of Waycross, 97 Ga. 475 (25 S.E. 329); Moran v. City of Atlanta, 102 Ga. 840 (30 S.E. 298); Kassell v. Mayor &c. of Savannah, 109 Ga. 491 (35 S.E. 147); Littlejohn v. Stells, 123 Ga. 427 (51 S.E. 390); Glover v. State, 126 Ga. 594 (55 S.E. 592); Smith v. Chapman, 166 Ga. 479 (143 S.E. 422); Marshall v. City of Griffin, 173 Ga. 782 (161 S.E. 622); Long v. State, 202 Ga. 235 (42 S.E. 2d, 729).
Applying the rule stated in City of Atlanta v. Hudgins, supra, the prisoner in the present case was entitled to be released on his writ of habeas corpus, and the court erred in remanding him to the custody of the superintendent.
Since the prisoner was sentenced to serve sixty days in the city prison on December 26, 1951., and more than sixty days have elapsed since the imposition of such sentence, the question is presented as to whether or not this court should pass upon his writ of error. In Johnson v. Harris, 13 Ga. App. 618 (79 S. E. *853 588), under similar facts and circumstances, the Court of Appeals held that it would "be assumed" that "the sentence had been satisfied." The decision by the Court of Appeals in Johnson v. Harris, supra, has been cited by that court in Savage v. State, 24 Ga. App. 550 (101 S.E. 711) and in Kirksey v. Geer, 31 Ga. App. 52 (119 S.E. 440). The decision of the Court of Appeals in Johnson v. Harris, supra, made no reference to the ruling of this court in Lark v. State, 55 Ga. 435, wherein it was held: "Habeas corpus and writ of error thereon, having been brought to free a party from imprisonment under a sentence alleged to be illegal, the writ of error will not be dismissed, when reached for argument in the Supreme Court, on the ground that the period of time covered by the sentence has then expired. There is no presumption that an illegal imprisonment has terminated, or that it will terminate, in a voluntary discharge." Under the ruling of this court in Lark v. State, supra, the ruling by the Court of Appeals in Johnson v. Harris, supra, constitutes no authority for refusing to pass upon the writ of error.
Judgment reversed. All the Justices concur, except Atkinson, P. J., and Candler, J., who dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374845/ | 208 Ga. 757 (1952)
69 S.E.2d 574
BLACKWELL
v.
FARRAR; et vice versa.
17716, 17717.
Supreme Court of Georgia.
Argued January 17, 1952.
Decided February 11, 1952.
Rehearing Denied March 13, 1952.
*758 Robert W. Spears, Wm. G. Grant and Grant, Wiggins, Grizzard & Smith, for plaintiff in error.
J. Robin Harris and McCurdy & Candler, contra.
ATKINSON, Presiding Justice.
The only assignments of error in the main bill of exceptions relate to admissibility of evidence, and to the refusal to grant an interlocutory injunction. The trial judge's certificate recites "that the above and foregoing bill of exceptions, including exhibit `A' thereto attached, is true and contains all of the evidence and specifies all of the record material to a clear understanding of the errors complained of." A motion was made in the Supreme Court to dismiss the bill of exceptions, on the ground that the exhibit "A" referred to therein is not a part of the bill of exceptions because it does not precede the judge's certificate but follows it, and it is not identified by the judge. Where no motion for a new trial is filed the evidence may follow the judge's certificate as an exhibit, referring to it as such in the bill of exceptions, and having the judge to place his signature to or upon the exhibit to identify it as the same to which the bill of exceptions refers. Colquitt v. Solomon, 61 Ga. 492; Roberts v. City of Cairo, 133 Ga. 642 (2) (66 S.E. 938); Rushing v. DeLoach, 149 Ga. 483 (3) (100 S.E. 571); Smith v. Buchanan, 182 Ga. 250 (185 S.E. 317); McElveen v. O'Kelley, 193 Ga. 824 (20 S.E. 2d, 69); Boney v. Smallwood, 204 Ga. 782 (51 S.E. 2d, 847); Attaway v. Duncan, 206 Ga. 230 (1) (56 S.E. 2d, 269). Held:
Where as here the judge's certificate refers to an exhibit containing the evidence which follows the certificate, but the exhibit is not identified as being the same to which the certificate refers, and no questions being presented which can be determined in the absence of the evidence, the judgment must be affirmed. In such circumstances the cross-bill of exceptions will be dismissed, since no ruling on the cross-bill could benefit the plaintiff in error therein.
Judgment on the main bill of exceptions affirmed. Cross-bill of exceptions dismissed. All the Justices concur except Candler, J., who is disqualified, and Almand, J., who dissents.
ALMAND, Justice, dissenting. The main bill of exceptions recites that on the hearing the plaintiff and the defendant both introduced evidence, "a brief whereof is set out in *759 Exhibit `A' hereto attached and made a part of this bill of exceptions," and the certificate of the trial judge recites that the bill of exceptions, "including Exhibit `A' thereto attached, is true and contains all of the evidence" material to a clear understanding of the errors complained of; and following this certificate is Exhibit "A", which purports to be the brief of evidence.
The defendant in error in this case has not made and does not make any contention that the evidence set out in Exhibit "A" attached to the bill of exceptions is not a true and correct brief of the evidence introduced on the trial. The judgment of the trial court is affirmed on the ground that the evidence is necessary for a determination of the questions involved, and that since the evidence is contained in an exhibit attached to the bill of exceptions and such exhibit follows the judge's certificate, but does not appear to have been identified by him, such evidence can not be considered, and the judgment complained of must be affirmed.
The majority of the court base their decision on numerous decisions. These cases support the position of the majority, but all of such cases are founded on Rule 10, which was adopted by this court in 1869, and which reads as follows: "A brief of the oral and a copy of the written testimony in the case shall be incorporated in the bill of exceptions, or be attached thereto, as an exhibit, when presented to the judge for his certificate in which latter case, it shall be identified, as true, by the signature of the judge thereupon." 38 Ga. 689.
In 1889, the General Assembly enacted a statute prescribing the manner of taking cases to the Supreme Court (Ga. L. 1889, p. 114), which superseded Rule 10. After the passage of this act, the rules promulgated by this court omitted therefrom this rule. 97 Ga. p. ix. Since 1889, there has been neither any statute nor any rule of this court which requires that an exhibit contained in a bill of exceptions should be identified as true by the signature of the trial judge thereupon. In my opinion, Code § 6-806, as amended by the act of 1946 (Ga. L. 1946, pp. 726, 732; Code, Ann. Supp., § 6-806), does not require the trial judge to verify by his signature an exhibit containing a brief of the evidence in a case, where the exhibit either appears before or follows the judge's signature, as long as the exhibit containing the evidence is specified in the bill of exceptions, and is referred to *760 and certified by the judge in his certificate. This Code section as amended prescribes the form of certificate of the judge to the bill of exceptions, and provides that whenever a judge shall attach his signature to a certificate, and the language of the certificate is such as to indicate the intention of the judge to verify the correctness of the recitals contained therein, his signature "shall be construed as a verification of the bill of exceptions and the contents thereof unless by note thereto or modification thereof over his signature the contrary affirmatively appears." (Italics mine.) In the case before us, the evidence contained in Exhibit "A" is distinctly referred to in the bill of exceptions, and the judge certifies that this bill of exceptions, "including Exhibit `A' thereto attached," is true, and contains all of the evidence material to a clear understanding of the errors complained of. In my opinion, the brief of evidence is properly before the court, and we should decide the case on its merits. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374849/ | 208 Ga. 741 (1952)
69 S.E.2d 274
WATERS
v.
DEKALB COUNTY et al.
17702.
Supreme Court of Georgia.
Submitted January 17, 1952.
Decided February 13, 1952.
*744 Carl T. Hudgins and Thomas O. Davis, for plaintiff.
Eugene Cook, Attorney-General, T. V. Williams and W. V. Rice, Assistant Attorneys-General, and J. A. McCurdy, for zzzdefendants.
CANDLER, Justice.
(After stating the foregoing facts.) 1. Article I, Section III, Paragraph I, of our Constitution of 1945 (Code, Ann., § 2-301) emphatically declares that "private property shall not be taken, or damaged, for public purposes, without just and adequate compensation being first paid." The same provision appeared in the Constitution of 1877. Accordingly, if private property is taken or damaged for public purposes, even by the prudent and proper exercise of a power conferred by statute, the owner thereof is entitled to just and adequate compensation for the taking or the damaging thereof. It is argued, however, by counsel for DeKalb County and the *745 State Highway Department that the allegations of the petition as amended in the instant case affirmatively show that the plaintiff has no property in the leased premises that comes within the meaning and protection of the above-quoted constitutional guarantee; and, as authority for this position, they cite and rely upon Code § 61-101 to show that no estate passes out of the landlord to the tenant where the lease is for a period of less than five years. The position so taken is not tenable. This court held, by full-bench decisions, in Bentley v. City of Atlanta, 92 Ga. 623 (18 S.E. 1013), and Pause v. City of Atlanta, 98 Ga. 92 (26 S.E. 489, 58 Am. St. Rep. 290), that a tenant, although he has no estate in the land, is the owner of its use for the term of his rent contract, and can recover damages for any injury to such use resulting from the construction of a duly authorized public improvement. See also Bass v. West, 110 Ga. 698 (36 S.E. 244); Hayes v. City of Atlanta, 1 Ga. App. 25, 27 (57 S.E. 1087); City of Atlanta v. Hines, 39 Ga. App. 499 (147 S.E. 416); City of Rome v. LeCroy, 59 Ga. App. 644 (1 S.E. 2d, 759). Hence we hold in this case that the holder of a valid rent contract for realty, though it be for a period of less than five years, has a property right in the leased premises, which is protected by our constitutional provision declaring that private property cannot be taken or damaged, for a public use, without first paying just and adequate compensation for the same; and this is true whether the leasehold interest be taken or damaged by a county, a municipal corporation, or any other public organization. Smith v. Floyd County, 85 Ga. 420 (11 S.E. 850). There is no inconsistency between the ruling presently made and Code § 23-1502, which provides that a county is not liable to suit for any cause of action unless made so by statute. A right of action arises by necessary implication against a county when it violates a constitutional right of a citizen. Smith v. Floyd County, supra.
2, 3. These headnotes do not require elaboration.
Applying the principles of law dealt with in the foregoing divisions of this opinion, it was erroneous for the court to render the judgments complained of.
Judgment reversed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374843/ | 69 S.E.2d 1 (1952)
235 N.C. 125
NORTH CAROLINA STATE ART SOC., Inc. et al.
v.
BRIDGES, State Auditor.
No. 449.
Supreme Court of North Carolina.
February 16, 1952.
*4 R. L. McMillan, R. Mayne Albright, Raleigh, for plaintiffs, appellees.
Atty. Gen. Harry McMullan and Asst. Attys. Gen. T. W. Bruton and Claude L. Love, for defendant, appellant.
DEVIN, Chief Justice.
There was no controversy as to the facts. There was no exception to any of the findings of fact upon which the court below rendered judgment. The refusal of the defendant State Auditor to issue warrants for the purchase of works of art selected by the State Art Commission and his defense to plaintiffs' action were based solely on the view that before any payments could lawfully be made the purchases must have been appraised by the director or chief curator of the National Art Gallery of Washington, D. C., and that the Act did not authorize the substitution of any person however well qualified in lieu of those holding the positions named. There was no other ground alleged for denying the expendability of the legislative appropriation.
Therefore, the single question presented for our determination is whether the validity of the appropriation conditionally made by the General Assembly at its 1947 Session, Chap. 1097, and reaffirmed and implemented in 1951, Chap. 1168, for the purposes declared in those Acts, depends upon the appraisal of selected works of art being made by the particular persons named in the 1951 Act, or whether, upon the refusal of such persons to act, the appraisals by another competent and qualified art critic chosen and approved by the State Art Commission and the directors of the State Art Society, shall be regarded as a substantial compliance with the purposes and intent of the General Assembly as expressed in the Acts of 1947 and 1951. In other words, is the proviso in the Act of 1951 naming the person to make the appraisals mandatory or directory?
It is apparent from an examination of the pertinent statutes in the light of the facts found, that it was the intent of the General Assembly that before payment should be made for the works of art selected for purchase by the State Art Commission appraisal of their value, fitness and desirability should be made by a competent and qualified art critic to prevent imposition and to guard against the purchase of the spurious. The provision in the statute to that extent was manifestly mandatory. But it does not follow that it was considered essential that the appraisals should be made by the particular person holding the position named in the Act, in the event it became impossible for him to serve. It would seem that the employment of an equally qualified art critic to make the appraisals would accord with the expressed purpose of *5 the Act. Whether a particular provision in a statute is to be regarded as mandatory or directory depends more upon the purpose of the statute than upon the particular language used. As expressed by the Apostle Paul in his Second Epistle to the Corinthians, "The letter killeth, but the spirit maketh alive." 2 Cor:3-6. It is a general rule of statutory construction that when literal compliance with a non-essential provision of a statute has become impossible, compliance as near as may be, conformable to the general purpose and intent of the act, will be permitted. 50 A.J. 36, et seq.; 59 C.J. 963; Black's Interpretation of Laws, 534; Deibert v. Rhodes, 291 Pa. 550, 140 A. 515. In such case a substantial compliance will be deemed sufficient. The legislature will be presumed not to have intended compliance with a provision incapable of performance. Dalzell v. Kane, 321 Pa. 120, 183 A. 782, 104 A.L.R. 619. In determining whether a particular provision in a statute is to be regarded as mandatory or directory the legislative intent must govern, and this is usually to be ascertained not only from the phraseology of the provision, but also from the nature and purpose, and the consequences which would follow its construction one way or the other. Smith v. Davis, 228 N.C. 172, 179, 45 S.E.2d 51, 174 A.L.R. 643; Champion Shoe Machinery Co. v. Sellers, 197 N.C. 30, 147 S.E. 674; Spruill v. Davenport, 178 N.C. 364, 368, 100 S.E. 527; State v. Earnhardt, 170 N.C. 725, 86 S.E. 960; 59 C.J. 1073. The heart of a statute is the intention of the lawmaking body. State v. Humphries, 210 N.C. 406, 186 S.E. 473. The legislative purpose in providing machinery to attain a definite object may not be defeated by the inability of an individual to perform an expected function incidental to that purpose. State exinf. McAllister, Atty. Gen. v. Bird, 295 Mo. 344, 244 S.W. 938. By analogy a court of equity will not permit a trust to fail for want of a trustee. Moore v. Quince, 109 N.C. 85, 13 S.E. 872. And when it is made to appear that the use of specific property for the accomplishment of the purposes of a trust has been rendered impracticable or impossible as result of changed conditions, courts of equity will sanction the substitution of one form of property in lieu of another. Johnson v. Wagner, 219 N.C. 235, 13 S.E.2d 419; Trustees of Watts Hospital v. Com'rs of Durham, 231 N.C. 604, 58 S.E.2d 696. The substantial intention should not be defeated by some insufficiency in the manner of accomplishment. Brooks v. Duckworth, 234 N.C. 549, 67 S.E.2d 752.
We think the court below correctly ruled on the facts found, that the naming of the director or curator of the National Gallery of Art in Washington as the person to make the appraisal of the works of art selected by the State Art Commission should be regarded as directory only, that the person of the appraiser was not essential to the Act, and that the substitution by competent authority of Dr. Wm. R. Valentiner found to be an equally qualified art critic constituted a substantial compliance with the provision in the Act requiring technical appraisal of the paintings selected for purchase. The paintings having been properly appraised and approved, and all other conditions essential to validate expenditure of the appropriation having been complied with, judicial sanction of the substitution of Dr. Valentiner would be sufficient to authorize and empower the State Auditor to issue warrants for the payment of the paintings purchased by the State Art Commission.
In considering and deciding this case the Court has been concerned only with the legal question presented. The wisdom or unwisdom of the Legislature in enacting the statutes construed is not before us. The Legislature sets the standard of public policy and its control over taxation and the spending of public funds is restrained only by constitutional limitations. The question, whether the purpose of promoting cultural education and encouraging an appreciation of artistic productions as tending to develop spiritual elements for the benefit of all the people as recited in the Act has been wisely implemented by the manner, method, and to the extent prescribed, is not presented for our determination.
On the record before us the judgment of the court below is
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374871/ | 193 Va. 529 (1952)
HENRY G. LUHRING AND LUHRING MOTOR COMPANY, INC.
v.
W. R. CARTER, JR.
Record No. 3842.
Supreme Court of Virginia.
March 10, 1952.
Breeden & Hoffman, for the plaintiffs in error.
Leigh D. Williams and Lawson Worrell, Jr., for the defendant in error.
Present, All the Justices.
1. In cases of slander when a repetition was authorized and was the direct and natural result of the original slander, it may be shown in evidence against the original defamer, and especially where it was intended and contemplated that the slander be repeated.
2. Plaintiff instituted an action for damages against defendants under the statute of insulting words, for slander, before the Rules of Court of February 1, 1950, became effective. The usual allegation of intent to injure plaintiff in his good name, fame and credit and to bring him into public disgrace was made and then the alleged slanderous words claimed to have been spoken by defendants in the presence of various persons were set out in the motion for judgment. On motions of defendants and plaintiff, respectively, the court ordered that bills of particulars and grounds of defense be filed. Plaintiff filed his bill of particulars stating that the statements were made by defendants with the purpose that they be repeated to plaintiff's clients and customers and that he lost the business of certain named companies, resulting in the loss of large sums of money. Defendants moved to strike plaintiff's bill of particulars but the motion was overruled. Defendants contended that the allegation as to damages made in plaintiff's notice of motion was general and did not warrant admission of evidence of special damages and that plaintiff's bill of particulars, filed more than a year after the alleged tort, set out special damages and should have been stricken. This contention was without merit because the bill of particulars did not state a new and distinct cause of action against defendants nor was it an amendment to the original notice of motion. It only particularized, specified, and pointed out the intended and accomplished result of the original statements and the damages directly caused thereby.
3. Under the facts of headnote 2, defendants further contended that the court erred in not allowing them to recall for cross-examination for a third time plaintiff's chief witness for the purpose of impeaching his testimony. This was not error for defendants had two opportunities to lay the foundation to impeach the witness, yet they definitely declined to state time, place or the contents of the allegedly contradictory statement claimed to have been made by the witness. The trial court did not abuse its discretion in refusing to recall the witness.
4. Under the facts of headnote 2, during the course of the trial it was agreed by counsel that an exhibit should be stricken out and a corrected one filed, but this was not done. Plaintiff's counsel during his argument told the jury that the exhibit was erroneous and to disregard it. After the verdict, defendants assigned as error the failure of plaintiff's counsel and of the court to strike out the improper evidence. This objection after verdict was not timely and was without merit.
5. Under the facts of headnote 2, defendant offered an instruction as to whether the occasion when the alleged slanderous statement was made was one of qualified privilege or not, which instruction was refused by the court. This holding was correct as the instruction was involved, contradictory and erroneous, and thus calculated to confuse and mislead the jury.
Error to a judgment of the Circuit Court of the city of Norfolk. Hon. C. H. Jacob, judge presiding. The opinion states the case.
MILLER
MILLER, J., delivered the opinion of the court.
On December 8, 1949, W. R. Carter, Jr., instituted an action for damages against Henry G. Luhring and Luhring Motor Company, Inc., under section 8-630, Code of Virginia, 1950, (Virginia Code, 1942, (Michie), sec. 5781) commonly called the statute of insulting words, or the anti-duelling act. The motion for judgment was returnable to and docketed on December 30, 1949. No other proceedings were had in the cause before the Rules of Court of February 1, 1950, became effective. The trial, held on June 6th and 7th, 1950, resulted in a verdict and judgment for $15,000 in favor of Carter, hereinafter called plaintiff, against both Luhring and the company, who will be referred to as defendants.
The usual allegation of intent to injure plaintiff in his "good *531 name, fame and credit and to bring" him into public disgrace was made in the motion for judgment. Then the allegedly false and insulting words claimed to have been spoken in the presence of Julian H. Payne and others on the 16th day of December, 1948, by Henry G. Luhring of and concerning plaintiff and the allegations as to damages are set out as follows:
"'I am not going to do any more business with the bank as long as they use that damn drunk * * * to handle their adjustments. Carter * * * is taking money from other garages in exchange for giving them his insurance companies' repair work. He * * * is a drunken son of a bitch. I am going to drive Carter * * * out of business.'"
"WHEREFORE, by reason of the foregoing, the undersigned will move the Court for judgment against you at the hands of the said Court, and at the time and place and in the amount hereinabove set forth."
On February 13, 1950, on motions of defendants and plaintiff respectively, the court ordered that bill of particulars and grounds of defense be filed, but no time limit was fixed for compliance.
On May 18, 1950, plaintiff filed his bill of particulars, the third and fourth paragraphs of which follow:
"3) That the slanderous and defamatory statements made by the defendants, as set forth in the notice of motion for judgment, were made with the purpose, desire, and demand that they be repeated, especially to clients or customers of the plaintiff, in order to destroy the plaintiff's business as an insurance claims adjuster; that pursuant to the purpose, desire, and demand of the defendants the said slanderous and defamatory statements were so repeated to customers or clients of the plaintiff, resulting in considerable loss of business and, consequently, a considerable loss of money which the plaintiff otherwise would have earned."
"4) That as a direct and proximate result of the slanderous and defamatory statements, the plaintiff was refused further employment as an insurance claims adjuster by Markel Service, Inc., and American Fidelity Fire Insurance Company, and thereby the plaintiff lost large sums of money which he otherwise would have earned."
Defendants filed no plea or grounds of defense before June 6, 1950, but on that date, the morning of trial, they filed what the order termed a special plea. It reads: *532
"The defendants, as further plea to the notice of motion for judgment filed against them in the above-styled case, and in compliance with section 8-631 of the Code of Virginia, 1950, while denying that the statements alleged in the notice of motion for judgment were made in the words and manner and with malice for the purposes alleged, nevertheless further allege, by way of defense, that it is true that on or about the 17th day of December, 1948, Henry G. Luhring stated, in the presence of Litt H. Zehmer, Julian H. Payne, M. A. Steinbaugh and Henry G. Luhring, Jr., that he was not willing to have plaintiff act as adjuster on any claims arising out of the financing of automobiles sold by Luhring Motor Company, Inc., with the Bank of Virginia, and assigned as his reason therefor, that Carter had declined to let Luhring Motor Company, Inc., repair said Julian H. Payne's truck even though its bid for good and sufficient repairs was lower than the bid of Harris Motors, Inc., to whom the repair job had been awarded by the plaintiff. Defendants further allege that said remarks were not accompanied by profanity, malice or threats against said plaintiff in any manner whatsoever and were privileged in their nature, being communicated only to persons to whom defendants owed a legal, moral or social duty to reveal the facts as stated."
On that same day defendants also moved the court to strike paragraphs 3 and 4 of the bill of particulars, and the plaintiff moved that the Special Plea be rejected. Both motions were overruled, and the jury was sworn to "try the issue joined," and it appears that the trial was then proceeded with as if the special plea was one of general issue.
Upon conclusion of plaintiff's proof on the afternoon of June 6, 1950, defendants moved to strike the evidence, which motion was overruled. Thereupon defendants moved that they be allowed to file a plea of general issue and grounds of defense, which, over plaitniff's objection, was permitted, but the court indicated that a continuance would be granted if plaintiff had been taken by surprise.
No statement is made in the record as to whether the cause was or was not tried under the Rules of Court effective February 1, 1950. However, omission to fix, in the order of February 13, 1950, any time limit in which bill of particulars was to be filed, and allowing defendants to file plea of general issue indicates *533 that it was not tried under the Rules. See Rules of Court 3.7, 3.18(d), 3.5 and 3.22.
Summarized, defendants' contentions are that:
(1) The allegation as to damages made in the notice of motion was general and did not warrant admission of evidence of special damages, and that the court should have stricken paragraphs 3 and 4 of plaintiff's bill of particulars filed more than a year after the alleged tort for these paragraphs, they say, set out special damages.
(2) The court erroneously admitted evidence of repetition of the alleged slander, and wrongfully refused admission of certain evidence offered by defendant;
(3) The court erred in denying defendants the right to recall for a second time and for further cross-examination one of plaintiff's witnesses;
(4) The court should have stricken out certain evidence concerning the value of Luhring's real estate, and
(5) The court should have held that the occasion was one of qualified privilege and submitted the issue to the jury of whether or not the privilege was abused.
The claims of the litigants require that the circumstances preceding and attending the speaking of the alleged insulting words and certain events that thereafter occurred be stated in some detail.
Henry G. Luhring is president of Luhring Motor Company, Inc., of Norfolk, Virginia, which company is engaged in the sale, and repair of automobiles and trucks. Motor vehicles that it sells are financed through the Bank of Virginia, Norfolk, Virginia, of which institution L. H. Zehmer is vice-president. Upon the cars so financed, the Bank of Virginia takes out or requires to be taken out insurance policies to protect it in case of damage to the vehicles. These policies, taken out with one or more insurance companies, are, in case of damage to the cars, serviced by the Markel Service, Inc., an insurance adjusting agency, of Richmond, Virginia.
Plaintiff, a resident of Norfolk, Virginia, is an insurance claims adjuster engaged in investigation and settlement of claims arising from automobile collisions in the Norfolk area. He had for some years prior to December 16, 1948, been employed from time to time and rather regularly by Markel Service, *534 Inc., to adjust claims in that area, and the compensation paid him for such services was considerable.
In the summer of 1948 a truck of Julian H. Payne that was financed by the Bank of Virginia was damaged and plaintiff undertook to adjust the claim. Estimates on the cost of repairs were obtained from Luhring Motor Company, and from Harris Motors, Inc., and though that submitted by defendant company was about $20 less than that of the other bidder, on the advice of plaintiff, Payne had the repairs done by Harris Motors, Inc.
On December 16, 1948, Payne's automobile was involved in a collision, and he had it towed to Luhring Motor Company, with a view to having it there repaired. On that morning, Payne talked to M. A. Steinbaugh, sales manager and director of service of Luhring Motor Company and with Henry G. Luhring about the purchase of a new car and repairs on the old car. In that conversation Luhring was told by Payne that though the bid of Harris Motors, Inc., to repair the truck had been about $20 higher than his, the job had been awarded to the former company, on Carter's direction, and he (Luhring) appeared displeased at what Carter had done. Luhring thereupon requested Zehmer to come to the Luhring Motor Company, and upon his arrival Payne was invited into the office. In the presence of Henry G. Luhring, Jr., (vice-president of defendant company), M. A. Steinbaugh and Zehmer, he was asked by defendant Luhring to state what he had previously said about having taken his truck to Harris Motors, Inc., for repair at Carter's direction, which statement he repeated. It was then, according to Payne, that Luhring made the statements set out in the motion for judgment.
Kirk O. Ball, a claims examiner of Markel Service, Inc., who was in charge of the Bank of Virginia's business with that agency and who supervised adjustments made by Carter, testified, over defendant's objection, that on January 8, 1949, he received a phone call from Zehmer. He said that Zehmer informed him of his conference with Luhring about Carter, and in the conversation told him "that Carter was an alcoholic" and had been "taking kickbacks from automobile dealers." "Kickbacks" were proved to represent over-charges by a repair shop for work, which overcharge is divided or split between the shop and the adjuster.
Following this conversation, certain correspondence passed *535 between Ball and Zehmer, and Carter thereafter received no further business from Markel Service, Inc.
Plaintiff testified that he recommended that Harris Motors, Inc., be given the repair work on Payne's truck because it was making certain repairs that Payne was entitled to that were not covered by defendants' estimate. He further said that in the summer of 1948, when he went to the Luhring Motor Company about repairs on the truck and indicated that the bid of Harris Motors, Inc., would be accepted, defendant Luhring "was considerably irritated." When he visited Luhring Motor Company on the morning of December 17, 1948, relative to estimate on the Payne car, he says that after some discussion Luhring ordered him out by saying, "Well, I don't have to stand here and argue with you. There is the door. Get out."
Defendants earnestly insist that as the allegation of damages in the notice of motion was general, it did not justify proof of special damages. Rosenberg & Sons Craft, 182 Va. 512, 29 S.E.(2d) 375, 151 A.L.R. 1095. They then assert that the refusal to strike paragraphs 3 and 4 of the particulars, (which they say set up special damages) had the effect of allowing plaintiff to amend his notice by a bill of particulars after the statute of limitations had run, and prove repetition of the slander by Zehmer which had not been requested by Luhring, and thus prove special damages, i.e., loss of business from Markel Service, Inc.
Plaintiff takes the position that the circumstances under which the words were spoken, the person to whom addressed, and the language itself, i.e., "I'm going to run Carter out of business," disclose the speaker's purpose and intent. He says its repetition by Zehmer to Ball of the Markel Service, Inc., and plaintiff's resultant loss of business were not only the natural and probable consequences of what was said, but Luhring's actual and declared purpose, and thus the bill of particulars sets out no new cause of action but merely recites in detail the damages alleged, purposely intended by defendants and suffered by plaintiff.
We are reminded that this action was docketed on December 30, 1949, before the Rules of Court of February 1, 1950, became operative, and it is asserted that the bill of particulars should not be treated as an amendment to the notice of motion for judgment. [1] Irvine Barrett, 119 Va. 587, 89 S.E. 904, Ann. Cas. *536 1917C, 62; Columbia Acci. Ass'n Rockey, 93 Va. 678, 25 S.E. 1009; Chesapeake, etc., R. Co. Stock & Sons, 104 Va. 97, 51 S.E. 161; Emery Monongahela West Penn Public Service Co., 111 W.Va. 699, 163 S.E. 620; In re Caldwell's Will, 186 Misc.Rep. 60, 58 N.Y.S.(2d) 133. And it is said that if the bill of particulars which charges repetition of the insulting words be treated as an amendment to the notice, then plaintiff has set up a new, distinct and other cause of action (tort) committed January 8, 1949, not by defendants but by Zehmer (53 C.J.S., Libel and Slander, secs. 83 and 84, p. 136) and a tort that was actually barred by the statute of limitations before the bill of particulars was filed.
Though it is generally held that the republication of a libel is a circumstance or item of damage provable against the original author, there is conflict of authority upon the question of whether repetition of a slander by a thrid party is admissible against the original tort feasor as an item of damages. The view that republication of libel is admissible against the original author but repetition of slander is not, is stated thus by the following authority:
"The actual publisher of a libel may be an innocent porter or messenger -- a mere hand, unconscious of the nature of his act, and for which, therefore, his employers shall be held liable, and not he. Whereas in every case of republication of a slander the publisher acts consciously and voluntarily; the repetition is his act. Therefore, if a person is in any way concerned in making or publishing of a libel, he is liable for all the damage that ensues from its publication. But if one person slander another he is only liable for such damage as results directly from the one utterance of his own lips. If a third person hears him and chooses to repeat the tale, that is his own act, and he alone is answerable should damage ensue. In an action against the first person such special damage would be too remote. For such publication of a slander is a distinct and separate act, and every person repeating it becomes an independent slanderer, and he alone is answerable for the consequences of his own unlawful act. See Odgers on Libel & Slander, (5th Ed.) 177." Newell, Slander and Libel, (4th Ed.) sec. 302, at p. 338. Of similar import is Maytag Cummins, 260 F. 74, 77, 16 A.L.R. 712.
In cases of slander (spoken words), though a distinction is often made between words that are actionable per se and those *537 actionable because of extrinsic facts, there is authority to the effect that when a repetition is authorized and is the direct and antural result of the original slander, it may be shown in evidence against the original defamer, and this is especially true where it was intended and contemplated that the slander be repeated. 53 C.J.S., Libel and Slander, sec. 85, p. 137; 33 Am. Jur., Libel and Slander, sec. 197, p. 186.
Here the occasion and the words used clearly disclose that their repetition by Zehmer was not only the natural and probable result but was contemplated and intended to drive Carter out of business. Though the repetition was verbal, it was nevertheless an intended circumstance in a contemplated sequence of events and thus not mere hearsay but an item or element of damage that was a natural, direct and probable result of the original wrong.
We therefore conclude that the bill of particulars did not state a new and distinct cause of action against defendants nor was it an amendment to the original notice of motion. It only particularized, specified, and pointed out the intended and accomplished result of the original statements and the damages directly caused thereby. Federal Land Bank of Baltimore Birchfield, 173 Va. 200, 3 S.E.(2d) 405.
For the purpose of impeaching Julian H. Payne, plaintiff's chief witness, Robert T. Anderson, was called by defendants and asked if he had at Luhring's request visited and talked with Payne. Upon his affirmative reply, he was asked:
"Q. Will you tell what occurred on the occasion of your visit?"
This question was objected to because when Payne had testified he had not been asked if he had talked with Anderson, nor was he when cross-examined apprized of the time, place and contents of any alleged contradictory statement that he had made to Anderson from that to which he had testified. In short, the objection was that no sufficient foundation had been laid to contradict Payne by a prior inconsistent statement. The objection was sustained and thereupon defendants asked leave to recall Payne for further cross-examination, which request was granted. Payne was then told that Anderson would be called to contradict him, asked if he cared "to change his testimony in any way" and if he had not testified as follows: "That Mr. Luhring said as long 'as that damn drunken son of a bitch' was doing the adjusting, the Luhring Motor Company was not going to do any business *538 with the bank." Payne in answer said that such was his testimony and he did not wish to change it. He was not, however, advised of any allegedly contradictory statement or the time and place any was made to Anderson, which Anderson would be called to testify to, and when counsel for the defendants were reminded by the court of that omission, they replied, "No, we haven't asked him that. I don't think we have to ask him that, your Honor. We put him on notice that we are prepared to contradict him. We are going to rest on that."
Anderson was then recalled and again asked if he had at Luhring's request talked with Payne. Upon affirmative reply, he was asked, "Will you relate what conversation took place, -- what Payne said while you were in his presence with relation to anything that Mr. Luhring is supposed to have said and done?" That question was again objected to because sufficient foundation has not been laid to contradict Payne by merely asking him if he "cared to change his testimony in any way." The objection was sustained and the court ruled that before undertaking to contradict Payne, it was necessary first to advise him of the time and place and contents of his alleged contradictory statement. Adams Ristine, 138 Va. 273, 122 S.E. 126, 31 A.L.R. 1413; Gaines Campbell,
159 Va. 504, 166 S.E. 704; Thornton Downes, 177 Va. 451, 14 S.E.(2d) 345; 58 Am. Jur., Witnesses, secs. 767 and 779, pp. 417 and 427.
Thereupon defendants sought to again recall Payne for further cross-examination, but the court ruled that as two opportunities to cross-examine had been afforded and no proper foundation laid for contradiction, if recalled, he must be treated as defendants' witness. Not being afforded a third opportunity to cross-examine the witness, defendants declined to recall him as their witness and assigned the court's ruling as error.
Two opportunities to lay the foundation to impeach the witness had been afforded defendants, yet they definitely declined to state time, place or the contents of the allegedly contradictory statement claimed to have been made by Payne.
The facts appearing in the record do not show that the latitude of discretion allowed the trial court concerning the recall of witnesses was abused. Burke Shaver, 92 Va. 345, 23 S.E. 749; Fant Miller, 17 Gratt. (58 Va.) 187; Brooks Wilcox, 11 Gratt. (52 Va.) 411; Savage Bowen, 103 Va. 540, 49 S.E. 668; Jacob Warthen, 115 Va. 571, 80 S.E. 113. *539
During the trial a written statement (Exhibit No. 4) showing the assessed value of real estate owned by defendant Luhring was introduced in evidence by plaintiff but it became evident that the valuation was erroneous. It was therefore agreed by counsel that the valuations appearing in the exhibit should be stricken out by the court, and the correct valuations stated at some later stage of the trial. However, counsel for all litigants overlooked making this correction and failed to have the court strike the erroneous valuations from the evidence. After conclusion of all testimony and during argument counsel for plaintiff told the jury the exhibit was erroneous and to disregard "any testimony with regard to the value of the property." No other steps were taken by plaintiff or defendants to correct the matter. Yet after verdict, defendants assigned as error the failure of the court and the omission of counsel for plaintiff to have the court strike out the improper evidence.
When explanation of this error was made and the jury told to disregard "any testimony with regard to the value of the property" defendants awaited the verdict of the jury. Their objection after verdict was not timely, and we find no merit in the contention that there is reversible error because the court did not formally strike out the improper evidence. If not satisfied with the explanation stated in argument, request should have been then made to the court to instruct the jury to disregard the valuations in Exhibit No. 4. No such request having been made, the objection and exception after verdict are too late. Chesapeake, etc., R. Co. Folkes, 179 Va. 60, 18 S.E.(2d) 309.
The defendants asked for and obtained Instruction D-4, which is:
"The court further instructs the jury that the very basis of this action is the statements alleged to have been made by Luhring to the effect that the plaintiff was a 'damned drunken son of a bitch', and that the plaintiff 'was taking money from other dealers in order to give them business.' Unless you believe by a preponderance of the evidence that such statements substantially similar thereto were made by Luhring, you shall find in favor of the defendants." Emphasis added.
The court having told the jury that the quoted statements were the basis of the action and that it must find for the defendants unless it believed that "such statements (or) substantially similar thereto were made by Luhring", their verdict *540 (especially in the substantial sum awarded) conclusively discloses that it found that both offensive statements were made.
Defendants also asked for Instruction D-2 which was refused. It reads:
"The Court instructs the jury that a communication, verbal or otherwise, made in good faith on a subject matter in which the person communicating the same has an interest, or owes a duty, legal, moral or social, is privileged if made to a person having a corresponding interest or duty."
"The Court further instructs the jury that the statements alleged to have been made by defendant, Luhring, were made only to persons to whom the defendants owed a legal, moral or social duty to make such statements and hence such statements as you may believe were made by Luhring were privileged and are not actionable, unless you further believe by a preponderance of the evidence that the defendants abused such privilege, and if you find that such privilege was not so abused, you should find for the defendants."
"It is therefore necessary for the plaintiff to show that the words were spoken by the defendant, Luhring, with malice in fact, actual malice, existing at the time the words were spoken; that is, spoken with such gross indifference and recklessness as to amount to a wanton and wilful disregard of the rights of the plaintiff. There is a presumption that the words alleged to have been spoken were spoken in good faith and the burden is upon the plaintiff to prove to the contrary by a preponderance of the evidence."
Plaintiff asserts that its refusal was proper, because he says:
(1) The occasion was not one of qualified privilege, for Payne in whose presence the statements were made was not interested in the matter discussed by Luhring with Zehmer, and
(2) If it were a privileged occasion as to all parties present, nevertheless the language used, i.e., "Carter is a drunken son of a bitch" was so disproportionate, irrelevant and foreign to the occasion and matter under consideration as to be wholly beyond and outside of the qualified privilege and its protection, and was such a conclusive abuse of the claimed privilege as to leave no issue of fact to submit to the jury as to whether there was or was not an abuse. It is then stated that the finding of the jury under Instruction D-4 conclusively shows that the offensive statement quoted immediately above was used. *541
Determination of whether or not the occasion is one of qualified privilege is ordinarily a matter to be decided by the court. Bragg Elmore, 152 Va. 312, 147 S.E. 275; Farley Thalhimer, 103 Va. 504, 49 S.E. 644; Tyree Harrison, 100 Va. 540, 42 S.E. 295.
Yet if the evidence upon which the asserted privilege is based is in substantial conflict, whether or not the occasion is one of privilege becomes a mixed question of law and fact to be determined by the jury under appropriate instructions from the court. Bragg Elmore, supra.
In our opinion all parties present were interested in the matter at hand and under discussion. The manner in which Carter had adjusted the damage of Payne's truck on the former occassion and who should repair the car and who do the adjusting of that damage and the adjusting on other cars in the future that were similarly financed and insured were all parts and parcels of the over-all matter under discussion. This, we think, fully establishes that the occasion was one of conditional privilege.
We have not been cited to nor have we found any Virginia decision holding that where the occasion was one of conditional privilege the defamatory language used was so disproportionate, irrelevant and extraneous to the occasion as to be deemed and held to be outside the protection of the privilege as a matter of law, and that the court, for that reason, should take from the jury the issue of whether or not the privilege was abused.
There are, however, decisions to the effect that, though the occasion be qualifiedly privileged, if the language used be clearly disproportionate, extraneous and impertinent to the occasion and subject at hand, and thus beyond the scope and protection of the privilege, then there is no factual issue on the abuse of privilege to submit to the jury. Byrne Funk, 38 Wash. 506, 80 P. 772; Swearingen Parkersburg Sentinel Co., 125 W.Va. 731, 26 S.E.(2d) 209; Stewart Riley, 114 W.Va. 578, 172 S.E. 791; Parker Appalachian Elec., etc., Co., 126 W.Va. 666, 30 S.E.(2d) 1; Mullens Davidson (W. Va. 1949), 57 S.E.(2d) 1, 13 A.L.R.(2d) 887; 26 A.L.R. 844; 12 Michie's Jurisprudence, Libel and Slander, sec. 23, p. 73; 33 Am. Jur., Libel and Slander, sec. 296, p. 281; 53 C.J.S., Libel and Slander, sec. 228, p. 347; 3 Restatement of Torts, sec. 619(b).
However, whether or not the factual issue of abuse of privilege should or should not have been submitted to the jury is *542 not necessary to be here decided. But whether Instruction D-2 was properly refused is the specific question before us.
The second paragraph of the instruction is confusing, contradictory and erroneous. It affirmatively tells the jury that "the statements alleged to have been made" were made only to persons to whom "Luhring owed a duty" to "make such statements", and they were thus privileged and not actionable. It then undertakes to qualify that erroneous language by telling the jury in a negative way that if plaintiff proves an abuse of the privilege by a preponderance of the evidence, then defendants lose its protection.
In the first instance, it undertakes to give the court's stamp of approval to the insulting phrases by saying Luhring owed a duty to make such observations. That should not have been done. Making it still more objectionable is the fact that approval is accorded the allegedly insulting words without the qualifying statement that the language must have been spoken in good faith to be privileged.
On the facts of this case, if it were proper to submit to the jury the issue of whether or not the privilege had been abused (which we do not decide), nevertheless the instruction should not in any manner have approved and assumed that such statements, i.e., the specific statements complained of, were within the privilege, but the objectionable paragraph should have been phrased substantially as follows:
"The court further tells you that as all of the persons present on the occasion in question were interested in or had a legal or moral duty in the matter at hand, Henry J. Luhring, personally and on behalf of his corporation, had the right and owed to those present the duty in good faith to make any statement or statements that were pertinent, informative of or relevant to the matter and subject under discussion and consideration, and unless you believe from a preponderance of the evidence, that he abused that privilege, you should find for the defendants."
As the paragraph in question was involved, contradictory and erroneous, and thus calculated to confuse and mislead the jury, the instruction was properly refused.
Our conclusions render it unnecessary that certain assignments of cross-error made by plaintiff be considered.
The judgment is affirmed.
Affirmed.
NOTES
[1] Rule 3.18(a) of Rules of Court effective February 1, 1950, made a bill of particulars a pleading. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374875/ | 85 Ga. App. 500 (1952)
69 S.E.2d 697
AUTRY
v.
GENERAL MOTORS BOP ASSEMBLY PLANT.
33880.
Court of Appeals of Georgia.
Decided February 19, 1952.
Rehearing Denied March 6, 1952.
*502 James R. Venable, D. M. Johnson, for plaintiff.
W. Neal Baird, Neely, Marshall & Greene, Ferdinand Buckley, for defendant.
TOWNSEND, J.
(After stating the foregoing facts.) The question is whether there is any competent evidence in the record which would support a finding that the disability which the claimant now suffers is the result of the accident of January 27, 1951. The defendant in error contends that there is none, since the matter of the cause of the disability is essentially one of opinion, and a lay witness is incapable of testifying when such testimony is necessarily a matter of expert opinion, such as whether a sore on the back caused the insured's death (Johnson v. Aetna Life Insurance Co., 24 Ga. App. 431, 101 S. E. 134), or whether the injuries are permanent in character (Cone v. Davis, 66 Ga. App. 229 (6), 17 S. E. 2d, 849). The diagnosis and treatment of injury and disease are essentially medical questions to be established by physicians as expert witnesses and not by laymen. Mayo v. McClung, 83 Ga. App. 548 (64 S. E. 2d, 330). However, although these are apt subjects for expert medical testimony, and the physician may testify as to his opinion of the cause of an injury, he may not testify to the ultimate fact in such manner as to invade the province of the fact-finding body, for whether the particular injury was or was not caused in such manner as to render it compensable is the issue to be tried, and no testimony in the nature of opinion evidence will preclude the fact-finding tribunal from reaching its own conclusion on this matter, given the facts of the case and aided by the interpretation of experts. See Travelers Insurance Co. v. Thornton, 119 Ga. 455 (1) (46 S. E. 678); U. S. Casualty Co. v. Smith, 34 Ga. App. 363, 372 (129 S. E. 880); Liberty Mutual Insurance Co. v. Williams, 44 Ga. App. 452 (1) (161 S. E. 853); Atlantic Steel Co. v. McLarty, 74 Ga. App. 300, 304 (39 S. E. 2d, 733). The director was not bound by the testimony of the physicians on the ultimate issue of fact, that of causation. The undisputed evidence showed that the claimant did suffer an injury to his left *503 foot; that in about three works thereafter it developed a thickening and extreme localized pain, together with discoloration; that the condition of the foot continued to deteriorate, as a result of which he suffers a disability, according to the company doctor, of 25%. Three doctors disagreed upon the precise medical diagnosis of the ailment, although the diagnoses of Drs. Kelly and Jernigan are closely related. Metatarsalgia of the foot is a causalgia, which is defined in the authorative new work, Gray's "Attorney's Textbook of Medicine", Vol. II, § 107.28, in part as follows: "Causalgia was described by Weir Mitchell in 1864 as a most intense form of neuritis, found among the wounded of the Civil War. . . The cause is not known. Symptoms appear most frequently from four to five days following injury, gradually increasing until reaching a maximum within three to four weeks. Pain is generally superficial rather than deep, usually at the end of the nerve, such as the palm of the hand or the sole of the foot."
Dr. Jernigan testified as follows: "I don't believe it is the result of an injury. I believe it is the result of a flattening out of the anterior arch of the foot and a traumatizing of the nerve by the bones rubbing together over a period of time. To the best of my knowledge that is what causes a neuroma. Sometimes there is a controversy among doctors, however.: Traumatism" is defined in Black's Law Dictionary as "A diseased condition of the body or any part of it caused by a wound or external injury." It follows, therefore, that, while the opinion of the doctors who testified was that the injury was not caused by an accident, yet the facts upon which this opinion was based are sufficient to have authorized the director to find otherwise. The director, not being a physician, could not diagnose the physical condition of the claimant. Nevertheless, when it was diagnosed by the physicians, it became the province of the director to apply this diagnosis to the facts of the case. In considering this diagnosis and these facts, including the fact that prior to the occurrence the claimant's foot had given him no trouble, and that he first began to experience pain in the foot a few days thereafter, which became very acute within three or four weeks thereafter, the director was authorized to find that the claimant was injured by the falling of a heavy object on his foot, which resulted in a *504 flattening out of the anterior arch and a traumatizing of the nerve as a result thereof. The award was supported by some evidence and, no fraud appearing, it must be upheld.
The judge of the superior court erred in reversing and setting aside the award of the Board of Workmen's Compensation.
Judgment reversed. MacIntyre, P. J., and Gardner, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374885/ | 193 Va. 418 (1952)
CURTIS ELMER TILLER
v.
COMMONWEALTH OF VIRGINIA.
Record No. 3915.
Supreme Court of Virginia.
March 10, 1952.
B. F. Sutherland and S.H. & Geo. C. Sutherland, for the plaintiff in error.
Present, All the Justices.
1. When a penal statute is construed, the legislative intent is to be found by giving to the words the meaning in which they are used in ordinary speech.
2. Appellant was convicted of operating an overloaded motor vehicle in violation of section 46-334 of the Code of 1950 in that the gross weight of his truck was 26,600 pounds, which under the statute, was 2,600 pounds too much for a two axle four wheel truck. Appellant contended that since the rear wheels on each side of his truck were attached to separate shafts, there were two axles under the rear of his truck, taking it out of the classification of a two axle truck. This contention was without merit for "axle" in its ordinary sense and acceptation means the assembly of housing and axle shafts which support and propel the wheels. And further any number of axles in the same vertical plane or any number of axles spaced less than forty inches apart is a single axle in computing gross weight under the statute.
3. Under the facts of headnote 2, appellant further contended that his truck was a six wheel vehicle and therefore entitled to carry a gross weight of 35,000 pounds. Appellant's truck had a pair of single wheels in the front and a pair of dual wheels in the rear. Appellant's contention was without merit, because the words "dual wheel" denote one wheel unit made up of two separate wheels which are so assembled, supported and propelled as to act as one wheel, therefore appellant's truck was a four wheel vehicle.
4. The rule that a penal statute must be strictly construed does not prevent consideration by the courts of the general purpose and design of the legislature.
5. Under the facts of headnote 2, appellant lastly contended that section 46-334 of the Code of 1950 is so vague and uncertain that the intent of the legislature cannot be plainly understood and that it violated the Constitution of the United States, Amendment XIV, | 1. But this contention was without merit for when the statute is studied in the light of its purpose and the intent of the legislature, then the meaning of the statute becomes clear and unambiguous.
Error to a judgment of the Circuit Court of Dickenson county. Hon. Frank W. Smith, judge presiding. The opinion states the case.
J. Lindsay Almond, Jr., Attorney General, D. Gardiner Tyler, Jr., Assistant Attorney General and H. Coleman McGehee, Jr., for the Commonwealth.
SMITH
SMITH J., delivered the opinion of the court.
The plaintiff in error, Curtis Elmer Tiller, hereinafter referred to as the defendant, was convicted by the trial justice of Dickenson county of operating an overloaded motor vehicle in violation of section 46-334 of the Code of Virginia, 1950. [1] The defendant appealed to the Circuit Court of Dickenson county where the case was tried de novo before the judge without a jury. He was again convicted and to that judgment he has obtained a writ of error.
It is stipulated and agreed between the parties that the defendant was operating the White truck in question on a State highway in Dickenson county and that the truck with its load had a gross weight of 26,600 pounds. The combined weight on both front wheels was 5,900 pounds and the combined weight on both rear dual wheels was 20,700 pounds. *420
The defendant claims that the trial court erred in its judgment because the evidence fails to show that the gross weight of the truck exceeded 35,000 pounds and since, as he contends, the truck was a six wheel vehicle there was no violation of the statute. Furthermore, he claims that the evidence does not show that there was more than 16,000 pounds of weight transmitted through any axle. He also contends that section 46-334 of the Code is unconstitutional and void because it violates the Constitution of the United States, Amend. XIV, | 1.
The defendant's objections arise from the fact that his definitions of certain words appearing in Code section 46-334 differ from the definitions of those same words by the Commonwealth. When the legislature framed this statute, it had in mind a particular definition for each word used and it is our function to interpret the meaning of the words in controversy as intended by the legislature. Unless there is ambiguity in a statute, there is no need for interpretation, for the province of construction lies wholly within the domain of ambiguity. Cason Commonwealth, 181 Va. 297, 24 S.E.(2d) 435; Hammer Commonwealth, 169 Va. 355, 193 S.E. 496.
The first question for decision is, how many axles did the truck have within the meaning of Code section 46-334? The defendant contends that since the rear wheels on each side are attached to separate shafts, there are two axles under the rear of the truck. If this is the correct meaning of "axle", the defendant has not violated the statutory provision limiting the maximum gross weight on the road surface through any axle to 16,000 pounds.
In construing a statute the cardinal rule of construction is that the intention of the legislature constitutes the law, and the primary object in the interpretation of a statute is to ascertain that intention. Anglin Joyner, 181 Va. 660, 26 S.E.(2d) 58.
When a penal statute is involved, the legislative intent is, in most cases, to be found by giving to the words the meaning in which they are used in ordinary speech. Gates & Son Co. Richmond, 103 Va. 702, 49 S.E. 965.
The construction and maintenance of highways in this State involves the expenditure of vast sums of money and it is obvious that the purpose of the legislature in enacting the statute herein involved was to prevent injury to roads and bridges and to promote the safety of persons traveling over the highways by *421 prohibiting the use on the public highways of vehicles of excessive weight. One of the primary means to achieve this result has been the enactment of legislation to regulate and control the size and weight of vehicles using the highways, and Code section 46-334 is a part of this legislative scheme.
Webster's New International Dictionary (2d ed. 1951) defines "axle" as follows: "1. The pin or spindle on which a wheel revolves, or which revolves with a wheel. A dead axle carries road wheels but has no provision for driving them. A live axle carries weight and furnishes means through which driving power is transmitted to the wheels. The weight-carrying member is usually a hollow housing and the propelling members are concentric axle shafts carried in it. A plain live axle carries both differential and road"
wheels. * * * In a full-floating axle the wheels are supported on the housing, which carries two bearings on which the wheels revolve. * * *" (Italics supplied)."
The defendant's White truck was equipped with a single reduction, full floating rear axle.
It is plain from Webster's definition that "axle" in its ordinary sense and acceptation means the assembly of housing and axle shafts which support and propel the wheels. The definition repeatedly refers to wheels (plural) and to the weight-carrying member and propelling members (plural), or concentric axle shafts. What the defendant defines as "axle" is what the dictionary refers to as "shaft" and that is only a part of the entire assembly embraced within the word "axle" as defined above.
Any other definition would do violence to the obvious intention of the legislature to limit the weight of vehicles using the publc highways. If the defendant's definition were applied, the ordinary four wheel motor vehicle with a conventional rear-end assembly could lawfully carry a gross weight on the rear of 32,000 pounds (16,000 pounds per "axle"), whereas the statute itself limits the gross weight of four wheel vehicles to 24,000 pounds.
Any doubt on this point is immediately dispelled by that part of the statute which says that "No two axles shall lie in the same vertical plane, nor shall the spacing be less than forty inches from center to center." The meaning of this sentence is clear and unambiguous. Any number of axles in the same vertical plane or any number of axles spaced less than forty inches apart *422 is to be considered as a single axle in computing the gross weight transmitted to the road surface through such axles. Even if the defendant's definition of "axle" were adopted, the effect of the statute would be the same because the two axles, as defined by him, being in the same vertical plane would still be considered as one axle within the expressed language of the statute. We must conclude that the defendant's position on this question is without merit.
The second question for decision is, how many wheels did the truck have within the meaning of Code section 46-334? The truck which the defendant was driving was equipped with a pair of single wheels in the front and a pair of dual wheels in the rear. The defendant contends that each dual wheel is made up of two wheels, therefore, the truck had six wheels within the meaning of the statute.
The gross weight of a vehicle is limited by Code section 46-334 in accordance with the number of wheels supporting the vehicle. The gross weight of a four wheel vehicle is limited to 24,000 pounds and the gross weight of a six wheel vehicle is limited to 35,000 pounds. The basis for this classification is clear. A six wheel vehicle will distribute its load over a larger area of the highway than will a four wheel vehicle, therefore, the six-wheeler can carry a larger gross weight than a four-wheeler without increasing the stress and strain on the surface of the road. This is a fact of which the legislature was well aware and that is why the statute provides that "In determining the number of wheels, dual wheels shall be counted as two wheels." The words "dual wheel" denote one wheel unit made up of two separate wheels which are so assembled, supported, and propelled as to act as one wheel. This method of construction permits a larger tire area in contact with the road surface without resorting to a single tire of such a large size, which would probably not be mechanically feasible. In this connection the statute also provides. "nor shall it [maximum gross weight] exceed six hundred and fifty pounds per inch, width of tire, measured in contact with the surface of the highway." In using the words "dual wheels" the legislature meant more than one "dual wheel" and it is specifically provided that "dual wheels shall be counted as two wheels."
If each dual wheel of the truck herein involved is treated as two wheels, making a total of six wheels, the maximum gross *423 weight would be 35,000 pounds. Since this truck has only two axles, there is no way that the 35,000 pounds could be distributed without assigning more than 16,000 pounds (the legal maximum) to one of the axles. If this truck is treated as a four wheel vehicle, as we hold that it is, the maximum gross weight would be 24,000 pounds, which could be distributed in many different ways so that neither the front nor the rear axle would carry in excess of 16,000 pounds.
If the legislature had intended that each dual wheel be counted as two wheels, it would have used the words "dual wheel" (singular) in its definition instead of "dual wheels" (plural).
Finally, there is the question of the constitutionality of Code section 46-334. The defendant contends that this section is so vague and uncertain or so conflicting and inconsistent that the intent of the legislature cannot be plainly understood and that it is, therefore, void.
It is not necessary to cite authority to support the statement that one of the strongest presumptions of the law is raised in favor of the constitutionality of a statute and a legislative enactment will never be declared unconstitutional unless it is clearly and plainly so.
The rule that a penal statute must be strictly construed does not prevent consideration by the courts of the general purpose and design of the legislature. Donnelley United States, 276 U.S. 505, 48 S.Ct. 400, 72 L.ed. 676. We have already noted that the statute herein involved relates to the public safety and to this extent it may be construed as remedial as well as penal and it is the judicial function to search for and follow the true legislative intent and adopt that sense of the words used which will attain the results anticipated by the legislature, being careful, however, not to enlarge by implication the obvious effect of the statute. Illinois Central R. Co. Hudson, 136 Tenn. (9 Thomp.) 1, 188 S.W. 589, 2 A.L.R. 147.
Studied in the light of its purpose and the intent of the legislature, the meaning of Code section 46-334 is not so ambiguous as to leave reasonable doubt of its meaning, nor are its words equally capable of more than one construction. Any other meaning of "axle" and "wheel" as used in the statute, opposed to the construction herein pronounced, would be contrary to the express language used and the manifest intent of the *424 legislature, would render the statute unreasonable, and would lead to an utter absurdity which cannot be presumed to have been the intent of the legislature.
Accordingly, the judgment of the trial court is affirmed.
Affirmed.
NOTES
[1] "| 46-334. Weight of vehicles and loads. -- The maximum gross weight to be permitted on the road surface through any axle of any vehicle shall not exceed sixteen thousand pounds, nor shall it exceed six hundred and fifty pounds per inch, width of tire, measured in contact with the surface of the highway. The gross weight, including the weight of the vehicle and the maximum load, of any four wheel vehicle shall not exceed twenty-four thousand pounds and the gross weight of any six wheel vehicle or any combination of vehicles shall not exceed thirty-five thousand pounds. In determining the number of wheels, dual wheels shall be counted as two wheels. No two axles shall lie in the same vertical plane, nor shall the axle spacing be less than forty inches from center to center. The axle arrangements shall be such that the proportion of the gross load carried on any axle shall remain constant. (1932 p. 668; 1942, p. 556; Michie Code 1942, | 2154(160).)" | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374979/ | 69 S.E.2d 244 (1952)
235 N.C. 179
DARE COUNTY
v.
MATER.
No. 28.
Supreme Court of North Carolina.
February 27, 1952.
Martin Kellogg, Jr. and J. Henry LeRoy, Elizabeth City, for plaintiff appellee.
Worth & Horner and Forrest V. Dunstan, Elizabeth City, for defendant appellant.
BARNHILL, Justice.
We need not now consider plaintiff's motion to strike defendant's purported *245 case on appeal for the reason a fatal defect appears on the face of the record. Lawrence v. Lawrence, 226 N.C. 221, 37 S. E.2d 496; Bell v. Nivens, 225 N.C. 35, 33 S.E.2d 66; State v. Parnell, 214 N.C. 467, 199 S.E. 601. In fact, it may be that the service of a case on appeal was not required. Privette v. Allen, 227 N.C. 164, 41 S.E.2d 364.
If the plaintiff is seeking to abate a public nuisanceand the complaint may be so construedit is without authority to maintain this action.
An action to abate a public nuisance by injunction or otherwise must be maintained in the name of the State, and our statute designates with particularity those who may become relators and prosecute the cause in the name of the State. G.S. § 19-2. See also G.S. §§ 160-234, 130-25, and N.C.Const., Art. VII, sec. 2. While the members of the Board of Commissioners may, as individuals, become relators, G.S. § 19-2, they may not prosecute this action in the name of the County.
Ch. 940, Session Laws 1949, authorizes the playing of the game of Bingo in Dare County when the operator is duly licensed by the Board of Commissioners of Dare County. However, the statute does not specifically authorize the operator to offer prizes of any type to the winners. And any contention that the Act may be so construed as to constitute an amendment, by implication, of our general statute prohibiting gambling, G.S. ch. 14, Art. 37, would be of dubious merit. Be that as it may, the plaintiff alleges that defendant's license to conduct the game of Bingo in Dare County has been duly revoked and that he continues his said business in the County without license and is offering cash prizes to the winners. Therefore, if upon these allegations, this cause be construed as an action to enjoin the violation of the criminal laws, it may not be maintained for the reason the plaintiff has an adequate remedy at law by indictment.
With certain limited exceptions "there is no equitable jurisdiction to enjoin the commission of crime." Hargett v. Bell, 134 N.C. 394, 46 S.E. 749, 750. Ordinarily, injunctive relief is available only "where some private right is a subject of controversy." Patterson v. Hubbs, 65 N.C. 119; Carolina Motor Service v. Atlantic Coast Line R. Co., 210 N.C. 36, 185 S.E. 479, 104 A.L.R. 1165; City of Fayetteville v. Spur Distributing Co., 216 N.C. 596, 5 S.E.2d 838; Town of Clinton v. Ross, 226 N.C. 682, 40 S.E.2d 593; Seaboard Air Line Railway Co. v. City of Raleigh, D.C., 219 F. 573, affirmed 242 U.S. 15, 37 S.Ct. 8, 61 L.Ed. 121.
Upon the trial of defendant under an indictment, he may assert his affirmative defense, to wit: He was duly licensed to operate a place of business at which the game of Bingo was played and his license has not been lawfully revoked. Thus the main issues the parties seek to present in this cause may there be fully heard and determined.
Insofar as this is an action to abate a public nuisance by injunction, there is a fatal defect of party plaintiff, of which the Court must take notice ex mero motu. Considered as an action to restrain the violation of the criminal law, the complaint fails to state a cause of action. Hopkins v. Barnhardt, 223 N.C. 617, 27 S.E.2d 644. In either event, it must be dismissed. The cause is remanded with instruction that the court below enter judgment dismissing the action.
Remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374983/ | 208 Ga. 813 (1952)
69 S.E.2d 866
VINSON
v.
CITIZENS & SOUTHERN NATIONAL BANK, administrator, et al.
17752.
Supreme Court of Georgia.
Argued February 11, 1952.
Decided March 12, 1952.
*814 Hollingsworth & Hollingsworth, for plaintiff in error.
Hilton & Hilton, contra.
*816 ATKINSON, Presiding Justice.
(After stating the foregoing facts.) 1. The original petition contained enough to amend by *817 (Code, § 81-1301; Calhoun v. Edwards, 202 Ga. 95 (2), 42 S. E. 2d, 426), and the motion to dismiss, on the ground that the action was barred by the statute of limitations, was met by the first amendment which alleged that the grantor, now deceased, never learned of the fraud perpetrated on her by the defendant. Accordingly, the trial court did not err in allowing the amendment, or in overruling the defendant's renewed motion to dismiss, as to The Citizens & Southern National Bank, as guardian of Linton Stiles Harrison.
While the second amendment set forth an inconsistent reason for canceling the deed, yet, the objection to the allowance of this amendment did not seek to require the petitioner to elect which reason it was relying upon. See Saliba v. Saliba, 201 Ga. 577 (3) (40 S. E. 2d, 511). The amendment did not, as contended, set forth a new cause of action, nor did it add any new parties plaintiff. In the above circumstances, the trial court did not err in allowing the second amendment, or in overruling the defendant's renewed motion to dismiss the petition.
2. The next insistence is that the trial court erred in refusing a motion of the defendant that The Citizen & Southern National Bank be nonsuited as administrator de bonis non with the will annexed of the estate of Mattie L. Vinson.
While the court had already sustained a motion to dismiss the bank as administrator de bonis non, still, had such motion been overruled, an exception to the refusal of a nonsuit will not be considered, where, after a verdict for the petitioner, the general grounds of the defendant's motion for new trial complain that the verdict is contrary to the evidence and without evidence to support it. Martin v. Yonce, 163 Ga. 694 (4) (137 S. E. 17); Southern Ry. Co. v. Slaton, 178 Ga. 314, 316 (173 S. E. 161); Waters v. Tillman, 194 Ga. 552 (2) (22 S. E. 2d, 173); Howard v. Lee, 208 Ga. 735 (69 S. E. 2d, 263).
3. The first special ground of the motion for new trial complains of the admission in evidence of a duly certified copy of a marriage certificate, showing that the defendant and Bertie Lee Wells were married in South Carolina on February 2, 1941. The marriage certificate was admissible, in support of the petitioner's theory of the case, for the purpose of showing that fraud was perpetrated by the defendant upon the grantor in obtaining *818 the deed dated May 1, 1942., wherein it was recited that the conveyance was made in consideration of the love and affection that the grantor bore to her husband, the defendant.
The second special ground complains of the refusal to allow a witness for the defendant to testify that he recalled a conversation in 1942 between Mrs. Foster and the defendant, in the presence of the grantor, wherein Mrs. Foster accused the defendant of "lying up" with her sister (the grantor), and that the grantor did not deny her sister's accusation. Mrs. Foster was not a party to the action, and any statement made by her to the defendant would have been hearsay. Furthermore, Mrs. Foster testified: "I don't know if my sister was aware of the fact that she was divorced at the time of making this deed. . . I guess she must have been. . . She found him out before the last."
4. Special grounds 3 to 8 inclusive except to the refusal of timely written requests to charge. "A request to charge the jury must be correct, and even perfect; otherwise refusal to give it is not error. It must be legal, apt, and precisely adjusted to some principle involved in the case, and be authorized by the evidence." Lewis v. State, 196 Ga. 755 (3) (27 S. E. 2d, 659).
Ground 3 complains of the refusal to charge: "Equity gives no relief to one whose long delay renders the ascertainment of truth difficult, though no legal limitation bars the right. . . The limitations herein provided shall apply equally to all courts; and in addition to the above, courts of equity may interpose an equitable bar, whenever, from the lapse of time and laches of the complainant, it would be inequitable to allow a party to enforce his legal rights." The first sentence of this request is taken from Code § 37-119, and the second sentence from Code § 3-712. The limitations referred to in the latter portion of the request include various limitations of actions (many of which would not have been applicable to the present case) which are set out in Code §§ 3-701 to 3-711 inclusive. Furthermore, the language contained in the request, "the limitations herein provided shall apply equally to all courts," without setting forth in such request what the preceding limitations were, would have been an incomplete statement of the law. The assignment of error is to the refusal to give the whole of the above request; and since *819 a portion of the charge was an incomplete statement of the law, the court did not err in refusing the request. Etheridge v. Hobbs, 77 Ga. 531, 534 (4) (3 S. E. 251).
The requested charge in ground 4 was: "Equity is ancillary, not antagonistic, to the law; hence equity follows the law where the rule of law is applicable, and the analogy of the law where no rule is directly applicable." This request is taken from Code § 37-103. In charging on prescription, the court instructed the jury: "Prescription under color of title would become complete after seven years and by an analogy the period of limitation applicable to fraud complained of in this case is the same to that which is applied to an ordinary action for the recovery of land, to wit: seven years after the discovery of the fraud." The court also charged: "If Vinson [the defendant] did go away and remained away and just came back occasionally and let his former wife, Mattie L. Vinson, operate the farm and turned the possession over to her for the particular piece of property while he was away and let her manage and collect rents and send the rents to him, and sell timber on the property, if you find any timber was sold, or if you find that she rented it and collected the rents and sent the money to him or part of the monies to him, if you find that, from the evidence, you should find a verdict in favor of the defendant." The court having so instructed the jury, there was no occasion to charge Code § 37-103.
The requested charge in ground 5 was: "He who would have equity must do equity, and give effect to all equitable rights in the other party respecting the subject-matter of the suit." This request is taken from Code § 37-104. There is no contention that the grantor received any money that she should have returned or tendered to the defendant. While the defendant averred in his answer that the deed constituted a gift to him at a time when the grantor was deeply obligated to him for assistance he had given her for many years in the management of her farm, nevertheless, there was no evidence to support this allegation. In the absence of any evidence on this question, the court did not err in refusing the request.
The requested charge in ground 6 was: "A gift by any person just arriving at majority, or otherwise peculiarly subject to be affected by such influences, to his parent, guardian, trustee, *820 attorney, or other person standing in a similar relationship of confidence, shall be scrutinized with great jealousy, and, upon the slightest evidence of persuasion or influence toward this object, shall be declared void at the instance of the donor or his legal representative, at any time within five years after the making of such gift." This court has held that Code § 48-107, from which the above request was taken, applies to the relationship of husband and wife, and that the wife's right to cancel a deed of gift to her husband is limited to five years. Cain v. Ligon, 71 Ga. 692 (2) (51 Am. R. 281); Ball v. Moore, 181 Ga. 146 (3) (182 S. E. 28); Davis v. Liberty Co., 183 Ga. 286 (1) (188 S. E. 344). However, the pleadings and uncontradicted evidence in the present case showed that the grantor and the defendant were not husband and wife on the date that the deed was executed. In such circumstances the court did not err in refusing the request. Compare Barron v. First National Bank & Trust Co., 182 Ga. 796 (3) (186 S. E. 847).
The requested charge in ground 7 was: "But one seeking to cancel a fraudulent deed is also subject to a time limit. By a long line of decisions of this court it is established beyond question that an action . . seeking the cancellation of an alleged fraudulent deed, must be brought within seven years from the time the fraud became known." This request is taken from the language of the opinion in Shirley v. Mulligan, 202 Ga. 746, 749 (44 S. E. 2d, 796). Some of the above-quoted language is argumentative. In so far as the request was properly adjusted to the pleadings and evidence, it was sufficiently covered by the charge as given, to wit, that the period of limitation applicable to the fraud complained of in this case was "seven years after the discovery of the fraud."
The requested charge in ground 8 was: "An absolute deed of conveyance will not, at the instance of the grantor, be canceled merely because of a breach by the grantee of a promise made by him in consideration of which the deed was executed." This request is taken from Brand v. Power, 110 Ga. 522 (1) (36 S. E. 53). It was alleged that the defendant promised to remarry the grantor and take care of her and her incompetent son the remainder of their lives; that the defendant failed to carry out these promises and is insolvent and unable to respond in damages. *821 However, there was no evidence that would have authorized any instruction on the above pleading and, accordingly, the court did not err in refusing the request.
In so far as any of the above requests to charge were properly adjusted to the pleadings and the evidence, they were sufficiently covered by the charge as given.
5. Special ground 9 complains that the court erred in charging the jury: "You are made by law the sole and exclusive judges of the credibility of witnesses. In passing upon their worthiness of belief, you may consider all the facts and circumstances of this case, the witnesses and manner of testifying, their intelligence, their means and opportunity for knowing the facts to which they testified, and the nature of the facts to which they testified, and the probability or improbability of their testimony, and also their personal credibility so far as the same legitimately appears from the trial of the case." The criticism is that, in giving the above charge, the court omitted the provision that the jury might also consider the witnesses' "interest or want of interest." When the trial judge undertakes to state to the jury the principles of the Code, § 48-107, as to how the preponderance of evidence should be determined, it is his duty to instruct them fully and completely with respect thereto, so far as relevant to the case on trial. Renfroe v. Hamilton, 193 Ga. 194 (2) (17 S. E. 2d, 709), and citations. However, in the present case there was no material conflict in the testimony of any of the witnesses, except as to the cutting of timber, and witnesses who testified on that question had no interest in the verdict. The grantor was dead and her incompetent son, who was to receive practically her entire estate, did not testify. In such circumstances, the failure of the court, in the absence of any request, to charge that the jury might also consider the witnesses' interest or want of interest was not error. Georgia Power Co. v. Burger, 63 Ga. App. 784 (1) (11 S. E. 2d, 834).
Specific ground 10 complains that the court erred in not clarifying the issues made by the pleadings and the evidence. After stating the contentions of the parties, the court said: "Now, gentlemen, in undertaking to state to you about the allegations of the plaintiff and the defendant, I haven't gone into all the details. You will have out with you the petition, the amended *822 petition, the answer and the amended answer and all of the the papers in the case, and you have the right to refer to them as often as you see fit, in your consideration, but remember that the petition and answer is not evidence." It is the duty of counsel to aid the court in determining what issues should be submitted to the jury. Anderson v. State, 196 Ga. 468, 471 (26 S. E. 2d, 755). If counsel in the present case desired any additional instruction on the issues as submitted, a request so to charge should have been presented to the trial court.
6. The evidence was sufficient to support the verdict for the petitioner, and the trial court did not err in overruling the defendant's motion for new trial as amended.
Judgment affirmed. All the Justices concur. Duckworth, C. J., concurs specially.
DUCKWORTH, C. J., concurring specially. I concur in the judgment and in the opinion except in so far as the opinion holds that, since the general charge covers the substance of the written requests, it was not error to fail to charge as requested. It is my opinion that all of the written requests were subject to the criticism that they were inapt or incorrect, and, for these reasons, it was not error to refuse to charge as requested. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374986/ | 193 Va. 506 (1952)
ROBERT L. JONES AND EVA E. JONES
v.
WILLARD W. LAMM.
Record No. 3883.
Supreme Court of Virginia.
March 10, 1952.
David Nelson Sutton and Wm. Earle White, for the plaintiffs in error.
Lewis Jones and James O. Heflin, for the defendant in error.
Present, Hudgins, C.J., and Buchanan, Miller, Smith and Whittle, JJ.
1. Appellee brought an action to recover for personal injuries alleged to have been sustained while he was working on appellants' farm. He alleged he was injured when a board in the floor of a wagon broke, causing his right leg to go through the hole, throwing him to the floor. The case was submitted to the trial judge for determination. Appellants contended at first, that the judge considered the testimony of a witness called at a former trial of the case. A reading of the trial court's written opinion did not bear out that contention, and there was no merit to the assignment.
2. Under the facts of headnote 1, appellants contended that the decision of the trial court awarding appellee a recovery was contrary to the law and the evidence in the case, and was without evidence to support it, and that the trial court erred in overruling the motion of appellants to set aside its decision. The evidence disclosed that appellee was an experienced farmer and that if there was a defect in the floor of the wagon as would render appellant liable it should have been discovered by appellee who had been using the wagon for several days. Appellee had not discovered a defect and under the circumstances it would have been unreasonable to hold that appellants, through the exercise of ordinary care, should have discovered it. There was not proven any act or omission on the part of appellants which rendered them liable to appellee, and appellants' contention was a valid one.
3. A master does not insure the safety of his servant. The master's duty is to use ordinary care to supply reasonably safe instrumentalities for the use of the servant.
4. Under the facts of headnote 2, appellee contended that the wagon bed was destroyed by appellants after the claim had been placed in the hands of an attorney. There was no evidence to indicate that the bed was destroyed for improper purposes, but even if it had, it would not have been proof of primary negligence.
5. An employer is under no obligation to his servants to inspect during their use those common tools and appliances with which every one is familiar.
6. The test resorted to in determining an employer's liability for injuries sustained by his employees is what a reasonably prudent person would ordinarily have done in the same situation or under similar circumstances. Although the employer's duty is that of exercising ordinary or reasonable care, whether the work is comparatively safe or is extremely dangerous, his duty becomes more imperative as the risk increases, as do the acts and precautions required by ordinary prudence.
Error to a judgment of the Circuit Court of Middlesex county. Hon. J. Douglas Mitchell, judge presiding. The opinion states the case.
WHITTLE
WHITTLE, J., delivered the opinion of the court.
Willard W. Lamm, appellee, sued Robert L. Jones and Eva E. Jones, appellants, for personal injuries alleged to have been sustained while he was working on appellants' farm. Appellee alleged that the injuries were sustained on May 13, 1949, when a board in the floor of a wagon bed broke, causing his right leg to go through the hole, throwing him to the floor, injuring his leg and more seriously injuring his back.
There was a trial of the case before a jury in the Circuit Court of Middlesex county in March, 1950, which resulted in a hung jury. On the second trial, in September, 1950, the case was, by agreement, submitted to the judge for determination. The judgment here complained of in the sum of $3,000 resulted.
There are two assignments of error relied upon. The first charged that the judge considered the testimony of a witness *508 called at the former trial which was not introduced at the trial under review. A reading of the trial court's written opinion does not bear out this contention, and there is no merit in the assignment.
The second assignment is: "The decision and judgment of the court is contrary to the law and the evidence in this case, and is without evidence to support it, and the court erred in overruling the motion of the defendants to set aside its decision and to enter final judgment for the defendants."
The decision of the judge in this instance has the effect of a jury's verdict and all conflicts in the evidence must be treated as having been resolved in appellee's favor.
The evidence from appellee's standpoint is as follows: Willard W. Lamm, 33 years of age, has been engaged in farming all his life. On or about February 1, 1949, he saw an advertisement in a Petersburg newspaper which read: "Wanted experienced farmer. Good tenant house. Apply Jones' Hatchery, Phone 2857." Lamm answered this advertisement and was employed for appellants by J. H. Southall, their son-in-law. Appellants were engaged in the chicken business and Lamm was the only experienced farmer on the place. Lamm testified:
"Q. But as far as you know you were the only experienced farmer down at the place?"
"A. I was hired down there as a farmer."
"Q. And you were the only farmer down there?"
"A. That is true."
There was a farm wagon on the place with a body on it. Prior to May 11, 1949, Lamm used this wagon for the purpose of hauling shavings and droppings from the chicken houses. Others on the farm at times had used the wagon. The wagon which was approximately seven years old was of heavy construction. The flooring of the bed was made of 2 inch by 6 inch boards. When not in use it was kept under a shed.
On May 11, 1949, Southall directed Lamm to get the wagon and use it to haul fertilizer to the field where corn was to be planted. Lamm suggested that he should grease the wagon before using it. He said: "* * * I figured that this wagon had not been greased and everything and I wanted to grease it before hauling this fertilizer, because the fertilizer was heavy, and it was a continuous haul, and I wanted to be sure the wagon *509 was in good shape, * * * I looked at it to the best of my knowledge. The wagon seemed to be all right for use."
"Q. How long had you been using the wagon, or wagons generally?"
"A. Ever since I been farming."
"Q. And you were thoroughly familiar with them?"
"A. That is right."
The court asked the appellee the following:
"Q. And you did actually inspect the wagon before you used it for hauling fertilizer."
"A. Judge, your Honor, I didn't get up under the wagon and look at it and around on the sides. I just looked over into the body, the body seemed to be in pretty good shape. I would say the wagon was all right to use. I didn't see any holes there, or anything."
After greasing the wagon Lamm loaded it with fertilizer and hauled it to the field. The fertilizer was packaged in 100-lb. paper bags and was loaded in two rows lengthwise along each side of the body, a third row of bags being placed crosswise on top of the two rows in the middle of the wagon bed. The bags along the side could be removed from the ground but the third row necessitated Lamm getting into the wagon in order to unload them.
Very little corn was planted on May 11th due to some mechanical difficulty with the planter. On Thursday, May 12th, Lamm continued planting corn, and on Friday, May 13th, he again loaded the wagon with fertilizer. This load was a light one. The bags were placed along the sides of the wagon but there were only two bags, as he recalled in the middle row, placed crosswise.
Lamm was working alone in the field on Friday, May 13th, the day of the alleged accident. He testified that he had been working about three hours when he mounted the wagon for the purpose of getting a torn bag of fertilizer from the middle row. He picked up the bag and was walking to the rear of the wagon body. When he reached a point about three feet from the rear of the wagon body his right foot and leg broke through the bottom and he was thrown on his back with the bag of fertilizer resting on his chest. His leg went through the hole up to his hip. After a few minutes he got up and went to the house.
That afternoon Lamm went to Deltaville to see a doctor who *510 treated the abrasions on his leg, and on Saturday he was carried to McGuire's Hospital where an x-ray of the leg was made. The x-ray showed no fracture. Appellee worked on the farm, finished planting corn and in June helped harvest wheat, but his condition grew worse and in July he told Southall that he could not continue the work whereupon Southall got someone else to take his place.
In view of the court's decision, as heretofore stated, we must accept the facts as outlined. It must be resolved that the accident happened as appellee contends, notwithstanding the fact that there is substantial evidence to the contrary. We also must accept the finding that appellee was injured as a result of the accident.
[2, 3] Accepting all this as true, there has not been proven any act or omission on the part of appellants which renders them liable to appellee under the facts of this case. No primary negligence has been shown. We are here dealing with a case which involves the common law duty of a master to his servant. The master does not insure the safety of the servant. The master's duty is to use ordinary care to supply reasonably safe instrumentalities for the use of the servant. The master is not a guarantor of the employee's safety, he is not required, at his peril, to provide the best and safest instrumentalities.
In this case we are dealing with a common farm wagon. They are found in general use on most farms. Appellee admits that he had used them ever since he had been engaged in farming and was thoroughly familiar with them. He was the experienced farmer in this instance, and if there was a defect in the floor of the wagon bed such as would render appellants liable it should have been discovered by appellee who had been using the wagon for several days. If appellee did not discover the defect under the circumstances it would be unreasonable to hold that appellants, through the exercise of ordinary care, should have discovered it.
Appellee contends that the wagon bed was destroyed by appellants after his claim had been placed in the hands of an attorney. The letter from the attorney was dated August 23, 1949. Appellants built a lighter bed to be used in hauling grain. The bed was rebuilt between the 10th and 15th of October, 1949. Evidently there was no rush in "destroying" the old bed. Assuming that appellee's suspicion is correct, the *511 destruction of this evidence would have been reprehensible but it would not be proof of primary negligence. We are assuming that the accident occurred as outlined by appellee.
Appellee relies upon the case of Colonna Shipyard, Inc. Bland, 150 Va. 349, 143 S.E. 729, 59 A.L.R. 497. He argues: "Bland was a ship carpenter and was required to go into the hold of a ship to make repairs and was instructed to use a moveable ladder 14 or 15 feet long to go down into the hold of the ship. The ladder broke and Bland was injured. * * *" We held in that case:
"We have no intention * * * of impinging in the slightest degree upon the 'simple tool' doctrine, or the line of cases in which employees having control of and using movable ladders were denied the right to recover. This ladder, while moveable within the hatchway, was in no sense an appliance entrusted to the plaintiff here for his use in connection with his work. He had not constructed it, it was not in his custody, it was accessible to others * * *. It was like a stairway, merely his means of access to his work in the hold of the ship, which his employer directed him to use, and this direction imposed upon the employer the duty to exercise reasonable care to see that it was a reasonably safe means of access." (150 Va. at page 363).
Appellee cites another ladder case, Missouri Pacific R. Co. Spangler,
140 F.(2d) 917, where an employee was injured in descending a stationary ladder into a pit in a pumphouse when a rotten piece of the ladder broke. In that case it was held that the ladder was a part of the place of employment and as such was subject to the general duty of the master to provide the servant with a reasonably safe place to work.
The facts and circumstances in the cases cited by appellee are vastly different from the instant case. Here we are dealing with an experienced farmer who, after greasing and examining the simple farm wagon, found that "the wagon seemed to be all right for use". If there were no defects in the floor of the wagon bed visible to appellee, then in the exercise of ordinary care the defects were not visible to appellants.
"Where the tool is simple in construction, so that defects therein can be discovered without special skill or knowledge and without intricate inspection, the employee is as well qualified as anyone else to detect defects and to judge of the probable danger of using the device while defective; and where the tool *512 is in the possession of the employee, his opportunity for inspection is better than that of the employer." 35 Am. Jur., Master and Servant, | 143, page 574.
"An employer is under no obligation to his servants to inspect during their use those common tools and appliances with which every one is familiar. * * *" 56 C.J.S., Master and Servant, | 235, page 990.
"The test resorted to is what a reasonably prudent person would ordinarily have done in the same situation or under similar circumstances. Although the employer's duty is that of exercising ordinary or reasonable care, whether the work is comparatively safe or is extremely dangerous, his duty becomes more imperative as the risk increases, as do the acts and precautions required by ordinary prudence." 56 C.J.S., Master and Servant, | 202, page 907.
The course of conduct followed by appellants here is the usual and customary procedure ordinarily exercised by prudent men under similar circumstances and thus affords the measure of the degree of care required of the employer which in this instance is ordinary care. Reynolds Security Trust Co., 246 Mich. 670, 225 N.W. 575.
There is no showing of the lack of ordinary care by the appellants in this case, and for this reason the judgment is set aside and annulled and final judgment is here entered for appellants.
Reversed and final judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374867/ | 208 Ga. 855 (1952)
69 S.E.2d 723
OGLETREE et al.
v.
INGRAM & LEGRAND LUMBER CO.
17786.
Supreme Court of Georgia.
Argued February 12, 1952.
Decided March 10, 1952.
Rehearing Denied March 25, 1952.
*856 Ernest C. Britton, for plaintiffs in error.
R. S. Wimberly, contra.
HEAD, Justice.
1. The writings set forth in the petition in this case are wholly insufficient to constitute a contract for the sale of land. If a contract was made by the parties, it must be found in the two telegrams set out in the petition. The first telegram is from H. Land of the Land Realty Company to Ben Ogletree, as follows: "Offered nine thousand less commission Lumpkin place wire if acceptable." The telegram in reply was by Mrs. G. R. Ogletree to H. Land, stating: "Retel we accept offer on Lumpkin land you draw up deed and mail to me. All of us will sign and return air mail." The purported contract is sought to be enforced by Ingram & LeGrand Lumber Company, which company avers that it is the party making the offer referred to in the first telegram.
"Contracts for sale of land, being within the statute of frauds, are required to be in writing, and the writing should in some way show the names of the parties to the contract." Moore v. Adams, 153 Ga. 709, 713 (113 S.E. 383, 23 A. L. R. 925); Oglesby Grocery Co. v. Williams Mfg. Co., 112 Ga. 359 (37 S.E. 372); F. & W. Grand &c. Stores v. Eiseman, 160 Ga. 321 (127 S.E. 872).
In Moore v. Adams, supra, it was held: "In an action by an alleged vendor for specific performance, where a copy of the alleged written contract for sale of land relied on as foundation *859 for a suit is embodied in the petition, and the paper appears to be signed by persons alleged in the petition to be agents of the vendor, but does not contain the signature of the alleged vendor nor in any way disclose his name, the petition is subject to general demurrer." The facts of the case of Moore v. Adams, supra, make it directly applicable to the present case. In each instance it is the party seeking enforcement who is not named or designated in the alleged contract.
In Fraser v. Jarrett, 153 Ga. 441 (112 S.E. 487), cited by counsel for the plaintiff, it was held: "Under our statute of frauds a contract for the purchase of lands need only be signed by the party against whom the contract is sought to be enforced." In the Fraser case, however, the names of both parties were revealed in the writings forming the contract sought to be enforced.
In the present case, the telegrams relied upon as forming the contract nowhere reveal the identity of the alleged vendee. This deficiency in the alleged contract was not cured by the fact that later a deed was submitted to one or more of the defendants, which named the plaintiff as the vendee. The unexecuted deed was not a part of any alleged contract between the parties.
The only consideration alleged in the petition for the purported contract was the mutual promises of the parties. "If mutual promises are relied on as a consideration to support a contract, the obligations of the contract must be mutually binding upon the respective parties." Buick Motor Co. v. Thompson, 138 Ga. 282 (75 S.E. 354). Under the allegations of the petition, the plaintiff would not have been bound by the telegram of the realty company, merely stating that an offer had been made.
2. "Specific performance of a contract for the sale of land will not be decreed unless the land which is the subject matter of the alleged sale is clearly identified in the contract." Estes v. Winn. 136 Ga. 344 (71 S.E. 470); Clayton v. Newberry, 138 Ga. 735 (76 S.E. 63); Durham v. Davison, 156 Ga. 49 (118 S.E. 736); Malone v. Klaer, 203 Ga. 291 (46 S.E. 2d, 495). "While it is not necessary that the land be described with such precision that its location and identity are apparent from the description alone, yet the description must be sufficiently clear to indicate with reasonable certainty the land intended to be conveyed. *860 Parol evidence can not be invoked in aid of a vague and uncertain description, but is available to show the application of a description which itself furnishes a means of identification. If the land is so imperfectly and indefinitely described in the writing that no particular tract or lot is designated, parol evidence is not admissible to supply a description." Tippins v. Phillips, 123 Ga. 415 (51 S.E. 410).
The only description of the property in the exchange of telegrams between the realty company and the defendants was "Lumpkin place" and "Lumpkin land." The petition shows that the reason the property was designated as the Lumpkin place or land was that it was located near Lumpkin, the county seat of Stewart County. This was not a name by which the place had been known for a number of years, so that it might be located by the introduction of parol testimony. The exchange of telegrams did not even show that it was property owned by the defendants near Lumpkin, and the allegation in the petition that this was the only land owned by the defendants in Stewart County could add nothing to the description in the telegrams. The description is not ambiguous, but is so vague and uncertain that it indicates no particular land. An alleged contract for the sale of land with such uncertain description can not be enforced in a court of equity.
It is the contention of the plaintiff that, even if the description in the telegrams should be held to be too uncertain to be capable of enforcement, this uncertainty was cured by the fact that, after Mrs. Ogletree had sent the telegram of September 9, 1949., in which she instructed H. Land to mail a deed to her for execution by the defendants, a deed describing the property in detail was sent to Mrs. Ogletree. This unexecuted deed could add nothing to the purported contract. Any contract made by the parties must be found in the offer and the acceptance. Compare Lancaster v. Wilson, 151 Ga. 154 (106 S.E. 103).
It is unnecessary, in view of the foregoing rulings, to consider other questions raised by the demurrers.
The petition did not state a cause of action for specific performance of a contract for the sale of land, and the court erred in overruling the general demurrers to the amended petition.
Judgment reversed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374894/ | 208 Ga. 752 (1952)
69 S.E.2d 609
HARDY et al.
v.
THOMAS.
17709.
Supreme Court of Georgia.
Argued January 15, 1952.
Decided February 11, 1952.
Rehearing Denied March 13, 1952.
Pierce Bros., for plaintiffs in error.
John F. Hardin and Henry G. Howard, contra.
ALMAND, Justice.
The exceptions here are to an order overruling general and special demurrers to a petition and granting an interlocutory injunction. The case as made by the pleadings is as follows: The plaintiff is the owner of a tract of land containing 456 acres, and the defendants own a tract adjoining the plaintiff's property. There is a public road which has been kept in a state of repair by Columbia County for more than 20 years and used by the general public, which road runs through the properties of the plaintiff and the defendants, said road being 4 1/2 miles in length and connecting the Fury's Ferry road with the Washington road. The defendants have obstructed said road by erecting two fences across the same, to the injury and damage of the plaintiff and the general public, and the obstruction is a continuing nuisance. The plaintiff has been damaged in the sum of $3000, and will be damaged each day said nuisance is allowed to continue. The plaintiff has no adequate remedy at law and, unless the defendants are restrained from continuing to obstruct said road, the plaintiff will suffer irreparable loss. The prayers were for an order restraining the defendants from continuing to obstruct the road, and to abate the nuisance. A temporary restraining order was granted, and on the hearing of the prayer for an interlocutory injunction the defendants demurred generally to the petition on the grounds that: (a) it showed no cause for the grant of either legal or equitable relief; (b) it failed to show that the road is either a public or a private road; and (c) the plaintiff had an adequate remedy at law. The special demurrers challenged the legal sufficiency of certain paragraphs of the petition. The court entered an order overruling all the demurrers, and granted an injunction, the order reading as follows: "After the hearing on the above-mentioned demurrers, the court went into the hearing of the case on the evidence by agreement of counsel for both parties and, after hearing the evidence and argument of counsel, the court finds that the road in question is a public road which has been obstructed by the defendants, and that said obstruction is a continuing nuisance and a trespass to the plaintiff. I further find that said obstructions are a nuisance to the general public. And having so found from the evidence, it is hereby considered, ordered and adjudged by the court that the plaintiff is entitled to injunctive relief, and said temporary restraining order is hereby made permanent and the defendants are hereby restrained and enjoined from obstructing said road further and are hereby ordered to remove said obstructions and abate said nuisance instanter." (Italics ours.) Error is assigned on the part of the order granting injunctive relief as well as on the part of the order overruling the demurrers. Neither the bill of exceptions nor the transcript of the record contains any of the evidence introduced on the hearing. Held:
1. A permanent obstruction of a public road which materially interferes with travel therein is a nuisance per se. Rider v. Porter, 147 Ga. 760 (2) (95 S.E. 284).
2. A court of equity will in a proper case enjoin a public nuisance. Mayor &c. of Columbus v. Jaques, 30 Ga. 506 (3).
*753 3. Though a private citizen may not generally interfere to have a public nuisance enjoined, any citizen specially injured may proceed in his own name to have a public nuisance abated. Code, § 72-202; Savannah, Florida &c. Ry. Co. v. Gill, 118 Ga. 737 (3) (45 S.E. 623); Coker v. Atlanta, Knoxville &c. Ry. Co., 123 Ga. 483 (3) (51 S.E. 481); Trust Co. of Ga. v. Ray, 125 Ga. 485 (1) (54 S.E. 145); Sammons v. Sturgis, 145 Ga. 663 (2) (89 S.E. 774); Rider v. Porter, 147 Ga. 760, supra. So, equity will enjoin the unauthorized occupancy of a street at the instance of a private citizen, where he suffers special damage and the injury cannot be adequately compensated in damages, and the nuisance is a recurring grievance. Kavanagh v. Mobile & Girard R. Co., 78 Ga. 271 (1) (2 S.E. 636).
4. A landowner, whose property is traversed by a public road which is used as a means of ingress and egress to his lot, may maintain a suit in equity to enjoin an adjoining owner of land who has erected a fence or barrier across the road, which prevents the former from using the road in and to his farm, from maintaining such obstruction, where it appears that such obstruction is a continuing nuisance and such landowner has suffered and is suffering special damage not suffered by the general public. Coker v. Atlanta &c. Ry. Co., 123 Ga. 483 (supra); Barham v. Grant, 185 Ga. 601 (196 S.E. 43).
5. Where the injunctive relief prayed for is mandatory in nature or character, a court of equity is without power to grant such relief. Code, § 55-110. But where the relief prayed for is only to restrain, an injunction may be granted, although in yielding to the order the defendant may be compelled to perform some act. Noland v. Biggers, 171 Ga. 627 (156 S.E. 266). In this case, the prayer for injunction does not seek any relief mandatory in character.
6. As against the general demurrers, the amended petition stated a cause of action. The alleged errors in overruling the special demurrers, not being argued, are treated as abandoned. Board of Educ. of Houston County v. Bd. of Trustees of Fort Valley Consol. School Dist., 170 Ga. 509 (5) (153 S.E. 214).
7. A permanent injunction cannot be granted on the hearing of an application for an interlocutory injunction. Purcell v. Pilgrim, 152 Ga. 61 (108 S.E. 515). Nor has the court power, by injunctive order, to compel a party to perform an act. Code, § 55-110. In the instant case, the court did not err in continuing in force the temporary restraining order; but erred in making the injunction permanent and in ordering the defendants "to remove said obstructions and abate said nuisance instanter." Georgia Power Co. v. City of Rome, 172 Ga. 14 (157 S.E. 283). Direction is given that, on return of the remittitur in this case, the trial court amend its order by striking therefrom the grant of a permanent injunction, and the part of the order above quoted. See Florida Central R. Co. v. Cherokee Sawmill Co., 137 Ga. 815 (74 S.E. 523).
8. It is apparent from the trial judge's order that he granted an injunction, not solely upon a question of law, but upon issues of law and fact, the finding of fact being based upon evidence introduced on the hearing. Since none of the evidence appears in either the bill of exceptions or transcript of the record, we cannot say that he abused his discretion in *754 granting an injunction. Code, §§ 55-108, 55-201; Sims v. Sims, 110 Ga. 283 (34 S.E. 847); Mobley v. Brundage, 170 Ga. 829 (154 S.E. 452).
9. The plaintiffs in error having obtained in this court a substantial modification of the judgment of the trial court, the cost of bringing the case to this court, and the costs here, are taxed against the defendant in error. Finleyson v. International Harvester Co., 138 Ga. 247 (3a) (75 S.E. 103); Anderson v. Beasley, 169 Ga. 720 (151 S.E. 360).
Judgment affirmed with direction. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2573237/ | 210 P.3d 773 (2007)
THOMAS (SHAWN)
v.
STATE.
No. 49588.
Supreme Court of Nevada.
September 25, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1374960/ | 193 Va. 564 (1952)
HARVEY L. HOWLETT
v.
CITY OF SOUTH NORFOLK.
Record No. 3901.
Supreme Court of Virginia.
March 10, 1952.
Louis B. Fine and Robert C. Stackhouse, for the plaintiff in error.
R. E. Gibson, for the defendant in error.
Present, All the Justices.
1. An agreement of abutting property owners to pay a part of the cost of improvements to a street is not a valid defense to an action against the city, based upon its negligence in making the improvements, or in maintaining the street after the improvements have been made. The right of action arises when the actual installation of the improvements on the ground results in damage.
2. A city, in adopting a plan for the improvement of its streets, or other public works, acts in a governmental capacity, but in the construction and maintenance of such improvements, it acts in a ministerial or proprietary capacity, and is liable for damages caused by its negligence.
3. Surface water is defined as that which is diffused over the surface of the ground, derived from falling rains and melting snow, and continues to be such until it reaches some well defined channel.
4. Surface water is considered a common enemy, and each landowner may fight it off as best he can. He may obstruct or hinder its flow and may even turn it back upon the land of his neighbor from whence it came.
5. The right to obstruct the flow of surface water must not be exercised wantonly, unnecessarily, or carelessly. It must be a reasonable use of the land for its improvement or better enjoyment, and the right must be exercised in good faith, with no purpose to abridge or interfere with the rights of others, and with such care with respect to the property that may be affected by the use or improvement as not to inflict any injury beyond what is necessary.
6. The owner of land cannot collect surface water into an artificial channel or volume and pour it upon the land of another to his injury. The right to fend off surface water does not extend that far.
7. The owner of land cannot interfere with the flow of surface water in a natural channel or watercourse.
8. Plaintiff brought an action against the city and alleged that it had negligently raised the grade of the avenue in front of his house, thereby causing surface water to overflow the curbing gutter and flood his lot. The overwhelming weight of testimony was to the effect that the only surface water that accumulated on plaintiff's property was rain water that fell on the lot, and water that trickled down the slope of an alley in the rear. Plaintiff failed to prove his allegations and the jury verdict for defendant was correct.
Error to a judgment of the Circuit Court of Norfolk county. Hon. Edward L. Oast, judge presiding. The opinion states the case.
HUDGINS
HUDGINS, C.J., delivered the opinion of the court.
Harvey L. Howlett, in this action against the City of South Norfolk, alleged that the city had negligently raised the grade of Wright avenue, the street in front of his residence, thereby causing surface water to flood his lot and stand under his dwelling, to his damage in the sum of $5,000. The jury returned a verdict for defendant, on which judgment was entered.
Plaintiff bases his right to recover entirely on the alleged negligence of the city in causing surface water to overflow the curbing gutter on Wright avenue and flood his lot.
The testimony for plaintiff tends to prove that in March, 1949, he moved into a newly constructed dwelling which he purchased from Robert B. Rowland, Jr., and wife, who acquired it by deed from W. D. Hobbs, Jr., and S. A. Thorpe, dated April 25, 1949. The dwelling was built on Lot No. 132, 50 X 100 feet, *566 on Wright avenue in the city of South Norfolk. At that time no surface water inundated his lot or collected under his residence. In July, 1949, without notice to him, the city began its improvements on Wright avenue. It raised the grade of the street, built curbing, storm gutters and sidewalks. This was completed in December, 1949, after which surface water collected on his lot and stood 4 1/2 to 5 inches deep under his dwelling, flooding his furnace.
The testimony for defendant tended to prove that in 1927 the then owners of several acres, of which plaintiff's lot was a part, caused a plot to be made showing a subdivision of the entire area into lots, streets and alleys. Grades for the drainage of the streets, including the grade of Wright avenue, were established, and a plot of the subdivision approved October 10, 1927. At that time the land was covered with brush and standing trees, the diameter of some of which was 15 inches. That part of the subdivision lying on Wright avenue was not cleared until 1947, and then the holes made by the removal of stumps were not filled, nor was the terrain leveled.
On August 14, 1948, the city, on request of W. D. Hobbs, Jr., and S. A. Thorpe, the then owners of several lots in the 800 block on Wright avenue, issued permits for the construction of eight dwelling houses, including the dwelling now owned by plaintiff. At that time Wright avenue was open, but ungraded and unimproved. Surface water collected in many mudholes and depressions in Wright avenue.
This being the condition of the terrain, when the owners obtained the permits to construct the dwellings, they requested Irwin W. Dunning, the city engineer, to give them the proposed grade of Wright avenue. The engineer collected all available data, went upon the scene, and advised Hobbs that the walkway from the building to the street on Lot No. 138, the northwestern corner lot of Wright avenue and Chamberlin street, should be laid at the then level of the ground, and west of this lot the level should be raised one inch per fifty feet. Plaintiff's lot is approximately 300 feet west of Lot No. 138. Hence the ground level of the walkway on his lot should have been approximately six inches higher than the level of Lot No. 138. Instead of complying with these instructions, the owners built plaintiff's house to conform to a level of 6 3/4 inches lower than the elevation given them by the engineer, and seven inches lower than the *567 unimproved alley at the rear from which surface water collects on his lot and under his house.
Defendant proved that it had long been its policy to install sidewalks "when abutting property owners request such installation and agree to contribute their one-half" of the cost. All the owners (including plaintiff's predecessors in title) of lots abutting on Wright avenue were informed that "Recently the Council has offered to install curbing and guttering whenever the abutting property owners request the same and agree to contribute one-half of the cost of this type of installation." They were not required to pay any part of the cost of grading and surfacing the street.
On December 16, 1948, Thorpe and Hobbs, the then owners of plaintiff's lot, requested the city to make the improvements on Wright avenue, and agreed to pay their proportionate part of the cost. On February 17, 1949, the city notified the owners that it would make the improvements. However, actual construction was not begun until July 20, 1949, at which time the grade of Wright avenue was raised two inches higher than the grade given by the city engineer to Hobbs and Thorpe. This made the elevation of the street 8 3/4 inches higher than the elevation of plaintiff's lot.
An agreement of abutting property owners to pay a part of the cost of improvements to a street is not a valid defense to an action against the city, based upon its negligence in making the improvements, or in maintaining the street after the improvements have been made. The right of action does not arise on the mere adoption of plans for improvements. It arises when the actual installation of the improvements on the ground results in damage. Swift & Co. Newport News, 105 Va. 108, 52 S.E. 821, 3 L.R.A.(N.S.) 404; 63 C.J.S., Municipal Corporations, sec. 1258 c., p. 989.
The general rule is that a city, in adopting a plan for the improvement of its streets, or other public works, acts in a governmental capacity, but in the construction and maintenance of such improvements, it acts in a ministerial or proprietary capacity, and is liable for damages caused by its negligence. Hoggard Richmond, 172 Va. 145, 200 S.E. 610, 120 A.L.R. 1368; Norfolk
Hall, 175 Va. 545, 9 S.E.(2d) 356.
It is conceded that the city raised the elevation of Wright avenue two inches higher than that adopted in 1927. However, *568 there is no evidence tending to show that this change in the grade caused surface water to flow from the street and flood plaintiff's property.
Plaintiff proved by S. W. Armistead, civil engineer of thirty years' experience, that in order to drain plaintiff's lot the level of Wright avenue would have to be lowered one foot. On cross-examination, he said that the city was not careless or negligent in the plan adopted. "As far as I can see, it is a well worked plan. The City Engineer of South Norfolk is interested in draining streets there, but didn't drain the land on the side of it in that block." The city engineer testified that if the grade on Wright avenue were lowered one foot, it would be necessary to change the drainage plan of the entire area, and that the cost of the consequential changes would be prohibitive, or out of proportion to the benefits accruing therefrom.
This brings us to the question of surface water, which is defined to be that which is diffused over the surface of the ground, derived from falling rains and melting snow, and continues to be such until it reaches some well defined channel; or, as stated in 40 Cyc. 639: "Surface waters are such as diffuse themselves over the surface of the ground, following no defined course or channel."
[4, 5] The rights of adjacent land owners with respect to surface water is well settled in this State. Surface water is considered a common enemy, and each landowner may fight it off as best he can. He may obstruct or hinder its flow and may even turn it back upon the land of his neighbor from whence it came. Norfolk, etc. R. Co. Carter, 91 Va. 587, 22 S.E. 517; Mason
Lamb, 189 Va. 348, 53 S.E.(2d) 7, 12 A.L.R.(2d) 1332. However, this right to obstruct the flow of surface water must not be exercised wantonly, unnecessarily, or carelessly, as the rule is modified "by that golden maxim of the law, that one must so use his own property as not to injure the rights of another. It must be a reasonable use of the land for its improvement or better enjoyment, and the right must be exercised in good faith, with no purpose to abridge or interfere with the rights of others, and with such care with respect to the property that may be affected by the use or improvement as not to inflict any injury beyond what is necessary." Norfolk, etc., R. Co. Carter, supra.
"The right thus modified, has also its exceptions. One exception is that the owner of the land can not collect the water *569 into an artificial channel or volume and pour it upon the land of another to his injury. The right to fend off surface water does not extend that far."
* * *
"Another exception to the right * * * is that the owner of the land can not interfere with the flow of surface water in a natural channel or watercourse. Where the water has been accustomed to gather and flow along a well defined channel, which by frequent running it has worn or cut into the soil, he may not obstruct or divert it to the injury of another * * *." Norfolk, etc., R. Co. Carter, 91 Va. 587, 22 S.E. 517. See Mason Lamb, supra; Hicks Anderson, 182 Va. 195, 28 S.E.(2d) 629; Third Buckingham Community Anderson, 178 Va. 478, 17 S.E.(2d) 433; Wright Richmond, 146 Va. 835, 132 S.E. 707; Portsmouth Weiss, 145 Va. 94, 133 S.E. 781; Farmville Wells, 127 Va. 528, 103 S.E. 596; McGehee
Tidewater R. Co., 108 Va. 508, 62 S.E. 356. 25 Am. Jur. Highways, sec. 87, p. 391; Annotation 27 A.L.R. p. 971.
Plaintiff does not contend that defendant obstructed or hindered the flow of surface water from his lot along any defined channel or ditch. His contention is that surface water from Wright avenue was gathered in an artificial channel and ran over the curbing onto his property.
The photographs filed by plaintiff as exhibits show that a sidewalk 3 1/2 to 4 feet wide, and a grass plot approximately 3 feet wide, are between plaintiff's property line and the gutter curbing on Wright avenue. The uncontradicted testimony is that the level of the sidewalk is eight inches higher than the bottom of the gutter. Hence, in order for surface water to flow from the street onto plaintiff's lot it necessarily would have to flow over the eight inch gutter curbing and across the grass plot and sidewalk. The overwhelming weight of the testimony is to the effect that the only surface water that accumulates on plaintiff's property is rain water that falls on the lot, and water that trickles down the slope of the alley at the rear.
Plaintiff's own testimony on the subject is as follows:
"Q. You are not prepared to say that it does not slope that way, and you haven't seen water run from the sidewalk back that way?"
"A. No, but I could see it trickling down by the pile of dirt there. *570 "
"Q. That was not after this was filled in?"
"A. No, sir. As it is now it wouldn't be because I have got it piled higher at the sidewalk so it won't; it just tapers back against the house."
"Q. The water from the street, sidewalk and curb line does not flow back over your property now?"
"A. If it rains hard you can see where it will trickle over there."
* * *
"Q. Your main difficulty, Mr. Howlett, is that the water that collects in your backyard has no way to drain off now; is that the case?"
"A. Not exactly. Where I was telling you where I brought the front yard up to the sidewalk to keep water coming off the sidewalk down into the property, I had to taper that back towards the front of the house, and when it rains it seems like water seeps in front towards the house."
"Q. You mean under the house?"
"A. Yes."
Plaintiff's expert witness, S. W. Armistead, testified:
"Q. Mr. Armistead, does any water from the street along there on the sidewalk flow over on the Howlett property? I believe you testified that there was water in the back yard that collected?"
"A. No water from the street can flow over into this lot."
* * *
"Q. Did you observe in the rear of the Howlett house a crawl hole under the house?"
"A. I did."
"Q. Did you not see that level of the lower portion of the crawl hole is about the same as the yard?"
"A. About the same, probably a few inches lower."
The city engineer testified that the grade from plaintiff's property line to the curbing falls 1/4 of an inch to the foot, and that even rain water that falls in this space drains into the gutter, and not on the lot in question.
Plaintiff's failure to prove his allegation to the effect that the city, by its negligence, caused water to overflow the curbing gutters and flood his property, renders it unnecessary to discuss his assignments of error seriatim.
The judgment is affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375041/ | 905 P.2d 404 (1995)
79 Wash.App. 798
Carol URBAN, Appellant,
v.
MID-CENTURY INSURANCE, a foreign insurance corporation, Respondent.
No. 17171-6-II.
Court of Appeals of Washington, Division 2.
November 16, 1995.
As Amended on Denial of Reconsideration December 12, 1995.
*405 J. Arvid Anderson, Anderson Burns & Hostnik, Tacoma, for appellant.
Timothy R. Gosselin, Burgess Fitzer Leighton & Phillips Ps, Tacoma, for respondent.
HOUGHTON, Judge.
Carol Urban instituted an action to set aside a settlement and release she signed in order to claim uninsured motorist benefits following an auto accident. She appeals from the trial court's (1) denial of her motion for summary judgment, (2) grant of partial summary judgment of dismissal on behalf of Mid-Century Insurance Company (Mid-Century) and, (3) entry of judgment in favor of Mid-Century following a bench trial. We affirm the denial of Urban's motion for summary judgment, but reverse the summary judgment and entry of judgment in favor of Mid-Century and remand for trial.
FACTS
On February 21, 1990, Carol Urban was a passenger in a car driven by her friend Nancy Owens. The car was struck from behind by an uninsured motorist. On the day of the accident, Urban was treated for back and neck injuries at Harrison Memorial Hospital in Bremerton and was released after being diagnosed with a cervical strain. Urban was told she would likely feel worse before feeling better and that she should see her family doctor in two days. She visited her physician, Dr. Bright, two days later and was prescribed anti-inflammatory medicine. Dr. Bright reiterated Urban's earlier prognosis.
Nancy Owens told Urban that she carried uninsured motorist coverage on her auto insurance policy. On February 28, 1990, Mid-Century's claims adjuster, Hugh Kile, contacted Urban and arranged to meet with her at her home. According to Kile's deposition testimony, he does not recall the exact conversation because he processes about 1000 claims each year. Kile also said that he has a standard statement he gives to all parties when they sign a claim. He tells the potential claimant that he or she:
[has] the right to keep [the] claim open for a period of six years as an uninsured motorist claim; that [the claimant] can settle that claim any time; that [the claimant] can hire an attorney; that [the claimant] can settle with me at that time, leaving the PIP [personal injury protection] open.
Kile believed that he told Urban about all of her choices. He further stated that he most likely would not have told her the policy limits of coverage, nor have provided her with a copy of the policy unless she had requested it. He also stated that before a claims representative can disclose the insurance policy limits, the branch manager must provide authorization.
Kile and Urban reached an agreement that Urban's medical bills would be paid for a year. Mid-Century also agreed to pay for household help until Urban recovered. Urban accepted Mid-Century's offer of $1000 for her inconvenience. She signed a "Trust Agreement and Release in Full" (Release) document. Urban acknowledges that Kile asked her to read the Release before signing it and also asked her if she understood what she was signing. She said she did. She does not recall Kile's telling her anything about the insurance policy, or that by signing the Release, she was settling her claim with her friend.
The Release stated the claim was:
being made under the Uninsured Motorist insuring agreement of an automobile policy... issued by the insurer to Nancy Owens AND FURTHER: In consideration of such payment the undersigned represents and warrants that this is a full and final release applying to all known claims, unknown and anticipated injuries, deaths or damages arising out of this accident, casualty, or event.
Months later, Urban returned to the doctor because of pain in her back. In August 1990, it was discovered she had a herniated disc. The herniation was later surgically repaired.
Urban filed a lawsuit against Mid-Century seeking to rescind the Release and to recover damages and attorney fees pursuant to RCW 19.86, the Consumer Protection Act (CPA). She alleged that her signature was obtained *406 through overreaching, the use of undue influence, and unfair and deceptive trade practices. She further alleged that Mid-Century obtained the Release in contravention of RCW 48.01.030, which provides that an insurance carrier must practice honestly and equitably in all insurance matters. Urban claimed that Mid-Century dealt unfairly and deceptively in violation of RCW 19.86.020 and 48.30.010, and provisions of WAC 284-30.
Urban moved for summary judgment on her claims. Mid-Century also moved for summary judgment, requesting that the Release be declared valid and enforceable. Urban's motion was denied and Mid-Century's was granted in part. Both parties moved for reconsideration. Their motions were denied. The remaining issue, whether the defendant was liable under the CPA for violation of WAC 284-30-330(6), was tried to the bench. The trial court entered findings of fact and concluded, as a matter of law, that WAC 284-30-330(6) did not apply to the facts of the case. Urban's complaint was then dismissed with prejudice and she appeals.
ANALYSIS
In deciding the case upon summary judgment and also upon the taking of evidence, the trial court bifurcated the issues in this case. Accordingly, this court employs two standards of review.
On appeal of a summary judgment, we engage in the same inquiry as the trial court. Nationwide Mut. Fire Ins. Co. v. Watson, 120 Wash.2d 178, 186, 840 P.2d 851 (1992). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). On review of a summary judgment, we consider the facts most favorably to the non-moving party, and, after doing so, will affirm if reasonable minds could reach but one conclusion. Nationwide Mut., 120 Wash.2d at 186, 840 P.2d 851.
Where summary judgment is inappropriate for all issues presented, a trial court may bifurcate the proceedings. It decides the issues of law summarily, and then decides genuine issues of material fact at a trial, as the court did here. CR 56(d). On appeal the findings of fact will be reviewed for support by substantial evidence. Johnson v. Department of Licensing, 71 Wash.App. 326, 332, 858 P.2d 1112 (1993).
Urban contends that the trial court erred in granting Mid-Century a partial summary judgment of dismissal. She asserts that under the circumstances of this case, the Release should be voided. She further asserts that Mid-Century failed to comply with the requirements of certain statutes and regulations and, as a result of violations, she is entitled to recover damages, costs, attorney fees and treble damages, not to exceed $10,000 pursuant to the CPA. RCW 19.86.090.
We turn first to Urban's contention that the Release should be voided. Urban asserts that Mid-Century did not meet the requirements of WAC 284-30-350(1) and (2). According to Urban, she should have been provided with additional policy information before Mid-Century obtained her signature on the release. She contends that the Release was therefore obtained through misrepresentation and overreaching by Mid-Century. However, Mid-Century argues that Urban was provided with all of the information required by the WAC's. The trial court agreed with Mid-Century and granted its motion for summary judgment of dismissal on this claim.
WAC 284-30-350 provides, in pertinent part:
(1) No insurer shall fail to fully disclose to first party claimants all pertinent benefits, coverages or other provisions of an insurance policy or insurance contract under which a claim is presented.
(2) No agent shall conceal from first party claimants benefits, coverages or other provisions of any insurance policy or insurance contract when such benefits, coverages or other provisions are pertinent to a claim.
At oral argument on this matter, counsel for Mid-Century conceded that Urban is in a first party status.[1] Where Urban is a "first party claimant," Mid-Century has a duty to fully disclose to Urban all pertinent benefits, *407 coverages or other provisions of a policy. We interpret this language to mean that Mid-Century should have provided Urban with all pertinent information contained in the policy, including types and limits of coverage. WAC 284-30-350.
The validity of a Release is generally upheld unless it was induced by fraud, misrepresentation or overreaching or if there is clear and convincing evidence of mutual mistake. (citations omitted). Nationwide Mut., 120 Wash.2d at 187, 840 P.2d 851. Having determined that Urban is a "first party claimant" who would be entitled to full and complete disclosure pursuant to WAC 284-30-350, we hold that Mid-Century's failure to make such disclosure is a misrepresentation, which renders the Release voidable. We therefore reverse and remand for a determination of whether the Release is void for not having been knowingly and fairly made.
We recognize that the trial court determined that the Release was fairly and knowingly made. However, the trial court rendered its decision with regard to WAC 284-30-330, having dismissed on summary judgment Urban's claims under WAC 284-30-350.
Urban next assigns error to the trial court's dismissal of her claims under WAC 284-30-330. We agree with the trial court that the provisions of WAC 284-30-330(1), (9), and (13) are not applicable to the facts of this case and affirm the summary judgment.
Urban further contends that the trial court erred in dismissing her CPA action. In order to recover damages under the CPA, a private party must prove that the defendant's act or practice (1) is unfair and deceptive, (2) occurs in the conduct of trade or commerce, (3) affects the public interest, (4) causes injury to the plaintiff's business or property, (5) causes the injury suffered. Hangman Ridge Training Stables, Inc. v. Safeco Title Ins. Co., 105 Wash.2d 778, 784-85, 719 P.2d 531 (1986). The first two elements may be established by showing that the alleged act constitutes a per se unfair trade practice. A per se unfair trade practice occurs when a statute which has been declared by the Legislature to constitute an unfair or deceptive act in trade or commerce is violated. Hangman Ridge, 105 Wash.2d at 786, 719 P.2d 531.
WAC 284-30-330 define types of conduct determined to be "unfair or deceptive acts or practices in the business of insurance, specifically applicable to the settlement of claims." Furthermore, a single violation of WAC 284-30-330 constitutes a violation of RCW 48.30.010.[2]Industrial Indem. Co. v. Kallevig, 114 Wash.2d 907, 925, 792 P.2d 520 (1990). We therefore hold that the trial court erred in granting summary judgment on Urban's claims under the CPA based upon WAC 284-30-350.
Urban next contends that negotiating a settlement and obtaining a Release only one week after the accident is too soon and amounts to unfair and inequitable practice. At the time of settling with Mid-Century's adjuster, Urban says she was under the influence of Tylenol with codeine and as a result was unable to comprehend the nuances due to grogginess. Urban further claims that Kile did not explain to her that she had an uninsured motorist claim, but that she thought she was giving up the claim against her friend. Finally, Urban claims that she did not know the extent of injuries at the time of signing the Release. WAC 284-30-330(6) states it is an unfair or deceptive act for an insurance company to:
[n]ot attempt[ ] in good faith to effectuate prompt, fair and equitable settlements of *408 claims in which liability has become reasonably clear. In particular, this includes an obligation to effectuate prompt payment of property damage claims to innocent third parties in clear liability situations. If two or more insurers are involved, they should arrange to make such payment, leaving to themselves the burden of apportioning it.
The trial court did not grant summary judgment on this issue. After hearing the evidence at a bench trial, the court concluded that as a matter of law, WAC 284-30-330(6) did not apply to the circumstances in Urban's case. Urban assigns error to the findings leading to this conclusion.
The undisputed facts are that the "at fault" driver did not have insurance. Therefore, under the UIM coverage the insurer steps into the shoes of the tortfeasor and becomes liable. The insurer is under an obligation to effectuate "prompt, fair and equitable" settlements. WAC 284-30-330(6). Here, Mid-Century was prompt. Kile contacted Urban six days after the accident. Urban argued that Mid-Century was too "prompt" and thus it amounted to an unfair and inequitable settlement.
Appellate review of a trial court findings of fact is limited to determining whether the trial court's findings are supported by substantial evidence, and, if so, whether the findings in turn support the conclusions of law. Goodman v. Darden, Doman & Stafford Assoc., 100 Wash.2d 476, 483, 670 P.2d 648 (1983). We need determine only whether the evidence most favorable to the prevailing party supports the challenged findings, even if the evidence is in conflict. North Pac. Plywood, Inc. v. Access Road Builders, Inc., 29 Wash.App. 228, 232, 628 P.2d 482, review denied, 96 Wash.2d 1002 (1981). Findings of fact supported by substantial evidence will not be reversed on appeal. Funderburk v. Bechtel Power Corp., 103 Wash.2d 796, 799, 698 P.2d 556 (1985); Thomas v. Ruddell Lease-Sales, Inc., 43 Wash.App. 208, 212, 716 P.2d 911 (1986).
Insofar as the findings relate to WAC 284-30-330(6), there is substantial evidence to support them and the trial court did not err.
The trial court's grant of summary judgment of dismissal of Urban's claims based upon WAC 284-30-330 is affirmed. The trial court's dismissal of Urban's claims under the CPA based upon WAC 284-30-330 is also affirmed. The trial court's grant of summary judgment of dismissal of Urban's claims based upon WAC 284-30-350 and concomitant claims based upon the CPA is reversed, and the matter is remanded.
SEINFELD, C.J., and FLEISHER, J., concur.
NOTES
[1] First party claimant means an individual, corporation, association, partnership or other legal entity asserting a right to payment under an insurance policy or insurance contract arising out of the occurrence of the contingency or loss covered by such policy or contract. WAC 284-30-320(2).
[2] RCW 48.30.010(1) states: "No person engaged in the business of insurance shall engage in unfair methods of competition or in unfair or deceptive acts or practices in the conduct of such business as such methods, acts, or practices are defined pursuant to subsection (2) of this section."
"Under RCW 19.86.170, a violation of RCW 48.30.010 is a per se unfair trade practice and satisfies the first element of the 5-part test for bringing a CPA action under RCW 19.86.090." Industrial Indem., 114 Wash.2d at 925, 792 P.2d 520. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375087/ | 905 P.2d 202 (1995)
120 N.M. 662
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff-Appellee,
v.
Andrew M. VALENCIA and Oralia Medina, both individually and as next friends of Andrew J. Medina and Judy A. Medina, minors, and Anita Trinidad, individually and as next friend of David Trinidad, a minor, Defendants-Appellants.
No. 16446.
Court of Appeals of New Mexico.
August 15, 1995.
Certiorari Denied October 19, 1995.
Bill Shoobridge, Hobbs, Robert Trenchard, Jr., Trenchard & Buckingham, L.L.P., Roswell, for Defendants-Appellants.
William P. Lynch, Atwood, Malone, Mann & Turner, P.A., Roswell, for Plaintiff-Appellee.
OPINION
DONNELLY, Judge.
1. This case poses a question of first impression before this Court regarding the interpretation of NMSA 1978, Section 66-5-301(B) (Repl.Pamp.1994)the underinsured motorist provision of New Mexico's uninsured/underinsured motorist statutein situations involving multiple claimants. Appellants, Andrew M. Valencia and Oralia Medina, both individually and as next friends of Andrew J. Medina and Judy A. Medina, minors, and Anita Trinidad, individually and as *203 next friend of David Trinidad, a minor, appeal from an order granting summary judgment to State Farm Mutual Automobile Insurance Company (State Farm) in a declaratory judgment action which held that Appellants were not entitled to recover underinsured motorist coverage. For the reasons discussed herein, we reverse.
FACTS
2. The dispute between the parties arose out of an automobile accident that occurred on July 31, 1992, near Abilene, Texas. The vehicle driven by Andrew Valencia was struck by a vehicle driven by Linda Stewart. Andrew Valencia and his passengers, Oralia Medina, Andrew Medina, Judy Medina, Anita Trinidad, and David Trinidad all received injuries as a result of the accident.
3. State Farm had previously issued motor vehicle insurance policies to both Stewart, Valencia, and Oralia Medina. Stewart carried liability insurance with policy limits of $25,000 per person and $50,000 per occurrence. Andrew Valencia and Oralia Medina had purchased uninsured motorist insurance with limits of $25,000 per person and $50,000 per occurrence.
4. Andrew Valencia and Oralia Medina, both individually and as next friends of Andrew Medina and Judy Medina, minors, and Anita Trinidad filed a negligence action against Stewart in Winkler County, Texas. It is undisputed that the July 31, 1992, motor vehicle accident was proximately caused by the negligence of Stewart. State Farm paid Stewart's liability limits of $50,000 to settle all claims against Stewart. A third party who was not joined in the Texas suit was paid $1,000 by State Farm in settlement of that party's claims against Stewart. Each of the Appellants, with the exception of David Trinidad, received in settlement varying amounts of the remaining $49,000 from Stewart's State Farm liability policy. The individual settlements were as follows: Andrew Valencia, $13,828.80; Oralia Medina, $10,942.70; Andrew Medina, $3,876.90; Judy Medina, $2,906.60; and Anita Trinidad, $17,445. David Trinidad received nothing under the settlement.
5. Following the settlement of the Texas suit, Appellants herein made demand on State Farm under their own policy for underinsured motorist benefits for themselves and the minor children. Appellants contend their actual injuries and medical expenses exceeded the amount of any recovery by them from Stewart's policy. State Farm refused to pay, claiming Stewart was not an underinsured motorist within the meaning of Section 66-5-301(B). Thereafter, State Farm filed a declaratory judgment action in the District Court of Lea County, where Appellants reside, naming Appellants as defendants. After service was obtained upon Appellants, State Farm moved for summary judgment. Following a hearing, the district court granted State Farm's motion for summary judgment and determined as a matter of law that Stewart was not an underinsured motorist under New Mexico law.
DISCUSSION
6. The dispositive question posed here is whether, when there are multiple claimants whose total damages exceed the amount of insurance coverage available under a tort-feasor's liability coverage, Section 66-5-301(B) should be read to mean that the tort-feasor is underinsured only when the limits of his or her liability coverage are less than the injured parties' uninsured motorist coverage, or that the tort-feasor is underinsured when the amount of the tort-feasor's liability coverage that is actually made available to the injured insureds is less than the limits of their uninsured motorist coverage. We determine that the latter interpretation applies in such situation.
7. When interpreting a statute, the Court seeks to discern the legislature's intent. Hammonds v. Freymiller Trucking, Inc., 115 N.M. 364, 367, 851 P.2d 486, 489 (Ct.App. 1993). Construction of a statute is a question of law which an appellate court reviews de novo. See Duncan v. Kerby, 115 N.M. 344, 347-48, 851 P.2d 466, 469-70 (1993) (questions of law reviewed de novo); Madrid v. University of Cal., 105 N.M. 715, 718, 737 P.2d 74, 77 (1987) (statutory construction is question of law). Insurance policies are controlled for reasons of public policy by the statutory provisions in force at the time the policies are issued. See Townsend v. State *204 ex rel. State Highway Dep't, 117 N.M. 302, 304, 871 P.2d 958, 960 (1994) (contract incorporates the relevant law in force at time of its creation); Schmick v. State Farm Mut. Auto. Ins. Co., 103 N.M. 216, 218, 704 P.2d 1092, 1094 (1985) (insurance policy incorporates under-insured motorist statute regardless of whether mentioned in the policy); Bauer v. Bates Lumber Co., 84 N.M. 391, 393, 503 P.2d 1169, 1171 (Ct.App.) (public policy requires that statute prevail over insurance policy where there is conflict), cert. denied, 84 N.M. 390, 503 P.2d 1168 (1972); see also AIG Hawaii Ins. Co. v. Estate of Caraang, 74 Haw. 620, 851 P.2d 321, 328 (1993) (statutory requirement in effect when policy is issued is read into insurance policy with full binding effect).
8. Section 66-5-301(B) provides:
The uninsured motorist coverage described in Subsection A of this section shall include underinsured motorist coverage for persons protected by an insured's policy. For the purposes of this subsection, "underinsured motorist" means an operator of a motor vehicle with respect to the ownership, maintenance or use of which the sum of the limits of liability under all bodily injury liability insurance applicable at the time of the accident is less than the limits of liability under the insured's uninsured motorist coverage.... [Emphasis added.]
9. Appellate courts in other jurisdictions that have undertaken to interpret applicable state uninsured/underinsured motorist statutes, where there are multiple claimants whose damages exceed the amount of insurance coverage available under a tort-feasor's liability coverage, have reached differing results. One line of authority, relying principally upon applicable state statutory provisions, follows a narrow interpretation holding that underinsurance motorist coverage does not apply in a multiple-claimant situation where the tort-feasor has automobile insurance in an amount equal to or in excess of the uninsured/underinsured limits of the injured persons. See, e.g., State Farm Mut. Auto. Ins. Co. v. Messinger, 232 Cal. App. 3d 508, 283 Cal. Rptr. 493, 496 (Ct.App.1991); Cossitt v. Federated Guar. Mut. Ins. Co., 541 So. 2d 436, 439-43 (Miss.1989); Tyler v. New Jersey Auto. Full Ins. Underwriting Ass'n, 228 N.J.Super 463, 550 A.2d 168, 170 (1988); see also Lick v. Dairyland Ins. Co., 258 N.W.2d 791, 793 (Minn.1977)[1]; Vigneault v. Travelers Ins. Co., 118 N.H. 75, 382 A.2d 910, 914 (1978).
10. Other courts have adopted a less restrictive interpretation of the applicable statutory provision in their jurisdictions governing uninsured/underinsured motorist coverage in multiple-claimant situations. See, e.g., State Farm Mut. Auto. Ins. Co. v. Diem, 358 So. 2d 39, 40-41 (Fla.Dist.Ct.App.1978); Palisbo v. Hawaiian Ins. & Guar. Co., 57 Haw. 10, 547 P.2d 1350, 1354-55 (1976); American States Ins. Co. v. Estate of Tollari, 362 N.W.2d 519, 522 (Iowa 1985); Butler v. MFA Mut. Ins. Co., 356 So. 2d 1129, 1132-33 (La. Ct.App.), writ denied, 358 So. 2d 641 (1978); Gabriel v. Minnesota Mut. Fire & Casualty, 506 N.W.2d 73, 78 (N.D.1993); Savoie v. Grange Mut. Ins. Co., 67 Ohio St. 3d 500, 620 N.E.2d 809, 815 (1993)[2]; Stracener v. United Servs. Auto. Ass'n, 777 S.W.2d 378, 379-80 (Tex.1989); see also Gonzales v. Millers Casualty Ins. Co., 923 F.2d 1417 (10th Cir.1991) (construing New Mexico law); Pristavec v. Westfield Ins. Co., 184 W.Va. 331, 400 S.E.2d 575, 578 (1990). See generally SC John A. Appleman & Jean Appleman, Insurance Law and Practice § 5071.45 (Supp.1994).
11. Examination of the above cases reveals wide disagreement among courts which *205 have addressed this issue. The result reached by appellate courts in each case has been largely influenced by the wording of each state's particular insurance statutes. See Lee R. Russ, Annotation, Uninsured and Underinsured Motorist Coverage: Recoverability, Under Uninsured or Underinsured Motorist Coverage, of Deficiencies in Compensation Afforded Injured Party by Tortfeasor's Liability Coverage, 24 A.L.R. 4th 13 (1983 & Supp. Sept. 1994).
12. In Gonzales the Tenth Circuit Court of Appeals was confronted with the precise issue presented here and, relying in part upon the holding of our Supreme Court in Schmick, concluded that New Mexico's uninsured/underinsured motorist statute should be liberally construed to implement the purpose of the statute. Gonzales, 923 F.2d at 1423. The Gonzales court held that the meaning of Section 66-5-301(B) is not self-evident in multiple-claimant situations and recognized that restricting an insured to the policy limits of the tort-feasor's liability coverage, "rather than the liability proceeds actually available to a given insured [under his or her own policy], would tend to produce the illogical ... situation the legislators sought to avoid." Gonzales, 923 F.2d at 1422. We agree.
13. As stated in Schmick, and reaffirmed in Foundation Reserve Insurance Co. v. Marin, 109 N.M. 533, 535, 787 P.2d 452, 454 (1990), our uninsured/underinsured motorist statute "must be liberally construed to implement the purpose of compensating those injured through no fault of their own." Schmick, 103 N.M. at 219, 704 P.2d at 1095. We think Gonzales correctly interpreted Section 66-5-301(B) and is consonant with legislative intent in enacting legislation to protect injured motorists in multiple-claimant situations. Similarly, as observed in Appleman, supra, Section 5071.45:
Based on the policy of fully protecting and compensating persons injured by negligent motorists, the amount of recovery under uninsured/underinsured motorist coverage has been considered the difference between the injured person's actual damages and the amount available from the tortfeasor's liability insurance, up to the injured person's uninsured/underinsured motorist coverage limits.
14. In sum, we hold that in multiple-claimant situations, insured motorists who are covered under an uninsured/underinsured motorist policy and who suffer from injuries resulting from an automobile accident are entitled to collect up to the limit of their underinsurance policy to the extent that their damages exceed the amounts that the tort-feasor's insurer has previously paid to them.
CONCLUSION
15. The order of the district court granting summary judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion.
16. IT IS SO ORDERED.
WECHSLER and BUSTAMANTE, JJ., concur.
NOTES
[1] The rule articulated in Lick was superseded by statute in 1974 when Minnesota enacted its No-Fault Automobile Insurance Act. Under the 1974 Act, underinsured motorist benefits were recoverable to the extent that damages exceeded the tort-feasor's liability limit thus providing additional protection for the party with underinsured motorist coverage. For a historical perspective of the changes in Minnesota's underinsured motorist statute, see Kothrade v. American Family Mut. Ins. Co., 462 N.W.2d 413, 415 (Minn.Ct.App.1990).
[2] In response to Savoie, Ohio's uninsured/underinsured motorist coverage statute was amended in part to declare that underinsured motorist coverage should be offset by the amount available for payment from the tort-feasor's liability coverage. See Ohio Rev.Code Ann. § 3937.18(A)(2) (Baldwin 1995). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375143/ | 81 Cal. App. 2d 804 (1947)
DELFINA TARASCO, Respondent,
v.
THURMON DEVINE MOYERS et al., Defendants; CHRISTIANA FARMS COMPANY (a Copartnership) et al., Appellants.
Civ. No. 7358.
California Court of Appeals. Third Dist.
Oct 15, 1947.
W. M. Conley, Philip Conley, Matthew Conley and Conley, Conley & Conley for Appellants.
C. Ray Robinson and Margaret A. Flynn for Respondent.
THOMPSON, J.
This is an appeal from an order granting a new trial against appellants on the ground of insufficiency of the evidence, after a verdict and judgment had been rendered in favor of all defendants, in a suit for damages for personal injuries sustained by plaintiff while she was riding as a passenger in an automobile stage which collided with a Ford sedan on the highway, which Ford machine was being operated by appellants' employee.
The appellants contend that the court abused its discretion in granting the new trial because a lack of evidence of the relationship of master and servant between appellants and their employee at the time of the accident. The driver of the Ford sedan was employed by appellants as a farm hand to irrigate alfalfa on their ranch. After completing the irrigation for the day he was returning to headquarters on the same farm in his own automobile, with his working tools in his machine when the accident occurred. Appellants furnished him with gasoline for that purpose and supplied him with his residence at headquarters, free of rental, as a part of his compensation. He was required to drive from the field to headquarters down a private roadway to the highway and thence along the highway a short distance. The headquarters and residence were situated on the easterly portion of the farm about a quarter of a mile from the highway.
The evidence shows that the codefendant Thurmon Devine Moyers, under the name of Moyers Stages, owned and operated a passenger stage line, as a common carrier, on the public highway in Merced County. The appellants owned and operated a 1,738-acre farm adjacent to the highway, upon a portion of which a field of alfalfa was growing. On the eastern portion of that same farm the appellants owned a building called the "headquarters." A ditch intervened between the alfalfa field and that building. To reach that building, workmen in the alfalfa field were required to drive southerly along a private road to its intersection with the public highway, and thence easterly along the highway a short distance to the headquarters building. Dave Connell, a young married man, had been employed by the appellants as a farm hand *807 for about four years prior to the time of the accident, which occurred about 7:05 p. m. on May 13, 1945. He was hired by the day, which usually consisted of 11 hours' work from 8 a. m. to 7 p. m., with one hour off duty during the luncheon time. He owned and drove his own car to and from the field. The appellants furnished him five gallons of gasoline per week for use in the car for that purpose. On the day of the accident Connell finished irrigating the alfalfa about 7 p. m. He immediately left the field in his car, which contained his working tools. The tools were kept at the headquarters, where he resided. Regarding the custom of returning the tools to headquarters, and the furnishing of his residence at headquarters "free of cost," the following evidence of Mr. Goodman, the manager of the ranch, appears in the record:
"Mr Hansen: ... They kept the shovel and equipment and boots up there at the main headquarters? A. Dave kept his own equipment in his car. Q. And he would put it in the car and take it back there and bring it out? A. Yes, sir. Mr. Robinson: ... You furnished him his house for his wife and self for his employment? A. That is right. Q. Free of charge? A. Yes. Mr. Conley: Q. This equipment, Mr. Goodman, as I understand it Mr. Connell kept his shovels and equipment in his car all the time? A. That is right."
Johnnie Bomboy, the driver of the Moyers stage, testified that he left Modesto at 6:30 p. m. on the day of the accident and drove easterly along the highway. When he reached the Christiana farm about 7:05 p. m. he was traveling at the rate of 50 miles per hour. The highway was level, straight and paved at that point. It was then daylight. The intersection of the highway and the private road was in plain view for some distance therefrom on both thoroughfares. There was no obstruction to prevent a clear view. Bomboy saw Connell, with whom he was personally acquainted, when his Ford car was distant some 50 feet or more from the intersection. Bomboy waved at him, but Connell did not reply. Bomboy said he did not know whether Connell saw him. Bomboy did not continue to watch Connell as he approached, but turned his head away. When he next saw Connell's machine, it was directly ahead of his stage. He promptly applied his brakes but was unable to avoid the collision. The stage struck the Ford machine with great force on its left side, demolishing the car and shoving it a distance of about 140 feet to the south side of the highway. Connell was instantly killed. *808
The plaintiff brought suit for damages, on the theory of concurrent negligence, against the stage company and its driver, and the Christiana Farms Company and A. E. Christiana, as the employers of Connell, on the assumption of imputed negligence. The cause was tried with a jury, which returned a verdict in favor of all defendants. A new trial was granted with respect to appellants, on the ground of lack of evidence to support the judgment, and denied as to the other defendants. This appeal was then perfected.
[1] In determining the question of whether the court abused its discretion in granting the new trial as to the appellants, it is necessary to find whether there is substantial evidence in the record, or reasonable inferences to be drawn therefrom, that Connell was guilty of negligence which proximately contributed to the accident, and whether the acts which he was then performing were part of the services for which he was employed, so as to impute that negligence to appellants on the doctrine of respondent superior or master and servant.
We are of the opinion the court did not abuse its discretion in granting the new trial. In support of the order, it seems reasonable to infer from the evidence that Connell was guilty of negligence which proximately contributed to the accident, and that his acts were performed in fulfillment of the duties required by his employment. With respect to the issue of negligence, the appellants are entitled to the benefit of the rebuttable presumption that Connell exercised ordinary care in driving onto the highway. (Code Civ. Proc., 1963, subd. 4; Blackmore v. Brennan, 43 Cal. App. 2d 280, 284 [110 P.2d 723].) But the fact that he deliberately drove onto the highway just ahead of the approaching stage which was traveling at a rapid rate of speed, without yielding the right of way as required by section 553 of the Vehicle Code, in broad daylight when the entire intersection and the stage were in plain view, warranted the court in assuming that the presumption was thereby dispelled. Even though reasonable minds might differ regarding that issue, we may not hold that the court abused its discretion in granting the new trial, so far as that issue is concerned.
[2] The more serious question is whether the evidence adequately shows that Connell was performing one of the duties of his employment at the time of the accident. The attorney for appellants has very forcefully contended in his excellent briefs and on oral argument that the evidence utterly *809 fails to show that Connell was acting within the scope of his employment at the time of the accident. He insists that Connell was merely returning to his home in his own car after his day's work had been completed. We have concluded, however, that there is sufficient evidence and reasonable inferences to be drawn therefrom, to distinguish this case from the ordinary rule exempting liability for injuries received in "going to or coming from" the place of employment. It is true that Connell's usual working hours as a farm hand were from 8 a. m. to 7 p. m.; that he was driving his own car in returning to his residence at the time the accident occurred. But it is reasonable to infer from the preceding quoted evidence that he was required to return his field working tools each evening to the "headquarters" of his employer on the same farm, rather than to leave them in the field, and that the employer allowed him five gallons of gasoline per week for that purpose. The tools were found in his car after the accident occurred. Moreover, he was furnished by his employer a residence at "headquarters" on the same ranch for himself and wife, free of cost, as a part of the consideration for his employment, to which he was returning when the accident occurred. It is immaterial that the tools were actually left in the car overnight, instead of storing them in some other place on the premises. These facts indicate that Connell was actually engaged in performing a part of his duties of employment in going to his allotted residence on the farm and in returning his working tools after the irrigating of the alfalfa had been completed for the day. (Truck Insurance Exchange v. Industrial Acc. Com., 27 Cal. 2d 813 [167 P.2d 705].)
[3] In determining whether Connell was engaged in the performance of his duties in going to his assigned residence furnished by the employer on the premises where he worked, and in returning his tools to "headquarters" it is said in 1 Restatement of the Law of Agency, 508, section 229(j) that:
"A servant is authorized to do anything which is fairly and reasonably regarded as incidental to the work specifically directed or which is usually done in connection with such work."
The ordinary "going and coming rule" (1 Campbell's Workmen's Compensation, 146, 163) does not apply to the circumstances of this case. Where the contract of employment contemplates that the employee shall eat and sleep on the premises of the employer, under the recognized "bunkhouse *810 rule," injuries received thereat incident to assigned duties may be deemed to have occurred in the course of employment. (1 Campbell's Workmen's Compensation, 188, 196.) If the employee is required to travel on the public highway in performance of a service for the employer, even though he is then returning "to his business headquarters or to his home," when he is injured in a highway collision, the employee may be deemed to be acting in the course of his employment. (1 Campbell's Workmen's Compensation, 192, 200.) In the following section of the last-cited authority it is said that:
"The fact that a servant furnishes his own conveyance and is left to his own devices in the performance of his duties does not sever the relation of master and servant nor take him out of the scope of his employment. This is particularly true where the nature of his employment is such as to require the use of some means of conveyance, but none is furnished by the employer. The use of his own automobile is properly regarded as an incident of his employment."
In the present case the furnishing of gasoline for use of Connell's car in going to and coming from his residence on the same property, and in conveying the tools to the headquarters, indicates that such service was intended to be within the scope of employment. [4] Of course, the burden was on plaintiff to prove that the relationship of master and servant existed at the time of the accident, and that the wrongful act of the employee was performed within the scope of employment. (16 Cal.Jur. 1110, 67.) [5] But those questions are for the determination of the jury (Poncino v. Reid-Murdoch & Co., 212 Cal. 325 [298 P. 818]; 16 Cal.Jur. 1111, 67; 39 C.J. 1361, 1591), or for the decision of the court on motion for a new trial, unless there is no evidence or reasonable inferences from which such conclusions may be drawn. Where there is evidence of the employment and of the acts complained of which are within the course of employment, or incidental thereto, as there is in this case, we may not interfere with the discretion of the court in that regard.
The numerous cases cited by the appellants on the foregoing issues are distinguishable on the facts from the present case. Many industrial accident cases under the Workmen's Compensation Act are cited and relied upon by both parties. Courts are required to liberally construe the provisions of divisions IV and V of that act in favor of injured workmen. (Lab. Code, 3202.) In industrial accident cases it has been held that the *811 commission may consider hearsay evidence in determining the liability. (London Guarantee & Accident Co. v. Industrial Acc. Com., 203 Cal. 12, 14 [263 P. 196].) Such distinctions, however, merely apply to the weight or rules of evidence and not to the principles of law governing the liability created on doctrines of master and servant or respondeat superior. That liability applies to both classes of cases. Keeping in mind the distinctions with relation to procedure and adequate proof, the industrial accident cases are applicable to the present suit.
We conclude there is ample evidence in this case to show that Connell was engaged at the time of the accident in the performance of a duty incident to his employment by appellants, and that the court therefore did not abuse its discretion in granting a new trial as to them.
The order is affirmed.
Peek, J., and Adams, P. J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375137/ | 461 S.E.2d 17 (1995)
TOWER DEVELOPMENT PARTNERS, Plaintiff-Appellant,
v.
Samuel ZELL, Trustee Under Trust Agreement Dated October 14, 1991; the North Carolina Department of Transportation, the City of Durham, Defendants-Appellees.
No. COA94-1017.
Court of Appeals of North Carolina.
September 5, 1995.
*19 Petree Stockton, L.L.P. by J. Anthony Penry, Robert H. Lesesne, and David C. Hall, Raleigh, for plaintiff-appellant.
Newsom, Graham, Hedrick, & Kennon, P.A. by William P. Daniell and Joel M. Craig, Durham, for defendant-appellee Zell.
Atty. Gen., Michael F. Easley by Asst. Atty. Gen., Emmett B. Haywood, Raleigh, for defendant-appellee North Carolina Dept. of Transp.
Office of the City Atty. by Asst. City Atty., Karen A. Sindelar, Durham, for defendant-appellee City of Durham.
MARK D. MARTIN, Judge.
This suit involves a dispute over several easements claimed to burden plaintiff's land in southwest Durham County. Plaintiff contends the easements were either void ab initio or were later extinguished, while defendants contend the easements were validly created and continue to burden plaintiff's land. Plaintiff brought this action for a declaratory judgment as to the existence and validity of the easements.
The questions presented for review are whether the trial court erred by granting defendants' motion for summary judgment and by denying plaintiff's motion for summary judgment. We affirm in part and reverse in part.
The facts of the case are as follows. Plaintiff owns property in Durham County ("Tract One") adjacent to property owned under a trust by defendant Zell ("Tract Two"). These lands were originally one tract owned by the T.F. Stone Companies ("Stone"), a commercial development company, who replatted the land into separate tracts as part of an overall development plan.
In 1985 Stone requested and received approval of the site development plan by the City of Durham ("Durham"), and recorded the site map with the Register of Deeds. As a condition for approving the development plan, Durham required Stone to dedicate and build as a public street the 80-foot right-of-way known as Tower Boulevard. The street was shown on the recorded site development map and was to be built in stages as the different tracts were developed.
In October 1985 Stone executed and recorded a deed of trust encumbering Stone's entire tract in favor of Irving Trust Company. Irving Trust also agreed to finance the construction of a 17-story office building on Tract Two. Construction of the office tower began that same fall. The construction activities included clearing and grubbing for the first stage of Tower Boulevard and for the disputed driveways.
Stone later wished to develop or sell Tract One separately from Tract Two, and sought to have Tract One released from the Irving deed of trust. Irving Trust would not consent *20 to releasing the tract unless Stone formally granted driveway, sewer and drainage easements over Tract One in favor of Tract Two. On 14 March 1986 Stone recorded a declaration of easement and subjected Tract One to a new deed of trust in favor of First City Savings Association. Irving Trust then released Tract One from its deed of trust. When the entire transaction was completed, bare legal title to Tracts One and Two had been separated and vested in different entities, but Stone retained beneficial ownership to the entire subdivision.
On 7 November 1986 Stone recorded a final plat showing the subdivision's lots and Tower Boulevard extending from Highway 15-501 to Pickett Road. The plat contained a statement, signed by Stone's president, Tommy F. Stone, that the plat was prepared at his direction and all streets shown thereon were dedicated to the public. Because of this offer to dedicate, Durham removed the proffered land from the tax rolls and has not assessed property tax on this land. Durham also included Tower Boulevard in its official zoning atlas.
When Stone recorded the plat dedicating Tower Boulevard, the trustee, First City, did not sign the dedication. First City, however, subsequently released lots from the deed of trust as Stone sold them, and Stone sold the lots referring to the recorded plat.
In May 1987 Stone conveyed its interest in Tract Two and the office tower to Triangle Equities, Inc. The office tower was completed and opened during the Fall of 1987 and the driveways crossing Tract One have been in continuous public use ever since. In June 1989 Irving Trust foreclosed on the deed of trust on Tract Two and sold the land and office tower to Landmark Tower, Inc. ("Landmark"). The deed to Landmark stated it passed "all privileges and appurtenances" belonging to the land, but did not explicitly refer to the driveway easements. On 16 October 1991 Landmark conveyed the land and office tower to defendant Zell. The deed to Zell specifically mentioned the driveway easements.
Paving of the first stage of Tower Boulevard was completed by 28 May 1988. On 16 April 1991 Durham requested that defendant North Carolina Department of Transportation ("NCDOT") complete the second stage of Tower Boulevard, connecting the street through to Pickett Road. Durham accepted maintenance of the road on 17 June 1991.
In May 1992 First City foreclosed on the deed of trust on Tract One and conveyed the property to plaintiff Tower Development Partners. However, defendants Durham and NCDOT, owners of the road easement, did not receive notice of the foreclosure proceedings.
Plaintiff instituted this action in September 1993 seeking a declaration that the driveway easements and the remainder of the Tower Boulevard easement were invalid. The trial court granted summary judgment in favor of all defendants on both issues and denied plaintiff's motion for summary judgment. Plaintiff appeals to this Court.
I.
Plaintiff does not contest the dedication of the portion of Tower Boulevard completed in 1988, only its planned completion to Pickett Road. The issue is whether Stone's dedication of the entire street was valid.
Because North Carolina does not have statutory guidelines for dedicating streets to the public, the common law principles of offer and acceptance apply. Emanuelson v. E.C. Gibbs, 49 N.C.App. 417, 419, 271 S.E.2d 557, 558 (1980). The issue therefore narrows to whether Stone validly offered to dedicate the entire street and whether Durham validly accepted that offer.
Generally, where lots are sold and conveyed by reference to a plat which represents the division of a tract into streets and lots, recordation of the plat is an offer to dedicate those streets to the public. Wofford v. Highway Commission, 263 N.C. 677, 683, 140 S.E.2d 376, 381, cert. denied, 382 U.S. 822, 86 S. Ct. 50, 15 L. Ed. 2d 67 (1965). Stone recorded its 1986 plat of the subdivision, which showed Tower Boulevard extending from Highway 15-501 to Pickett Road, and sold lots referring to that recorded plat. Moreover, the plat included a statement, *21 signed by Tommy F. Stone, which specifically dedicated the streets to the public.
Plaintiff asserts the offer to dedicate was invalid because the plat was not signed by the owner of the property, T.F. Stone Companies, but by Tommy F. Stone in his individual capacity. Nevertheless, the plat clearly states it was prepared for T.F. Stone Companies, Inc., and was signed by the company president whose name the business bears. We find, even if Tommy Stone did not sign the plat in his capacity as company president, he was clothed with apparent authority such that the company is bound by his acts. See Foote & Davies, Inc. v. Arnold Craven, Inc., 72 N.C.App. 591, 595, 324 S.E.2d 889, 892 (1985).
We therefore hold there was a valid offer to dedicate the entire street from Highway 15-501 to Pickett Road.
The dedication is only complete, however, when the offer is accepted in some proper way by the responsible public authority. Wofford, 263 N.C. at 683, 140 S.E.2d at 381. Acceptance may be manifested not only by maintenance and use as a public street, but by official adoption of a map delineating the area as a street, followed by other official acts recognizing its character as such. Bryan v. Sanford, 244 N.C. 30, 35, 92 S.E.2d 420, 423 (1956).
Durham has not only maintained Tower Boulevard since June 1991 as one of its city streets, but has adopted the recorded plat into its official zoning map and has removed the land covered by the dedication from its tax rolls. These are sufficiently official actions to accept an offer to dedicate land. See Id.; Lee v. Walker, 234 N.C. 687, 696, 68 S.E.2d 664, 670 (1952) (holding taxes collected on land to be a factor to consider in determining the public character of land); Bryan, 244 N.C. 30, 35, 92 S.E.2d 420, 424 (holding the city had accepted the dedication by approving the map and incorporating it into the city's zoning ordinance). We therefore hold Durham validly accepted Stone's offer to dedicate the entire street.
Plaintiff contends Durham has only accepted the completed portion of Tower Boulevard, but not the planned completion. Plaintiff in effect argues the dedication of this portion of Tower Boulevard has been withdrawn. The dedication of a street, however, may not be withdrawn if the dedication has been accepted and the street, or any part of it, is actually opened and used by the public. Food Town Stores v. City of Salisbury, 300 N.C. 21, 29, 265 S.E.2d 123, 129 (1980). Since part of Tower Boulevard has been opened and used by the public since 1988, we find the dedication of the remainder of Tower Boulevard to be operative.
The dispositive issue becomes whether the dedication was extinguished by the foreclosure proceedings. Plaintiff claims, since the trustee did not sign the dedication, the dedication was made subject to the deed of trust and was cut off by the subsequent foreclosure. While this generally stated rule is correct, an exception applies. When the mortgagee gives implied consent to the dedication by releasing lots sold referring to the plat which dedicates the streets, then the dedication is enforceable. Collins v. Asheville Land Co., 128 N.C. 563, 566-67, 39 S.E. 21, 22 (1901). First City released lots from the deed of trust as they were sold and thereby consented to the dedication of Tower Boulevard. Durham and NCDOT were consequently owners of an interest in land, entitled to notice of the foreclosure proceedings under our State's foreclosure statute. See N.C.Gen.Stat. § 45-21.16(b)(3) ("Notice of hearing shall be given ... to ... any person owning a present or future interest of record in the real property which interest would be affected by the foreclosure proceeding...."). N.C.Gen.Stat. § 45-21.16(b)(3) (Cum.Supp. 1994). Their interest was therefore not extinguished by the foreclosure proceedings.
We have carefully reviewed plaintiff's remaining contentions in connection with the dedication issue and conclude they are without merit.
II.
Defendant Samuel Zell ("Zell") asserts the driveway easements were validly created under any of the following principles: (1) express grant; (2) dedication; or (3) implication. *22 We will address each of these principles in turn.
It is axiomatic in property law that one may not have an easement in his or her own land. See Patrick v. Jefferson Standard Life Ins. Co., 176 N.C. 660, 670, 97 S.E. 657, 661 (1918); Patrick K. Hetrick and James B. McLaughlin, Jr., Webster's Real Estate Law in North Carolina, § 15-30 (4th ed. 1994). Zell admits Stone was the beneficial owner of both tracts when it purported to create the driveway easements. Nevertheless, Zell relies on Heritage Communities v. Powers, Inc., 49 N.C.App. 656, 272 S.E.2d 399 (1980), and argues there was sufficient separation of title to create the driveway easements under applicable law.
In Powers a tract of land benefitted by an access easement was conveyed to the owner of the servient estate. Id. at 657, 272 S.E.2d at 400. Ordinarily the doctrine of merger would apply and extinguish the easement; however, the conveyance of the dominant estate was subject to a pre-existing deed of trust. This Court held that the estate of the trustee was an intermediate, determinable estate that defeated application of the doctrine of merger. The easement was valid despite both tracts being under common ownership when the dominant estate was subject to a different deed of trust. Id. at 659, 272 S.E.2d at 401.
We find Powers distinguishable from the case sub judice. First, the instant case arises out of an attempt to create an easement, whereas Powers dealt with an easement already extant. Second, Zell's predecessor in title was the equitable owner of both tracts and merely divided bare legal title between different trustees. In Powers, on the other hand, legal and equitable title were clearly separated before, and the equitable titles merged when the servient estate was conveyed to the owner of the dominant estate. Third, the trustee's estate in Powers was intermediate between the legal and equitable estates, whereas no intermediate estate existed between Stone's legal and equitable titles to prevent the operation of merger.
Moreover, as the equitable owner of the land, Stone had the real and beneficial use of both tracts. Because an easement is the right to use the land of another, Builders Supplies Co. of Goldsboro, N.C., Inc. v. Gainey, 282 N.C. 261, 266, 192 S.E.2d 449, 453 (1972), it would be inconsistent to grant Stone an easement in this land, despite bare legal title resting in different trustees. Therefore, we hold creation of the driveway easements through express grant failed ab initio.
Zell alternatively asserts the driveway easements were created by dedication. In a strict sense, however, a dedication must be made to the public, and not to part of the public nor to private owners of particular land. In this latter situation the right is in the nature of an easement appurtenant. Land Corp. v. Styron, 7 N.C.App. 25, 27-28, 171 S.E.2d 215, 217 (1969). Furthermore, a dedication is not valid until the offer to dedicate is accepted by the responsible public authority. Wofford, 263 N.C. at 683, 140 S.E.2d at 381. Zell does not suggest the driveways at issue have been offered to the public and accepted by some public authority as streets. Accordingly, Zell's reliance on the principle of easement by dedication is inappropriate.
Zell finally asserts the driveway easements were created by implication from prior use. The requirements for creation of an easement by implication are: (1) a separation of title; (2) the claimed use must have been so obvious and long continued as to show it was meant to be permanent; and (3) the easement must be reasonably necessary to the enjoyment of the benefitted land. Hodges v. Winchester, 86 N.C.App. 473, 475, 358 S.E.2d 81, 82 (1987). The first and third requirements are not disputed. The issue therefore lies in the second requirement: Was the driveway use so obvious and long continued as to show it was meant to be permanent?
The record does not clearly show when the driveways were paved, a factor we view as important in determining the permanence of the driveways. If the driveways were not yet paved when title was separated, we would view them to be insufficiently permanent to imply an easement.
*23 However, the issue is not resolved even if the driveways were paved when title was separated. The use must still have been "so ... long continued as to show it was meant to be permanent." Id. Assuming the drives were paved at the earliest possible date, Fall 1985, they would have been in use only approximately eighteen months when Tract Two was conveyed in Spring 1987. Zell has not directed us to any authority which supports creation of an easement by implication in such a short time. Our review of prior caselaw indicates the shortest time heretofore recognized as sufficient to imply an easement is thirteen years. See Potter v. Potter, 251 N.C. 760, 112 S.E.2d 569 (1960). The typical case has a use in excess of 30 years. See, e.g., Spruill v. Nixon, 238 N.C. 523, 78 S.E.2d 323 (1953) (at least 35 years); Biggers v. Evangelist, 71 N.C.App. 35, 321 S.E.2d 524 (1984), disc. review denied, 313 N.C. 327, 329 S.E.2d 384 (1985) (30 years); McGee v. McGee, 32 N.C.App. 726, 233 S.E.2d 675 (1977) (60 years); Dorman v. Ranch, Inc., 6 N.C.App. 497, 170 S.E.2d 509 (1969) (42 years). We hold, under the facts of this case, that a use of eighteen months is insufficient to create an easement by implication.
In summary we hold Durham and NCDOT's property interest in the dedicated portion of Tower Boulevard was not extinguished by the foreclosure proceedings and accordingly affirm the trial court's grant of summary judgment on this issue for defendants Durham and NCDOT. We reverse the grant of summary judgment in favor of defendant Zell on the issue of whether the driveway easements were validly created and remand to the trial court for entry of summary judgment in favor of plaintiff.
Affirmed in part, reversed in part, and remanded.
EAGLES and WYNN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375409/ | 683 S.E.2d 437 (2009)
STATE of North Carolina
v.
Ricky Sylvester GRAHAM.
No. COA09-135.
Court of Appeals of North Carolina.
October 6, 2009.
*439 Attorney General Roy Cooper, by Special Deputy Attorney General Jonathan Babb, for the State.
Michael E. Casterline, Asheville, for defendant.
BRYANT, Judge.
On 10 March 2003, defendant Ricky Sylvester Graham was indicted on two counts of first-degree murder. Following superseding indictments issued on 19 February 2007, defendant was tried capitally at the 27 September 2007 session of the Mecklenburg County Superior Court. The jury found defendant guilty on both counts on the bases of felony murder and of malice, premeditation and deliberation. After a capital sentencing proceeding, defendant was sentenced to two consecutive terms of life imprisonment without the possibility of parole. Defendant appeals. As discussed below, we find no error.
Facts
At trial, the evidence tended to show the following. Defendant was the estranged husband of victim Tracy Coleman and the father of victim Rishea Graham. Defendant assaulted Coleman in her home on 5 June 1995 and was later indicted for assault with a deadly weapon with intent to kill inflicting serious injury. Thereafter, defendant was overheard threatening Coleman and urging her to leave the state so she could not testify against him. Defendant also asked a friend who worked as a domestic violence investigator with the police department whether an assault case could go forward if the victim was unavailable to testify. On 20 May 1996, shortly before the assault trial was to begin, Coleman and Rishea went missing. On that day, defendant was seen by one witness carrying a shovel and bucket near a lake off *440 Whippoorwill Drive. On 31 May 1996, the bodies of Coleman and Rishea were discovered buried near the lake off Whippoorwill Drive. In June 1996, defendant was convicted of assaulting Coleman and sentenced to 108-139 months in prison.
Murder charges were first filed against defendant in August 2001. The initial charges were dismissed and defendant was not re-indicted until March 2003. In July 2004, defendant filed two pro se "Motion[s] for Quick and Speedy Trial/Motion[s] for Progress of My Attorney" with the senior resident superior court judge. In August 2004, he filed a pro se "Request for Trial of [C]onfined [D]efendant." At a September 2004 hearing, defendant's counsel indicated that they would not be ready for trial until late 2005 and defendant asked that they be replaced. The court removed original counsel and appointed two new attorneys to represent defendant in October 2004. In January 2005, defendant filed an "Order to Dismiss With Prejudice for Denial of a Speedy Trial" for which the court held a hearing in April 2005. The court denied defendant's de facto motion for a speedy trial, focusing on the two-year delay since the indictment and concluding that although there had been a delay in bringing the case to trial, it was not the fault of the State and that defendant's ability to present his defense had not been impaired. The court did not specifically address the pre-indictment delay. Defendant's trial began two years later in 2007, some eleven years after the crimes took place.
Defendant made thirty-seven assignments of error, five of which he brings forward in four arguments to this Court: the trial court erred (I) by admitting Rule 404(b) evidence of the 1995 assault on Tracy Coleman; (II) by allowing testimony about defendant's car which was lost by the State before trial; (III) by failing to intervene ex mero motu after certain comments by the prosecutor at closing; and (IV) in not dismissing the case because the long delay in indicting him and bringing the case to trial prejudiced his right to effective assistance of counsel and to prepare a defense.
I
Defendant first argues that the trial court's decision to admit Rule 404(b) evidence about defendant's 1995 assault on Coleman unfairly prejudiced him in violation of Rule 403. We disagree.
"Whether to exclude evidence under Rule 403 is a matter left to the sound discretion of the trial court." State v. Coffey, 326 N.C. 268, 281, 389 S.E.2d 48, 56 (1990) (citations omitted). An abuse of discretion is shown where the court's ruling is "manifestly unsupported by reason." White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). "Evidence which is probative of the State's case necessarily will have a prejudicial effect upon the defendant; the question is one of degree." Coffey, 326 N.C. at 281, 389 S.E.2d at 56. In the context of showing an abuse of discretion by the trial court in its Rule 403 ruling, a defendant must demonstrate a reasonable possibility that, but for the admission of this evidence, the jury would have reached a different result. State v. Hennis, 323 N.C. 279, 287, 372 S.E.2d 523, 528 (1988). Thus, we will reverse only upon a clear showing that the trial court abused its discretion in admitting this evidence and that the admitted evidence prejudiced defendant.
The trial court admitted evidence of the 1995 assault under Rule of Evidence 404(b), which provides in pertinent part
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
N.C. Gen.Stat. 8C-1, Rule 404(b) (2007). Rule 404(b) "is a clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged." Coffey, 326 N.C. at 278-79, 389 S.E.2d at 54 (emphasis in original).
*441 "[E]vidence of a defendant's prior assaults on the victim for whose murder the defendant is being tried is admissible for the purpose of showing malice, premeditation, deliberation, intent or ill will against the victim under N.C.G.S. § 8C-1, Rule 404(b)." State v. Gary, 348 N.C. 510, 520, 501 S.E.2d 57, 64 (1998) (citation omitted). In addition, where one of the State's theories is that the victim was killed to prevent his testifying against defendant on a prior offense, evidence of the prior crime is admissible to prove motive. State v. Adcox, 303 N.C. 133, 138-39, 277 S.E.2d 398, 401-02 (1981). Here, the trial court admitted evidence of the 1995 assault for the purposes of showing motive, malice, hatred, ill-will and intent. As discussed above, this evidence had probative value for all of these purposes and was properly admissible.
Defendant contends that the evidence admitted was of limited probative value which was outweighed by the high likelihood of unfair prejudice to him. After a careful review of the record, we see no abuse of discretion. In the cases cited by defendant where appellate courts have found prejudicial error under Rule 403, the admitted evidence was of little or no probative value. See Hennis, 323 N.C. at 286, 372 S.E.2d at 527-28 (finding an abuse of discretion where admitted crime scene and autopsy photos had no probative value); State v. Jones, 322 N.C. 585, 590, 369 S.E.2d 822, 825 (1988) (finding an abuse of discretion where the "probative impact has been so attenuated by time that it has become little more than character evidence illustrating the predisposition of the accused"); State v. Kimbrell, 320 N.C. 762, 767-69, 360 S.E.2d 691, 694-95 (1987) (finding an abuse of discretion where the State was permitted to question a witness about devil worship by defendant unrelated to the crime charged). Here, in contrast, the evidence of the 1995 assault was highly probative. Further, the evidence against defendant was overwhelming: he tried to persuade Coleman to go to Hawaii before the assault trial; he was heard yelling at Coleman that "he would kill her first" before she could testify against him; he was placed at the scene where the bodies were recovered by an eyewitness; he possessed a weapon of the type used in the murders; and he gave conflicting accounts of his whereabouts around the time of the murders. We conclude there was not a reasonable possibility that, but for the admission of this evidence, the jury would have reached a different result. These assignments error are overruled.
II
Defendant next argues that the trial court erred in allowing testimony about his car when it was lost before trial. We disagree.
"While the trial court has the authority to impose discovery violation sanctions, it is not required to do so. Therefore, whether sanctions are imposed is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion." State v. Moore, 152 N.C.App. 156, 161, 566 S.E.2d 713, 716 (2002) (citations omitted). "[The] discretionary rulings of the trial court will not be disturbed on the issue of failure to make discovery absent a showing of bad faith by the state in its noncompliance with the discovery requirements." State v. McClintick, 315 N.C. 649, 662, 340 S.E.2d 41, 49 (1986). "`[U]nless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.'" State v. Mlo, 335 N.C. 353, 373, 440 S.E.2d 98, 108 (quoting Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 102 L.Ed.2d 281, 289 (1988), reh'g denied, 488 U.S. 1051, 109 S.Ct. 885, 102 L.Ed.2d 1007 (1989)), cert. denied, 512 U.S. 1224, 114 S.Ct. 2716, 129 L.Ed.2d 841 (1994).
In Mlo, we addressed a defendant's contention that his rights to due process under the Fourteenth Amendment to the United States Constitution and Article I, Sections 19 and 23 of the North Carolina Constitution were violated when the State improperly relinquished the victim's car such that it was unavailable to the defendant. Id. at 371-72, 440 S.E.2d at 106-07. The defendant contended that he could have made plaster casts of the car's tires to see whether they matched tire prints at a crime scene. Id. at 372, 440 S.E.2d at 107. Our Supreme Court *442 held that because "[t] he exculpatory value of any tests defendant wished to perform on the automobile was speculative at best[,]" there was no denial of due process and no error. Id. at 373, 440 S.E.2d at 108.
Here, defendant's car was impounded by police in 1996 during the investigation of the murders. The car was subsequently lost, and at trial the State acknowledged that it had not been located since 2000. However, the State did preserve soil samples taken from the car. The defense moved for sanctions pursuant to N.C. Gen.Stat. §§ 15-11.1 and 15A-903, seeking to bar admission of the State's forensic evidence from the car. The trial court denied defendant's motion and the State introduced evidence suggesting the soil from defendant's car matched soil from the location where the victim's bodies were buried. Defendant had access to these samples and presented evidence from an expert witness that soil from the car was not a unique match to the soil at the scene of the victims' burials. Defendant was also able to inform the jury that the police department had lost the car prior to trial.
We find no abuse of discretion in the trial court's denial of defendant's motion for sanctions. Defendant has not shown bad faith on the part of the State in losing the car, and defendant was able to test the soil samples collected from the car and present exculpatory evidence at trial to rebut the State's evidence, as well as to impeach the police department's credibility and competence. This argument is overruled.
III
Defendant also argues the trial court erred by failing to intervene ex mero motu to exclude comments made by the prosecutor during closing arguments. We find no error.
Under the applicable standard of review, a defendant bears a heavy burden to show reversible error in this context:
A defendant who fails to interpose an objection at trial to statements made by the prosecutor must demonstrate on appeal "that the remarks were so grossly improper that the trial court abused its discretion by failing to intervene ex mero motu." State v. Mitchell, 353 N.C. 309, 324, 543 S.E.2d 830, 839 (2001). "`To establish such an abuse, defendant must show that the prosecutor's comments so infected the trial with unfairness that they rendered the conviction fundamentally unfair.'" Id. (quoting State v. Davis, 349 N.C. 1, 23, 506 S.E.2d 455, 467 (1998), cert. denied, 526 U.S. 1161, 119 S.Ct. 2053, 144 L.Ed.2d 219 (1999)). Furthermore, "the comments must be viewed in the context in which they were made and in light of the overall factual circumstances to which they referred." State v. Call, 349 N.C. 382, 420, 508 S.E.2d 496, 519 (1998).
State v. Ward, 354 N.C. 231, 250, 555 S.E.2d 251, 264 (2001).
Defendants in criminal prosecutions cannot be compelled to give self-incriminating evidence. U.S. Const. amend. V; N.C. Const. art. I, § 23; see also N.C. Gen. Stat. § 8-54 (2009). Thus, "a prosecution's argument which clearly suggests that a defendant has failed to testify is error." State v. Reid, 334 N.C. 551, 555, 434 S.E.2d 193, 196 (1993). "[T]he purpose behind the rule prohibiting comment on the failure to testify is that extended reference by the court or counsel concerning this would nullify the policy that failure to testify should not create a presumption against the defendant." State v. Randolph, 312 N.C. 198, 206, 321 S.E.2d 864, 869 (1984) (citation omitted). However, "[t]he prosecution may comment on a defendant's failure to produce witnesses or exculpatory evidence to contradict or refute evidence presented by the State." Reid, 334 N.C. at 555, 434 S.E.2d at 196.
On appeal, defendant challenges the following comments by the prosecutor at closing:
Then I'm going to move on and talk about things that [defendant] did, that man over there, that are inconsistent with what an innocent man would have done.
* * *
Ask yourself, what would an innocent man do if he found out that people that he cared about were missing, and then found out they had been brutally murdered and put into shallow graves? What would they *443 [sic] do? What could a man do that would be consistent with his innocence? Well, when they go missing, he could show concern, like James Kelly did.
* * *
An innocent person would try to help locate Tracy and Rishea when they went missing.... When the police ask James Kelly to do something, he does it 15 minutes after he's asked.... That's what an innocent man does. An innocent man, I contend ... would cooperate with the police.
* * *
[T]he defense wants to attack Mr. Kelly, the man that came into this courtroom and answered the questions that were put to him by the State and the defense.... But you know who [Mr. Kelly] is. Because you had an opportunity to look at him. Look at him in the eye.
* * *
Well somebody dug the hole. Somebody who can't account for his whereabouts, on at least a portion of Sunday, May 19th, and most of May 20th, 1996.
* * *
Patricia [Cervantes] cooperated with the police. She didn't have anything to hide.
* * *
Remember please, that the defendant chose to put on evidence. If there was really a question about those phone calls, they could have called whoever's name was on these phone records, but they didn't. And that tells you something.
* * *
If they were so worried about his [the witness who saw defendant near the burial site] friend ... why didn't [the defense] put [the friend] up. They put on evidence.
Defendant contends that these remarks constitute direct reference to his failure to testify and required a curative instruction from the trial court. He relies on two cases in which the defendants were granted new trials after trial courts failed to intervene ex mero motu following improper comments by prosecutors. We conclude that each case is readily distinguishable. In Ward, the prosecutor made the following comments:
He started out that he was with his wife and child or wife and children or something that morning. We know he could talk, but he decided just to sit quietly. He didn't want to say anything that would "incriminate himself." So he appreciated the criminality of his conduct all right.
He was mighty careful with who [sic] he would discuss that criminality, wasn't he? He wouldn't discuss it with the people at Dix.
Ward, 354 N.C. at 266, 555 S.E.2d at 273. In granting a new trial, the Supreme Court concluded that "the prosecutor impermissibly commented on defendant's silence in violation of his rights under the state and federal Constitutions." Id.
In State v. Shores, 155 N.C.App. 342, 345, 573 S.E.2d 237, 239 (2002), disc. review denied, 356 N.C. 690, 578 S.E.2d 592 (2003), the defendant, charged with murder, had given a brief account of the shooting immediately after his arrest, but then exercised his right to remain silent until trial. On direct examination, the defendant gave a fuller, exculpatory account of the killing, stating that the victim had attacked and threatened him. Id. at 346, 573 S.E.2d at 239. "During cross-examination, the State's attorney repeatedly questioned defendant about whether he had ever informed law enforcement that [the victim] kicked him out the front door of the lounge and threatened to kill him." Id. We granted a new trial because the repeated questions by the prosecutor
attacked defendant's exercise of his right against self-incrimination in such a manner as to leave a strong inference with the jury that part of defendant's testimony was an after-the-fact creation. Defendant's testimony about Shore's threat was crucial to his defense which centered on self-defense and heat of passion. It seems probable that the State's questions and its closing argument contributed to his conviction.
Id. at 352, 573 S.E.2d at 242.
Here, defendant argued in closing that either James Kelly or Patricia Cervantes had actually committed the murders. The prosecutor's comments, unlike those in Ward and Shores, did not refer directly to defendant's *444 post-arrest silence or even to his decision not to testify at trial. Rather, the prosecution responded to defendant's attacks on Kelly and Cervantes and made permissible comments on "defendant's failure to produce witnesses or exculpatory evidence to contradict or refute evidence presented by the State." Reid, 334 N.C. at 555, 434 S.E.2d at 196. The trial court did not err in failing to intervene ex mero motu.
IV
In his final argument, defendant contends that the murder charges against him should have been dismissed because the delays in his indictment and trial denied him effective assistance of counsel and prejudiced his right to prepare a defense. We disagree.
The standard of review for alleged violations of constitutional rights is de novo. State v. Tate, 187 N.C.App. 593, 599, 653 S.E.2d 892, 897 (2007). Once error is shown, the State bears the burden of proving the error was harmless beyond a reasonable doubt. N.C. Gen.Stat. § 15A-1443(b) (2009).
Defendant's second assignment of error, the basis for and caption of his fourth argument, states: "The case should have been dismissed because the long delay in charging the defendant and bringing the matter to trial prejudiced the defendant's right to effective assistance of counsel and to prepare a defense." This single assignment of error actually encompasses three distinct issues: ineffective assistance of counsel, pre-indictment delay, and post-indictment delay. In his brief, defendant does not distinguish these issues, but rather intertwines his case analysis and factual contentions. Because each of these claims implicates a different constitutional right and requires a different analysis, we address them separately.
Ineffective Assistance of Counsel Claim
As defendant notes, successful ineffective assistance of counsel ("IAC") claims require a showing that: 1) trial counsel's performance was deficient, and 2) the deficient performance prejudiced defendant. State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (citation omitted). In his brief, defendant asserts that the delay in his indictment prevented him from having counsel appointed which in turn led to hardship in preparing his defense. This argument is not an IAC claim because defendant cannot show deficient performance where he had no counsel to perform at all. Instead, this portion of defendant's argument is better addressed as a claim of prejudice related to pre-indictment delay.
Defendant also contends that once he was indicted and trial counsel were appointed, counsels' failure to make a speedy trial motion constituted deficient performance which prejudiced him. However, in April 2005, defendant was represented by counsel at the trial court's hearing on his pro se motions to dismiss. The trial court subsequently denied the motions. Defendant does not explain how having his counsel make the same motion would have changed the outcome of either the motion hearing or his trial. Thus, defendant has failed to show that trial counsel's failure to move for dismissal on speedy trial grounds prejudiced him. Braswell, 312 N.C. at 562, 324 S.E.2d at 248. This assignment of error is overruled.
Pre-indictment Delay Claim
"[T]he Speedy Trial Clause of the Sixth Amendment. applie[s] only to delay following indictment, information or arrest." State v. Davis, 46 N.C.App. 778, 781, 266 S.E.2d 20, 22, disc. review denied, 301 N.C. 97, ___ S.E.2d ___ (1980). Pre-indictment delays are reviewed for violation of the due process under the Fifth and Fourteenth Amendments. Id. To prevail, a defendant "must show both actual and substantial prejudice from the pre-indictment delay and that the delay was intentional on the part of the state in order to impair defendant's ability to defend himself or to gain tactical advantage over the defendant." Id. at 782, 266 S.E.2d at 23 (emphasis in original) (citing United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 52 L.Ed.2d 752, 759, reh'g denied, 434 U.S. 881, 98 S.Ct. 242, 54 L.Ed.2d 164 (1977)). Having carefully reviewed the record and considered defendant's arguments, we hold that he has failed to show actual *445 prejudice under the first prong of the Davis test.
Defendant asserts that the length of delay in indicting him "created a reasonable possibility of prejudice."[1] However, defendant must show more than "a reasonable possibility of prejudice;" he must show actual prejudice. Id. at 782, 266 S.E.2d at 23. Defendant alleges that the delay rendered him "unable to fully and thoroughly investigate the facts while evidence was readily available." He further states that the State lost his car, one witness died and other witnesses "could not recall facts clearly and may have forgotten details" beneficial to him.
A general allegation of prejudice supported merely by claims of faded memory will not sustain the defendant's burden of proof on the issue of prejudice. The defendant must show that the evidence or testimony lost because of faded memory would have been helpful, was significant and was lost because of pre-indictment delay.
State v. Holmes, 59 N.C.App. 79, 82, 296 S.E.2d 1, 2 (1982) (citing State v. Dietz, 289 N.C. 488, 493, 223 S.E.2d 357, 360 (1976)). Defendant's general assertions do not show actual prejudicethat defendant would have been acquitted but for the delay in the indictment. As discussed previously, although his car was lost, defendant was still able to test the soil samples taken from it. In addition, defendant makes no claim that any particular witness might have given specific testimony which was significant and helpful to him. Thus, defendant has not shown actual prejudice in the pre-indictment delay and, in turn, fails to show any violation of his due process rights.
Post-Indictment Delay Claim
Defendant's second assignment of error mentions "delay ... in bringing the matter to trial" and his brief cites the standard of review for post-indictment delay claims. However, he fails to set out any authority or argument on this issue, confining his discussion to the pre-indictment delay. This issue is not properly before us.
No error.
Chief Judge MARTIN and Judge HUNTER, ROBERT C., concur.
NOTES
[1] Defendant takes this language from State v. Johnson, 275 N.C. 264, 277, 167 S.E.2d 274, 278-79 (1969). We note that in Johnson, which was decided prior to Lovasco and Davis, the Court relied on speedy trial cases and considered the facts under a Sixth Amendment analysis. Id. at 270-72, 167 S.E.2d at 279. However, as discussed above, the United States and North Carolina Supreme Courts have since clarified and distinguished constitutional claims arising from pre-and post-indictment delays. See Davis, 46 N.C.App. at 781, 266 S.E.2d at 22. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375470/ | 683 S.E.2d 351 (2009)
CARPENTER
v.
CAPITAL CITY CLUB.
No. A09A1313.
Court of Appeals of Georgia.
July 17, 2009.
*352 LaXavier P. Reddick-Hood, Tucker, for appellant.
Shivers & Associates, Adrian Britt, for appellee.
ANDREWS, Presiding Judge.
Edward Carpenter appeals from the trial court's grant of the Capital City Club's motion for summary judgment on Carpenter's claim for damages after he was injured while repairing carpet on the Club's premises. The trial court, in a thorough and well-reasoned order, held that there was no evidence of the Club's superior knowledge of any defect in the carpet that would cause Carpenter's equipment to malfunction and injure him. We agree and affirm.
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. OCGA § 9-11-56(c). 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. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff's claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party's case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party's case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56(e).
Lau's Corp. v. Haskins, 261 Ga. 491, 491, 405 S.E.2d 474 (1991).
The undisputed facts are that Carpenter worked "off and on" doing carpet installation and repair for All Shores Flooring. On the *353 day of the accident, Carpenter went by All Shores and asked if they had any work for him. All Shores sent Carpenter to the Club's Brookhaven location to repair the carpeting. Carpenter said that when he began his repairs, "the carpet was up in the air in the doorway, it was a trip hazard. So I had to put it back into place so nobody would get hurt...." Carpenter stated in his complaint that in order to do the required repairs, he had to "kneel down on the floor and use a device known in the industry as a kicker. As he attempted to repair the carpet with the kicker, because of the deterioration of the carpeting, the padding, and the underlying structure, [he] lost his balance while kneeling on the floor and sustained an injury to his back and leg."
In his deposition, Carpenter stated that he did not know why the carpet ripped when he used the kicker on it. "How it ripped, I don't I just don't, really don't know how it really happened, how it ripped. It could have been a defect from the company when the carpet the way it was made, or it could have been water from it coming in the doorway and it drying up and because the carpet, it was when they first installed the carpet[, it] was down right."
The Club moved for summary judgment, contending that there was no evidence that any act or omission on its part caused Carpenter's injuries, there was no evidence that a hazardous condition existed on its premises, and even assuming a hazardous condition did exist, there was no evidence that it had superior knowledge of the condition.
Carpenter responded to the motion, arguing that there were issues of fact as to whether the Club should have warned Carpenter about the condition of the carpet and also issues of fact as to whether the Club had superior knowledge of the dangerous condition.
Carpenter did not support these contentions, however, beyond stating that an employee of the Club "had previously observed the condition of the carpet to determine what areas were in need of repair." This does not show superior knowledge.
"The true ground of liability is the proprietor's superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner ... and not known to the person injured that a recovery is permitted." (Citations and punctuation omitted.) Cook v. Home Depot, 214 Ga.App. 133, 134, 447 S.E.2d 35 (1994).
In this case, Carpenter has not shown that any allegedly defective condition in the carpet was known to the Club and not known by him. Carpenter states that an employee of the Club identified areas that needed repair, but according to Carpenter, the repairs were necessary because the carpet was a tripping hazard. There is no evidence that any employee could have discerned the defect claimed by Carpenter. Carpenter himself did not discern a defect and he was kneeling down on the carpet and working over it.
We also note that Carpenter claims on appeal that the carpet was damaged by "water leaks." There is no evidence in the record that the carpet was damaged by water leaks. The only evidence on this issue is that of Carpenter himself and he stated in his deposition that he did not know why the carpet ripped.
Moreover, "[a]n independent contractor is expected to determine for himself whether his place of employment is safe or unsafe, and ordinarily may not recover against the owner for injuries sustained in the performance of the contract." Hudson v. Santangelo, 228 Ga.App. 768, 774, 492 S.E.2d 673 (1997). In Hudson, this court held that the independent contractor had a duty to inspect the area he was working on and could not impose liability on the homeowner for a defect which he, the independent contractor, also failed to notice. Id.
In this case, Carpenter, who had been installing and repairing carpets for over 20 years, did not notice any defect in the carpet, even though he was kneeling down and working on it. Further, beyond the allegation that an employee showed Carpenter the areas where the carpet was a tripping hazard, *354 Carpenter has come forward with no evidence tending to show that the Club knew or should have known of some defect in the carpet. It follows that the trial court did not err in granting summary judgment to the Club on Carpenter's claims.
Judgment affirmed.
MILLER, C.J., and BARNES, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375351/ | 461 S.E.2d 262 (1995)
218 Ga. App. 202
ROSEBERRY et al.
v.
BROOKS, M.D. et al.
BROOKS, M.D. et al.
v.
ROSEBERRY et al.
Nos. A95A0177, A95A0353.
Court of Appeals of Georgia.
July 14, 1995.
Denying Reconsideration July 28, 1995.
Certiorari Denied November 9, 1995.
*263 Weinstock & Scavo, P.C., Michael Weinstock, Louis R. Cohan, Love & Willingham, Robert P. Monyak, Atlanta, for appellants.
Allen & Peters, Jonathan C. Peters, Carol Smith Colby, Atlanta, for appellees.
McMURRAY, Presiding Judge.
In this action for medical negligence, plaintiff Gary B. Roseberry is the representative of the estates of his wife, Allegra Roseberry (deceased), and that of Amy Roseberry (deceased), a "twenty-three week gestation child, ... whose life was terminated during the twenty-third week of term of the deceased mother's pregnancy." The complaint alleges that Allegra Roseberry was admitted to DeKalb General Hospital on March 21, 1988, and discharged on March 24, 1988, with a diagnosis of "sclerosing cholangitis." On June 5, 1988, while she was under the primary care of defendant Walter S. Brooks, M.D., Allegra Roseberry was diagnosed as having "a malignant disease known as cholangiocarcinoma," i.e., liver cancer. Although Allegra Roseberry had informed Dr. Brooks on June 3, 1988, "that her last menstrual period occurred January 14, 1988, [he] failed to perform a pregnancy test, failed to perform a pelvic examination and, as a result, failed to diagnose [Allegra Roseberry] as being pregnant." Allegra Roseberry reentered the hospital on August 2, 1988, for treatment of her liver cancer, where, after a sonogram examination, "it was determined that [she] was twenty-three weeks pregnant." Dr. Brooks, "a gastroenterologist, without consultation of a pediatrician or perinatologist, recommended that [Allegra Roseberry] consent to a clinical abortion to be performed by Defendant [Young W. Ahn, M.D.]...." Allegedly "at the direction of her physicians, after being informed that the unborn child would be `doomed,' and the stress of the pregnancy was impairing her health, [Allegra Roseberry] consented to a clinical abortion." On August 9, 1988, "less than four days [after] the clinical abortion," Allegra Roseberry herself died of gram-negative sepsis (infection). Defendants Dr. Brooks, Dr. Ahn, and The Emory Clinic, a Georgia partnership allegedly liable for the negligence of Dr.
*264 Brooks and Dr. Ahn under the doctrine of respondeat superior, denied the material allegations and the case was tried before a jury.
In support of plaintiff's contentions, the following evidence was adduced: Gary and Allegra Roseberry were married in 1967. After they had been "married about five years," they thought about having a child. However, they experienced difficulties because Allegra Roseberry was a "victim of infertility." Through an expensive course of treatment (over approximately ten years) under the direction of a series of infertility experts, Allegra Roseberry's first pregnancy resulted in the birth of Matthew Roseberry in 1983. In March 1988, Gary Roseberry noticed for the first time that "the whites of [Allegra's] eyes were somewhat yellow." On March 24, 1988, Allegra Roseberry was diagnosed at DeKalb General Hospital as having "sclerosing cholangitis, which is basically a scarring in the bile duct system of the liver." This is "a very serious liver problem. To date the only cure for it was a liver transplant." Allegra Roseberry was referred to The Emory Clinic for evaluation for a liver transplant. From the date of Allegra Roseberry's discharge from DeKalb General Hospital in March 1988 to May 27, 1988, Gary Roseberry noticed that Allegra's "skin color continued to become more of a coppertone or olive color." Also her abdomen became distended and she "lost ... a little bit of weight...." Gary Roseberry recalled the May 27, 1988, visit to Allegra Roseberry's regular physician, George R. Jones, M.D. (a named defendant but a non-party to this appeal), where she told Dr. Jones that "she felt like she was pregnant." Specifically, "her breasts were swollen and ... rather tender, and her ears seemed to have fluid in them...." Gary Roseberry further affirmed that Allegra Roseberry had "frequent [nighttime] urination[, ... and] shortness of breath[.]" The Roseberrys had stopped active birth control in 1986. They were not actively seeking to have another child, and Gary Roseberry "felt with Allegra's infertility the chances were pretty slim [they] could have a child on [their] own."
On June 3, 1988, Allegra Roseberry had her first appointment with defendant Walter S. Brooks, M.D., a gastroenterologist at defendant The Emory Clinic. Gary Roseberry recalled that, after Allegra Roseberry had been examined, Dr. Brooks stated: "`This woman needs a transplant now.'" During this visit, Allegra Roseberry told Dr. Brooks "that [she felt] pregnant." Although "[p]atients with sclerosing cholangitis are usually not an urgent transplant," a CT scan revealed a tumor in the liver and at that time the more serious diagnosis of cholangiocarcinoma (liver cancer) was made. However, in mid-June, while the Roseberrys were getting Allegra Roseberry's liver typed for a transplant and getting her on a waiting list, they were informed that "Allegra had terminal liver cancer. It really was beyond the point of a transplant, and it was our last hope. It was time to go home more or less." Specifically, a biopsy was performed of "one of the lymph nodes between the liver and the bile duct[.]" This confirmed that Allegra had "metastatic adenocarcinoma." The cancer had already spread from the bile duct "to the lymph glands." The oncologist at defendant The Emory Clinic, Martin York, M.D., told the Roseberrys that there was no chance of a transplant and that Allegra Roseberry had only "three to six months ..." to live.
In late July 1988, the Roseberrys heard of an experimental chemotherapy being performed on liver cancer patients at Roswell Park Memorial Institute, in Buffalo, New York. As a prerequisite to this experimental chemotherapy, the patient must have a "low bilirubin level [and] Allegra ... had a higher level than this protocol would allow." Dr. Brooks agreed that this experimental chemotherapy was "a long shot but it was [the Roseberrys'] best shot, it was [their] only shot, and ... having reviewed the protocol... [suggested that a] liver [stent] be installed... [to] drain the liver and lower [Allegra Roseberry's] bilirubin count so that she could be admitted into this protocol." Without the experimental treatment, the Roseberrys anticipated that Allegra Roseberry's "life expectancy at best would be December," although they knew the end could come as soon as September or October.
The Roseberrys were advised that the liver stent involves "a very dirty part of the *265 body[, ... and that the] chances of infection were great[.]" After this insertion, and despite successful drainage, Allegra Roseberry "did not get the bounce off of the liver [stent]..." that was anticipated. Concerned that Allegra Roseberry was retaining abnormal fluid levels, Dr. Brooks ordered an ultrasound examination of her abdomen. It was this ultrasound examination that first revealed the existence of a fetus. Joseph H. Moyers, M.D., the radiologist who discovered the fetus, noted a positive heartbeat and observed the fetus "turning from side to side. The extremities were moving." He estimated its gestational age at "21 weeks [ ... varying] a week or so in either direction[.]"
David Plotkin, M.D., affirmed that Dr. Brooks'"failure to conduct a pelvic examination upon [Allegra Roseberry's] admission to the hospital deviate[d] from the standard of care expected of physicians generally[.]" Dr. Plotkin also "[did not] think ..." the abortion procedure itself was within the standard of care. Duane Thiele, M.D., affirmed that "the records [he had] seen associated with Dr. Brooks' reasons for terminating the pregnancy ... deviate[d] from the standard of care[.]" In Dr. Thiele's opinion, if Dr. Brooks concluded that the fetus was doomed and recommended an abortion "without consulting an obstetrician or gynecological person," that conduct fell below the standard of care. Watson A. Bowes, Jr., M.D., affirmed that Dr. Brooks' failure to have entertained pregnancy as a diagnostic possibility, to have ruled it out, was "a deviation [from] the standard of care expected of physicians under similar circumstances[.]" He disagreed that the fetus was doomed despite the presence of intense bile staining because he had "delivered [normal] children with bilirubins as high as 8 or 9, which is bilirubin as high as Mrs. Roseberry's." Additionally, the defense expert witness, Eugene R. Schiff, M.D., agreed that if Dr. Brooks "did not contemplate that an OB-GYN would independently evaluate the need for an abortion, if he didn't even consider it ... [then Dr. Schiff] would feel that that would be incomprehensible ... [and] below the standard of care." In the opinion of John W.C. Johnson, M.D., another defense expert, for Dr. Brooks "to recommend an abortion without knowing [the amount of] x-ray exposure to the baby for the basis for the abortion would be inappropriate."
As to Dr. Ahn, Dr. Plotkin testified that "the failure of Dr. Ahn as a consult to personally familiarize himself with the reasons associated with his consultation ... would be below the standard of care." Dr. Plotkin also affirmed that Dr. Ahn's "failure to have recorded specific information for reasons behind his actions in the accuracy of his record keeping [was ...] a deviation of the standard of care expected of physicians generally[.]" Dr. Bowes would "expect an obstetrician before performing an abortion [to] sit down and satisfy himself as to the scope of the knowledge of the patient[.]" In Dr. Bowes' opinion, Dr. Ahn's failure to have done so "deviate[d] from the standard of care...." Dr.
Johnson testified that if Dr. Ahn "misunderstood the indications for the abortion ..." his conduct fell below the standard of care. Dr. Johnson affirmed that, in his opinion, both Dr. Brooks and Dr. Ahn "were below the standard of care expected of physicians generally in not carefully noting in the chart the patient's options and the reasons and decisions for the pregnancy termination.]"
The jury absolved Dr. Jones of all liability and further found for defendants as to that count alleging they caused the wrongful death of Allegra Roseberry. Nevertheless, the jury found that Dr. Brooks, Dr. Ahn, and The Emory Clinic negligently caused Allegra Roseberry pain and suffering, awarding her estate $250,000. The jury further found Dr. Brooks, Dr. Ahn, and The Emory Clinic jointly and severally liable for the wrongful death of the unborn female, Amy Roseberry, awarding her estate $1,500,000. Defendants' motion for judgment notwithstanding the verdict, for new trial, or for "remittitur of damages" was denied. In Case No. A95A0353, defendants appeal from the joint and several judgment entered by the trial court on the jury's verdicts. In Case No. A95A0177, plaintiff appeals from the judgment of the trial court directing a verdict in favor of defendants as to plaintiff's claim for punitive damages. Held:
*266 Case No. A95A0353
1. In their second enumeration, Dr. Brooks, Dr. Ahn, and The Emory Clinic contend the trial court erred in denying their motion for directed verdict, arguing there is insufficient evidence to create a jury issue as to plaintiff's claim for the wrongful death of the unborn female, Amy Roseberry. A motion for judgment n.o.v. is appropriate only where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. OCGA § 9-11-50(a). In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict. Goggin v. Goldman, 209 Ga.App. 251, 252, 433 S.E.2d 85.
"Negligence alone is insufficient to sustain recovery for wrongful death in a medical malpractice action. It must be proven that the death of a patient proximately resulted from such want of care or skill. A bare possibility of such result is not sufficient. Further, there can be no recovery in a wrongful death action based on medical negligence where there is no showing to any reasonable degree of medical certainty that the patient's death could have been avoided." (Citations and punctuation omitted.) Dowling v. Lopez, 211 Ga.App. 578, 579(2), 580, 440 S.E.2d 205. "`If an injury would have occurred notwithstanding the alleged acts of negligence of the defendant, there could be no recovery in an action for negligence.' (Citations and punctuation omitted.) Jones v. Central of Ga. R. Co., 192 Ga.App. 806, 807 (386 S.E.2d 386) (1989)." Butler v. South Fulton Med. Center, 215 Ga.App. 809, 813(3), 814, 452 S.E.2d 768.
In the case sub judice, plaintiff's evidence authorized the jury to conclude that Dr. Brooks and Dr. Ahn deviated from the standard of care in recommending and performing an abortion based in part on the erroneous diagnosis that this fetus had already been exposed to fatal dosages of radiation, and that they further deviated from the applicable standard of care in allowing Allegra Roseberry to consent to this abortion, induced in part by this diagnostic misapprehension. Plaintiff also adduced opinion evidence that it was technologically feasible to keep the fetus alive should Allegra Roseberry die from her liver cancer before the child became viable. However, other undisputed and uncontradicted evidence from each party's medical experts indicated that Allegra Roseberry would not be eligible for the experimental chemotherapy regimen at Roswell Park Memorial Institute while she was pregnant.
Plaintiff's Exhibit 20(a), which contains the protocol entry criteria for the experimental treatment, is silent on the issue of pregnancy. Nevertheless, Dr. Plotkin affirmed his "understanding as an oncologist that had [Allegra Roseberry] wanted to go [to] Roswell Park for [any] experimental protocol of chemotherapy and/or radiation, that the pregnancy would [probably] have disqualified her from that program[.]" Dr. Bowes affirmed that, in the medical community, it is "just common knowledge that almost all, if not all, experimental chemotherapy [regimens] and programs exclude pregnant women...." Dr. Thiele conceded that "[m]ost protocols involving new drugs, radiation, it would exclude pregnant women." This is consistent with the opinions of defense medical experts. Dr. Johnson thought it "highly unlikely they would accept her in the experimental program if she was pregnant." Dr. Schiff testified "no radiation therapist would have ever given radiation to a pregnant woman, even if the baby was doomed."
There is also uncontradicted evidence that Allegra Roseberry knew she had an alternative reason for electing an abortion, and that reason was wholly unrelated to any acts of medical negligence as demonstrated by plaintiff's evidence. While giving her history to Dr. Young, Allegra Roseberry told him that "she had already decided to have a prostaglandin induction [abortion], not because of radiographic studies but because she said she wanted to go get the chemotherapy and try to improve her chances for survival." Dr. Thiele acknowledged "there may have been multiple reasons for ... performing the abortion. Certainly one was that the patient, one of the patient's major objectives was to go to have experimental chemotherapy[, ...] to qualify for that...." Dr. Young "felt that *267 the patient had a full understanding of everything and evidently had been counseled regarding the different options to her, because she stated in the history she had essentially two options, one to continue with pregnancy or, two, get experimental chemotherapy and go through the abortion. And she chose the latter because that was her only chance of survival."
"Certain results, by their very nature, are obviously incapable of any reasonable or practical division. Death is such a result[.]" Prosser & Keeton, Law of Torts, § 52, p. 347 (5th ed. 1984). See also Parks v. Palmer, 151 Ga.App. 468, 470(2), 260 S.E.2d 493. "`The general rule is that if, subsequently to an original wrongful or negligent act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune [or result], the former [negligence] must be considered as too remote ...'" Griner v. Groover, 97 Ga.App. 753, 756, 104 S.E.2d 504. See generally McAuley v. Wills, 251 Ga. 3, 6(5), 303 S.E.2d 258. In the case sub judice, Allegra Roseberry desired to undergo a lawful abortion in order to qualify for experimental treatment at Roswell Park Memorial Institute, and thereby increase her own chances of surviving terminal liver cancer. The lawful abortion performed for that purpose is an intervening act which effectively caused the entire injury (death) to the unborn female, Amy Roseberry. Consequently, any medical negligence attributable to defendants is superseded by the mother's volitional act as the proximate cause of the death of the fetus. Since the entire injury "occurred notwithstanding [proven] acts of negligence of the defendant [doctors], there [can] be no recovery in [this wrongful death] action for [medical] negligence.' ... [Cit.]" Butler v. South Fulton Med. Center, 215 Ga.App. 809, 813(3), 814, 452 S.E.2d 768, supra. In the case sub judice, it is true that many evidentiary details and the opinions of medical experts were in conflict. Nevertheless, "`(p)laintiff simply failed to prove his case and the direction of the verdict was [demanded]. (Cit.) The mere existence of conflicts in the evidence does not [preclude] the direction of a verdict ... if [that verdict] was demanded, either from proof or from lack of proof on the controlling issue or issues. (Cit.)' (Emphasis [omitted].) [Cits.]" Simmons v. Boros, 176 Ga.App. 346, 347(2), 348, 335 S.E.2d 662, aff'd, 255 Ga. 524, 341 S.E.2d 2. In the case sub judice, the trial court erred in denying defendants' motion for judgment n.o.v. as to plaintiff's claim for the wrongful death of Amy Roseberry as the uncontradicted evidence does not warrant submission of the case to the jury. See generally Maddox v. Houston County Hosp. Auth., 158 Ga.App. 283, 279 S.E.2d 732; Parrott v. Chatham County Hosp. Auth., 145 Ga.App. 113, 243 S.E.2d 269.
2. In their fourth enumeration, defendants contend the trial court erred in denying their motion for judgment n.o.v. as to Allegra Roseberry's claim for pain and suffering.
Viewing the evidence in this case in the light most favorable to the party who obtained the verdict, the jury was authorized to conclude that the negligent failure to diagnose Allegra Roseberry's pregnancy sooner caused her pain and suffering through malnutrition. She competed (unknowingly) with the fetus for nutrients. According to Dr. Plotkin, the fetus usually wins the battle for nutrients that the mother is taking in. "If there's a shortage, the nutrients are diverted to the fetus[ ... at] the expense of the mother." Consequently, Allegra Roseberry's strength and resistance to infection were degraded. This is sufficient evidence to support the award for pain and suffering against Dr. Brooks and The Emory Clinic. The trial court did not err in denying the motion for judgment notwithstanding the verdict as to Dr. Brooks. This same evidence, however, fails to show any "injury resulting from a want of [medical] care and skill ..." on the part of Dr. Ahn as required by OCGA § 51-1-27. Also, plaintiff adduced no evidence that the physical pain Allegra Roseberry endured during the prostaglandin induced delivery she chose in an effort to increase her chances of surviving terminal liver cancer resulted from medical negligence committed during the abortion procedure itself. "`"Negligence alone is insufficient to sustain recovery. It must be proven that the injury complained of proximately resulted from such want of care or skill. A bare possibility *268 of such result is not sufficient." [Cit.]' [Cit.]" Goggin v. Goldman, 209 Ga.App. 251, 252, 433 S.E.2d 85, supra. "Where there is testimony showing a [mere] difference in views or individual practices among doctors, and where it is also shown that each view or practice is acceptable and customary, such evidence is insufficient to support a malpractice action. See Hyles v. Cockrill, 169 Ga. App. 132, 139(12) (312 SE2d 124) (1983)." Williams v. Smith, 179 Ga.App. 712, 716(3), 717, 348 S.E.2d 50. Consequently, the trial court erred in failing to grant judgment n.o.v. in favor of Dr. Ahn as to this claim.
3. In light of our holdings in Divisions 1 and 2, in Case No. A95A0353, the judgment as to Dr. Ahn is reversed in its entirety. As to Dr. Brooks and The Emory Clinic, the judgment is affirmed in part as to Allegra Roseberry's claim for pain and suffering, and reversed in part as to the wrongful death claim.
Case No. A95A0177
4. Plaintiff enumerates the direction of the verdict with respect to his claim for punitive damages, arguing that Dr. Brooks' hasty recommendation of an abortion was evidence of an attempt to mask his flawed diagnosis that the fetus was doomed.
Punitive "damages are not available in a wrongful death action. Roescher v. Lehigh Acres Dev., Inc., 125 Ga.App. 420 (188 SE2d 154)." Truelove v. Wilson, 159 Ga.App. 906, 907(2), 285 S.E.2d 556. In Georgia, the measure of recovery for the wrongful death of a child is the "full value of the life of the child[.]" OCGA § 19-7-1(c). See also OCGA § 51-4-4. This amount "does not include recovery for mental anguish or emotional distress." OB-GYN Assoc. of Albany v. Littleton, 259 Ga. 663, 664(1), 386 S.E.2d 146. Such recovery is nevertheless penal because it is not necessarily related to the "real value to the person in whom the cause of action is vested. [Cits.] ... To hold that the jury can award additional exemplary damages under [former Civil Code (1910) § 4503, now OCGA § 51-12-5.1] would have the effect of imposing ... a double penalty." Engle v. Finch, 165 Ga. 131, 134, 139 S.E. 868. Accordingly, in the case sub judice, any
claim plaintiff might have for punitive damages exists solely with respect to the cause of action alleging defendants negligently caused Allegra Roseberry unnecessary pain and suffering. This issue is now moot with respect to Dr. Ahn. As to Dr. Brooks (and The Emory Clinic), the only circumstances advanced in support of this enumeration which do not relate to the wrongful death claim show that expert opinion evidence questioned Dr. Brooks' decision not to transfuse Allegra Roseberry before the abortion in order to build up her strength. In Dr. Bowes' estimation, the abortion "would have been best performed when the patient's condition [has been] stabilized [by] transfusions, which they [ultimately] had to do. [A prior] blood transfusion might have improved her capacity to tolerate this procedure."
"Under OCGA § 51-12-5.1(b), which is applicable in the instant case, it remains the rule that something more than the mere commission of a tort is always required for punitive damages. There must be circumstances of aggravation or outrage. There is general agreement that, because it lacks this element, mere negligence is not enough." (Citations and punctuation omitted.) Ivey v. Golden Key Realty, 200 Ga.App. 545(1), 408 S.E.2d 811. "`"If a tort is committed through mistake, ignorance, or mere negligence, the damages are limited to the actual injury received," for vindictive or punitive damages are recoverable only when a defendant acts "maliciously, wilfully, or with ... a wanton disregard of the rights of others." (Cit.)' State Mut. Life etc., Assn. v. Baldwin, 116 Ga. 855, 860(3) (43 S.E. 262) (1903)." Windermere, Ltd. v. Bettes, 211 Ga.App. 177(1), 178, 438 S.E.2d 406. "`It is not essential to a recovery for punitive damages that the person inflicting the damages was guilty of wilful and intentional misconduct. It is sufficient that the act be done under such circumstances as evinces an entire want of care and a conscious indifference to the consequences.' [Cit.]" Hodges v. Effingham County Hosp. Auth., 182 Ga.App. 173, 174(2), 175, 355 S.E.2d 104. In our view, evidence in the case sub judice that Dr. Brooks chose not to transfuse Allegra Roseberry until after the prostaglandin induced abortion establishes *269 mere professional negligence rather than clearly and convincingly evincing that entire want of care as will support punitive damages. The trial court correctly directed the verdict as to this claim.
Judgment affirmed in part and reversed in part in Case No. A95A0353. Judgment affirmed in Case No. A95A0177.
ANDREWS and BLACKBURN, JJ., concur.
ON MOTION FOR RECONSIDERATION.
Case Number A95A0353
Plaintiff Gary Roseberry contends that this Court has overlooked "the overwhelming evidence that the Roseberrys chose to abort the pregnancy because they were told the baby was doomed, that it had no chance of survival, and that the pregnancy was weakening Allegra [Roseberry]." (Emphasis in original.) He argues that this evidence "contradicts" Allegra Roseberry's statement to Dr. Young that showed she knew she had a choice and that she chose to survive.
Plaintiff's position mischaracterizes this Court's analysis and is erroneously premised on the misapprehension that Allegra Roseberry could have but a single reason for undergoing the abortion. On the contrary, this Court's analysis presupposes that plaintiff's evidence established that Dr. Brooks' incorrect diagnosis of nonviability induced, in part, the decision to terminate the pregnancy. Nevertheless, all the evidence of Allegra Roseberry's initial motive does not contradict her last statement of intent, as related by Dr. Young, which included chemotherapy as an additional reason for terminating the life of her unborn child. Testimony is contradictory if one part asserts or expresses the opposite of another part of the testimony. See Prophecy Corporation v. Charles Rossignol, Inc., 256 Ga. 27, 30(2), 343 S.E.2d 680. This additional motive of seeking experimental chemotherapy does not express the opposite of choosing to terminate the pregnancy due to fetal nonviability. Rather, it expresses a parallel reason, existing simultaneously and independently of the negligently induced motive.
During the presentation of plaintiff Gary Roseberry's case-in-chief, portions of the October 4, 1991 deposition of Johnny Shan Young, M.D., were read into the record. Dr. Young expressly affirmed that he had "some independent recollections ..." of Allegra Roseberry as a patient. When Dr. Young took Allegra Roseberry's history, "[h]er husband was present." "She was a very thin, ill-appearing, cachectic woman who was [jaundiced], probably as much jaundice as any patient I had seen. She did not look very healthy, but she seemed to be in good spirits despite her illness." She was "[v]ery coherent." "The patient stated that she wanted the prostaglandin induction so she might be able to go and get some experimental chemotherapy." Dr. Young "felt that the patient had a full understanding of everything and that she evidently had been counseled regarding the different options to her because she stated in myin the history that essentially she had two options; one was continue with the pregnancy or, two, to get the experimental chemotherapy and go through an abortion. And she chose the latter because that was her only chance of survival."
Plaintiff Gary Roseberry contends that Dr. Young's testimony is suspect because it was given three years after the fact and introduced (by plaintiff) only through deposition. Only plaintiff Gary Roseberry, his deceased wife Allegra Roseberry, and Dr. Young had personal knowledge of what Allegra Roseberry said to Dr. Young as he took her history. However, when plaintiff Gary Roseberry was recalled to the stand, he never testified that, contrary to Dr. Young's testimony, Allegra Roseberry never said she wanted to undergo a clinical abortion (in part) so that she might take part in experimental chemotherapy. Plaintiff Gary Roseberry was quite certain that Dr. Brooks was untruthful about certain matters but he was silent on the substance of Dr. Young's testimony. Thus, the record shows that the only person who could, from personal knowledge, refute Dr. Young's testimony, failed to do so.
Next, plaintiff Gary Roseberry contends that Allegra Roseberry's statement to Dr. Young was impeached by Dr. Young's own records. However, plaintiff's counsel elicited *270 that medical records list Allegra Roseberry as having been admitted to the transferring hospital "to have percutaneous drainage in consideration for chemotherapy." Further review of the transcript shows that Dr. Young's own notes of Allegra Roseberry's history recite: "The patient is currently undergoing percutaneous drainage of her biliary tract prior to receiving experimental chemotherapy." When directly questioned by plaintiff's counsel whether he had any specific recollection that Allegra Roseberry wanted experimental chemotherapy after she learned she was pregnant, Dr. Young testified: "What she said when I saw her this day, August the 8th, was that she wanted chemotherapy. And that was after she learned she was pregnant." Thus, the medical records tend to confirm rather than impeach Dr. Young's testimony that Allegra Roseberry wanted to undergo the clinical abortion (in part) in order to preserve her chances of being admitted into the experimental protocol, with the hope that, thereby, her life might be saved.
Finally, plaintiff Gary Roseberry contends there is no evidence that Allegra Roseberry knew or believed that she must undergo an abortion in order to qualify for the experimental chemotherapy. However, the proof of this comes from the plaintiff, himself. When Dr. Brooks first informed the Roseberrys that Allegra Roseberry was pregnant, and that the fetus should be aborted, Allegra Roseberry, according to plaintiff Gary Roseberry's testimony on direct examination, "almost was happy about this pregnancy, even knowing what it meant, even knowing that she had to go through an abortion to get to Buffalo." This is unchallenged evidence that both Allegra Roseberry and plaintiff Gary Roseberry believed all along that the abortion was a necessary predicate to Allegra Roseberry's entry into the experimental chemotherapy regimen at Roswell Park Memorial Institute in Buffalo, New York.
The motion for reconsideration in Case Number A95A0353 is denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375344/ | 933 P.2d 606 (1997)
84 Hawai`i 269
STATE of Hawai`i, Plaintiff-Appellee,
v.
Warren David MILLER, Defendant-Appellant.
No. 16677.
Supreme Court of Hawai`i.
February 20, 1997.
Reconsideration Denied April 3, 1997.
*608 Jeffrey M. Albert, Deputy Prosecuting Attorney, on the briefs, Honolulu, for petitioner-appellee.
Theodore Y. H. Chinn, Deputy Public Defender, on the briefs, Honolulu, for petitioner-appellant.
Before MOON, C.J., KLEIN, NAKAYAMA and RAMIL, JJ., and Circuit Judge KOCHI, in place of LEVINSON, J., Recused.
KLEIN, Justice.
We granted certiorari to review the Intermediate Court of Appeals (ICA) opinion vacating and remanding a circuit court order denying Warren David Miller's motion for discharge or conditional release from the Hawai`i State Hospital. State v. Miller, No. 16677 (Haw.Ct.App. Jan. 9, 1995), reconsideration denied, 77 Hawai`i 501, 889 P.2d 78, cert. granted, 78 Hawai`i 421, 895 P.2d 172 (1995). We reverse. We also, pursuant to Rule 2(a) of the Rules of the Intermediate Court of Appeals, direct that an order depublishing the ICA's opinion be filed concurrently with this opinion.
I. BACKGROUND
On September 28, 1977, Miller was indicted on charges of attempted rape in the first degree, attempted murder, attempted sodomy in the first degree, kidnaping, and four counts of sexual abuse in the first degree.[1] On July 10, 1978, the circuit court granted Miller's motion for acquittal "on the ground of mental disease or disorder excluding responsibility." The circuit court found Miller dangerous and committed him to the Hawai`i State Hospital, where he was to be held in "maximum security" because of his "high degree of dangerousness."
Prior to the current petition, the circuit court denied five requests for release filed by Miller between 1980 and 1989. On June 25, 1991, Miller once again sought release. The circuit court held hearings in August and October of 1992. Only one of the experts who testified at the hearing considered Miller mentally ill, dangerous, and unfit to be released. After hearing all the evidence and the arguments of counsel, the circuit court denied Miller's petition for conditional release.
In its findings of fact, the circuit court found by "clear and convincing evidence that Warren Miller currently suffers from a mental disease, disorder or defect of sexual sadism and antisocial personality." The court further found by "clear and convincing evidence that a conditional release from [Hawai`i] State Hospital would pose a mild danger to others in the community." Although Hawai`i Revised Statutes (HRS) § 704-411(4) (1993) places the burden on the insanity acquittee to prove, by a preponderance of the *609 evidence, that he or she is fit to be released, the circuit court adopted the clear and convincing burden of proof based on its conclusion that:
[t]he United State[s] Supreme Court has ruled in [Foucha v. Louisiana, 504 U.S. 71, 112 S. Ct. 1780, 118 L. Ed. 2d 437 (1992),] that a State cannot continue the commitment of a defendant in a mental institution unless the State can prove by clear and convincing evidence that the defendant has a mental illness and is dangerous.
On appeal to the ICA, Miller claimed that the circuit court's findings of fact were clearly erroneous because the state failed to meet its burden of proof, either by a preponderance of the evidence under HRS § 704-411(4), or by clear and convincing evidence mandated by Foucha.
The ICA's majority opinion rejected the clear and convincing burden test that the circuit court imported from Foucha. The majority also disagreed with Miller's argument that Foucha and Jones v. United States, 463 U.S. 354, 103 S. Ct. 3043, 77 L. Ed. 2d 694 (1983), require application of the clear and convincing burden of proof. The court distinguished both of these cases, indicating that Jones was inapposite because Miller is an insanity acquittee, rather than a civil committee, and that Foucha was distinguishable because the state had not relinquished its claim that Miller was mentally ill, as Louisiana had in Foucha. Thus, the ICA held:
(1) Miller's motion [for conditional release] must be granted unless the State (a) alleges that Miller (i) suffers from one or more mental illnesses, and (ii) is dangerous, and (b) proves by a preponderance of the evidence that one or more of the alleged mental illnesses are mental illnesses as defined by law; and, if the State satisfies the above requirements, the burden then shifts and (2) Miller's motion must be denied unless Miller proves by a preponderance of evidence that (a) he is not then suffering from one or more of the alleged mental illnesses; (b) he is not then dangerous; or (c) his dangerousness does not result from any of his mental illnesses. Therefore, we vacate and remand for reconsideration in the light of this opinion.
The ICA therefore vacated the circuit court's order and remanded the case for further proceedings because the "evidentiary hearing was conducted without a clear understanding of which side had to prove what and to what degree."
The ICA also directed the circuit court to make a specific finding as to whether Miller suffered from a "legally recognized mental illness." The ICA referred the circuit court to HRS § 704-400 (1993), which defines a "mental illness" as a
physical or mental disease, disorder, or defect, not including abnormality manifested only by repeated penal or otherwise antisocial conduct, that results in the person's lack of substantial capacity to either appreciate the wrongfulness of the person's conduct or to conform the person's conduct to the requirements of law.
According to the ICA, it is unclear from the circuit court order if Miller's diagnosis of antisocial personality disorder constitutes a "legal mental illness," or an "abnormality manifested only by repeated penal or otherwise antisocial conduct."
The dissenting opinion in Miller argued that Foucha mandates an insanity acquittee be afforded the same procedural protections that are provided to the civil committee. The dissent also had "serious reservations" about finding Miller legally mentally ill under "either [the preponderance of the evidence or the clear and convincing evidence] standard."
Both Miller and the state filed an application for a writ of certiorari. Because this case presents an important issue concerning the release of insanity acquittees from a mental health facility, we granted certiorari.
II. DISCUSSION
Miller argues that the ICA majority opinion should be reversed because: (1) the allocation of the burden of proof on the insanity acquittee to prove, by a preponderance of the evidence, that he or she is eligible for release violates his right to due process and equal protection of the laws; (2) the ICA erred in using the definition of a lack of penal responsibility *610 under HRS § 704-400 to define "mental illness" for purposes of a discharge or conditional release proceeding; and (3) there was insufficient evidence to support the circuit court's conclusion that Miller is mentally ill and a danger to the community.
The state urges this court to reverse that portion of the ICA opinion vacating the circuit court's order denying Miller's motion for conditional release, and remanding the case for further proceedings. According to the state, the circuit court's order should be affirmed because (1) the circuit court did not clearly err in denying Miller's motion for release, and (2) if there was error, it was harmless because the state satisfied a higher level of proof than that required by law.
We will examine these arguments seriatim.
A. The allocation of the burden on the insanity acquittee to prove, by a preponderance of the evidence, that he or she is no longer mentally ill or dangerous does not violate the insanity acquittee's right to due process or equal protection of the laws.
1. Due Process
The Hawai`i and United States Constitutions mandate that a person shall not be deprived of life, liberty or property without due process of law. Haw. Const. art. I, § 5; U.S. Const. amend. XIV, § 1. Freedom from unjustified governmental intrusions into personal security and bodily autonomy are at the core of the liberty protected by due process. Foucha, 504 U.S. at 80, 112 S.Ct. at 1785. "It is clear that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection." Id. As a matter of due process, an insanity acquittee is entitled to release when he or she has recovered his or her sanity or is no longer a danger to himself or herself or society. Id. at 77-78, 112 S.Ct. at 1784 (quoting Jones, 463 U.S. at 370, 103 S.Ct. at 3053). Under HRS § 704-415 (1993),[2] the insanity acquittee has the burden of proving his or her right to release by a preponderance of the evidence.
In Miller, the ICA concluded that "HRS § 704-415's imposition upon the [insanity acquittee] of the burden of proving his or her lack of mental illness or lack of resulting dangerousness by a preponderance of the evidence" is constitutionally valid. Miller and the ICA dissent maintain that such a requirement violates Miller's right to due process under Foucha.
Miller misconstrues Foucha. In Foucha, the United States Supreme Court held that a Louisiana statute violated due process because it permitted the state to confine an insanity acquittee to a mental institution without a finding that he or she was both mentally ill and dangerous. 504 U.S. at 77-78, 112 S.Ct. at 1784. The Louisiana statute placed the burden on the insanity acquittee to prove, by a preponderance of the evidence, that he or she was no longer dangerous. Id. at 73, 112 S.Ct. at 1781. If the court found that he or she failed to carry this burden, the insanity acquittee could be returned to the mental institution "whether or not he [or she was] mentally ill." Id. In Foucha's case, a review panel recommended that Foucha be released because he had recovered from his temporary drug-induced psychosis. Id. at 74, 112 S.Ct. at 1782. Louisiana did not *611 dispute the panel's finding; it was not required to under its statute. Foucha, however, was unable to prove that he was no longer dangerous. Consequently, the court denied his petition for release. Id. at 75, 112 S.Ct. at 1782.
The statute in this case does not suffer from the constitutional defects found in Foucha. HRS § 704-415 states in relevant part that the insanity acquittee must prove that he or she may be safely released. An insanity acquittee who has demonstrated that he or she has recovered from the mental illness or is no longer dangerous is safe to be released. Foucha, 504 U.S. at 77-78, 112 S.Ct. at 1784 (quoting Jones, 463 U.S. at 370, 103 S.Ct. at 3053). Accordingly, we interpret HRS § 704-415 as requiring both a mental illness and dangerousness. See In re Doe, Born on January 5, 1976, 76 Hawai`i 85, 93, 869 P.2d 1304, 1312 (1994) (when possible, the court "interprets enactments of the [l]egislature... so as to uphold their constitutionality.") (citations omitted).
Furthermore, unlike Foucha, the state in this case did not concede that Miller was cured of his mental illness. To the contrary, the state has presented evidence and argued before the circuit court that Miller still suffers from a mental illness. Accordingly, we hold that the release provisions in this case do not violate due process under Foucha.
Miller nevertheless maintains that the rationale and principle espoused by Jones and Foucha require that the burden be placed on the government to prove, by clear and convincing evidence, that the insanity acquittee is not fit to be released. We are not convinced by this argument.
In Jones, the seminal case dealing with the initial commitment of individuals following an acquittal by reason of insanity, the United States Supreme Court upheld a District of Columbia code that allowed the government to commit an insanity acquittee to a mental facility following proof by a preponderance of the evidence that he or she was insane and dangerous. 463 U.S. at 370, 103 S.Ct. at 3052. Jones had argued that the Code was unconstitutional because proof of his insanity was based on a preponderance of the evidence standard, as compared to the clear and convincing requirement for a civil commitment. Id. at 366-67, 103 S.Ct. at 3050-51. The Court held that the lower standard of proof for insanity acquittees did not violate due process. Id. at 368, 103 S.Ct. at 3051. It found "important differences between the class of potential civil commitment candidates and the class of insanity acquittees that justify differing standards of proof." Id. at 367, 103 S.Ct. at 3051. An acquittal by reason of insanity, the Court explained, proved that the person committed a criminal act, and that he or she committed the act as a result of a mental illness. Id. at 363, 103 S.Ct. at 3049. As such, "there is good reason for diminished concern" that the insanity acquittee is being committed for mere "idiosyncratic behavior." Id. at 367, 103 S.Ct. at 3051. "Accordingly, there is no reason for adopting the same standard of proof in both cases." Id.
Likewise, in Thompson v. Yuen, 63 Haw. 186, 188, 623 P.2d 881, 883 (1981), this court held that an insanity acquittee could be committed on proof by a preponderance of the evidence that he or she is insane and dangerous, even though a higher burden of proof is required for civil commitments. We held:
There is justification for the preponderance of proof standard for confinement of the insanity-acquittee even assuming a higher standard is required prior to civil commitment for propensity.
....
The difference between the classes for purposes of burden of proof, is in the extent of possibility and consequence of error. If there is error in a determination of mental illness that results in a civil commitment, a person may be deprived of liberty although he never posed any harm to society. If there is an [sic] similar error in confinement of an insanity-acquittee individual, there is not only the fact of harm already done, but the substantial prospect that the same error, ascribing the quality of mental disease to a less extreme deviance, resulted in a legal exculpation where there should have been legal responsibility for the antisocial action.
*612 Id. at 189, 623 P.2d at 883 (citing United States v. Brown, 478 F.2d 606, 611 (D.C.Cir. 1973)).
Although Jones and Thompson dealt with an initial commitment proceeding, and not a release proceeding,[3] the reasoning of those cases may be extended to the release process. Like the initial commitment proceeding, there is a presumption of a continuing mental illness and dangerousness at the time of the release hearing. See Jones, 463 U.S. at 366, 103 S.Ct. at 3050 (holding that it is common sense to conclude that a person whose mental illness is sufficient to lead to a criminal act will likely remain ill and in need of treatment). Therefore, so long as the basis for confining the insanity acquittee remains intacti.e., the insanity acquittee is still mentally ill and dangerousthe state may require the insanity acquittee to prove his or her eligibility for release.
As discussed previously, Foucha did not squarely address the constitutionality of placing the burden of proof on the insanity acquittee at the release hearing. However, a careful reading of that case indicates that the Supreme Court tacitly approved of such a procedure. For instance, the Court in Foucha relies heavily on Jones and its disparate treatment of insanity acquittees. The Court stated that so long as there is a legitimate basis for the continuing confinement of the insanity acquittee, the insanity acquittee may be treated differently from the civilly committed individual. 504 U.S. at 85, 112 S.Ct. at 1788. In the instant case, the state has alleged and argued that Miller, unlike Foucha, is still suffering from a mental illness that renders him dangerous. Therefore, because the state continues to have a legitimate reason to keep Miller in the mental facility, it may require him to prove his eligibility for release.
The Foucha court also meticulously distinguished Foucha from an insanity acquittee, instead of invalidating the Louisiana statute on its face. The Court held the Louisiana statute unconstitutional largely because, "the basis for holding Foucha in a psychiatric facility as an insanity acquittee had disappeared" when Louisiana acknowledged that Foucha was no longer mentally ill. Id. at 78, 112 S.Ct. at 1784. It logically follows that if Louisiana had successfully argued that Foucha was still mentally ill, as the state did in this case, Louisiana would have had a sufficient basis to recommit Foucha.
Finally, conspicuously absent from Foucha is a holding that the state must provide the same release procedures for insanity acquittees and civil committees. Given that the issue in Foucha was an insanity acquittee's petition for release, we find the Court's silence to be persuasive evidence of its approval of the different standards of proof at the release proceeding.
For the reasons stated above, we hold that HRS § 704-415 does not violate due process principles. At the release hearing, the insanity acquittee bears the burden of proving by a preponderance of the evidence freedom from mental illness and dangerous propensities. See Hartman v. Summers, 878 F. Supp. 1335 (C.D.Cal.1995); State v. Tooley, 875 S.W.2d 110 (Mo.1994); Hearne v. United States, 631 A.2d 52 (D.C.Ct.App.1993); U.S. v. Jackson, 815 F. Supp. 195 (N.D.Tex.1993), aff'd, 19 F.3d 1003 (5th Cir.1994), cert. denied, 513 U.S. 891, 115 S. Ct. 237, 130 L. Ed. 2d 160 (1994); Nagel v. State, 262 Ga. 888, 427 S.E.2d 490 (1993); United States v. Phelps, 955 F.2d 1258 (9th Cir.1992), cert. denied, 504 U.S. 989, 112 S. Ct. 2977, 119 L. Ed. 2d 595 (1992); Mental Hygiene Legal Servs. v. Rhodes, 195 A.D.2d 160, 606 N.Y.S.2d 834 (1994); People v. Sword, 29 Cal. App. 4th 614, 34 Cal. Rptr. 2d 810 (1994), cert. denied, ___ U.S. ___, 115 S. Ct. 1977, 131 L. Ed. 2d 865 (1995).
2. Equal Protection
Miller also argues that HRS § 704-415 violates his right to equal protection of the laws because it treats insanity acquittees differently from civil committees. Under HRS *613 §§ 334-60.2 (1993)[4] and 334-60.5 (1993),[5] a civil committee must be released from a psychiatric facility unless the state can (1) prove beyond a reasonable doubt that the civil committee is mentally ill, and (2) prove by clear and convincing evidence that the civil committee is imminently dangerous and in need of care or treatment. HRS § 704-415,[6] on the other hand, places the burden on the insanity acquittee to prove, by a preponderance of the evidence, that he or she should be released.
The guarantee of equal protection of the laws under Hawai`i and United States Constitutions requires that persons similarly situated with respect to the legitimate purpose of the law receive like treatment. Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 440, 105 S. Ct. 3249, 3254, 87 L. Ed. 2d 313 (1985); State v. Bloss, 62 Haw. 147, 157, 613 P.2d 354, 360 (1980). However, "[e]qual protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made." Baxstrom v. Herold, 383 U.S. 107, 113, 86 S. Ct. 760, 763, 15 L. Ed. 2d 620 (1966). In the absence of a suspect classification or an intrusion upon a fundamental constitutional right, the challenged classification must bear some rational relationship to legitimate state purposes. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 40, 93 S. Ct. 1278, 1300, 36 L. Ed. 2d 16 (1973); Baehr v. Lewin, 74 Haw. 530, 572, 852 P.2d 44, 64, reconsideration and clarification granted in part, 74 Haw. 650, 875 P.2d 225 (1993). Neither a suspect classification nor a fundamental constitutional right is implicated in this case. "[A]lthough commitment to a mental health institution involves a significant loss of liberty, a person who is found not guilty of a crime by reason of insanity does not have a fundamental right to unrestricted liberty." People v. Wilder, 33 Cal. App. 4th 90, 39 Cal. Rptr. 2d 247, 256 (1995) (citing Addington v. Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 1809, 60 L. Ed. 2d 323 (1979)). As such, the different release procedures for insanity acquittees and civil committees need only be justified by a rational basis. See Jones, 463 U.S. at 362 n. 10, 103 S.Ct. at 3048 n. 10.
In 1982, the legislature determined that it is in the best interest of the public to place the burden on the insanity acquittee to prove that he or she is eligible for release.[7]*614 The legislature's determination is reasonable. Although both the insanity acquittee and the civil committee are committed for the purpose of receiving treatment for their mental illness, see Jones, 463 U.S. at 369, 103 S.Ct. at 3052, there is unquestionably an increased risk to the public associated with the release of an insanity acquittee. Unlike the civil committee, the insanity acquittee has demonstrated his or her dangerousness by engaging in criminal behavior. The insanity acquittee also raised mental illness as a defense to a criminal charge and there has been an adjudication that he or she was legally insane when the criminal act was committed. Therefore, there is a rational basis for treating the insanity acquittee differently from the civil committee at the release proceeding.
Miller's reliance on Foucha for his equal protection argument is also misplaced. In Foucha, a Supreme Court plurality found that the Louisiana statute also violated equal protection. 504 U.S. at 85, 112 S.Ct. at 1788. As in the due process analysis, critical to the plurality's equal protection discussion was the fact that the state had conceded that Foucha was no longer mentally ill. Accordingly, he could no longer be treated as an insanity acquittee. Unlike Foucha, the state in this case contested Miller's claim that he was cured of his mental illness. Therefore, Foucha is also inapplicable to Miller's equal protection argument.
Miller further argues that he must be treated like a civil committee because there was no judicial finding that he committed the offense at the time of his commitment.[8] The statute was amended subsequent to Miller's acquittal by reason of insanity,[9] and the insanity defense was only later explicitly made an affirmative defense.[10]
Miller misconstrues the statute under which he was acquitted. Under the 1976 version of HRS § 704-408, the court entered a judgment of acquittal by reason of insanity only upon the motion of the defendant. "If the defendant maintains that he did not engage in the conduct alleged, or has a defense in addition to that excluding responsibility, he can, of course, withhold the motion and the case will proceed to trial." Commentary to HRS § 704-408 (1976). Therefore, in filing the motion for acquittal by reason of insanity, Miller conceded that he engaged in the criminal behavior. Accordingly, Miller may be treated like any other insanity acquittee, even though he was acquitted under the previous version of HRS § 704-408.
Based on the foregoing, we hold that HRS § 704-415 does not violate equal protection. The state may, consistent with the Equal Protection Clause, place the burden on the insanity acquittee to prove, by a preponderance of the evidence, that he or she should be released.
Just as equal protection does not require that the state provide an insanity acquittee with the same procedures as a civil committee *615 prior to commitment, Jones, 463 U.S. at 367-68, 103 S.Ct. at 3051-52, equal protection does not require the state to provide these different groups with the same procedures prior to release. The differences in release procedures ... reflect the distinctions between insanity acquittees and civil committees.
Hartman, 878 F.Supp. at 1347.
B. The ICA correctly defined a "mental illness" for purposes of a release proceeding as "a physical or mental disease, disorder, or defect, not including abnormality manifested only by repeated penal or otherwise antisocial conduct, that results in the person's lack of substantial capacity either to appreciate the wrongfulness of the person's conduct or to conform the person's conduct to the requirements of law."
The ICA tracked the language of HRS § 704-400, and defined "mental illness" for purposes of a release proceeding as
a physical or mental disease, disorder, or defect, not including abnormality manifested only by repeated penal or otherwise antisocial conduct, that results in the person's lack of substantial capacity either to appreciate the wrongfulness of the person's conduct or to conform the person's conduct to the requirements of law.
Miller argues that this definition is "confusing" and "unworkable." Miller suggests that the term should be defined by psychological or psychiatric experts. The legal definition of the term "mentally ill," however, is not necessarily the same as its definition in psychiatry or psychology. State v. Freitas, 62 Haw. 17, 19, 608 P.2d 408, 410 (1980) (citing State v. Nuetzel, 61 Haw. 531, 606 P.2d 920 (1980)). The ICA's definition accurately defines the legal definition of a "mental illness," not only for the purposes of the initial commitment following an acquittal by reason of insanity, but also for the determination of the insanity acquittee's eligibility for release.
Miller's confusion stems from his misplaced focus on the term "unlawful conduct" in the definition. Miller misinterprets "conduct" to mean "specific conduct." Consequently, Miller maintains that under the ICA's definition, a myriad of the insanity acquittee's incidents of misconduct will be paraded before the court.
First, we see no problem with the circuit court considering the insanity acquittee's past misconduct in determining whether the insanity acquittee is still suffering from a mental illness. The court has discretion to consider all relevant evidence, including expert testimony, the insanity acquittee's misconduct, and observations of the insanity acquittee, in determining whether the insanity acquittee is legally insane.
Second, "conduct," is defined as a "personal behavior; [a] way of acting[.]" The Random House College Dictionary 281 (rev. ed.1979). Therefore, under the ICA's definition, the inquiry is not limited to the insanity acquittee's past unlawful conduct. Rather, the inquiry is on the individual's present ability to appreciate the wrongfulness of his or her acts or to conform his or her behavior to the requirements of law. The focal point of the release proceeding is not on past acts, but on current diagnoses of a present mental illness, disease or disorder that renders the person dangerous.
Accordingly, we hold that the ICA did not err in referring to HRS § 704-400's legal definition of a "mental illness" for purposes of determining an insanity acquittee's eligibility for release.
C. There was sufficient evidence for the circuit court to conclude that Miller had failed to prove, by a preponderance of the evidence, that he was no longer mentally ill or dangerous.
Miller joins the ICA's dissenting opinion in arguing that, regardless of the proper burden of proof, there was insufficient evidence for the trial court to conclude that Miller was unfit for release.
In reviewing sufficiency of the evidence, the appellate court must view the evidence in the light most favorable to the state and determine if there was substantial evidence to support the conclusion of the *616 trier of fact. State v. Pone, 78 Hawai`i 262, 265, 892 P.2d 455, 458 (1995). "Substantial evidence is credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion." Id. Moreover, "it is well-settled that an appellate court will not pass upon issues dependent upon the credibility of witnesses and the weight of the evidence[.]" Tachibana v. State, 79 Hawai`i 226, 239, 900 P.2d 1293, 1306 (1995). Accordingly, the circuit court is "vested with the authority to make the ultimate decision regarding whether the evidence establishes the requisite conditions for release." State v. Dudley, 903 S.W.2d 581, 584 (Mo.App. W.D.1995) (citing State v. Ross, 795 S.W.2d 648, 650 (Mo.App. 1990)).
In the instant case, Dr. Gary Farkas, a court-appointed psychologist, testified that Miller was suffering from sexual sadism, antisocial personality, and psychoactive substance abuse. The circuit court found Dr. Farkas' opinions to be credible and trustworthy. Dr. Farkas also testified that Miller was dangerous. Therefore, there was substantial evidence for the circuit court to conclude that Miller had failed to prove, by a preponderance of the evidence, that he was no longer mentally ill or dangerous.
D. The ICA erred in vacating the circuit court order and remanding the case for further proceedings.
The state alleges that the ICA erred in vacating the circuit court order and remanding for further proceedings. The state argues that the circuit court order denying Miller's petition for release should be affirmed because (1) the circuit court did not clearly err, and (2) if there was error, it was harmless because the state proved its case to a higher level of proof than that required by law.
The ICA explained in its Order Denying Motion for Reconsideration filed on January 27, 1995, that the circuit court's order was vacated and remanded because "the evidentiary hearing was conducted without a clear understanding of which side had to prove what and to what degree." According to the ICA majority opinion, the state has the initial burden at the discharge or conditional release hearing to prove, by a preponderance of the evidence, that the insanity acquittee is suffering from a legal mental illness that renders him or her dangerous to himself or herself or others. The burden then shifts to the insanity acquittee to prove by a preponderance of the evidence that he or she is not suffering from a mental illness or that he or she is no longer dangerous. Because the state did not allege and prove by a preponderance of the evidence that Miller suffers from a legally recognized mental illness, the ICA vacated the circuit court order and remanded this case for further proceedings.
We disagree with the ICA. The applicant's status as an insanity acquittee carries with it a presumption that the insanity acquittee is still suffering from a mental disease, disorder, or defect, and is dangerous. See Jones, 463 U.S. at 366, 103 S.Ct. at 3050. It would be superfluous to require the state to once again allege and prove that the insanity acquittee is suffering from a mental illness and is dangerous. Under our statutory scheme,[11] the burden remains at all times with the insanity acquittee to prove that he or she is eligible for discharge or conditional release.
Having determined that the insanity acquittee has the burden of proof throughout the release proceeding, we next consider whether the circuit court's order should have been vacated or affirmed. At the conclusion of the release hearing, the circuit court found that Miller suffers from antisocial personality disorder and sexual sadism, and that he is dangerous. The circuit court's only error stems from the misapplication of Foucha. Rather than placing the burden on Miller to prove his eligibility for release by a preponderance of the evidence, the circuit court placed the burden on the state to prove by clear and convincing evidence that Miller was not fit to be released. The error obviously did not prejudice Miller, but actually benefitted him. The onus was erroneously placed on the state to prove, by clear and convincing evidence, that Miller was both insane and dangerous. We therefore hold that the circuit *617 court's misapplication of the standard of proof in this case was harmless to Miller.
The ICA also decided to vacate and remand the circuit court's order because the circuit court failed to specifically find that Miller suffered from a legally recognized mental illness. The ICA correctly observes that it is unclear if Miller's diagnoses of antisocial personality disorder constitute a legal mental illness, or an abnormality manifested only by repeated penal or otherwise antisocial conduct. However, we need not examine this issue because the circuit court also found that "Miller currently suffers from a mental disease, disorder or defect of sexual sadism[.]"
III. CONCLUSION
We reverse the ICA and affirm the circuit court order denying Miller's motion for discharge or conditional release from the Hawai`i State Hospital. We further direct that an order depublishing the ICA opinion, pursuant to Rule 2(a) of the Rules of the Intermediate Court of Appeals, be filed concurrently with this opinion.
NOTES
[1] The relevant factual background is set forth in State v. Hernandez, 61 Haw. 475, 605 P.2d 75 (1980).
[2] HRS § 704-415 states:
If the court is satisfied by the report filed pursuant to section 704-414, and such testimony of the reporting examiners as the court deems necessary, that the discharge, conditional release, or modification of conditions of release applied for may be granted without danger to the committed or conditionally released person or to the person or property of others, the court shall grant the application and order the relief. If the court is not so satisfied, it shall promptly order a hearing to determine whether such person may safely be discharged or released. Any such hearing shall be deemed a civil proceeding and the burden shall be on the applicant to prove that the person may safely be released on the conditions applied for or discharged. According to the determination of the court upon the hearing, the person shall thereupon be discharged, or released on such conditions as the court determines to be necessary, or shall be recommitted to the custody of the director of health, subject to discharge or release only in accordance with the procedure prescribed in section 704-412.
Act 232, § 1 shifted the burden from the state to the insanity acquittee to prove that the insanity acquittee may be released safely. 1982 Haw. Sess.L. Act 232, § 1 at 432-33.
[3] Jones expressly did not decide whether the District of Columbia's release provisions, which, like our statute, require the insanity acquittee to prove, by a preponderance of the evidence, that he or she is no longer mentally ill or dangerous, comported with the requirements of due process and equal protection. 463 U.S. at 363 n. 11, 103 S.Ct. at 3049 n. 11.
[4] HRS § 334-60.2 states:
A person may be committed to a psychiatric facility for involuntary hospitalization, if the court finds:
(1) That the person is mentally ill or suffering from substance abuse;
(2) That the person is imminently dangerous to self or others, is gravely disabled or is obviously ill; and
(3) That the person is in need of care or treatment, or both, and there is no suitable alternative available through existing facilities and programs which would be less restrictive than hospitalization.
[5] HRS § 334-60.5(i) states:
(i) If after hearing all relevant evidence, including the result of any diagnostic examination ordered by the court, the court finds that an individual is not a person requiring medical, psychiatric, or other rehabilitative treatment or supervision, the court shall order that the individual be discharged if the individual has been hospitalized prior to the hearing. If the court finds that the criteria for involuntary hospitalization under section 334-60.2(1) has been met beyond a reasonable doubt and that the criteria under sections 334-60.2(2) and 334-60.2(3) have been met by clear and convincing evidence, the court may issue an order to any police officer to deliver the subject to a facility that has agreed to admit the subject as an involuntary patient, or if the subject is already a patient in a psychiatric facility, authorize the facility to retain the patient for treatment for a period of ninety days unless sooner discharged....
[6] See supra note 2.
[7] The House Judiciary Committee stated:
Your Committee finds that the Department of Health and the acquitted person are in the best position to produce medical records and evidence regarding the person's mental status, and that, ... they should therefore bear the burden of proof in determining whether the person should be released.
Hse. Stand. Comm. Rep. No. 465-82, in 1982 House Journal, at 1102. Likewise, the Senate Judiciary Committee stated:
The bill, as amended, would shift the burden of persuasion onto the parties most capable of bearing it, particularly where the institution is the applicant, in addition to resolving all doubts in favor of the public. Your Committee is convinced that where the state has previously shown the person to be dangerous, the burden to show a change of status should be placed on the person(s) alleging that change. Sen. Stand. Comm. Rep. No. 712-82, in 1982 Senate Journal, at 1252.
[8] As Miller points out, he was acquitted and committed in 1978 prior to the amendment of HRS § 704-408. The procedure prior to amendment read:
If the report of the examiners filed pursuant to section 704-404 states that the defendant at the time of the conduct alleged suffered from a physical or mental disease, disorder, or defect which substantially impaired his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law, and the court, after a hearing if a hearing is requested, is satisfied that such impairment was sufficient to exclude responsibility, the court, on motion of the defendant, shall enter judgment of acquittal on the ground of physical or mental disease, disorder, or defect excluding responsibility.
HRS § 704-408 (1976).
[9] After amendment, the statute now reads:
If the report of the examiners filed pursuant to section 704-404, or the report of examiners of the defendant's choice under section 704-409, states that the defendant at the time of the conduct alleged suffered from a physical or mental disease, disorder, or defect which substantially impaired the defendant's capacity to appreciate the wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law, the court shall submit the defense of physical or mental disease, disorder, or defect to the jury or the trier of fact at the trial of the charge against the defendant.
HRS § 704-408 (1993), as revised by 1980 Haw. Sess. L. Act 222, § 1 at 373.
[10] HRS § 704-402(1) (1993) states: "Physical or mental disease, disorder, or defect excluding responsibility is an affirmative defense."
[11] See supra note 2. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375314/ | 461 S.E.2d 163 (1995)
194 W.Va. 657
STATE of West Virginia, Plaintiff Below, Appellee,
v.
Dale Edward GUTHRIE, Defendant Below, Appellant.
No. 22710.
Supreme Court of Appeals of West Virginia.
Submitted May 10, 1995.
Decided July 19, 1995.
Concurring Opinion of Justice Workman, July 21, 1995.
*171 Mary Beth Kershner, Asst. Pros. Atty., Charleston, for appellee.
Stephen D. Warner, Deputy Public Defender, Charleston, for appellant. *164 *165 *166 *167 *168 *169
*170 CLECKLEY, Justice:
The defendant, Dale Edward Guthrie, appeals the January, 1994, jury verdict of the Circuit Court of Kanawha County finding him guilty of first degree murder. In May of 1994, the defendant was sentenced to serve a life sentence with a recommendation of mercy. The defendant cites as error several instructions given to the jury and improper questions and comments made by the prosecutor. Cumulative error is asserted. He also contends there is insufficient evidence to support the verdict.
I.
FACTS AND PROCEDURAL BACKGROUND
It is undisputed that on the evening of February 12, 1993, the defendant removed a knife from his pocket and stabbed his co-worker, Steven Todd Farley, in the neck and killed him. The two men worked together as dishwashers at Danny's Rib House in Nitro and got along well together before this incident. On the night of the killing, the victim, his brother, Tracy Farley, and James Gibson were joking around while working in the kitchen of the restaurant. The victim was poking fun at the defendant who appeared to be in a bad mood. He told the defendant to "lighten up" and snapped him with a dishtowel several times. Apparently, the victim had no idea he was upsetting the defendant very much. The dishtowel flipped the defendant on the nose and he became enraged.
The defendant removed his gloves and started toward the victim. Mr. Farley, still teasing, said: "Ooo, he's taking his gloves off." The defendant then pulled a knife from his pocket and stabbed the victim in the neck. He also stabbed Mr. Farley in the arm as he fell to the floor. Mr. Farley looked up and cried: "Man, I was just kidding around." The defendant responded: "Well, man, you should have never hit me in my face." The police arrived at the restaurant and arrested the defendant. He was given his Miranda rights. The defendant made a statement at the police station and confessed to the killing.[1] The police officers *172 described him as calm and willing to cooperate.
It is also undisputed that the defendant suffers from a host of psychiatric problems. He experiences up to two panic attacks daily and had received treatment for them at the Veterans Administration Hospital in Huntington for more than a year preceding the killing. He suffers from chronic depression (dysthymic disorder), an obsession with his nose (body dysmorphic disorder), and borderline personality disorder. The defendant's father shed some light on his nose fixation. He stated that dozens of times a day the defendant stared in the mirror and turned his head back and forth to look at his nose. His father estimated that 50 percent of the time he observed his son he was looking at his nose. The defendant repeatedly asked for assurances that his nose was not too big. This obsession began when he was approximately seventeen years old. The defendant was twenty-nine years old at the time of trial.
The defendant testified he suffered a panic attack immediately preceding the stabbing. He described the attack as "intense"; he felt a lot of pressure and his heart beat rapidly. In contrast to the boisterous atmosphere in the kitchen that evening, the defendant was quiet and kept to himself. He stated that Mr. Farley kept irritating him that night. The defendant could not understand why Mr. Farley was picking on him because he had never done that before. Even at trial, the defendant did not comprehend his utter overreaction to the situation. In hindsight, the defendant believed the better decision would have been to punch out on his time card and quit over the incident. However, all the witnesses related that the defendant was in no way attacked, as he perceived it, but that Mr. Farley was playing around. The defendant could not bring himself to tell the other workers to leave him alone or inform them about his panic attacks.
In contrast to his written statement, the defendant testified he was unable to recall stabbing the victim. After he was struck in the nose, he stated that he "lost it" and, when he came to himself, he was holding the knife in his hand and Mr. Farley was sinking to the floor.
A psychiatrist, Dr. Sidney Lerfald, testified on behalf of the defendant. He diagnosed the various disorders discussed above. Dr. Lerfald felt the defendant's diagnoses "may have affected his perception somewhat." Nevertheless, it was his opinion the defendant was sane at the time of the offense because he was able to distinguish between right and wrong and could have conformed his actions accordingly.
It was the State's position that the facts supported a first degree murder conviction. At the close of the State's case-in-chief, the defense moved for a directed verdict contending the State failed to present evidence of malice and premeditation. This motion was denied. The defense argued the facts of the case supported voluntary manslaughter or, at worse, second degree murder. The jury returned a verdict finding the defendant guilty of first degree murder with a recommendation of mercy.
II.
DISCUSSION
In his appeal, the defendant raises several assignments of error: (1) whether the evidence was sufficient to support the verdict; (2) whether the trial court erred in giving instructions covering first degree murder; (3) whether the trial court erred in refusing to give defendant's instruction on circumstantial evidence; (4) whether the trial court erred in permitting the prosecution to argue the penalties of each lesser-included offense; (5) whether the trial court erred in permitting the prosecution to inject irrelevant evidence of racial, gender, and political prejudices in the case; and (6) whether reversal is required under the cumulative error rule. At the outset, we find some of the errors asserted by the defendant are without merit. Therefore, our review of this case will be limited to the three areas discussed below.
*173 A.
Sufficiency of the Evidence
First, the defendant strives to persuade us that the record in this case does not support the verdict of guilty of first degree murder beyond a reasonable doubt. Because this exhortation challenges the sufficiency of evidence to support a jury's verdict, our authority to review is limited.
We have not addressed the criminal standard of review concerning the sufficiency of evidence since 1978. Syllabus Point 1 of State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978), states our rule with respect to such a claim:
"In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done."
A year after Starkey was decided, the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979),[2] articulated, at least linguistically, a different standard of review under the United States Constitution.[3] In a sufficiency of the evidence claim under Jackson, an appellate court, while reviewing the record in the light most favorable to the prosecution, must determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573. (Emphasis in original).
After contrasting Starkey and its progeny with the standard of review announced in Jackson, we believe it is desirable to reconcile our differences and to adopt the federal standard of review both as to Jackson generally and as to the standard of review in circumstantial evidence cases.[4] By doing so, however, we continue a highly deferential approach: Appellate courts can reverse only if no rational jury could have found the defendant guilty beyond a reasonable doubt.[5] This standard is a strict one; a *174 defendant must meet a heavy burden to gain reversal because a jury verdict will not be overturned lightly.
Under the Jackson standard, when reviewing a conviction, we may accept any adequate evidence, including circumstantial evidence, as support for the conviction. It is possible that we, as an appellate court, may have reached a different result if we had sat as jurors. However, under Jackson, it does not matter how we might have interpreted or weighed the evidence. Our function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, is sufficient to convince a reasonable person of the defendant's guilt beyond a reasonable doubt. Thus, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt.
In adopting Jackson, we necessarily overturn our long established rule that when the State relies upon circumstantial evidence, in whole or in part, for a court to sustain the verdict all other reasonable hypotheses need be excluded by the prosecution save that of guilt. In State v. Noe, 160 W.Va. 10, 15, 230 S.E.2d 826, 829-30 (1976), we stated:
"[C]ircumstantial evidence will not support a guilty verdict unless the fact of guilt is proved to the exclusion of every reasonable hypothesis of innocence; and circumstances which create a mere suspicion of guilt but do not prove the actual commission of the crime charged, are not sufficient to sustain a conviction."
State v. Robinette, 181 W.Va. 400, 383 S.E.2d 32 (1989); State v. Dobbs, 163 W.Va. 630, 259 S.E.2d 829 (1979). In State v. Frasher, 164 W.Va. 572, 265 S.E.2d 43 (1980), however, we recognized the application of this rule is limited to cases where the State relied wholly upon circumstantial evidence. See Syl. pt. 3, State v. McHenry, 93 W.Va. 396, 117 S.E. 143 (1923).
However, under Jackson, the mere existence of other reasonable hypotheses is not enough to reverse a jury verdict. This new circumstantial evidence rule that we adopt today originated in Holland v. United States, 348 U.S. 121, 139-40, 75 S. Ct. 127, 137-38, 99 L. Ed. 150, 166 (1954), where the United States Supreme Court stated:
"The petitioners assail the refusal of the trial judge to instruct that where the Government's evidence is circumstantial it must be such as to exclude every reasonable hypothesis other that that of guilt. There is some support for this type of instruction in the lower court decisions,... but the better rule is that where the jury is properly instructed on the standards for reasonable doubt, such an additional instruction on circumstantial evidence is confusing and incorrect....
"Circumstantial evidence in this respect is intrinsically no different from testimonial evidence. Admittedly, circumstantial evidence may in some case point to a wholly incorrect result. Yet this is equally true of testimonial evidence. In both instances, a jury is asked to weigh the chances that the evidence correctly points to guilt against the possibility of inaccuracy or ambiguous inference. In both, the jury must use its experience with people and events in weighing the probabilities. If the jury is convinced beyond a reasonable doubt, we can require no more." (Citations omitted).
The circumstantial evidence rule of Holland was reaffirmed in Jackson:
"Only under a theory that the prosecution was under an affirmative duty to rule out every hypothesis except that of guilt beyond a reasonable doubt could this petitioner's challenge be sustained. That theory the Court has rejected in the past.... We decline to adopt it today." 443 U.S. at 326, 99 S.Ct. at 2792-2793, 61 L.Ed.2d at 578. (Citation omitted).
Facing the same dilemma, the Supreme Court of Ohio also abandoned the requirement that in circumstantial evidence cases the prosecution's evidence need exclude all other reasonable hypotheses of innocence. In State v. Jenks, 61 Ohio St. 3d 259, 272, 574 *175 N.E.2d 492, 502 (1991),[6] relying on the language in Holland, the Ohio court stated:
"Circumstantial evidence and direct evidence inherently possess the same probative value. In some instances certain facts can only be established by circumstantial evidence. Hence, we can discern no reason to continue the requirement that circumstantial evidence must be irreconcilable with any reasonable theory of an accused's innocence in order to support a finding of guilt. We agree with those courts that have held that an additional instruction on the sufficiency of circumstantial evidence invites confusion and is unwarranted. Since circumstantial evidence and direct evidence are indistinguishable so far as the jury's fact-finding function is concerned, all that is required of the jury is that it weigh all of the evidence, direct and circumstantial, against the standard of proof beyond a reasonable doubt. Nothing more should be required of a factfinder."
These precedents illuminate our path. We find the logic and analysis of Holland and Jenks to be forceful. Therefore, we hold there should be only one standard of proof in criminal cases and that is proof beyond a reasonable doubt. We start along this route by acknowledging that there is no qualitative difference between direct and circumstantial evidence.[7] Thus, it follows a fortiori that once a proper instruction is given advising the jury as to the State's heavy burden under the guilt beyond a reasonable doubt standard, an additional instruction on circumstantial evidence is no longer required even if the State relies wholly on circumstantial evidence.[8]
In summary, a criminal defendant challenging the sufficiency of the evidence to support a conviction takes on a heavy burden. An appellate court must review all the evidence, whether direct or circumstantial, in the light most favorable to the prosecution and must credit all inferences and credibility assessments that the jury might have drawn in favor of the prosecution. The evidence need not be inconsistent with every conclusion save that of guilt so long as the jury can find guilt beyond a reasonable doubt. As we have cautioned before, appellate review is not a device for this Court to replace a jury's finding with our own conclusion. On review, we will not weigh evidence or determine credibility.[9] Credibility determinations are for a jury and not an appellate court. On appeal, we will not disturb a verdict in a criminal case unless we find that reasonable minds could not have reached the same conclusion. Finally, a jury verdict should be set aside only when the record contains no evidence, *176 regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt. To the extent that our prior cases are inconsistent with our decision announced today, they are expressly overruled. With the scope of our review thus defined, we move to the defendant's claims.
We begin by emphasizing that our review is conducted from a cold appellate transcript and record. For that reason, we must assume that the jury credited all witnesses whose testimony supports the verdict. The essential facts of this casethose that the jury was unquestionably entitled to findare rather simple: The defendant became irritated with the "horseplay" of the victim; when the victim in jest hit the defendant with a wet dishtowel on his nose, the defendant became angry and drew a four-inch-long lock blade knife from his pocket and stabbed the victim fatally in the neck. After the defendant was confronted with his deed, he made a statement that could be interpreted to mean he was not remorseful but, to the contrary, was unconcerned about the welfare of the victim.[10] In addition to the jury hearing testimony from eyewitnesses to the killing, the defendant confessed.
There is no doubt what inferences and findings of fact the jury had to draw in order to convict the defendant of first degree murder. The jury must have believed that: (1) The "horseplay" provocation was not sufficient to justify a deadly attack; (2) the defendant was under no real fear of his own from being attacked; (3) the stabbing was intentional; and (4) the time it took the defendant to open his knife and inflict the mortal wound was sufficient to establish premeditation.[11]
The difficult factual question must have been the mental state of the defendant at the time of the stabbing. The evidence was somewhat conflicting on this point. While the evidence offered by the defendant is not impossible to believe, some of his explanations seem unlikely. Guilt beyond a reasonable doubt cannot be premised on pure conjecture. However, a conjecture consistent with the evidence becomes less and less conjecture and moves gradually toward proof, as alternative innocent explanations are discarded or made less likely. The beyond a reasonable doubt standard does not require the exclusion of every other hypothesis or, for that matter, every other reasonable hypothesis. It is enough if, after considering all the evidence, direct and circumstantial, a reasonable trier of fact could find the evidence established guilt beyond a reasonable doubt.
After reviewing the record, this Court has some doubt as to whether this is a first degree murder case; but, at this point, Jackson's own objective standard turns against the defendant. It makes absolutely no difference whether we on the appellate bench as jurors would have voted to convict the defendant of a lesser-included offense or whether we would have thought there was some reasonable doubt. To the contrary, the question posed by Jackson is whether any rational jury could on the evidence presented think the defendant premeditated and intentionally killed the victim. We do not find the evidence so weak as to render the verdict irrational. A rational jury may well have found the defendant guilty of some lesser-included crime without violating its oath; but, drawing all favorable inferences in favor of the prosecution, a rational jury could also convict. We end by suggesting that variations *177 in human experience suggest it is not unexpected to see a considerable range of reasonable verdicts or estimates about what is likely or unlikely. Thus, we find the evidence sufficient under either the Jackson or the Starkey standard.
B.
Jury Instructions
The principal question before us under this assignment of error is whether our instructions on murder when given together deprive a criminal defendant of due process or are otherwise wrong and confusing. Because the instructions given in this case conform to what we have already approved in this area, the essence of what the defendant asks us to decide is whether our previously approved instructions in first degree murder cases are legally correct. In concluding his presentation, the defendant asks us "to write an opinion which clearly and specifically defines (1) the term wilful, (2) the term deliberate, and (3) the term premeditated."
The jury was charged in this case on the offenses of first and second degree murder and the lesser-included offenses of voluntary and involuntary manslaughter. These instructions were consistent with the law developed in past decisions. The defendant virtually concedes there is no available affirmative defense, other than an argument for the lesser-included offense of voluntary manslaughter. Because of the unavailability of self-defense or insanity, the defendant contends "the precise definitions of these terms is [sic] critical." We will review the various arguments of the defendant in turn.
1. Standard of Review
The extent of the grounds for defense counsel's objection to the challenged instructions is not entirely clear from the record. The objection could be construed as a challenge to the trial court's inclusion of certain instructions as a matter of law. Alternatively, the objection could be read as a challenge merely to the confusing nature of the instructions. The basis of the objection determines the appropriate standard of review.[12] Giving the defendant the benefit of the doubt, we will consider the issue first as a review of the legal propriety of the instructions. In this light, if an objection to a jury instruction is a challenge to a trial court's statement of the legal standard, this Court will exercise de novo review.[13] More recently, we stated in State v. Bradshaw, 193 W.Va. 519, 543, 457 S.E.2d 456, 480 (1995):
"The court's instructions to the jury must be a correct statement of the law and supported by the evidence. Jury instructions are reviewed by determining whether the charge, reviewed as a whole, sufficiently instructed the jury so they understood the issues involved and were not misled by the law. A jury instruction cannot be dissected on appeal; instead, the entire instruction is looked at when determining its accuracy. The trial court, therefore, has broad discretion in formulating its charge to the jury, so long as the charge accurately reflects the law. Deference is given to the [trial] court's discretion concerning the specific wording of the instruction, and the precise extent and character of any specific instruction will be reviewed only for an abuse of discretion."
Under Bradshaw, when an objection to a jury instruction involves the trial court's expression and formulation of the jury charge, this Court will review under an abuse of discretion standard. Therefore, we review jury instructions to determine whether, taken *178 as a whole and in light of the evidence, they mislead the jury or state the law incorrectly to the prejudice of the objecting party.[14] So long as they do not, we review the formulation of the instructions and the choice of language for an abuse of discretion. We will reverse only if the instructions are incorrect as a matter of law or capable of confusing and thereby misleading the jury.
2. Adequacy of Jury Instructions as to the Elements of First Degree Murder
The purpose of instructing the jury is to focus its attention on the essential issues of the case and inform it of the permissible ways in which these issues may be resolved. If instructions are properly delivered, they succinctly and clearly will inform the jury of the vital role it plays and the decisions it must make. As we said in note 20 of State v. Miller, 194 W.Va. at 16, 459 S.E.2d at 127 (1995) "Without [adequate] instructions as to the law, the jury becomes mired in a factual morass, unable to draw the appropriate legal conclusions based on the facts."[15] This is, in essence, what the defendant argues in this case, i.e., the instructions were inadequate and failed to inform the jury of the difference between first and second degree murder.[16] More precisely, the defendant asserts the trial court's instructions regarding the elements of first degree murder were improper because the terms wilful, deliberate, and premeditated were equated with a mere intent to kill.[17]
The jury was instructed that in order to find the defendant guilty of murder it had to find five elements beyond a reasonable doubt: "The Court further instructs the jury that murder in the first degree is when one person kills another person unlawfully, willfully, maliciously, deliberately and premeditatedly[.]"[18] In its effort to define these terms, the trial court gave three instructions.[19] State's Instruction No. 8, commonly referred to as the Clifford instruction, stated:
"The Court instructs the jury that to constitute a willful, deliberate and premeditated killing, it is not necessary that the intention to kill should exist for any particular length of time prior to the actual killing; it is only necessary that such intention should have come into existence for the first time at the time of such killing, or at any time previously."
See State v. Clifford, 59 W.Va. 1, 52 S.E. 981 (1906). State's Instruction No. 10 stated:
*179 "The Court instructs the jury that in order to constitute a `premeditated' murder an intent to kill need exist only for an instant." State's Instruction No. 12 stated: "The Court instructs the jury that what is meant by the language willful, deliberate and premeditated is that the killing be intentional." State's Instruction Nos. 10 and 12 are commonly referred to as Schroder instructions. See State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982).
The linchpin of the problems that flow from these instructions is the failure adequately to inform the jury of the difference between first and second degree murder. Of particular concern is the lack of guidance to the jury as to what constitutes premeditation and the manner in which the instructions infuse premeditation with the intent to kill.
At common law, murder was defined as the unlawful killing of another human being with "malice aforethought." Because the common law definition of "malice aforethought" was extremely flexible, "it became over time an `arbitrary symbol' used by trial judges to signify any of the number of mental states deemed sufficient to support liability for murder." John S. Baker, Jr., Daniel H. Benson, Robert Force, & B.J. George, Jr., Hall's Criminal Law 268-69 (5th ed. 1993). Nevertheless, most American jurisdictions maintained a law of murder built around common law classifications. Pertinent to this case, the most significant departure from the common law came on April 22, 1794, when the Pennsylvania Legislature enacted a statute dividing murder into degrees.[20] It decreed that the death penalty would be inflicted only for first degree murder. West Virginia, like most other states, followed the Pennsylvania practice. Indeed, the 1794 Pennsylvania statute is nearly identical to W.Va.Code, 61-2-1 (1991), our murder statute.[21]
The West Virginia Legislature chose not to define the term "premeditated" in W.Va. Code, 61-2-1. As a result, this Court consistently has resorted to the common law. See State v. Clifford, supra. See also State v. Belcher, 161 W.Va. 660, 245 S.E .2d 161 (1978); State v. Shaffer, 138 W.Va. 197, 75 S.E.2d 217 (1953); State v. Painter, 135 W.Va. 106, 63 S.E.2d 86 (1950); State v. Burdette, 135 W.Va. 312, 63 S.E.2d 69 (1950); State v. Porter, 98 W.Va. 390, 127 S.E. 386 (1925); State v. Wilson, 95 W.Va. 525, 121 S.E. 726 (1924).
In addition to Clifford, there are several cases that have made specific attempts to further define premeditation. In State v. Dodds, 54 W.Va. 289, 297-98, 46 S.E. 228, 231 (1903), we said:
"`The next ingredient of the crime is that it must be deliberate. To deliberate is to reflect, with a view to make a choice. If a person reflects, though but for a moment before he acts, it is unquestionably a sufficient deliberation within the meaning of the statute. The last requisite is that the killing must be premeditated. To premeditate is to think of a matter before it is executed. The word, premeditated, would seem to imply something more than deliberate, and may mean that the party not only deliberated, but had formed in his mind the plan of destruction.'" (Emphasis added to last sentence).
In State v. Hatfield, 169 W.Va. 191, 286 S.E .2d 402 (1982), we made an effort to distinguish the degrees of murder by indicating that the elements that separate first degree murder and second degree murder are deliberation and premeditation in addition to *180 the formation of the specific intent to kill. Deliberation and premeditation mean to reflect upon the intent to kill and make a deliberate choice to carry it out. Although no particular amount of time is required, there must be at least a sufficient period to permit the accused to actually consider in his or her mind the plan to kill. In this sense, murder in the first degree is a calculated killing as opposed to a spontaneous event. After noting the above language in Dodds, Justice Miller stated in Hatfield:
"The terms `deliberate' and `premeditated' have not often been defined in our cases but do carry a certain degree of definitional overlap. This point is made in LaFave & Scott, Criminal Law § 73, at 563 (1972 ed.):
"`To be guilty of this form of first degree murder the defendant must not only intend to kill but in addition he must premeditate the killing and deliberate about it. It is not easy to give a meaningful definition of the words "premeditate" and "deliberate" as they are used in connection with first degree murder. Perhaps the best that can be said of "deliberation" is that it requires a cool mind that is capable of reflection, and of "premeditation" that it requires that the one with the cool mind did in fact reflect, at least for a short period of time before his act of killing.' (Footnotes omitted)
"But, as LaFave & Scott also point out: `The intention may be finally formed only as a conclusion of prior premeditation and deliberation.' Id." 169 W.Va. at 200-01, 286 S.E.2d at 409.
Although we approved the jury instruction from Clifford that "it is only necessary that the intention to kill should have come into existence for the first time at the time of the killing" in Hatfield, Justice Miller explained this instruction was merely intended to convey the notion that it is possible for deliberation and premeditation to precede the formation of the actual intent to kill. Justice Miller further stated:
"Here, the Clifford instruction refers primarily to the intention to kill not existing for any particular time and arising at the moment of the killing. This means the specific intent to kill and is to be distinguished from the elements of deliberation and premeditation which are the state of mind conveying the characteristics of reflection." 169 W.Va. at 201, 286 S.E.2d at 409.
This is the meaning of the so-called Clifford instruction and, when it is given, its significance should be explained to the jury.
The source of the problem in the present case stems from language in State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982). While this Court elaborated on the meaning of premeditation, we gave it a different definition than that approved in Hatfield and Dodds. In Schrader, we stated:
"Hence, when the West Virginia Legislature adopted the Virginia murder statute in 1868, the meaning of `premeditated' as used in the statute was essentially `knowing' and `intentional.' Since then, courts have consistently recognized that the mental process necessary to constitute `willful, deliberate and premeditated' murder can be accomplished very quickly or even in the proverbial `twinkling of an eye.' ... The achievement of a, mental state contemplated in a statute such as ours can immediately precede the act of killing. Hence, what is really meant by the language `willful, deliberate and premeditated' in W.Va. Code, 61-2-1 [1923] is that the killing be intentional" 172 W.Va. at 6, 302 S.E.2d at 75. (Emphasis added).
The language emphasized above supplied the legal authority and basis for State's Instruction Nos. 10 and 12.
While many jurisdictions do not favor the distinction between first and second degree murder,[22] given the doctrine of separation of *181 powers, we do not have the judicial prerogative to abolish the distinction between first and second degree murder and rewrite the law of homicide for West Virginia; unless, of course, we were to declare this classification a violation of due process and force the Legislature to rewrite the lawa bold stroke that we refuse to do. On the other hand, we believe within the parameters of our current homicide statutes the Schroder definition of premeditation and deliberation is confusing, if not meaningless. To allow the State to prove premeditation and deliberation by only showing that the intention came "into existence for the first time at the time of such killing" completely eliminates the distinction between the two degrees of murder. Hence, we feel compelled in this case to attempt to make the dichotomy meaningful by making some modifications to our homicide common law.
Premeditation and deliberation should be defined in a more careful, but still general way to give juries both guidance and reasonable discretion. Although premeditation and deliberation are not measured by any particular period of time, there must be some period between the formation of the intent to kill and the actual killing, which indicates the killing is by prior calculation and design. As suggested by the dissenting opinion in Green v. State, 1 Tenn.Crim.App. 719, 735, 450 S.W.2d 27, 34 (1970): "True, it is not necessary to prove premeditation existed for any definite period of time. But it is necessary to prove that it did exist." This means there must be an opportunity for some reflection on the intention to kill after it is formed. The accused must kill purposely after contemplating the intent to kill. Although an elaborate plan or scheme to take life is not required, our Schroder`s notion of instantaneous premeditation and momentary deliberation is not satisfactory for proof of first degree murder. In Bullock v. United States, 74 App.D.C. 220, 221, 122 F.2d 213, 214 (1941), cert. denied, 317 U.S. 627, 63 S. Ct. 39, 87 L. Ed. 507 (1942), the court discussed the need to have some appreciable time elapse between the intent to kill and the killing:
"To speak of premeditation and deliberation which are instantaneous, or which take no appreciable time, is a contradiction in terms. It deprives the statutory requirement of all meaning and destroys the statutory distinction between first and second degree murder. At common law there were no degrees of murder. If the accused had no overwhelming provocation to kill, he was equally guilty whether he carried out his murderous intent at once or after mature reflection. Statutes like ours, which distinguish deliberate and premeditated murder from other murder, reflect a belief that one who meditates an intent to kill and then deliberately executes it is more dangerous, more culpable or less capable of reformation than one who kills on sudden impulse; or that the prospect of the death penalty is more likely to deter men from deliberate than from impulsive murder. The deliberate killer is guilty of first degree murder; the impulsive killer is not. The quoted part of the charge was therefore erroneous."
Thus, there must be some evidence that the defendant considered and weighed his decision to kill in order for the State to establish premeditation and deliberation under our first degree murder statute.[23] This is what *182 is meant by a ruthless, cold-blooded, calculating killing. Any other intentional killing, by its spontaneous and nonreflective nature, is second degree murder.[24]
We are asked to overrule the language appearing in Schrader, as reflected in State's Instruction No. 8 and, particularly, the language of State's Instruction Nos. 10 and 12, so that there might be some clarity and coherence to the law of homicide. We naturally are reluctant to overrule prior decisions of this Court. No court likes to acknowledge a mistake, and adherence to precedent is based on deeper reasons than amour propre; rather, it is in fact a cornerstone of Anglo-American adjudication. Additionally, the more recent a precedent, the more authoritative it is because there is less likelihood of significantly changed circumstances that would provide a "special justification" for reassessing the soundness of the precedent. Nevertheless, the circumstances of this case are different, and we agree with the defendant that the language in our opinion in Schrader virtually eliminates the distinction in this State between first and second degree murder, equating as it does premeditation with the formation of the intent to kill. We have tried to clarify the difference between the degrees of murder in the preceding paragraphs. We find that Schrader wrongly equated premeditation with intent to kill and in so doing undermined the more meaningful language of Hatfield and Dodds. To the extent that the Schrader opinion is inconsistent with our holding today, it is overruled. In overruling Schrader, we do not take lightly the policy underlying stare decisis. However, we believe:
"Remaining true to an `intrinsically sounder' doctrine established in prior cases better serves the values of stare decisis than would following a more recently decided case inconsistent with the decisions that came before it; the latter course would simply compound the recent error and would likely make the unjustified break from previously established doctrine complete. In such a situation `special justification' exists to depart from the recently decided case." Adarand Constr., Inc. v. Pena, ___ U.S. ___, ___, 115 S. Ct. 2097, 2115, 132 L. Ed. 2d 158, 185 (1995).
Overturning precedent with a long standing in the law that has become an integrated fabric in the law is different. Therefore, we leave in tact the Clifford rule as amplified by Hatfield. So by refusing to follow Schroder but continuing Clifford and Hatfield, "we do not depart from the fabric of the law; we restore it." Adarand Constructors, Inc. v. Pena, ___ U.S. at ___, 115 S.Ct. at 2116, 132 L.Ed.2d at ___.
Finally, we feel obligated to discuss what instruction defining premeditation is now acceptable. What came about as a mere suggestion in Hatfield, we now approve as a proper instruction under today's decision. Note 7 of Hatfield, 169 W.Va. at 202, 286 S.E.2d at 410, states:
"A more appropriate instruction for first degree murder, paraphrased from 2 Devitt and Blackmar, Federal Jury Practice and Instructions § 41.03, at 214, is:
"`The jury is instructed that murder in the first degree consists of an intentional, deliberate and premeditated killing which means that the killing is done after a period of time for prior consideration. The duration of that period cannot be arbitrarily fixed. The time in which to form a deliberate and premeditated design varies as the minds and temperaments of people differ, and according to the circumstances in which they may be placed. Any interval of time between the forming of the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully conscious of what he *183 intended, is sufficient to support a conviction for first degree murder.'"
Having approved a new instruction in the area of homicide law, we do not believe today's decision should be applied retroactively. Applying the test articulated in Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), a "new rule" should not be given retroactive effect. More precisely, the rules we announce are "not dictated by precedent existing at the time" of our opinion. Gilmore v. Taylor, ___ U.S. ___, ___, 113 S. Ct. 2112, 2116, 124 L. Ed. 2d 306, 316 (1993), quoting Teague, 489 U.S. at 301, 109 S.Ct. at 1070, 103 L.Ed.2d at 349. (Emphasis in original). Nevertheless, we need not apply the "new rule" to the defendant's case on this appeal because this case is being reversed on other grounds. The defendant is entitled, however, to the benefit of this decision on remand.
As a more general matter, the failure to follow precisely what we are now prescribing could, under certain circumstances, be harmless error. We note that the trial court continuously reinforced the notions that the burden of proof in a criminal case is always upon the prosecution; that the defendant is protected by a presumption of innocence; and that, unless he is proven guilty beyond a reasonable doubt, the defendant must be acquitted. In addition, the trial court instructed the jury to consider the charge as whole rather than singling out any one instruction. These actions reinforce our belief that it is unlikely the defendant was prejudiced to the point of reversible error.
C.
Misconduct of the Prosecuting Attorney
We turn next to the defendant's argument that the prosecutor prejudiced his right to a fair trial when he was permitted to argue the penalties of the different offenses and to cross-examine the defendant's father on the defendant's racial and gender biases and his political beliefs. Because we conclude the prosecutor's remarks and his cross-examination were improper, we also will go on to weigh the error under our harmless error standard. We look at each of the defendant's contentions separately because our review for harmless error is fact specific.[25]See McDougal v. McCammon, 193 W.Va. 229, 239, 455 S.E .2d 788, 798 (1995).
1. Disclosing the Possible Penalties
During the rebuttal portion of closing arguments, the prosecuting attorney informed the jury that the punishment for second degree murder is five to eighteen years imprisonment; a voluntary manslaughter conviction carries a punishment of one to five years in the penitentiary; and involuntary manslaughter could lead to imprisonment for up to a year. He also told the jury that should the defendant be convicted of first degree murder, he would be eligible for parole in ten years, but he would not necessarily receive parole at that time. Defense counsel's timely objection to these comments was overruled.
The defendant asserts that such practice rises to the level of constitutional error because the jury may have determined the degree of homicide by what it believed the appropriate punishment to be. The State contends the prosecuting attorney may inform the jury of the applicable penalties for the possible convictions as long as a correct statement of the law is made.
Both parties to this appeal seem to acknowledge that our cases are not entirely *184 consistent in reference to the relevance of penalty evidence and penalty comment during closing arguments. We believe our prior rulings can be placed into two broad categories. The first category concerns cases involving a recommendation of mercy. We have said, for example, in first degree murder cases, it is the mandatory duty of the trial court to instruct the jury that it may add a recommendation of mercy to such verdict and to explain to the jury the legal implications of such a recommendation. To this extent, a prosecuting attorney is permitted to comment on the significance of this recommendation and to make appropriate argument against such a recommendation. However, even here, we limit the scope of the permissible argument: The prosecuting attorney cannot argue that a recommendation of mercy would enable the defendant to receive parole in ten years. State v. Lindsey, 160 W.Va. 284, 233 S.E.2d 734 (1977). Nor have we authorized the prosecutor to argue beyond the first degree murder penalties. Of course, in the case sub judice, the prosecuting attorney did not violate this rule in that he stated the defendant may be eligible for parole in ten years should he be convicted of first degree murder with a recommendation of mercy. In fact, the jury was properly instructed by State's Instruction No. 11 that stated, in part:
"[F]irst degree [murder] is punishable by confinement in the penitentiary of this state for life and the accused shall not be eligible for parole except and unless the jury shall add its recommendation of mercy in their verdict and if such recommendation is added to their verdict, such person shall then be eligible for consideration for parole after serving a minimum of ten years of such sentence, such eligibility in no way guaranteeing immediate release."
The second category concerns the mentioning of penalties in cases other than those involving recommendations of mercy. The issue we must address is whether the prosecuting attorney may inform the jury of the appropriate penalties for convictions when, as in this case, the jury must choose between varying degrees of an offense. Our cases generally hold that such penalty information is irrelevant. Directly addressing the issue in State v. Parks, 161 W.Va. 511, 516, 243 S.E.2d 848, 852 (1978), we stated that placing sentencing matters before the jury is "an issue prejudicial to the fact-finding function of the jury." The right to fix punishment rests exclusively within the discretion of the trial court, and neither party has the right outside of "capital" cases to have the jury informed of the possible penalties. See generally State v. Massey, 178 W.Va. 427, 432 n. 2, 359 S.E.2d 865, 870 n. 2 (1987). This is so because a jury is not permitted to concern itself with sentencing matters outside of a recommendation of mercy. See State v. Lindsey, supra (jury should not concern itself with irrelevant matters such as parole); State v. Loveless, 139 W.Va. 454, 80 S.E.2d 442 (1954). Therefore, we hold that outside the context of cases involving a recommendation of mercy, it is improper for either party to refer to the sentencing possibilities of the trial court should certain verdicts be found or to refer to the ability of the trial court to place a defendant on probation.[26]See U.S. v. Meredith, 824 F.2d 1418, 1429 (4th Cir.), cert. denied, 484 U.S. 969, 108 S. Ct. 465, 98 L. Ed. 2d 404 (1987) and 485 U.S. 991, 108 S. Ct. 1297, 99 L. Ed. 2d 507 (1988).
The universal rule is that punishment is the trial court's role and is not a proper matter for the jury. The jury's sole function in a criminal case is to pass on whether a defendant is guilty as charged based on the evidence presented at trial and the law as given by the jury instructions. See Chambers v. State, 337 Md. 44, 650 A.2d 727 (1994). The applicable punishments for the lesser-included offenses are not elements of the crime; therefore, the question of what punishment the defendant could receive if convicted is not a proper matter for closing argument. See Rowe v. Indiana, 250 Ind. 547, 237 N.E.2d 576 (1968).[27]
*185 Both parties cite State v. Myers, 159 W.Va. 353, 222 S.E.2d 300 (1976), where we stated it was not error for the prosecuting attorney to say the defendant could be eligible for parole after five years if convicted of second degree murder. The State relies heavily upon Myers, at least to the extent that it creates a vacillation in our decisions. We do not find that Myers is persuasive authority to support the arguments of the State.[28]
We believe that any substantial reliance on Myers is misplaced. First, it appears that the language used in Myers was nothing but a means of distinguishing between what the Court considered the least offensive as opposed to the more egregious remark:
"In view of the fact that this Court finds no error in an instruction which embodies in statutory language the penalties which will be imposed by law for the various offenses of which a defendant may be found guilty, such ruling by the trial court was probably technically correct. The same cannot be said with reference to the court's treatment of the Prosecutor's remark:
"`When they talk about keeping somebody in Weston Hospital or even at the V.A., we know they get out right and left.'"
159 W.Va. at 362, 222 S.E.2d at 306.
The bottom line is that the conviction in Myers was reversed because the prosecuting attorney argued matters to the jury that were irrelevant for its consideration.[29] In short, we believe that the Court's discussion on this point in Myers was purely an anomaly. It is doubtful the Court would have reached this same conclusion had that issue alone been its focus, and we refuse to do so here.
Likewise, Standard 3-5.8(d) of the American Bar Association Standards for Criminal Justice (2nd ed. 1980) explains: "The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury's verdict." Standard 3-5.9 further advises: "It is unprofessional conduct for the prosecutor to intentionally to refer to or argue on the basis of facts outside the record."
It is quite obvious that the prosecution improperly injected "issues broader than the guilt or innocence" of the defendant and argued "facts outside the record." To do either is improper and, to the extent the decision in Myers is inconsistent with our holding, it is expressly overruled. To rule otherwise would permit a jury to base its finding as to the degree of guilt on irrelevant factors.
2. Questions Relating to the Defendant's Prejudices
During the cross-examination of the defendant's father, the prosecuting attorney inquired about prejudicial statements allegedly made by the defendant. Bobby Lee Guthrie was asked if the defendant told him that men were better than women and women should stay at home, that whites were better than blacks, and whether the two of them discussed the Ku Klux Klan. Defense counsel objected to this line of questioning because of its highly prejudicial effect, particularly with *186 the women on the jury and the one African-American juror.
The State asserted it was proper cross-examination because the defense opened the door when it portrayed the defendant as a good, quiet, Bible-reading man when, in fact, he had made some bigoted comments to the State's psychiatrist, Dr. Ralph Smith.[30] The State also argues the defendant was not prejudiced by these few questions concerning his views because Dr. Smith was not called as a witness and this issue was not raised further.[31] Nevertheless, a curative instruction was not requested by either party and none was given.
Although most rulings of a trial court regarding the admission of evidence are reviewed under an abuse of discretion standard, see McDougal v. McCammon, supra, an appellate court reviews de novo the legal analysis underlying a trial court's decision. See Hottle v. Beech Aircraft Corp., 47 F.3d 106 (4th Cir.1995). A trial court's discretion is not unbounded, and the scope of the trial court's discretion varies according to the issue before it. In considering the admissibility *187 of impeachment evidence, we apply the same standards of relevance that we apply to other questions of admissibility.
Appellate courts give strict scrutiny to cases involving the alleged wrongful injection of race, gender, or religion in criminal cases. Where these issues are wrongfully injected, reversal is usually the result. See Miller v. N.C., 583 F.2d 701 (4th Cir.1978); Weddington v. State, 545 A.2d 607 (Del.Sup. 1988). In State v. Bennett, 181 W.Va. 269, 274, 382 S.E.2d 322, 327 (1989), this Court condemned the practice of attorneys making unnecessary racial remarks in the presence of the jury:
"Although Mr. Perrill referred to Dr. Arrieta as `the colored lady' only once, it should not have been said for the obvious reason that it may be construed as an appeal to prejudice. `To raise the issue of race is to draw the jury's attention to a characteristic that the Constitution generally commands us to ignore. Even a reference that is not derogatory may carry impermissible connotations, or may trigger prejudiced responses in the listeners that the speaker might neither have predicted nor intended.' McFarland v. Smith, 611 F.2d 414, 417 (2d Cir.1979)."
The same rationale applies to the prosecuting attorney drawing the jury's attention to racial, gender, and political comments made by the defendant which in no way relate to the crime.[32]
Under the first step of our inquiry, we must determine whether the evidence is relevant to an issue of consequence. Where race, gender, or religion is a relevant factor in the case, its admission is not prohibited unless the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. See Olden v. Kentucky, 488 U.S. 227, 109 S. Ct. 480, 102 L. Ed. 2d 513 (1988); State v. Crockett, 164 W.Va. 435, 265 S.E.2d 268 (1979). Normally, in order to be probative, evidence must be "relevant" under Rule 401, that is, it must tend to make an issue in the case more or less likely than would be so without the evidence. Other factors that bear on the probative value are the importance of the issue and the force of the evidence. 22 C. Wright & K. Graham, Federal Practice and Procedure § 5214 (1978). In this case, the State's most difficult problem throughout this appeal is explaining how this evidence is relevant to an issue of consequence in the case.
The prosecution argues that such evidence is relevant as impeachment evidence in light of the father's comments on direct examination when he portrayed the defendant as a good, quiet, Bible-reading man. In analyzing the contentions of the parties, we first observe that only the evidence of the defendant's quiet and peaceful character was admissible under Rule 404(a)(1) of the West Virginia Rules of Evidence.[33] Quite clearly, evidence that the defendant was a "Bible-reading man" and his religious beliefs are not admissible under the same rule because they simply do not concern a pertinent character trait. See State v. Marrs, 180 W.Va. 693, 379 S.E.2d 497 (1989) (defendant's reputation for not selling drugs is inadmissible). See also W.Va.R.Evid. 610.[34] This issue is in this case only because *188 the prosecution chose not to object to the inadmissible evidence.[35] Thus, we must decide whether the prosecution should have been permitted to rebut this evidence under our curative admissibility rule. We hold the prosecution evidence was barred under the doctrine of curative admissibility and Rule 403.
The doctrine of curative admissibility is to be evaluated under our relevancy rules. To some extent, this rule is a restatement of the general rule that when a party opens up a subject, there can be no objection if the opposing party introduces evidence on the same subject. The most significant feature of the curative admissibility rule, however, is that it allows a party to present otherwise inadmissible evidence on an evidentiary point where an opponent has "opened the door" by introducing similarly inadmissible evidence on the same point. Perhaps, the clearest statement of curative admissibility came in Danielson v. Hanford, 352 N.W.2d 758, 761 (Minn.App.1984), where the Minnesota court, quoting from Busch v. Busch Construction, Inc., 262 N.W.2d 377, 387 (Minn.1977), stated:
"In order to be entitled as a matter of right to present rebutting evidence on an evidentiary fact: (a) the original evidence must be inadmissible and prejudicial, (b) the rebuttal evidence must be similarly inadmissible, and (c) the rebuttal evidence must be limited to the same evidentiary fact as the original inadmissible evidence."[36] (Footnote omitted).
We believe the prosecution faces two hurdles in this case. First, was the evidence offered by the defendant prejudicial? This case was not one in which Bible reading had any relevancy. The defendant confessed to the killing and there were eyewitnesses. The only issue that the jury seriously had to consider was the degree of guilt. Certainly, whether the defendant read the Bible could have little impact on the degree of homicide. Second, the prosecution sought to go far beyond the evidence originally offered by the defendant. The fact that the defendant read the Bible and walked through the woods is hardly related to his affinity for Adolph Hitler, his dislike of African-Americans, and his chauvinistic feelings toward women.
The second inquiry under Rule 403 is whether the probity of the objected to evidence was substantially outweighed by its prejudice. In this regard, the defendant argues that even if the evidence had some probative value, it is clearly inadmissible under Rule 403. In State v. Derr, 192 W.Va. 165, 178, 451 S.E.2d 731, 744 (1994), we stated "that although Rules 401 and 402 strongly encourage the admission of as much evidence as possible, Rule 403 restricts this liberal policy by requiring a balancing of interests to determine whether logically relevant is legally relevant evidence." Rule 403 calls upon the trial court to weigh the probative evidence against the harm that it may causeunfair prejudice, confusion, misleading the jury, delay, or repetitionand to exclude the evidence if the probative value is "substantially outweighed" by the harm.
Thus, to perform the Rule 403 balance, we must assess the degree of probity of the evidence, which, in turn, depends on its relation to the evidence and strategy presented at trial in general. The mission of Rule 403 is to eliminate the obvious instance *189 in which a jury will convict because its passions are aroused rather than motivated by the persuasive force of the probative evidence. Stated another way, the concern is with any pronounced tendency of evidence to lead the jury, often for emotional reasons, to desire to convict a defendant for reasons other than the defendant's guilt. In United States v. Ham, 998 F.2d 1247, 1252 (4th Cir.1993), the court stated:
"We have defined undue prejudice as `"a genuine risk that the emotions of the jury will be excited to irrational behavior, and that this risk is disproportionate to the probative value of the offered evidence.'"...
"... When evidence of a defendant's involvement in several of these activities is presented to the jury, the risk of unfair prejudice is compounded. In such a case, we fear that jurors will convict a defendant based on the jurors' disdain or their belief that the defendant's prior bad acts make guilt more likely. Furthermore, we are especially sensitive to prejudice in a trial where defendants are members of an unpopular religion." (Citations omitted).
The prejudice that the trial court must assess is the prejudice that "lies in the danger of jury misuse of the evidence." U.S. v. Brown, 490 F.2d 758, 764 (D.C.Cir.1973). (Emphasis in original).[37]
Prejudice is not the only threat. There is also a potential for confusing and misleading the jury. Quite apart from prejudice, there is a risk that undue emphasis on the defendant's racial, gender, and/or political views could direct the jury's attention from whether the defendant inflicted the fatal wound because of the "horseplay" or whether the defendant believed the victim was a threat to the defendant's philosophy or way of life. This deflection might seem like a minor matter easy to guard against in the instructions so far as confusion is concerned, but, when coupled with its potential for unfair prejudice, this evidence becomes overwhelmingly dangerous. Even if we concede that this evidence had some relevance on the impeachment issue, the risk of undue prejudice and the risk of confusion are alone enough to justify setting aside this verdict.
Our discussion thus far has not touched on the prosecution's need for this evidence and the closely related question of alternatives available. In note 15 of Derr, 192 W.Va. at 178, 451 S.E.2d at 744, we stated that "[o]ne important factor under Rule 403 is the prosecutor's need for the proffered evidence." Here, as discussed above, the evidence of the defendant's prejudices was not only unnecessary, but was not very helpful from a probative value standpoint. In applying Rule 403, it is pertinent whether a litigant has some alternative way to deal with the evidence that it claims the need to rebut that would involve a lesser risk of prejudice and confusion. 22 Wright & Graham, supra, § 5214 (citing cases). Obviously, we do not know what other means the prosecution had to prove the defendant was not a Bible reader or a person of peaceful character. What is important to us, however, is that the trial court failed to ascertain alternatives to this evidence before permitting the prosecution to use it. What we do know is that this issue arose because the prosecution did not object to some clearly irrelevant evidence. Nor did the trial court consider an instruction to the jury advising it to disregard all evidence of the defendant that the prosecution claimed needed rebutting. These failures strengthen our determination to declare error in this case.
To achieve substantial justice in our courts, a trial judge must not permit a jury's finding to be affected or decided on account of racial or gender bias and whether one holds an unpopular political belief or opinion. If Rule 403 is ever to have a significant and effective role in our trial courts, it must be used to bar the admission of this highly prejudicial evidence. See, e.g., U.S. v. *190 Kallin, 50 F.3d 689 (9th Cir.1995) (reversible error under Rule 403 to allow witness to testify to defendant's dislike for Mexicans). While due process does not confer upon a criminal defendant a right to an error-free trial, see U.S. v. Hasting, 461 U.S. 499, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983),[38] it unquestionably guarantees a fundamental right to a fair trial. See Lutwak v. U.S., 344 U.S. 604, 73 S. Ct. 481, 97 L. Ed. 593 (1953). We emphasize that it is a fundamental guarantee under the Due Process Clause of Section 10 of Article III of the West Virginia Constitution that these factorsrace, religion, gender, political ideologywhen prohibited by our laws shall not play any role in our system of criminal justice.
3. Harmless Error Standard
Prosecutorial misconduct does not always warrant the granting of a mistrial or a new trial. The rule in West Virginia since time immemorial has been that a conviction will not be set aside because of improper remarks and conduct of the prosecution in the presence of a jury which do not clearly prejudice a defendant or result in manifest injustice. State v. Beckett, 172 W.Va. 817, 310 S.E.2d 883 (1983); State v. Buck, 170 W.Va. 428, 294 S.E .2d 281 (1982). Similarly, the United States Supreme Court has acknowledged that given "the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and that the Constitution does not guarantee such a trial." U.S. v. Hasting, 461 U.S. at 508-09, 103 S.Ct. at 1980, 76 L.Ed.2d at 106. Thus, the Supreme Court has held that an appellate court should not exercise its "[s]upervisory power to reverse a conviction... when the error to which it is addressed is harmless since, by definition, the conviction would have been obtained notwithstanding the asserted error." Hasting, 461 U.S. at 506, 103 S.Ct. at 1979, 76 L.Ed.2d at 104.
The harmless error doctrine requires this Court to consider the error in light of the record as a whole, but the standard of review in determining whether an error is harmless depends on whether the error was constitutional or nonconstitutional. It is also necessary for us to distinguish between an error resulting from the admission of evidence and other trial error. As to error not involving the erroneous admission of evidence, we have held that nonconstitutional error is harmless when it is highly probable the error did not contribute to the judgment. State v. Hobbs, 178 W.Va. 128, 358 S.E.2d 212 (1987) (prosecutor's remarks although improper must be sufficiently prejudicial to warrant reversal); State v. Brewster, 164 W.Va. 173, 261 S.E.2d 77 (1979). On the other hand, when dealing with the wrongful admission of evidence, we have stated that the appropriate test for harmlessness articulated by this Court[39] is whether we can say with fair assurance, after stripping the erroneous evidence from the whole, that the remaining evidence was independently sufficient to support the verdict and the jury was not substantially swayed by the error.
In determining prejudice, we consider the scope of the objectionable comments and their relationship to the entire proceedings, the ameliorative effect of any curative instruction given or that could have been given but was not asked for, and the strength of the evidence supporting the defendant's conviction. See McDougal v. McCammon, supra. As the United States Supreme Court explained "a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments [or conduct] standing alone, for the statements or conduct must be viewed in context[.]" U.S. v. Young, 470 U.S. 1, 11, 105 S. Ct. 1038, 1044, 84 L. Ed. 2d 1, 9-10, on remand, 758 F.2d 514, on reconsideration, 767 F.2d 737 (1985) (finding harmless error where the prosecutor made an *191 improper statement that the defendant was guilty and urged the jury to "do its job").
Notwithstanding the above discussion, this Court is obligated to see that the guarantee of a fair trial under our Constitution is honored. Thus, only where there is a high probability that an error did not contribute to the criminal conviction will we affirm. "High probability" requires that this Court possess a "sure conviction that the error did not prejudice the defendant." U.S. v. Jannotti, 729 F.2d 213, 220 n. 2 (3rd Cir.), cert. denied, 469 U.S. 880, 105 S. Ct. 243, 83 L. Ed. 2d 182 (1984). Indeed, the United States Supreme Court recently stated that where there is "`grave doubt' regarding the harmlessness of errors affecting substantial rights," reversal is required. O'Neal v. McAninch, ___ U.S. ___, ___, 115 S. Ct. 992, 997, 130 L. Ed. 2d 947, 956 (1995) ("grave doubt" about harmlessness of the error to be resolved in favor of the defendant).[40] Therefore, we will reverse if we conclude that the prosecutor's conduct and remarks, taken in the context of the trial as a whole, prejudiced the defendant.
In this case, we have "grave doubt" as to whether the errors can be considered harmless. The primary issue in this case was not one of guilt or innocence, but was the degree of homicide for which the defendant would ultimately be convicted. To influence the jury's evaluation and decision, the prosecution was permitted to suggest that any conviction less than first degree murder would permit the defendant to be released in five years and the defendant was a racist, a sexist, a Nazi, and a KKK sympathizer.[41] These errors in combination compel setting aside the verdict, and we do not hesitate to do so on these grounds alone. In fact, it is difficult to imagine any evidence that would have a more powerful impact upon a jury or which would be more likely to deter it from fairly finding the defendant guilty of a lesser offense.
However, there is more. On cross-examination, the prosecuting attorney asked the defendant if he, upon learning of the victim's death, replied to the police officer: "That's too bad, buddy. Do you think it'll snow?" Defense counsel objected because the alleged statement was not disclosed during discovery. Furthermore, the prosecuting attorney offered no factual basis for the question at trial.[42] The defendant *192 argues the State's nondisclosure of this statement, pursuant to Rule 16 of the West Virginia Rules of Criminal Procedure, was prejudicial because it hampered the preparation and presentation of his case. Syllabus Point 3 of State v. Weaver, 181 W.Va. 274, 382 S.E.2d 327 (1989), states:
"`When a trial court grants a pretrial discovery motion requiring the prosecution to disclose evidence in its possession, nondisclosure by the prosecution is fatal to its case where such nondisclosure is prejudicial. The nondisclosure is prejudicial where the defense is surprised on a material issue and where the failure to make the disclosure hampers the preparation and presentation of the defendant's case.' Syllabus Point 2, State v. Grimm, 165 W.Va. 547, 270 S.E.2d 173 (1980)."
See State v. Myers, supra. The defendant contends the issue of malice was critical at trial and the alleged statement was very damaging in proving a "heart regardless of social duty," as the jury was instructed on malice. We agree with the defendant.[43] We conclude that this line of questioning was extremely inappropriate. There seems to have been little, if any, justification for this line of questioning other than to inflame the jury through insinuation. Although we would be hesitant to reverse on this error alone, when coupled with the other errors discussed above, our decision to reverse is fortified. Syllabus Point 5 of State v. Walker, 188 W.Va. 661, 425 S.E .2d 616 (1992), states:
"`Where the record of a criminal trial shows that the cumulative effect of numerous errors committed during the trial prevented the defendant from receiving a fair trial, his conviction should be set aside, even though any one of such errors standing alone would be harmless error.' Syl. pt. 5, State v. Smith, 156 W.Va. 385, 193 S.E.2d 550 (1972)."
III.
CONCLUSION
In this case, our voyage is complete. "Having navigated the waters" of burden of proof, standards of review, new guidance for instruction in homicide cases, prosecutorial misconduct, and harmless error, "we now steer this case into the port of judgment and unload the cargo we have hauled."[44] For the foregoing reasons, we are compelled to hold the admission of the evidence discussed above and the prosecution's failure to disclose the alleged oral statement of the defendant before cross-examination violated the defendant's constitutional right to a fair trial. In so doing, we merely apply settled principles of law to the facts of this case.[45]
Based on the foregoing, the judgment of the Circuit Court of Kanawha County is reversed, and this case is remanded for a new trial.
Reversed and remanded.
*193 BROTHERTON and RECHT, JJ., did not participate.
MILLER, Retired Justice, and FOX, Judge, sitting by temporary assignment.
WORKMAN, J., concurs and reserves the right to file a concurring opinion.
WORKMAN, Justice, concurring:
I concur with the holding of the majority, but write this separate opinion to reiterate that the duration of the time period required for premeditation cannot be arbitrarily fixed. Neither the jury instruction approved by the majority, created from our past decisions in State v. Clifford, 59 W.Va. 1, 52 S.E. 981 (1906) and State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982) (as amplified by the majority opinion), nor the new instruction approved in the majority opinion[1] affix any specific amount of time which must pass between the formation of the intent to kill and the actual killing for first degree murder cases. Given the majority's recognition that these concepts are necessarily incapable of being reduced formulaically, I am concerned that some of the language in the opinion may indirectly suggest that some appreciable length of time must pass before premeditation can occur.
I agree with the majority in its conclusion that our decision in State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982), incorrectly equated premeditation with intent to kill. However, I must point out that the majority's suggested basis for defining premeditation and deliberation in terms of requiring some "appreciable time elapse between the intent to kill and the killing" and "some period between the formation of the intent to kill and the actual killing which indicates that the killing is by prior calculation and design" may create confusion in suggesting that premeditation must be the deeply thoughtful enterprise typically associated with the words reflection[2] and contemplation.[3] The majority's interpretation may create ambiguity, if not clarified, by adding arguably contradictory factors to the law enunciated by the majority in the approved instruction, as well as the language in the Hatfield and Dodds cases that the majority upholds. See Hatfield, 169 W.Va. at 202, 286 S.E.2d at 410 n. 7; see also State v. Dodds, 54 W.Va. 289, 297-98, 46 S.E. 228, 231 (1903).
For instance, nowhere in Hatfield, which upholds the Clifford instruction, is the notion that an "appreciable" amount of time must lapse in order for premeditation to occur. Neither is such a suggestion evident from the majority's new instruction, derived from Hatfield:
"`"The jury is instructed that murder in the first degree consists of an intentional, deliberate and premeditated killing which means that the killing is done after a period of time for prior consideration. The duration of that period cannot be arbitrarily fixed. The time in which to form a deliberate and premeditated design varies as the minds and temperaments of people differ, and according to the circumstances in which they may be placed. Any interval of time between the forming of the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully conscious of what he intended, is sufficient to support a conviction for first degree murder."`"
169 W.Va. at 202, 286 S.E.2d at 410 (quoting 2 Devitt and Blackmar, Federal Jury Practice and Instructions § 41.03, at 214). Finally, even syllabus point five of the majority provides only that "[a]lthough premeditation and deliberation are not measured by any particular period of time, there must be some period between the formation of the intent to kill and the actual killing...."
Accordingly, it is necessary to make abundantly clear that premeditation is sufficiently demonstrated as long as "[a]ny interval of time[, no matter how short that interval is, *194 lapses] between the forming of the intent to kill and the execution of that intent[.]" See Hatfield, 169 W.Va. at 202, 286 S.E.2d at 410 (quoting 2 Devitt and Blackmar, Federal Jury Practice and Instructions § 41.03, at 214).
NOTES
[1] The confession, which was read to the jury, stated, in part:
"I arrived at work, at 4:00 o'clock, and was looking forward to another evening of work, I was looking forward to it, because I do enjoy working at Danny's Rib House. Upon my arrival at work I immediately observed the verbal and physical aggression of Mr. Farley. During the evening of work I heard him calling certain employee's `Boy' and during the evening he referred to me as `Boy' many times, I did and said nothing, continuing my work, letting it pass. He was really loud, and obnoxious, as I'm sure many employee's noticed. As the evening was coming to a close Mr. Farley walked very close by me and said `that I had an "attitude problem."` It was verbal, I let it pass, continuing my work. After bringing some dishes to the cook, I walked back to the dishwasher to begin drying off some dishes, Mr. Farley approached me and made a sarcastic comment about me being a quiet person, he walked ever closer, to me until he was in my face, as I was trying to carry out my responsibilities. After all these things were said, and even though he was exhibiting physical aggression by coming up to my face, and putting forth what I interpreted to be a challenge, again I did nothing, continuing to carry out my responsibilities. Standing a few inches from my face he took his wet dishrag and hit me once, on the forearm, I did nothing continuing my work. Standing in the same area, he hit me again on the forearm, obviously wanting a confrontation, I gave him none, continuing my work. Standing in the same place he hit me, hard, two times in the face, it really hurt, it was soaking wet, and it stung, as he brought it to bear upon my face, at that moment I thought he was going to go further and hit me, so I reached in my right pants pocket, and retrieved my lock blade knife, that I use for skinning rabbits and squirrells [sic] during hunting season. I swung at Mr. Farley with my right hand in which was my knife, he backed up, so I didn't swing twice, he slowly sunk to [the] floor, I ran to the front of the restaurant and yelled out, call the ambulance. All I came to work for, was to work, and carry out my obligations, having ill will toward no one, and I still have none, but I feel I had the right to respond, finally, to this act of aggression that was perpetrated against me, I do not exhibit aggressive, violent behavior but I felt I had no alternative, or recourse."
[2] Rehearing denied by 444 U.S. 890, 100 S. Ct. 195, 62 L. Ed. 2d 126 (1979).
[3] There is some question as to whether Jackson reflects the current thinking of the United States Supreme Court. In the practical context, Jackson was a five-to-three decision; every member of the majority is gone from the Supreme Court; and the concurring trio. Justice Stevens joined by Chief Justice Burger and Justice Rehnquist, argued for a standard that asked whether there was some evidence to support the disputed finding. Since both opinions in Jackson held the evidence was adequate to convict, the choice between the two calibrations of the standard did not matter in that case. Also, neither of the two sequels to Jackson is illuminating. Herrera v. Collins, ___ U.S. ___, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993) (the majority opinion by Chief Justice Rehnquist capsulized Jackson solely in order to distinguish it); Wright v. West, 505 U.S. 277, 112 S. Ct. 2482, 120 L. Ed. 2d 225 (1992) (involved a fractured Supreme Court with no majority opinion).
While we are not certain as to how the United States Supreme Court will ultimately resolve this issue, the majority position in Jackson represents the pole most favorable to the defendant, and this stated position of the majority of justices has never been overruled. Accordingly, we proceed to consider whether on the record made in the trial court any rational trier of fact could have found the defendant guilty beyond a reasonable doubt.
[4] The reconciliation that we choose to do is consistent with a similar approach we took in State v. Kopa, 173 W.Va. 43, 49, 311 S.E.2d 412, 418 (1983), where we observed that adopting a different standard in criminal cases might "create the problem of sustaining convictions in the state court with predictable release through habeas corpus in the federal court." Although the two standards would not necessarily lead to different results, we believe it is unnecessary to have a criminal defendant subjected to different standards of review should the case ultimately end up in federal court. See York v. Tate, 858 F.2d 322 (6th Cir.1988), cert. denied, 490 U.S. 1049, 109 S. Ct. 1960, 104 L. Ed. 2d 428 (1989).
[5] While the language in Jackson seems to support a de novo review, see 443 U.S. at 324-26, 99 S.Ct. at 2792-93, 61 L.Ed.2d at 577-78, the review is only de novo as to decisions made by the trial court. As to the jury's verdict, we are required to review all inferences in favor of the verdict, thus making deferential review appropriate.
[6] Rehearing denied by 62 Ohio St. 3d 1410, 577 N.E.2d 362 (1991).
[7] See State v. Bailey, 151 W.Va. 796, 155 S.E.2d 850 (1967).
[8] Our conviction that the Holland rule is the better rule is not weakened by the fact that there is substantial conflict among the states as to whether the standard announced in Noe is preferable to that of Holland. According to our rough count, for states following the Noe rule, see Ex parte Williams, 468 So. 2d 99 (Ala. 1985); Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984), cert. denied, ___ U.S. ___, 113 S. Ct. 1331, 122 L. Ed. 2d 716 (1993); Murdix v. State, 250 Ga. 272, 297 S.E.2d 265 (1982); State v. Lilly, 468 So. 2d 1154 (La. 1985); State v. Andrews, 388 N.W.2d 723 (Minn. 1986); State v. Easley, 662 S.W.2d 248 (Mo.1983); State v. Williams, 657 S.W.2d 405 (Tenn.1983), cert. denied, 465 U.S. 1073, 104 S. Ct. 1429, 79 L. Ed. 2d 753 (1984); State v. John, 586 P.2d 410 (Utah 1978); State v. Wyss, 124 Wis. 2d 681, 370 N.W.2d 745 (1985). For states rejecting the Noe rule, see Des Jardins v. State, 551 P.2d 181 (Alaska 1976); State v. Harvitt, 106 Ariz. 386, 476 P.2d 841 (1970); Henry v. State, 298 A.2d 327 (Del. 1972); State v. Bush, 58 Haw. 340, 569 P.2d 349 (1977); Gilmore v. State, 275 Ind. 134, 415 N.E.2d 70 (1981); State v. Morton, 230 Kan. 525, 638 P.2d 928 (1982); State v. Cowperthwaite, 354 A.2d 173 (Me. 1976); Finke v. State, 56 Md.App. 450, 468 A.2d 353 (1983), cert. denied, 299 Md. 425, 474 A.2d 218 (Md.1984), cert. denied sub num. Finke v. Maryland, 469 U.S. 1043, 105 S. Ct. 529, 83 L. Ed. 2d 416 (1984); People v. Johnson, 146 Mich.App. 429, 381 N.W.2d 740 (1985); State v. Buchanan, 210 Neb. 20, 312 N.W.2d 684 (1981); State v. Jones, 303 N.C. 500, 279 S.E.2d 835 (1981); State v. Stokes, 299 S.C. 483, 386 S.E.2d 241 (1989).
[9] An appellate court may not decide the credibility of witnesses or weigh evidence as that is the exclusive function and task of the trier of fact. State v. Bailey, supra. It is for the jury to decide which witnesses to believe or disbelieve. Once the jury has spoken, this Court may not review the credibility of the witnesses.
[10] On cross-examination, the prosecuting attorney asked the defendant if, upon learning of the victim's death, he replied to the police officer: "That's too bad, buddy. Do you think it'll snow?" This Court does not suggest this evidence should have been admitted. However, when reviewing a sufficiency of the evidence claim, an appellate court is entitled to review all the evidence that was actually admitted rightly or wrongly. See Lockhart v. Nelson, 488 U.S. 33, 109 S. Ct. 285, 102 L. Ed. 2d 265 (1988).
[11] The evidence shows the victim's actions were irritating to the defendant well before the stabbing took place. His anger was building with each comment and flip of the towel. Furthermore, witnesses testified the defendant attempted to stab the victim a second time as he fell to the ground. The evidence shows the victim was slashed in the arm during this attempt. Finally, the defendant's statement that he "had the right to respond, finally, to this act of aggression that was perpetrated against [him]" is considered probative evidence of premeditation and deliberation.
[12] Generally, we review a trial court's refusal to give or the actual giving of a certain instruction under an abuse of discretion standard. Where, however, the question is whether the jury instructions failed to state the proper legal standard, this Court's review is plenary. "Whether jury instructions were properly [legally] given is a question of law[.]" U.S. v. Morrison, 991 F.2d 112, 116 (4th Cir.1993).
[13] In connection with a review of the legal sufficiency of the instructions, if we were to determine, as the State urges, that the defendant did not object to one or more of the trial court's instructions regarding the legal standard, we would review its legal propriety under a "plain error" standard. See State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). In Miller, we suggested that where a party does not make a clear, specific objection at trial to the charge that he challenges as erroneous, he forfeits his right to appeal unless the issue is so fundamental and prejudicial as to constitute "plain error."
[14] In Syllabus Point 8 of State v. Walls, 170 W.Va. 419, 294 S.E.2d 272 (1982), we stated:
"`When instructions are read as a whole and adequately advise the jury of all necessary elements for their consideration, the fact that a single instruction is incomplete or lacks a particular element will not constitute grounds for disturbing a jury verdict.' Syllabus Point 6, State v. Milam 159 W.Va. 691, 226 S.E.2d 433 (1976)."
[15] Furthermore, we have stated on different occasions that "[t]he jury is the trier of the facts and `there is no presumption that they are familiar with the law.'" State v. Lindsey, 160 W.Va. 284, 291, 233 S.E.2d 734, 739 (1977), quoting State v. Loveless, 139 W.Va. 454, 469, 80 S.E.2d 442, 450 (1954).
[16] The defendant raises several other assignments of error regarding the jury instructions, but we find his arguments without merit.
[17] A form of this argument was made to this Court before when similar instructions were challenged and we found the contention to be without merit. See State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982); State v. Riser, 170 W.Va. 473, 294 S.E.2d 461 (1982); State v. Belcher, 161 W.Va. 660, 245 S.E.2d 161 (1978). Actually only Schrader deals with the exact issue raised sub judice. For purposes of convenience, we will refer to instructions regarding the length of time necessary to form an intent to kill as the Clifford instruction, see State v. Clifford, 59 W.Va. 1, 52 S.E. 981 (1906), and those equating the intent to kill with premediation as the Schrader instruction.
[18] As to the other offenses, the jury instruction stated:
"[M]urder in the second degree is when one person kills another person unlawfully and maliciously, but not deliberately or premeditatedly; that voluntary manslaughter is the intentional, unlawful and felonious but not deliberate or malicious taking of human life under sudden excitement and heat of passion; that involuntary manslaughter is where one person while engaged in an unlawful act, unintentionally causes the death of another person, or when engaged in a lawful act unlawfully causes the death of another person."
[19] We note that defense counsel did not object to State's Instruction No. 8, and, under our standard of review, the instruction would ordinarily be reviewed only for "plain error."
[20] The 1794 Pennsylvania statute provided that "all murder, which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, rape, robbery, or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder in the second degree[.]" 1794 Pa.Laws, Ch. 1766, § 2, quoted in Commonwealth v. Jones, 457 Pa. 563, 570-71, 319 A.2d 142, 147 (1974).
[21] W.Va.Code, 61-2-1, states, in part:
"Murder by poison, lying in wait, imprisonment, starving, or by any willful, deliberate and premeditated killing, or in the commission of, or attempt to commit, arson, kidnapping, sexual assault, robbery, burglary, breaking and entering, escape from lawful custody ... is murder of the first degree. All other murder is murder of the second degree."
[22] The Model Penal Code and many of the modern state criminal codes abolish the first and second degree murder distinction in favor of classifications based on more meaningful criteria. Interestingly, defining premeditation in such a way that the formation of the intent to kill and the killing can result from successive impulses, see Schrader, supra (intent equals premeditation formula), grants the jury complete discretion to find more ruthless killers guilty of first degree murder regardless of actual premeditation. History teaches that such unbridled discretion is not always carefully and thoughtfully employed, and this case may be an example. In 1994, the Legislature raised the penalty for second degree murder to ten-to-forty years (from five-to-eighteen years), making it less important to give juries the unguided discretion to find the aggravated form of murder in the case of more ruthless killings, irrespective of actual premeditation. The penalties are now comparable.
[23] In the absence of statements by the accused which indicate the killing was by prior calculation and design, a jury must consider the circumstances in which the killing occurred to determine whether it fits into the first degree category. Relevant factors include the relationship of the accused and the victim and its condition at the time of the homicide; whether plan or preparation existed either in terms of the type of weapon utilized or the place where the killing occurred; and the presence of a reason or motive to deliberately take life. No one factor is controlling. Any one or all taken together may indicate actual reflection on the decision to kill. This is what our statute means by "willful, deliberate and premeditated killing."
[24] As examples of what type of evidence supports a finding of first degree murder, we identify three categories: (1) "planning" activityfacts regarding the defendant's behavior prior to the killing which might indicate a design to take life; (2) facts about the defendant's prior relationship or behavior with the victim which might indicate a motive to kill; and (3) evidence regarding the nature or manner of the killing which indicate a deliberate intention to kill according to a preconceived design. The California courts evidently require evidence of all three categories or at least extremely strong evidence of planning activity or evidence of category (2) in conjunction with either (1) or (3). See People v. Anderson. 70 Cal. 2d 15, 73 Cal. Rptr. 550, 447 P.2d 942 (1968). These examples are illustrative only and are not intended to be exhaustive.
[25] The inquiry focuses on the fairness of the trial and not the culpability of the prosecutor because allegations of prosecutorial misconduct are based on notions of due process. In determining whether a statement made or evidence introduced by the prosecution represents an instance of misconduct, we first look at the statement or evidence in isolation and decide if it is improper. If it is, we then evaluate whether the improper statement or evidence rendered the trial unfair. Several factors are relevant to this evaluation, among them are: (1) The nature and seriousness of the misconduct; (2) the extent to which the statement or evidence was invited by the defense; (3) whether the statement or evidence was isolated or extensive; (4) the extent to which any prejudice was ameliorated by jury instructions; (5) the defense's opportunity to counter the prejudice; (6) whether the statement or evidence was deliberately placed before the jury to divert attention to irrelevant and improper matters; and (7) the sufficiency of the evidence supporting the conviction. See generally Darden v. Wainwright, 477 U.S. 168, 106 S. Ct. 2464, 91 L. Ed. 2d 144 (1986); State v. Sugg, 193 W.Va. 388, 456 S.E.2d 469 (1995).
[26] We note the defendant is likewise prohibited from informing the jury of the possible sentences he may face if convicted. See generally U.S. v. Chandler, 996 F.2d 1073 (11th Cir.1993); Commonwealth v. Bowser, 425 Pa.Super. 24, 624 A.2d 125 (1993).
[27] A proper closing argument in a criminal case involves the summation of evidence, any reasonable inferences from the evidence, responses to the opposing party's argument, and pleas for law enforcement generally. See Coleman v. State, 881 S.W.2d 344 (Tex.Cr.App.1994), cert. denied, ___ U.S. ___, 115 S. Ct. 763, 130 L. Ed. 2d 660 (1995).
[28] Precedent does not cease to be authoritative merely because counsel in a later case advances a new argument. See generally Matter of Penn Central Transp. Co., 553 F.2d 12 (3rd Cir.1977). But, as a practical matter, a precedent-creating opinion that contains no extensive analysis of an important issue is more vulnerable to being overruled than an opinion which demonstrates that the court was aware of conflicting decisions and gave at least some persuasive discussion as to why the old law must be changed.
[29] It appears the Court in Myers was under the assumption that a trial court had authority to instruct generally on the penalties in criminal cases. No authority is cited for that proposition, and we know of none to support such a sweeping statement.
[30] The transcript reveals the following exchange between the prosecuting attorney and the defendant's father:
"Q. When you all would have these discussions, political, all kinds of discussions, did he ever tell you that women should be in the home and that men were better than women?
"A. No.
"Q. You never heard him say that, never heard him comment on that?
"A. No.
"Q. Did you ever hear him comment that whites are better than blacks?
"MR. CLINE: Objection, Your Honor. Move to approach the bench.
"A. No, he did not.
"THE COURT: Just a moment. Let's not get into those areas. I don't think they're needed. I don't recall any blacks being involved in this case.
* * * * * *
"(Conference at the bench)
"MR. BROWN: This is the psychological report.
"THE COURT: Is this Smith's report?
"MR. BROWN: Yes. Here's the quote right here (indicating). This is where they talked about all kinds of things and where he alluded to the blacks and the KKK and
"THE COURT: Well, I agree; but don't get into it. I agree that they talked about Hitler and blacks and things of that nature. I don't want that crap in here.
* * * * * *
"MR. BROWN: Let me explain. They're portraying this guy as a nice, calm, Bible reading man, takes long walks in the woods, a nice young man. And that's not what we really have here. What we have is a bigoted, prejudiced individual. And I've got witnesses who will testify to that. We've got a witness up here now who's trying to say he's a nice guy, quiet, and they're very serious people.
"THE COURT: I'll let you get it in through Smith.
* * * * * *
"... You can ask him if he ever talked about blacks, talked aboutKnock it off there.
* * * * * *
"... Yes, you can bring back Smith and Gibson.
"MR. CLINE: Note our objection and exception for the record.
"MR. WARNER: Judge, before he brings it up we want to be heard at the bench or out of the hearing of the jury specifically on that issue, just what they've got, which are statements someone told to him, nothing to do with this crime. It has nothing to do with this crime, and it's highly prejudicial because it's
* * * * * *
"(In open court)
"Q. Did you and your son ever have discussions about the Klu [sic] Klux Klan?
"A. Not discussions, no.
"Q. Did you ever hear him express views on the Klu [sic] Klux Klan?
"A. From the news that he has heard on TV.
"Q. Did you ever hear him express any opinion about Hitler?
"A. No."
[31] We consider the purpose of the prosecution's cross-examination was to impeach the witness by confronting him with information about his son that was inconsistent with the witness's testimony on direct examination. We note the prosecution made no effort to introduce the testimony of Dr. Smith. In this connection, however, it is well settled that a party may not present extrinsic evidence of specific instances of conduct to impeach a witness on a collateral matter. See W.Va.R.Evid. 608(b). A matter is considered noncollateral if "the matter is itself relevant in the litigation to establish a fact of consequence[.]" 1 McCormick On Evidence § 49 at 167 (4th ed. 1992). See also Michael on Behalf of Estate of Michael v. Sabado, 192 W.Va. 585, 453 S.E.2d 419 (1994).
[32] There is a plethora of authority supporting the notion that matters such as race, religion, and nationality should be kept from a jury's consideration. See Peck v. Bez, 129 W.Va. 247, 40 S.E.2d 1 (1946), where counsel for the plaintiff made reference to the defendant's religion and foreign nationality. This Court reversed stating "[t]hese matters, of course, were not pertinent to the matters in issue and had no place in the argument." 129 W.Va. at 263, 40 S.E.2d at 10. With uniform regularity, we have held that counsel should not be permitted to appeal to the jury's passions or prejudices. See generally Crum v. Ward, 146 W.Va. 421, 122 S.E.2d 18 (1961); State v. Summerville, 112 W.Va. 398, 164 S.E. 508 (1932); Hendricks v. Monongahela West Penn Public Serv. Co., 111 W.Va. 576, 163 S.E. 411 (1932); State v. Hively, 108 W.Va. 230, 150 S.E. 729 (1929).
[33] The prosecution chose not to rebut evidence of the defendant being quiet or peaceful, which was permitted under Rule 404(a)(1), Rule 404(a)(2), and/or Rule 405.
[34] Rule 610 states: "Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced."
[35] Although we recognize that the scope and extent of cross-examination lie within the discretion of the trial court, we believe it is important to underscore the principle of evidentiary law that no party has a right on cross-examination to offer irrelevant and incompetent evidence. See Doe v. U.S., 666 F.2d 43 (4th Cir.1981). The United States Supreme Court has noted that even the right to cross-examine witnesses may, in an appropriate case, "bow to accommodate other legitimate interests in the criminal trial process." Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct. 1038, 1046, 35 L. Ed. 2d 297, 309 (1973). We believe Rule 403 is one of those "other legitimate interests."
[36] Professor McCormick addressed the question as to how the curative admissibility rule is triggered: "If the [irrelevant] evidence ... is so prejudice-arousing that an objection or motion to strike cannot have erased the harm, then it seems that the adversary should be entitled to answer it as of right." McCormick on Evidence § 57 at 84 (4th ed. 1992). Certainly, any prejudice flowing from the father's testimony could have been cured by a motion to strike and by an instruction to disregard.
[37] Evidence is unfairly prejudicial if it has "an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." Advisory Committee's Note, Fed.R.Evid. 403. Succinctly stated, evidence is unfairly prejudicial if it "appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish, or otherwise may cause a jury to base its decision on something other than the established propositions in the case." 1 J. Weinstein & M. Berger, Weinstein's Evidence ¶ 403[03] at 403-15 to 403-17 (1978).
[38] Cert. denied sub nom. Hasting v. U.S., 469 U.S. 1218, 105 S. Ct. 1199, 84 L. Ed. 2d 343 (1985); Williams v. U.S., 469 U.S. 1218, 105 S. Ct. 1199, 84 L. Ed. 2d 343 (1985); Anderson v. U.S., 469 U.S. 1218, 105 S. Ct. 1199, 84 L. Ed. 2d 343 (1985); Stewart v. U.S., 469 U.S. 1218, 105 S. Ct. 1200, 84 L. Ed. 2d 343 (1985).
[39] See State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979), cert. denied, 445 U.S. 904, 100 S. Ct. 1081, 63 L. Ed. 2d 320 (1980).
[40] In O'Neal, the Supreme Court quoted with approval the following test of harmless error from the earlier case of Kotteakos v. United States, 328 U.S. 750, 764-65, 66 S. Ct. 1239, 1248, 90 L. Ed. 1557, 1566-67 (1946):
"If, when all is said and done, the [court] ... is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand[.] ... But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand."
[41] The only purpose this evidence could serve would be to prejudice the jury against the defendant. The defendant advises that at least one of the jurors was an African-American.
"It does not take much imagination to understand how such grossly biased comments would be viewed by the jury. We need not know the racial composition of the jury, for nearly all citizens find themselves repelled by such blatantly racist remarks and resentful of the person claimed to have uttered them." U.S. v. Ebens, 800 F.2d 1422, 1434 (6th Cir. 1986).
[42] A recess was held at the close of the defendant's cross-examination. Out of the presence of the jury, defense counsel moved for a mistrial:
"MR. WARNER: Your Honor, first of all, right before we closed, the Prosecutor cross examined my client on an alleged prior statement that he had made while sitting in the back of the police cruiser, immediately following the time that he apparently knew the person had died. The Prosecutor cross examined him, `Didn't you say something to the effect, "Isn't that too bad",' or that type of statement.
"THE COURT: I think he said, `Isn't that too bad. Do you think it will snow', or something like that.
* * * * * *
"MR. WARNER: Now that my thoughts are more clear, that statement was never, ever disclosed to us. I don't know if there is any foundation in fact for that statement at all. And I think it was terribly prejudicial at the same time. If I'm wrong on any of those points, the Prosecutor can correct me. And I would move for a mistrial based on that.
"MR. MORRIS: Judge, as I understood, that question was more or less a rebuttal question. He denied it. We are not able to prove by extraneous evidence anything he denies. That's pretty much
"THE COURT: I think it was proper cross examination. The record will reflect what is in the transcript. Motion for a directed verdict [mistrial] is denied. I'll note your objection and exception."
Trial courts should preclude questions for which the questioner cannot show a factual and good faith basis. See generally State v. Banjoman, 178 W.Va. 311, 359 S.E.2d 331 (1987). Manifestly, mere inquiries by the prosecutor as to rumors may be highly prejudicial even though answered in the negative.
[43] Actually, this is not a real case of late disclosure; it is a case of no meaningful disclosure. From reading the record, it appears the first time this statement was disclosed was during cross-examination. At the very least, the prosecution should have approached the bench and revealed the existence of the statement before using it in the cross-examination of the defendant.
[44] E.E.O.C. v. Steamship Clerks Union Local 1066, 48 F.3d 594, 610 (1st Cir. 1995).
[45] "This is as it should be. Such ... will serve to justify trust in the prosecutor as `the representative... of a sovereignty ... whose interest ... in a criminal prosecution is not that it shall win a case, but that justice shall be done.'" Kyles v. Whitley, ___ U.S. ___, ___, 115 S. Ct. 1555, 1568, 131 L. Ed. 2d 490, 509 (1995), quoting Berger v. U.S., 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935).
[1] The new instruction is essentially an adoption of the instruction previously offered by the Court in note 7 of Hatfield. See 169 W.Va. at 202, 286 S.E.2d at 410 n. 7.
[2] The word "reflect" is defined by Webster's as "to think quietly and calmly."
[3] The word "contemplate" is defined by Webster's as "to view or consider with continued attention." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375363/ | 461 S.E.2d 43 (1995)
Ex parte John McMILLAN, Appellant.
In re Benjamin Lee PARKER, Appellant,
v.
Clyde MORIN, Vastine Crouch, Kathleen M. Hayes, Jean Govan and Laurie Hobbs, in their individual and official capacities as agents and servants of the Lexington County Department of Social Services, the Lexington County Department of Social Services, and the South Carolina Department of Social Services, Respondents.
No. 24294.
Supreme Court of South Carolina.
Heard May 30, 1995.
Decided August 7, 1995.
Rehearing Denied September 6, 1995.
*44 Susan B. Oliver, Columbia, for appellant McMillan, and Wm. Gary White, III, Columbia, for appellant Parker.
Douglas McKay, Jr. and Ruskin C. Foster, Columbia, for respondents.
WALLER, Justice.
On appeal is an order imposing sanctions pursuant to the Tort Claims Act[1] upon Appellant McMillan (Attorney) and his client, Parker, for filing a frivolous lawsuit. We affirm.
FACTS
Parker sought to adopt a 12 year old boy. After overnight visitation, the child accused Parker of molesting him. He was charged with criminal sexual conduct with a minor in general sessions court, but was acquitted by the jury.
An action ensuing from the same incident was also brought by the Department of Social Services (DSS) against Parker in the family court. After Parker was acquitted in general sessions court, the family court charges were never pursued. Notwithstanding, Parker was placed on the Central Registry of Child Abusers.
Parker, through Attorney, brought suit in federal court against DSS and individual employees of DSS. He alleged a federal constitutional cause of action under 42 U.S.C. § 1983, as well as pendant state actions for emotional outrage, abuse of process, false arrest, malicious prosecution, negligence, fraud, libel, and injunctive relief. The Court dismissed the § 1983 action with prejudice. The remaining state causes of action were dismissed without prejudice. Parker filed a notice of intent to appeal in the Fourth Circuit Court of Appeals, but the appeal was dismissed when he failed to perfect it.
Parker then filed suit in the state court, raising the same allegations as in the federal action, except the constitutional deprivations under § 1983. He sued the individual Respondents in both their official and individual capacities. Respondents counterclaimed for sanctions under the Tort Claims Act.
Respondents Morin, Crouch, Govan, Hobbs, and Lexington DSS moved for summary judgment.[2] The court, granting summary judgment, held that:
each of the individual defendants were acting in their official capacity; therefore, the suits against them in their individual capacity were dismissed;
all causes of action asserted against the defendants were barred by the statute of limitations;
all causes of action were likewise barred by the doctrine of sovereign immunity; and
the action for injunctive relief was dismissed since the defendants could not accomplish the relief requested.
Parker filed a notice of intent to appeal with this Court, but, as in the federal action, he failed to perfect his appeal and it was dismissed.
Subsequently, the trial court granted Respondents' counterclaims for sanctions representing costs and fees against both Parker and Attorney, holding that the suit was frivolous and not well grounded in law or fact.
ISSUES
1. Are Appellants subject to sanctions under the Tort Claims Act?
2. Did the court erroneously consider the federal action in assessing sanctions in the state action?
3. Did the court err in awarding sanctions based upon the filing of suit after the statute of limitations had expired?
4. Did the court err in failing to advise Parker concerning Attorney's potential conflict of interest?
*45 DISCUSSION
1. Tort Claims Act
The Tort Claims Act provides that sanctions be assessed for the filing of frivolous claims:
In any claim, action, or proceeding to enforce a provision of this chapter, the signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry, it is well-grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal or existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.... If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.
S.C. Code Ann. § 15-78-120(c) (Supp.1994).
Appellants contend that the complaint in this case is not under the Tort Claims Act; therefore, the court had no authority to award sanctions pursuant to the Act. We disagree.
Attorney failed to raise this argument to the trial court. In fact, he expressly conceded at trial that the complaint was, in part, under the Tort Claims Act:
The Court: But you were bringing these things under the state Tort Claims Act ...
Attorney: Yes, Sir, but we also brought it against the individuals under common law, your Honor, in the event that the state Tort Claims protected the agency, okay.
Accordingly, this issue is procedurally barred. Southern Ry. Co. v. Routh, 161 S.C. 328, 159 S.E. 640 (1930) (issue conceded in trial court cannot be argued on appeal).
2. Federal Action
The trial court, in assessing sanctions in this action, considered the impact of the prior federal suit. Appellants contend this was error. We disagree.
An award of attorney's fees and costs is within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of that discretion. Dedes v. Strickland, 307 S.C. 152, 414 S.E.2d 132 (1992); Donahue v. Donahue, 299 S.C. 353, 384 S.E.2d 741 (1989).
In its order, the court detailed the history of the case, beginning with the federal court action. Appellants' conduct in the federal case was cited to show a pattern of disregard of deadlines and court orders, as well as to substantiate Respondents' claim that Appellants should have known the state suit was without merit. Moreover, the order specifically provided the federal court should determine the propriety of any award of fees incurred in that action.
Clearly, the federal court action was relevant to the issue of sanctions in the state court action. The suit filed in state court was essentially the same as that filed in federal court. Therefore, all research and discovery related to both actions. From their experience in federal court, Appellants were aware of the merit of the state court action. Also, Attorney's conduct in the federal suit, such as habitually missing deadlines, showed a pattern of neglect that continued throughout the state court action. We find no abuse of discretion.
3. Statute of Limitations
Under the Tort Claims Act, a two year statute of limitations applied to this case. S.C. Code Ann. § 15-78-110 (Supp. 1994). Since Appellants filed suit after two years, the case was dismissed. The imposition of sanctions was based, in part, upon the filing of the suit after the statute of limitations had run. Appellants contends that this was in error since the time for filing an action under the Tort Claims Act has been in dispute. See Vines v. Self Memorial Hospital, ___ S.C. ___, 443 S.E.2d 909 (1993) (Finney, A.J. and Toal, A.J., dissenting); Rink v. Richland Memorial Hospital, 310 *46 S.C. 193, 422 S.E.2d 747 (1992) (Finney, A.J. and Toal, A.J., dissenting)[3]. We disagree.
Attorney never argued for modification of the existing law as to the time for filing an unverified claim under the Tort Claims Act nor did he argue that he substantially complied with the verified claim requirement. In fact, his appeal from the dismissal of the state court case was not pursued. Moreover, the award of sanctions was based on numerous factors. Accordingly, we find no abuse of discretion by the trial court in awarding sanctions. Dedes v. Strickland, supra; Donahue v. Donahue, supra.
4. Separate Counsel
Attorney represented Parker in his criminal trial, the federal civil action, and the state civil action, including the sanctions hearing. Parker contends that the court, sua sponte, should have advised him of the potential conflict of interest with Attorney and given him the opportunity to raise a separate and distinct defense at the sanctions hearing. We disagree.
Parker failed to raise this argument to the trial court. He cannot do so for the first time on appeal. Cf. State v. Felder, 290 S.C. 521, 351 S.E.2d 852 (1986) (Criminal defendant precluded from raising attorney's conflict for the first time on appeal).
AFFIRMED.
FINNEY, C.J., and TOAL, MOORE and BURNETT, JJ., concur.
NOTES
[1] S.C. Code Ann. § 15-78-120(c) (Supp.1994).
[2] Parker consented to dismiss the suit as to Hayes and the South Carolina DSS.
[3] In Vines and Rink, the Court held that a verified claim was necessary to entitle the plaintiff to a three, rather than two, year statute of limitations under the Tort Claims Act. However, in both of these cases, there was a dissenting opinion arguing that the plaintiff was entitled to the three year statute of limitations as long as he substantially complies with the verified complaint provision. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375368/ | 933 P.2d 119 (1997)
129 Idaho 830
STATE of Idaho, Plaintiff-Respondent,
v.
Ricardo FUENTES, Defendant-Appellant.
No. 22621.
Court of Appeals of Idaho.
February 27, 1997.
Van G. Bishop, Canyon County Public Defender, Matthew Roker (argued), Deputy Public Defender, Nampa, for defendant-appellant.
Alan G. Lance, Attorney General, Catherine O. Derden, Deputy Attorney General (argued), Boise, for plaintiff-respondent.
WALTERS, Chief Judge.
Ricardo Fuentes was found guilty by a jury of one count of possession of methamphetamine, I.C. § 37-2732(c). The district court imposed a unified sentence of six years, with a three-year minimum period of confinement. The court then suspended the sentence and placed Fuentes on probation for four years. Fuentes appeals from the judgment of conviction, raising as his only issue the denial of his pretrial motion to suppress the methamphetamine as evidence. For the reasons set forth below, we affirm.
The facts which led to the charges against Fuentes are as follows. Fuentes's brother and his brother's family were living in a rented trailer home in Nampa. On April 1, 1995, the landlord arrived at the home to evict the family because of past due rent. Fuentes's brother and his brother's wife were not home at the time, and the landlord engaged in a heated argument with their eldest son. During the exchange, the son flipped a lighted cigarette at the landlord. The landlord then called the police.
Officers Christopher Rowe and Carl Winnicki were dispatched to investigate the dispute.[1]*120 Upon arriving at the residence, the officers found the landlord parked in front of the trailer. They were informed by the landlord of the events which had transpired. Officers Rowe and Winnicki then approached the trailer in an effort to speak to the residents and obtain their side of the story.
Officer Winnicki knocked on the front door but no one answered. He then told the occupants of the trailer, "If you don't come out, we are going to come in after you." Shortly thereafter, the door opened and three or four individuals, including Fuentes, emerged from the trailer. The officers asked them for their names and birth dates, specifically focusing on the older males. Officer Winnicki spoke to the eldest son while Officer Rowe spoke with Fuentes.
Officer Rowe ran a warrants check on Fuentes which took approximately five minutes. During this time, Fuentes reentered the trailer and then came out carrying a cellular telephone. Fuentes told Rowe that he was trying to contact his sister-in-law so she could come to the home and resolve the rental dispute. The dispatcher informed Rowe that there was an outstanding warrant for Fuentes's arrest. Fuentes was arrested and Officer Rowe patted him down for weapons but nothing was seized. Fuentes was placed in the back seat of a patrol car and transported to the Canyon County Jail. After Fuentes was removed from the patrol car, two baggies containing methamphetamine were found underneath the back seat.
Fuentes was charged by information with possession of a controlled substance, methamphetamine, I.C. § 37-2732(c). He filed a motion in the district court to suppress the methamphetamine found in the patrol car. Fuentes contended he was "seized" by the police when he came out of the trailer home in response to the officer's commands, and that the methamphetamine was found as a result of this seizure. A seizure by this method, he submitted, violated his rights under the Fourth Amendment of the United States Constitution because the police did not have any reasonable suspicion that a crime had been committed when they seized him.
Relying in part on Florida v. Bostick, 501 U.S. 429, 111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991), the district court held that no seizure had taken place prior to Fuentes's arrest because Fuentes was free to leave the police's presence, and in fact did so. The court also held that testimony by Fuentes's thirteen year-old niece, that she heard the officer threaten to come into the trailer if the occupants did not come out, was not reflective of what Fuentes may have heard or what he may have believed was taking place while he was inside the trailer. The district court denied the motion to suppress.
On appeal, Fuentes challenges the district court's holding that no seizure occurred. Relying on State v. Fry, 122 Idaho 100, 831 P.2d 942 (Ct.App.1991), Fuentes argues that a seizure occurred because the Fourth Amendment is implicated, "when an officer, by means of physical force or show of authority has in some way restrained a citizen's liberty." 122 Idaho at 102, 831 P.2d at 944. He asserts that Officer Winnicki's statement would have communicated to a reasonable person that he was not at liberty to ignore the police's presence and go about his business. Such a communication, he alleges, constitutes a seizure. Fuentes further asserts that while some seizures for a limited duration may be made absent probable cause for an arrest, such seizure, in order to pass constitutional muster, must be justified by a reasonable, articulable suspicion on the part of the police that the person to be seized had committed or was about to commit a crime. He claims that the officer in this case had no such articulable suspicion at the time of the seizure.
A trial court's decision on a motion to suppress presents mixed questions of law and fact. State v. McAfee, 116 Idaho 1007, 1008, 783 P.2d 874, 875 (Ct.App.1989); State v. Jones, 115 Idaho 1029, 1031, 772 P.2d 236, 238 (Ct.App.1989). On appeal, we defer to the trial court's findings of fact if those findings are supported by the evidence. State v. Connor, 124 Idaho 547, 548, 861 P.2d 1212, *121 1213 (1993); State v. Medley, 127 Idaho 182, 185, 898 P.2d 1093, 1096 (1995). However, we freely review the trial court's determination as to whether constitutional requirements have been satisfied in light of the facts found. Medley, supra. In particular, the Idaho Supreme Supreme Court has held that:
When reviewing "seizure" issues, we defer to the trial court's factual findings, unless they are clearly erroneous. We freely review, de novo, the trial court's legal determination of whether or not an illegal seizure has occurred.
State v. Bainbridge, 117 Idaho 245, 247, 787 P.2d 231, 233 (1990).
When a defendant seeks to suppress evidence allegedly obtained as a result of an illegal seizure, the burden of proving that a seizure occurred is on the defendant. See 5 Wayne R. LaFave, Search and Seizure, § 11.2(b), at 44-45 (3d ed.1996); United States v. Carhee, 27 F.3d 1493 (10th Cir. 1994); Russell v. State, 717 S.W.2d 7 (Tex. Crim.App.1986); State v. Thorn, 129 Wash.2d 347, 917 P.2d 108 (1996). The relevant inquiry in determining whether a seizure occurred is whether a reasonable person would have felt free to leave or otherwise decline the officer's requests and terminate the encounter. Bostick, 501 U.S. at 437, 111 S.Ct. at 2387-88. The court must look to the totality of the circumstances to determine if a seizure occurred. Id. In deciding whether a person has been seized, the differing accounts of the circumstances surrounding the encounter present factual questions that are to be resolved by the trial court.
Here, the district court found from the facts presented that Fuentes was not seized by the officers when he exited the trailer home and spoke with them, giving them his name. Fuentes did not testify at the suppression hearing; he presented only the testimony of his niece. The court determined that this evidence did not show that Fuentes himself heard or acted in response to any commands by the officers. The court also found from the evidence that Fuentes was free to go about his business because while the police were present he reentered the home, obtained a cellular telephone and attempted to call his sister-in-law. Although evidence to the contrary was presented concerning Fuentes's reentry into the trailer, the district court resolved this conflict in favor of the officers' testimony, as the court was free to do in determining the credibility of the witnesses and according appropriate weight to the evidence presented.
The district court's findings are clearly supported by the evidence. The totality of the circumstances surrounding Fuentes's encounter with the officers, based upon the facts found by the district court, leads to the conclusion that a seizure did not occur until Fuentes was arrested pursuant to the outstanding warrant. In short, Fuentes failed to carry his burden to establish that a seizure had occurred as he claimed.
We uphold the order denying the motion to suppress and affirm the judgment of conviction.
LANSING and PERRY, JJ., concur.
NOTES
[1] The parties agree that a third officer and patrol car also responded to the scene. However, this unidentified officer apparently did not take an active role in the investigation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375514/ | 526 F. Supp. 1262 (1981)
BANKERS TRUST COMPANY, Plaintiff,
v.
SANTOS O. SUAREZ V., American Forwarding Corporation, Gambize Schardar, Intercontinental Bank and John Does "1-4", Defendants.
No. 81 Civ. 5144-CLB.
United States District Court, S. D. New York.
December 1, 1981.
*1263 Charles Leeds and Jack H. Weiner, New York City, for plaintiff.
Wilkie, Farr & Ghallager, New York City (Brian E. O'Connor, New York City, of counsel), for defendants.
MEMORANDUM AND ORDER
BRIEANT, District Judge.
In this diversity action between a New York bank and several Florida residents, both individuals and corporations, one defendant has moved to dismiss for lack of personal jurisdiction or, in the alternative, to transfer the action to the United States District Court for the Southern District of Florida. As discussed below, both motions are hereby denied.
Plaintiff Bankers Trust Company ("Bankers Trust"), a New York corporation, commenced this action to recover payment made by mistake of a check which was altered. The complaint alleges that a Venezuelan bank which maintains an account with Bankers Trust issued a check on that account payable to Santos O. Suarez V., a citizen of Venezuela residing in Florida, for U.S. $18.75. When the check was presented for payment at Bankers Trust it read $187,500.00 and was paid in that amount. Bankers Trust now seeks recovery for its payment of the altered check, against all parties who endorsed the check. Defendant Intercontinental Bank ("Intercontinental"), a Florida bank, received the check in Florida for deposit and collection from its customer, defendant American Forwarding Corp.
Intercontinental endorsed the check, forwarded it for collection through its agent Citizens and Southern Bank, intending that its agent would cause the check to enter normal banking channels for collection, resulting in presentation for payment in New York. This purposeful and foreseeable activity of the agent in New York is sufficient to subject the principal to personal jurisdiction in New York for an action arising out of the activity of the agent. This Court has jurisdiction over defendant Intercontinental under New York C.P.L.R. § 302(a)(1). This transaction was intended to and did have "a direct `effect' in New York", Weinstein, Korn & Miller, N.Y. Civil Practice ¶ 302.11a, in that Intercontinental's actions through its agent caused the check to be paid in New York by plaintiff. By presenting the check for collection from Bankers Trust, a New York bank, Intercontinental has "purposely avail[ed] itself of the privilege of conducting activities" in New York, Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 1239, 2 L. Ed. 2d 1283 (1958), so as to render itself liable to personal jurisdiction in New York in a suit arising out of those activities. See Chemical Bank v. Major Realty Corp., 439 F. Supp. 181, 183 (S.D.N.Y.1977); Mendelson v. Fleischmann, 386 F. Supp. 436 (S.D.N.Y.1973).
Intercontinental urges, alternatively, that in the event that this Court concludes that it may exercise personal jurisdiction over Intercontinental, the action should be transferred to the Southern District of Florida in the interests of justice because the parties, witnesses and documents are located in that area. In seeking such a change of venue, Intercontinental claims that it, as well as all of the other defendants, are either citizens or residents of Florida; the necessary witnesses reside in Florida; and the relevant documents are located in Florida. Bankers Trust responds that the transaction which is the subject matter of this action, the payment of the check, took place in New York; many of its witnesses are located in New York; and many of the documents relevant to its case are in New York. Bankers Trust is willing to pursue discovery wherever it is most appropriate: New York, Florida or Venezuela. Furthermore, Bankers Trust claims that New York law should be applied in this action.
After considering the claims of Bankers Trust and Intercontinental, this Court finds *1264 that neither party has established the requisite "combination and weight of factors" necessary to tip the balancing test in its favor. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S. Ct. 839, 843, 91 L. Ed. 1055 (1946). Accordingly, "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Id.
The motion is denied.
So Ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375510/ | 526 F. Supp. 774 (1981)
Sonya JASON, an individual, Plaintiff,
v.
Jane FONDA, an individual; Bruce Gilbert, an individual; Jerome Hellman, an individual; JPL Productions, Inc., a corporation; United Artists Corporation, a corporation; National Broadcasting Company, Inc., a corporation; Nancy Dowd, an individual; Robert C. Jones, an individual; Waldo Salt, an individual, Defendants.
No. CV 79-4723-RJK (Kx).
United States District Court, C. D. California.
September 21, 1981.
*775 Sonya Jason, in pro. per.
Silverberg, Rosen, Leon & Behr, Ronald S. Rosen and Robert M. Nau, Los Angeles, Cal., for defendants.
MEMORANDUM OF DECISION AND ORDER
KELLEHER, District Judge.
This is an action for copyright infringement, unfair competition, misappropriation, and implied contract, brought by plaintiff Sonya Jason against the producers and broadcasters of the motion picture "Coming Home." The action was filed on December 6, 1979. Defendants are Jane Fonda, Bruce Gilbert, Jerome Hellman, Jerome Hellman Enterprises, Nancy Dowd, Robert C. Jones, Waldo Salt, United Artists Corporation, and National Broadcasting Company. Plaintiff claims that defendants infringed her copyright in a book entitled "Concomitant Soldier Woman and War" (hereinafter "Concomitant Soldier") by producing, exhibiting and broadcasting over network television the theatrical motion picture entitled "Coming Home." Plaintiff's other three claims are pendent state law claims.
On May 11, 1981, defendants brought this motion for summary judgment on the grounds that as a matter of law plaintiff could not establish that defendants had access to the allegedly infringed book nor that the motion picture "Coming Home" was substantially similar to her book. Plaintiff opposed defendants' motion and defendants thereafter filed a reply memorandum. Plaintiff first argued that defendants' summary judgment motion was premature in that plaintiff sought further discovery that might assist her in opposing the motion. However, in the four months that have passed between the filing of defendants' motion and today's disposition, plaintiff neither sought additional discovery nor submitted additional support for her position. Indeed, defendants argue in their reply brief, and plaintiff does not suggest otherwise, that plaintiff's discovery is now complete. Therefore, the Court now is prepared to rule on the merits of defendants' summary judgment motion. The Court has *776 taken great care in reading the competing works, the parties' memoranda of points and authorities, and supporting exhibits and affidavits, and thus is fully informed.
For the purpose of their summary judgment motion, defendants do not contest plaintiff's ownership of a copyright in her book "Concomitant Soldier." Therefore, the only contested element of plaintiff's case is her allegation that defendants "copied" her work. A plaintiff may establish copying by showing (1) circumstantial evidence of access to the protected work and (2) substantial similarity of "ideas" and "expression" between the copyrighted work and the allegedly infringing work. Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp., 562 F.2d 1157, 1162 (9th Cir. 1977).
1. Access
Plaintiff fails completely to put in issue her allegation that the defendants had access to her book at any time prior to this lawsuit. Whether "access" be defined as the actual reading or knowledge of plaintiff's work by the defendants, see Bradbury v. Columbia Broadcasting System, Inc., 287 F.2d 478, 479 (9th Cir. 1961), or as a "reasonable opportunity to view" the plaintiff's work, Sid & Marty Krofft Television v. McDonald's Corp., 562 F.2d 1157 (9th Cir. 1977), plaintiff has not controverted the explicit denial by each defendant that they had never heard of her book prior to the lawsuit. Indeed, all of the material facts relevant to the issue of access are undisputed. They are as follows. Defendants Fonda and Gilbert originally conceived of the idea for a film about Vietnam in the late sixties and early seventies following their tour of several military bases. Nancy Dowd began to write a screenplay for such a film in late 1972. Near the end of 1973, Dowd submitted her draft of the screenplay to Fonda and Gilbert, after which time she ceased to participate in the production of the film. Thereafter, Fonda and Gilbert hired Waldo Salt and Robert Jones to revise Dowd's screenplay. In January of 1977, filming for the motion picture began. It was released in February of 1978 through United Artists. Finally, in 1979, NBC broadcast "Coming Home" over its television network.
Plaintiff Jason testified at her deposition that she wrote "Concomitant Soldier" over a span of 20 years. Jason financed the first printing of her book in April, 1974. The first printing consisted of approximately 1,100 copies. About half of these copies were sold by a representative in the New Jersey area. Another 100 or so copies were sold through Jason's church. Some 150 to 200 copies were defective and never sold. The remainder, claimed by plaintiff to consist of between 200 and 700 copies, were sold through Southern California booksellers. In December of 1977, several months after principal photography for the film had been completed, Jason submitted her book to Marcia Nasatir, an employee of United Artists. United Artists returned her book. Jason also claims to have submitted her book to NBC employees Rolf Gompertz and Mike Brockman. However, there is absolutely no evidence that NBC participated in any way in the production of "Coming Home."
Finally, Jason claims that Nancy Dowd, the original author of the movie screenplay, may have received a copy of her book from Jack Neumann of Paramount Pictures. In her deposition Jason asserts that she gave a copy of her book to Frank Capka in June, 1974, that Capka said he gave the copy to Neuman, and that Neuman allegedly told Capka that he gave it to Dowd. Not only does the timing of these alleged events follow the date on which Dowd completed her work on the screenplay, but Jason's assertion is multiple hearsay and could not be considered as admissible evidence. In sum, there is not one shred of evidence that any of the defendants who were involved in producing "Coming Home" had access to Jason's book during production except for plaintiff's undisputed claim that between 200 and 700 copies were available through various Southern California bookstores. That level of availability creates no more than a "bare possibility" that defendants *777 may have had access to plaintiff's book. In and of itself, such a bare possibility is insufficient to create a genuine issue of whether defendants copied plaintiff's book. See, e. g., Ferguson v. National Broadcasting Co., 587 F.2d 111, 113 (5th Cir. 1978).
2. Substantial Similarity
Even assuming defendants had access to plaintiff's work, to prove copying by defendants plaintiff also must demonstrate that there is a substantial similarity, both of ideas and of the expression of ideas, between the copyrighted work and the allegedly infringing work. Under Ninth Circuit law, the district court may analyze similarity of idea and expression according to a two-step process. Sid & Marty Krofft Television Productions, Inc. v. McDonald's Corp., 562 F.2d 1157, 1162-65 (9th Cir. 1977). The first step is the determination of whether there is a substantial similarity in the ideas used in the competing works. According to the Krofft court, this step is an "extrinsic test" because "it depends not on the responses of the trier of fact, but on specific criteria which can be listed and analyzed." Id. at 1164. The criteria in this case might include such characteristics of a written work as plot, themes, dialogue, mood, setting, pace and sequence. Since the extrinsic test focuses on a comparison of these abstracted criteria, "analytic dissection and expert testimony are appropriate." Id. Finally, the determination of whether there is substantial similarity of ideas is a question which "may often be decided as a matter of law." Id.
The second step is the determination of whether there is substantial similarity between the forms of expression present in each work. Where there is substantial similarity in ideas between the works, the trier of fact must decide whether the authors' expression of the ideas is substantially similar. This step of the analysis is labelled the "intrinsic test" because it depends on "the response of the ordinary reasonable person." Id.
Substantial similarity in copyright infringement actions is a question of fact uniquely suited for determination by the trier of fact. Walker v. University Books, Inc., 602 F.2d 859, 864 (9th Cir. 1979). However, summary judgment is proper when the Court determines that the similarity between works is insubstantial as a matter of law. 3 Nimmer, The Law of Copyright, § 12.10, at 12-63 (1979). In other words, the Court may grant summary judgment if it determines that no reasonable trier of fact could find that the plaintiff has satisfied both of the Krofft tests.
The allegedly infringed book, "Concomitant Soldier," and the "combined continuity" of the allegedly infringing motion picture "Coming Home" are before the Court, along with the parties' comparisons regarding the issue of "substantial similarity." The Court has read these two works and finds the similarity between them insubstantial as a matter of law. Although both works deal generally with subjects such as morality and the effects of war on women, injured veterans and soldiers, these ideas are not protectable in and of themselves. 17 U.S.C. § 102(b); see, e. g. Becker v. Loews, 133 F.2d 889 (7th Cir. 1943), Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (3d Cir. 1930). Indeed, they have been the subject of countless works dating back for centuries. There are, furthermore, substantial differences between the works in the use of contexts, characters, and language through which these ideas are developed. Moreover, although plaintiff claims that there are several particular similarities between the works, these consist of the use of similar but unprotectable ideas, of commonly cited historical facts, of sequences which necessarily follow from a common theme (scenes a faire), or of other unprotectable characteristics. Thus, without exception, when analyzed as an entire work, the motion picture "Coming Home" is, as a matter of law, substantially dissimilar to plaintiff's book when tested under either of the Krofft tests. Accordingly, defendants' motion for summary judgment is hereby granted and plaintiff's claim for copyright infringement is dismissed with prejudice.
*778 Although the Court has subject matter jurisdiction of an unfair competition claim when it is joined with a substantial and related claim under the copyright laws, 28 U.S.C. § 1338(b), in the exercise of its discretion, the Court may dismiss the pendent claim when the federal claim is dismissed prior to trial. Wham-O-Mfg. Co. v. Paradise Mfg. Co., 327 F.2d 748, 753 (9th Cir. 1964). Accordingly, defendants' motion to dismiss plaintiff's pendent claims for unfair competition, misappropriation, and implied contract, is granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375512/ | 526 F. Supp. 209 (1981)
ILLINOIS CENTRAL GULF RAILROAD
v.
PARGAS, INC.
Civ. A. No. 80-691-A.
United States District Court, Middle Dist. of Louisiana.
November 13, 1981.
*210 Murphy J. Foster, III, Baton Rouge, La., for plaintiff.
Charles A. O'Brien, Baton Rouge, La., for defendant.
Stephen K. Conroy, Metairie, La., for Union Tank, third party defendant.
JOHN V. PARKER, Chief Judge.
This matter is before the Court on a motion for judgment on the pleadings under Rule 12(c), Fed.R.Civ.P., filed on behalf of third party defendant, Union Tank Car Company ("Union"). The parties have orally argued the motion and it has been submitted to the Court for decision.
The main demand is an action for recovery of damages allegedly incurred by the railroad when a tank car, owned by Pargas, containing liquified petroleum gas leaked gas onto the railroad track. The railroad seeks to recover its costs and expenses in the clean-up operation and alleges that Pargas, the owner, is liable for these damages under the Association of American Railroads Interchange Rules. Pargas, while denying liability to the railroad, has filed a third party complaint against Union, alleging that the tank car in question was modified by Union under a contract with Pargas, that the defect in the car was caused by Union's defective workmanship and that Union is liable to Pargas for full indemnity for any amount which the railroad may recover from Pargas. Union has answered, denying liability and it attaches a copy of the written contract to its answer. There is no dispute concerning the provisions of the contract.
The predicate for Union's motion is a limitation of warranty clause in the agreement.
The contract is dated November 20, 1977, and it generally provides that Union agrees to convert 126 non-insulated pressure railway tank cars owned by Pargas so as to meet specifications mandated by United States Department of Transportation Regulations. The precise modification is specified, a "unit price" is fixed, a production schedule running from July 1, 1978, through *211 December 31, 1981, is specified, a delivery schedule to Union's plant is set forth and it is specified that Illinois law shall govern interpretation of the contract. Under the contract, Union agrees to complete modification of each tank car within a specified period and in the event that Union does not do so, "then Union shall at its option either return such car to Owner and pay to Owner the sum of $900 in respect of such car as fully liquidated damages" or hold the car for a future production run.
Paragraph seven of the agreement which is relied upon by Union, reads as follows:
"7. Warranty.
Union warrants that the cars will be modified in accordance with the specifications applicable to 112J 114J cars set forth in HM-144 and that the cars will be free from defects in material and workmanship. The obligation of Union under this warranty shall be limited to repairing or replacing at a repair shop selected by Union any part or parts of any of the modifications made by Union which shall within one year after completion of the modification be returned to a repair shop designated be returned to a repair shop designated for such purpose and which Union's examination shall disclose to its satisfaction to have been thus defective. THIS WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR THAT THE CARS ARE FIT FOR ANY PARTICULAR PURPOSE OR USE, AND SPECIFICALLY IN LIEU OF ALL INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES.
Union's position is that, assuming for purposes of argument that its workmanship under the contract was defective, Pargas nevertheless has no right of indemnity because the above quoted contract provision amounts to a waiver by Pargas of any warranty at all. Third party plaintiff, Pargas, advances the notion that the limitation of warranty provisions do not have the effect of shielding Union from tort liability or liability for its own negligence and further argues that the intent of the above quoted language is to shield Union only from damages which are incurred by Pargas itself as a result of defective workmanship, as opposed to damages which are incurred by third parties and for which Pargas may be held liable.
As noted, Union raises this issue by means of a motion for judgment on the pleadings under Rule 12(c). Since Union has attached a copy of the contract to its answer and since Pargas concedes the correctness of the copy, the Court may consider the contract, as a part of the pleadings. It is elementary that a motion for judgment on the pleadings may not be granted unless it is clearly established that no material issue of fact remains to be resolved and that the mover is entitled to judgment as a matter of law. Beal v. Missouri Pacific Railroad, 312 U.S. 45, 61 S. Ct. 418, 85 L. Ed. 577 (1941); Greenberg v. General Mills Fun Group, Inc., 478 F.2d 254 (5th Cir. 1973).
In considering a motion for judgment on the pleadings, the Court must view the facts presented in the pleadings and the inferences drawn therefrom in the light most favorable to the opposing party and all well pleaded allegations in the opposing party's pleadings are assumed to be true. National Metropolitan Bank v. U. S., 323 U.S. 454, 65 S. Ct. 354, 89 L. Ed. 383 (1945); Bass v. Hoagland, 172 F.2d 205 (5th Cir. 1949), cert. den. 338 U.S. 816, 70 S. Ct. 57, 94 L. Ed. 494. Such a motion may not be granted unless it appears beyond question that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. J. M. Blythe Motor Lines Corp. v. Blalock, 310 F.2d 77 (5th Cir. 1962).
As noted above, there is no dispute relative to the accuracy of the contract attached to Union's pleadings and the contract speaks for itself. Determination of the meaning of a contract clause is a matter for the Court and neither party has suggested that any evidence could be produced which would shed light upon the meaning of the above quoted warranty provision. *212 Tokio Marine & Fire Insurance Co. Ltd. v. McDonnell Douglas Corp., 617 F.2d 936 (2nd Cir. 1980).
A fair reading of paragraph 7 of the contract between the parties clearly limits Union's obligations to repairing or replacing any part or parts of any modification which are defective and the clause specifically states that this warranty of repair is expressly in lieu of all other warranties "express or implied" and it specifically precludes any warranty that the cars are fit for any particular purpose or use.
The language is clear and unambiguous and it exculpates Union from any damages which may be incurred by Pargas either directly or indirectly, remote or consequential for any defective workmanship which Union may have performed except and unless the sole obligation to repair the defective part. Thus, unless there is some provision of Illinois law which prohibits the enforcement of the contract, it but remains to be applied.
The argument by Pargas that tort liability is not contemplated by the warranty provision cannot be accepted. In the first place, the third party complaint filed by Pargas is not a tort claim but it is specifically alleged to be a suit for defective workmanship under the contract. Moreover, it is clear that this contractural provision excludes liability of any sort, contractural or otherwise, except the limited obligation to repair any defective parts.
Our review of Illinois law convinces us that Illinois recognizes and enforces contracts containing exculpatory clauses. As noted in Tatar v. Maxon Construction Co., 54 Ill. 2d 64, 67, 294 N.E.2d 272, 273-74 (1973):
"... the contractual provisions involved are so varied that each must stand on its own language and little is to be gained by an attempt to analyze, distinguish or reconcile the decisions. The only guidance afforded is found in the accepted rule of interpretation which requires that the agreement be given a fair and reasonable interpretation based upon a consideration of all of its language and provisions."
Illinois does require that all such exculpatory provisions be construed strictly against the party who seeks to limit liability and that its provisions be clear and unequivocable. Jackson v. First National Bank, 415 Ill. 453, 114 N.E.2d 721 (1953); Westinghouse Electric Elevator Co. v. LaSalle Monroe Building Corp., 395 Ill. 429, 70 N.E.2d 604 (1946).
Viewing this agreement as a whole, it is apparent that this is a commercial transaction between parties of equal bargaining power who agreed to an allocation of the risks that might flow from the execution of the contract. Surely the parties were knowledgeable that the railway cars in question were to carry liquified petroleum gas and similar products and certainly were aware that a leak in such a tank car resulting from defective workmanship could cause damage to third person. The parties chose to enter a contract for precisely stipulated modifications and for a unit price per job over a period of several years. The contract is clear that Union intended to limit its liability for damages relating to such repairs and that it has done so. There are no allegations of fraud, mistake or error and under Illinois law, the courts will enforce contractual clauses exempting a party from liability for its own negligence or defective workmanship if it is clear that it was the intent of the parties to shift the risks of loss. Rutter v. Arlington Park Jockey Club, 510 F.2d 1065 (7th Cir. 1975); Berwind Corp. v. Litton Industries, Inc., 532 F.2d 1 (7th Cir. 1976); Contract Buyers League v. F & F Investments, 300 F. Supp. 210 (affirmed Baker v. F & F Investment, 420 F.2d 1191 (7th Cir. 1970), cert. den. 400 U.S. 821, 91 S. Ct. 42, 27 L. Ed. 2d 49; Gates Rubber Co. v. USM Corp., 351 F. Supp. 329 (D.C.Ill.1972).
Here we find no prohibition in Illinois law against the enforcement of such a contract, the provisions of the contract are clear and, applying Illinois law, they must be enforced.
For the foregoing reasons, the motion for judgment on the pleadings on behalf of *213 Union Tank Car Company is hereby GRANTED and the third party complaint will be DISMISSED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375515/ | 526 F. Supp. 2d 191 (2007)
Charles S. STEEN SEIJO, et al., Plaintiff(s)
v.
BEN R. MILLER, INC., et al., Defendant(s).
No. 04-2420 (JAG).
United States District Court, D. Puerto Rico.
October 29, 2007.
*192 Edward M. Borges, Borges Law Center, Jane A. Becker-Whitaker, San Juan, PR, for Plaintiff.
Rafael J. Martinez-Garcia, Nigaglioni & Ferraiuoli Law Offices PSC, Veronica Ferraiuoli-Hornedo, Nigaglioni & Ferraiuoli Law Offices PSC, San Juan, PR, for Defendant.
OPINION AND ORDER
JAY A. GARCIA-GREGORY, District Judge.
Pending before the Court is Charles Sanford Steen-Seijo and Eric Sergio Steen-Seijo's ("Plaintiffs") "Motion Requesting Reopening of this case and Other Relief' pursuant to Rule 60(b)(3) of Federal Rules of Civil Procedure. (Docket No. *193 44). For the reasons set forth below, the Court DENIES Plaintiffs' Motion.
FACTUAL AND PROCEDURAL BACKGROUND
On December 18, 2006, the parties filed a Stipulation for Dismissal with Prejudice, (Docket No. 42), upon which this Court entered judgement on December 19, 2006. (Docket No. 43). Plaintiffs have now filed a "Motion Requesting Reopening of this case and Other. Relief" pursuant to Rule 60(b)(3). Plaintiffs aver that the Settlement Agreement, (Docket No. 46, Exh. A), between the parties should be nullified. According to Plaintiffs, their consent was procured by fraud because, in the settlement process, they were not made aware of Defendants Ben R. Miller, Jr. And John G. Davies ("Defendants") ongoing negotiations to sell certain real estate. (Docket No. 44).
On June 18, 2007, Defendants were ordered to show cause why the relief requested by Plaintiffs should not granted. (Docket No. 45). In compliance therewith, on June 19, 2007, Defendants filed an opposition to Plaintiffs' Rule 60(b)(3) motion based on the fact that Plaintiffs' motion failed to establish any of the requirements for the avoidance of the forum selection clause agreed upon by the parties in the Settlement Agreement. (Docket No. 46). Specifically, paragraph 7.00 of the Settlement Agreement states in part that:
The Parties consent to the exclusive jurisdiction and venue of the 19th Judicial District Court in and for East Baton Rouge Parish, Louisiana with respect to making, interpretation and enforcement of this Agreement and agree that all actions concerning the making, interpretation or enforcement of this Agreement shall be brought and maintained only in that court and in no other, and with respect to such issues. All parties irrevocably and unconditionally submit to and waive all objections to venue and personal jurisdiction in the 19th Judicial District Court in and for East Baton Rouge Parish, Louisiana for such purposes. (Docket No. 46, Exh. A).
On July 2, 2007, Plaintiffs filed an opposition to Defendants' motion in which they allege that the forum selection clause is unenforceable because Puerto Rico law renders an agreement procured by fraud non-existent and, as such, none of its provisions are enforceable. (Docket No. 47). On October 18, 2007, Defendant filed a Surreply to Plaintiffs' opposition in which they contend that Plaintiffs' motion should be dismissed based on the fact that they have not alleged that the forum selection clause was obtained by fraud. (Docket No. 53).
STANDARD OF REVIEW
1. Rule 60(b)(3) Motion for Relief from Judgement
There is no question that motions to open judgments pursuant to Rule 60(b), including motions alleging fraud under Rule 60(b)(3), are addressed to the discretion of the Court. Manning v. Trustees of Tufts College, 613 F.2d 1200 (1 Cir., 1980); Pagan v. American Airlines, Inc., 534 F.2d 990 (1 Cir., 1976). The burden of establishing fraud is on the movant, and relief front a judgment under this rule may be granted only when an application is clearly substantiated by adequate, convincing proof. See, e.g., Jennings v. Hicklin, 587 F.2d 946 (8th Cir.1978); Wilkin v. Sunbeam Corp., 466 F.2d 714 (10 Cir., 1972); Di Vito v. Fidelity and Deposit Co. of Maryland, 361 F.2d 936 (7 Cir., 1966). See also Geiger v. Sea Land Service, Inc., 44 F.R.D. 1 (D.P.R., 1968) (finality of judgments requires Rule 60(b) motions to be closely scrutinized).
Moreover, in order to justify vacation of a judgment, movant under Rule *194 60(b) must also make a showing that he would have had a good defense to the main action. Wilkin v. Sunbeam Corp., 466 F.2d 714 (10 Cir., 1972). Certainly, a litigant may not use Rule 60(b) merely to relitigate the merits of his claim, and no different rule applies simply because the judgment sought to be vacated was a summary judgment. Mastini v. American Telephone and Telegraph Co., 369 F.2d 378 (2 Cir.1966); Frito-Lay of Puerto Rico, Inc. v. Camas, 92 F.R.D. 384, 395 (D.P.R.1981).
DISCUSSION
While a plaintiff's choice of forum is ordinarily given deference by the courts, this deference is inappropriate when the parties have entered into a contract providing for a different forum. Jumara v. State Farm Ins. Co., 55 F.3d 873, 880 (3rd Cir.1995); In re Ricoh Corp., 870 F.2d 570, 573 (11th Cir.1989); Outek Caribbean Distribs. v. Echo, Inc., 206 F. Supp. 2d 263, 266 (D.P.R.2002). The prevailing view towards contractual forum selection clauses is that they are prima facie valid and should be enforced unless doing so is shown by the resisting party to be unreasonable under the circumstances. See MIS Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10-13, 92 S. Ct. 1907, 32 L. Ed. 2d 513 (1972). In Bremen, the Supreme Court held that enforcement of such clauses is consistent "with ancient concepts of freedom of contract," and that refusal to do so would be a "heavy hand indeed on the future development of international commercial dealings by Americans." Id. at 11-12.
A fundamental question in evaluating the effect to be afforded to a forum selection clause is whether its language is mandatory or permissible. See Autoridad de Energía Eléctrica v. Ericsson Inc., 201 F.3d 15 (1st Cir.2000). A mandatory clause is one that requires that the litigation be brought only in the chosen forum, to the exclusion of others. Id. at 19; Redondo Construction Corp. v. Banco Exterior de España, 11 F.3d 3, 6 (1st Cir.1993). A permissible clause, on the other hand, is one that allows the parties to litigate in the chosen forum, but does not purport to exclude them from litigating in some other forum that otherwise has jurisdiction. Id. When found to be mandatory, courts will ordinarily enforce a forum selection clause.[1]
The question of whether to enforce a forum selection clause is one of federal law. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29-31, 108 S. Ct. 2239, 101 L. Ed. 2d 22 (1988). Because of Erie,[2] however, the situation is theoretically more complex when federal jurisdiction is based on diversity of citizenship. Nevertheless, given the similarity between federal law and Puerto Rico law concerning enforcement of forum selection clauses,[3] the First Circuit has applied federal common law when interpreting them in a diversity context. See Silva v. Encyclopedia Britannica Inc., 239 F.3d 385, 387 n. 1 (1st Cir. *195 2001); Lambert v. Kysar, 983 F.2d 1110, 1116-17 (1st Cir.1993) ("In cases where federal law and state law coincide on the issue in question, it is unnecessary for the court to make a full Erie analysis").
Under First Circuit standards, a party opposing the enforcement of a forum selection agreement must show that the particular clause: 1) was not "freely negotiated" or was the result of fraud[4]; 2) contravenes a strong public policy of, the forum where the suit is brought; or 3) the party challenging its enforceability shows that trial in the contractual forum will be so gravely difficult and inconvenient that it will, for all practical purposes, be deprived of its day in court. Miró González v. Avatar Realty, Inc., 177 F. Supp. 2d 101, 104 (D.P.R.2001) (quoting Bremen, 407 U.S. at 18, 92 S. Ct. 1907). A party may not avoid the effect of a forum selection clause by alleging fraud or coercion in the inducement of the contract at issue. Scherk v. Alberto-Culver Co., 417 U.S. 506, 519 n. 14, 94 S. Ct. 2449, 41 L. Ed. 2d 270 (1974); see also Lambert v. Kysar, 983 F.2d 1110, 1121 (1st Cir.1993). Rather the party has the burden of demonstrating that "the inclusion of that clause in the contract was the product of fraud or coercion." Id.
After carefully reading paragraph 7.00 of the Settlement Agreement, this Court finds that the language therein contained expresses a mandatory choice of forum. In said clause, the parties consented to irrevocably submit to the "exclusive jurisdiction and venue of the 19th Judicial District Court in and for East Baton Rouge Parish, Louisiana." This is, indeed, very sweeping and unequivocal language.[5]
In order to avoid the enforcement of the above mentioned forum selection clause, Plaintiffs merely alleges that their consent to the settlement agreement was obtained by fraud. However, Plaintiffs do not state that the forum selection clause itself was made a part of the Settlement Agreement by means of fraud or overreaching. Thus, Plaintiffs have failed to show that the forum selection clause is unenforceable as "unreasonable under the circumstances."[6]
Since the forum selection clause is valid, Plaintiffs should refer to the 19th Judicial District Court in and for East Baton Rouge Parish, Louisiana for any grievances that they may have with regards to the enforcement of the Settlement Agreement. As such, this Court denies Plaintiffs' "Motion Requesting Reopening of this case and Other Relief."
CONCLUSION
For the reasons stated above, the Court hereby DENIES Plaintiffs'"Motion Requesting Reopening of this case and Other *196 Relief" pursuant to Rule 60(b)(3). (Docket No. 44).
IT IS SO ORDERED.
NOTES
[1] Note, however, that a mandatory forum selection clause does not divest a court of jurisdiction that it otherwise retains. Rather, the clause merely constitutes a stipulation in which the parties join in asking the court to give effect to their agreement by declining to exercise its jurisdiction. Therefore, "exclusive jurisdiction" in this context refers to the intent of the parties rather than the actual power of the court. See Bremen, 407 U.S. at 12, 92 S. Ct. 1907; Silva v. Encyclopedia Britannica, Inc., 239 F.3d 385, 389 n. 6 (1st. Cir.2001).
[2] Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938).
[3] See Unisys v. Ramallo, 128 D.P.R. 842 (1991) (stating that the Puerto Rico Supreme Court has adopted the federal jurisprudence regarding general enforceability of forum selection clauses).
[4] Under Rule 9(b) of the Federal Rules of Civil Procedure, it is incumbent upon the plaintiff "to plead with particularity the facts giving rise to the fraudulent concealment claim." Epstein v. C.R. Bard, Inc., 460 F.3d 183, 189-190 (1st Cir.2006); J. Geils Band Employee Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245, 1255 (1st Cir.1996). It is well-established that "[t]his rule entails specifying in the pleader's complaint the time, place, and content of the alleged false or fraudulent representations," Powers v. Boston Cooper Corp., 926 F.2d 109, 111 (1st Cir. 1991).
[5] Autoridad de Energía Eléctrica v. Ericsson Inc., 201 F.3d 15, 18 (1st Cir.2000).
[6] See A.I. Credit Corp. v. Liebman, 791 F. Supp. 427, 430 (D.N.Y.1992)(The Court held that Defendant failed to show that the forum selection clause was unenforceable because even though he alleged that his consent to the contract was obtained by fraud, he did not allege that the forum selection clause was made part of the contract by means of fraud.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375443/ | 683 S.E.2d 867 (2009)
WALKER
v.
The STATE.
No. A09A1539.
Court of Appeals of Georgia.
August 20, 2009.
*869 Salvatore L. Schiappa III, for appellant.
W. Kendall Wynne, Jr., Dist. Atty., Clint C. Malcolm, Asst. Dist. Atty., for appellee.
JOHNSON, Presiding Judge.
A jury found Kevin Walker guilty of possession of cocaine and two counts of misdemeanor obstruction of an officer. He appeals from the convictions entered on the verdict, challenging the trial court's denial of his motion to suppress evidence. Walker asserts that law enforcement officers: (1) unlawfully detained him when they prevented him from leaving the scene; (2) frisked him without having a reasonable suspicion that he was armed or posed a safety threat; and (3) conducted a search of his person that exceeded the scope of his consent. For the reasons set forth below, we reverse.
On a motion to suppress, the burden of proving the search was lawful is on the state.[1] An appellate court reviewing a trial court's order on a motion to suppress must construe the evidence most favorably to the upholding of the trial court's findings and judgment.[2] Where, as here, the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court's application of the law to undisputed facts is subject to de novo review.[3]
The record shows that on March 27, 2007, four officers with the City of Covington Police Department were patrolling Ridge Avenue at about 6:15 p.m, while it was still daylight. They drove an unmarked car, but were wearing vests with "POLICE" printed on them and other clothing articles indicating they were police officers. Although police had received ongoing complaints that drug transactions took place on that street, they had not received any complaints of drug activity on this particular day.
The police officers saw four males standing in the street. The men looked at the police car as it approached and, as the car began to come to a stop, the men turned and started to walk out of the street and into a yard. The men had not gotten far when one of the officers said, "hey, hold on guys, come here, come here." Three of the men, including Walker, stopped. An officer went to get the one man who walked away.
The officer told the other men to come back and stand in front of him. The men came back and, at the officer's request, sat on the pavement. The officer testified that *870 Walker appeared to be very nervous, as he could see Walker's heart beating through his shirt, and he was looking around, shaking and sweating. The officers gathered the men together and patted them down "for officer's safety because of what we were dealing with." The officer who frisked Walker stated that the pat-down was based on his "experience with dealing with narcotics, and you know, the type people that sell narcotics normally have weapons." The officer did not find anything during the pat-down search. The officer then conducted what he called a "field interview," asking Walker questions such as "what's your name, what are you doing over here, [and] where do you live."
Next, the officer
asked Mr. Walker could I search him. And he said, you searched me. I had already patted him down a few minutes ago for a weapon. And I asked him, did he mind if I search him, and he said, you searched me [a] while ago. And I said, no, I just patted you down. I touched the outside of your pockets to see if you had weapons. I said, and I explained to him, a search is where I go inside your pockets. I said, do you have a problem with me doing that. He's, like, no, go ahead. So I searched him.
(Emphasis supplied.) The officer then
searched every pocket on his person.... And then, after I had searched everything, I went back to his waistline, his belt line right where you button and zip your britches and pulled that. I just put my hand against his stomach, pulled his pants out, and I saw a [small cloth] bag sitting in his crotch area.
The officer testified that the purpose of this search was to check for narcotics. The officer "wanted to go and do an intrusive [search], inside of his pockets and inside, you know, wherever he could hide contraband, and his crotch being one of them."
The officer concluded that, based on his experience, the cloth bag contained narcotics. He asked another officer to handcuff Walker. While Walker was being handcuffed, he attempted to pull away from the officers. The officers tackled Walker and told him to put his hands behind his back. Walker did not, and stood back up. Officers knocked him to the ground again and then shot him with a taser gun. After handcuffing Walker, an officer removed the cloth bag from Walker's crotch. The bag contained cocaine.
1. On appeal, Walker asserts that the stop was constitutionally improper. We agree.
The United States Supreme Court has sculpted out three tiers of encounters between the police and citizens: (1) communication between police and citizens involving no coercion or detention, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.[4]
In the first tier, police officers may approach a citizen, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave.[5] The second tier occurs when the officer actually conducts a brief investigative Terry stop of the citizen.[6] In this level, a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity.[7] Whenever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person.[8]
It is undisputed that the stop here, in which Walker was told to "hold on ... come here," and sit on the pavement, and was then asked questions pursuant to a "field investigation," was a second-tier, investigative *871 detention that required the officer to have a particularized and objective basis for suspecting that Walker was or was about to be involved in criminal activity.[9] However, the officer articulated no particularized and objective basis for suspecting that Walker was so involved. The officer stated that he suspected Walker of criminal activity because Walker was standing in the roadway in an area in which drug transactions were known to take place, and he appeared to be nervous upon the officers' approach.
But there were no complaints that day of drug activity or of Walker's involvement in such activity; the officer did not know Walker or know if he had been involved in drug activity in the past; the officers did not see Walker or the other men "flagging people down," as one officer testified that persons involved in roadway drug transactions typically do; the encounter was during daylight hours on a public street; the police were in an unmarked vehicle; Walker did not flee, but had only taken a couple of steps away, then stopped and came back when called by police; and Walker's apparent nervousness in the presence of a group of police officers, even in a known drug area, does not provide a basis for the reasonable articulable suspicion required by Terry.[10] At best, the officer's stated reasons raised a subjective, unparticularized suspicion or hunch. They did not constitute an objective basis for suspecting Walker of involvement in drug activity and justify a second-tier investigatory detention.[11] The detention here was unreasonable.[12] And, we note, Walker's attempt to avoid the illegal detention cannot support an obstruction charge.[13]
2. The purportedly consensual search of Walker's person was also unlawful. First, because Walker's consent to search his person was the product of an illegal detention, it was not valid.[14]
Second, even if we agreed with the state that Walker's consent was not the product of an illegal detention, the search exceeded the scope of Walker's consent. The state has the burden of proving the validity of a consensual search, and we are required to scrutinize closely an alleged consent to search.[15] The intrusiveness of a consensual searchincluding the type, duration, and physical zone of the intrusionis limited by the permission granted, and only that which is reasonably understood from the consent may be undertaken.[16] Consent to search does not include, for instance, consent to removal of clothing or consent to a body cavity search; and consent to search pockets for weapons does not include consent to search pockets for drugs.[17] When Walker finally consented to a search, it was only after the officer told him that "a search is where I go inside your pockets," and asked if Walker had "a problem with [him] doing that." Walker's indication that he did not "have a problem" with the officer searching his pockets cannot be interpreted as having extended so far as to have authorized the *872 officer to, after searching all of his pockets and finding nothing, push Walker's abdomen, pull his waistband forward, and look down inside Walker's pants at his crotch area for narcotics. In fact, the officer admitted on cross-examination that he did not ask Walker if he could "pull [Walker's pants] open so [he] could see down his pants to his private area." The search inside Walker's pants exceeded the parameters of Walker's consent to a search of his pockets.[18] The trial court thus erred in finding the seizure of the drugs lawful and in denying Walker's motion to suppress.[19]
3. In light of our ruling above, it is unnecessary to address Walker's contention that the pat-down search for weapons was also unlawful.
Judgment reversed.
ELLINGTON and MIKELL, JJ., concur.
NOTES
[1] Teal v. State, 291 Ga.App. 488, 489, 662 S.E.2d 268 (2008).
[2] Id. at 488, 662 S.E.2d 268.
[3] Id.
[4] State v. Dukes, 279 Ga.App. 247, 248, 630 S.E.2d 847 (2006).
[5] Id. at 248-249, 630 S.E.2d 847.
[6] Id. at 249, 630 S.E.2d 847.
[7] Id.
[8] State v. Sapp, 214 Ga.App. 428, 431(3), 448 S.E.2d 3 (1994).
[9] Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); see State v. Banks, 223 Ga.App. 838, 479 S.E.2d 168 (1996).
[10] See Holmes v. State, 252 Ga.App. 286, 289, 556 S.E.2d 189 (2001).
[11] See id. at 288-289, 556 S.E.2d 189 (Terry stop improper where defendant walked away, in a known drug area, and seemed nervous); Barnes v. State, 228 Ga.App. 44, 46, 491 S.E.2d 116 (1997) (Terry stop improper where defendant in known drug area tried to walk away and "acted suspiciously"). See also Peters v. State, 242 Ga. App. 816, 817(1), 531 S.E.2d 386 (2000) (detention unlawful where defendant was walking hurriedly in known drug area and appeared nervous). Compare State v. McKinney, 265 Ga.App. 322, 324, 593 S.E.2d 865 (2004) (Terry stop lawful where defendant was in dark remote area of private property with "no loitering" sign posted, and defendant's responses to officer's questions were suspicious).
[12] See Banks, supra.
[13] See Black v. State, 281 Ga.App. 40, 48(1), 635 S.E.2d 568 (2006).
[14] See State v. Gibbons, 248 Ga.App. 859, 864(2), 547 S.E.2d 679 (2001).
[15] See Foster v. State, 285 Ga.App. 441, 442, 646 S.E.2d 302 (2007).
[16] Springsteen v. State, 206 Ga.App. 150, 152, 424 S.E.2d 832 (1992).
[17] See Foster, supra at 443-444, 646 S.E.2d 302; Springsteen, supra.
[18] See Foster, supra; Amato v. State, 193 Ga. App. 459, 460(1), 388 S.E.2d 54 (1989).
[19] See Foster, supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375449/ | STATE OF NORTH CAROLINA
v.
LAURICE MILTON RAYNOR, JR., Defendant.
No. COA08-1490
Court of Appeals of North Carolina
Filed October 6, 2009
This case not for publication
Attorney General Roy Cooper, by Assistant Attorney General Chris Z. Sinha, for the State.
Greene & Wilson, P.A., by Thomas Reston Wilson, for defendant-appellant.
GEER, Judge.
Defendant Laurice Milton Raynor, Jr. appeals his convictions of two counts of first degree rape, four counts of first degree sexual offense, and two counts of second degree kidnapping. Defendant primarily argues that the trial court erred by not definitively ruling prior to trial on his motion in limine to exclude certain evidence under Rule 404(b) of the Rules of Evidence. As our courts have repeatedly observed, a ruling on a motion in limine is a preliminary decision subject to change at trial. Although defendant contends that his attorney was hampered in cross-examining witnesses without a definitive pre-trial ruling because he was concerned about opening the door to the Rule 404(b) evidence, that potential would have existed even if the trial court had excluded the evidence in advance of trial. Had counsel opened the door, the trial court would have been free to revisit its motion in limine ruling and allow the admission of the evidence. We, therefore, hold that the trial court did not err with respect to the motion in limine. Because we also find defendant's remaining argument unpersuasive, we conclude that defendant received a trial free of prejudicial error.
Facts
At trial, the State's evidence tended to show the following facts. On 17 June 2001, "Amy," who was 15 years old, and her friend "Susan," who was 16 years old, were on vacation with Susan's family at Ocean Isle Beach, North Carolina.[1] That evening, the two girls went for a walk down the street. There were other young people out walking and cruising. Although most of the people looked like they were in their teens or early twenties, the girls noticed an older-looking man, maybe in his forties, driving a black Mazda pickup truck. He had driven around the loop several times while they were out walking.
At some point, the girls heard someone come up behind them and Amy felt the person bump into her shoulder. Turning, the girls saw a man later identified as defendant holding a marble or ivory-gripped gun in his right hand and holding his T-shirt over his nose with his left. Defendant motioned with the gun for the girls to get into the black Mazda pickup truck. Defendant told the girls to put their heads down between their legs, and he drove around for awhile in circles or making U-turns. At one point, Susan thought defendant said to sit up she did so and was able to fully see defendant. He ordered her to lie back down, pulled out two pillowcases from behind the front seat, and put them over the girls' heads. He also handcuffed their hands behind their backs.
Defendant eventually pulled into an unpaved driveway and parked. Defendant got the girls out of the truck, walked them up some wooden steps, and took them inside a building. Defendant led them across a linoleum floor to another section of the building with carpet, where they could hear a television playing. Defendant forced the girls to lie down on their backs on the carpet with their handcuffed hands underneath them. He took off the pillowcases and tried to duct-tape their eyes shut, but Amy could see defendant under the bottom of the duct tape.
Defendant took off the girls' pants and underwear and raised or unhooked their bras. Defendant ordered Susan to perform oral sex on him. When Susan told defendant that she thought she was going to throw up, defendant threatened to shoot her. Defendant then got on top of Susan and engaged in vaginal intercourse. Defendant also performed oral sex on Susan.
Defendant then asked Amy if she had "ever been fucked." Amy began crying and told him that she was a virgin. Defendant threatened to shoot her if she did not stop whining. Although Amy could not remember in what order things happened, defendant licked and kissed Amy's right breast, performed oral sex on her, and engaged in vaginal intercourse.
Afterward, defendant wiped each girl's vagina with a wet washcloth and put the girls' clothes back on them with the exception of their underwear, which he kept. Defendant left the duct tape over the girls' eyes, placed the pillowcases back over their heads, and walked them outside to the truck. When in the truck, defendant ordered them to put their heads down. At one point, while driving, defendant took the pillowcases off and told Susan that if she performed oral sex on him, he would let them go. Susan, who was in the passenger seat, leaned over Amy in the middle seat and performed oral sex on defendant. Defendant then put the pillowcases back over the girls' heads.
Defendant eventually stopped in a grassy parking lot of a church, got the girls out of the truck, and told them to lie down in front of his truck. Because they were afraid defendant would drive over them, the girls refused, and defendant took off the pillowcases, duct tape, and handcuffs and ordered the girls at gunpoint to walk towards a wooded area away from the truck. When the girls were sure that defendant had driven off, they ran to a house with its lights on. The girls called Susan's father who was out looking for them with the police.
The girls were taken immediately to Brunswick Community Emergency Department. There, a nurse trained in conducting sexual assault examinations collected evidence from Amy and Susan. When Amy told the nurse that defendant had licked her right breast, the nurse took a swab from that area. The evidence was sent to the SBI for DNA analysis and indicated the presence of an unknown male's DNA on Amy's breast.
In 2006, detectives received information in another investigation that caused them to search a trailer located 35 to 40 minutes from Ocean Isle. Defendant had lived there from 3 March 2001 through 29 August 2001. They subsequently obtained a search warrant for defendant's current residence. While officers were executing the search warrant, defendant drove up. He agreed to allow the officers to take an oral swab of his mouth. The SBI determined that defendant's DNA matched the DNA found on Amy's breast. In addition, both Susan and Amy identified defendant as the man who had abducted them.
Also in 2006, Glenn Britt, a car salesman who regularly did business with defendant, called law enforcement and told them that he had sold defendant a black Mazda pickup truck in November 2000. He also told them that in 2000, after seeing the publicity about the kidnapping and rape of two girls by a man in a black Mazda pickup truck, he jokingly said to defendant that "they're looking for you and that black Mazda truck." According to Mr. Britt, defendant looked "shock[ed]" and responded that he had painted the truck white to match his other company trucks and then sold it. Mr. Britt thought that was odd since defendant had told him that he was buying the truck for personal use. Mr. Britt also told law enforcement that he knew defendant was separated from his wife in June 2001, defendant was living in the area near where the girls were released, and defendant normally carried a gun. A detective traced defendant's black Mazda pickup truck. The current certificate of title indicated that the vehicle was a white Mazda pickup truck and that title was transferred in Cumberland County on 31 August 2002.
On 8 March 2006, defendant was indicted for eight separate offenses. With respect to Amy, defendant was charged with one count each of first degree rape, first degree sexual offense, and first degree kidnapping. As for Susan, defendant was charged with first degree rape, three counts of first degree sexual offense, and first degree kidnapping.
At trial, defendant called his wife, Kathy Raynor, as a witness. She testified that she and defendant separated in February 2001 for four months. On 17 June 2001, which was Father's Day, she went with defendant, even though they were separated, to a family party about an hour and a half to an hour and 45 minutes away in Fayetteville. She and defendant left the party around 5:00 or 6:00 p.m. Defendant and his wife reconciled a few days later. Ms. Raynor admitted that when her husband was arrested in 2006 on the charges in this case, she sold defendant's gun collection within days. She testified that she needed the money.
Defendant's uncle, Michael Combs, testified that in early April 2001, he was having trouble with his heating and air conditioning. Mr. Combs knew that defendant wanted the black Mazda truck painted white to match his other work trucks, so when defendant dropped off repair materials for Mr. Combs' heating and air conditioning problem, Mr. Combs arranged for defendant's truck to be painted. Mr. Combs testified that he knew the truck was painted sometime around 10 April 2001 because he had written a check to defendant for the repair materials, and defendant had deposited the check on 10 April 2001.
The jury convicted defendant of all the charges. The trial court arrested judgment on the two first degree kidnapping convictions and imposed judgments on the lesser-included offense of second degree kidnapping. The court sentenced defendant to a presumptive-range term of 240 to 297 months for the first degree rape of Susan; a consecutive presumptive-range term of 240 to 297 months for the first degree rape of Amy; a consecutive presumptive-range term of 240 to 297 months for one count of first degree sexual offense of Susan; two presumptive-range terms of 240 to 297 months for one count of first degree sexual offense of Susan and one count of first degree sexual offense of Amy both running consecutively to the sentence for the prior count of first degree sexual offense of Susan; a presumptive-range term of 240 to 297 months for the third count of first degree sexual offense of Susan to run consecutive to the sentence for the second count of first degree sexual offense of Susan; a presumptive-range term of 25 to 39 months for second degree kidnapping of Susan to run consecutive to the sentence for the third count of first degree sexual offense of Susan; and a presumptive-range term of 25 to 39 months for the second degree kidnapping of Amy to run consecutive to the sentence for the kidnapping of Susan conviction. After sentencing, defendant moved for a mistrial, and the trial court denied the motion. Defendant timely appealed to this Court.
I
Defendant first argues on appeal that the trial court erred by failing to definitively rule on his motion in limine to exclude evidence pursuant to Rule 404(b) of the Rules of Evidence. Defendant had, prior to trial, requested that the trial court exclude evidence of alleged sexual misconduct by defendant with a 13-year-old girl in 2006. It was the investigation and publicity related to that charge, which had led to the search of the trailer, the search of defendant's home, the obtaining of the DNA swab, Mr. Britt's contacting the police, and Amy's identifying defendant by looking at a picture on the internet.
In response to defendant's motion, the trial court deferred ruling on the issue until trial:
THE COURT: What I was thinking of was simply just to I don't know anything about this case, folks, other than what's in the indictments, and the court files that have been thrust up here about an hour and a half ago, and what y'all have said. And many times the relevancy and the admissibility of potential 404(b) evidence relates to whatever the course of the trial is and the testimony up to that point. What I was considering doing is simply asking you folks to just let me know when this issue comes forward and you want to put it in front of the jury. If you do I'll send the jury out and we'll hear whatever it is you want to do and then go from there.
At this point, defense counsel stated that he was "fine" with the trial court's decision. The State agreed not to mention the evidence in jury selection and in opening statements.
Defendant argues on appeal that the trial court's failure to rule on his motion in limine "substantially prejudiced" defense counsel's ability to cross-examine the State's witnesses as he "risk[ed] opening the door to the 404(b) evidence which had never been ruled upon." Defendant, however, fails to cite any authority requiring the trial court to rule conclusively on the admissibility of evidence prior to trial.
To the contrary, "[r]ulings on motions in limine are preliminary in nature and subject to change at trial, depending on the evidence offered . . . ." State v. Hayes, 350 N.C. 79, 80, 511 S.E.2d 302, 303 (1999) (per curiam). Indeed, our Supreme Court has specifically upheld a trial court's refusal to rule on a motion in limine seeking to preclude the State from cross-examining the defendant on certain facts because, even though the evidence appeared inadmissible, "the trial court could not know if defendant would `open the door' to cross-examination about [those facts] until defendant testified." State v. White, 340 N.C. 264, 289, 457 S.E.2d 841, 855, cert denied, 516 U.S. 994, 133 L. Ed. 2d 436, 116 S. Ct. 530 (1995). See also State v. Lamb, 321 N.C. 633, 648, 365 S.E.2d 600, 608 (1988) ("The trial court, at these early stages, had no factual context in which to make a decision and properly deferred its ruling. The Rules of Evidence are not to be applied in a vacuum; they are to be applied in a factual context. A trial court makes its decisions as that factual context unfolds and as the circumstances warrant."). To the extent that defendant's argument is based on his contention that his counsel's cross-examination was less vigorous because of fears that he might open the door to the Rule 404(b) evidence, defendant has failed to demonstrate that the trial court erred in deferring its ruling on defendant's motion in limine.
Defendant, however, also argues that the trial court, by ruling question by question, was making a "very piecemeal ruling on the 404(b) issues [that] allowed for [the] State [to] gradually offer improper 404(b) evidence . . . ." The trial court, however, addressed each objection made by defendant's counsel and, in many instances, granted the relief sought by defendant, including giving a requested cautionary instruction to a witness. When defendant did not prevail on an objection, it was because he had opened the door to the evidence, a permissible basis for admitting the evidence. See State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981) ("[T]he law wisely permits evidence not otherwise admissible to be offered to explain or rebut evidence elicited by the defendant himself. Where one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence would be incompetent or irrelevant had it been offered initially.").
The admission of other evidence related to the 404(b) issues was due to defendant's failure to object. It is fundamental that "'[a] motion in limine is insufficient to preserve for appeal the question of the admissibility of evidence if the defendant fails to further object to that evidence at the time it is offered at trial.'" Hayes, 350 N.C. at 80, 511 S.E.2d at 303 (quoting State v. Bonnett, 348 N.C. 417, 437, 502 S.E.2d 563, 576 (1998), cert. denied, 525 U.S. 1124, 142 L. Ed. 2d 907, 119 S. Ct. 909 (1999)). Thus, "a defendant must `object when the evidence that was the subject of the motion in limine [is] offered at trial . . . .'" State v. Reaves, ___ N.C. App. ___, ___, 676 S.E.2d 74, 77 (2009) (quoting Hayes, 350 N.C. at 80, 511 S.E.2d at 303). Defendant cannot, therefore, object on appeal to the admission of Rule 404(b) evidence when he failed to object to that evidence at trial.
II
Defendant next argues that the trial court erred in denying his motion for a mistrial. During the trial, Mr. Combs, defendant's uncle, testified that he knew that defendant had painted the truck white around 10 April 2001 because of a check introduced into evidence made out to defendant and deposited by defendant on that date. During closing arguments, the prosecutor argued that the check had been altered, pointing out that the check's bank account numbers appeared to have been whited-out and that the bank processing stamp showed that it had been processed on 20 April 2000, almost a year prior to the date written on the check by Mr. Combs.
After closing arguments, but before the jury was instructed, defense counsel informed the trial court in chambers that he believed the check had been altered and fraudulently offered as evidence. The court asked both defense counsel and the prosecutor whether they wanted to move to strike Mr. Comb's testimony, strike the exhibit, or for any other corrective action. Ultimately, neither defense counsel nor the prosecutor made any such motions. During the jury's deliberations, the jury asked to see defendant's uncle's check. Neither defense counsel nor the prosecutor objected to the evidence being sent back to the jury room for publication.
The jury returned its verdict on 1 July 2008. The trial court sentenced defendant the same date. Defendant filed his motion for a mistrial the next day, 2 July 2008. N.C. Gen. Stat. § 15A-1061 (2007) (emphasis added) provides that "[u]pon motion of a defendant or with his concurrence the judge may declare a mistrial at any time during the trial." Thus, based on the plain language of N.C. Gen. Stat. § 15A-1061, the trial court may "exercise its mistrial authority in a criminal matter only `during the trial[.]'" State v. Smith, 138 N.C. App. 605, 609, 532 S.E.2d 235, 238-39 (2000) (quoting N.C. Gen. Stat. § 15A-1061), disc. review improvidently allowed, 353 N.C. 355, 543 S.E.2d 477 (2001). "Once the court has discharged the jury, there is no purpose in ordering a mistrial[.]" State v. O'Neal, 67 N.C. App. 65, 69, 312 S.E.2d 493, 495, aff'd as modified on other grounds, 311 N.C. 747, 321 S.E.2d 154 (1984). As a result, after the jury has returned a verdict, a motion for a mistrial is untimely and should be denied by the trial court. See State v. McKenna, 289 N.C. 668, 689, 224 S.E.2d 537, 551 ("Defendant's motion for a mistrial was made after verdict and therefore came too late."), death sentence vacated, 429 U.S. 912, 50 L. Ed. 2d 278, 97 S. Ct. 301 (1976). Since defendant's motion for a mistrial was not made during the trial, but only after the jury had been discharged, it was untimely, and the trial court properly denied the motion.
No Error.
Judges BRYANT and STEPHENS concur.
Report per Rule 30(e).
NOTES
[1] The pseudonyms "Amy" and "Susan" are used throughout this opinion to protect the minors' privacy and for ease of reading. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2573558/ | 210 P.3d 735 (2007)
IN RE ESTATE OF JOHN O. MELOT, DECEASED.
No. 45106.
Supreme Court of Nevada.
July 18, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375380/ | 384 S.C. 571 (2009)
683 S.E.2d 495
John HOLLMAN, Respondent,
v.
Dr. Jonathon WOOLFSON, individually; TLC Laser Eye Centers (Piedmont/Atlanta) LLC; TLC The Laser Center (Institute), Inc; Dr. Michael A. Campbell, individually; Optical Solutions, Inc.; and Optical Solutions of Bluffton, LLC, Defendants,
of whom Dr. Jonathan Woolfson, TLC The Laser Center (Institute), Inc., TLC Laser Eye Centers (Piedmont/Atlanta) LLC are Petitioners and
Danielle Hollman, Respondent,
v.
Dr. Jonathon Woolfson, individually; TLC Laser Eye Centers (Piedmont/Atlanta) LLC; TLC The Laser Center (Institute), Inc; Dr. Michael A. Campbell, individually; Optical Solutions, Inc.; and Optical Solutions of Bluffton, LLC, Defendants,
of whom Dr. Jonathan Woolfson, TLC The Laser Center (Institute), Inc., and TLC Laser Eye Centers (Piedmont/Atlanta) LLC are Petitioners and
George E. Carter, Jr., and Jean Carter, Respondents,
v.
TLC Laser Eye Center (Institute), Inc. f/k/a TLC The Laser Center (Piedmont), Inc., Petitioner.
No. 26725.
Supreme Court of South Carolina.
Submitted September 2, 2009.
Decided September 21, 2009.
*576 W. Howard Boyd, Jr., Ronald G. Tate, Jr., and J. Matthew Whitehead, of Gallivan, White & Boyd, PA, of Greenville, for Petitioners TLC The Laser Eye Center (Institute), Inc. and TLC Laser Eye Centers (Piedmont/Atlanta) LLC; George C. Beighley and Mason A. Summers, of Richardson Plowden & Robinson, P.A., for Petitioner Woolfson.
Douglas F. Patrick and Stephen R.H. Lewis, of Covington, Patrick Hagins, Stern & Lewis, P.A., of Greenville; James Walter Fayssoux, Jr., and Paul S. Landis, of Anderson Fayssoux & Chasteen, of Greenville, for Respondents.
PER CURIAM.
Petitioners have filed a petition for a writ of certiorari seeking review of an order of the circuit court allowing respondents to contact nonparty patients of petitioners. We grant the petition, dispense with further briefing, and vacate the order of the circuit court.
This matter involves three actions filed against petitioners for medical malpractice, fraud, and breach of contract arising out of LASIK eye surgeries. By order dated November 14, 2008, the circuit court compelled petitioners to respond to respondents' discovery requests, including the production of the medical records of several nonparty patients treated at petitioners' facilities. At the same time, a Protective Order was issued to prohibit the use of confidential information obtained through the medical records and to prohibit any person from contacting the nonparty patients or their medical providers. Petitioners complied with the orders and provided unredacted copies of the medical records of the nonparty patients.
On February 17, 2009, respondents filed a motion to modify the Protective Order to allow them to contact and interview nonparty patients of petitioners whose identity and medical records were disclosed pursuant to the November 14th order. By order dated April 21, 2009, the circuit court found respondents *577 were entitled to interview the nonparty patients subject to the privacy safeguards set forth in the Protective Order.
Petitioners first sought a writ of certiorari to review the April 21st order. This Court granted the petition for a writ of certiorari and remanded the matter to the circuit court to address whether the interviews with the nonparty patients were necessary to respondents' claims. Hollman v. Woolfson, Op. No.2009-MO-025 (S.C. Sup.Ct. filed May 28, 2009).
On remand, the circuit court found the interviews were necessary for respondents' fraud cause of action, Unfair Trade Practices Act (UTPA) cause of action, and in order for respondents to meaningfully respond to petitioners' defenses of the statute of frauds and the statute of repose. Petitioners now seek another writ of certiorari to review the decision of the circuit court.
A writ of certiorari may be issued to review a discovery order where exceptional circumstances exist. Laffitte v. Bridgestone Corp., 381 S.C. 460, 674 S.E.2d 154 (2009). This matter presents exceptional circumstances which warrant the issuance of a writ of certiorari. Allowing the interviews will moot any claim petitioners could raise on appeal that the discovery was erroneously allowed. In addition, the privacy rights of patients is an issue of significant public interest, and issues involving the release of patient information in discovery is arising more often in the courts. Accordingly, we grant the petition for a writ of certiorari and dispense with further briefing.
On certiorari, this Court will review only errors of law and will not review factual findings unless wholly unsupported by the evidence. S.C. Bd. of Exam'rs in Optometry v. Cohen, 256 S.C. 13, 180 S.E.2d 650 (1971). A trial judge's rulings on discovery matters will not be disturbed by an appellate court absent a clear abuse of discretion. Dunn v. Dunn, 298 S.C. 499, 381 S.E.2d 734 (1989).
Rule 26(b)(1), SCRCP, provides, unless otherwise limited by order of the court, "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action ... It is not ground for objection that the information sought will be *578 inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." If the discovery process threatens to become abusive or create a particularized harm to a litigant or third party, the trial judge may issue an order "to protect a party or person from annoyance, embarrassment, oppression, or undue burden by expense." Rule 26(c), SCRCP; Hamm v. S.C. Pub. Serv. Comm'n, 312 S.C. 238, 439 S.E.2d 852 (1994). If a person requesting a protective order shows a particularized harm which will be caused by allowing the discovery, the opposing party has the burden of showing the information sought is "relevant and necessary" to the case. Laffitte v. Bridgestone Corp., supra; Hamm v. S.C. Pub. Serv. Comm'n, supra. In determining whether a protective order is necessary, the trial judge is required to weigh the factors of whether the information sought is "relevant and necessary" evidence against any particularized harm the opposing party may suffer. Laffitte v. Bridgestone Corp., supra; Hamm v. S.C. Pub. Serv. Comm'n, supra. In determining whether information is necessary, the party seeking the information must "demonstrate with specificity exactly how the lack of information will impair the presentation of the case on the merits to the point that an unjust result is a real, rather than a merely possible, threat." Laffitte v. Bridgestone Corp., 674 S.E.2d at 163. The trial court must determine whether there are reasonable alternatives available to discover the information. Id.
As to the requirement of particularized harm, no protective device can limit the invasion of the nonparty patients' privacy once contact with them is permitted. The nonparty patients have a valid and legitimate expectation that their medical information will remain confidential which outweighs respondents' intent to use this personal information to buttress their claims by showing a propensity by petitioners for malpractice. Petitioners have shown particularized harm to the nonparty patients which will arise if the interviews are permitted. Both the State and Federal government have recognized the importance of the privacy rights of patients. Therefore, respondents must show the information sought from the interviews is relevant and necessary to the case.
*579 As to the requirement that the information sought be relevant, this Court has held the information must be specifically relevant to the issues involved in the litigation, not merely relevant to the subject matter of the litigation. Laffitte v. Bridgestone Corp. supra.
The circuit court judge found respondents' "methodology by which [they have] restricted its interview requests provides a substantial basis for the relevancy." He found "the ability to interview [the nonparty patients] and discuss their individual experiences at TLC along with those of [respondents] is relevant under Rule SCRCP 26 [sic] and permissible except to the extent that good cause exists to restrict discovery of this information and these witnesses." The judge further found the information sought was directly related to the issues central to respondents' malpractice claims. He stated the discovery of other patients with problems and treatment similar to respondents' problems is clearly relevant since a central issue in the malpractice claims is "the applicable standard of care as it evolved during and after the time of [respondents'] surgeries."
A claim for malpractice requires a showing of the standard of care, a breach of the standard of care, proximate cause, and damages. Doe v. Am. Red Cross Blood Servs., 297 S.C. 430, 377 S.E.2d 323 (1989). The standard of care which must be observed by a physician is that of an average, competent practitioner acting in the same or similar circumstances. Id.
The evidence relating to treatment of the nonparty patients is irrelevant to respondents' negligence claims in that it cannot be used to show petitioners breached the standard of care with a particular patient. Accordingly, the circuit court erred in finding the interviews with the nonparty patients were relevant to the causes of action for malpractice. Whether petitioners breached the standard of care with any patients other than respondents is irrelevant to whether petitioners were negligent in their treatment of respondents.
A cause of action for fraud requires: (1) a representation of fact; (2) its falsity; (3) its materiality; (4) either knowledge of the falsity of the representation or reckless *580 disregard of its truth or falsity; (5) the intent that the representation be acted on; (6) the hearer's ignorance of the falsity of the representation; (7) the hearer's reliance on the truth of the representation; (8) the hearer's right to rely on the representation; and (9) the hearer's consequent and proximate injury. Schnellmann v. Roettger, 373 S.C. 379, 645 S.E.2d 239 (2007).
There is no evidence that any of the nonparty patients were victims of fraud. The treatment received by the nonparty patients is irrelevant to respondents' causes of action for fraud. Whether other patients were similarly treated does not prove any of the elements required to show fraudulent conduct by petitioners toward respondents.
To establish a cause of action under the UTPA, the plaintiff must prove unfair or deceptive acts or practices in the conduct of any trade or commerce. S.C.Code Ann. § 39-5-20(a) (1985). The unfair or deceptive act or practice must affect the public interest. Singleton v. Stokes Motors, Inc., 358 S.C. 369, 595 S.E.2d 461 (2004). An impact on the public interest may be shown if the acts or practices have the potential for repetition. Id. The potential for repetition may be proven by showing: (1) the same kind of actions occurred in the past, thus making it likely they will continue to occur absent deterrence; or (2) the defendant's procedures created a potential for repetition of the unfair and deceptive acts. Id.
Although evidence of petitioners' treatment of nonparty patients could be relevant for the UTPA cause of action, as discussed below, the evidence is not necessary for respondents to establish that cause of action.
In determining whether information is necessary, the party seeking the information must "demonstrate with specificity exactly how the lack of information will impair the presentation of the case on the merits to the point that an unjust result is a real, rather than a merely possible, threat." Laffitte v. Bridgestone Corp., 674 S.E.2d at 163. The trial court must determine whether there are reasonable alternatives available to discover the information. Id.
The circuit court found that respondents allege petitioners engaged in a corporate-wide scheme to conceal the harm done to respondents and other patients and to delay the disclosure *581 of crucial information beyond the applicable statutes of limitations and/or repose. The judge found the information sought from other patients is necessary because the alleged scheme is based on the institutional quality of petitioners' knowledge of the falsity of their representations and their knowledge that the representations would be relied on by a significant number of patients. However, the circuit court failed to make specific findings as to how the lack of information would impair respondents' case.
Respondents may pursue their claims against petitioners without interviewing petitioners' nonparty patients. Respondents failed to demonstrate with specificity what information they seek or how the lack of interviews with the nonparty patients will impair the presentation of their case to the extent that an unjust result is a real threat. Further, there is no evidence that there are no other reasonable alternatives available to respondents to discover the information they seek from the nonparty patients.
The circuit court committed an abuse of discretion in determining the interviews with the nonparty patients were necessary. Petitioners' treatment of other patients is not necessary to establish any element of respondents' causes of action. In fact, no information obtained in the interviews could establish whether petitioners breached the standard of care when treating respondents or committed fraud on respondents. As to the UTPA cause of action, the circuit court did not make a specific finding as to exactly how the lack of information obtained from the interviews would impair respondents' presentation of the merits of that cause of action or that there were no reasonable alternatives available to discover the information. Laffitte v. Bridgestone Corp., supra. Accordingly, the record does not support the finding that the interviews are necessary for the UTPA cause of action.
Further, it would be inequitable to allow respondents to obtain nonparty patient information from petitioners with the understanding the patients would not be contacted, only to subsequently permit respondents to contact the patients. Had the provision of the Protective Order prohibiting respondents from contacting petitioners' patients not been included, there is a possibility petitioners would not have disclosed the patient *582 records, would have sought to redact the records, and/or would have sought review of the order requiring the disclosure by writ of certiorari or by refusing to comply with the order and appealing a contempt citation. Therefore, the order of the circuit court allowing respondents to interview the nonparty patients is
VACATED.
TOAL, C.J., WALLER, PLEICONES, BEATTY and KITTREDGE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375382/ | 683 S.E.2d 453 (2009)
Brenda LIVESAY, Trustee of the Ronald Livesay and Brenda Livesay Family Trust dated March 26, 1998, Brenda Livesay, Guardian ad Litem for Candice Livesay and Ron Livesay, Jr., and Brenda Livesay, Individually, Plaintiffs,
v.
CAROLINA FIRST BANK, Safeco Corporation, First National Insurance Company of America, and E.K. Morley, Administrator CTA of the Estate of Ronald B. Livesay, Deceased, Defendants.
No. COA09-111.
Court of Appeals of North Carolina.
October 6, 2009.
*454 Gary A. Dodd and Charles Brewer, Asheville, for plaintiff.
Russell McLean III, Waynesville, for plaintiff as Guardian Ad Litem for Candace Livesay and Ron Livesay, Jr.
Smith Moore Leatherwood, L.L.P., by James G. Exum, Jr., Allison O. Van Laningham, and L. Cooper Harrell, Greensboro, for defendant E.K. Morley.
BRYANT, Judge.
On 7 August 2008, plaintiff Brenda Livesay, acting individually and in her capacity as trustee and guardian ad litem, filed a declaratory judgment action against Carolina First Bank, Safeco Corporation, First National Insurance *455 Company of America and E.K. Morley, administrator CTA of the Estate of Ronald B. Livesay, deceased. On 21 August 2008, Morley moved to dismiss under Rule 12(b), arguing that plaintiff lacked standing and that the superior court lacked subject matter jurisdiction. On 9 October 2008, the trial court granted the motion, stating that it "lack[ed] jurisdiction of the subject matter." Plaintiff appeals. For the reasons discussed below, we affirm.
Facts
Plaintiff's husband, Ronald B. Livesay, died 1 July 2005 and on 30 December of that year, plaintiff filed a declaratory judgment action in the Henderson County Superior Court against Carolina First Bank, Safeco Corporation, and First National Insurance Company of America ("the other defendants"). Plaintiff asked the trial court to construe the terms of the Livesay Family Trust, interpret various relevant state statutes, and determine whether the trust was revocable and therefore reachable by creditors of Mr. Livesay's estate. Morley was thereafter appointed administrator CTA of the estate and, in July 2006, he intervened as a defendant in the 2005 action. On 6 June 2007, Morley and the other defendants moved for partial summary judgment. The trial court granted the motion, and plaintiff appealed. This Court unanimously affirmed, holding that the trust was reachable by the estate's creditors to the extent necessary to satisfy the estate's debts. Livesay v. Carolina First Bank, 192 N.C.App. 234, 665 S.E.2d 158 (2008) ("Livesay I"). Plaintiff's petition for discretionary review of that decision is pending in the North Carolina Supreme Court.
On 26 February 2008, prior to our decision in Livesay I, Morley, as Administrator CTA of the estate, moved for a preliminary injunction in the Henderson County Superior Court to restrain plaintiff from making any expenditures or withdrawals from the Livesay Family Trust until all issues related to the administration of the estate were resolved. After the trial court denied the motion for preliminary injunction, the other defendants appealed and we affirmed. Livesay v. Carolina First Bank, ___ N.C.App. ___, 673 S.E.2d 883 (2009) (unpublished).
During the appeal of the 2005 action, Morley continued to administer the estate, and on 19 June 2008, he filed a motion with the clerk of court for confirmation of creditors' claims and for judicial determination of inadequacy of the estate's assets. In response, plaintiff filed the declaratory judgment action from which the current appeal arises.
Analysis
Plaintiff's sole assignment of error is that the trial court erred in granting Morley's motion to dismiss because the trial court had subject matter jurisdiction pursuant to Rule 57 and the Uniform Declaratory Judgment Act. We disagree.
The standard of review for an order granting a motion to dismiss for lack of subject matter jurisdiction is de novo. Fuller v. Easley, 145 N.C.App. 391, 395, 553 S.E.2d 43, 46 (2001).
The General Assembly has specified that
[t]he clerk of superior court of each county, ex officio judge of probate, shall have jurisdiction of the administration, settlement, and distribution of estates of decedents including, but not limited to, the following:
(1) Probate of wills;
(2) Granting of letters testamentary and of administration, or other proper letters of authority for the administration of estates.
N.C. Gen.Stat. § 28A-2-1 (2009). It is well-settled that the clerk of court is "given exclusive original jurisdiction in the administration of decedents' estates except in cases where the clerk is disqualified to act." In re Estate of Longest, 74 N.C.App. 386, 390, 328 S.E.2d 804, 807 (citing In re Estate of Adamee, 291 N.C. 386, 398, 230 S.E.2d 541, 549 (1976)), cert. denied and appeal dismissed, 314 N.C. 330, 333 S.E.2d 488 (1985). Thus, Morley contends that the trial court correctly dismissed plaintiff's declaratory judgment action since it concerned the administration, settlement, and distribution of an estate and was thus in the exclusive original jurisdiction of the clerk.
*456 In contrast, plaintiff argues that her declaratory judgment action in the superior court is authorized by N.C. Gen.Stat. § 1-255, which provides
[a]ny person interested as or through an executor, administrator, trustee, guardian or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, or of the estate of a decedent, an infant, lunatic, or insolvent, may have a declaration of rights or legal relations in respect thereto:
(1) To ascertain any class of creditors, devisees, legatees, heirs, next of kin or others; or
(2) To direct the executors, administrators, or trustees to do or abstain from doing any particular act in their fiduciary capacity; or
(3) To determine any question arising in the administration of the estate or trust, including questions of construction of wills and other writings.
(4) To determine the apportionment of the federal estate tax, interest and penalties under the provisions of Article 27 of Chapter 28A.
N.C.G.S. § 1-255 (2009). While the language of these statutes appears somewhat contradictory, our case law reveals a clear division between estate-related issues which are properly brought in the superior court and those which are part of the standard administration of an estate and therefore outside the superior court's subject matter jurisdiction.
In In re Jacobs, the defendant contested transfer of his case to the civil docket because the clerk of court has exclusive and original jurisdiction of all probate matters. 91 N.C.App. 138, 141, 370 S.E.2d 860, 863, disc. review denied, 323 N.C. 476, 373 S.E.2d 863 (1988). We noted that
our courts distinguish cases which `arise from' the administration of an estate from those which are `a part of' the administration and settlement of an estate. Those cases which are `a part of' the administration of an estate are considered probate matters in which the clerk of superior court has exclusive original jurisdiction.
Id. at 141-142, 370 S.E.2d at 863 (citation omitted); see also Ingle v. Allen, 69 N.C.App. 192, 196, 317 S.E.2d 1, 3, disc. review denied, 311 N.C. 757, 321 S.E.2d 135 (1984). For example, "claims of misrepresentation, undue influence and inadequate disclosure of assets or liabilities" arise from, but are not part of, the administration of an estate and are properly determined by the superior court. In re Estate of Wright, 114 N.C.App. 659, 661, 442 S.E.2d 540, 542, cert. denied, 338 N.C. 516, 453 S.E.2d 172 (1994). Claims for breach of fiduciary duty, negligence and fraud are also for the superior court. Ingle v. Allen, 53 N.C.App. 627, 628-29, 281 S.E.2d 406, 407 (1981). However, claims seeking an accounting and distribution from an estate, appointment of a new trustee, and return of compensation received from an estate "are a part of the administration, settlement and distribution of estates of decedents, original jurisdiction over which should properly be initially exercised by the clerk." Id. at 629, 281 S.E.2d at 408 (internal quotation marks, emphasis and citation omitted).
Here, plaintiff's action involves claims for offsets against certain creditors' claims against the estate and her assertions that various claims by creditors are collectable from the Livesay Family Trust. She also seeks protection of her contributions to the Livesay Family Trust and contends that the estate's assets should be marshaled by Morley so that he can provide an accounting. We conclude these issues are "a part of" the administration of the estate and are thus properly handled by the clerk.[1]
*457 Plaintiff's brief also asserts Morley lacked standing to bring a Rule 12(b) motion in the trial court. However, because this issue was not assigned as error by plaintiff, it is not properly before this Court and we dismiss plaintiff's argument. N.C. R.App. P. 10(a) (2009).
Pursuant to Appellate Rule 10(d), Morley cross-assigns as error the trial court's failure to find, as part of its order allowing his motion to dismiss, that plaintiff's complaint should be dismissed for lack of standing. Morley moved to dismiss on the basis of both the clerk's exclusive original jurisdiction of the matter, as discussed above, and plaintiff's lack of standing. The trial court's order dismissed for lack of subject matter jurisdiction, but did not specify the underlying basis for so finding. Because either of the grounds argued by Morley before the trial court in his motion to dismiss is sufficient alone to support the trial court's order, and because we affirm the order based on the clerk's exclusive original jurisdiction, we need not address this cross-assignment of error.
AFFIRMED.
Judges CALABRIA and ELMORE concur.
NOTES
[1] Plaintiff's action sought declarations on nine specific matters: 1) that a November 2002 promissory note was not collectable by Carolina First; 2) that the outstanding balance on the November 2002 promissory note was paid by plaintiff who was thus entitled to a credit or offset; 3) that plaintiff's contributions to the trust during coverture and her individual assets contributed to the trust are free and clear of claims of the creditors of the estate; 4) that the clerk of superior court in Henderson County lacks jurisdiction to determine claims of Safeco and First National until the courts of Tennessee have determined alleged losses related to those claims; 5) that an asset/purchase agreement which Morley approved is not fair or reasonable and would be detrimental to the rights of the estate; 6) that certain promissory notes allegedly held by Carolina First are not legally enforceable debts collectable from the estate; 7) that claims of Carolina First related to various notes are time barred; 8) that certain claims by Safeco and First National are time barred; and 9) that the assets of the estate cannot be properly determined until Morley marshals them and provides an accounting. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8312915/ | Harry D. Leinenweber, Judge
This case arises from the unauthorized sale of counterfeit merchandise through various online seller accounts. For the reasons stated herein, Defendants' Motions to Terminate Preliminary Injunction (Dkt. Nos. 78, 79) are denied, and Plaintiff's Motion for Summary Judgment (Dkt. No. 86) is granted.
I. BACKGROUND
Plaintiff Entertainment One UK Ltd. is a company organized under the laws of the *947United Kingdom. (Pl.'s Statement of Facts ("SOF") ¶ 1, Dkt. No. 88.) Plaintiff develops, produces, and distributes entertainment content, including the "Peppa Pig" brand. (SOF ¶ 2.) Peppa Pig is a popular animated television series aimed at preschoolers. (SOF ¶¶ 3, 11.) Plaintiff owns several U.S. federal trademark registrations for its Peppa Pig property; two are relevant in this case. The first is U.S. Registration No. 4,872,348 ("the '348 mark") for the word mark "PEPPA PIG." (SOF ¶ 14.) The second is U.S. Registration No. 4,783,931 ("the '931 mark"), a design mark of Peppa Pig herself-a stylized pig wearing a dress. (SOF ¶ 15.) The Court will refer to the trademarks collectively as the "Peppa Pig trademarks."
Plaintiff initiated this case in 2018 by suing over 400 online retail stores. (See Schedule A Defendants, Ex. 2 to Pl.'s Am. Compl., Dkt. No. 10-2.) Plaintiff alleged that those 400 Defendants were willfully manufacturing, distributing, and selling counterfeit versions of Peppa Pig trademarked and/or copyrighted designs. The Court entered a temporary restraining order, prohibiting all Defendants from using, reproducing, selling, and shipping Plaintiff's trademark and copyright material. The Court later converted the temporary restraining order to a preliminary injunction, which is still in place.
The Court has since entered default judgment against most Defendants, and others have been voluntarily dismissed. The case remains pending against only two Defendants: an eBay store named "luckyjerryxiang," and an eBay store named "6guys9" (collectively herein after, "Defendants"). Defendants both sold a product that they named "Peppa Pig Head Cookie Cutter," which is, as the name implies, a cookie cutter shaped in the outline of Peppa Pig's head. (SOF ¶¶ 22-24, 27-28.) Both Defendants accepted payment for the Peppa Pig cookie cutter via PayPal and shipped the product to Illinois. (SOF ¶¶ 25-26, 30-31.) Defendants are not authorized retailers of Peppa Pig products. (SOF ¶ 36.) Defendants have filed nearly identical pleadings to date, but it appears that each store is operated by a separate person. 6guys9 is operated by HaiJie Lin, and luckyjerryxiang is operated by Jian Feng; both individuals are located in the People's Republic of China. (SOF ¶¶ 4-5.)
Plaintiff now moves for summary judgment against Defendants for: (1) willful federal trademark infringement and counterfeiting under Section 32 of the Lanham Act, 15 U.S.C. § 1114 ; (2) false designation of origin under Section 43 of the Lanham Act, 15 U.S.C. § 1125 ; and (3) violation of the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS 510/2(a). Plaintiff further requests a statutory damages award of at least $ 100,000 from each Defendant; attorneys' fees and costs; and a permanent injunction enjoining Defendants from violating Plaintiff's rights in the Peppa Pig trademarks. Defendants move to terminate the preliminary injunction.
II. LEGAL STANDARD
A district court "shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A genuine dispute of material fact only exists if a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. See Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A court must construe all facts and draw all reasonable inferences in the light most favorable to *948the nonmoving party. Majors v. Gen. Elec. Co. , 714 F.3d 527, 532-33 (7th Cir. 2013) (citation omitted).
III. DISCUSSION
A. Summary Judgment
1. Statement of Facts
As an initial matter, the Court will address Plaintiff's Statement of Facts and Defendants' response, or lack thereof. The Local Rules of the Northern District of Illinois require the party moving for summary judgment to submit a statement of undisputed material facts. See N.D. Ill. L. R. 56.1. When the opposing party fails to controvert the moving party's statement in the manner dictated by Local Rule 56.1, those facts are deemed admitted for the purpose of the summary judgment motion. Smith v. Lamz , 321 F.3d 680, 683 (7th Cir. 2003). Plaintiff submitted a proposed list of 54 undisputed material facts, each supported by citation to the record, in accordance with Rule 56.1. In response, Defendants filed documents titled "Defendant Statement of Material Facts" that each contained two brief factual assertions. (See Dkt. Nos. 94, 98.) Defendants did not, as the Local Rules require, respond to each numbered paragraph in Plaintiff's Statement of Material Facts.
Defendants are representing themselves pro se, and the Court therefore construes their pleadings liberally. Hudson v. McHugh , 148 F.3d 859, 864 (7th Cir. 1998). However, the Seventh Circuit has "consistently held that a failure to respond by the nonmovant as mandated by the local rules results in an admission." Smith, 321 F.3d at 683. The Court cannot excuse the fact that Defendant failed to respond to Plaintiff's Statement of Material Facts. See Greer v. Bd. of Educ. of City of Chicago , 267 F.3d 723, 727 (7th Cir. 2001). Merely setting forth their own factual assertions does not constitute a rebuttal of Plaintiff's facts. See id. Thus, the Court will treat Plaintiff's Statement of Material Facts as admitted.
2. Trademark Infringement
The Court turns to the merits of Plaintiff's summary judgment motion. Plaintiff argues that Defendants violated Sections 32 and 43 of the Lanham Act, as well as the Illinois Uniform Deceptive Trade Practices Act ("UDTPA"). Defendants are liable for trademark infringement and counterfeiting under Section 32 of the Lanham Act if they, "without the consent of the registrant, use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in connection with the sale ... of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive." 15 U.S.C. § 1114(1). A defendant is liable for false designation of origin under Section 43 if it, "on or in connection with any goods or services ... uses in commerce any ... false designation of origin, false or misleading description of fact, or false or misleading misrepresentation of fact, which is likely to cause confusion or to cause mistake, or to deceive as to the ... origin, sponsorship, or approval of his or her goods ... by another person." 15 U.S.C. § 1125(a)(1). The UDTPA prohibits the following activities, among others, as deceptive trade practices: (1) passing off goods as those of another; (2) causing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods; and (3) causing likelihood of confusion or of misunderstanding as to affiliation, connection, or association with another. 815 ILCS 510/2(a).
Plaintiff must establish the same two elements for all of its Lanham Act and UDTPA claims: (1) that it has a protectable *949trademark; and (2) that Defendants' use of the trademark is likely to cause confusion among consumers. Packman v. Chicago Tribune Co. , 267 F.3d 628, 638 n.8 (7th Cir. 2001) ; Monster Energy Co. v. Zheng Peng , No. 17-CV-414, 2017 WL 4772769, at *3 (N.D. Ill. Oct. 23, 2017) (citation omitted).
First, Plaintiff owns protectable trademarks. Both the '348 and '931 marks are registered with the U.S. Patent and Trademark Office on the Principal Register. (SOF ¶¶ 14-16.) Such registry constitutes prima facie evidence of the validity of Plaintiff's registered trademarks and of Plaintiff's exclusive right to use the trademarks. 15 U.S.C. § 1057(b). Defendants do not contest the registration of Plaintiff's trademarks, nor the validity of such marks. Accordingly, the Court finds that there is no genuine issue regarding the fact that Plaintiff's Peppa Pig trademarks are protectable. See Monster Energy Co. , 2017 WL 4772769, at *4.
Next, Plaintiff must establish that Defendants' use of the Peppa Pig trademarks is likely to cause confusion among consumers. The Seventh Circuit has set forth seven factors to determine whether a likelihood of confusion exists. See AutoZone, Inc. v. Strick , 543 F.3d 923, 929 (7th Cir. 2008). However, the Seventh Circuit also held, in a non-precedential opinion, that courts can presume likelihood of confusion where a defendant "produces counterfeit goods in an apparent attempt to capitalize upon the popularity of, and demand for, another's product." Microsoft Corp. v. Rechanik , 249 Fed. App'x. 476, 479 (7th Cir. 2007) (quoting Polo Fashions, Inc. v. Craftex, Inc. , 816 F.2d 145, 148 (4th Cir. 1987) ). Given that the Seventh Circuit established the presumption in a non-precedential opinion, the Court will first analyze the facts under the presumption, and then under the full seven factor test. See Coach, Inc. v. Treasure Box, Inc. , No. 3:11 CV 468, 2013 WL 2402922, at *4-5 (N.D. Ind. May 31, 2013) ("This ... is plainly a case for presuming likelihood of confusion. But in an abundance of caution, [the Court] will take a belt-and-suspenders approach ... and proceed with the seven-factor analysis to determine whether there is a likelihood of consumer confusion.").
3. Likelihood of Confusion: Presumption Test
Under the shortened test, a court presumes likelihood of confusion when a defendant has produced counterfeit goods in an attempt to capitalize on the popularity of another's product. Microsoft , 249 Fed. App'x. at 479. In order to be "counterfeit," the goods must have been produced by an entity that was not authorized to use the mark at the time the goods were manufactured. 15 U.S.C. § 1116(d)(1)(B). Plaintiff never authorized Defendants to use Peppa Pig trademarks. (SOF ¶ 36.) Additionally, counterfeit goods must bear "a spurious mark which is identical with, or substantially indistinguishable from, a registered mark." 15 U.S.C. § 1127. The PEPPA PIG word mark was not imprinted directly on the cookie cutters at issue; however, Defendants used that exact mark in the product's name: "Peppa Pig Head Cookie Cutter." (SOF ¶¶ 22, 27.) And a protected mark need not appear on an item to render it counterfeit; rather, the Lanham Act only requires that the protected mark be used "in connection with" the sale. 15 U.S.C. § 1114(1)(a). See Chloe SAS v. Sawabeh Info. Servs. Co. , No. CV 11-04147, 2014 WL 4402218, at *7 (C.D. Cal. Sept. 5, 2014) (finding that using a word mark in the title of a sale listing constitutes counterfeiting even if the word mark is not located on the product offered for sale); Tiffany & Co. v. Costco Wholesale Corp. , 127 F. Supp. 3d 241, 255 (S.D.N.Y. 2015) (finding counterfeiting as a *950matter of law when defendant used the word "Tiffany" on display sign next to rings stamped with generic marks, because "[t]here is no statutory requirement that the counterfeit mark be placed on the product itself").
Furthermore, the shape of the cookie cutters-an outline of the Peppa Pig character's head-is substantially indistinguishable from the '931 design mark. Apart from conclusory statements denying liability (see Def.'s Opp. at 6-7 ("The peppa pig head cookie cutter I made ... did not infringe Peppa Pig trade mark.")), Defendants do not contest the similarity between their products and Plaintiff's trademarks. Indeed, Defendants repeatedly refer to their product as "the peppa pig head cookie cutter." (See, e.g. , Def.'s Opp. at 6.) Defendants used the precise '348 word mark on the product listing and used the '931 mark's likeness on the product itself. Accordingly, the Court finds as a matter of law that Defendant's cookie cutters are counterfeit.
The Court further finds that Defendants produced these counterfeit goods in an attempt to capitalize upon the popularity of Plaintiff's Peppa Pig product. Peppa Pig is a globally recognizable brand that includes a wide variety of licensed Peppa Pig products, from video games to kitchen utensils-the latter of which Defendants chose to manufacture. (SOF ¶¶ 11-13.) Defendants offered the following explanation of their motivation for selling the cookie cutters: "When [we] created the peppa pig head cookie cutter, [we] just thought it was a lovely design, and the customer should be very happy if they could make peppa pig head cookies." (Def.'s Opp. to Summ. J. at 6, Dkt. No. 97.) As Defendants were well aware, consumers seek out the Peppa Pig brand, and Defendants created a product designed to profit from that demand. See Coach , 2013 WL 2402922, at *4. Because Defendant produced counterfeit goods in an attempt to capitalize on the demand for Plaintiff's product, the Court presumes a likelihood of confusion. See Microsoft Corp. , 249 Fed. App'x. at 479.
4. Likelihood of Confusion: Seven Factor Test
The seven factor test uses the following considerations to determine whether a likelihood of confusion exists: (1) the similarity between the marks in appearance and suggestion; (2) the similarity of the products; (3) the area and manner of concurrent use; (4) the degree and care likely to be exercised by consumers; (5) the strength of the plaintiff's mark; (6) any actual confusion; and (7) the intent of the defendant to "palm off" his product as that of another. AutoZone , 543 F.3d at 929. No single factor is dispositive. Id. Courts may assign varying weight to each of the factors depending on the facts presented, though usually the similarity of the marks, the defendant's intent, and actual confusion are particularly important. Id.
The first factor is assessed by viewing the similarity of the marks as a whole, not from their "elements separated and considered in detail." AutoZone , 543 F.3d at 929. The test is whether the viewer of an accused mark would be likely to associate the product with which it is connected with the source of products with which an earlier mark is connected. Id. at 930. The public would associate Defendants' cookie cutters with Plaintiffs because Defendants used Plaintiff's exact PEPPA PIG word mark in the name of their product. Additionally, the shape of Defendants' product clearly mimics Plaintiff's design mark. This factor favors Plaintiff.
*951The test for the second factor is whether the parties' products "are the kind the public might very well attribute to a single source (the plaintiff)." Id. at 931. Consumers are likely to attribute similar products to a single source when the parties compete in the same market, targeting similar consumers. AutoZone , 543 F.3d at 932. Plaintiff sells a wide variety of Peppa Pig branded products, including Peppa Pig kitchen utensils. (SOF ¶ 12.) A Peppa Pig cookie cutter is the type of product Plaintiff might sell. Therefore, a reasonable consumer might believe that Plaintiff produced the product Defendants sold. AutoZone , 543 F.3d at 932. This factor weighs in favor of consumer confusion.
The third factor assesses "whether there is a relationship in use, promotion, distribution, or sales between the goods or services of the parties." Id. (citation omitted). Defendants sold the infringing products online. Plaintiffs sell Peppa Pig products both online and in brick and mortar retail stores. (SOF ¶¶ 12-13.) Thus, both parties target the same customer base: people looking to purchase Peppa Pig products online. See AutoZone , 543 F.3d at 932 ; Coach , 2013 WL 2402922, at *5. Defendants-who characterize themselves as "small Chinese online merchants"-argue that their scale is so insignificant that they should not be held liable. However, small merchants are just as liable for trademark infringements as larger entities. AutoZone , 543 F.3d at 932 (holding that courts do not "condition infringement on the sale of the parties' respective operations"); Gen. Elec. Co. v. Speicher , 877 F.2d 531, 537 (7th Cir. 1989) ("[T]he trademark laws do not excuse modest infringements by petty pirates."). The third factor favors Plaintiff.
The fourth factor involves examining the degree of care likely to be exercised by purchasers of Plaintiff's authentic Peppa Pig merchandise and by purchasers of Defendants' counterfeit products, to determine whether either group would be confused by Defendants' cookie cutters. CAE, Inc. v. Clean Air Eng'g, Inc. , 267 F.3d 660, 682 (7th Cir. 2001). The general rule guiding this factor is "the more widely accessible and inexpensive the products ... the more likely that consumers will exercise a lesser degree of care and discrimination in their purchases." AutoZone , 543 F.3d at 933 (citation omitted). Luckyjerryxiang sold its cookie cutter for approximately $ 5; 6guys9 for approximately $ 7.55. (SOF ¶¶ 24, 29.) Because the products were widely accessible for anyone to purchase on eBay, and sold at a low price point, this factor weighs in Plaintiff's favor.
Under the fifth factor, "[t]he stronger the mark, the more likely it is that encroachment on it will produce confusion." Id. at 933 (citation omitted). The Peppa Pig brand is globally recognized. The television show first aired in 2004 and has since been translated into 40 languages and broadcast around the world. (SOF ¶ 11-13.) Plaintiff has established that its marks are strong, as evidenced by the fact that it spends millions of dollars annually in advertising, marketing, and promoting its goods bearing the marks. (SOF ¶ 20.) See Coach , 2013 WL 2402922, at *7. Defendants do not dispute the strength of Plaintiff's marks. This factor favors Plaintiff.
The sixth factor assesses whether there is any evidence of actual consumer confusion. Defendants dispute that actual confusion exists, pointing out that the same or similar cookie cutters (likely counterfeit) are listed for sale in other eBay shops. They contend that their cookie cutters do not create a likelihood of confusion among consumers because the market is *952full of other fakes. However, the prevalence of other counterfeit Peppa Pig products for sale online increases, not decreases, the odds of actual consumer confusion. Defendants further argue that the other counterfeit cookie cutters do not have online reviews that indicate consumers are confused about the origins of the product. But a lack of customer feedback questioning whether the products are counterfeit may support the existence of actual consumer confusion, if consumers believe the counterfeit products are genuine. Although Defendants arguments are unavailing, Plaintiff does not present any evidence of actual confusion. Therefore, this factor weighs in Defendants' favor.
The seventh and final factor focuses on evidence that a defendant attempted to pass off its product as having come from the plaintiff. Sorensen v. WD-40 Co. , 792 F.3d 712, 731 (7th Cir. 2015). Evidence of "bad faith intent" to confuse is particularly relevant. Id. Here, the Court can infer that Defendants intended to pass off their products as coming from Plaintiff because they named their product "Peppa Pig Head Cookie Cutter." The Court further infers an intent to confuse because the PEPPA PIG word mark that Defendants used is a senior mark that has attained great notoriety. AutoZone , 543 F.3d at 934 (citing Sands, Taylor & Wood Co. v. Quaker Oats Co. , 978 F.2d 947, 963 (7th Cir. 1992) (holding that courts can infer bad faith when "the senior user's trademark is so well-known" and the junior user chooses "a confusingly similar mark, out of the infinite number of marks in the world")). Thus, the Court finds that the seventh factor supports Plaintiff.
In sum, of the seven factors, only one-actual consumer confusion-is lacking. Although evidence of actual confusion, if available, is entitled to substantial weight in the likelihood of confusion analysis, "this evidence is not required to prove that a likelihood of confusion exists." CAE , 267 F.3d at 685. When balancing the seven factors, it is clear that Defendants' counterfeit Peppa Pig cookie cutters were likely to create confusion among consumers. Accordingly, the Court grants Plaintiff's Motion for Summary Judgment on trademark infringement and counterfeiting; false designation of origin; and deceptive trade practices under the UDTPA.
B. Statutory Damages
Section 35 of the Lanham Act authorizes statutory damages for trademark counterfeiting. 15 U.S.C. § 1117. Plaintiffs ask the Court to award a total of $ 200,000 in statutory damages-$ 100,000 per Defendant. A plaintiff can seek statutory damages between $ 1,000 and $ 200,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed. 15 U.S.C. § 1117(c)(1). If the court finds that the use of the counterfeit mark was willful, the damages limit increases to $ 2,000,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed. 15 U.S.C. § 1117(c)(2).
Plaintiff asserts that Defendants' trademark counterfeiting was willful. Defendants dispute this, arguing that they "never meant to make [a] counterfeit product," and merely created the cookie cutter because they "thought it was a lovely design" that customers would enjoy. (Def.'s Opp. to Summ. J. at 6.) A court may attribute willful infringement to a defendant's actions when the defendant "had knowledge that [its] conduct constituted infringement or where [it] showed a reckless disregard for the owner's rights." Luxottica Grp. S.p.A. v. Li Chen , No. 16 C 6850, 2017 WL 836228, at *2 (N.D. Ill. Mar. 2, 2017) (citation omitted). A defendant's knowledge can be inferred from conduct. Id. In this case, Defendants' conduct *953evidences willfulness. Defendants designed and manufactured the product themselves using a 3D printer. (See Defendants' Admissions, Ex. 5 to Martin Declaration, Dkt. No. 90-5.) Furthermore, Defendants have a long history of experience selling on eBay-luckyjerryxiang for ten years, and 6guys9 for five years. Despite their extensive experience selling online, Defendants conducted no due diligence to determine whether they were selling counterfeit goods. (SOF ¶ 53; Def.'s Opp. to Summ. J. at 6.) This shows a reckless indifference to the trademark owner's rights. Light v. Zhangyali , No. 15 CV 5918, 2016 WL 4429758, at *3 (N.D. Ill. Aug. 22, 2016) ("Performing no due diligence of its own ... shows a reckless indifference to the trademark owner's rights."). Thus, Defendants' infringement was willful, which calls for a higher damages award to penalize Defendants and deter future infringement. See id.
The Lanham Act advises that the amount of statutory damages should be "as the court considers just." 15 U.S.C. § 1117(c). Courts analogize case law applying 17 U.S.C. § 504(b), the statutory damages scheme for copyright infringement, to determine trademark infringement damages. See Light , 2016 WL 4429758, at *3. In Chi-Boy Music v. Charlie Club, Inc. , 930 F.2d 1224 (7th Cir. 1991), the Seventh Circuit held that courts enjoy "wide discretion" in determining statutory damages figures under § 504(b), and are "not required to follow any rigid formula." Chi-Boy Music , 930 F.2d at 1229. Courts may consider factors such as "the difficulty or impossibility of proving actual damages, the circumstances of the infringement, and the efficacy of the damages as a deterrent to future copyright infringement." Id.
Several facts weigh in favor of a large damages award. Defendants sold their counterfeit goods online. As this Court has held in the past, online counterfeit sales enable a defendant to reach a "vast customer base," and may justify a substantial damages award. Luxottica USA LLC v. The Partnerships and Unincorporated Associations Identified On Schedule "A" , 2015 WL 3818622, at *3 (quoting Burberry Ltd. & Burberry USA v. Designers Imports, Inc. , No. 07 CIV. 3997, 2010 WL 199906, at *10 (S.D.N.Y. Jan. 19, 2010) (collecting cases)). Courts should also consider a plaintiff's efforts to protect, promote, and enhance a brand's value. Lorillard Tobacco Co. v. S & M Cent. Serv. Corp. , No. 03 C 4986, 2004 WL 2534378, at *6 (N.D. Ill. Nov. 8, 2004). Plaintiff has expended millions of dollars promoting its trademarks and makes a substantial effort to protect its Peppa Pig brand by continuously enforcing its trademark rights in litigation. (SOF ¶¶ 20-21.) Additionally, because Defendants' counterfeiting was willful, the statutory damages award may be designed to penalize the infringer and to deter future violations. Chi-Boy Music , 930 F.2d at 1229-30.
Defendants argue that a statutory damages award of $ 100,000 per Defendant is excessive, given their low sales volume of the counterfeit product. Each Defendant claims to have sold only one Peppa Pig cookie cutter-to Plaintiff's investigator. This coincidence strains credibility. Regardless, statutory damages must "bear some relation" to actual damages. Luxottica , 2015 WL 3818622, at *2 (citation omitted). The Seventh Circuit has held that "the amount of harm that the infringer inflicts goes to the amount of damages." Gen. Elec. Co. v. Speicher , 877 F.2d 531, 537 (7th Cir. 1989).
Though actual damages are difficult to determine in the infringement context, Chi-Boy Music , 930 F.2d at 1229, the evidence as it stands does not indicate that Defendants' counterfeit goods significantly *954harmed Plaintiffs. Defendants sold their cookie cutters for $ 5 to $ 7.55 apiece. (SOF ¶¶ 24, 29.) PayPal records indicate that luckyjerryxiang's account received over $ 73,000 since its inception, and 6guys9's account over $ 28,000, but the records do not delineate what the payments were for. (SOF ¶ 54.) The Court cannot assume that the payment history exclusively or even significantly represents payments for the counterfeit goods. Plaintiff has not presented any evidence that Defendants are large-scale manufacturers. See Coach, Inc. v. Tom's Treasure Chest , No. 2:10-CV-00243, 2011 WL 4399355, at *3 (N.D. Ind. Sept. 21, 2011) ("Courts often look to the size and scope of the defendant's operation to determine an appropriate baseline for damages."). Indeed, Defendants' method of production consisted of 3D printing each cookie cutter individually after receiving an order, which indicates a rather small-scale operation. Furthermore, although Defendants' discovery disclosures were half hearted, Defendants' willful infringement is somewhat mitigated by the fact that they chose to respond to this action rather than defaulting. See Light , 2016 WL 4429758, at *4.
Because this is not a case of default, and based on the mitigating factors identified above, the Court finds it appropriate to reduce the statutory damages Plaintiff seeks by one-half. Pursuant to 15 U.S.C. § 1117(c), the Court awards Plaintiff statutory damages in the amount of $ 50,000 per Defendant, for a total award of $ 100,000.
C. Attorneys' Fees and Costs
Plaintiffs seek costs and attorneys' fees. As the prevailing party, Plaintiff is entitled to costs under Federal Rule of Civil Procedure 54(d)(1). The Lanham Act allows for attorneys' fees in "exceptional" cases, 15 U.S.C. § 1117(a), which encompasses cases in which the acts of infringement are "malicious, fraudulent, deliberate or willful." BASF Corp. v. Old World Trading Co. , 41 F.3d 1081, 1099 (7th Cir. 1994). Section 35 of the Lanham Act states that courts "shall" award attorneys' fees in cases involving the intentional use of a counterfeit mark in connection with the sale of goods, unless the court finds extenuating circumstances. 15 U.S.C. § 1117(b) Given Defendants' willful infringement, and the absence of extenuating circumstances, Plaintiff is entitled to reasonable attorneys' fees in an amount to be determined by the Court.
D. Preliminary and Permanent Injunction
Defendants have moved to terminate the preliminary injunction. The Court has already dispatched most of the arguments that Defendant used against the preliminary injunction, including conclusory statements denying counterfeiting, only having sold one cookie cutter each, and never having damaged Plaintiff's business. However, Defendants also object to the preliminary injunction's asset freeze, which the Court will address. The preliminary injunction ordered all third-party providers to restrain "all accounts and funds connected to Defendants or Defendants' Online Marketplace Accounts ... that are not U.S. based" from transferring money until further ordered by the Court. (Preliminary Injunction Order ¶ 5, Dkt. No. 39.) PayPal froze Defendants' accounts, for a combined restrained balance of approximately $ 400. (SOF ¶ 54.) It appears to the Court that this is the extent of Defendants' accounts that have been frozen thus far.
Defendants argue that the asset freeze is damaging their online business and ask the Court to lift it. To exempt assets from an asset freeze, "[t]he burden is on the party seeking relief to present *955documentary proof that particular assets [are] not the proceeds of counterfeiting activities." Luxottica , 2015 WL 3818622, at *5 (citing N. Face Apparel Corp. v. TC Fashions, Inc. , No. 05 Civ. 9083, 2006 WL 838993, at *3 (S.D.N.Y. Mar. 30, 2006) ). Defendants have provided no such proof, other than asserting that they each sold only one cookie cutter. Such a conclusory statement "plainly does not qualify as documentary proof" that Defendants' PayPal accounts contain no proceeds from their counterfeiting activities. See H-D U.S.A., LLC v. Guangzhou Tomas Crafts Co., Ltd. , No. 16-CV-10096, 2017 WL 6733685, at *6 (N.D. Ill. Dec. 18, 2017). Accordingly, the Court denies Defendants' motion to terminate the preliminary injunction and lift the asset freeze. See id.
Plaintiff also seeks a permanent injunction barring Defendant from advertising, offering for sale, and/or selling counterfeit Peppa Pig products; otherwise violating Plaintiff's rights in its Peppa Pig trademarks; and imposing an ongoing asset restraint. The Lanham Act enables district courts to grant injunctions "according to the principles of equity and upon such terms as the court may deem reasonable." 15 U.S.C. § 1116(a). A plaintiff seeking a permanent injunction must show that: (1) it has suffered an irreparable injury; (2) legal remedies, such as monetary damages, cannot adequately compensate for that injury; (3) the balance of hardships between the parties warrants an equitable remedy; and (4) a permanent injunction would not harm the public interest. eBay Inc. v. MercExchange, L.L.C. , 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). The first two requirements, irreparable harm and inadequate remedy at law, are presumed in trademark infringement cases. Eli Lilly & Co. v. Nat. Answers, Inc. , 233 F.3d 456, 469 (7th Cir. 2000) ; MetroPCS v. Devor , 215 F. Supp. 3d 626, 639 (N.D. Ill. 2016) (collecting cases). The second two elements are easily met as well. There is "no harm to Defendants to being enjoined from violating the law," and eliminating potential consumer confusion serves the public interest. Light , 2016 WL 4429758, at *4. Accordingly, the Court grants Plaintiff's request for a permanent injunction and continued asset restraint.
IV. CONCLUSION
For the reasons stated herein, Defendants' Motions to Terminate Preliminary Injunction (Dkt. Nos. 78, 79) are denied, and Plaintiff's Motion for Summary Judgment (Dkt. No. 86) is granted.
IT IS SO ORDERED. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1375530/ | 933 P.2d 1126 (1997)
MB, Appellant (Respondent),
v.
LARAMIE COUNTY DEPARTMENT OF FAMILY SERVICES IN THE INTEREST OF LB, Appellee (Petitioner).
No. C-96-6.
Supreme Court of Wyoming.
March 11, 1997.
*1127 John M. Burman, Faculty Supervisor; Donna J. Mathews, Student Director, University of Wyoming Legal Services Program, Laramie; Steven K. Sharpe, Nicholas Law Offices, Cheyenne, for appellant.
William U. Hill, Attorney General; Michael L. Hubbard, Deputy Attorney General; Rowena Heckert, Sr. Assistant Attorney General; and Claudia S. Ryan Angelos, Attorney Intern., for appellee.
Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN and LEHMAN, JJ.
GOLDEN, Justice.
M.B., the mother of L.B., appeals from an order terminating her parental rights pursuant to WYO.STAT. § 14-2-309. Applying strict scrutiny to the actions of the Department of Family Services (DFS), we hold that DFS did not follow its own rules in this case and reverse the order terminating M.B.'s parental rights to the child, L.B.
ISSUES
Appellant M.B. presents the following statement of the issues for our review:
I. Did the District Court err when it terminated Appellant's parental rights when the statutory requirements for parental termination were not met?
II. Does the failure of the Wyoming Department of Family Services to follow the law mean that its actions were arbitrary and capricious and that termination of M.B.'s parental rights was improper?
III. Did the District Court err when it admitted testimony of M.B.'s contacts or actions occurring after the date of the filing of the Petition to Terminate Parental Rights?
Appellee Laramie County Department of Family Services presents the issues as follows:
I. Whether the district court properly applied the statutory requirements for termination of parental rights?
*1128 II. Whether Appellant's refusal to cooperate in establishing a case plan with the Wyoming Department of Family Services can serve as a defense to the termination of her parental rights?
III. Whether the district court erred when it admitted testimony of Appellant's contacts and actions occurring after the date of the filing of the petition to terminate parental rights?
FACTS
M.B. gave birth to L.B. on February 3, 1993, in Cheyenne, Wyoming. M.B. had one supervised visit with her son, L.B., on February 4, 1993. There are no allegations that M.B. abused L.B. during that brief encounter. L.B. was placed into protective custody on February 5, 1993, because M.B. was in need of psychiatric treatment for mental illness which prevented her from adequately caring for her infant son. M.B. has schizophrenia; however, M.B. testified that, while she was pregnant, she was afraid to take the medication which treats her schizophrenia because she was afraid it would affect her baby. She was involuntarily committed to the Wyoming State Mental Hospital (State Hospital) in Evanston, Wyoming, on February 8, 1993. On that same day, L.B. was placed in the legal custody of DFS after a shelter care hearing and has been in the custody of DFS since that day. L.B. has remained in the physical custody of the same foster parents since February 5, 1993.
In April of 1993, while M.B. was at the State Hospital, she contacted DFS, asked questions about her son and requested pictures of her son. Because M.B. was involuntarily committed to the State Hospital, she could not travel to Cheyenne to see L.B. DFS did not attempt to take L.B. to the State Hospital to visit M.B. DFS completed an original case plan for M.B. and L.B. on April 9, 1993. The case plan's stated goal was family reunification. However, the possible consequences for failure to carry out the plan were permanency planning for L.B., i.e., permanent guardianship or termination of parental rights. The case plan's short term goals required M.B. to begin voluntarily taking her medication, working to treat her mental illness and working with the Immigration and Naturalization Service in Casper to become a legal citizen and remain in the country once she was released from the State Hospital. M.B. was unable to sign her case plan and DFS did not know whether she ever knew about the case plan, its goals or consequences.
On May 26, 1993, M.B. was released from the State Hospital and deported to Mexico. In December of 1993, DFS received a letter from M.B. expressing an interest in the well-being of L.B. DFS was unable to contact M.B. at the address given on the letter and did not hear anything from M.B. until June 16, 1994. On that date, a social services worker from Texas contacted DFS, told DFS that M.B. was in a mental health facility after the birth of a daughter in April of 1994, and asked if M.B. had any children in Wyoming. M.B. was involuntarily committed to the Texas mental health facility from April until July, 1994.
On August 3 and September 7, 1994, M.B. tried to contact DFS. On September 13, 1994, M.B. called DFS through her caseworker in Texas (caseworker). During that phone call M.B. asked about L.B.'s well-being and what she would need to do to get L.B. back. DFS informed M.B. to concern herself with her new daughter, complete her case plan in Texas and get her daughter back first, then she could work on getting L.B. back. M.B. was not told that she was at risk of having her parental rights to L.B. terminated if she did not maintain contact with L.B. or complete her Texas case plan in a certain amount of time. On October 26, 1994, M.B. contacted DFS, asking about L.B.'s well-being and for pictures of L.B.
On December 7, 1994, DFS contacted the caseworker in Texas and set a December 22, 1994, date for a six-month case plan review. DFS sent notice of the review meeting to the caseworker, but not to M.B., and did not know whether M.B. received notice of the meeting. On December 22, 1994, DFS called the caseworker, as scheduled, but neither the caseworker nor M.B. were there. DFS talked instead to another employee of the Texas Department of Family Services. That employee told DFS that M.B. had not been *1129 following her case plan, but did not explain why. The employee told DFS that he did not feel M.B. would be able to follow her Texas case plan. The next day, DFS requested termination of M.B.'s parental rights because M.B. was not completing her case plan in Texas. Later, DFS learned that the caseworker was ill on December 22, 1994, making the meeting impossible because the caseworker had to drive M.B. to the social services office for the telephone meeting.
DFS filed a petition for the termination of parental rights pursuant to WYO.STAT. § 14-2-309(a)(i) or (iii), on January 27, 1995. In March, August, and October of 1995, M.B. contacted DFS to ask about her son, stating that she wanted her son back and would fight the termination proceedings. The district court held a bench trial on January 3, 1996, accepted M.B.'s deposition, taken in Texas on January 24, and entered an order terminating M.B.'s parental rights on February 16, 1996.
STANDARD OF REVIEW
"There is no question that termination of parental rights is directed toward a right that is fundamental and substantial." In the Interest of DG, 916 P.2d 991, 998 (Wyo.1996) (quoting TR v. Washakie County Dep't of Pub. Assistance and Social Services, 736 P.2d 712, 720 (Wyo.1987)). We strictly construe the application of parental rights termination statutes because of the tension between the fundamental liberty of familial association and the compelling state interest in protecting the welfare of children. Id. at 995 (quoting Matter of Adoption of JLP, 774 P.2d 624, 627-29 (Wyo.1989)). Due to the fundamental nature of the rights affected by a termination action, the procedures involved must satisfy due process and the evidence supporting a termination must be clear and convincing. Id. The fundamental fairness and propriety of the procedures invoked in a termination proceeding may be reviewed on a case-by-case basis. Id. (quoting JLP, 774 P.2d at 627-29, which cites Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982), and Lassiter v. Dep't of Social Services of Durham County, North Carolina, 452 U.S. 18, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981)).
DISCUSSION
The Laramie County Department of Family Services (DFS) filed a petition for termination of parental rights pursuant to WYO.STAT. § 14-2-309(a)(i) and/or (a)(iii) (1994).[1] In its findings of fact, conclusions of law and order terminating M.B.'s parental rights, the district court accepted DFS's proposed findings of fact and conclusions of law in their entirety. However, even if the court found clear and convincing evidence of facts sufficient to terminate M.B.'s parental rights pursuant to WYO.STAT. § 14-2-309, the district court did not address the failure of DFS to follow its own rules pertaining to case plans, placement plans, family reunification and child protection. As we discuss below, the failure of DFS to follow its own rules for the protection of children and preservation of families is dispositive in this case.
DFS has promulgated certain child protection rules which are applicable to this termination of parental rights case because they provide a structure within which the Department accomplishes its statutory responsibilities. Department of Family Services Division of Youth Services Child Protection Rules (1995) ("Rules"). When family reunification is the case plan goal, as it was here, *1130 DFS has the responsibility to attempt to rehabilitate the mother and reunite the family, providing services necessary to help the parent accomplish certain specified goals and tasks. WYO.STAT. § 14-2-309(a)(iii) (1994); Rules, Ch. 1 § 2, 5 and 6(c), Ch. 3 § 5. In this case DFS's failure to follow its own rules affected M.B.'s fundamental right to remain the legal parent of L.B.
In the original, and only, case plan DFS wrote for M.B., DFS failed to list any tasks for M.B. to complete in order to attain the goals it laid out for her. Rules, Ch. 1 § 4(f), Ch. 3 § 4(c). DFS then failed to update or review the original case plan, again in violation of its own rules. Rules, Ch. 1 § 4(f) (case plans should be time limited), § 7 (Department "shall" perform functions, including case planning, six and eighteen month reviews and hearings), Ch. 3 § 4(a) (written case plans shall be reviewed every six months and updated as needed). DFS claims that it told M.B. she must comply with the Texas case plan, get her child in Texas back, then work on getting L.B. back. However, none of this "oral case plan" was put in writing, in violation of DFS rules. Rules, Ch. 1 § 4(e), Ch. 3 § 4(a), (c). DFS failed to provide M.B. with a written case plan and therefore with notification of its intent to terminate M.B.'s parental rights if she failed to comply with that case plan. There is no evidence in the record that M.B. was told at any time that her failure to comply with her "oral" Wyoming case plan or her Texas case plan would result in the termination of her parental rights to L.B.
Finally, L.B. was placed in a foster home when he was taken away from M.B. Therefore, the rules applying to placement plans apply to M.B. and L.B. From the record provided us, it appears DFS also failed to follow its rules concerning placement plans which "shall be completed on a Department form" and include: efforts made to return the child to his family, place the child in as close proximity to his home as possible, completion of a visitation plan between the parent and the child, and six month periodic court or administrative reviews shall be held for each child in placement. Rules, Ch. 3 § 4(d), (d)(iv) and (vi), (e), and (g).
Rules and regulations have the force and effect of law. Fullmer v. Wyoming Employment Sec. Comm'n, 858 P.2d 1122, 1123-24 (Wyo.1993). An administrative agency, such as DFS, is bound to follow its own rules and regulations. Id. In this case, the DFS rules in question affected M.B.'s fundamental parental rights. Therefore, they must be followed strictly and failure to follow those rules and procedures must result in a reversal of the action taken when a parent's rights are terminated. Matter of Adoption of SLS, 808 P.2d 207, 209 (Wyo.1991) (reversing termination of parental rights accomplished through adoption statutes). We vacate the order terminating M.B.'s parental rights and remand with directions that the petition to terminate M.B.'s parental rights be dismissed.
CONCLUSION
Because DFS failed to follow its own rules pertaining to its child protection case plans, services and placement plans and that failure adversely affected M.B.'s fundamental rights, we reverse the district court's order terminating M.B.'s parental rights.
NOTES
[1] Wyo.Stat. § 14-2-309(a)(i) and (iii) (1994) provides:
(a) The parent-child legal relationship may be terminated if any one (1) or more of the following facts is established by clear and convincing evidence:
(i) The child has been left in the care of another person without provision for the child's support and without communication from the absent parent for a period of at least one (1) year. In making the above determination, the court may disregard occasional contributions, or incidental contacts and communications;
* * *
(iii) The child has been abused or neglected by the parent and efforts by an authorized agency or mental health professional have been unsuccessful in rehabilitating the family or the family has refused rehabilitative treatment, and it is shown that the child's health and safety would be seriously jeopardized by remaining with or returning to the parent;
* * *. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375526/ | 683 S.E.2d 72 (2009)
GRINDLE
v.
The STATE.
No. A09A1354.
Court of Appeals of Georgia.
July 27, 2009.
*73 Sliz, McKinney & Drake, Scott A. Drake, Lawrenceville, for appellant.
Daniel J. Porter, District Attorney, Wesley C. Ross, Assistant District Attorney, for appellee.
ELLINGTON, Judge.
A Gwinnett County jury found Paul Grindle guilty of robbery, OCGA § 16-8-40(a); aggravated battery, OCGA § 16-5-24(a); and battery, OCGA § 16-5-23.1(a). Pursuant to a granted motion for an out-of-time appeal, Grindle contends his trial counsel was ineffective for failing to object to the hearsay testimony of an accomplice who identified him as the robber. Grindle also contends that, absent this inadmissible hearsay, the evidence adduced was insufficient to prove him guilty of the crimes charged beyond a reasonable doubt. For the reasons that follow, we reverse based on a finding of ineffective assistance of trial counsel; however, we find that the evidence adduced was sufficient to support Grindle's convictions.
1. Viewed in the light most favorable to the jury's verdict,[1] the record reveals the following facts. At about 11:00 p.m. on November 24, 2001, a woman and her daughter walked from a Gwinnett County Wal-Mart store to their parked car. As the woman neared the car, a man ran by her and grabbed her purse. Because the woman's purse was entangled in the bags she was carrying, the robber was unable to snatch it away easily. He yanked the purse from the woman's arm so hard that he knocked her face-down to the pavement. The woman suffered a broken arm, a bruised face, and a damaged eye. The woman told police that she had a pager, a day-timer, some keys, and a diamond ring in her purse. The ring had three diamonds on it, and a prong securing one of the diamonds in place was broken. Although the woman and her daughter did not see the robber's face, they could tell that he was a white male, and they saw him get into the front passenger side of an older, "boxy," light-colored car with two other people in it, a driver and a back-seat passenger.
*74 As the robbery was occurring, a man and two of his friends were walking out of the Wal-Mart. The man heard screams, heard someone say a purse snatching had just occurred, and saw a person run and get into a car that sped away. The man considered pursuing the car, but decided that because the driver had too much of a lead, he could not catch up. So, he got in his car and started driving home. As the man drove down Interstate 985, he came upon a car like the one he had seen leaving the Wal-Mart. The car was traveling slowly, at about 45 miles per hour, and its interior light was on. The man slowed down to pace the car, and he looked inside it. He saw three people in the car: a long-haired driver; a shirtless, front-seat passenger with a "roundish" tattoo high on his left shoulder; and a back-seat passenger wearing a grey, flannel shirt. All three were looking toward the front passenger's seat, peering into a purse. After observing this, the man drove past the car and called his friends, who were traveling on the freeway behind him. He asked his friends to get the car's tag number. The friend who got the tag number noticed that the driver was female. After getting the tag number, the man and his friends went back to the Wal-Mart and told the police what they had observed.
A few days later, a Gwinnett County detective traced the tag number to a white, 1971's model Chevrolet Malibu belonging to Theodora Gonzalez. He located the car in the Barrow County impound lot and Gonzalez in the Barrow County jail. Gonzalez and two people who were passengers in her car had been arrested on November 25, 2001, for snatching a woman's purse as the woman walked to her parked car from a Barrow County K-Mart. Gonzalez' passengers were her boyfriend, Paul Grindle, and a friend, David Plunkett.
When Gonzalez was booked into the jail, she was wearing a ring that had three diamonds and a broken prong. Plunkett was wearing a grey, flannel shirt. Both Grindle and Plunkett had tattoos, but only Grindle had a round tattoo visible high on his left shoulder a tattoo in the shape of a bulldog's head. The man who had followed the Gwinnett county robbers testified at trial that only Grindle's tattoo was shaped like the one he saw on the night of the robbery. A search of Gonzalez' car revealed a day-timer and a pager. The Gwinnett County robbery victim identified the ring, the pager, and the day-timer as hers.
The State also adduced evidence of the Barrow County robbery as a similar transaction. The evidence showed that during the early afternoon of November 25, 2001, less than 24 hours after the Gwinnett County robbery, a woman was robbed in the parking lot of a K-Mart store in Barrow County. A white male, later identified by witnesses as Plunkett, snatched a woman's purse from her shopping cart and ran to a waiting four-door, 1978 Chevrolet Malibu. Plunkett got into the back seat of the car. Two other people were in the car with Plunkett, though no witnesses could identify them. The police officer who responded to the crime got a description of the car and the purse snatcher, and he radioed his fellow officers to be on the lookout for the car. About ten minutes later, another officer stopped a car matching the description of the car given in the lookout. Gonzalez was driving, and she had two passengers, Grindle and Plunkett. The police recovered the Barrow County robbery victim's purse from inside Gonzalez' car.
During a custodial interview, Grindle denied being present during the Gwinnett County robbery. However, he admitted being present during the Barrow County robbery, but he said that Plunkett was the one who snatched the purse. A detective testified that although Plunkett initially denied involvement in the crimes, he agreed, as the prosecutor phrased it, that Plunkett later "gave up" Grindle as the Gwinnett County purse snatcher. The detective testified that Plunkett admitted that, although he was present during the Gwinnett County robbery, it was Grindle who had snatched the victim's purse. Plunkett did not testify at trial. Defense counsel did not object to this testimony but, in fact, pursued that line of questioning further on cross-examination. In the hearing on the motion for new trial, Grindle's trial counsel doubted that his failure to object to the admission of Plunkett's hearsay statements *75 or to move for a mistrial was strategic since his theory of defense was that Grindle was not present during the Gwinnett County robbery.
(a) Grindle contends his trial counsel was ineffective because he failed to object to the detective's hearsay testimony that Plunkett identified Grindle as the purse snatcher. In order to prevail on this claim, Grindle must show that his trial counsel's performance was deficient and that there is a reasonable probability that, but for that deficiency, the result of the trial would have been different. Miller v. State, 285 Ga. 285, 676 S.E.2d 173 (2009); Fortson v. State, 280 Ga. 435, 436(2), 629 S.E.2d 798 (2006). Furthermore, "[t]he criminal defendant must overcome the strong presumption that trial counsel's conduct falls within the broad range of reasonable professional conduct. We accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts." (Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 76, 586 S.E.2d 313 (2003).
Grindle contends his attorney should have objected to the detective's testimony regarding Plunkett's custodial statement identifying Grindle as the purse snatcher because the statement is hearsay which violates Grindle's right to confront and cross-examine witnesses against him.
The confrontation clause imposes an absolute bar to admitting out-of-court statements in evidence when they are testimonial in nature, and when the defendant does not have an opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 40, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). . . . [S]tatements made to police officers during an investigation qualify as testimonial.
(Citations, punctuation and footnote omitted.) Gay v. State, 279 Ga. 180, 181-182(2), 611 S.E.2d 31 (2005).
Plunkett's custodial statement to the detective was testimonial inasmuch as it was made to a police officer during the course of an investigation, and Grindle did not have an opportunity to cross-examine Plunkett because Plunkett did not testify. There is nothing in the record showing that the statement would have been admissible under any exception to the hearsay rule,[2] nor has the State argued that in its brief. Counsel conceded that there was no reasonable strategic reason for not objecting to this testimony. It follows, therefore, that Grindle's attorney should have objected to the admission of Plunkett's custodial statement to the detective, and that, had he done so, the trial judge would have been required to exclude it. Soto v. State, 285 Ga. 367, 369(2)(a), 677 S.E.2d 95 (2009).
Plunkett was the only witness to identify Grindle as the Gwinnett County purse snatcher. The remaining evidence linking Grindle to the Gwinnett County crimes was circumstantial. Although we find that, even if Plunkett's statement to the detective had been excluded, the remaining circumstantial evidence, as shown more fully in Division (1)(b), would have been sufficient to prove Grindle's guilt beyond a reasonable doubt, the absence of Plunkett's statement would nevertheless have seriously weakened the State's case. Consequently, but for counsel's failure to object to or move to have this testimony excluded, there is a reasonable probability that the outcome of the trial would have been different. See, e.g., Grimes v. State, 291 Ga.App. 585, 590-594(2), 662 S.E.2d 346 (2008) (trial counsel's failure to object to improper identification testimony constituted deficient performance and prejudiced defendant); Joncamlae v. State, 267 Ga.App. 214, 216-218(1), 598 S.E.2d 923 (2004) (trial counsel's failure to object to tainted in-court identification constituted deficient performance and prejudiced defendant); *76 Mann v. State, 252 Ga.App. 70, 72-74(1), 555 S.E.2d 527 (2001) (trial counsel's failure to object to improper testimony bolstering witness's credibility constituted deficient performance and prejudiced defendant). Therefore, the trial court erred in denying Grindle's motion for new trial on this basis.
(b) Grindle argues that, absent the evidence of Plunkett's custodial statements identifying him as the Gwinnett County robber, the remaining evidence[3] would have been insufficient to identify him as the perpetrator of the crimes charged beyond a reasonable doubt. We disagree.
Assuming that Plunkett's hearsay statements had no probative value,[4] the remaining evidence, though circumstantial, would nevertheless authorize the jury to infer that Grindle was the Gwinnett County purse snatcher who caused the victim's injuries beyond a reasonable doubt.
The Gwinnett County witnesses saw the robber get in the front passenger seat of a car later identified as Gonzalez' car. From the evidence adduced, the jury could infer that Gonzalez was driving and that Plunkett was the back-seat passenger. The robber had a round tattoo high on his left shoulder. Grindle had such a tattoo; Plunkett did not. Grindle was caught in Gonzalez' car immediately after the Barrow County purse snatching, a robbery which Plunkett, the back-seat passenger, admittedly perpetrated. Proceeds of both robberies were found in the car. From this evidence, the jury could infer that Grindle, the front-seat passenger with the round tattoo, perpetrated the Gwinnett County crimes. Although Grindle argues that, given the roughly half-day lapse in time between the two robberies, it is possible that another white male with a round tattoo high on his left shoulder could have committed the Gwinnett County robbery, the reasonableness of that hypothesis was for the jury to decide. Haney v. State, 261 Ga.App. 136, 138(1), 581 S.E.2d 626 (2003) ("Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused is primarily a question for determination by the jury.") (citations and punctuation omitted); see also Brown v. State, 170 Ga.App. 398, 400(5), 317 S.E.2d 207 (1984) ("The mere possibility that someone other than the defendant committed the crime charged in the indictment is not such a reasonable hypothesis as must be excluded in order for circumstantial evidence to authorize a verdict of guilty.") (citations and punctuation omitted).
2. We need not reach Grindle's remaining enumerations, as they are not likely to recur at retrial.
Judgment reversed and case remanded.
JOHNSON, P.J., and MIKELL, J., concur.
NOTES
[1] Jackson v. Virginia, 443 U.S. 307, 319(III)(B), 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
[2] The necessity exception to the hearsay rule requires that the out-of-court declaration be given under circumstances indicating particularized guarantees of trustworthiness. The out-of-court statements of an accomplice have been held to be inherently unreliable. See Soto v. State, 285 Ga. 367, 370(2)(b), 677 S.E.2d 95 (2009). Further, "a conspirator's post-arrest statement to police incriminating a co-conspirator terminates the conspiracy, rendering the statement admissible only against the declarant." (Footnotes omitted.) Fetty v. State, 268 Ga. 365, 371(7), 489 S.E.2d 813 (1997).
[3] Grindle also challenged the admission of the similar transaction evidence. However, as we held in Grindle v. State, 265 Ga.App. 717, 718(2), 595 S.E.2d 549 (2004), the trial court was authorized to find that the Barrow County and Gwinnett County crimes "were part of a continuing course of conduct and single crime spree so that evidence of one was admissible in a trial of the other."
[4] "Hearsay testimony is not only inadmissible but wholly without probative value, and its introduction without objection does not give it any weight or force whatever in establishing a fact." In re Burton, 271 Ga. 491, 494(3), 521 S.E.2d 568 (1999). Thus, "erroneously-admitted hearsay may not be considered in reviewing the sufficiency of the evidence." (Citations and punctuation omitted.) Willingham v. State, 279 Ga. 886, 888(2), 622 S.E.2d 343 (2005). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375499/ | 683 S.E.2d 671 (2009)
HD SUPPLY, INC. et al.
v.
GARGER et al.
No. A09A1295.
Court of Appeals of Georgia.
August 18, 2009.
*673 Drew, Eckl & Farnham, Stevan A. Miller, Jeffrey A. Burmeister, Atlanta, for appellants.
Rumsey & Ramsey, Austin L. Ramsey III, Ronald L. Cundy, Harper, Waldon & Craig, Russell D. Waldon, John B. Craig, Fain, Major & Brennan, Thomas E. Brennan, Atlanta, for appellees.
BERNES, Judge.
Following the grant of their application for interlocutory review, defendants HD Supply, Inc. and Williams Bros. Lumber Company, LLC d/b/a HD Supply Lumber & Building Materials appeal the trial court's denial of their motion to transfer venue. The primary question on appeal is whether venue with regard to a defendant added as a party under OCGA § 9-11-15(c) should be determined based upon the facts existing at the time the original action was filed or at the time the defendant was added as a party. We conclude that venue over the added defendant should be based upon the facts existing at the time the original action was filed. Accordingly, we affirm.
The denial of a motion to transfer is reviewed for an abuse of discretion, see Rader v. Levenson, 290 Ga.App. 227, 230(1)(c), 659 S.E.2d 655 (2008), and we will affirm the trial court's findings on disputed factual questions relating to venue if there is any evidence to support them. See Camp v. Peetluk, 262 Ga.App. 345, 348(1), 585 S.E.2d 704 (2003). But we review de novo the trial court's application of the law to undisputed facts. See Murdock v. Madison River Terminal, 249 Ga.App. 608, 609, 547 S.E.2d 802 (2001).
So viewed, the record reflects that on December 13, 2007, George Garger was killed in an automobile collision that occurred in Fulton County. The driver of the other vehicle was Robbin Zeigler, who allegedly had become intoxicated at an event where his employer provided alcohol. Zeigler's employer allegedly continued furnishing him with alcohol despite knowing that he was intoxicated and that he would soon be driving a motor vehicle.
On January 17, 2008, Garger's surviving wife and estate filed this action for personal injury, wrongful death, and loss of consortium in the State Court of Fulton County against Zeigler and HD Supply, Inc., which the plaintiffs believed to be Zeigler's employer. While Zeigler did not reside in Fulton County, the plaintiffs alleged that venue was proper because the cause of action originated in that county, and HD Supply had an office and transacted business there.
HD Supply answered, admitting that it was Zeigler's employer at the time of the collision but denying that venue was proper in Fulton County. In response to the plaintiff's requests for admission, HD Supply again admitted that it was Zeigler's employer.[1] However, HD Supply later contended in a letter from its counsel and in an amended answer that Zeigler had been employed by its subsidiary, Williams Bros. Lumber Company, LLC d/b/a HD Supply Lumber & Building Materials ("Williams Bros.").
The plaintiffs then moved to add Williams Bros. as a defendant. The trial court granted the motion to add Williams Bros. on July 22, 2008, and the plaintiffs filed an amended complaint against Zeigler, HD Supply, and Williams Bros. the following day. The plaintiffs alleged that Zeigler was the employee of HD Supply and Williams Bros. at the time of the collision and that both companies were liable based upon respondeat superior and Georgia's Dram Shop Act, OCGA § 51-1-40(b).[2] They further alleged that venue was *674 proper because the cause of action originated in Fulton County, and HD Supply and Williams Bros. both had offices and transacted business there.
In its answer to the amended complaint, Williams Bros. admitted that it was Zeigler's employer at the time of the collision. Like HD Supply, however, Williams Bros. denied that venue was proper.
HD Supply and Williams Bros. moved to transfer venue and remove the action from Fulton County to Cobb County pursuant to OCGA § 14-2-510(b)(4).[3] See also Uniform Superior Court Rule 19.1 (setting forth procedure for motions to transfer venue to another court); Uniform State Court Rule Note ("The Uniform Rules for the Superior Courts shall be applicable in State Courts[.]"). They admitted that the cause of action originated in Fulton County but contended that venue should be transferred under OCGA § 14-2-510(b)(4) because there was no other basis for venue in that county. Both companies contended that their principal place of business was in Cobb County. Furthermore, HD Supply presented evidence that it did not formerly or currently have an office or transact any business in Fulton County. Williams Bros. presented evidence that although it had an office and transacted business in Fulton County at the time the plaintiff's originally filed their suit, it no longer had an office or transacted business in that county at the time it was added as a defendant.
The plaintiffs responded that transfer of the case was inappropriate because venue was not based solely upon origination of the cause of action in Fulton County. They contended that venue was proper under OCGA § 14-2-510(b)(3),[4] which authorizes tort damages actions against a corporation in the county where the cause of action originates, provided the corporation also has an office and transacts business in that county. The plaintiffs argued that because Williams Bros. was added as a defendant under the relation back provision of OCGA § 9-11-15(c),[5] it should be treated as if it were a party to the original suit from its inception. The plaintiffs further argued that since Williams Bros. had an office and transacted business in Fulton County at the time the suit was originally filed, venue was proper as to Williams Bros. pursuant to OCGA § 14-2-510(b)(3). The plaintiffs contended that because venue was proper in Fulton County against Williams Bros., it was also proper against Zeigler and HD Supply as joint tortfeasors.
The trial court denied HD Supply and Williams Bros.'s motion to transfer venue. *675 The trial court granted a certificate of immediate review, we granted the application, and this appeal followed.
1. Williams Bros. contends that the trial court erred in finding that venue was proper in Fulton County under OCGA § 14-2-510(b)(3) and in denying its motion to transfer. According to Williams Bros., the trial court should have determined venue over the company based upon the facts existing at the time it was added as a defendant in July 2008, not the facts existing at the time the suit was originally filed in January 2008. We disagree.
It is well settled that venue is determined based on the defendant's residence at the time the suit is filed. See Franek v. Ray, 239 Ga. 282, 285, 236 S.E.2d 629 (1977); Savannah Laundry & Machinery Co. v. Owenby, 186 Ga.App. 130, 131, 366 S.E.2d 787 (1988); Hagood v. Garner, 159 Ga.App. 289(1), 283 S.E.2d 355 (1981). A change of residence by the defendant after the filing of an action thus does not result in a change of venue. See Perry v. Perry, 245 Ga. 298, 264 S.E.2d 228 (1980); Westmoreland v. Westmoreland, 243 Ga. 77, 78, 252 S.E.2d 496 (1979).
The pertinent question is how these principles should be applied when a party is added to the original suit pursuant to the relation back provision of OCGA § 9-11-15(c). In Daniel & Daniel v. Cosmopolitan Co., 137 Ga.App. 383, 384(1), 224 S.E.2d 44 (1976), we held that "venue may be perfected by the proper addition of a party defendant" so as to cure an existing problem with venue. We applied the same rule in Logan Paving Co. v. Liles Constr. Co., 141 Ga.App. 81, 82(2)(a), 232 S.E.2d 575 (1977), where we held that the addition of the new defendant "relate[d] back to the date of the original suit so as to perfect venue." But neither of those two cases involved an added defendant that had changed its residence since the time the original suit had been filed. Thus, neither case resolved whether a court should determine venue over the added party defendant from the facts as they existed when the suit was originally filed or as they existed when the party was added. That question has heretofore been unresolved under Georgia law.
We conclude that if a defendant is added as a party to a lawsuit under the relation back provision of OCGA § 9-11-15(c), venue over that defendant should be assessed based upon the facts existing at the time the suit was originally filed. Although OCGA § 9-11-15(c) refers to "an amendment changing the party," the ambit of the relation back provision has been construed to include cases where, as here, the plaintiff adds rather than substitutes a new party defendant. (Emphasis supplied.) See Fontaine v. Home Depot, 250 Ga.App. 123, 124(1), 550 S.E.2d 691 (2001); Cobb v. Stephens, 186 Ga.App. 648, 649, 368 S.E.2d 341 (1988).[6] And when a defendant is added under OCGA § 9-11-15(c), the defendant is treated as if it were a party to the original action from its inception. This point is made clear by OCGA § 9-11-15(c) cases involving the statute of limitation, where we have held that a party meeting the three statutory elements may be added after the limitation period has run, since the claims against the added party relate back to the complaint's original filing date, which was prior to the expiration of the limitation period. See Gordon v. Gillespie, 135 Ga.App. 369, 374-375(1), 217 S.E.2d 628 (1975). See also Parks v. Hyundai Motor America, 258 Ga.App. 876, 880-883(3), 575 S.E.2d 673 (2002); Fontaine, *676 250 Ga.App. at 124-127(1), 550 S.E.2d 691. The ultimate result in those cases is that all of the parties are placed in the position they would have been in when the suit was originally filed, but for the plaintiff's mistake over another party's identity. This has the virtue of preventing newly added defendants that had sufficient notice of the original action from its commencement from "[b]eing able to take advantage of plaintiff's pleading mistakes." Gordon, 135 Ga.App. at 375(1), 217 S.E.2d 628.
While the primary purpose of the relation back provision is "to ameliorate the impact of the statute of limitation," Samples v. Barnes Group, 175 Ga.App. 253, 255, 333 S.E.2d 147 (1985), the provision is not limited only to those cases where the limitation period is at issue. See A.H. Robins Co. v. Sullivan, 136 Ga.App. 533, 535, 221 S.E.2d 697 (1975). As such, the same principles should apply in other cases like the present one where the relation back provision has been properly invoked. Any defendant properly added under OCGA § 9-11-15(c) thus should be treated as if it were a party to the original action from its inception. It follows that venue over such a defendant should be assessed based upon the facts existing at the time the action was originally filed.
It is undisputed that at the time the plaintiffs originally filed the instant action in January 2008, Williams Bros. had an office and transacted business in Fulton County. The trial court, therefore, correctly found that venue was proper over Williams Bros. in Fulton County under OCGA § 14-2-510(b)(3).
2. HD Supply similarly contends that the trial court erred in finding that venue was proper over it in Fulton County and in denying its motion to transfer. Again, we disagree. Construed in favor of the plaintiffs, the complaint alleged that the negligence of HD Supply and Williams Bros. in continuing to serve alcohol to Zeigler, despite knowing that he was intoxicated and that he would soon be driving a motor vehicle, combined with the negligence of Zeigler to cause a single and invisible injury, death. The three defendants thus met the test for joint tortfeasors. See Gault v. Nat. Union Fire Ins. Co., 208 Ga.App. 134, 137(3), 430 S.E.2d 63 (1993). In a tort action, if venue in a particular county is proper as to one joint tortfeasor, it is proper as to the other joint tortfeasors as well. See id. See also Ga. Const. of 1983, Art. VI, Sec. II, Par. IV; OCGA § 9-10-31(b). Consequently, because venue was proper in Fulton County as to Williams Bros., it was likewise proper as to HD Supply.
Judgment affirmed.
SMITH, P.J., and PHIPPS, J., concur.
NOTES
[1] Although HD Supply filed a motion to withdraw its admission, the record does not reflect whether the trial court has ruled upon that motion. See Milk v. Total Pay & HR Solutions, 280 Ga.App. 449, 452, 634 S.E.2d 208 (2006) ("[F]acts admitted via requests for admission are `judicial admissions,' which are conclusive unless withdrawal is permitted by the trial court.") (citation and punctuation omitted).
[2] OCGA § 51-1-40(b) provides:
A person ... who knowingly sells, furnishes, or serves alcoholic beverages to a person who is in a state of noticeable intoxication, knowing that such person will soon be driving a motor vehicle, may become liable for injury or damage caused by or resulting from the intoxication of such ... person when the sale, furnishing, or serving is the proximate cause of such injury or damage.
[3] OCGA § 14-2-510(b)(4) provides:
In actions for damages because of torts, wrong, or injury done, [venue is proper against a corporation] in the county where the cause of action originated. If venue is based solely on this paragraph, the defendant shall have the right to remove the action to the county in Georgia where the defendant maintains its principal place of business. A notice of removal shall be filed within 45 days of service of the summons....
The plaintiffs contend that HD Supply's motion to transfer was untimely under the statute, but we need not resolve this issue in light of our decision infra in Division 2 that venue was proper over HD Supply in Fulton County.
[4] OCGA § 14-2-510(b)(3) provides:
In actions for damages because of torts, wrong, or injury done, [venue is proper against a corporation] in the county where the cause of action originated, if the corporation has an office and transacts business in that county.
[5] OCGA § 9-11-15(c) provides:
Relation back of amendments. Whenever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back to the date of the original pleadings if the foregoing provisions are satisfied, and if within the period provided by law for commencing the action against him the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.
[6] Three conditions must be met to invoke the relation-back provision:
(1) the amendment adding the new defendant must arise out of the same facts as the original complaint; (2) the new defendant must have had sufficient notice of the lawsuit; and (3) the new defendant must have known, or should have known, that but for a mistake in identifying him as the proper party, the action would have been brought against him.
(Citation, footnote and emphasis omitted.) Valentino v. Matara, 294 Ga.App. 776, 777-778(2), 670 S.E.2d 480 (2008). HD Supply and Williams Bros. do not dispute on appeal that these conditions were met in this case. See generally Parks v. Hyundai Motor America, 258 Ga.App. 876, 880-883(3), 575 S.E.2d 673 (2002) (complaint showed that plaintiff meant to sue automobile manufacturer but mistakenly sued similarly named parent corporation); Fontaine, 250 Ga.App. at 124-125(1), 550 S.E.2d 691 (complaint showed that plaintiff meant to sue the owner of the premises but mistakenly sued related, similarly named corporation). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375597/ | 683 S.E.2d 124 (2009)
FREEMAN
v.
The STATE.
No. A09A1864.
Court of Appeals of Georgia.
August 5, 2009.
*125 Wesley Matthew Woolverton, Amy Salley, for Appellant.
Brian K. Fortner, Solicitor-General, Evelyn Proctor, Asst. Solicitor-General, for Appellee.
BLACKBURN, Presiding Judge.
Michael Freeman appeals the denial of his plea in bar of former jeopardy. He argues that the trial court erred in finding that manifest necessity required the declaration of a mistrial, after the court determined that an evidentiary issue needed to be addressed before the case could be tried. We agree that it was unnecessary to declare a mistrial in this matter, and thus we reverse the trial court's denial of Freeman's plea in bar of former jeopardy.
"The appellate standard of review of a grant or denial of a double jeopardy plea in bar is whether, after reviewing the trial *126 court's oral and written rulings as a whole, the trial court's findings support its conclusion." (Punctuation omitted.) Leonard v. State.[1] In this matter, the record shows that on April 19, 2005, Freeman was arrested and charged with one count of driving under the influence of alcohol to the extent that it was less safe for him to drive (DUI less safe),[2] after he was stopped at a police roadblock, failed several field sobriety tests, and refused to submit to the state-administered chemical breath test. In August 2007, he was tried on the charge, but the trial court declared a mistrial after the jury was unable to reach a unanimous verdict.
Freeman's retrial on the DUI less safe charge began on September 22, 2008. At some point during jury selection, the trial court convened a bench conference sua sponte and informed the parties that it was not going to allow the arresting officer to testify regarding the alleged correlation between the number of clues that a DUI suspect exhibits during a horizontal gaze nystagmus (HGN) test and the suspect's blood-alcohol content. Shortly thereafter, jury selection was completed and the jury was sworn. In another bench conference immediately following jury selection, the State's prosecutor argued that the court's decision to exclude testimony regarding a correlation between HGN test results and blood-alcohol content was contrary to case precedent, and that the court should grant a continuance so that the prosecutor could research the issue. Over Freeman's objection, the court agreed and granted a continuance for two days.
When the trial re-convened, the prosecutor moved to suspend the trial so that the court could hold a hearing to determine if evidence of a correlation between HGN test results and blood-alcohol content had reached the state of "verifiable certainty" and thus was admissible under Harper v. State.[3] Freeman objected to any further delay and also objected when the prosecutor suggested that the court had the authority to declare a mistrial based on manifest necessity. Despite Freeman's objection, after determining that it had surprised the State with its sua sponte exclusion of the HGN-result/blood-alcohol correlation evidence, the trial court declared a mistrial on the ground of manifest necessity. The next day, Freeman filed a plea in bar of former jeopardy, which the trial court denied a few months later after a hearing. This appeal followed.
In his sole enumeration of error, Freeman contends that the trial court has placed him in double jeopardy by erroneously finding that manifest necessity required the declaration of a mistrial in his case. We agree.
The Georgia Constitution provides that "[n]o person shall be put in jeopardy of life or liberty more than once for the same offense except when a new trial has been granted after conviction or in case of a mistrial." Ga. Const. of 1983, Art. I, Sec. I, Par. XVIII; see also U.S. Const., Amendment V. "Once a jury is impaneled and sworn, jeopardy attaches and an accused is entitled to have the trial proceed to an acquittal or conviction by that jury." Laster v. State.[4] When "there is no prosecutorial misconduct, the trial court has broad discretion in deciding whether to grant a mistrial." (Punctuation omitted.) Tubbs v. State.[5] However, the trial court may interrupt the proceedings and declare a mistrial over the defendant's objections only if there is a demonstration of manifest necessity for the mistrial. Laster, supra, 268 Ga. at 173(1), 486 S.E.2d 153. "And manifest necessity requires urgent circumstances." (Punctuation omitted.) McGee v. State.[6] As this Court has previously held,
[w]hen determining whether such urgency is present, a trial court must scrupulously exercise its discretion in weighing the defendant's *127 right to have his trial completed before the particular tribunal against the interest of the public in having fair trials designed to end in just judgments; and the decision must take into consideration all the surrounding circumstances. It should give careful, deliberate, and studious consideration to whether the circumstances demand a mistrial, with a keen eye toward other, less drastic, alternatives, calling for a recess if necessary and feasible to guard against hasty mistakes.
(Punctuation omitted; emphasis in original.) Id.
Here, there is no dispute that the jury was impaneled and sworn, so jeopardy had attached. See Laster, supra, 268 Ga. at 173(1), 486 S.E.2d 153. Furthermore, the evidence shows that the trial court did not consider any less drastic alternatives to declaring a mistrial for what, essentially, was the State's objection to one of the court's evidentiary rulings. In fact, the court did not discuss any other possible alternatives to mistrial after the prosecutor noted that the next motions calendar was not scheduled to be held for another two weeks and was already rather full. Yet the trial court could have immediately held a hearing on the issue, just as many motion to suppress and motion in limine hearings are held at the beginning of a trial.
Moreover, the facts in this matter do not suggest that urgent circumstances existed that required a mistrial. The State contends that a mistrial was necessary so that it could argue for the admissibility of its evidence of the correlation between the HGN test results and blood-alcohol content. However, a prosecutor cannot seek a mistrial in order to "buttress weaknesses in the [S]tate's evidence." Laster, supra, 268 Ga. at 173(1), 486 S.E.2d 153. See Arizona v. Washington[7] (strict scrutiny of a trial court's declaration of a mistrial is appropriate when the basis for the mistrial is so that the prosecutor can seek to achieve a tactical advantage over the accused). Regardless, the State's contention that urgent circumstances existed here has little merit in light of the fact that evidence of a defendant's blood-alcohol content is not required in order for the State to prove that a defendant is guilty of DUI less safe beyond a reasonable doubt. See Gregoire v. State;[8]Lewis v. State.[9] In addition, "[a] police officer may give opinion testimony as to the state of sobriety of a DUI suspect and whether [the suspect] was under the influence to the extent it made him less safe to drive." Lewis, supra, 214 Ga.App. at 832(1), 449 S.E.2d 535. As is the case here, "where the record is devoid of evidence establishing urgent circumstances, the court abused its discretion in declaring a mistrial without first considering alternatives that would have preserved [Freeman's] valuable right to be tried by the originally impaneled jury." McGee, supra, 287 Ga.App. at 841-842(1), 652 S.E.2d 822. See Jefferson v. State.[10] Accordingly, the trial court erred in denying Freeman's plea in bar of former jeopardy.
Judgment reversed.
ADAMS and DOYLE, JJ., concur.
NOTES
[1] Leonard v. State, 275 Ga.App. 667, 667-668, 621 S.E.2d 599 (2005).
[2] OCGA § 40-6-391(a)(1).
[3] Harper v. State, 249 Ga. 519, 526(1), 292 S.E.2d 389 (1982).
[4] Laster v. State, 268 Ga. 172, 173(1), 486 S.E.2d 153 (1997).
[5] Tubbs v. State, 276 Ga. 751, 755(3), 583 S.E.2d 853 (2003).
[6] McGee v. State, 287 Ga.App. 839, 841(1), 652 S.E.2d 822 (2007).
[7] Arizona v. Washington, 434 U.S. 497, 508(II), 98 S. Ct. 824, 54 L. Ed. 2d 717 (1978).
[8] Gregoire v. State, 285 Ga.App. 111, 113-114(2), 645 S.E.2d 611 (2007).
[9] Lewis v. State, 214 Ga.App. 830, 832(1), 449 S.E.2d 535 (1994).
[10] Jefferson v. State, 224 Ga.App. 8, 10, 479 S.E.2d 406 (1996). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375603/ | IN THE MATTER OF: E.J.T.
No. COA09-562.
Court of Appeals of North Carolina.
Filed October 20, 2009.
This case not for publication
Robert S. Pleasant for petitioner-appellee.
Windy H. Rose for respondent-mother appellant.
ROBERT N. HUNTER, JR., Judge.
Respondent-mother ("Isabella")[1] appeals from an order terminating her parental rights to E.J.T ("Cooper"). We remand for additional findings of fact.
Petitioner ("Olivia") and Isabella are the great-aunt and mother, respectively, of Cooper. Cooper was conceived as the result of Isabella's non-consensual sexual encounter with an unknown male person.[2] At the time of the sexual encounter, Isabella was enrolled in high school and living in her parents' home in Durham County. When Isabella learned of her pregnancy, she disclosed the details of the incident to her parents. Together, they decided to ask Olivia, who is Isabella's maternal aunt and former childhood confidant, to take custody of Cooper at birth to rear as her own.[3] Olivia, who was not married and did not have any children of her own, agreed to the arrangement and prepared a nursery for Cooper at her home, which was also located in Durham County.
When Cooper was born, Isabella, who was then seventeen years old, decided that she wanted to breast feed him, which was contrary to her initial agreement with Olivia. Instead of leaving the hospital with Olivia as planned, Cooper returned with Isabella to her parents' home. There, Cooper remained in Isabella's care for approximately six weeks until Isabella finally delivered Cooper to Olivia as planned. After delivering Cooper to Olivia, Isabella visited Cooper a few times at the home of Olivia. Isabella also visited Cooper at church and during the family gatherings that followed. However, when Isabella made requests of Olivia to visit with Cooper unsupervised, Olivia declined those requests because she believed it was not in the best interests of Cooper. Specifically, Olivia felt that Isabella's lifestyle was unstable and was concerned about possible drug use by Isabella.[4] Also, Olivia was concerned about incidents of domestic violence in Isabella's parents' home.
Thereafter, a dispute arose concerning Isabella's visitation rights. The parties participated in counseling to try to resolve their disagreement about visitation. When an agreement was not reached, Olivia filed an action for custody of Cooper in Johnston County District Court, which was granted on 18 May 2007. After that custody determination, Isabella sought visitation rights with Cooper through counsel, but the request was denied. Then, almost a year later, on 2 May 2008, Olivia filed a petition to terminate Isabella's and the unknown father's parental rights.
Hearings were held on the petition to terminate Isabella's and the unknown father's parental rights on 22 October 2008, 5 and 26 November 2008, and 10 December 2008. The trial court found that prior to her filing the petition for termination of parental rights, Cooper had resided with Olivia in excess of two years. In that time, the trial court found that Olivia had provided a safe and fit home for Cooper. Moreover, the trial court found that other than a few items of clothing, Olivia had been the sole financial provider for Cooper. However, the trial court also noted that Olivia never requested support from Isabella, who is currently enrolled in high school and unemployed. Finally, the trial court found that Olivia intended to adopt Cooper before he was born and continues to intend to adopt Cooper in the event that he is cleared for adoption by termination of Isabella's and the unknown father's parental rights.
Based on these findings, the trial court concluded that grounds existed pursuant to section 7B-1111(a)(5) (2007)[5] of our General Statutes to terminate the unknown father's parental rights. The trial court also concluded that grounds existed pursuant to sections 7B-1111(a)(1)[6] and (7)[7] of our General Statutes to terminate both Isabella's and the unknown father's parental rights. The court further concluded that it was in Cooper's best interest to terminate both Isabella's and the unknown father's parental rights. Isabella appeals.
"On appeal, the standard of review from a trial court's decision in a parental termination case is whether there existed clear, cogent, and convincing evidence of the existence of grounds to terminate respondent's parental rights." In re Oghenekevebe, 123 N.C. App. 434, 439, 473 S.E.2d 393, 398 (1996) (citing In re Becker, 111 N.C. App. 85, 92, 431 S.E.2d 820, 825 (1993). The trial court's findings in this regard are binding on appeal "even though there may be evidence to the contrary." In re Williamson, 91 N.C. App. 668, 674, 373 S.E.2d 317, 320 (1988) (citing In re Montgomery, 311 N.C. 101, 112-13, 316 S.E.2d 246, 252-53 (1984)). "[I]t is the duty of the trial judge to consider and weigh all of the competent evidence, and to determine the credibility of the witnesses and the weight to be given their testimony." In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 365 (2000) (citation omitted).
We first consider Isabella's argument that the trial court erred by concluding that grounds existed pursuant to sections 7B1-111(a)(1) and (7) of our General Statutes to terminate her parental rights. N.C. Gen. Stat. § 7B-1111 sets out the statutory grounds for terminating parental rights. A finding of any one of the separately enumerated grounds is sufficient to support a termination. In re Taylor, 97 N.C. App. 57, 64, 387 S.E.2d 230, 233-34 (1990) (applying former statute N.C. Gen. Stat. § 7A2-89.32). In the case sub judice, the trial court concluded that Isabella had both neglected and abandoned Cooper.
Pursuant to N.C. Gen. Stat. § 7B-1111(a)(1), the court may terminate parental rights upon a finding that the "parent has abused or neglected the juvenile." N.C. Gen. Stat. § 7B-1111(a)(1). A "[n]eglected juvenile" is defined in N.C. Gen. Stat. § 7B-101(15) as
[a] juvenile who does not receive proper care, supervision, or discipline from the juvenile's parent, guardian, custodian, or caretaker; or who has been abandoned; or who is not provided necessary medical care; or who is not provided necessary remedial care; or who lives in an environment injurious to the juvenile's welfare; or who has been placed for care or adoption in violation of law.
N.C. Gen. Stat. § 7B-101(15). Generally, "[a] finding of neglect sufficient to terminate parental rights must be based on evidence showing neglect at the time of the termination proceeding." In re Young, 346 N.C. 244, 248, 485 S.E.2d 612, 615 (1997) (citation omitted).
Here, the trial court found that at the time of the termination proceedings, Cooper was receiving proper care from Olivia and residing in a "good and fit home." Moreover, the trial court found that "[t]he minor child is healthy and happy in the care of [Olivia.]" While the trial court also found that Isabella had failed to provide any support for Cooper other than several items of clothing, it also noted that Olivia never requested any support from Isabella. Additionally, the trial court found that Isabella had admitted to past use of marijuana and that Isabella had charges pending for possession of marijuana and trespassing. The trial court also found that Isabella was currently unemployed and had not finished her high school education. The trial court further found that there had been domestic violence in Isabella's home and that Isabella was not presently capable of providing a fit and proper home for Cooper. However, the trial court offered no findings on how these facts supported the conclusion that Cooper was neglected at the time of the termination proceedings.
When there is no evidence of neglect at the time of the termination proceeding, this Court has stated that
parental rights may nonetheless be terminated if there is a showing of a past adjudication of neglect and the trial court finds by clear and convincing evidence a probability of repetition of neglect if the juvenile were returned to [his or] her parents.
In re Reyes, 136 N.C. App. 812, 815, 526 S.E.2d 499, 501 (2000) (citation omitted). In the instant case, there was no past adjudication of neglect upon which the Court could rely. Thus, we conclude that the trial court erred by determining that grounds existed pursuant to N.C. Gen. Stat. § 7B-1111(a)(1) to terminate Isabella's parental rights.
We next consider the trial court's conclusion that Isabella abandoned Cooper. Pursuant to N.C. Gen. Stat. § 7B-1111(a)(7), the court may terminate parental rights upon a finding that the "parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion[.]" N.C. Gen. Stat. § 7B-1111(a)(7). This Court has defined abandonment as: wilful neglect and refusal to perform the natural and legal obligations of parental care and support. . . . [I]f a parent withholds his presence, his love, his care, the opportunity to display filial affection, and wilfully neglects to lend support and maintenance, such parent relinquishes all parental claims and abandons the child.
In re Humphrey, 156 N.C. App. 533, 540, 577 S.E.2d 421, 427 (2003) (quoting Pratt v. Bishop, 257 N.C. 486, 501, 126 S.E.2d 597, 608 (1962)). The petition to terminate Isabella's parental rights was filed on 2 May 2008. Therefore, the relevant six-month statutory period was from 2 November 2007 to 2 May 2008. Here, the trial court failed to make any specific findings regarding Isabella's actions, or failure to act, during the relevant six-month statutory period.
We note that the statute requires that the child be abandoned for "at least" six months prior to the motion or petition to terminate parental rights. N.C. Gen. Stat. § 7B-1111(a)(7). Accordingly, it is within the court's discretion to consider events occurring prior to the six-month period immediately preceding the filing of the motion. However, even when considering events outside the relevant six-month statutory time period, we conclude the trial court's findings were insufficient to support its conclusion that Isabella willfully abandoned Cooper.
Instead, the trial court's findings demonstrate that although Isabella may have intended that Olivia would raise Cooper, Isabella sought to retain her rights to visitation, and did in fact exercise visitation on more than one occasion. First, the trial court found that after Isabella "delivered" Cooper to Olivia, she visited Cooper "a few times at the home of [Olivia]." The trial court found that Isabella subsequently "made requests of [Olivia] to visit with [Cooper] unsupervised." However, Olivia declined to allow Isabella unsupervised visitation because she believed it was not in the best interests of Cooper.
Thereafter, a dispute arose concerning Isabella's visitation rights. The trial court found as a fact that "the parties participated in counseling to try to resolve the disagreement about visitation." Finally, the trial court found that Olivia filed an action for custody of the child, and that Isabella "through counsel, sought visitation with [Cooper]." Altogether, Olivia's attempts at visitation are not consistent with a conclusion that she made "a willful determination to forego all parental duties and relinquish all parental claims to the child." In re Adoption of Searle, 82 N.C. App. 273, 275, 346 S.E.2d 511, 514 (1986) (citation omitted). Instead, the findings suggest that Isabella sought the opportunity to display filial affection, but was repeatedly denied. Because the trial court's findings concerning the relevant six-month statutory period are insufficient, and the findings concerning Isabella's actions outside the relevant six-month statutory period are contrary to a conclusion that she abandoned Cooper, we remand to the trial court for additional findings with regard to the six-month statutory period pursuant to N.C. Gen. Stat. § 7B-1111(a)(7).
Because we find Isabella's first argument dispositive of this case on appeal, we need not consider Isabella's remaining argument.
Reversed and remanded.
Judges GEER and BEASLEY concur.
Report per Rule 30(e).
NOTES
[1] Pseudonyms will be used throughout this opinion to ease reading and protect the anonymity of the minor child.
[2] Isabella believes she was drugged without her knowledge prior to the sexual encounter and has no clear memory of it.
[3] Olivia testified at trial that this arrangement also included her adopting Cooper at birth, but Isabella testified that she only agreed to allow Olivia to rear Cooper, which is why she never finalized the adoption agreement presented by Isabella.
[4] Isabella admitted to past use of marijuana at trial and also had charges pending for possession of marijuana and trespassing at the time of the trial, but denied that she currently used any illegal drugs.
[5] The father of a juvenile born out of wedlock has not, prior to the filing of a petition or motion to terminate parental rights:
(a) Established paternity judicially or by affidavit which has been filed in a central registry maintained by the Department of Health and Human Services, provided, the court shall inquire of the Department of Health and Human Services as to whether such an affidavit has been so filed and shall incorporate into the case record the Department's certified reply; or
(b) Legitimated the juvenile pursuant to provisions of G.S. 49-10 or filed a petition for this specific purpose; or
(c) Legitimated the juvenile by marriage to the mother of the juvenile; or
(d) Provided substantial financial support or consistent care with respect to the juvenile and mother.
N.C. Gen. Stat. § 7B-1111(a)(5).
[6] The parent has abused or neglected the juvenile. The juvenile shall be deemed to be abused or neglected if the court finds the juvenile to be an abused juvenile within the meaning of G.S. § 7B-101 or a neglected juvenile within the meaning of G.S. § 7B-101. N.C. Gen. Stat. § 7B-1111(a)(1).
[7] The parent has willfully abandoned the juvenile for at least six consecutive months immediately preceding the filing of the petition or motion, or the parent has voluntarily abandoned an infant pursuant to G.S. § 7B-500 for at least 60 consecutive days immediately preceding the filing of the petition or motion. N.C. Gen. Stat. § 7B-1111(a)(7). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375613/ | 683 S.E.2d 688 (2009)
UNDERWOOD
v.
The STATE.
No. A09A0851.
Court of Appeals of Georgia.
August 18, 2009.
Gerard B. Kleinrock, for appellant.
Gwendolyn Keyes Fleming, Dist. Atty., Barbara B. Conroy, Daniel J. Quinn, Asst. Dist. Attys., for appellee.
BERNES, Judge.
Trimaine Underwood entered an Alford[1] plea to one count of theft by receiving. He argues that the plea was not intelligently and voluntarily given. Because the record belies Underwood's contention, we affirm.
In order to challenge a guilty plea by direct appeal, an appellant "must show that his claims can be addressed and resolved solely by reference to facts contained in the record." (Footnote omitted.) Turner v. State, 281 Ga. 435, 436(2), 637 S.E.2d 384 (2006). See Caine v. State, 266 Ga. 421, 467 S.E.2d 570 (1996). And "a guilty plea must be set aside unless the transcript of the guilty plea hearing or extrinsic evidence affirmatively demonstrates that the defendant *689 knowingly, intelligently, and voluntarily waived his constitutional rights against compulsory self-incrimination, to trial by jury, and to confront his accusers." (Citation omitted.) Sweeting v. State, 291 Ga.App. 693, 694, 662 S.E.2d 785 (2008). See Boykin v. Alabama, 395 U.S. 238, 242-244, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969).
A review of the plea hearing transcript shows that the state set forth the substantive factual basis for the theft by receiving charge against Underwood, after which the trial court confirmed that Underwood understood the maximum possible sentence he could receive for the crime. Underwood was then placed under oath, and the following colloquy transpired between him and the prosecutor:
[PROSECUTOR]: Are you able to hear and understand my statements and questions?
[UNDERWOOD]: Yes.
[PROSECUTOR]: Are you now under the influence of any alcohol, drugs, or any other substance?
[UNDERWOOD]: No, Ma'am.
[PROSECUTOR]: Has your lawyer explained the charge against you?
[UNDERWOOD]: Yes.
[PROSECUTOR]: Do you understand that you have the right to a jury trial?
[UNDERWOOD]: Yes.
[PROSECUTOR]: Do you understand that you could have a jury trial by pleading not guilty or by remaining silent and not entering a plea?
[UNDERWOOD]: Yes.
[PROSECUTOR]: Do you understand that you have the right to the assistance of counsel during trial?
[UNDERWOOD]: Yes.
[PROSECUTOR]: Do you understand that you are entitled to the presumption of innocence?
[UNDERWOOD]: Yes.
[PROSECUTOR]: Do you understand that you have the right not to incriminate yourself?
[UNDERWOOD]: Yes.
[PROSECUTOR]: Do you understand that at a jury trial, you would have the right to question witnesses against you, the right to subpoena witnesses on your own behalf, and the right to testify yourself and offer other evidence?
[UNDERWOOD]: Yes.
[PROSECUTOR]: Do you understand that by pleading guilty, you are giving up all these rights?
[UNDERWOOD]: Yes.
[PROSECUTOR]: Has anyone made any threats or promises to influence you to plead guilty in this case?
[UNDERWOOD]: No.
...
[PROSECUTOR]: Have you had a chance to discuss this case thoroughly with your attorney?
[UNDERWOOD]: Yes.
...
[PROSECUTOR]: Are you satisfied with the services and advice of your attorney?
[UNDERWOOD]: Yes.
[PROSECUTOR]: Do you understand that the maximum sentence for this charge is ten years to serve?
[UNDERWOOD]: Yes.
[PROSECUTOR]: Do you understand that the court is not bound by any promises or recommendations and that the court can impose that sentence of ten years to serve?
[UNDERWOOD]: Yes.
Underwood then tendered an Alford plea and confirmed that he had understood all of the questions posed to him and answered them truthfully. This record affirmatively establishes that Underwood was informed of and knowingly, intelligently, and voluntarily waived his constitutional rights against compulsory self-incrimination, to trial by jury, and to confront his accusers. See McCoon v. State, 294 Ga.App. 490, 492-493(2), 669 S.E.2d 466 (2008); Sweeting, 291 Ga.App. at 694, 662 S.E.2d 785; Johnson v. State, 287 Ga.App. 759, 762(3), 652 S.E.2d 836 (2007). *690 Underwood's claim to the contrary lacks merit.
Judgment affirmed.
SMITH, P.J., and PHIPPS, J., concur.
NOTES
[1] North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970) ("An individual accused of [a] crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime."). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375608/ | 683 S.E.2d 22 (2009)
BUCKLER et al.
v.
DeKALB COUNTY BOARD OF COMMISSIONERS et al.
No. A09A0451.
Court of Appeals of Georgia.
July 13, 2009.
Reconsideration Denied July 30, 2009.
*24 Roberts & Daughdrill, Brian E. Daughdrill, Atlanta, Hasty Pope, Canton, Marion T. Pope, for appellants.
Duane D. Pritchett, Michael J. Lober, Roswell, Melanie F. Wilson, Atlanta, for appellees.
Linda I. Dunlavy, amicus curiae.
ELLINGTON, Judge.
Robert H. Buckler and H. Anthony McCullar ("the developers") appeal from the Superior Court of DeKalb County's order denying their motion for partial summary judgment in their suit against DeKalb County, the members of the DeKalb County Board of Commissioners, and the members of the DeKalb County Historical Preservation Commission (collectively, "the county").[1] The developers contend that the court applied the wrong standard of review when it reviewed the county's actions in designating a historic district within the county under Georgia's Historic Preservation Act ("HPA"), OCGA § 44-10-20 et seq., and that, as a result, the court erred when it found that the designation of the historic district was valid. They also argue that, by denying their request to develop their property in a manner that was inconsistent with the requirements of the historic district, the county violated their constitutional rights. For the following reasons, we affirm.
This is the third appeal to this Court from the trial court's orders in this land-use litigation involving the Druid Hills Historic District.[2] In March 2006, the developers filed a petition for writ of certiorari and a complaint for mandamus and a declaratory judgment with the trial court, seeking an order compelling the county to issue them a certificate of appropriateness ("COA") for their proposed development and seeking a ruling that the county's designation of the historic district was invalid.[3] Both the developers and the county moved for partial summary judgment on these claims. The court dismissed the mandamus action[4] and denied the developers' motion on the declaratory judgment claim. The court ruled that the proper standard of review of the county's actions in designating the historic district was whether the county "substantially complied" with the statutory requirements for doing so. Applying that standard, the court found that the evidence presented showed that the county had, in fact, substantially complied with the applicable statutory requirements and, therefore, the designation of the historic district was valid. Based upon such finding, the court implicitly granted summary judgment to the county on the declaratory judgment claim, and the developers appeal from the court's order.
1. The developers contend that the court applied the wrong standard of review ("substantial compliance") when determining whether the county complied with the applicable statutory requirements when it adopted the ordinance which designated the historic district. They argue that, in order to protect their property rights, the court should have applied a "strict compliance" standard when reviewing the county's actions. We disagree.
The General Assembly adopted the HPA to establish a uniform procedure for use by counties and municipalities in enacting ordinances protecting, inter alia, districts which have special historical value. OCGA § 44-10-21 (legislative purpose of the HPA). As the trial court noted in its order, however, the HPA does not contain a provision which *25 states that a county's failure to strictly comply with any or all of the prescribed procedures when enacting an ordinance designating a historic district would automatically invalidate the district.
Under OCGA § 1-3-1(c), "substantial compliance with any statutory requirement, especially on the part of public officers, shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by law."[5] Further, "although `shall' ordinarily is a word of command, in the absence of injury to the defendant and in the absence of a penalty for failure to comply with the statute, `shall' denotes simple futurity rather than a command." (Citation, punctuation and footnote omitted.) Thebaut v. Ga. Bd. of Dentistry, 235 Ga.App. 194, 195(1), 509 S.E.2d 125 (1998).
Thus, because the HPA does not expressly provide that a county's failure to strictly comply with the Act's uniform procedures invalidates an ordinance adopted thereunder, and because the developers have failed to demonstrate that they were harmed by the county's alleged failure to strictly comply with the procedures,[6] the ordinance is valid as long as the county substantially complied with the provisions of the HPA.[7]Thebaut v. Ga. Bd. of Dentistry, 235 Ga.App. at 195(1), 509 S.E.2d 125 Accordingly, the court did not err in applying the "substantial compliance" standard of review in this case.
2. The developers also contend that the court erred in finding that the county substantially complied with the provisions of the HPA and the county's ordinances when creating the historic district and, as a result, erred in finding that the designation of the historic district was valid. Specifically, they complain that the county failed to have the appropriate official execute a final version of the ordinance which designated the historic district,[8] failed to show the historic district's boundaries on the county's official zoning map,[9] failed to mail notices to all property owners,[10] and failed to list the names of all property owners in the ordinance.[11]
"Municipal ordinances are entitled to a presumption of validity, and will be sustained unless clearly invalid. This presumption of the validity of ordinances is established case law in Georgia." (Citations and punctuation omitted.) Hart v. Columbus, 125 Ga.App. 625, 632(3), 188 S.E.2d 422 (1972).
(a) The record shows that the county enacted an ordinance designating the Druid Hills Historic District on June 25, 1996, and that this ordinance was signed by the county's chief executive officer. The record also shows that, following a public hearing on December 12, 2000, the county voted to exclude one subdivision from the historic district but to otherwise redesignate the area as a historic district. Pursuant to Section 15(a) of the DeKalb County Organizational Act, the presiding officer and the clerk of the *26 DeKalb County Board of Commissioners both signed the official record showing that the Board had approved the redesignation of the historic district. Although the county has conceded that it does not have a copy of the ordinance redesignating the district which shows that the ordinance was signed by the county's chief executive officer, Section 15(b) of the DeKalb County Organizational Act provides that, "[i]f the chief executive does not approve or veto an ordinance or resolution within eight (8) business days after its adoption by the commission, it shall become effective without the chief executive's approval."
Even though there is no proof in the record that the county's chief executive officer signed the resolution, there is also no evidence in the record that the officer vetoed the ordinance. Thus, the record supports the court's finding that the 2000 ordinance was valid.
(b) Regarding the remaining procedural oversights cited by the developers, the county presented evidence regarding the recordation of the district's boundaries on the county's official zoning maps, as well as the methods used to identify property owners prior to the proposed designation of the district and the fact that the county mailed written notices to 2,865 owners and occupiers of the property. In addition, the county placed legal notices in the newspaper and posted numerous signs in the area announcing the proposed action.[12] We find that the record supports the court's conclusion that the county substantially complied with the statutory notice requirements at the time it enacted the 2000 ordinance designating the historic district.
(c) Moreover, the record shows that, when the developers purchased the property at issue in 2004, they knew that the property was located within the Druid Hills Historic District and was subject to the district's restrictions on development.[13] Therefore, the developers have failed to show that they were denied due process or otherwise harmed by any of the claimed notice deficiencies in the county's designation of the historic district in 2000.
3. To the extent the developers argue that the county violated their constitutional rights by refusing to allow them to develop their property in a manner that is inconsistent with the requirements of the historic district, thus effecting an unconstitutional taking of their property, they failed to elicit a ruling by the trial court on any constitutional issue.[14] Therefore, they have waived any alleged constitutional error. Singleton v. Dept. of Human Resources, 263 Ga.App. 653, 654(1)(a), 588 S.E.2d 757 (2003) ("[U]nless ruled upon by the trial court, constitutional issues cannot be reviewed on appeal, because the appellate court lacks jurisdiction to consider *27 a constitutional issue not ruled upon by the trial court.") (citation omitted).
4. Finally, the developers' motion to strike the county's brief as untimely is denied.
Judgment affirmed.
JOHNSON, P.J., and MIKELL, J., concur.
NOTES
[1] In the same order, the court implicitly granted the county's motion for partial summary judgment on Counts 2 and 3 of the developers' complaint. Therefore, the order is directly appealable. OCGA § 9-11-56(h).
[2] Other facts and the procedural history of the case are presented in this Court's previous opinions and will not be restated here. See DeKalb County v. Buckler, 288 Ga.App. 346, 654 S.E.2d 193 (2007), cert. denied, Buckler v. DeKalb County, 288 Ga.App. 907 (2008); Buckler v. DeKalb County, 290 Ga.App. 190, 659 S.E.2d 398 (2008), cert. denied, DeKalb County v. Buckler, 290 Ga. App. 905 (2008).
[3] The developers subsequently amended their complaint to add a claim for damages.
[4] The developers do not challenge the court's dismissal of the mandamus claim.
[5] See Hart v. Columbus, 125 Ga.App. 625, 631(2), 634-635(4), (5), 188 S.E.2d 422 (1972) (applying the substantial compliance standard when reviewing government officials' actions in adopting ordinances that provided for an unusual method of ad valorem taxation; this Court found that, under the standard, the ordinances were validly adopted pursuant to the applicable statutes, and it rejected the appellants' claims that the ordinances violated their constitutional rights).
[6] See Division 2(c), infra.
[7] This conclusion is consistent with this Court's ruling in DeKalb County v. Buckler, 288 Ga.App. at 348, 654 S.E.2d 193, in which we found that the county's denial of the developers' application for a COA was proper, even though the county's Historic Preservation Commission ("HPC") did not have seven members at the time, as required by Section 13.5-3 of the DeKalb County Code. This Court held that, in the absence of a provision in the code which stated that the failure to have seven members on the HPC invalidated an HPC decision, the county's substantial compliance with the HPA and the DeKalb County Code was sufficient. Id. at 349, 654 S.E.2d 193.
[8] See DeKalb County Organizational Act § 15 (veto power of the chief executive).
[9] See OCGA § 44-10-26(a)(1); DeKalb County Code § 13.5.7(5)(a).
[10] See OCGA § 44-10-26(b)(2); DeKalb County Code § 13.5.7(6).
[11] See OCGA § 44-10-26(a)(2), (a)(3); DeKalb County Code § 13.5.7(5)(b), (5)(c).
[12] See generally DeKalb County v. Pine Hills Civic Club, 254 Ga. 20, 20-21(1), 326 S.E.2d 214 (1985) ("Notice by publication of a rezoning hearing to be held by a governing authority of a county is proper and adequate insofar as the requirements of procedural due process and equal protection are concerned. Such notice by publication puts all parties, wherever located, on notice that a public hearing will be held at the stated time and place before the governing authority which is considering an application to rezone land under the jurisdiction of the governing authority. [Thus,] notice by publication is all that affected property owners are entitled to, and... their legal or constitutional rights are not violated by the rezoning of property when such notice by publication is given.") (citation and punctuation omitted).
[13] In fact, the record shows that the developers initially petitioned the county for a COA in 2004. While the parties litigated the rulings on that petition, the developers filed an alternate request for a COA for the same property in 2005, the denial of which ultimately resulted in the instant suit.
[14] Although the developers originally filed this appeal with the Supreme Court of Georgia based upon their assertion that their constitutional rights had been violated, the Court transferred the appeal to this Court based upon the absence of an express ruling by the trial court on any constitutional issue. See Ga. Const. 1983, Art. VI, Sec. VI, Par. II(1) (the Supreme Court of Georgia has exclusive appellate jurisdiction over cases involving the construction of the state constitution or the constitutionality of a law, ordinance or constitutional provision); City of Decatur v. DeKalb County, 284 Ga. 434, 436(1), 668 S.E.2d 247 (2008) (in order to invoke the Supreme Court's jurisdiction, the appellate record must show that the trial court specifically ruled upon a constitutional question that is within the Court's exclusive jurisdiction). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375620/ | 683 S.E.2d 385 (2009)
Merlin HAWKINS, Employee, Plaintiff-Appellee
v.
GENERAL ELECTRIC COMPANY, Employer,
Electric Insurance Co., Carrier, Defendants-Appellants.
No. COA08-1436.
Court of Appeals of North Carolina.
August 18, 2009.
*387 Younce & Vtipil, P.A., by Robert C. Younce, Jr., Raleigh, for plaintiff-appellee.
Young Moore and Henderson P.A., by Jeffrey T. Linder, Raleigh, and Martin R. Jernigan, for defendants-appellants.
CALABRIA, Judge.
General Electric Company ("GE") and Electric Insurance Co. ("insurer"), the workers' compensation carrier (collectively, "defendants"), appeal from the North Carolina Industrial Commission's ("the Commission") Opinion and Award, which granted Merlin Hawkins ("plaintiff") temporary total disability benefits. We affirm in part and reverse in part.
Plaintiff was hired by the GE Aircraft Engine Manufacturing facility in Durham as an assembly and test technician on 28 September 1998. Plaintiff had previously worked in airline maintenance for the United States Navy and various airlines. When he began his employment with GE, plaintiff did not suffer from any skin or breathing problems.
Beginning in the spring of 2003, plaintiff began to experience skin and breathing problems. Plaintiff sought the advice of various doctors, including several dermatologists. Eventually, Dr. Beth Goldstein ("Dr. Goldstein") of the Central Dermatology Center suspected plaintiff's condition was the result of occupational exposures. On 20 April 2005, Dr. Goldstein removed plaintiff from his workplace and referred him to Dr. Elizabeth Sherertz, ("Dr. Sherertz") a board certified occupational dermatologist with significant experience with contact dermatitis. Dr. Sherertz conducted allergic test patching on plaintiff for some of the compounds that plaintiff may have encountered in his work environment. Based on her observations, Dr. Sherertz concluded that plaintiff had developed a delayed hypersensitivity allergy to chemicals in his workplace. As a result of Dr. Sherertz's recommendations, Dr. Goldstein removed plaintiff from the workplace for a period of three months.
During the three-month leave of absence, plaintiff showed signs of improvement, and Dr. Goldstein permitted him to return to work with restrictions on his exposure to chemicals in July 2005. Once plaintiff returned to work, his symptoms reappeared. *388 On 8 September 2005, plaintiff took the advice of Dr. Goldstein and Dr. Sherertz and ceased working at GE. In the opinion of his doctors, plaintiff was unable to work in any job where he would be exposed to the chemicals that cause his allergic reaction. Within two months of leaving GE, Dr. Goldstein found plaintiff's skin problems to be ninety-eight percent improved.
Plaintiff filed a request for hearing on 8 May 2006, alleging that he suffered from the compensable occupational diseases of allergic contact dermatitis and occupational asthma due to his exposure to chemicals while working at GE. On 4 October 2007, an Opinion and Award was filed, which concluded that the plaintiff developed compensable occupational diseases due to his employment with GE. This decision was appealed to the Full Industrial Commission, which affirmed the Opinion and Award with modifications on 15 July 2008. Defendants appeal.
Our review of an Industrial Commission decision is "limited to reviewing whether any competent evidence supports the Commission's findings of fact and whether the findings of fact support the Commission's conclusions of law." Deese v. Champion Int'l Corp., 352 N.C. 109, 116, 530 S.E.2d 549, 553 (2000). "The findings of the Commission are conclusive on appeal when such competent evidence exists, even if there is plenary evidence for contrary findings." Hardin v. Motor Panels, Inc., 136 N.C.App. 351, 353, 524 S.E.2d 368, 371 (2000) (internal citation omitted). "The evidence tending to support plaintiff's claim is to be viewed in the light most favorable to plaintiff, and plaintiff is entitled to the benefit of every reasonable inference to be drawn from the evidence." Barbour v. Regis Corp., 167 N.C.App. 449, 454-55, 606 S.E.2d 119, 124 (2004). The Commission's conclusions of law are reviewable de novo. Deseth v. LensCrafters, Inc., 160 N.C.App. 180, 184, 585 S.E.2d 264, 267 (2003) (citation omitted).
A claim for an occupational disease not otherwise recognized in N.C. Gen.Stat. § 97-53 of our workers' compensation statutes may be established under the provision of § 97-53(13). See James v. Perdue Farms, Inc., 160 N.C.App. 560, 561-62, 586 S.E.2d 557, 559 (2003). A plaintiff bears the burden of proof in showing he meets the requirements of the statute. Id. Our Supreme Court has held, in Rutledge v. Tultex Corp., that:
For a disease to be occupational under G.S. 97-53(13) it must be (1) characteristic of persons engaged in the particular trade or occupation in which the claimant is engaged; (2) not an ordinary disease of life to which the public generally is equally exposed with those engaged in that particular trade or occupation; and (3) there must be "a causal connection between the disease and the [claimant's] employment."
308 N.C. 85, 93, 301 S.E.2d 359, 364 (1983) (internal citations omitted). The Court further explained that in order to satisfy the first and second elements, it is not necessary that the disease originate exclusively from or be unique to the particular trade or occupation in question. Id. The statute does not exclude all ordinary diseases of life from coverage. Id. Only such ordinary diseases of life to which the general public is exposed equally with workers in the particular trade or occupation are excluded. Id. Thus, the first two elements are satisfied if the employment exposed the worker to a greater risk of contracting the disease than the public generally. Id. "The greater risk in such cases provides the nexus between the disease and the employment which makes them an appropriate subject for workmen's compensation." Id. at 93-94, 301 S.E.2d at 365 (quoting Booker v. Duke Med. Ctr., 297 N.C. 458, 475, 256 S.E.2d 189, 200 (1979)).
I. Plaintiff's Asthma
Defendants first argue that there is no competent evidence to support the Commission's findings of fact in regards to the plaintiff's asthma condition. According to defendants, without these findings, the remaining evidence is insufficient to support the Commission's conclusions of law that employment with GE placed the employee at a greater risk than the general public of contracting asthma and that the employee's work with GE was a significant factor in causing his asthma. We do not agree there is no competent evidence to support the Commission's *389 finding of fact that plaintiff's asthma condition was caused by his employment, but we do agree that there is no competent evidence that plaintiff was placed at a greater risk of contracting asthma than the general public.
Defendants assert the following findings of fact concerning the plaintiff's asthma are not supported by competent evidence:
45. Based on the greater weight of the evidence, the Full Commission finds that plaintiff's work for defendant-employer placed him at greater risk than the general public of contracting systemic allergic contact dermatitis and asthma.
46. The Full Commission further finds that plaintiff's work for defendant-employer was a significant factor in causing his systemic allergic contact dermatitis and asthma.
"[W]here the exact nature and probable genesis of a particular type of injury involves complicated medical questions far removed from the ordinary experience and knowledge of laymen, only an expert can give competent opinion evidence as to the cause of the injury." Click v. Pilot Freight Carriers, Inc., 300 N.C. 164, 167, 265 S.E.2d 389, 391 (1980). Moreover, "[w]here a layman can ... do no more than indulge in mere speculation (as to the cause of a physical condition), there is no proper foundation for a finding by the trier without expert medical testimony." Gillikin v. Burbage, 263 N.C. 317, 325, 139 S.E.2d 753, 760 (1965) (internal citation and quotations omitted). Thus, "findings regarding the nature of a disease its characteristics, symptoms, and manifestations must ordinarily be based upon expert medical testimony." Norris v. Drexel Heritage Furnishings, Inc., 139 N.C.App. 620, 623, 534 S.E.2d 259, 262 (2000).
Finding of fact forty-six is clearly supported by competent evidence. The evidence indicates that Dr. Peter Bressler, an allergist at the University of North Carolina, diagnosed the employee with "probable occupational asthma." Additionally, Dr. Dennis Darcey, an occupational medicine specialist at Duke University, diagnosed a "possible occupational contact/allergic dermatitis with occupational allergic/irritant asthma component." Finally, according to the testimony of Dr. Sherertz, it was "likely" that there was a connection between plaintiff's asthma and his dermatitis. Based upon our standard of review, there is no error in this finding of the Commission.
However, finding of fact forty-five, that the plaintiff was at a greater risk than the general public of contracting asthma, is not supported by any competent evidence in the record and therefore cannot stand. None of the doctors testified that in their individual medical opinions plaintiff was at an increased risk of contracting asthma because of his employment with GE, as required by Rutledge, 308 N.C. 85, 301 S.E.2d 359 (1983). The testimony and evidence regarding asthma only establishes a causal link between the plaintiff's employment and the development of asthma, without specifically addressing the possibility of an increased risk to the plaintiff. Without this evidence, plaintiff has failed to carry his burden that he suffers from the compensable occupational disease of asthma. Because finding of fact forty-five is unsupported by any competent evidence, the Commission's conclusion of law that plaintiff was at a greater risk than the general public of contracting asthma fails. Further, because defendants are obligated to pay only for treatments "required to effect a cure or give relief" for conditions related to a compensable injury, the Commission's conclusion of law that plaintiff is entitled to medical expenses for plaintiff's asthma also fails. N.C. Gen.Stat. § 97-2(19) (2007). The award requiring defendants to pay medical expenses for plaintiff's asthma is reversed.
II. Plaintiff's Contact Dermatitis
Defendants next argue that plaintiff's contact dermatitis is the result of personal sensitivities that are not compensable under the Workers' Compensation Act. While we agree that personal sensitivities are not compensable under our Workers' Compensation Act, we do not agree that such rule has application in this case. Hayes v. Tractor Supply Co., 170 N.C.App. 405, 408, 612 S.E.2d 399, 402 (2005).
*390 Defendants have conceded that plaintiff's contact dermatitis is unquestionably a result of his employment with GE. However, defendants contend that plaintiff's contact dermatitis resulted entirely from his personal sensitivities, and, as a matter of law, plaintiff was not placed at an increased risk of contracting this disease when compared to the general public. We disagree.
The cases cited by the defendants to support their proposition are distinguishable from the instant case. In both Hayes v. Tractor Supply Co., 170 N.C.App. 405, 612 S.E.2d 399 (2005), and Nix v. Collins & Aikman Co., 151 N.C.App. 438, 566 S.E.2d 176 (2002), the plaintiffs were denied benefits because there was evidence that the plaintiffs suffered from a pre-existing condition that was aggravated by their employment. In the instant case, there is no evidence that the plaintiff presented any symptoms consistent with his contact dermatitis condition until he worked at GE for several years.
In Sebastian v. Mona Watkins Hair Styling, the plaintiff developed a skin condition due to her sensitivities to chemicals used at her employer's hair salon after working for a few years. 40 N.C.App. 30, 251 S.E.2d 872, disc. review denied, 297 N.C. 301, 254 S.E.2d 921 (1979). Within one month of plaintiff's termination of employment, this condition cleared up and she suffered no continuing disability. Id. at 33, 251 S.E.2d at 874. The plaintiff was awarded medical expenses and temporary total disability benefits for the period during which she suffered the skin condition. Id. at 31, 251 S.E.2d at 874. Contrary to defendants' assertions, the plaintiff in Sebastian was not denied workers' compensation benefits due to her "personal sensitivities." Id. at 33, 251 S.E.2d at 875.
The plaintiff in the instant case shares many similarities with the compensated plaintiff in Sebastian, 40 N.C.App. 30, 251 S.E.2d 872 (1979). After years of working for GE, plaintiff developed an allergic contact dermatitis that made it impossible for him to return to work. The condition subsided on both occasions that plaintiff spent significant time away from GE. It is undisputed that plaintiff can no longer work at GE because there are no jobs available that could guarantee he would not have exposure to the chemicals at issue.
While no other employee has reported a similar issue in the fifteen years the plant has operated, the chemicals that plaintiff was exposed to list the ailment he has now acquired as a possible side-effect of exposure. Dr. Sherertz testified that plaintiff developed this hypersensitivity as a direct result of his prolonged exposure to the chemicals at the GE facility, and the Commission decided to give weight to her testimony. The evidence, including the expert medical testimony, was sufficient for the Commission to conclude that plaintiff's contact dermatitis was a compensable occupational disease and we find no error in this conclusion.
III. Plaintiff's Total Disability
Defendants next argue that plaintiff is not totally disabled because his condition subsided after he terminated his employment with GE. We disagree.
Under the Workers' Compensation Act, "[a]n employee injured in the course of his employment is disabled ... if the injury results in an `incapacity ... to earn the wages which the employee was receiving at the time of the injury in the same or any other employment.'" Russell v. Lowe's Product Distribution, 108 N.C.App. 762, 765, 425 S.E.2d 454, 457 (1993) (second alteration in original) (quoting N.C. Gen.Stat. § 97-2(9) (1991)). Therefore, "disability" as defined in the Workers' Compensation Act is the impairment of the injured employee's earning capacity and not physical disablement. Peoples v. Cone Mills Corp., 316 N.C. 426, 434-35, 342 S.E.2d 798, 804 (1986) (quoting Ashley v. Rent-A-Car Co., 271 N.C. 76, 84, 155 S.E.2d 755, 761 (1967)). It is the burden of the employee to make this showing. Hilliard v. Apex Cabinet Co., 305 N.C. 593, 595, 290 S.E.2d 682, 684 (1982).
The employee may meet this burden in one of four ways: (1) the production of medical evidence that he is physically or mentally, as a consequence of the work related injury, incapable of work in any employment; (2) the production of evidence that he is capable of some work, but that he has, after a reasonable effort on his part, been unsuccessful in his effort to obtain employment; (3) the production of evidence that he is capable of some work but that it *391 would be futile because of preexisting conditions, i.e., age, inexperience, lack of education, to seek other employment; or (4) the production of evidence that he has obtained other employment at a wage less than that earned prior to the injury.
Russell, 108 N.C.App. at 765, 425 S.E.2d at 457 (internal citations omitted).
Defendants' contention relies heavily on Sebastian, 40 N.C.App. 30, 251 S.E.2d 872 (1979), which was decided many years prior to Russell. In Sebastian, the Court upheld the Commission's determination that additional benefit payments were unnecessary after the employee's skin condition cleared, since there was no evidence of a continuing disability. Sebastian, 40 N.C.App. at 33, 251 S.E.2d at 875. This case is distinguishable. The plaintiff in the instant case has presented competent evidence of continuing disability under the last three prongs of Russell.
Plaintiff was 63 years old in 2005 when his employment with GE was terminated due to his occupational disease. The evidence showed that he lacks a college education and that his spelling and mathematical skills were below high school level. His work experience has been exclusively in the aircraft assembly and maintenance industries. Plaintiff would need significant training to find employment in another industry, which is highly problematic given his age. Given these facts, it was not error for the Commission to determine that the plaintiff is disabled pursuant to N.C. Gen.Stat. § 97-29 for as long as his occupational disease exists.
The award is affirmed with the exception of the portion of the award ordering payment for plaintiff's asthma treatment, which is reversed. We remand to the Industrial Commission for the purpose of entering an order stating the amount to be paid for plaintiff's contact dermatitis treatment and any resulting disability.
Affirmed in part, reversed in part, and remanded.
Chief Judge MARTIN and Judge STEELMAN concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375793/ | 933 P.2d 1323 (1997)
John E. ARCHIBOLD; Harry A. Galligan, Jr.; Edythe S. Miller; John B. Stuelpnagel, and all Colorado taxpayers and/or U.S. West Telecommunications, Inc. telephone ratepayers who are similarly situated, Plaintiffs/Petitioners-Appellants,
v.
PUBLIC UTILITIES COMMISSION OF THE STATE OF COLORADO and Commissioners Robert J. Hix, R. Brent Alderfer, and Vincent Majkowski; and U.S. West Communications, Inc., Defendants/Respondents-Appellees.
No. 96SA149.
Supreme Court of Colorado, En Banc.
March 17, 1997.
Rehearing Denied April 7, 1997.
*1324 John B. Stuelpnagel, John E. Archibold, Denver, for Plaintiffs/Petitioners-Appellants.
Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Merrill Shields, Deputy Attorney General, Richard Djokic, First Assistant Attorney General, Mana L. Jennings-Fader, Assistant Attorney General, Regulatory Law Section, Denver, for Defendants/Respondents-Appellees Public Utilities Commission of the State of Colorado and Commissioners Robert J. Hix, Vincent Majkowski, and R. Brent Alderfer.
No Appearance On Behalf of Defendant/Respondent-Appellee U.S. West Communications, Inc.
Chief Justice VOLLACK delivered the Opinion of the Court.
John E. Archibold, Harry A. Galligan, Jr., Edythe S. Miller, and John B. Stuelpnagel *1325 (the plaintiffs) appeal the district court's order dismissing the plaintiffs' cause of action after the district court denied the plaintiffs' motion to amend their complaint.[1] We affirm the district court's rulings.
I.
On November 16, 1994, the Public Utilities Commission (PUC) issued an order to show cause to address possible violations of the PUC's Rules Regarding Telecommunications Service Providers and Telephone Utilities (Telephone Rules) by U.S. West Communications (U.S. West).[2] In its order to show cause, the PUC requested that parties wishing to intervene in the proceedings do so before December 1, 1994. The Office of Consumer Counsel, Independent Telephone Companies, and the Coalition of Rural Telecommunications Users (the intervenors) were permitted to intervene in the proceedings.
Shortly thereafter, U.S. West began settlement negotiations with PUC staff and the intervenors. As a result of these negotiations, a stipulation and settlement agreement (settlement agreement) was reached among the parties.[3] On February 9, 1995, the PUC approved the settlement agreement in part and rejected it in part, and granted the parties' oral motion to vacate the proceedings against U.S. West. On April 5, 1995, the settlement agreement, as modified, received final approval from the PUC and became effective.
On October 6, 1995, the plaintiffs filed a complaint in Denver District Court challenging the PUC's authority to approve the settlement agreement.[4] The plaintiffs' complaint prayed for declaratory and injunctive relief.
On October 19, 1995, the PUC approved a final list of beneficiaries who would receive disbursements from the telecommunications fund.[5] One week later, the plaintiffs requested late intervention in the PUC proceedings. Their motion for late intervention was denied by the PUC on November 22, 1995.[6]
The district court held a hearing on November 28, 1995. After oral arguments, the district court found that it lacked subject matter jurisdiction to hear the plaintiffs' cause of action because section 40-6-115(4), 17 C.R.S. (1993), does not authorize the district court to consider claims requesting declaratory *1326 or injunctive relief in PUC cases.[7] The district court delayed its order for ten days to give the plaintiffs time to amend their complaint.
On December 6, 1995, the plaintiffs filed a motion to amend their complaint to include a writ of mandamus and a request for certiorari review pursuant to section 40-6-115(1), 17 C.R.S. (1993).[8] The district court denied the plaintiffs' motion, finding that section 40-6-115 is the exclusive procedure for invoking jurisdiction of the district court and that to allow the plaintiffs to proceed by mandamus would abrogate the intent of the legislature. Additionally, the district court noted that these plaintiffs were foreclosed from requesting judicial review because they did not timely file their Motion to Intervene and thus were not "parties" to the PUC proceedings. The district court ultimately dismissed the plaintiffs' amended complaint for lack of subject matter jurisdiction.
II.
A.
In Silver Eagle Services, Inc. v. Public Utilities Commission, 768 P.2d 208, 211 (Colo.1989), we explained that section 40-6-115, 17 C.R.S. (1993), provides the exclusive procedure for invoking the jurisdiction of a district court when it is asked to review a PUC decision. We also explained "unequivocally" that district court review of a PUC decision is properly initiated by application for a writ in the nature of certiorari or review, not by the filing of a complaint. Silver Eagle, 768 P.2d at 212.
Additionally, section 40-6-115(1) requires that an application for a writ in the nature of certiorari or review be filed with the district court "[w]ithin thirty days after a final decision by the [PUC] in any proceeding." § 40-6-115(1), 17 C.R.S. (1993). For a PUC decision to be considered final, all issues between the parties must be resolved. See Keystone, a Div. of Ralston Purina Co. v. Flynn, 769 P.2d 484, 488 (Colo.1989).
Although the PUC approved a final list of disbursement beneficiaries on October 19, 1995, the PUC's decision in this case became final on April 5, 1995, after the settlement agreement became effective and the disciplinary proceedings against U.S. West were vacated. The PUC's approval of the settlement agreement was a definitive resolution of the proceedings against U.S. West. Therefore, section 40-6-115(1) provides that any parties seeking judicial review of this decision were required to apply for a writ in the nature of certiorari or review by May 5, 1995.
Nevertheless, the plaintiffs did not act until October 6, 1995, when they improperly filed a complaint with the district court demanding declaratory and injunctive relief. The plaintiffs did not apply for a writ in the nature of certiorari or review until December 6, 1995, eight months after the final PUC decision was issued.[9] Because the plaintiffs' request for judicial review did not come within *1327 the thirty-day deadline set forth in section 40-6-115(1), their cause of action is time barred. Therefore, the district court was without jurisdiction to consider the plaintiffs' cause of action.
III.
Although we generally agree with the district court's conclusion that, pursuant to section 40-6-115(4), the district court was without authority to issue declaratory or injunctive relief in this case, the plaintiffs' failure to apply for a writ in the nature of certiorari or review in a timely fashion precludes any consideration of their cause of action. The remaining issues in the plaintiffs' appeal are therefore moot and the ruling of the district court dismissing the plaintiffs' cause of action is affirmed.[10]
NOTES
[1] Section 40-6-115(5), 17 C.R.S. (1993), provides that appellate review of a final judgment of the district court on judicial review of a PUC decision is in the supreme court.
[2] The order to show cause concerned several of the Telephone Rules concerning customer service. See Rule 21.2.4, 4 C.C.R. 723-2-21.2.4 (1994) (service call acknowledgement); Rule 21.1, 4 C.C.R. 723-2-22.1 (1994) (maximum number of reports); Rule 21.2, 4 C.C.R. 723-2-22.2 (1994) (response time).
[3] The settlement agreement consisted of three parts: (1) to remedy past Telephone Rules violations, U.S. West would set aside approximately $4 million as a telecommunications fund designed to support telecommunications projects serving public needs; (2) U.S. West would increase funding in an effort to improve service quality; and (3) to ensure future compliance with the Telephone Rules, U.S. West would provide the PUC with quarterly reports and make automatic payments into the telecommunications fund in the event it failed to meet specific service standards set forth in the settlement agreement.
[4] The plaintiffs have all worked closely with the PUC in the past. John E. Archibold is former chief counsel to the PUC. Harry A. Galligan, Jr., is a former Executive Secretary to the PUC. Edythe S. Miller is a former Chairperson of the PUC. John Stuelpnagel is a former PUC Administrative Law Judge.
[5] Twenty-three projects were selected for distribution of $4,291,421. These projects related to various educational, health, and public service organizations.
[6] The PUC's Rules of Practice and Procedure permit late intervention only if good cause exists for the delay. See Rule 64(c)(3), 4 C.C.R. 723-1 (1993). The PUC determined that the plaintiffs failed to establish good cause because they could not account for the delay between April, when the PUC approved the settlement agreement, and October, when the plaintiffs finally requested late intervention. Furthermore, the PUC determined that reopening its final decisions after projects had been selected for disbursement "would be unfair to the parties who ha[d] fully participated in this docket."
[7] Section 40-6-115(4), 17 C.R.S. (1993), provides in pertinent part:
No court of this state, except the district court to the extent specified, shall have jurisdiction to review, reverse, correct, or annul any order or decision of the commission, or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the commission in the performance of its official duties; but an action in the nature of mandamus shall lie from the district court to the commission in all proper cases.
[8] Section 40-6-115(1), 17 C.R.S. (1993), provides in pertinent part:
Within thirty days after a final decision by the commission in any proceeding, any party to the proceeding before the commission may apply to the district court for a writ of certiorari or review for the purpose of having the lawfulness of the final decision inquired into and determined. Such writ ... shall direct the commission to certify its record in the proceeding to said court.
[9] Additionally, the plaintiffs did not seek intervention in the PUC proceedings until October 26, 1995. We have no record to review the plaintiffs' late request for intervention because the PUC was never obligated to certify a record of the agency proceedings. However, the plaintiffs' brief asserts that late intervention was necessary to prevent the PUC from pursuing an unauthorized course of action. We agree with the PUC that this vague explanation does not establish good cause pursuant to PUC Rule 64(c)(3) because it fails to explain the prolonged delay between the final agency decision and the plaintiffs' request for late intervention.
[10] The plaintiffs additionally requested that we review: (1) whether the district court properly denied the plaintiffs' requests for injunctive relief and a judicial stay; (2) whether the district court correctly concluded that remedies under mandamus, C.R.C.P. 106, and certiorari review were unavailable; (3) whether the PUC gave sufficient notice of the proceedings; (4) whether the district court erred in not certifying the case as a class action; and (5) whether the PUC was unauthorized to disburse funds in this manner. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1376209/ | 584 S.E.2d 646 (2003)
262 Ga. App. 6
CAROLINA CASUALTY INSURANCE COMPANY et al.
v.
RAGAN MECHANICAL CONTRACTORS, INC.
No. A03A0150.
Court of Appeals of Georgia.
June 26, 2003.
Certiorari Denied October 20, 2003.
Bovis, Kyle & Burch, John V. Burch, Christina A. Craddock, Atlanta, for appellants.
McManus & Graham, John C. McManus, Atlanta, J. Hatcher Graham, Richelo, Morrissey & Wright, Brian J. Morrissey, Atlanta, Allison W. Maffei, for appellee.
*647 ADAMS, Judge.
Ragan Mechanical Contractors, Inc. filed suit against Latco Construction Company, Inc.; Carolina Casualty Insurance Company; and Everest Reinsurance Company seeking to recover for labor and materials supplied as a subcontractor in connection with the construction of Lithonia High School. Latco was the general contractor, and Carolina Casualty and Everest were co-sureties on the performance and payment bonds on the project. Carolina Casualty and Everest appeal from the trial court's grant of partial summary judgment to Ragan. We affirm.
In January 2000, Latco entered into a contract with the DeKalb County Board of Education for the construction of the high school. Pursuant to the terms of this general contract, Latco obtained performance and payment bonds, and these were issued jointly by Carolina Casualty and Everest on behalf of Latco and in favor of the board.
In connection with the project, Latco entered into a subcontract with Ragan on January 18, 2000, for the performance of the mechanical, HVAC and plumbing work. Work proceeded on the project until approximately December 8, 2000, when the board of education issued a stop work directive. As a result, Latco directed Ragan to cease all work on the project. The subcontractor stopped working at that time and never resumed its work. Ragan was not paid for all of the work it performed on the project, although Latco was paid for the work.
On March 6, 2001, the board of education terminated Latco's "right to proceed" on the project, stating that it considered the contractor to be in default. As a result, the board demanded that Carolina Casualty and Everest discharge their obligations under the performance bond. The co-sureties subsequently entered into a Takeover Agreement with the board of education under which they agreed to complete Latco's general contract. The co-sureties engaged the services of de Oplossing, Inc. to manage the project's completion. de Oplossing asked each of Latco's subcontractors to sign a ratification agreement, under which the subcontractor would agree to complete its work on the project.
Ragan declined to sign the ratification agreement, and instead sought to obtain payment for its work on the project from Latco and from the co-sureties under the payment bond. After they refused to pay Ragan, the company filed this action, and the co-sureties took the position that Ragan had failed to perform its obligation to complete its work under the subcontract.[1] The parties filed cross-motions for partial summary judgment seeking a determination as to whether Ragan's subcontract was terminated when the board terminated Latco's right to proceed. The trial court granted Ragan's motion for partial summary judgment, and denied the co-sureties' motion, holding that Ragan had no further obligations under the subcontract.
1. Carolina Casualty and Everest first assert that the trial court erred in holding that the board of education's termination of Latco's right to proceed also resulted in the downstream termination of Ragan's subcontract. We find no error.
As an initial matter, we note that nothing in the subcontract specifically obligated Ragan to complete its work for the benefit of the co-sureties in the event of Latco's termination. Carolina Casualty and Everest contend, however, that Ragan's obligations to perform continued because the termination provision in the subcontract had not been triggered. Accordingly, this issue is governed by the termination provision found in paragraph 15 of the subcontract, which provides:
Should [the board of education] terminate the [general] Contract or any part of the [general] Contract which includes the Subcontractor's Work, this Contract shall also be terminated and Subcontractor shall immediately stop Subcontractor's related Work.
Applying the cardinal rule of contract construction, we must ascertain whether the *648 parties intended at the time they entered into the subcontract that Ragan's obligations under that agreement would terminate if the board of education terminated Latco's performance under the general contract. See Atlanta Development v. Emerald Capital Investments, 258 Ga.App. 472, 477(1), 574 S.E.2d 585 (2002). It is a fundamental rule of contract construction that we must look to the whole contract in arriving at the construction of any part. OCGA § 13-2-2(4). Accordingly, we must construe the subcontract as a whole in determining the parties' intent under paragraph 15.
Although the parties agree that the subcontract incorporated the general contract by reference, Ragan did not agree to be directly bound to the board of education under that contract. Rather, it undertook only certain obligations in connection with the general contract. Specifically, Ragan agreed to perform its work in compliance with the specifications of the general contract and subject to the approval of Latco, the architect and the board of education.[2]
The language of the subcontract demonstrates, however, that Ragan's primary undertaking was to perform its work for the benefit of Latco and for the purpose of enabling Latco to meet its obligations under the general contract. In that connection, under two separate provisions of the subcontract, Ragan assumed "toward [Latco] all of the obligations and responsibilities that [Latco] assumed toward [the board of education]" in connection with the mechanical, HVAC and plumbing work on the project. (Emphasis supplied.) In addition, Ragan agreed to start work when notified by Latco and to complete work "at such times as will enable [Latco] to fully comply with the main contract." Thus, while Latco was obligated to the board of education to perform work under the general contract, Ragan was obligated to Latco under the subcontract to assist in performing that work.
Paragraph 15 of the subcontract provides that if the board of education terminated "any part" of the general contract "which includes the Subcontractor's Work," then the subcontract was also terminated. The subcontractor's work was to assist Latco in performing its obligations under the general contract. Therefore, we find that when the board of education terminated Latco's obligation to perform, Ragan's obligation to assist in that performance was also terminated.
Carolina Casualty and Everest assert, however, that paragraph 15 of the subcontract applied only where the board of education terminated the general contract as a whole. And they contend that the board did not terminate the general contract because it wanted to preserve its rights under the performance bond. But this argument ignores the plain language of paragraph 15, which provides that the subcontract will terminate either when the general contract is terminated or if "any part" of the general contract involving the subcontractor's work is terminated. This language clearly contemplates that something less than a termination of the entire general contract could trigger the subcontract's termination.
In making their argument, Carolina Casualty and Everest seek to construe the subcontract in connection with the board's rights against the co-sureties under the performance and payment bonds, but the bonds are completely separate from the subcontract and must be construed separately. Thus, we need not address the effect that Latco's termination had on the co-sureties' obligations under the performance bond in order to determine whether the subcontract was terminated. And the cases upon which the co-sureties rely in support of their argument have no application to the issues before us. See United States v. Continental Cas. Co., 210 F.Supp. 433 (S.D.N.Y.1962); Appeals of Rayco, Inc. et al., 1983 WL 13521 (Eng. B.C.A.1983).
Accordingly, we find that the trial court correctly found that the subcontract had been terminated.
2. Carolina Casualty and Everest also contend that the trial court erred in holding that Ragan was not obligated to perform under the subcontract because Latco breached its obligation to pay Ragan for the work it had already performed. The co-sureties assert that an issue of fact exists as to whether *649 Ragan was entitled to payment for the work performed.
Under the subcontract, Ragan agreed to provide all labor, materials and equipment necessary to timely complete its work and in return, Latco agreed to pay Ragan $1,975,349 in monthly installments based upon the percentage of the work completed "to the full satisfaction of the [board of education], Architect and Contractor." Latco's obligation to pay Ragan was expressly conditioned upon Latco's receipt of payment from the board. Ragan presented evidence that at the time the board of education issued its stop work order, Latco had been paid for work performed by Ragan, but it failed to pay Ragan for that work.
Carolina Casualty and Everest do not dispute that Latco had been paid by the board, but they present affidavit testimony stating that a "significant amount" of Ragan's work was determined to be defective. Ragan counters with affidavit testimony that when de Oplossing took over management of the project, the condition of its work was not as it had been when it was installed because the project site was left unsecured, resulting in damage to much of Ragan's work.
We have already found that Ragan was not obligated to complete its work under the subcontract because that contract had been terminated and that Ragan was entitled to partial summary judgment on that ground. Therefore, we need not determine if the trial court erred in finding that Ragan was also relieved of its obligation to perform because Latco breached the subcontract. But we note that the trial court's order specifically preserved any defenses the co-sureties may have to Ragan's claims for payment. And we agree with the co-sureties that an issue of fact exists as to whether Ragan's work was in compliance with the subcontract and thus whether it is entitled to recover under the payment bond.
Judgment affirmed.
ANDREWS, P.J., and BARNES, J., concur.
NOTES
[1] Latco subsequently filed a bankruptcy petition, and Ragan's claims against the contractor were stayed under 11 USC § 362(a).
[2] Ragan also agreed to be bound by the liquidated damage provisions of the general contract to the extent that the damages were caused by Ragan. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1376286/ | 69 Wash. App. 401 (1993)
848 P.2d 1335
In the Matter of the Personal Restraint of JOHN Z. ESTAVILLO, Petitioner.
THE STATE OF WASHINGTON, Respondent,
v.
JOHN Z. ESTAVILLO, Appellant.
Nos. 26699-3-I; 28283-2-I.
The Court of Appeals of Washington, Division One.
April 19, 1993.
*402 Irene Tanabe of Washington Appellate Defender Association, for petitioner.
David R. Needy, Prosecuting Attorney, and K. Garl Long, Deputy, for respondent.
WEBSTER, C.J.
Following his conviction of one count of indecent liberties and release from the Department of Corrections, John Estavillo filed a personal restraint petition, in which he asserts that applying the sex offender registration statute to him violates the constitutional prohibition against ex post facto laws.[1]
FACTS
On March 24, 1989, Estavillo was charged with three counts of indecent liberties for acts alleged to have occurred from August of 1985 to July of 1988. A jury convicted him of one count of indecent liberties. After serving a 20-month sentence, he was released from the Department of Corrections.
DISCUSSION
RCW 9A.44.130 states in part:
(1) Any adult or juvenile residing in this state who has been found to have committed or has been convicted of any sex offense shall register with the county sheriff for the county of the person's residence.
(2) The person shall provide the county sheriff with the following information when registering: (a) Name; (b) address; (c) date and place of birth; (d) place of employment; (e) crime for which convicted; (f) date and place of conviction; (g) aliases used; and (h) social security number.
(Italics ours.) Any person who knowingly fails to register is guilty of either a felony or a gross misdemeanor. RCW 9A.44.130(7). The statute specifies deadlines within which certain classes of sex offenders must register. Estavillo falls into the category of a sex offender who committed a sex *403 offense "on, before, or after February 28, 1990," and who was in custody on or after July 28, 1991. RCW 9A.44.130(3)(a)(i). Persons in this category "must register within twenty-four hours from the time of release with the county sheriff for the county of the person's residence." RCW 9A.44.130(3)(a)(i).
[1, 2] Estavillo contends that retrospective application of RCW 9A.44.130 violates article 1, section 23 of the Washington Constitution, which prohibits ex post facto legislation. In State v. Handran, 113 Wash. 2d 11, 14, 775 P.2d 453 (1989), the Washington Supreme Court reaffirmed its adoption of the federal framework for ex post facto analysis.
This framework provides that a new law violates the prohibition against ex post facto laws if: (1) it aggravates a crime or makes it greater than it was when committed; (2) permits imposition of a different or more severe punishment than when the crime was committed; (3) changes the legal rules to permit less or different testimony to convict the offender than was required when the crime was committed; or (4) it is made retroactive and disadvantages the offender.
Handran, at 14 (citing State v. Edwards, 104 Wash. 2d 63, 70, 701 P.2d 508 (1985)). The prohibition against enacting an ex post facto law limits the State's power only with regard to the imposition of punishment. Agustin v. Quern, 611 F.2d 206, 211 (7th Cir.1979), cited in 16A C.J.S. Constitutional Law § 426, at 381 n. 46 (1984). An enactment designed to protect the public is not punishment. Agustin, at 211. In United States v. Sutton, 521 F.2d 1385 (7th Cir.1975), the court held that a statute precluding the receipt, transportation, or possession of a firearm by a convicted felon for a period of 5 years after release from prison did not violate the prohibition against ex post facto laws as applied to an individual who had already been arrested and convicted of a felony. Sutton, at 1390-91, cited in 16A C.J.S. Constitutional Law § 426, at 381 n. 49. See also Ivory v. Wainright, 393 So. 2d 542, 544 (Fla. 1980) (statute requiring prisoners to disclose assets and income and be assessed cost of their subsistence in prison held not ex post facto legislation), cited in 16A C.J.S. Constitutional Law § 418, at 368 n. 97.
*404 [3] Estavillo asserts that he would be "disadvantaged" by application of the sex offender registration statute because it would infringe on his freedom to move within Washington in privacy and would subject him to prosecution for failing to register with the sheriff in each county in which he chooses to reside. We do not believe that the Handran case stands for the proposition that any retroactively applied legislation which inconveniences an individual constitutes an ex post facto law. Although the sex offender registration requirement is retroactive, the "disadvantage" it places upon Estavillo is not punitive in nature. Since the purpose of the registration requirement is not to impose punishment, but to protect the public, and the effect of the requirement is not punitive, the registration requirement does not constitute an ex post facto law.[2]
Estavillo's personal restraint petition is denied. Estavillo's appeal of his conviction, which was consolidated with his personal restraint petition, has no precedential value and will be filed in accordance with the rules governing unpublished opinions.
The judgment is affirmed.
PEKELIS, J., concurs.
Review denied at 122 Wash. 2d 1003 (1993).
NOTES
[1] Estavillo also appeals his underlying conviction. His appeal and personal restraint petition have been consolidated. Estavillo's appeal is treated in the unpublished portion of this opinion.
[2] We reject the State's contention that the sex offender registration statute "only addresses conduct occurring after its enactment." The sex offender registration statute imposes an affirmative obligation only upon sex offenders, including those who committed a sex offense prior to the enactment of the statute. Therefore, the statute applies retroactively. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1376285/ | 866 F. Supp. 1430 (1994)
Abraham SHIEPE and Brenda Colwell, Plaintiffs,
v.
The UNITED STATES, Defendant.
Court No. 92-03-00214, Slip Op. No. 94-166.
United States Court of International Trade.
October 19, 1994.
Leonard M. Fertman, P.C., Leonard M. Fertman, Los Angeles, CA, for plaintiffs.
Frank W. Hunger, Asst. Atty. Gen., Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, and Carla Garcia-Benitez, Washington, DC, for defendant.
OPINION
MUSGRAVE, Judge.
Plaintiffs challenge the Customs Service's failure to refund monies deposited by plaintiffs to secure the return of their vehicle which the Customs Service had seized. The government asserts that this Court lacks subject matter jurisdiction to hear the merits of this case.
Background
On February 7, 1986, the United States Customs Service ("Customs") released a Mercedes Benz automobile to plaintiff Abraham Shiepe from the Customs facility at Terminal Island, California. Mr. Shiepe was the importing agent for plaintiff Brenda Colwell, the importer of record. The 1986 Mercedes Benz 420 SL was imported from Korea and did not conform to Environmental Protection Agency ("EPA") or Department of Transportation ("DOT") regulations. Customs released the vehicle under bond to Mr. Shiepe on the express condition that it be brought into conformity with the EPA/DOT regulations.
On February 10, 1986, Customs seized the vehicle from Mr. Shiepe at an air freight terminal near Los Angeles International Airport. Customs asserted that the vehicle was not in compliance with EPA/DOT regulations.[1] Plaintiffs petitioned Customs for release of the vehicle. Customs granted early release of the vehicle upon payment of $5924, pending final decision. Letter to Mr. Fertman, March 17, 1986. Plaintiff paid for the *1431 early release of the vehicle in March of 1986. In June of 1989, Customs determined from its review that it was proper to have seized the car. Letter to Mr. Fertman, June 20, 1989. Plaintiffs filed a supplemental petition in July of 1989 requesting review of Customs's decision. The petition was denied in June, 1990. Letter to Mr. Fertman, July 2, 1990. Plaintiffs filed a second supplemental petition which Customs denied in May, 1991. Letter to Mr. Fertman, May 31, 1991.
In denying plaintiffs' second petition, Customs instructed plaintiffs to notify its office if plaintiffs desired to have the case referred for judicial proceedings. Id. Accordingly, in June of 1991, plaintiffs indicated to Customs that they wished to have the case referred to the U.S. Court of International Trade for judicial proceedings. See Defendant's Motion to Dismiss, Exhibit G. In August of 1991, Customs informed plaintiffs that its instructions for judicial proceedings was an error, and that Customs had considered the matter closed. See Defendant's Motion to Dismiss, Exhibit H. Plaintiffs filed a protest on October 9, 1991 pursuant to 19 U.S.C. § 1514. Plaintiffs claimed that the vehicle was improperly seized and requested that the sum deposited for early release of the vehicle be returned with interest. Customs denied the protest as untimely and not involving a protestable decision.
Plaintiffs now bring this action, alleging jurisdiction in this Court under 28 U.S.C. § 1581(a) and § 1581(i). The government moves to dismiss the case for lack of jurisdiction.
Discussion
The government argues that in order for this Court to assert jurisdiction under 28 U.S.C. § 1581(a),[2] plaintiff must protest a Customs decision regarding one or more of the specific categories set forth in 19 U.S.C. § 1514(a). Since its refusal to refund the monies does not fall under any of the categories set forth in section 1514(a), the government asserts it cannot properly be protested under section 1514(a), or therefore denied under 19 U.S.C. § 1515. Since a denial of protest under section 1515 is a necessary requirement for asserting jurisdiction under 28 U.S.C. § 1581(a), the government argues this Court does not have jurisdiction. See Defendant's Motion to Dismiss, at 5-6.
In addition, the government argues that 28 U.S.C. § 1581(i)[3] cannot properly be the basis for an action for the return of monies paid to mitigate a penalty, as such an action does not fall within the language of 28 U.S.C. § 1581(i). See Defendant's Reply to Plaintiffs' Response to Defendant's Motion to Dismiss, at 8. The government argues that since plaintiffs have not established jurisdiction in this Court under section 1581(i), plaintiffs' action should be dismissed.
Plaintiffs argue that this Court has jurisdiction under 28 U.S.C. § 1581(a), or in the alternative 28 U.S.C. § 1581(i). See Plaintiffs' Response to Defendants Motion to Dismiss ("Plaintiff's Response"), at 3. Plaintiffs argue that the amount of money paid by them to secure the release of the car was a "fine" or "penalty" as contemplated by 19 U.S.C. § 1520(a)(3).[4] Plaintiffs also argue *1432 that such a "fine" or "penalty" amounts to a "charge" or "exaction" as that term is used in 19 U.S.C. § 1514(a)(3). See Plaintiffs' Response, at 4-6. Plaintiffs provide no support as to why this court has jurisdiction under 28 U.S.C. § 1581(i).
This case presents two issues. First, whether monies paid to Customs for release of an automobile constitutes a "charge" or "exaction" within the meaning of those terms as used in 19 U.S.C. § 1514(a)(3). Second, whether such payment and subsequent refusal to refund the payment falls within the terms of 28 U.S.C. § 1581(i).
This Court, like all federal courts, is a court of limited jurisdiction. Once the Court's jurisdiction is challenged, plaintiffs bear the burden of proving that the Court's exercise of jurisdiction is proper. Dennison Manufacturing Co. v. United States, 12 CIT 1, 2, 678 F. Supp. 894, 896 (1988).
The Court of Appeals for the Federal Circuit has recently considered whether this Court has jurisdiction over actions for refunds for monies paid to Customs. See Trayco, Inc. v. United States, 994 F.2d 832 (Fed.Cir.1993). In Trayco, the plaintiff imported merchandise which was not properly marked. Customs allowed Trayco custody of the merchandise on the condition that it be properly marked. The merchandise was then properly marked, but inadvertently moved to another warehouse. Prior to reinspection, Trayco's president certified to Customs that Trayco had complied with the conditions of release. As a result of a misunderstanding, Customs constructively seized the goods and assessed a penalty for gross negligence pursuant to 19 U.S.C. § 1592(c). Trayco petitioned Customs for mitigation or remission in accordance with 19 U.S.C. § 1618, but the petition was denied. After Trayco submitted a supplemental petition, Customs mitigated the penalty. Trayco then filed a second supplemental petition after paying the penalty as required by regulation.[5] Trayco paid the penalty "under protest reserving all rights under judicial review following exhaustion of administrative remedies." Trayco, 994 F.2d at 835. After Customs denied the second supplemental petition, Trayco filed an action in United States District Court for the District of South Carolina claiming that there was no basis for the penalty. The district court found that the merchandise had been properly marked and that there was no factual basis to support the penalty and accordingly ordered a refund. The government appealed to the United States Court of Appeals for the Fourth Circuit. The Fourth Circuit Court affirmed the district court, but upon the government's petition for rehearing, the court vacated its opinion and transferred the case to the Circuit Court of Appeals for the Federal Circuit. Trayco Inc. v. United States, 967 F.2d 97 (4th Cir.1992).
The Court of Appeals for the Federal Circuit considered, inter alia, whether the Court of International Trade has exclusive jurisdiction over actions for refunds of penalties. In deciding this issue, the court concluded that the district court properly exercised jurisdiction over the case. It reasoned that 28 U.S.C. § 1346(a)(2)[6] grants district courts jurisdiction over civil actions and claims against the government. In addition, 28 U.S.C. § 1581(a)-(i) does not specifically grant the Court of International Trade jurisdiction *1433 over refunds of penalties or claims against the government. Moreover, the court added that 28 U.S.C. § 1582[7] grants exclusive jurisdiction over actions to recover a penalty only when such action is commenced by the government. Hence, the court held that the district court, not the Court of International Trade, has jurisdiction over actions against the government for refund of penalties. Trayco, 994 F.2d at 836-38.
The Court of Appeals for the Federal Circuit has also recently considered the parameters of 28 U.S.C. § 1581(i). See Conoco, Inc. v. U.S. Foreign-Trade Zones Bd., 18 F.3d 1581 (Fed.Cir.1994). In Conoco, Conoco and others challenged in United States District Court the duties it would have to pay to get a certain subzone status for its refinery operations. The government argued that the Court of International Trade had exclusive jurisdiction to hear the matter. The district court agreed and dismissed the action. Plaintiffs then filed an action with the Court of International Trade. The government then, reversing without comment its position before the District Court, argued that the Court of International Trade lacked jurisdiction. This Court concluded that it lacked jurisdiction and dismissed the action because it was premature under 28 U.S.C. § 1581(a), and barred under § 1581(i). On appeal, the government argued that § 1581(i) "cannot be taken at its face, and that controlling precedent requires a narrower reading of the statute than the words connote." Id. at 1588. The Court of Appeals for the Federal Circuit found the action to be within the parameters of § 1581(i).[8] In reversing the lower court, the Federal Circuit Court stated "[i]t is time to bring to an end the unproductive jurisdictional ping-pong games, and to give litigants their right to expeditious and timely decisions on the merits of their claims." Conoco, 18 F.3d at 1590.
The facts in the case before this Court are more similar to those of Trayco. Here, as in Trayco, plaintiffs seek a refund of monies paid. Likewise, plaintiffs are unable to point to a subsection of 28 U.S.C. § 1581 which specifically grants jurisdiction to the Court of International Trade for refunds of penalties or claims against the United States. Plaintiffs argue that the monies they paid amounts to a fine or penalty which should be construed to be a "charge" or "exaction" as those terms are used in 19 U.S.C. § 1514(a)(3). Perplexingly, the Court of Appeals for the Federal Circuit in Trayco found that Customs "exacted" a penalty, and thus, it may be presumed, the penalty was an exaction, as contemplated by 1514(a)(3). Trayco, 994 F.2d at 837. In the instant case a protest against that exaction was filed by the importer.[9] While this distinction could be found to sufficiently differentiate Shiepe from Trayco, the Court is compelled to observe the perceived "gap" in its jurisdiction set forth by the Court of Appeals for the Federal Circuit in Trayco. Trayco, 994 F.2d at 837, 839. That perception and the resulting asymmetry between the rights, or positions, of litigants involved in judicial review of (exacted) penalties, has the unavoidable effect of perpetuating the "unproductive jurisdictional ping-pong games" observed, and ameliorated, by the Circuit Court in Conoco. Conoco, at 1589, 1590.
Conclusion
For the reasons stated herein, defendant's motion for dismissal is granted.
NOTES
[1] See Notice to Mr. Shiepe, dated 25 February 1986. In this letter Customs cited 19 C.F.R. § 12.73 (Motor vehicle and engine compliance with Federal antipollution emission requirements), and 19 C.F.R. § 12.80 (Federal motor vehicle safety standards), 19 U.S.C. § 1592 (Penalties for fraud, gross negligence, and negligence). In addition, Customs also claimed plaintiff Shiepe was in violation of 18 U.S.C. § 545 (Smuggling goods into the United States).
[2] 28 U.S.C. § 1581(a) is set out as follows:
(a) The Court of International Trade shall have exclusive jurisdiction of any civil action commenced to contest the denial of a protest, in whole or in part, under section 515 of the Tariff Act of 1930.
28 U.S.C. § 1581(a) (1988).
[3] 28 U.S.C. 1581(i) is set out in pertinent part as follows:
(i) In addition to the jurisdiction conferred upon the Court of International Trade by subsections (a)-(h) of this section ... the Court of International Trade shall have exclusive jurisdiction of any civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for
(1) revenue from imports or tonnage;
(2) tariffs, duties, fees, or other taxes on the importation of merchandise for reasons other than the raising of revenue;
(3) * * *
(4) administration and enforcement with respect to the matters referred to in paragraphs (1)-(3) of this subsection and subsections (a)-(h) of this section.
* * * * * *
28 U.S.C. § 1581(i) (1988).
[4] 19 U.S.C. § 1520(a)(3) is set out as follows:
(a) Cases in which refunds authorized
The Secretary of the Treasury is authorized to refund duties or other receipts in the following cases:
* * * * * *
(3) Fines, penalties, and forfeitures. Whenever money has been deposited in the Treasury on account of a fine, penalty, or forfeiture which did not accrue, or which is finally determined to have accrued in an amount less than that so deposited, or which is mitigated to an amount less than that so deposited or is remitted.
* * * * * *
19 U.S.C. § 1520(a) (1988).
[5] 19 C.F.R. § 171.33(c)(1).
[6] Section 1346 provides that:
(a) The district courts shall have original jurisdiction, concurrent with the United States Claims Court, of:
* * * * * *
(2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department....
28 U.S.C. § 1346(a)(2) (1988).
[7] Section 1582 provides:
The Court of International Trade shall have exclusive jurisdiction of any civil action which arises out of an import transaction and which is commenced by the United States
(1) to recover a civil penalty under section 592 ... of the Tariff Act of 1930.
28 U.S.C. § 1582 (1988).
[8] The pertinent subsections are § 1581(i)(1) and § 1581(i)(4). See note 2, supra.
[9] Trayco did not, apparently, file a protest against its exaction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1376282/ | 69 Wash. App. 349 (1993)
848 P.2d 1288
THE STATE OF WASHINGTON, Respondent,
v.
MICHAEL J. RILEY, JR., Appellant.
No. 27246-2-I.
The Court of Appeals of Washington, Division One.
April 12, 1993.
*350 Irene Tanabe of Washington Appellate Defender Association, for appellant.
Norm Maleng, Prosecuting Attorney, and Sally Olsen, Deputy, for respondent.
COLEMAN, J.
Michael Riley, Jr., appeals his judgment and sentence for one count of assault in the second degree, contending that the Superior Court erred in failing to enter findings of fact and conclusions of law concerning its suppression rulings, that prosecutorial misconduct deprived him of his right to a fair trial, and that the Superior Court erred in imposing an exceptional sentence. We affirm.
On May 27, 1990, about 1:30 a.m., Officers Hay, Howard, and Smith were on patrol, traveling eastbound on East Union Street in Seattle. Officer Hay was a part of the East Precinct Gang and Narcotics Unit and had received training in gang recognition. As they neared the intersection of East Union Street and 23rd Avenue, Officer Hay noticed a group of seven males whom he recognized as members of the Black Gangster Disciples or BGD's. The seven males were standing on the southwest corner of the intersection and were looking southward down 23rd Avenue. Then, Officer Hay heard three gunshots fired in rapid succession from around the corner to the south and observed the BGD's scattering. Officer Hay accelerated around the corner and saw Michael Riley, Jr., standing on the sidewalk facing the area where the BGD's had been standing. Officer Hay recognized Riley from prior contacts and knew him to be a member of the Bloods, a rival gang.
Although the facts were in dispute, Officer Hay testified that Riley began running south on 23rd when he saw the police car. Officer Hay pursued Riley in his patrol car, Officer Howard jumped out of the car and ordered Riley to the ground, and other officers arrived and placed Riley under arrest. While patting down Riley for weapons, Officer Ramm, one of the arresting officers, noticed a bulge in Riley's right rear pocket. Officer Ramm investigated and discovered a 5-shot revolver, *351 which contained three spent rounds and two live rounds of ammunition.
At the police precinct, Officer Hay advised Riley of his constitutional rights, and Riley indicated that he understood them. Riley then gave a statement to Officer Hay, which read:
Tonight I was downtown with Slim and Jay Collins at a party. Some BGDs started to make trouble with us.... I was standing on the stairs and they came up and jumped me and knocked me down the stairs. They stomped on me and kicked me[.] We left in Slim's car and went up by Union where I had the gun stashed. I got the gun, those [BGD's] were trying to kill me, those [BGD's] tried to get me and vice versa. I wasn't trying to shoot at them, just in the air. And that's it.
Riley was charged with assault in the second degree in violation of RCW 9A.36.021(1)(c) and RCW 9.94A.125. Prior to trial, Riley moved under CrR 3.5 to suppress his statement and moved under CrR 3.6 to suppress the gun seized. Both motions were denied. No findings of fact and conclusions of law on the suppression rulings were entered.
During trial, the State presented testimony from the arresting officers. In addition, the State presented the testimony of Slim Simpson, the driver of the car in which Riley had been riding, and of Demecho Duggins and Kevin Pigge, two of the BGD's who had been shot at.
Riley testified in his own defense, stating that he no longer had any gang affiliations, that he left the party with Slim Simpson in Slim's maroon Monte Carlo, and that at 23rd Avenue and East Union he saw some BGD's. Riley testified that the BGD's signaled that they wanted to fight, that Simpson pulled over because Riley had seen a friend, and that the BGD's were advancing menacingly. Further, Riley testified that he was afraid for his life, that he got a gun from his friend, and that he fired into the air.
In closing argument, the prosecutors stated that, in order to believe Riley's story, the jury would have to disbelieve the testimony of the officers and the BGD's. Defense counsel did not object, did not make a motion to strike, and did not ask for a curative instruction.
*352 Riley was convicted of assault in the second degree and was given a sentence of 40 months, a sentence 16 months beyond the standard range. The Superior Court based its exceptional sentence on the fact that Riley committed a willful and wanton act of retaliation against rival gang members who were not involved in the incident for which Riley was retaliating and that Riley committed the assault in total disregard for the safety of others.[1] Riley appeals.
[1] We first consider whether the Superior Court committed reversible error in failing to enter findings of fact and conclusions of law concerning its denial of Riley's motions to suppress. Written findings of fact and conclusions of law are required for all rulings on motions made under CrR 3.5[2] and 3.6.[3] However, although "failure to submit written findings *353 and conclusions pursuant to CrR 3.5 and 3.6 is error, such error is harmless where the trial court's oral findings are sufficient to permit appellate review." State v. Smith, 67 Wash. App. 81, 87, 834 P.2d 26 (1992), review granted, 120 Wash. 2d 1018 (1993); State v. Clark, 46 Wash. App. 856, 859, 732 P.2d 1029, review denied, 108 Wash. 2d 1014 (1987).
The trial court's oral findings are sufficient to permit appellate review of the trial court's denial of Riley's motions to suppress. Regarding the CrR 3.5 motion, the court found that Riley was fully informed of and understood his Miranda[4] rights, that he voluntarily made the statement, that there was no evidence of coercion, and that he made the statement knowingly and intelligently. Regarding the CrR 3.6 motion, the court noted that no argument was made that the gun had been improperly seized, that the State had the burden of linking the gun seized with the alleged assault, and that deciding whether the State had met that burden was within the province of the jury. Because the court's oral decision sufficiently set forth its reasons for denial, failure to enter written findings and conclusions was harmless error.
[2] We next determine whether prosecutorial misconduct deprived Riley of his right to a fair trial and requires reversal.[5] "Prosecutorial misconduct requires reversal when there is a substantial likelihood that the argument affected the jury's verdict." State v. Barrow, 60 Wash. App. 869, 876, 809 P.2d 209, review denied, 118 Wash. 2d 1007 (1991); see also State v. Mak, 105 Wash. 2d 692, 726, 718 P.2d 407, cert. denied, 479 U.S. 995, 93 L. Ed. 2d 599, 107 S. Ct. 599 (1986). "The burden of proving such prejudice rests with the defense." Barrow, at 876; see also State v. Hughes, 106 Wash. 2d 176, 195, 721 P.2d 902 (1986).
*354 Unless a defendant objected to the improper comments at trial, requested a curative instruction, or moved for a mistrial, reversal is not required unless the prosecutorial misconduct was so flagrant and ill intentioned that a curative instruction could not have obviated the resultant prejudice.
Barrow, at 876; State v. Ziegler, 114 Wash. 2d 533, 540, 789 P.2d 79 (1990).
[3] Because Riley did not object to the prosecutor's improper closing argument, request a curative instruction, or move for a mistrial, Riley must make a showing that the prosecutor's misconduct was so egregious that the resulting prejudice could not have been obviated by a curative instruction. Riley cannot meet this burden. See Barrow, at 876 (finding that a curative instruction would have cured the prejudice engendered from similar liar arguments). Thus, although the prosecutor's misconduct should not be condoned, reversal is not warranted.
Finally, we consider whether the Superior Court erred in imposing an exceptional sentence.
A reviewing court may reverse an exceptional sentence if it finds that the trial court's supporting reasons do not justify an exceptional sentence as a matter of law. RCW 9.94A.210(4)(a); see also State v. McAlpin, 108 Wash. 2d 458, 463, 740 P.2d 824 (1987). Gang membership, by itself, may not be a factor which justifies an exceptional sentence.[6] However, Division Two of this court upheld an exceptional sentence imposed for a gang-related shooting which furthered the gang's reputation as a powerful and violent organization. See State v. Smith, 64 Wash. App. 620, 624-25, 825 P.2d 741 (1992). In addition, Division One of this court upheld an exceptional sentence imposed for a random shooting, a type of crime often associated with gang violence. See State v. Smith, 58 Wash. App. 621, 626-27, 794 P.2d 541 (1990), rev'd on other *355 grounds sub nom. State v. Barnes, 117 Wash. 2d 701, 712, 818 P.2d 1088 (1991). In affirming the exceptional sentence, this court stated that "unpredictable, irrational violence, committed without warning, [is] particularly insidious ... [and is] especially destructive of society's sense of security."[7]Smith, 58 Wn. App. at 626.
[4] Riley argues that the Superior Court infringed upon his constitutional rights to freedom of expression and association by considering Riley's gang membership as a factor which supported the exceptional sentence. However, although gang membership may be constitutionally protected, criminal gang-related activities are not. The Superior Court found that Riley went into rival gang territory at a time when rival gang members would be there, that he acted in retaliation for his earlier beating, that he retaliated against rival gang members who had not participated in the earlier assault, and that, unlike Riley's act of retaliation, the earlier beating had not involved the use of weapons. Finally, the court found that the assault was carried out on a public thoroughfare in a random manner with total disregard for the safety of others. This type of gang-related violence justifies the exceptional sentence imposed.
The judgment and sentence of the trial court are affirmed.
WEBSTER, C.J., and BAKER, J., concur.
NOTES
[1] Specifically, the Superior Court found:
1. Defendant was a member of a gang engaging in criminal activity and in violence with rival gangs.
2. This assault was motivated by defendant's desire to retaliate against members of a particular rival gang as a result of a prior incident.
3. Defendant sought out members of the rival gang in an area where they were likely to be found, on a public thoroughfare, and at a time when passersby, as well as rival gang members might be there.
4. The rival gang members shot at by defendant were not those involved in the prior incident for which defendant was retaliating. Nor had the prior incident involved the use of weapons against the defendant.
5. This assault was a wanton and willful act of retaliation directed in a random manner toward victims uninvolved except for their rival gang affiliation, and carried out in total disregard for the safety of others.
The court concluded that the "[d]efendant's exceptionally high danger to the public through random violence with a firearm, under the circumstances outlined in Findings of Fact 1-5, presents an aggravating factor which ... is a sub-stantial and compelling reason for the sentence imposed above the standard range."
[2] CrR 3.5(c) provides:
"After the hearing, the court shall set forth in writing: (1) the undisputed facts; (2) the disputed facts; (3) conclusions as to the disputed facts; and (4) conclusion as to whether the statement is admissible and the reasons therefor."
[3] CrR 3.6 provides:
"At the conclusion of a hearing, upon a motion to suppress physical, oral or identification evidence the trial court shall set forth in writing: (1) the undisputed facts; (2) the disputed facts; (3) the court's findings as to the disputed facts; and (4) the court's reason for the admissibility or inadmissibility of the evidence sought to be suppressed."
[4] Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R. 3d 974 (1966).
[5] The State concedes that the prosecutor committed error by stating during closing argument that, if the jury were to believe Michael Riley, it would have to find that the arresting officers and other witnesses were not telling the truth. The State's conclusion is consistent with State v. Barrow, 60 Wash. App. 869, 874-75, 809 P.2d 209, review denied, 118 Wash. 2d 1007 (1991), where this court held that similar liar arguments amounted to misconduct.
[6] Cf. State v. Smith, 64 Wash. App. 620, 625, 825 P.2d 741 (1992) ("[W]e do not necessarily disagree with Smith's contention that persons should not receive a criminal penalty merely because they belong to an organization, regardless of what we may think of the organization[.]").
[7] In State v. Barnes, 117 Wash. 2d 701, 818 P.2d 1088 (1991), the Supreme Court reversed and remanded for resentencing, finding that four of the six reasons supporting Smith's exceptional sentence were improper. Barnes, at 712 (future dangerousness not a proper factor supporting an exceptional sentence in nonsexual cases). However, the Barnes court agreed that the presence of unpredictable, irrational violence was a proper factor to be considered. Barnes, at 712 (referring to Smith, 58 Wn. App. at 624-27). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/763966/ | 176 F.3d 493
Lewisv.FL Dept. of Health*
NO. 98-3094
United States Court of Appeals,Eleventh Circuit.
March 05, 1999
1
Appeal From: N.D.Fla. , No.96-00433-3-CV-RV
2
Affirmed.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3 | 01-03-2023 | 04-18-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/556832/ | 927 F.2d 595Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Aaron HOLSEY, Plaintiff-Appellant,v.Ms. HARMOND, Individually, and as a Nurse assigned to theCorrectional Training Center at Hagerstown, Maryland,Patalinghug, Individually, and as a Physician with theChesapeake Medical Association and assigned to theCorrectional Training Center at Hagerstown, Maryland, SarahPrintz, Individually, and as a former Nurse assigned to theCorrectional Training Center, located at Hagerstown,Maryland, Japzon, Individually, and as a Surgeon assigned tothe Washington County General Hospital located atHagerstown, Maryland, Defendants-Appellees.
No. 90-7148.
United States Court of Appeals, Fourth Circuit.
Submitted Feb. 4, 1991.Decided Feb. 25, 1991.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Frank A. Kaufman, Senior District Judge. (CA-84-3308)
Aaron Holsey, appellant pro se.
Audrey J.S. Carrion, Office of the Attorney General of Maryland, Baltimore, Md., Philip Sturman, Columbia, Md., for appellees.
D.Md.
AFFIRMED.
Before DONALD RUSSELL, SPROUSE and NIEMEYER, Circuit Judges.
PER CURIAM:
1
Aaron Holsey appeals from the district court's order denying relief under 42 U.S.C. Sec. 1983. Our review of the record and the district court's opinion discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court. Holsey v. Harmond, CA-84-3308 (D.Md. Aug. 2, 1990). 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. Holsey's request for appointment of counsel is denied.
2
AFFIRMED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1376259/ | 584 S.E.2d 560 (2003)
213 W.Va. 704
Patricia HANNAH, Sabrina Brown, Pamela J. Nagle, Brenda Christian, and Darla Jeffrey, Plaintiffs,
v.
David P. HEETER, Individually and Heeter Construction, Inc., a West Virginia Corporation, Defendants,
v.
Patricia Hannah (Cazin), and Ermil Hannah, Third-Party Defendants.
No. 30962.
Supreme Court of Appeals of West Virginia.
Submitted March 25, 2003.
Decided June 30, 2003.
*564 Lonnie C. Simmons, Esq., Lia M. DiTrapano, Esq., DiTrapano, Barrett & DiPiero, Charleston, for Plaintiffs.
James M. Cagle, Esq., Charleston, for Defendants. *561 *562
*563 MAYNARD, Justice.
We are called upon to answer certified questions from the Circuit Court of Logan County regarding the viability of independent torts for spoliation of evidence. In the exercise of our discretion, we reformulate the certified questions as follows:[1]
1. Whether West Virginia recognizes spoliation of evidence as a stand-alone tort when the spoliation is the result of the negligence of a party to a civil action.
2. Whether West Virginia recognizes spoliation of evidence as a stand-alone tort when the spoliation is the result of the negligence of a third party, and the third party had a special duty to preserve the evidence.[2]
3. Whether West Virginia recognizes intentional spoliation of evidence as a stand-alone tort when done by either a party to a civil action or a third party.[3]
*565 I.
FACTS
Patricia Hannah is a plaintiff[4] and David Heeter, the President of Heeter Construction Company, and Heeter Construction Company are defendants in a sexual harassment lawsuit. Specifically, Ms. Hannah alleges that in August 2000, she approached David Heeter at his office in Man, West Virginia, about a job as a flagger on a highway crew. She and Mr. Heeter apparently had several conversations about the job, the last of which was secretly recorded on audiotape by Ms. Hannah. According to Ms. Hannah, the audiotape of this conversation supports her claims that Mr. Heeter suggested that he would hire her in exchange for a sexual relationship.
During discovery, Ms. Hannah produced, at the request of the defendants, an audiotape of the conversation between her and Mr. Heeter. The defendants submitted this audiotape to an expert to determine whether it had been altered. The expert informed the defendants that the audiotape submitted was not the original, and that without the original he was unable to properly analyze the audiotape.
Consequently, the defendants filed a motion to compel production of the original audiotape. At a hearing on this motion, evidence was adduced that when Patricia Hannah moved from her ex-husband's residence, she left the original audiotape there. Ermil Hannah, Patricia Hannah's mother, testified that she lived directly across the street from Patricia Hannah's ex-husband, and that he had contacted her numerous times about the audiotape. Ermil Hannah further testified that her granddaughter, who is Patricia Hannah's daughter, brought her the audiotape, and Ermil Hannah destroyed it in order to avoid further contact with Patricia Hannah's ex-husband.
The defendants thereafter filed a counterclaim against Patricia and Ermil Hannah in which they alleged several causes of action, two of which are negligent and intentional spoliation of evidence. They then filed a motion for partial summary judgment as to liability on the spoliation claims. At a hearing on the motion, the defendants moved the circuit court to certify two questions to this Court concerning the viability of these claims.[5] The circuit court denied the defendants' motion for partial summary judgment and certified the questions.
II.
STANDARD OF REVIEW
"The appellate standard of review of questions of law answered and certified by a circuit court is de novo." Syllabus Point 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996).
III.
DISCUSSION
A.
Propriety of Certification
Initially, we must determine whether it is proper for this Court to answer the certified questions under the instant facts. Ms. Hannah asserts that the certified questions should not be accepted because they fail to meet the requirement set forth in Syllabus Point 5 of Bass v. Coltelli, 192 W.Va. 516, 453 S.E.2d 350 (1994),[6] that the legal issues substantially control the case. Ms. Hannah further argues that the issue of the viability of a spoliation tort does not substantially control the sexual harassment suit because the audiotape was not destroyed by a party to the suit. In addition, the counterclaim for spoliation affects only one of the five plaintiffs involved in the harassment suit. Therefore, she concludes that this Court should decline to answer the certified questions.
According to W.Va.Code § 58-5-2 (1998), in part, "[a]ny question of law, including... questions arising upon the ... sufficiency of a motion for summary judgment *566 where such motion is denied ... may ... be certified ... to the supreme court of appeals[.]" These certified questions come to us as the result of the circuit court's denial of the defendants' motion for partial summary judgment. According to Syllabus Point 5 of Bass v. Coltelli, supra:
West Virginia Code, 58-5-2 (1967),[7] allows for certification of a question arising from a denial of a motion for summary judgment. However, such certification will not be accepted unless there is a sufficiently precise and undisputed factual record on which the legal issues can be determined. Moreover, such legal issues must substantially control the case. (Footnote added).
We believe that it is proper for this Court to answer the certified questions before us. While these questions do not substantially control the sexual harassment suit filed by the five plaintiffs below, they do substantially control the viability of Mr. Heeter's counterclaims for spoliation. Further, the undisputed facts show that evidence which is relevant to a civil action was destroyed. We conclude, therefore, that the certified questions meet the requirements articulated in Syllabus Point 5 of Bass.
B.
General Principles
The questions presented concern the viability of torts which this Court previously has not recognized. In considering these issues, we are mindful that "[f]or every wrong there is supposed to be a remedy somewhere." Sanders v. Meredith, 78 W.Va. 564, 572, 89 S.E. 733, 736 (1916). This Court has opined that "[t]he concept of American justice ... pronounces that for every wrong there is a remedy. It is incompatible with this concept to deprive a wrongfully injured party of a remedy[.]" O'Neil v. City of Parkersburg, 160 W.Va. 694, 697, 237 S.E.2d 504, 506 (1977) (citation omitted). See also Gardner v. Buckeye Sav. & Loan Co., 108 W.Va. 673, 680, 152 S.E. 530, 533 (1930) ("It is the proud boast of all lovers of justice that for every wrong there is a remedy."). Accordingly, one of our considerations in answering the certified questions is whether a sufficient remedy already exists for the conduct at issue.
We are also mindful that recognizing tortious conduct as actionable serves additional purposes beyond providing a remedy to the person injured by the tortious conduct. While it is true that "[t]he object of tort law is to provide reasonable compensation for losses[,]" Roberts v. Stevens Clinic Hosp., Inc., 176 W.Va. 492, 504, 345 S.E.2d 791, 803 (1986), additional foundations of tort law are morality and deterrence. See Bart S. Wilhoit, Spoliation Of Evidence: The Viability Of Four Emerging Torts, 46 UCLA L.Rev. 631, 662 (1998) ("It is generally accepted that the three fundamentals of tort law are morality, compensation, and deterrence." (Footnote omitted)). Therefore, in answering the questions before us, we will also consider the level of condemnation and deterrence that may be required as a sufficient response to the conduct at issue. We now proceed to address the specific questions posed in light of these guidelines.
C.
Nonviability of a Tort for Negligent Spoliation by a Party
We answer the first certified question in the negative, and hold that West Virginia does not recognize spoliation of evidence as a stand-alone tort when the spoliation is the result of the negligence of a party to a civil action.[8] "It is a fundamental principle *567 of law that a party who reasonably anticipates litigation has an affirmative duty to preserve relevant evidence." Tracy v. Cottrell, 206 W.Va. 363, 371, 524 S.E.2d 879, 887 (1999) (citation omitted). However, we believe that when the alleged spoliator is a party to the underlying litigation, sufficient remedies already exist to compensate the party injured by the negligent spoliation. In Tracy, we concluded that under appropriate circumstances, an adverse inference instruction may be given or sanctions levied where physical evidence was destroyed by a party to an action. In Syllabus Point 2 of Tracy, we held:
Before a trial court may give an adverse inference jury instruction or impose other sanctions against a party for spoliation of evidence, the following factors must be considered: (1) the party's degree of control, ownership, possession or authority over the destroyed evidence; (2) the amount of prejudice suffered by the opposing party as a result of the missing or destroyed evidence and whether such prejudice was substantial; (3) the reasonableness of anticipating that the evidence would be needed for litigation; and (4) if the party controlled, owned, possessed or had authority over the evidence, the party's degree of fault in causing the destruction of the evidence. The party requesting the adverse inference jury instruction based upon spoliation of evidence has the burden of proof on each element of the four-factor spoliation test. If, however, the trial court finds that the party charged with spoliation of evidence did not control, own, possess, or have authority over the destroyed evidence, the requisite analysis ends, and no adverse inference instruction may be given or other sanction imposed.
In addition to an adverse inference instruction, the sanctions under our Rules of Civil Procedure for the failure to disclose evidence are potent. "Rule 37 of the West Virginia Rules of Civil Procedure is designed to permit the use of sanctions against a party who refuses to comply with the discovery rules, i.e., Rules 26 through 36." Syllabus Point 1, Shreve v. Warren Assoc., Inc., 177 W.Va. 600, 355 S.E.2d 389 (1987). Specifically, under Rule 37(b)(2) of the West Virginia Rules of Civil Procedure, if a party fails to respond to a request for inspection under Rule 34, the circuit court in which the action is pending may, on motion, enter:
(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
*568 (B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence; [or]
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order [compelling discovery] is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party[.]
We believe that the adverse inference instruction and the sanctions provided by W.Va.R.C.P. 37 are sufficient remedies when a party to an action negligently fails in his or her duty to preserve relevant evidence.
D.
Viability of a Tort for Negligent Spoliation by a Third Party
We answer the second certified question in the affirmative and hold that West Virginia recognizes spoliation of evidence as a stand-alone tort when the spoliation is the result of the negligence of a third party, and the third party had a special duty to preserve the evidence. Unlike a party to a civil action, a third party spoliator is not subject to an adverse inference instruction or discovery sanctions. Thus, when a third party destroys evidence, the party who is injured by the spoliation does not have the benefit of existing remedies. Such a result conflicts with our policy of providing a remedy for every wrong and compensating victims of tortious conduct. Accordingly, we believe that the negligent spoliation of evidence by a third party ought to be actionable in certain circumstances.
It is generally agreed that recognizing a tort of negligent spoliation against a third party is problematic absent some type of affirmative duty to preserve the evidence. Under our tort law, "[i]n order to establish a prima facie case of negligence in West Virginia, it must be shown that the defendant has been guilty of some act or omission in violation of a duty owed to the plaintiff. No action for negligence will lie without a duty broken." Syllabus Point 1, Parsley v. General Motors Acceptance Corp., 167 W.Va. 866, 280 S.E.2d 703 (1981). However, "there is no general duty to preserve evidence[.]" Smith v. Atkinson, 771 So.2d 429, 433 (Ala.2000). An additional problem arises where the destroyed evidence is the property of the alleged third-party spoliator.[9] "A property owner normally has the right to control and dispose of his property as he sees fit. The owner of the property may legitimately question what right a plaintiff has to direct control over such property." Oliver v. Stimson Lumber Co., 297 Mont. 336, 345, 993 P.2d 11, 18 (1999). As noted by one commentator:
[I]n situations in which the evidence is owned by the third party, individual autonomy is a heavy factor in favor of the spoliator in negligent spoliation by a third party. According to the individual autonomy theory, tort liability for spoliation interferes with individual property rights. Tort liability against a third party in negligent spoliation would prohibit a third party from destroying or altering evidence, which the third party owns, for a justifiable reason such as safety concerns or a desire to control the costs of preservation.
Wilhoit, Spoliation Of Evidence: The Viability Of Four Emerging Torts, 46 UCLA L.Rev. at 671 (footnote omitted). See also Coleman v. Eddy Potash, Inc., 120 N.M. 645, 651, 905 P.2d 185, 191 (N.M.1995), overruled on other grounds by Delgado v. Phelps Dodge Chino, Inc., 131 N.M. 272, 34 P.3d 1148 (N.M.2001), ("We hold that in the absence of [certain enumerated circumstances] a property owner has no duty to preserve or safeguard his or her property for the benefit of other individuals in a potential lawsuit."); Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, 208-209, 734 P.2d 1177, 1179 (1987) ("When negligence is the basis of the suit alleging an economic injury resulting from the destruction of evidence, a duty on behalf of the defendant arising from the relationship between the parties or some other special *569 circumstance must exist in order for the cause of action to survive.").
Some courts, however, have recognized a cause of action against a third party who negligently destroys evidence when the third party had a special duty to preserve the evidence. For example, in Boyd v. Travelers Ins. Co., 166 Ill.2d 188, 209 Ill.Dec. 727, 652 N.E.2d 267 (1995), the Supreme Court of Illinois declined to create a new tort of spoliation but found that an action for negligent spoliation could be stated under existing negligence law. The court held:
The general rule is that there is no duty to preserve evidence; however, a duty to preserve evidence may arise through an agreement, a contract, a statute or another special circumstance. Moreover, a defendant may voluntarily assume a duty by affirmative conduct. In any of the foregoing instances, a defendant owes a duty of due care to preserve evidence if a reasonable person in the defendant's position should have foreseen that the evidence was material to a potential civil action.
Boyd, 166 Ill.2d at 195, 209 Ill.Dec. at 730-31, 652 N.E.2d at 270-71 (citations omitted). Likewise, in Holmes v. Amerex Rent-A-Car, 710 A.2d 846 (D.C.1998), the District of Columbia Court of Appeals recognized a spoliation tort and applied it to third parties. The court explained:
There is no general duty in the common law to preserve evidence in a third-party spoliation situation. "Absent some special relationship or duty rising by reason of an agreement, contract, statute, or other special circumstance, the general rule is that there is no duty to preserve possible evidence for another party to aid that other party in some future legal action against a third party." Koplin v. Rosel Well Perforators, 241 Kan. 206, 734 P.2d 1177, 1179 (1987). For a spoliation claim to succeed in negligence, therefore, the plaintiff must establish the existence of such a "special relationship" that creates a duty to preserve the evidence for use in the future litigation.
Holmes, 710 A.2d at 849. We agree with these courts and hold that a duty to preserve evidence for a pending or potential civil action may arise in a third party to a civil action through a contract, agreement, statute, administrative rule, voluntary assumption of duty by the third party, or other special circumstances.
Various elements have been included in a negligent spoliation tort. In Oliver, 297 Mont. at 348, 993 P.2d at 19, the Supreme Court of Montana articulated the following elements:
(1) existence of a potential civil action;
(2) a legal or contractual duty to preserve evidence relevant to that action;
(3) destruction of that evidence;
(4) significant impairment of the ability to prove the potential civil action;
(5) a causal connection between the destruction of the evidence and the inability to prove the lawsuit;
(6) a significant possibility of success of the potential civil action if the evidence were available; and
(7) damages. (Citations omitted).
The Supreme Court of Alabama, in Smith v. Atkinson, 771 So.2d 429, 432-33 (Ala.2000), explained:
In addition to proving a duty, a breach, proximate cause, and damage, the plaintiff in a third-party spoliation case must also show: (1) that the defendant spoliator had actual knowledge of pending or potential litigation; (2) that a duty was imposed upon the defendant through a voluntary undertaking, an agreement, or a specific request; and (3) that the missing evidence was vital to the plaintiff's pending or potential action. Once all three of these elements are established, there arises a rebuttable presumption that but for the fact of the spoliation of evidence the plaintiff would have recovered in the pending or potential litigation; the defendant must overcome that rebuttable presumption or else be liable for damages.
Accordingly, we hold that the tort of negligent spoliation of evidence by a third party consists of the following elements: (1) the existence of a pending or potential civil action; (2) the alleged spoliator had actual knowledge of the pending or potential *570 civil action; (3) a duty to preserve evidence arising from a contract, agreement, statute, administrative rule, voluntary assumption of duty, or other special circumstances; (4) spoliation of the evidence; (5) the spoliated evidence was vital to a party's ability to prevail in a pending or potential civil action; and (6) damages. Once the first five elements are established, there arises a rebuttable presumption that but for the fact of the spoliation of evidence, the party injured by the spoliation would have prevailed in the pending or potential litigation. The third-party spoliator must overcome the rebuttable presumption or else be liable for damages.
We emphasize that a third party must have had actual knowledge of the pending or potential litigation. "[A] third party's constructive notice of a pending or potential action is not sufficient to force upon the third party the duty to preserve evidence." Smith, 771 So.2d at 433 (citation omitted). In addition,
Not every piece of lost or destroyed evidence should lead to a cause of action for negligent spoliation. Where the destruction or loss of evidence defeats any chance of the plaintiff's recovering in the underlying action, we conclude that the plaintiff deserves recourse for such a loss. Therefore, under a claim for negligent spoliation, the defendant's breach must be the proximate cause of the plaintiff's inability to file, or to win, the underlying lawsuit.
Smith, 771 So.2d at 434. In proving the element of proximate cause, we adopt the reasoning of the court in Smith that,
in order for a plaintiff to show proximate cause, the trier of fact must determine that the lost or destroyed evidence was so important to the plaintiff's claim in the underlying action that without that evidence the claim did not survive or would not have survived a motion for summary judgment.... Metropolitan argues that a plaintiff, in order to be able to file an action alleging spoliation of evidence against a third party, must first file an action pursuing the underlying cause of action and be denied a recovery in that underlying action. We disagree. If we use the summary-judgment standard as a guide, there will be no need for a plaintiff to waste valuable judicial resources by filing a futile complaint and risking sanctions for filing frivolous litigation. The plaintiff can rely upon either a copy of a judgment against him in an underlying action or upon a showing that, without the lost or destroyed evidence, a summary judgment would have been entered for the defendant in the underlying action.
771 So.2d at 434. Therefore, a plaintiff in a spoliation claim does not have to file an action in which the spoliated evidence would have been vital to proving or defending his or her case. Instead, he or she simply may show that without the spoliated evidence, a summary judgment would have been entered on behalf of the adverse party in the underlying action.
The determination of damages in a claim for spoliation of evidence is generally considered to be a task fraught with uncertainty and speculation. In fact, a "strong counterargument to compensation [in spoliation cases] is the inherent difficulty of proving the fact of injury in a spoliation suit." Levine, 104 W.Va.L.Rev. at 440 (footnote omitted). Courts have adopted a myriad of methods to assess damages.[10] In addressing *571 the problem of damages, we are guided by "the general rule in awarding damages [which] is to give compensation for pecuniary loss; that is, to put the plaintiff in the same position, so far as money can do it, as he would have been if ... the tort [had] not [been] committed." 5C Michie's Jurisprudence, Damages § 18, at 63 (1998) (footnote omitted). We believe that the approach utilized by the Alabama court in Smith would best achieve this result. There the court explained:
under the [rebuttable presumption] approach we adopt today, the risk of a windfall to the plaintiff has been minimized. We decline to gauge damages on the plaintiff's probability of success on the merits. We conclude that without the spoliated evidence, the plaintiff's probability of success is too tenuous a measure to be consistently applied and that any attempt to apply it would constitute pure speculation. Therefore, in determining damages, we reject the use of probability of success as a benchmark, in favor of the use of compensatory damages that would have been awarded on the underlying cause of action, if the defendant cannot overcome the rebuttable presumption.
Smith, 771 So.2d at 438. Therefore, if a spoliator cannot rebut the presumption that the injured party would have prevailed in the underlying litigation but for the spoliation, the spoliator must compensate the party injured by the spoliation for the loss suffered as a result of his or her failure to prevail in the underlying litigation.
E.
Viability of the Tort of Intentional Spoliation of Evidence
We answer the third certified question in the affirmative and hold that West Virginia recognizes intentional spoliation of evidence as a stand-alone tort when done by either a party to a civil action or a third party. Our reasoning for the need to hold third parties liable for negligently spoliating evidence is also applicable here. That is, recovery under a separate tort is necessary because a third party is not subject to an adverse inference instruction or discovery sanctions. In regard to a party to a civil action, we believe that intentional spoliation of evidence is misconduct of such a serious nature, the existing remedies are not a sufficient response.[11]
*572 West Virginians have a fundamental constitutional right to use the State's court system to seek justice. See W.Va. Const., Art. III, § 17. This Court has recognized that "[b]asic to the administration of justice is the search for the truth." Page v. Columbia Natural Resources, Inc., 198 W.Va. 378, 386, 480 S.E.2d 817, 825 (1996). The search for truth breaks down, however, when parties do not have the opportunity to adduce all relevant evidence at trial.[12] "[S]poliation ... undermines the search for truth and fairness by creating a false picture of the evidence before the trier of fact." Cedars-Sinai Medical Center v. Superior Court, 18 Cal.4th 1, 9, 74 Cal.Rptr.2d 248, 253, 954 P.2d 511, 516 (Cal.1998). Also, it "may leave the trial record incomplete, may impact the apparent relevancy of other evidence, and may increase litigation costs as litigants scramble to `reconstruct the spoliated evidence or to develop other evidence, which may be less accessible, less persuasive, or both.'" Levine, 104 W.Va. L.Rev. at 420, quoting Cedars-Sinai Medical Center v. Superior Court, 18 Cal.4th 1, 74 Cal.Rptr.2d 248, 954 P.2d 511, 515 (1998) (footnote omitted). Therefore, "[d]estroying evidence can destroy fairness and justice, for it increases the risk of an erroneous decision on the merits of the underlying cause of action." Cedars-Sinai Medical Center, 18 Cal.4th at 8, 74 Cal. Rptr.2d at 252, 954 P.2d at 515.
For these reasons, intentional spoliation of evidence has been rightly characterized as highly improper and unjustifiable. See Coleman, 120 N.M. at 649, 905 P.2d at 189 ("[T]he intentional destruction of potential evidence in order to disrupt or defeat another person's right of recovery is highly improper and cannot be justified."); Cedars-Sinai Medical Center, 18 Cal.4th at 4, 74 Cal.Rptr.2d at 249, 954 P.2d at 512 (Intentional spoliation of evidence "is a grave affront to the cause of justice and deserves our unqualified condemnation."); Wilhoit, 46 UCLA L.Rev. at 663-64 ("[T]here is a need to condemn a party who takes advantage of the adversarial system by destroying evidence that is essential to an adverse party's lawsuit.... Likewise, in order to preserve the integrity of the adversarial system, courts must deter parties from destroying evidence that may weaken their cases." (Footnote omitted)). Simply put, such highly improper and unjustifiable conduct ought to be actionable.
In defining the parameters of the tort of intentional spoliation of evidence we look to the several states that currently recognize this tort. Intentional spoliation of evidence is defined as "the intentional destruction, mutilation, or significant alteration of potential evidence for the purpose of defeating another person's recovery in a civil action." Coleman, 120 N.M. at 649, 905 P.2d at 189.
Most states that have adopted the tort have agreed that intentional spoliation of evidence consists of the following elements: (1) pending or probable civil litigation, (2) knowledge of the spoliator that the litigation is pending or probable, (3) willful destruction of evidence, (4) intent of the spoliator to interfere with the victim's prospective civil suit, (5) a causal relationship between the evidence and the inability to prove the lawsuit, and (6) damages.
Levine, 104 W.Va.L.Rev. at 422 (footnotes omitted). See, e.g., Coleman, 120 N.M. at 649, 905 P.2d at 189 ("In order to prevail on an intentional spoliation of evidence theory, a plaintiff must allege and prove the following: (1) the existence of a potential lawsuit; (2) the defendant's knowledge of the potential lawsuit; (3) the destruction, mutilation, or significant alteration of potential evidence; (4) intent on part of the defendant to disrupt or defeat the lawsuit; (5) a causal relationship *573 between the act of spoliation and the inability to prove the lawsuit; and (6) damages."(Citations omitted)); Oliver v. Stimson Lumber Company, 297 Mont. at 352, 993 P.2d at 22 ("[I]ntentional spoliation of evidence consists of the following elements: (1) the existence of a potential lawsuit; (2) the defendant's knowledge of the potential lawsuit; (3) the intentional destruction of evidence designed to disrupt or defeat the potential lawsuit; (4) disruption of the potential lawsuit; (5) a causal relationship between the act of spoliation and the inability to prove the lawsuit; and (6) damages."(Citation omitted)); Smith v. Howard Johnson Company, Inc., 67 Ohio St.3d at 29, 615 N.E.2d at 1038 ("[T]he elements of a claim for interference with or destruction of evidence are (1) pending or probable litigation involving the plaintiff, (2) knowledge on the part of defendant that litigation exists or is probable, (3) willful destruction of evidence by defendant designed to disrupt the plaintiff's case, (4) disruption of the plaintiff's case, and (5) damages proximately caused by the defendant's acts[.]").
Therefore, we hold that the tort of intentional spoliation of evidence consists of the following elements: (1) a pending or potential civil action; (2) knowledge of the spoliator of the pending or potential civil action; (3) willful destruction of evidence; (4) the spoliated evidence was vital to a party's ability to prevail in the pending or potential civil action; (5) the intent of the spoliator to defeat a party's ability to prevail in the pending or potential civil action; (6) the party's inability to prevail in the civil action; and (7) damages. Once the first six elements are established, there arises a rebuttable presumption that but for the fact of the spoliation of evidence, the party injured by the spoliation would have prevailed in the pending or potential litigation. The spoliator must overcome the rebuttable presumption or else be liable for damages.
We caution that the party injured by spoliation must show more than the fact that potential evidence was intentionally destroyed. The gravamen of the tort of intentional spoliation is the intent to defeat a person's ability to prevail in a civil action. Therefore, it must be shown that the evidence was destroyed with the specific intent to defeat a pending or potential lawsuit. "The intent with which tort liability is concerned... is an intent to bring about a result which will invade the interests of another in a way that the law forbids." Prosser & Keeton on Torts, § 8 at 36 (5th ed.1984). See also Torres v. El Paso Elec. Co., 127 N.M. 729, 987 P.2d 386, 405 (N.M.1999) ("[W]e believe that the tort recognized in Coleman [v. Eddy Potash, Inc., supra] seeks to remedy acts taken with the sole intent to maliciously defeat or disrupt a lawsuit.").
The rule for the determination of compensatory damages in intentional spoliation actions shall be the same as that set forth above for use in actions where evidence was negligently spoliated by a third party. Finally, in addition to compensatory damages, punitive damages may be awarded in cases where evidence was intentionally spoliated. This Court has held:
In actions of tort, where ... willful ... conduct ... affecting the rights of others appear, or where legislative enactment authorizes it, the jury may assess exemplary, punitive, or vindictive damages; these terms being synonymous.
Syllabus Point 4, in part, Mayer v. Frobe, 40 W.Va. 246, 22 S.E. 58 (1895). This Court has recognized that punitive damage awards achieve a number of important objectives. "Among the primary ones are: (1) to punish the defendant; (2) to deter others from pursuing a similar course; and, (3) to provide additional compensation for the egregious conduct to which the plaintiff has been subjected." Harless v. First Nat. Bank in Fairmont, 169 W.Va. 673, 691, 289 S.E.2d 692, 702 (1982). These objectives certainly may be applicable when a person intentionally destroys evidence for the purpose of defeating a lawsuit.
IV.
CONCLUSION
For the reasons set forth above, we answer the certified questions as follows:
1. Whether West Virginia recognizes spoliation of evidence as a stand-alone *574 tort when the spoliation is the result of the negligence of a party to a civil action.
ANSWER: No.
2. Whether West Virginia recognizes spoliation of evidence as a stand-alone tort when the spoliation is the result of the negligence of a third party, and the third party had a special duty to preserve the evidence.
ANSWER: Yes.
3. Whether West Virginia recognizes intentional spoliation of evidence as a stand-alone tort when done by either a party to a civil action or a third party.
ANSWER: Yes.
Certified Questions Answered.
NOTES
[1] In Syllabus Point 3 of Kincaid v. Mangum, 189 W.Va. 404, 432 S.E.2d 74 (1993), we held:
When a certified question is not framed so that this Court is able to fully address the law which is involved in the question, then this Court retains the power to reformulate questions certified to it under both the Uniform Certification of Questions of Law Act found in W.Va.Code, 51-1A-1, et seq. and W.Va.Code, 58-5-2 [1967], the statute relating to certified questions from a circuit court of this State to this Court.
[2] In this opinion, we refer to a nonparty to the underlying civil action in which the spoliated evidence was unavailable as a third party.
[3] The circuit court asked, first, "[w]hether West Virginia recognizes spoliation of evidence as a stand-alone tort if and when negligently done by a party to a civil action and/or those acting in concert with parties to a civil action[.]" The circuit court answered the question in the negative. Second, the circuit court asked "[w]hether West Virginia recognizes spoliation of evidence as a stand-alone tort if and when wilfully and purposefully done by a party to a civil action and/or those acting in concert with parties to a civil action[.]" The circuit court also answered this question in the negative.
[4] In addition to Ms. Hannah, there are four other plaintiffs in the sexual harassment lawsuit.
[5] See footnote 3, supra.
[6] See infra.
[7] W.Va.Code § 58-5-2 was amended in 1998, and, as noted above, the amended version continues to allow for certification of a question arising from a denial of a motion for summary judgment.
[8] More than twenty-six jurisdictions have addressed the issue of whether to adopt an independent tort for the spoliation of evidence. See Sean R. Levine, Note, Spoliation Of Evidence In West Virginia: Do Too Many Torts Spoliate The Broth?" 104 W.Va. L.Rev. 419 (Winter 2002). "[M]ost jurisdictions that have addressed the issue have not adopted the tort, holding either that spoliation is better remedied by existing case law, or that the court might recognize such a tort, but that it would be inapplicable under the facts of the matter before the court at the time." Levine, 104 W.Va.L.Rev. at 421 (footnotes omitted). See, e.g., Timber Tech Engineered Building Products v. The Home Ins. Co., 55 P.3d 952 (Nev.2002) (citing the usefulness of spoliation claims against the burdens associated with permitting them including the burden to litigants, witnesses, and the judicial system imposed by potentially endless litigation over a speculative loss, and by the cost of society of promoting onerous record and evidence retention policies); Goff v. Harold Ives Trucking Co., Inc., 342 Ark. 143, 150, 27 S.W.3d 387, 391 (2000) (finding it unnecessary "to create a new tort out of whole cloth in order to provide a party with a remedy."); Trevino v. Ortega, 969 S.W.2d 950, 952 (Tex.1998) (the "traditional response to the problem of evidence spoliation [a negative inference against the wrongdoer] properly frames the alleged wrong as an evidentiary concept, not a separate cause of action."); Meyn v. State, 594 N.W.2d 31 (Iowa 1999) (rejecting the tort because it creates endless litigation, it is difficult to impose on a stranger to the litigation a duty to preserve evidence, and it is speculative in nature); Christian v. Kenneth Chandler Const. Co., 658 So.2d 408 (Ala.1995) (declining to recognize an independent tort of spoliation of evidence); La Raia v. Superior Court, 150 Ariz. 118, 121, 722 P.2d 286, 289 (1986) ("There is no need to invoke esoteric theories or recognize some new tort."); Gardner v. Blackston, 185 Ga.App. 754, 755, 365 S.E.2d 545, 546 (1988) ("Georgia law [does not] recognize spoliation of evidence as a separate tort[.]"); Koplin v. Rosel Well Perforators, Inc., 241 Kan. 206, 734 P.2d 1177 (1987); Elias v. Lancaster Gen. Hosp., 710 A.2d 65 (Pa.Super.1998); Reilly v. D'Errico, 1994 WL 547671 (Conn.Super.Ct. Sept. 21, 1994); Yoakum v. Hartford Fire Ins. Co., 129 Idaho 171, 923 P.2d 416 (1996); Petrik v. Monarch Printing Corp., 150 Ill.App.3d 248, 103 Ill.Dec. 774, 501 N.E.2d 1312 (1986); Brown v. Hamid, 856 S.W.2d 51 (Mo.1993); Rodriguez v. Webb, 141 N.H. 177, 680 A.2d 604 (1996); Austin v. Consolidation Coal, 256 Va. 78, 501 S.E.2d 161 (1998).
Further, "there appears to be a trend away from acceptance of the tort among jurisdictions, at least when such a claim is brought against an adverse party to the original suit." Levine, 104 W.Va.L.Rev. at 421-22 (footnote omitted).
[9] These are not the facts in the instant case where Patricia Hannah, a party to the sexual harassment lawsuit, not Ermil Hannah, was the owner of the audiotape.
[10] In Holmes v. Amerex Rent-A-Car, supra, the court observed:
One possibility is to award the plaintiff the entire amount of damages that the plaintiff would have received if the original lawsuit had been pursued successfully. 3 JEROME H. NATES, et al., DAMAGES IN TORT ACTIONS § 19.33(3) (1997); see Petrik [v. Monarch Printing Corp., 150 Ill.App.3d 248, 260-61, 103 Ill. Dec. 774, 782-83, 501 N.E.2d 1312, 1320-21 (1987) ]. The problem with this approach, however, is that it ignores defendant's interest in not providing the plaintiff with a windfall recovery. "If this method is utilized, there is the potential that the plaintiff would benefit more in an instance of spoliation than he might have in the underlying suit." NATES, supra, § 19.33(3).
A second possibility is only to award the plaintiff any costs and fees incurred in pursuit of the original suit. This method, however, fails to "adequately `punish' the offending parties or adequately compensate the party who is now apparently unable to pursue its cause of action." NATES, supra, § 19.33(3). Under this approach, the plaintiff's interest in securing the precluded recovery is ignored.
Another possibility, one that attempts a balancing of interests in light of the inherent uncertainties of proof relevant to this tort, was suggested by an Illinois appellate court. This approach requires that damages be discounted to account for uncertainties.
One possible measure of damages, therefore, could be the damages that would have been obtained in the underlying lawsuit, multiplied by the probability that plaintiff would have won the suit had he had the spoliated evidence.
Petrik, supra, 103 Ill.Dec. at 782, 501 N.E.2d at 1320.
This compromise system would apportion risk between the two parties in an equitable fashion. On the one hand, the plaintiff's interest in recovering the expected but precluded sum is protected because recovery is allowed with lower standards of proof for causation and damages. On the other hand, the defendant's interest in only compensating a plaintiff for actual loss is protected because the recovery will be lessened by the uncertainties involved. Both parties, then, accept some of the risk of windfall or shortage necessitated by the uncertainty inherent in proving this tort.
The problem with this method is in the difficulty of "proving what the spoliated evidence would have demonstrated and the extent to which it would have changed the outcome." NATES, supra, § 19.33(3). However, that problem is endemic to the tort of spoliation, and we are unconvinced that the problem is sufficient to overcome the overall fairness of the discounted damages approach.
Holmes, 710 A.2d at 853.
[11] Of the twenty-six jurisdictions which have addressed the issue, "seven have recognized the tort in situations of intentional spoliation[.]" Levine, 104 W.Va.L.Rev. at 421 (footnote omitted). These include Hazen v. Municipality of Anchorage, 718 P.2d 456 (Alaska 1986); Hirsch v. General Motors Corp., 266 N.J.Super. 222, 628 A.2d 1108 (1993), holding modified by Rosenblit v. Zimmerman, 166 N.J. 391, 766 A.2d 749 (2001) (holding that tort remedy for intentional spoliation was not novel but included under elements of tort of fraudulent concealment); Coleman v. Eddy Potash, Inc., 120 N.M. 645, 905 P.2d 185 (1995), overruled on other grounds by Delgado v. Phelps Dodge Chino, Inc., 131 N.M. 272, 34 P.3d 1148 (2001); Oliver v. Stimson Lumber Co., 297 Mont. 336, 993 P.2d 11 (1999); Smith v. Howard Johnson Co., Inc., 67 Ohio St.3d 28, 615 N.E.2d 1037 (1993).
[12] In Syllabus Point 4 of Page, supra, we held that "[i]t is against substantial public policy of West Virginia to discharge an at-will employee because such employee has given or may be called to give truthful testimony in a legal action." In support of our holding, we explained that,
a reasonable employer should be aware that any attempt to interfere with the process of obtaining truthful testimony, by either intimidating a potential witness/employee prior to his or her testimony or retaliating against such witnesses/employee thereafter, violates the clear and substantial public policy of this State.
198 W.Va. at 386-87, 480 S.E.2d at 825-26. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266483/ | 165 Cal.App.4th 543 (2008)
WITT HOME RANCH, INC., Plaintiff and Appellant,
v.
COUNTY OF SONOMA, Defendant and Respondent.
No. A118911.
Court of Appeals of California, First District, Division One.
July 29, 2008.
*547 McQuaid Bedford & Van Zandt, Michael J. Van Zandt and Christopher B. Whitman for Plaintiff and Appellant.
Steven M. Woodside, County Counsel, and Sue A. Gallagher, Deputy County Counsel, for Defendant and Respondent.
Dennis Bunting, County Counsel (Solano), and James Laughlin, Deputy County Counsel, for the California State Association of Counties and the League of California Cities as Amici Curiae on behalf of Defendant and Respondent.
OPINION
MARGULIES, J.
This appeal requires us to address an issue left unresolved in Gardner v. County of Sonoma (2003) 29 Cal.4th 990 [129 Cal.Rptr.2d 869, 62 P.3d 103] (Gardner): whether a subdivision map approved and recorded under the statutes in effect prior to the state's first *548 modern land use planning laws, enacted in 1929, is valid under the Subdivision Map Act (Act) (Gov. Code,[1] §§ 66410-66499.37). (Gardner, at p. 1001, fn. 7.) We provide the partial answer that the Act's grandfather provisions do not validate subdivision maps approved under the statutes in effect through 1915.
Plaintiff Witt Home Ranch, Inc. (Ranch), is the owner of a large parcel of undeveloped land in Sonoma County (County). In 1915, a map that subdivided the parcel into 25 lots was approved by the County Board of Supervisors (Board) and recorded, but the map was never implemented through sale of the individual lots. Rather, the lots have always been united as a single parcel with a single owner. In 2005, the Ranch applied to the County for certification of the individual lots on the basis of the 1915 map, but the Board ruled that the map was no longer valid.
The Ranch argues that the 1915 subdivision map qualifies under a statutory grandfather provision, section 66499.30, which recognizes antiquated subdivision maps that were recorded in compliance with "law[s] ... regulating the design and improvement of subdivisions" in effect at the time of the maps' recordation. (Id., subd. (d).) The Ranch also argues that the County's conduct during the application process violated its constitutional right to due process. We agree with the superior court that the laws governing subdivision maps in 1915 did not regulate the "design and improvement of subdivisions," as required by the grandfather clause, and that the County did not violate the Ranch's right to due process, and we affirm.
I. BACKGROUND
The Ranch is the current owner of the "Houx Subdivision," a 120-acre parcel located outside Petaluma. On December 16, 1915, an earlier owner of the Houx Subdivision recorded a subdivision map of the property (Houx map) showing 25 lots, 21 of them square lots of approximately the same size, with the remaining four lots narrower and beveled. Most of these lots border a road drawn down the center of the property, while the remainder adjoin a then existing public road, now known as Bodega Avenue. Minutes from a 1915 meeting of the Board show that the Houx map was approved before it was recorded.
The Houx map notwithstanding, the Houx Subdivision has never been subdivided in practice, having been owned as a single parcel by the Ranch *549 and its predecessors in interest since before 1915.[2] In 2005, the Ranch filed an application with the Sonoma County Permit and Resources Management Department (PRMD), the responsible county agency, seeking certificates of compliance for each of the 25 lots shown on the Houx map, as well as certificates for other parcels owned by the Ranch. Issuance of the certificates of compliance, which confirm that the individual lots comply with subdivision laws and regulations, would have permitted the Ranch to sell the lots individually. The PRMD refused to issue certificates for the Houx map lots, stating that the map "does not meet the criteria allowing recognition of the parcels shown on it as separate legal parcels." The PRMD did, however, agree to issue one certificate for the Houx Subdivision and four certificates for other parcels owned by the Ranch.
The Ranch appealed the PRMD's decision to the Board in July 2005.[3] This was not the first time the Board had considered such a request. At the time the Ranch submitted its application to PRMD, the County was already considering applications by two other County landowners seeking recognition of parcels created by antiquated subdivision maps. Like the Ranch's application, these applications were denied by the PRMD and appealed to the Board. In a May 2005 resolution, the Board denied one of those appeals, providing a detailed analysis of the legal issues bearing on certification.[4] The resolution concluded that the grandfather clause of the Act did not reach a map recorded in 1894, because "the state's first regulation of private subdivision maps, adopted in 1893, simply established very basic technical requirements for recordation of private subdivision maps .... [and] did not authorize or permit any review or approval of subdivision maps by the local agency." Although this was sufficient to resolve the appeals at hand, the resolution continued, "To provide guidance to staff, this Board has considered each of the State's subdivision regulations enacted between 1893 and 1929.... [T]his Board finds that it was not until at least 1919 that state law first provided for some degree of substantive review of the design and improvement of private subdivisions.... This Board instead directs staff to continue to review subdivision maps recorded under the 1919 Act on a case by case basis to determine their legal significance. [¶] ... This Board does find, *550 however, that subdivision maps recorded pursuant to and in compliance with the 1929 Act or any subsequent Act should be deemed to create parcels recognizable by certificate of compliance."
The Ranch's appeal to the Board was denied for similar reasons. In a resolution containing a similarly detailed legal analysis, the Board considered the legislation governing the recordation of subdivision maps when the Houx map was recorded in 1915. The resolution accepted that the Houx map had been properly recorded, in compliance with the statutes in effect at the time. Nonetheless, the Board concluded that those statutes were "essentially surveying regulations, regulating the form, but not the substance of private subdivision maps.... The [1915] Act did not give any discretion to the local agency to review, regulate or approve the design or improvement of the subdivision." The resolution contained language similar to that of the prior resolution, stating that maps recorded pursuant to 1919 legislation would be given case-by-case review by the County and maps recorded pursuant to 1929 and subsequent legislation would be recognized.
The Ranch thereafter filed in the trial court a combined pleading consisting of a petition for writ of mandamus and a civil complaint. The petition challenged the Board's failure to issue certificates of compliance for the 25 lots shown on the Houx map and sought a writ requiring their issuance, as well as other relief. The complaint alleged a cause of action for violation of due process against the Board's vice-chairman, Valerie Brown, and a deputy county counsel, Sue Gallagher, who advised the Board in connection with the Ranch matter. The complaint asserted that the Ranch was denied notice and an opportunity to be heard with respect to the Board's decision. It further sought a declaration that subdivision maps recorded after 1893 are presumptively valid, and an injunction prohibiting the County from enforcing its policy "that requires automatic denial of certificates of compliance for maps approved by the County from 1893 to 1919 and denial on a case by case basis for those maps recorded from 1919 to 1929."
Following briefing and argument on the writ petition, the trial court issued an order concluding that the lots described in the Houx map were not covered by the grandfather clause of the Act and that there had been no violation of due process in connection with the County's consideration of the Ranch's application. The parties thereafter stipulated that the trial court's ruling on the writ petition would be dispositive of the causes of action alleged in the Ranch's civil complaint, and judgment was entered against the Ranch.
II. DISCUSSION
The Ranch challenges both the denial of its application for certificates of compliance with respect to the Houx map lots and the trial court's conclusion *551 that no violation of due process occurred in connection with the denial. In general, we apply the substantial evidence standard of review to the trial court's decision on a petition for writ of mandate, but we review de novo any issues of statutory interpretation that arise. (Fishback v. County of Ventura (2005) 133 Cal.App.4th 896, 902 [35 Cal.Rptr.3d 199].)
A. The Validity of the Houx Subdivision Map
1. The Subdivision Map Act
(1) The Act grants to local governments the power to regulate the manner in which their communities grow. Although the Act itself contains few or no substantive growth regulations, it requires every landowner who wishes to divide a single parcel of land into smaller parcels for individual salethereby increasing the density of settlement on the landto obtain the approval of the local government before doing so. (§§ 66424, 66426, 66428, 66499.30, subds. (a)-(c); Lakeview Meadows Ranch v. County of Santa Clara (1994) 27 Cal.App.4th 593, 598 [32 Cal.Rptr.2d 615].) At the same time, the Act vests "[r]egulation and control of the design and improvement of subdivisions" in city and county governing bodies, requiring them to adopt ordinances regulating the manner in which growth will occur. (§ 66411.) By requiring proposed new subdivisions to comply with these regulations as a condition of approval, local governments can ensure that new real estate development conforms to their communities' general and specific plans and other regulations adopted to guide growth. (Gardner, supra, 29 Cal.4th at p. 997.) Local governmental control over community growth made possible by the Act "encourage[s] and facilitate[s] orderly community development ... and assure[s] proper improvements are made, so that the area does not become an undue burden on the taxpayer." (Gomes v. County of Mendocino (1995) 37 Cal.App.4th 977, 985 [44 Cal.Rptr.2d 93].) For that reason, the Act also prevents "fraud and exploitation of the public and purchasers." (John Taft Corp. v. Advisory Agency (1984) 161 Cal.App.3d 749, 755 [207 Cal.Rptr. 840].)
(2) In practice, the Act requires every landowner proposing to subdivide property to obtain city or county approval of a "final map" or a "parcel map" of the subdivision, which must comply with the local ordinances adopted under the Act. (§§ 66452.1, 66457, 66463; John Taft Corp. v. Advisory Agency, supra, 161 Cal.App.3d at p. 755.) A final map is required for a subdivision of five or more parcels, while a parcel map is required for smaller subdivisions. (§§ 66424, 66426.) Section 66499.30, subdivisions (a), (b), and (c) enforces the requirement of map approval by prohibiting the sale, lease, or financing of a lot until an approved final or parcel map, as appropriate, has been recorded with respect to the lot.
*552 Section 66499.35, subdivision (a) permits a landowner to apply for a certificate of compliance stating that a particular parcel is in compliance with the Act and the local ordinances adopted pursuant to it and that the parcel can be sold without further compliance. If the local government concludes that the property complies, the certificate must be issued. (Id., subds. (a), (f)(1)(E); Findleton v. Board of Supervisors (1993) 12 Cal.App.4th 709, 714 [15 Cal.Rptr.2d 665].)
2. The Act's Grandfather Clause
Critical to this appeal is the Act's grandfather clause, which legalizes lots that were created under earlier versions of the Act or other predecessor legislation. Prior to 1893, California statutes did not attempt to regulate the subdivision of property. Landowners were free to subdivide and sell their real property as they saw fit. (Gardner, supra, 29 Cal.4th at p. 1000.) Although landowners at the time commonly created and recorded subdivision maps, the maps were used primarily to aid in the identification of lots created by subdivision. Once a subdivision map had been created, a lot's deed of sale could identify the lot by reference to the subdivision map rather than describe its location in metes and bounds. (Id. at pp. 1000-1001; see, e.g., De Sepulveda v. Baugh (1887) 74 Cal. 468, 474 [16 P. 223]; Cadwalader v. Nash (1887) 73 Cal. 43, 44 [14 P. 385].) The 1893 legislation, which for the first time required the recording of a subdivision map before subdivided lots could be sold, was gradually expanded until, in 1929, the first modern land use regulation was enacted. (Stats. 1893, ch. LXXX, § 4, pp. 96-97; Stats. 1929, ch. 837, p. 1790 & ch. 838, p. 1805.)
(3) The Act's grandfather clause, section 66499.30, subdivision (d), specifies which subdivision maps approved and recorded pursuant to earlier legislation will be recognized as valid, despite their failure to comply with current legal requirements. As mentioned above, subdivisions (a) through (c) of section 66499.30 prohibit commercial transactions involving parcels for which no final or parcel map has been recorded. Section 66499.30, subdivision (d) creates an exception for these requirements, stating that: "Subdivisions (a), (b), and (c) do not apply to any parcel or parcels of a subdivision offered for sale or lease, contracted for sale or lease, or sold or leased in compliance with or exempt from any law (including a local ordinance), regulating the design and improvement of subdivisions in effect at the time the subdivision was established." (Italics added.) (4) Accordingly, if a subdivision map does not qualify as a "final map" or a "parcel map" under the Act but was recorded in compliance with statutes that regulated the design and improvement of subdivisions in effect at the time the map was recorded, the prohibitions against sale in subdivisions (a) through (c) do not apply.
*553 3. Gardner v. County of Sonoma
There has been little judicial interpretation of the Act's grandfather clause. By far the most significant precedent is Gardner, in which the Supreme Court approved the County's refusal to extend section 66499.30, subdivision (d) to cover a subdivision map recorded in 1865. (Gardner, supra, 29 Cal.4th at p. 994.) The court began its analysis by noting that no state statute authorized the establishment of subdivided parcels before 1893; judicial decisions prior to that date "merely recognized the principle that subdivision maps could properly supply the legal description of property conveyed by deed." (Id. at p. 1001.) For that reason, "where an antiquated map was not recorded pursuant to any subdivision statute, ordinance, or regulation, a subdivided lot shown on that map generally enjoyed no independent legal status until the owner actually conveyed the lot separately from the surrounding lands through a deed or patent." (Ibid., fn. omitted.) That is, "unlike a modern-day final map or parcel map, which upon recordation ordinarily converts what was formerly a single parcel into as many separate lots as appear on the map [citation], the recordation of a subdivision map in Sonoma County in 1865, without something more (such as a conveyance), could not and did not work a legal subdivision of the property shown thereon, and property owners who recorded subdivision maps in Sonoma County in 1865 generally remained free to deed parcels and lots as they desired without regard to the depicted subdivisions." (Id. at p. 1002, fn. omitted.) Because the 1865 recording of the subdivision map had no legal effect on the lots described, the court concluded, the map did not "establish" the subdivision for purposes of section 66499.30, subdivision (d). (Gardner, at p. 1002.)
Significantly, the court also observed that "issuing certificates of compliance based on the [1865 map] would frustrate the Act's objectives .... [¶] [I]f we were to adopt plaintiffs' position and hold that local agencies must issue a certificate of compliance for any parcel depicted on an accurate, antiquated subdivision map, we would, in effect, be permitting the sale, lease, and financing of parcels: (1) without regard to regulations that would otherwise require consistency with applicable general and specific plans [citations] and require consideration of potential environmental and public health consequences [citations]; (2) without consideration of dedications and impact mitigation fees that would otherwise be authorized by the Act; and (3) without affording notice and an opportunity to be heard to interested persons and landowners likely to suffer a substantial or significant deprivation of their property rights [citations]." (Gardner, supra, 29 Cal.4th at p. 1005, fn. omitted.) In the end, the court refused to recognize the subdivision map both "[b]ecause the provisions of the Map Act do not support such a result, and because the Act's objectives and protections would be thwarted if pre-1893 recorded maps ... were deemed sufficient by themselves to place parcels into compliance with the Act." (Id. at pp. 1005-1006.) In reaching *554 this conclusion, the court expressly refused to consider the application of the grandfather clause to subdivision maps recorded between 1893 and 1929. (Id. at p. 1001, fn. 7.)
One implication of the Supreme Court's decision in Gardner is that the mere recordation of a subdivision map would not "establish" a subdivision for purposes of section 66499.30 if the act of recordation was not recognized as effecting a legal division of property. (See Gardner, supra, 29 Cal.4th at p. 1002.) This raises the possibility that the Houx map's recordation in 1915 would have been insufficient to satisfy the grandfather clause if, under the subdivision map act then in effect, recordation alone did not create a legal subdivision. It was unnecessary for Gardner to address the legal effect of recordation under early subdivision map acts, however, because in 1865 there was no map act at all. As the court noted in footnote 7, "Certain amici curiae in support of the County assert that only maps recorded under the 1929 predecessor to the Map Act or subsequent map statutes legally created parcels. [Citations.] Conversely, the California Attorney General has opined that maps recorded under earlier predecessor statutes to the Act should also be deemed to create parcels. [Citation.] We need not resolve that dispute in this case, for the map at issue here predates the earliest predecessor statute enacted in 1893." (Id. at p. 1001, fn. 7.)
The question left open in footnote 7, is potentially relevant here, but the parties have not argued this aspect of Gardner. Further, they have not provided us with the legal background necessary to determine whether map recordation in 1915 effected a legal subdivision.[5] Because there are other adequate grounds for decision, it is unnecessary for us to determine whether the Houx Subdivision was "established," as the term was used in Gardner, by the filing of the Houx map, and we do not address this issue further.[6]
4. Interpreting Section 66499.30
The Ranch contends that the Houx map, which was undisputedly recorded in compliance with subdivision map laws in effect in 1915, must be recognized under the Act's grandfather clause, section 66499.30, subdivision (d). While acknowledging that the Houx map was lawfully recorded, the County *555 argues that the rudimentary subdivision map laws in effect in 1915 did not "regulat[e] the design and improvement of subdivisions," as required by subdivision (d), because they imposed few or no constraints on real estate subdivision and development. The Ranch responds that, while minimal, the 1915 statutes' regulation of development was sufficient to qualify under the grandfather clause. In addition, the Ranch argues that the legislative history of subdivision (d) demonstrates that it was intended to recognize all preexisting subdivision maps, regardless of the scope of then-existing subdivision map laws.
We begin our analysis with the Ranch's second argument, which is based on the legislative history of the grandfather clause. Because we conclude that the legislative history of the clause is not dispositive, we then proceed to an analysis of the meaning of the critical language of the clause, "regulating the design and improvement of subdivisions," and the history and substance of the subdivision map laws in effect in 1915, when the Houx map was recorded, before applying the language of section 66499.30, subdivision (d) to those statutes.
a. Statutory Interpretation
(5) It is generally said that "[o]ur task in interpreting these statutes is `to ascertain and effectuate legislative intent.' [Citation.]" (Bernard v. Foley (2006) 39 Cal.4th 794, 804 [47 Cal.Rptr.3d 248, 139 P.3d 1196].) The search for intent, however, takes a specific form. "`"Because statutory language `generally provide[s] the most reliable indicator' of [legislative] intent [citations], we turn to the words themselves, giving them their `usual and ordinary meanings' and construing them in context [citation]." [Citation.] If the language contains no ambiguity, we presume the Legislature meant what it said, and the plain meaning of the statute governs. [Citation.]'" (People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 708-709 [61 Cal.Rptr.3d 689, 161 P.3d 198].)
(6) "To the extent this examination of the statutory language leaves uncertainty, it is appropriate to consider `the consequences that will flow from a particular interpretation. [Citation.]' [Citation.] Where more than one statutory construction is arguably possible, our `policy has long been to favor the construction that leads to the more reasonable result. [Citation.]' [Citation.] This policy derives largely from the presumption that the Legislature intends reasonable results consistent with its apparent purpose. [Citation.] Thus, our task is to select the construction that comports most closely with the Legislature's apparent intent, with a view to promoting rather than defeating the statutes' general purpose, and to avoid a construction that would *556 lead to unreasonable, impractical, or arbitrary results. [Citations.]" (Copley Press, Inc. v. Superior Court (2006) 39 Cal.4th 1272, 1291 [48 Cal.Rptr.3d 183, 141 P.3d 288].)
b. The Statutory History of the Grandfather Clause
The Ranch argues that the legislative history of the Act's grandfather clause demonstrates that the clause was intended to preserve the recognition of all antiquated subdivision maps, regardless of the nature of the laws regulating subdivision design and improvement at the time they were recorded. Understanding the argument requires a review of the statutory development of the grandfather clause.
Almost from the beginning, the subdivision map statutes recognized the need to protect subdivided lots created by maps recorded under earlier land use regulation. The earliest grandfather clause was introduced by amendment in 1907, only 14 years after the first subdivision map legislation. The 1907 statute granted validity not only to maps that complied with its provisions but also to any map that "was filed or recorded prior to the taking effect of this act and in accordance with the laws in force at the time it was so filed or recorded." (Stats. 1907, ch. 231, § 8, p. 292.) The same language was found in 1913 legislation. (Stats. 1913, ch. 306, § 8, pp. 570-571.)
Legislation enacted in 1929, introduced the modern concept of tentative and final maps and permitted local governments to regulate streets and roads, drainage, and other aspects of development. (Stats. 1929, ch. 837, §§ 7, 9, pp. 1794-1795; see van't Rood v. County of Santa Clara (2003) 113 Cal.App.4th 549, 563 [6 Cal.Rptr.3d 746].) Yet that legislation contained a simple, all-encompassing grandfather provision. Recognition was granted not only to maps recorded in compliance with the 1929 legislation but also to any map that "was filed or recorded prior to the taking effect of this act." (Stats. 1929, ch. 837, § 3, p. 1792.) A substantial expansion of the 1929 act, enacted in 1937, preserved this all-encompassing grandfather clause. In detailed language, the 1937 act recognized not only maps recorded in compliance with its terms, but also maps recorded prior to 1929, maps recorded prior to the effective date of the 1937 act and in compliance with or exempt from the 1929 act, and subdivisions surveyed prior to 1937 from which sales had actually been made. (Stats. 1937, ch. 670, § 4, p. 1865.)
The 1937 grandfather clause was displaced in 1943, when the critical language from the modern grandfather clause made its appearance as Business and Professions Code former section 11538, subdivision (b). (Stats. 1943, ch. 128, § 1, p. 868.) As newly enacted in 1943, subdivision (a) of Business and Professions Code former section 11538 prohibited the sale of *557 lots from a subdivision until a compliant map had been recorded, but subdivision (b) stated, "[s]ubsection (a) does not apply to any parcel or parcels of a subdivision offered for sale, contracted for sale or sold in compliance with or exempt from any law (including a local ordinance), regulating the design and improvement of subdivisions in effect at the time the subdivision was established." (Stats. 1943, ch. 128, § 1, p. 868.) The modern grandfather clause, Government Code section 66499.30, subdivision (d), is a direct descendent of Business and Professions Code section 11538, subdivision (b), and the operative language in former section 11538"any law ... regulating the design and improvement of subdivisions in effect at the time the subdivision was established"has been preserved without change in Government Code section 66499.30.
The Ranch argues that the introduction of the modern grandfather language in Business and Professions Code former section 11538 was intended merely to codify the all-encompassing language that had been a feature of the subdivision map statutes since 1907, without changing its broad scope. The argument is based less on the actual language of former section 11538 than on legislative history documents generated at the time it was enacted, which state exactly that: the legislation was intended to codify existing law, rather than to change it. For example, an open 1942 letter from the California Code Commission, which initially drafted the 1943 legislation, notes that the intent of the commission was only to codify the existing subdivision map act, rather than to revise its provisions. A memorandum from the Office of Legislative Counsel and a letter from the Attorney General, drafted when the legislation was sent for signature to Governor Earl Warren, both opined that the 1943 legislation codified the Act "without change in legal effect." Other materials reflect similar sentiments, although none of them address or explain the substantial change in the language of the grandfather clause from the earlier version.
(7) Because we conclude that the plain language of the 1943 grandfather clause cannot reasonably be construed as effecting no substantive change over its predecessor statute, we cannot consider these legislative history materials. Resort to legislative history is proper only if the statutory language is ambiguousthat is, is susceptible to more than one reasonable construction. (Diamond Multimedia Systems, Inc. v. Superior Court (1999) 19 Cal.4th 1036, 1055 [80 Cal.Rptr.2d 828, 968 P.2d 539].) While one can argue about the exact meaning of the grandfather clause, there is no reasonable argument that its plain meaning is identical to that of the grandfather clause of 1937, because the 1943 language plainly excludes subdivision maps that qualified under that earlier provision. The 1937 statute protected virtually every subdivision map that had been recorded before its enactment. In particular, it expressly recognized every map "recorded or filed prior to August 14, 1929." (Stats. 1937, ch. 670, § 4, p. 1865.) Such language would protect not only the *558 Houx map, but also the map from Gardner, filed in 1865, and every other map recorded in California's early history. Yet there is no debate that, at least prior to 1893, California had no legislation "regulating the design and improvement of subdivisions," as required by the 1943 language. Indeed, prior to 1893, California had no legislation regulating subdivisions or subdivision maps at all. As our Supreme Court held in Gardner, the language of the 1943 grandfather clause therefore excludes maps filed or recorded, at a minimum, prior to 1893.[7] Necessarily, the 1943 language represented a narrowing of the prior grandfather clause, rather than a mere rephrasing having the same substance. The construction urged by the Ranch is therefore unreasonable, and legislative history offered in support of that construction is inadmissible. (See, e.g., Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 29-30 [34 Cal.Rptr.3d 520].)[8]
Accordingly, we must disregard the legislative history proffered by the Ranch and determine the meaning of the grandfather clause on the basis of its own language, rather than the language of its predecessor clauses. We now turn to that task.
c. The Meaning of the Statutory Terms
Statutory interpretation begins with an analysis of the meaning of the statutory language. (People v. Allegheny Casualty Co., supra, 41 Cal.4th at pp. 708-709.) Section 66499.30, subdivision (d), as noted above, grandfathers any antiquated subdivision map that was filed "in compliance with or exempt from any law (including a local ordinance), regulating the design and improvement of subdivisions in effect at the time the subdivision was established." The issue disputed by the parties is whether, in 1915, there existed any laws that "regulat[ed] the design and improvement of subdivisions."
*559 (8) We begin with the meaning of the critical terms, "design," "improvement," and "subdivision." The Ranch urges us to apply definitions taken from Webster's dictionary, but there are definitions closer to home, in the Act itself. The law of statutory interpretation instructs us to apply the usual and ordinary meaning of words unless a definition is provided within the statute itself. Internal definitions are controlling. (Schnyder v. State Bd. of Equalization (2002) 101 Cal.App.4th 538, 545 [124 Cal.Rptr.2d 571].)
The Act defines "design" as "(1) street alignments, grades and widths; (2) drainage and sanitary facilities and utilities, including alignments and grades thereof; (3) location and size of all required easements and rights-ofway; (4) fire roads and firebreaks; (5) lot size and configuration; (6) traffic access; (7) grading; (8) land to be dedicated for park or recreational purposes; and (9) other specific physical requirements in the plan and configuration of the entire subdivision that are necessary to ensure consistency with, or implementation of, the general plan or any applicable specific plan ...." (§ 66418.)
Similarly, "improvement" is defined in the Act as either (1) "any street work and utilities to be installed, or agreed to be installed, by the subdivider on the land to be used for public or private streets, highways, ways, and easements, as are necessary for the general use of the lot owners in the subdivision and local neighborhood traffic and drainage needs as a condition precedent to the approval and acceptance of the final map thereof or (2) "any other specific improvements or types of improvements, the installation of which, either by the subdivider, by public agencies, by private utilities, by any other entity approved by the local agency, or by a combination thereof, is necessary to ensure consistency with, or implementation of, the general plan or any applicable specific plan." (§ 66419.)
Finally, "subdivision" is defined as "the division, by any subdivider, of any unit or units of improved or unimproved land, or any portion thereof, ... for the purpose of sale, lease or financing, whether immediate or future...." (§ 66424.)
d. Subdivision Map Statutes in 1915
The parties and amici curiae have provided us with a thorough history of the subdivision map statutes from California's earliest days. Although our interpretation of the language of section 66499.30 must rest on the statutes in effect in 1915, we agree with the parties that the historical background of the 1915 statutes provides a useful context for understanding their terms.
As noted above, the first California statute regulating subdivision maps was enacted in 1893. Entitled "[a]n Act requiring the recording of maps of cities, *560 towns, ... or subdivisions of lands into small lots ... and providing a penalty for the selling ... any lots ... before such maps are filed and recorded," the statute truly is a subdivision map act. (Stats. 1893, ch. LXXX, p. 96, italics omitted.) That is, the concern of the legislation is not with the subdivision reflected in the map but with the map itself. The statute appears to have been intended to bring order to the hitherto unregulated practice of recording subdivision maps, for it required persons who wished to subdivide their property to record "an accurate map" depicting the size and location of the lots created and the location of any property dedicated for public use within the subdivision. (Stats. 1893, ch. LXXX, §§ 1, 3, p. 96.) The 1893 act forbade the sale of lots from a subdivision until the requisite map was on file, but it did not otherwise regulate subdivision of a parcel. (Stats. 1893, ch. LXXX, § 4, pp. 96-97.)
The 1893 act evolved slowly over the course of the next few years. It was first augmented in 1901, when new legislation established slightly more detailed requirements for subdivision maps. The 1901 amendment also required that the local government be given the opportunity to accept or reject any property designated as dedicated to public use on the map prior to the map's recordation. (Stats. 1901, ch. CXXIV, § 1, p. 288.) In 1907, additional requirements were specified for the map, and landowners were prohibited from giving to the subdivision a name confusingly similar to the city in which the subdivision was to be situated. (Stats. 1907, ch. 231, §§ 1, 2, 5, pp. 290-292.)
The most substantial early changes were made in 1913. In these amendments, the Legislature required every subdivision map to be submitted to the local governing body, not merely for the acceptance of dedicated property, but "for the approval of such governing body." (Stats. 1913, ch. 306, §4, p. 570.) In addition, the 1913 legislation granted the governing body some, if very limited, control over the subdivision design reflected in the map: "Such governing body may require the public highways, if any, offered for dedication by said map or plat and the parcel or parcels of land, if any, therein reserved or indicated for highway or right of way purposes, and not offered for dedication to public use, to be as wide as and to conform, as near as practicable, to the adjoining, surrounding or neighboring streets or highways of said city, city and county, or county." (Ibid.) The 1913 amendments also required, for the first time, that subdivision maps be prepared by a licensed professional. (Stats. 1913, ch. 306, § 1, p. 568.)
The final form of the statutes that governed recordation of the Houx map was determined by amendments enacted earlier in 1915, along with the first legislation authorizing city planning commissions. (Stats. 1915, ch. 756, p. 1512 & ch. 428, p. 708.) Under the 1915 amendments, if the local *561 jurisdiction contained one of the newly created planning commissions, the governing body was required, prior to approval of the map, to refer it to the planning commission for a report. (Stats. 1915, ch. 756, § 2, p. 1513.)[9]
e. Application of the Statutory Language
The Ranch first argues that the 1915 statutory requirement that the subdivision map depict and identify lots, highways, and property set aside for public dedication is sufficient to constitute regulation of the "design and improvement of subdivisions." We cannot agree. The requirement that recorded maps accurately depict various features of the subdivision constituted regulation of the drawing depicting the subdivision, rather than regulation of the subdivision's improvement and configuration. The statutes in effect in 1915 granted the local governing body no authoritywith the one exception noted aboveto impose constraints on these features. The statutes did not limit or otherwise regulate the number, siting, minimum size, or design of lots into which a parcel could be divided, and they did not require the installation of transportation, drainage, or sewage improvements, let alone other infrastructure or public facilities. Nor did they grant to local governments the authority to impose such requirements. Rather, it was the landowner who determined the size and configuration of the lots, the existence and location of roads and utilities, and whether to dedicate land to the public and, if so, where and how much. The mere requirement that, once the subdivider had made these decisions, they be accurately reflected in the map did not constitute regulation of the subdivision.
(9) Similarly, we do not accept the Ranch's argument that the grant of authority to the local governing body to "approve" the maps constituted the regulation of design and improvement of subdivisions. The power to approve is necessarily limited by the statutory requirements against which approval is to be measured; approval authority is not an independent grant of discretionary power. In 1915, the local governing body was limited to ensuring that the map was accurate, was prepared by a licensed professional, and otherwise complied with statutory requirements. While it is true that, as the Ranch argues, later court decisions held that local governments could regulate aspects of real estate development not expressly mentioned in governing statutes (e.g., Ayres v. City Council of Los Angeles (1949) 34 Cal.2d 31, 35-37 [207 P.2d 1]), there is no evidence that this type of discretionary authority was exercised, or even recognized, in 1915. Further, section 66499.30, subdivision (d) refers only to compliance with "any law (including a local ordinance)" regulating development, not with the exercise of uncodified discretionary authority.
*562 As noted above, there is one exception to the generalization that the 1915 statutes regulated the map, rather than the subdivision. The 1913 amendments granted to the local governments the authority to require the subdivider to make all public and private roads "as wide as and to conform, as near as practicable, to the adjoining" streets (Stats. 1913, ch. 306, § 4, p. 570), and this authority was preserved in the 1915 statutes. (Stats. 1915, ch. 756, § 2, p. 1513.) While there is no question that this provision constitutes more than regulation of the map, we conclude that it is insufficient to satisfy subdivision (d) of section 66499.30 for two reasons.
(10) First, this provision did not regulate subdivision "improvement," as that term is defined in the Act. Section 66419 defines "improvement" as infrastructure "to be installed, or agreed to be installed, by the subdivider on the land ... as a condition precedent to the approval and acceptance of the final map thereof" or "any other specific improvements ... the installation of which ... is necessary to ensure consistency with, or implementation of, the general plan or any applicable specific plan." In other words, "improvement" is infrastructure that the subdivider is required to install in order to secure legal authority to subdivide the property. The 1915 legislation required no commitment by the subdivider to install any type of infrastructure. The subdivider was presumably expected, and perhaps required, to deed to the public any land designated in the map for public dedication, but the statutes did not require the landowner to build anything on that land. Further, the statutes did not even mention infrastructure other than roads, let alone require the installation of such infrastructure. Because subdivision (d) of section 66499.30 requires regulation of both design and improvement, this is sufficient to disqualify the statutes regulating the Houx map from qualifying under section 66499.30.
Further, although it is a closer question, we conclude that the 1915 statutes also failed to regulate the "design" of subdivisions, as the term is defined in section 66418. It is true that the statutes did regulate one aspect of subdivision design, the location and width of roads. As even a glance at section 66418 reveals, however, the "design" of subdivisions entails a far broader scope of activities: lot size and configuration, lot drainage, sewage and other utility installation, grading, recreational lands, and other public facilities. Most important among these, the 1915 statutes omitted any regulation of the primary characteristic of a subdivisionthe division of a large parcel into smaller usable lots. In a very literal sense, the provision did not regulate "subdivision" at all. Given the broad definition of "design" in section 66418, *563 the regulation of the single feature of road location and width is simply insufficient to qualify as regulation of the "design" of "subdivisions" under section 66499.30.[10]
Our conclusion in this regard is supported by the second rationale of Gardner, the public policy underlying modern subdivision regulation. Similar to the 1865 map in Gardner, the Houx map is a planning anachronism, merely a grid laid across a parcel of land. There is no indication that any consideration was given to the appropriate siting of residences, lot drainage, the feasibility and construction of utility service, or any of the many other issues that arise when development occurs. It is difficult to imagine a plan for real estate development more at odds with modern subdivision regulation. Certifying the Houx map would, as Gardner noted, authorize development "(1) without regard to regulations that would otherwise require consistency with applicable general and specific plans [citations] and require consideration of potential environmental and public health consequences [citations]; (2) without consideration of dedications and impact mitigation fees that would otherwise be authorized by the Act; and (3) without affording notice and an opportunity to be heard to interested persons and landowners likely to suffer a substantial or significant deprivation of their property rights [citations]." (Gardner, supra, 29 Cal.4th at p. 1005, fn. omitted.) Because we are counseled to consider "`the consequences that will flow from a particular interpretation'" when construing a statute, we cannot disregard the obvious clash between the Houx map and the objectives of the modern Act. (Copley Press, Inc. v. Superior Court, supra, 39 Cal.4th at p. 1291.)[11]
(11) Finally, we note that our interpretation of section 66499.30 works no unfairness on the Ranch and its owners. As noted in Hays v. Vanek (1989) 217 Cal.App.3d 271 at pages 289-290 [266 Cal.Rptr. 856], "[t]he clear purpose of *564 the so-called `grandfather' clause is to protect developers who have detrimentally relied on an earlier state of the law. That purpose is hardly served by allowing later purchasers of property which has never been sold in subdivided form to take advantage of an exemption. In such cases, the later purchaser placed no reliance on the prior state of the law. On the other hand, the salutary purposes served by the Subdivision Map Act would be frustrated if a simple staking out and selling of a handful of parcels in the late 1920's could exempt all land in the subdivision 60 years and several owners later from any subdivision regulatory requirements." The Houx map was filed before the family that owns the Ranch even acquired the property, and the family has made no attempt to take advantage of the map in their 70-odd years of ownership.
(12) Because we conclude that the regulatory statutes in effect in 1915 did not regulate the "design and improvement of subdivisions," as required by section 66499.30, subdivision (d), we agree with the Board that the Ranch's 1915 subdivision map cannot be recognized as a valid subdivision map under current law and affirm the decision of the trial court upholding the Board's ruling.
B. Due Process
The Ranch also argues that, for three principal reasons, it was denied due process during the County's consideration of its application for certificates of compliance with respect to the Houx map lots: (1) that the Board's policy of refusing to recognize all maps recorded prior to 1919 constituted a "de facto land use ordinance" that was enacted without following proper legislative procedures, (2) the Board's conclusion that the Houx map was inconsistent with modern County land use regulation was based on matters outside the hearing record, and (3) the conduct of a deputy county counsel in advising the Board was improper.
The parties do not discuss the proper standard of review with respect to these causes of action, which were alleged in the civil complaint but resolved by the parties' stipulation that the trial court's order on the writ petition would be applied to the causes of action in the complaint. We apply the substantial evidence test appropriate in reviewing a writ petition ruling (Fishback v. County of Ventura, supra, 133 Cal.App.4th at p. 902), but we *565 would not reach a different conclusion if we applied the independent judgment standard applicable to, for example, a motion for summary judgment. (E.g., Doe v. Salesian Society (2008) 159 Cal.App.4th 474, 478 [71 Cal.Rptr.3d 565].)[12]
1. Enactment of a De Facto Land Use Ordinance
The Ranch first contends that the Board's articulation of a general policy for handling post-1893 subdivision maps in connection with the earlier appeals constituted the enactment of a "de facto land use ordinance" without following proper legislative procedures.[13] In making this argument, the Ranch cites not a single authority to support its contentions that a policy of statutory interpretation articulated in the course of deciding the appeal of an administrative decision constitutes a "de facto" ordinance and that "de facto" ordinances are subject to the same rule-making requirements as "real" ordinances.
(13) Although the Board is a legislative body, that is not its only role. "There are three general types of actions that local government agencies take in land use matters: legislative, adjudicative and ministerial. [Citations.] Legislative actions involve the enactment of general laws, standards or policies, such as general plans or zoning ordinances. [Citation.] Adjudicative actionssometimes called quasi-judicial, quasi-adjudicative or administrative actionsinvolve discretionary decisions in which legislative laws are applied to specific development projects; examples include approvals for zoning permits and tentative subdivision maps. [Citation.] Ministerial actions involve nondiscretionary decisions based only on fixed and objective standards, not subjective judgment; an example is the issuance of a typical, small-scale building permit. [Citations.]" (Calvert v. County of Yuba (2006) 145 Cal.App.4th 613, 622 [51 Cal.Rptr.3d 797].)
(14) Issuance of a certificate of compliance under section 66499.35, subdivision (a) is a ministerial act, requiring the responsible local agency to determine whether a valid final or parcel map has been recorded or, if not, what must be done to complete the process. Unlike, for example, the actual approval of a subdivision map, consideration of an application for a certificate of compliance does not require "the exercise of judgment, and the *566 careful balancing of conflicting interests" (Horn v. County of Ventura (1979) 24 Cal.3d 605, 615 [156 Cal.Rptr. 718, 596 P.2d 1134]); rather, issuance of certificates of compliance normally involves "`"merely appl[ying] the law to the facts ... us[ing] no special discretion or judgment in reaching a decision."'" (Calvert v. County of Yuba, supra, 145 Cal.App.4th at p. 624, quoting Mountain Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 117 [65 Cal.Rptr.2d 580, 939 P.2d 1280].) Certainly that was true in this case, in which issuance was strictly a matter of applying section 66499.30 to undisputed facts. In considering an appeal of the PRMD denial, the Board was engaging in a ministerial, not a legislative, act.
Further, in stating a policy to govern future similar appeals, the Board was not establishing a "general standard," in the manner of a legislative body. The general standard applied by the Board had been established long before by the Legislature when it enacted section 66499.30. In stating its policy, the Board was merely interpreting that existing general standard, as it was required to do to carry out its ministerial duty. (See, e.g., Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 1081 [17 Cal.Rptr.3d 225, 95 P.3d 459] [agency's authority to interpret statute when acting in ministerial role does not include authority to disregard statute as unconstitutional].) Local governing bodies acting in a ministerial role inevitably are called upon to make interpretive decisions that will have import for future applicants who are similarly situated. (See Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 4-5 [78 Cal.Rptr.2d 1, 960 P.2d 1031] (Yamaha Corp.).) Formalizing this statutory interpretation in the form of a policy did not convert that interpretation into legislation or convert a ministerial action into a legislative one. Rather, by creating a policy from its interpretation, the Board was acting responsibly to give direction to the PRMD for handling future applications, ensuring that similar applications would be handled consistently. The policy remained an act of ministerial statutory interpretation, rather than legislation.[14]
The Ranch places primary reliance on Galland v. City of Clovis (2001) 24 Cal.4th 1003 [103 Cal.Rptr.2d 711, 16 P.3d 130]. Other than being an action for damages under title 42 United States Code section 1983, Galland, a rent control case, has no relevance to the substance of the Ranch's claim that "de facto" ordinances are subject to normal legislative procedures. In its reply *567 brief, the Ranch discusses Yamaha Corp., which involves the State Board of Equalization's "annotations"published interpretationsof the state tax code. Yamaha Corp. contains no suggestion that the Board of Equalization was required to engage in rule-making before publishing the annotations, which arise from commentary on individual taxpayer requests. (Yamaha Corp., supra, 19 Cal.4th at p. 4.) Finally, the Ranch cites Horn v. County of Ventura, supra, 24 Cal.3d 605, which requires a local government to provide notice to adjoining landowners prior to the holding of an adjudicatory hearing on matters affecting their land. (Id. at p. 616.) Because the Ranch's claim here is that the County engaged in a legislative action, Horn would provide limited support under the best of circumstances. The case is simply irrelevant, since, for the reasons discussed above, this was a ministerial, not an adjudicatory hearing.[15]
2. Ex Parte Communications
The Ranch next contends that the Board must have considered ex parte communications in ruling on its appeal. The Ranch bases this speculation on the Board's conclusion in its resolution that approval of the Ranch's application could undermine the County's land use regulation because the certificates might conflict with land use designations, acreage limitations, and the preservation of water supplies and scenic landscapes, issues that were not discussed during the public hearing on the matter.[16]
We find no substantial evidence to support the inference that improper conduct occurred. The issue of the consistency of an antiquated subdivision map with modern land use regulations was raised in Gardner, supra, 29 Cal.4th at page 1005, and that inconsistency was one of two grounds for the court's decision. (Id. at pp. 1005-1006.) Because the Gardner case was discussed extensively by the Ranch in its written submission to the Board in connection with the appeal, the Ranch was demonstrably on notice that the Board was required to consider the issue of consistency with current law in making its ruling. The Ranch was provided a full opportunity at the hearing to address that issue. If the issue was not raised at the hearing, it was a failure of the Ranch, not the Board. This forewarning distinguishes our situation *568 fully from Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152 [56 Cal.Rptr.2d 223], in which the grounds for the city's decision were raised for the first time only after the public hearing had closed, at a time when the petitioners no longer had an opportunity to address them. (Id. at p. 1173.)
Further, the statements that the Ranch speculates originated in "ex parte communications" are actually matters that can be deduced from information in the record about the nature of the Houx map and from knowledge of the County's existing land use regulation. The Board's conclusion that the two are in conflict was less a factual than a legal conclusion. There is no substantial evidence to support the claim that the Ranch was deprived of due process by this aspect of the Board's ruling.
3. Bias
The Ranch also contends that it was denied due process because Susan Gallagher, a deputy county counsel, "performed the incompatible dual roles of an advocate and advisor to the decision maker" by advising both PRMD and the Board on legal issues surrounding compliance with section 66499.30, and assisting in formulating the Board's policy that maps recorded before 1919 would be rejected, those recorded between 1919 and 1929 would be reviewed, and those recorded after 1929 would be accepted.
The contention is based on Howitt v. Superior Court (1992) 3 Cal.App.4th 1575 [5 Cal.Rptr.2d 196] (Howitt) and Nightlife Partners, Ltd. v. City of Beverly Hills (2003) 108 Cal.App.4th 81 [133 Cal.Rptr.2d 234] (Nightlife Partners), in which both courts found a possible deprivation of due process when public attorneys represented the local government in a contested matter and, at the same time or subsequently, advised a decision maker in the matter. In Howitt, the decision maker was a quasi-independent commission established to resolve county employment disputes. During a contested evidentiary hearing over a complaint against the sheriff's department by an employee, an attorney from the county counsel's office represented the sheriff's department, while a second attorney from that office advised the commission. (Howitt, at p. 1578.) The court concluded that county counsel could not undertake this dual representation, in which the office was both advocate and adviser to the decision maker in a contested hearing, unless adequate internal safeguards were established to avoid a conflict of interest. (Id. at pp. 1579, 1587.) Although the court found that the situation did not pose a traditional ethical conflict for the county counsel's office, it concluded, "By definition, an advocate is a partisan for a particular client or point of view. The role is inconsistent with true objectivity, a constitutionally necessary characteristic of an adjudicator." (Id. at pp. 1580, 1585.)
*569 (15) In Nightlife Partners, an attorney from the city attorney's office was engaged in representing the city in federal litigation brought by the plaintiff "cabaret" to challenge the city's adult entertainment regulations. When the plaintiff sought to renew its adult entertainment permit, the same attorney represented the administrative agency, corresponding with the plaintiff regarding the renewal process. Once the permit had been denied and an appeal filed, however, that attorney acted as an adviser to the appeal hearing officer, consulting actively with the hearing officer throughout an evidentiary hearing at which the city was represented by a different attorney. (Nightlife Partners, supra, 108 Cal.App.4th at pp. 84-85.) Again, the court concluded that when a public attorney acts as advocate in a matter, the attorney is generally precluded by due process concerns from advising the decision maker in the same matter. (Id. at p. 92.)
Neither case is applicable here because there is no evidence that Gallagher ever acted as an advocate in connection with the Ranch's proceeding. While Gallagher's exact role is unclear, we assume for the sake of argument that she was the attorney from the County Counsel's office who was charged with advising both PRMD and the Board with respect to the interpretation of section 66499.30, in connection with the earlier appeals, and therefore was instrumental in devising the policy followed by the Board.[17] Such a role did not place Gallagher in the role of advocate adverse to the Ranch. There is no evidence Gallagher represented the County in related preexisting litigation against the Ranch or communicated with the Ranch while acting as the County's attorney, as counsel in Nightlife Partners did, nor that she represented PRMD before the Board, as counsel in Howitt did. At the Board hearing over the Ranch's certificates, PRMD was represented by a staff member. Gallagher's role was limited to providing, at the request of a Board member, a public "primer on Gardner and how it applies to this particular situation." All of Gallagher's activities vis-à-vis the Ranch are therefore consistent with those of a legal adviser to the Board.[18] The mere fact that she reached her conclusions and provided advice to PRMD and the Board prior to the hearing of the Ranch's appeal did not convert her from an adviser to an advocate, nor did it demonstrate bias, either on her part or the part of the Board. (See, e.g., BreakZone Billiards v. City of Torrance (2000) 81 Cal.App.4th 1205, 1241 [97 Cal.Rptr.2d 467].)
*570 III. DISPOSITION
The judgment of the trial court is affirmed.
Marchiano, P. J., and Swager, J., concurred.
NOTES
[1] All statutory references are to the Government Code unless otherwise indicated.
[2] Contemporary documents submitted by the Ranch demonstrate that the Houx Subdivision was named after Martha Houx, who obtained the property in the settlement of an estate in 1912. The Houx Subdivision was acquired by the forebears of the Witt family, the owners of the Ranch, in 1921, and it has been under Witt family ownership since.
[3] Pursuant to County ordinance, appeals of administrative subdivision decisions are first taken to the county planning commission and then to the Board. (Sonoma County Code, § 25-13.5.) With the Ranch's consent, the Board took original jurisdiction of this appeal, bypassing the planning commission.
[4] We have been cited to only one Board resolution issued in connection with these appeals in the appellate record. There is no dispute, however, that both appeals were denied by the Board.
[5] The County states in a conclusory manner that the 1929 legislation was the first to make maps binding on the landowner, but this conclusion is supported by no analysis of contemporary legal authority.
[6] The County also argues that certification of the parcels in the Houx map is precluded by section 66412.7, a problematic, later-enacted statute that purports to define "established" for purposes of section 66499.30, subdivision (d). In light of our discussion, post, we do not reach this argument. We also deny the County's request for judicial notice, which primarily concerns legislative history materials associated with the enactment of section 66412.7.
[7] The Supreme Court held, "Although the grandfather provisions of the Act reflect the Legislature's intent to protect those who detrimentally relied on prior subdivision laws in individual situations, they evince no intent to imbue antiquated maps with a legal significance that did not exist in their own time.... [W]e hold that antiquated subdivision maps, recorded in the absence of an applicable subdivision statute, ordinance, or regulation, did not in themselves establish subdivisions or create legal parcels that mandate the issuance of certificates of compliance for the subdivided parcels they depict." (Gardner, supra, 29 Cal.4th at p. 1006.)
[8] In any event, the opinions of the Legislative Analyst and Attorney General, both of which were prepared after passage of the bill, cannot be considered because they provide no evidence of the intent of the Legislature; they are merely after-the-fact legal opinions. (See Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc., supra, 133 Cal.App.4th at pp. 29-30.) Only the California Code Commission's open letter, which was presumably made available to the Legislature as a whole, is relevant and a proper subject of judicial notice. The letter cannot, however, overcome the plain language of the statute, which demonstrates that the new language made substantive changes in the scope of the grandfather clause.
[9] Since the new legislation authorized planning commissions only in cities, this presumably had no impact on the Houx map. (Stats. 1915, ch. 428, § 1, p. 708.)
[10] In making its argument, the Ranch relies on a 1991 opinion of the Attorney General that considered the issuance of certificates of compliance for lots described in a 1914 subdivision map. (74 Ops.Cal.Atty.Gen. 149 (1991).) While the Attorney General did conclude that the certificates of compliance must be issued, its conclusion was based on section 66412.6, rather than section 66499.30. (74 Ops.Cal.Atty.Gen., supra, at p. 152.) The version of section 66412.6 then in effect was subsequently amended to limit its application to subdivisions creating fewer than five parcels. (Stats. 1993, ch. 500, § 2, p. 2620; see § 66412.6, subd. (a).) The reasoning of the Attorney General in the 1991 opinion is therefore no longer applicable to a large subdivision, such as the Houx Subdivision.
[11] Responding to the County's expression of concern for public policy, the Ranch argues that "[a]ny conflict between the composition of the 1915 Houx Map ... and the County's policies is the County's problem, not [the Ranch's]." In fact, local regulation of real estate development is intended to protect surrounding landowners, potential buyers of subdivided lots, and members of the public generally. The Houx map's noncompliance therefore would create a "problem" not merely for the County government but for all its individual residents, including the owners of the Ranch.
[12] Causes of action in a civil complaint, if resolved prior to trial, would ordinarily be resolved by demurrer, judgment on the pleadings, or summary judgment. As to these causes of action, the motion for a writ of mandate functioned like a motion for summary judgment, since there appears to be little or no dispute over the facts underlying the Ranch's due process claims.
[13] The Ranch also argues that the Board was without power to adopt a policy contrary to state statute. Because we have concluded that the Board's policy, as applied to the Houx map, was a correct interpretation of state law, the premise of this argument fails.
[14] It is clear that the Ranch's contention that the County was required to follow rule-making procedures in resolving this appeal would impose unnecessary and unworkable constraints on the County in its consideration of ministerial decisions. In effect, the PRMD would be required to determine which ministerial decisions might have an impact on future applicants, to announce those topics publicly, and to conduct a public hearing on the proper interpretation of the statutory mandate governing the appeal before resolving it. There is no such requirement. The due process rights of subsequent applicants with respect to issues of legal interpretation are protected by the mandate process.
[15] The Ranch has filed a motion to supplement the record on appeal with a memorandum prepared by the PRMD in connection with the Board's policy. Because we find the memorandum irrelevant to the issues raised in this appeal, we hereby deny the motion.
[16] The Ranch also contends that its due process rights were violated because it was told in a July 6, 2005 letter that the Board would consider the County's administrative decision to award five certificates at a meeting on July 12, 2005, but the minutes of the July 12 meeting reflect no such consideration. Regardless of events on July 12, it is clear that the Ranch was given a hearing on its appeal, including a public hearing in front of the Board on January 31, 2006. We therefore find no basis to conclude that the Ranch was deprived of due process by the Board's action, or failure to act, on July 12, 2005.
[17] The evidence cited by the Ranch regarding Gallagher's role demonstrates that Gallagher wrote a letter to the Sonoma County Planning Commission in connection with the appeals heard in 2005, in response to a request for legal analysis from the commission. Gallagher also gave advice to PRMD staff, the planning commission, and the Board "on legal issues raised in connection with applications for certificates of compliance under Government Code §66499.35."
[18] We note that Sue A. Gallagher is listed as counsel of record for the County on this appeal. Gallagher's indisputable role as an advocate for the County on this appeal does not retroactively deprive the Ranch of due process in connection with the administrative proceedings. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266517/ | 165 Cal.App.4th 1626 (2008)
In re DAVID H., a Person Coming Under the Juvenile Court Law.
NAPA COUNTY HEALTH AND HUMAN SERVICES, Plaintiff and Respondent,
v.
KAREN F., Defendant and Appellant.
No. A118968.
Court of Appeals of California, First District, Division Five.
August 19, 2008.
*1628 Law Office of Gradstein & Gorman and Seth F. Gorman for Defendant and Appellant.
Robert Westmeyer, County Counsel, and Carrie R. Gallagher, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
REARDON, J.[*]
On June 12, 2007, the juvenile court set aside the jurisdictional and dispositional orders in this dependency case because of conceded errors in complying with the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.). The court then found there were exceptional circumstances to continue David H.'s detention and set new jurisdictional and dispositional hearings. On July 11, the court sustained jurisdiction and continued the minor's removal from his mother's home. In February 2008, David H. was returned to his mother's care. Consequently, certain claims initially raised by appellant are now abandoned or deemed moot. As to the balance of issues, we affirm.
*1629 BACKGROUND
On January 7, 2007, appellant Karen F. (Mother) hit her son David (born 1999) with an electrical cord and belt 21 times.[1] David had bruises, red marks, welts, and broken skin on his arms, back and chest and he told a social worker Mother had hit him in the past. Respondent Napa County Health and Human Services (Agency) placed David in protective custody, and Mother was arrested. Mother immediately informed the Agency she was a member of the Cherokee Nation.
On January 11, 2007, the Agency filed a petition pursuant to Welfare and Institutions Code section 300, subdivision (a),[2] alleging David had suffered, or there was a serious risk he would suffer, serious physical harm inflicted nonaccidentally by Mother. The court detained David on January 11. On January 31, the Agency sent ICWA notice to three Cherokee tribes and the Bureau of Indian Affairs.
At a February 6, 2007 jurisdictional hearing, Mother submitted on the social worker's reports, waiving her right to an evidentiary hearing. The court sustained the petition, but made no ICWA findings.
After a March 14 and 15, 2007 contested disposition hearing, the court found that ICWA "does or may apply," that the Agency had made reasonable efforts to return David home and active efforts to prevent the breakup of the Indian family, that Mother had made minimal progress toward resolving the problems that led to David's removal, that by clear and convincing evidence there would be a substantial danger to David's physical health if he were returned to Mother's care, and that his return would likely cause him serious emotional or physical damage. The court continued David's removal from Mother's care and ordered reunification services for Mother, including a parenting class, an anger management class, therapy, a psychotropic medication evaluation, and a medical assessment for her menopause symptoms. The court ordered a minimum of two 2-hour visits a week between Mother and David.
Mother appealed from the disposition order. She argued there were multiple violations of ICWA in the proceedings, including inadequate notice to the Cherokee Nation of the jurisdiction and disposition hearings, lack of ICWA expert testimony, inadequate active efforts to prevent the breakup of the Indian family, failure to comply with ICWA placement preferences, and *1630 failure to advise Mother of her ICWA rights. She also argued the court's finding of detriment that prevented David's return to Mother's home was not supported by substantial evidence under the legal standards of ICWA or California dependency law. She asked this court to reverse the jurisdictional and dispositional orders and remand for new jurisdictional and dispositional hearings.
Meanwhile, on May 8, 2007, in the juvenile court, the Agency filed a number of documents regarding its contacts with the Cherokee Nation and David's status as an Indian child. In a letter dated January 24, the Cherokee Nation (Tribe) informed the Agency that David was an Indian child because Mother was a member of the Tribe. The letter was mailed to the Agency's correct address but was written to the attention of a former director of the Agency and apparently was never received by the social worker assigned to David's case. On March 16, the social worker received a telephone message from the Tribe's ICWA representative, Nicole Allison, requesting information about the case. The social worker did not follow up nor did she pass on the message to the social worker who took over David's case. Allison, the social worker, her supervisor, and deputy county counsel exchanged phone messages until Allison at last made contact with the social worker and deputy county counsel on May 2. Allison then sent deputy county counsel a copy of the January 24 letter by facsimile transmission, confirming David's status as an Indian child. The Tribe formally intervened in the dependency proceeding on May 15.
On June 1, 2007,[3] the Agency moved the juvenile court to set aside the jurisdictional and dispositional orders, advise Mother of her ICWA rights, and set a new jurisdictional and dispositional hearing on July 9. In an attached declaration, county counsel acknowledged the Agency had not given the Cherokee Nation 10 days' notice of the jurisdictional and dispositional hearings or any notice of the contested dispositional hearing, had not advised Mother of her ICWA rights, and had not provided ICWA expert testimony at the dispositional hearing.
A hearing on the Agency's June 1, 2007 motion took place on June 12. At the outset of the hearing, Mother made a Marsden[4] motion seeking substitution of appointed counsel. Mother's attorney agreed that her relationship with *1631 Mother had irretrievably broken down since the first appeal was filed. The court granted the motion and appointed Daniel Chester as Mother's new attorney. Chester was not present at the hearing and was not informed of his appointment until the next day.
The court then proceeded to make a number of rulings at the hearing. The court found that David was an Indian child and that ICWA applied to the case. The court advised Mother of her rights under ICWA, and Mother affirmatively stated that she did not wish to waive any of her ICWA rights. The court granted the Agency's June 1 motion, set aside the jurisdictional and dispositional orders, and scheduled new jurisdictional and dispositional hearings for July 9. The court also found that exceptional circumstances existed to justify holding the dispositional hearing more than 60 days from the date David was first detained and extraordinary circumstances existed to justify temporary emergency custody of David for more than 90 days following his initial removal. Finally, the court scheduled a June 19 hearing on the question of whether Allison could testify as an expert on Cherokee customs and practices by telephone at the July 9 hearing.
Chester did not appear at the June 19, 2007 hearing, and apparently had not been notified of the hearing. Over Mother's objections, the court granted the Agency's request to have Allison testify by telephone.
In a June 20, 2007 letter, Chester requested a continuance of the July 9 hearing due to preexisting vacation plans. Chester was leaving on vacation June 29 and would not be returning to work until July 11. The court continued the hearing to July 13.
On June 21, 2007, the Agency requested a June 26 hearing to discuss the availability of its ICWA expert. At the June 26 hearing, deputy county counsel said the July 13 hearing date had to be changed for two reasons: first, the Agency's ICWA expert was not available on that date, and second, the six-month deadline to hold the dispositional hearing under section 352, subdivision (b) would expire on July 11.[5] Chester then asked that the case be dismissed with David returned to Mother's custody. "There is no way we can have a hearing between now and July 11th." Because of his vacation schedule, "I don't see how we can go forward at this point without severely prejudicing her right to be represented by counsel of her choosing. She's very happy with me as her attorney, but there is no way I can do it before I return from vacation." Even if the court appointed different counsel for Mother, *1632 Chester argued, no attorney could prepare for the hearing in just two weeks. Chester agreed there was no flexibility in the July 11 deadline and argued the only remedy was dismissal.
The court set the hearing to commence on July 11, 2007, with the understanding the hearing might continue into other dates. Chester asked the court to schedule a hearing on June 28 so he could request appointment of counsel to file a writ petition to prevent the hearing from proceeding. The court set the hearing and asked the parties to brief the issue of whether July 11 was an absolute deadline and, if so, what were the consequences of not meeting that deadline.
At the June 28 hearing, the court first heard argument and testimony on the Agency's application for a temporary restraining order against Mother. The Agency told the court Mother had gone to David's foster home, banged on the doors and windows, and yelled for David to come out. The court denied the restraining order because of insufficient evidence but admonished Mother not to go to David's placement unannounced.
On the issue of the date of the jurisdictional and dispositional order, the parties told the court the statute clearly required the hearing to be completed, and not just commenced, by July 11. Chester renewed his request for dismissal of the case. He also asked to be relieved as counsel because he could not prepare for the hearing by July 11, and he added that in any event the relationship between him and Mother had broken down to the point that he could no longer represent her. Alternatively, David could be returned to Mother's care and the hearing postponed. The court relieved Chester of his representation of Mother. During the hearing, the court contacted another attorney, Jeffrey Hammond, who said he could prepare for the case in the two weeks before the July 11 hearing. The court appointed him to represent Mother and ordered Mother to go to his office that day to avoid further delays.
The jurisdictional and dispositional hearing took place on July 11, 2007. The court heard testimony from Mother's therapist, David's principal, the social workers who had worked on the case, an ICWA expert retained by the Agency, Allison, Mother's anger management counselor, and Mother. The court sustained the petition and declared David a dependent child, finding that the Agency had made reasonable efforts to return David home and active efforts to prevent the breakup of the Indian family, which were unsuccessful, that Mother had made minimal progress toward resolving the problems that had led to David's removal; and that by clear and convincing evidence there would be a substantial danger to David's physical health if he were returned to Mother's care and that it was likely his return would cause him serious *1633 emotional or physical damage. The court ordered reunification services for Mother, including a parenting class, therapy, anger management classes, psychotropic medication evaluation, a medical assessment for menopause symptoms, a psychological evaluation, and family therapy. The court ordered two 3-hour visits a week between Mother and David.
Mother appealed on July 26, 2007. On January 31, 2008, we dismissed Mother's appeal of the original disposition order (In re David H., supra, A117118) as moot in light of the juvenile court's June 12, 2007 ruling setting aside that order and scheduling a new jurisdictional and dispositional hearing. On April 9, 2008, in response to this court's request for an update on the status of the dependency case, the parties informed us that David had been returned to Mother's care in February 2008. We then asked the parties to brief whether any of the issues raised in this appeal had been rendered moot by this development. We address those arguments below.
DISCUSSION
We review questions of law de novo and factual findings for substantial evidence. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 800-801 [35 Cal.Rptr.2d 418, 883 P.2d 960]; Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632 [80 Cal.Rptr.2d 378].) "In juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact. All conflicts must be resolved in favor of the respondent and all legitimate inferences indulged in to uphold the verdict, if possible. Where there is more than one inference which can reasonably be deduced from the facts, the appellate court is without power to substitute its deductions for those of the trier of fact." (In re Katrina C. (1988) 201 Cal.App.3d 540, 547 [247 Cal.Rptr. 784].)
I. Detention Pending New Jurisdictional and Dispositional Hearings[6]
In her briefs on the merits, Mother argued the court erred when, on June 12, 2007, it extended David's detention until new jurisdictional and dispositional hearings could be held. She argued the court erred by finding there were exceptional circumstances justifying detention beyond a 90-day period under ICWA. (See Cal. Rules of Court, rule 5.664(c)(1)(B) [eff. Jan. 1, 2007, and repealed eff. Jan. 1, 2008];[7] 25 U.S.C. § 1922; Guidelines for State Courts; *1634 Indian Child Custody Proceedings (44 Fed.Reg. 67584-67595) (Nov. 26, 1979) § B.7(c) at p. 67589.)
In her supplemental brief on mootness, however, Mother concedes that her challenge to the detention order is moot. She urges us to exercise our discretion to decide the issue because it is an important issue of public interest and is capable of repetition yet evading review. (See In re Raymond G. (1991) 230 Cal.App.3d 964, 967 [281 Cal.Rptr. 625].) We decline to do so.[8]
II. Lack of Representation at the June 12 and June 19 Hearings
Mother contends the court's proceeding with the June 12 and June 19 hearings, despite her lack of counsel, violated her constitutional and statutory rights. We review this alleged error to determine if it was harmless beyond a reasonable doubt.[9]
Mother first argues she was denied representation at the June 12, 2007 hearing, when the court extended David's detention until July 9 even though it had already relieved Mother's attorney of representation and it knew Mother's newly appointed attorney was not present. Assuming that Mother's lack of representation at this hearing was a violation of Mother's rights, we *1635 have already explained that Mother's challenges to the detention order are moot and will not be reviewed in this appeal.
Mother also argues she was denied representation at the June 19, 2007 hearing, when the court granted Allison permission to testify by telephone at the jurisdictional and dispositional hearing. Any error in Mother's lack of representation at this hearing was harmless beyond a reasonable doubt. Mother was represented at all subsequent hearings and her attorney could have, but did not, object to Allison's telephonic appearance. Moreover, Allison's testimony was limited and generally favorable to Mother. Her only unfavorable recommendationagainst David's immediate return to Mother's carewas not reasonably subject to attack by in-person cross-examination.
III. Denial of Continuance of the Jurisdictional and Dispositional Hearing
Mother argues the court erred by denying counsel's request for a continuance of the jurisdictional and dispositional hearing to a date later than July 11, 2007. She argues that by setting the hearing on July 11, the court abused its discretion under section 352,[10] violated her rights under ICWA,[11] and impaired her right to effective assistance of counsel (§ 317.5, subd. (a)).
(1) The court did not abuse its discretion under section 352. Continuances in juvenile dependency proceedings are disfavored, particularly when they infringe on maximum time limits under the code. (§ 352, subds. (a), (b); In re Elijah V. (2005) 127 Cal.App.4th 576, 585 [25 Cal.Rptr.3d 774].) The detention hearing took place on January 11, 2007. Therefore, the disposition hearing had to be held by July 11. Chester insisted below that the court had no discretion to hold the hearing after July 11. The court ensured that Mother would be represented by counsel who would have adequate time to prepare for the hearing by July 11.
*1636 Mother also argues the juvenile court should have granted Chester's request for a continuance because parents in ICWA cases have an automatic right to a 20-day continuance of a jurisdictional hearing. We disagree. First, Chester never made a request for an extension of time under ICWA. Therefore, the court never had an opportunity to consider a possible conflict between the requirements of ICWA and the six-month deadline in section 352, subdivision (b). We consider the argument forfeited. Second, Mother received actual notice of the proceeding in early January, actual notice of the Agency's request for a new jurisdictional hearing in May, and notice that the juvenile court agreed to reschedule the hearing on June 12. The hearing was held on July 11-29 days later. The difference between the 29 days she received to prepare for the hearing and the 30 days she might have been entitled to receive under ICWA (assuming the date ran from June 12 and not an earlier date) was nonprejudicial.
The court did not infringe on Mother's right to effective assistance of counsel. Chester had unusual personal circumstances that prevented him preparing for the hearing by July 11. He first learned of the necessity of holding the hearing by July 11 on June 25. His last day at work before his vacation was June 28, and his first day back would have been July 11. His prior work on the case had been limited to talking to Mother and Allison, starting research on ICWA law, responding to the request for a temporary restraining order, and addressing the scheduling issues mentioned above. He still had substantial work to do to prepare for the hearing and only about one day to do that work. Hammond, on the other hand, had two weeks to prepare for the hearing. Mother has not shown that two weeks was an insufficient time to prepare, and the record on appeal does not support such a finding. The record demonstrates that Hammond vigorously represented Mother's interests at the July 11 hearing and was familiar with the details of the case. Moreover, Chester represented on June 28 that his relationship with Mother had broken down for reasons he could not expressly put on the record. Mother did not object to this representation. Therefore, it does not appear that Mother was prejudiced by the change in counsel.
IV. Facial Sufficiency of Petition
Mother challenges the facial sufficiency of the petition, arguing it failed to allege that David faced a substantial risk of serious physical harm at the time of the July 11, 2007 hearing. For three reasons, her argument lacks merit.
*1637 A. Forfeiture
First, Mother forfeited her argument by failing to raise it below.[12] Although Mother argued at the July 11, 2007 hearing that the Agency should have prepared a new jurisdictional report with updated information about the risk of harm to David and that the Agency failed to demonstrate a current risk of harm at the hearing, those arguments addressed the sufficiency of the evidence produced in support of jurisdiction, not the sufficiency of the allegations in the petition. Mother never specifically challenged the sufficiency of those allegations.
There is currently a split in authority about whether a challenge to the sufficiency of a juvenile dependency petition is forfeited if it was not raised in the juvenile court. In In re Alysha S., the Third District observed that in civil actions an argument that a pleading fails to state a cause of action is not subject to forfeiture on this ground (Code Civ. Proc., § 430.80, subd. (a)), and concluded, without analysis, "The same rule obtains herein." (In re Alysha S. (1996) 51 Cal.App.4th 393, 397 [58 Cal.Rptr.2d 494].) Two years later, the Sixth District expressly disagreed with In re Alysha S. on two grounds. (In re Shelley J. (1998) 68 Cal.App.4th 322, 328-329 [79 Cal.Rptr.2d 922].) First, the court cited In re Jennifer R., which held, "Dependency proceedings in the juvenile court are special proceedings governed by their own rules and statutes. [Citations.] Unless otherwise specified, the requirements of the Civil Code and the Code of Civil Procedure do not apply. (Jones T. v. Superior Court (1989) 215 Cal.App.3d 240, 245, fn. 3 [264 Cal.Rptr. 4]; In re Angela R. (1989) 212 Cal.App.3d 257, 273 [260 Cal.Rptr. 612]." (In re Jennifer R. (1993) 14 Cal.App.4th 704, 711 [17 Cal.Rptr.2d 759], fn. omitted, quoted in In re Shelley J., at p. 328.) Second, the court cited former rule 39, which provided that rules governing criminal cases and appeals applied to juvenile proceedings unless otherwise specified, and Penal Code section 1012, which provides that failure to demur to defective pleadings waives the defect. (In re Shelley J., at p. 328.) The Second District, Division Five, has agreed with In re Shelley J. and provided an additional reason for the forfeiture rule. (In re James C. (2002) 104 Cal.App.4th 470, 481 [128 Cal.Rptr.2d 270].) After agreeing with In re Shelley J.'s reliance on In re Jennifer R., former rule 39, and Penal Code section 1012, the court in In re James C. cited section 348, which provides that one specific chapter of the Code of Civil Procedure relating to variances and amendments of pleadings applies to juvenile dependency proceedings. (In re James C., at p. 481.) The court stated that the fact *1638 that the incorporated chapter does not include Code of Civil Procedure section 430.80, cited in In re Alysha S., supports the conclusion that section 430.80 is inapplicable to juvenile dependency proceedings and that challenges to the sufficiency of a dependency petition are subject to forfeiture. The Fourth District has also followed In re Shelley J., supra, 68 Cal.App.4th 322, citing practical reasons for enforcing forfeiture. (In re S. O. (2002) 103 Cal.App.4th 453, 459-460 [126 Cal.Rptr.2d 554]; In re Jessica C. (2001) 93 Cal.App.4th 1027, 1038, fn. 8 [113 Cal.Rptr.2d 597].)
We agree with the holdings of In re Shelley J., supra, 68 Cal.App.4th 322, In re James C., supra, 104 Cal.App.4th 470, and In re S. O., supra, 103 Cal.App.4th 453, although the reasoning of the cases requires updating. First, former rule 39 has been repealed. (Historical note, Deering's Ann. Rules of Court (2006 supp.) foll. rule 39, p. 56 [former rule 39 repealed eff. Jan. 1, 2005].) The current version of the rule does not contain the language cited in In re Shelley J. and In re James C. (Rule 8.400; see historical note, 2 Deering's Ann. Rules of Court (2007 ed.) foll. rule 8.400, p. 536 [originally adopted as rule 37 eff. Jan. 1, 2005]; Advisory Com. com., Deering's Ann. Rules of Court (2006 supp.) foll. rule 37, p. 35 [rule 37 principally restated subds. (a)-(b) & (e)-(g) of former rule 39]; Deering's Ann. Rules of Court, rule 39, subd. (a) (2004 ed.) p. 430 [containing language cited in In re Shelley J., supra, 68 Cal.App.4th at p. 328 and In re James C., supra, 104 Cal.App.4th at p. 481].)
Second, the holding in In re Jennifer R., supra, 14 Cal.App.4th at page 711that the Civil Code and the Code of Civil Procedure do not apply to juvenile dependency proceedings unless specifically made applicablehas been rejected as an overstatement. In In re Claudia E., the Fourth District, Division One (which decided both In re Jennifer R., and a case relied on therein, In re Angela R., supra, 212 Cal.App.3d 257) recently reconsidered the issue. (In re Claudia E. (2008) 163 Cal.App.4th 627 [77 Cal.Rptr.3d 722].) The court concluded: "[T]he better view is that application of a statute outside the Welfare and Institutions Code (and not expressly made applicable) is not necessarily barred from dependency proceedings. Courts should determine whether the statute at issue is consistent with the overall purposes of the dependency system." (Id. at p. 636.) The court distinguished or narrowly construed its earlier decisions. (In re Claudia E., at pp. 636-637.)[13] The court also distinguished an intervening Supreme Court case, which had held: *1639 "Dependency proceedings in the juvenile court are special proceedings with their own set of rules, governed, in general, by the Welfare and Institutions Code." (In re Chantal S. (1996) 13 Cal.4th 196, 200 [51 Cal.Rptr.2d 866, 913 P.2d 1075], quoted in In re Claudia E., at pp. 634-635.) The court explained: "[T]he observation in Chantal S. ... that dependency proceedings are governed by the Welfare and Institutions Code was expressly a general one, and the high court held only that a particular statuteFamily Code section 3190did not apply in dependency cases." (In re Claudia E., at p. 636.) The Supreme Court found that application of the particular statute would produce results inconsistent with the purposes of dependency law. (Ibid. [parenthetical to citation of In re Chantal S., at p. 207].)
The Third District also has rejected the broad holding in In re Jennifer R. (In re Mark B. (2007) 149 Cal.App.4th 61, 78-79 [56 Cal.Rptr.3d 697].) Like the Fourth District, the Third District concluded that In re Chantal S., supra, 13 Cal.4th 196, merely stated a general rule and "did not hold that provisions of other codes are inapplicable unless otherwise specified." (In re Mark B., at p. 78.) In re Mark B. specifically holds that the provisions of part 1 of the Code of Civil Procedure ("Of Courts and Justice") apply in juvenile dependency proceedings because they "provide for the fundamental empowerment of the courts, including the juvenile court." (In re Mark B., at p. 78.) The court distinguished In re Chantal S., In re Jennifer R., supra, 14 Cal.App.4th 708, and In re Angela R., supra, 212 Cal.App.3d 257, because the statutes held inapplicable in those cases were from different parts of the Code of Civil Procedure. (In re Mark B., at p. 78.) In In re Angela R., for example, the statute at issue applied to civil "actions" governed by part 2 of the Code of Civil Procedure, whereas juvenile dependency cases are "special proceedings" governed by part 3 of the code. (In re Mark B., at p. 78; In re Angela R., at p. 273; see also In re Chantal S., at p. 200 ["Dependency proceedings in the juvenile court are special proceedings with their own set of rules ...." (italics added)].)
(2) We agree that a statute outside the Welfare and Institutions Code (that is not explicitly made inapplicable to dependency cases) applies in a dependency case if the statute applies to special proceedings such as juvenile dependency cases and if it is consistent with the overall purposes of the juvenile dependency system.
(3) Applying this updated rationale, we conclude that Code of Civil Procedure section 430.80which provides that challenges to the facial sufficiency of a petition are not forfeited by the party's failure to raise the issue in the trial courtdoes not apply to juvenile dependency proceedings.
*1640 First, section 430.80 appears in part 2 of the Code of Civil Procedure, which applies to civil actions, not in part 3, which applies to special proceedings. Thus, it does not even apply to juvenile dependency proceedings by its own terms. Moreover, the Welfare and Institutions Code expressly incorporates one chapter of part 2 of the Code of Civil Procedure (ch. 8 of tit. 6 of pt. 2) and does not expressly incorporate section 430.80 or the chapter in which it appears, chapter 3 of title 6 of part 2. (§ 348; In re James C., supra, 104 Cal.App.4th at p. 481.) This omission supports our conclusion that section 430.80 does not apply to dependency proceedings.
Second, the statute is inconsistent with the purposes of juvenile dependency law. Allowing parties to challenge the facial sufficiency of a petition for the first time on appeal conflicts with the emphasis on expeditious processing of these cases so that children can achieve permanence and stability without unnecessary delay if reunification efforts fail. (See In re Marilyn H. (1993) 5 Cal.4th 295, 307 [19 Cal.Rptr.2d 544, 851 P.2d 826].) Enforcing the forfeiture rule requires parties to raise such issues in the juvenile court where they can be promptly remedied without undue prejudice to the interests of any of the parties involved. (See In re S. O., supra, 103 Cal.App.4th at pp. 459-460; In re Jessica C., supra, 93 Cal.App.4th at pp. 1038, fn. 8, 1041-1042.)
(4) Had Mother raised her objection to the sufficiency of the petition at the July 11, 2007 hearing, the court could have allowed the Agency to amend the petition to conform to the proof offered at the hearing. (§ 348; Code Civ. Proc., §§ 469, 470.) "[A]mendments to conform to proof are favored, and should not be denied unless the pleading as drafted prior to the proposed amendment would have misled the adversarial party to its prejudice." (In re Jessica C., supra, 93 Cal.App.4th at p. 1042 [applying § 348].) (5) Only if the variance between the petition and the proof offered at the jurisdictional hearing is so great that the parent is denied constitutionally adequate notice of the allegations against him or her should a juvenile court properly refuse to allow an amendment to conform to proof or should a reviewing court entertain a challenge to the sufficiency of the petition that was not raised below. (In re Jessica C., at pp. 1041-1042; In re Shelley J., supra, 68 Cal.App.4th at pp. 328-329; see also In re Athena P. (2002) 103 Cal.App.4th 617, 627-628 [127 Cal.Rptr.2d 46] [holding that in the absence of prejudicially inadequate notice of the allegations against her, the facial insufficiency of the petition is harmless error if the evidence presented at the hearing establishes jurisdiction].) This was not such a case.
Accordingly, we hold that section 430.80 does not apply and Mother forfeited her challenge to the facial sufficiency of the petition by failing to raise the issue below.
*1641 B. Past Infliction of Serious Physical Harm Is Sufficient
(6) Second, the allegation that David had suffered serious physical harm inflicted nonaccidentally by Mother was sufficient to establish jurisdiction. The plain language of section 300, subdivision (a) provides that a child is within the jurisdiction of the juvenile court if he "has suffered ... serious physical harm inflicted nonaccidentally upon the child by the child's parent or guardian."
Mother cites cases suggesting that jurisdiction can only be established if the social services agency proves the child faces a substantial risk of harm at the time of the jurisdictional hearing. In re Rocco M., for example, held, "While evidence of past conduct may be probative of current conditions, the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm. [Citations.]" (In re Rocco M. (1991) 1 Cal.App.4th 814, 824 [2 Cal.Rptr.2d 429].) We find each of Mother's cited cases distinguishable.
In In re Rocco M., jurisdiction was alleged under section 300, subdivision (b), which applies where the child "`has suffered, or there is a substantial risk that the minor will suffer, serious physical harm or illness, as a result of the failure or inability of his or her parent or guardian to adequately supervise or protect the minor, or the willful or negligent failure of the minor's parent or guardian to adequately supervise or protect the minor from the conduct of the custodian with whom the minor has been left, or by the wilful or negligent failure of the parent or guardian to provide the minor with adequate food, clothing, shelter, or medical treatment, or by the inability of the parent or guardian to provide regular care for the minor due to the parent's or guardian's mental illness, developmental disability, or substance abuse.'" (In re Rocco M., supra, 1 Cal.App.4th at p. 820, fn. 4.) The petition had alleged that the mother had left Rocco in the care of a relative who was arrested for possession of heroin and methamphetamines; the mother left Rocco in the care of a friend who kicked him in the stomach; the mother had a history of drug and alcohol abuse that interfered with her ability to provide for and supervise Rocco; and Rocco had previously been removed from the mother's care for three years due to her neglect of his basic needs. (Id. at p. 817.) After reviewing the legislative history of 1987 amendments to section 300, In re Rocco M. held: "Subdivision (b) means what it says. Before courts and agencies can exert jurisdiction under section 300, subdivision (b), there must be evidence indicating that the child is exposed to a substantial risk of serious physical harm or illness" and, as quoted above, that "the question under section 300 is whether circumstances at the time of the hearing subject *1642 the minor to the defined risk of harm." (1 Cal.App.4th at pp. 823-824.)[14] The court specifically noted that section 300, subdivision (a) uses similar language and relied on it as a source of guidance for interpreting subdivision (b). (1 Cal.App.4th at pp. 823-824.)
Despite these broadly worded statements, In re Rocco M. did not specifically address whether an allegation (or evidence) that a child "has suffered... serious physical harm" under the circumstances set forth in section 300, subdivision (b) would have been sufficient alone to establish jurisdiction. We do not read the case as holding that such an allegation (or such evidence) would not be sufficient to establish jurisdiction. It is true that an incident of prior physical abuse was alleged in In re Rocco M. and that the court seriously questioned whether the "one instance of physical abuse by a caretaker" was sufficient to establish jurisdiction. (In re Rocco M., supra, 1 Cal.App.4th at p. 825.) However, the court explained that, as to that incident, there was no evidence the mother should have anticipated that Rocco might be physically abused by the caretaker. (Ibid.) That is, there was no evidence that Rocco "ha[d] suffered ... serious physical harm or illness, as a result of ... the willful or negligent failure of the child's parent or guardian to adequately supervise or protect the child from the conduct of the custodian with whom the child has been left," as required by section 300, subdivision (b). (Italics added.) Here, the petition alleged that David "ha[d] suffered... serious physical harm inflicted nonaccidentally" by Mother. (§ 300, *1643 subd. (a).) There is no dispute that Mother nonaccidentally inflicted the January 2007 beating on David.
Similarly, in the other cases cited by Mother, the prior alleged physical harm did not establish jurisdiction because it did not satisfy the requirements of section 300. In In re Alysha S., the June 1995 petition alleged, inter alia, "`Prior to July 1994, while the minor was an infant and toddler, the mother observed the father to touch the minor on the buttocks and vaginal area in a way that seemed to her inappropriate.'" (In re Alysha S., supra, 51 Cal.App.4th at p. 396.) The Court of Appeal held the allegation was insufficient to establish jurisdiction. (Id. at pp. 399-400.) Relying on In re Rocco M., the court emphasized the absence of any allegation of a current risk of harm to the minor. (Id. at pp. 398-399.) However, the court also observed that there were "no allegations as to the severity of any physical harm resulting from the alleged touchings." (Id. at p. 399.) That is, the petition failed to allege "serious physical harm" as required by section 300, subdivision (b), the alleged basis for jurisdiction. (51 Cal.App.4th at pp. 398-399.)
In re Nicholas B., the other case cited by Mother, also relied on In re Rocco M. for the rule that a petition alleging jurisdiction under section 300, subdivision (b) must allege a current substantial risk that the child will suffer serious physical harm and held the standard was not satisfied in that case. (In re Nicholas B. (2001) 88 Cal.App.4th 1126, 1128, 1134, 1137 [106 Cal.Rptr.2d 465].) One of the allegations of the petition was that the mother struck the minor on the face, causing bruising and swelling, injuries the investigating social worker described as "`very severe.'" (Id. at p. 1130.) The incident took place in September 1998, the petition was filed in March 1999, and the jurisdictional hearing took place in May 1999. (Id. at pp. 1130-1131.) Explaining why this allegation did not establish jurisdiction, the court wrote, "This is an incident the mother admitted and regretted. There are no further allegations nor supporting facts to suggest the serious physical harm inflicted by the mother will occur again.... If the incident was not likely to recur, then the petition failed to allege facts to demonstrate present or future risk of physical harm. Section 300, subdivision (a) (current danger) is not alleged." (Id. at pp. 1134-1135, fn. omitted, italics added.) It is not clear why the court identified section 300, subdivision (a) with the parenthetical label, "current danger," as the subdivision applies where a child "has suffered, or there is a substantial risk that the child will suffer, serious physical harm ...." (§ 300, subd. (a), italics added.) However, the fact that the court expressly distinguished section 300, subdivision (a) makes the decision inapplicable here. To the extent In re Nicholas B. holds that section 300, subdivision (a) requires allegations of a substantial current risk of serious physical harm in order to establish jurisdiction under the subdivision, we disagree.
*1644 We note that section 300, subdivision (b), the alleged basis for jurisdiction in each of the cases cited by Mother, provides: "The child shall continue to be a dependent child pursuant to this subdivision only so long as is necessary to protect the child from risk of suffering serious physical harm or illness." (§ 300, subd. (b), italics added; see In re Alysha S., supra, 51 Cal.App.4th at p. 397 [quoting this language]; In re Nicholas B., supra, 88 Cal.App.4th at p. 1134 [same].) Section 300, subdivision (a) does not contain similar language.
(7) We hold that, in the absence of unusual circumstances not present here (such as a substantial lapse of time between the incident and the filing of a petition or the date of a jurisdictional hearing), an allegation that a child has suffered serious physical harm inflicted nonaccidentally by a parent or guardian is sufficient to establish jurisdiction under section 300, subdivision (a). Importantly, we note that a finding of jurisdiction does not alone give the juvenile court the right to remove a child from his parent's custody.
Here, the petition was facially sufficient because it alleged that David had suffered serious physical harm (bruises, red marks, welts, and broken skin on a seven-year-old boy) inflicted intentionally by Mother as a disciplinary measure when she struck him with a belt, cord, or ruler.
C. Amendment to Conform to Proof
Finally, we observe that the evidence produced at the joint jurisdictional and dispositional hearing clearly demonstrated that David faced a current substantial risk of physical harm if returned to Mother's custody.[15] Therefore, even if a petition must allege a current substantial risk of harm in order to establish jurisdiction under section 300, subdivision (a), substantial evidence of such a risk was presented at the hearing. Accordingly, if Mother had challenged the facial sufficiency of the petition below, the court could have amended the petition to conform to proof. (§ 348; Code Civ. Proc., §§ 469, 470.)
*1645 Mother admitted that on January 7, 2007, she struck David twice with a belt and once with an electrical cord, hitting him seven times on each of the three occasions. The beating left David with bruises, linear red marks, welts and broken skin, which were documented by photographs and described by people who observed the injuries on the day following the beating. Mother does not dispute that these injuries constituted "serious physical harm" within the meaning of section 300, subdivision (a). David reported that Mother had hit him "a lot of times" in the past with a belt or cord and Mother admitted she started spanking him when he was four. Following the January 7 incident, David was removed from Mother's care and she only had supervised contact with him. Therefore, the lack of additional physical abuse does not demonstrate an absence of harm if David was returned to Mother's custody. Other evidence in the record affirmatively demonstrated a substantial risk of physical harm continued to exist.
First, the record contains substantial evidence that David was a particularly challenging child. The Agency's ICWA expert, Kathryn Manness, stated in her declaration, "According to all reports received, David's `acting out' behaviors were extreme." The foster mother had reported the same disruptive behavior that Mother had described: "hitting other children, disrespectful when addressing adults (ordering them to do things), throwing and breaking things, etc." David had been diagnosed with attention deficit hyperactivity disorder (ADHD) and prescribed medication and school personnel had noticed a significant improvement in David's behavior when he took the medication. David did not regularly take the medication while he was in Mother's custody.
Second, Mother's ability to discipline David without resorting to physical violence was compromised by her own history of physical abuse at the hands of her mother, her emotional instability, and her social isolation. Mother reported that she had been horribly beaten by her mother with a bullwhip throughout her childhood. She initially explained her conduct by saying that when she was hit as a child, it was an effective disciplinary technique, and by quoting the principle, "Spare the rod and spoil the child." She acknowledged that she needed parenting training so she would know how to discipline David without resorting to corporal punishment. Mother also reported that she was experiencing perimenopausal symptoms, including mood fluctuations, and had been diagnosed with bipolar disorder but was not taking medication for the disorder. Mother had told David's principal several times over the previous year that she had considered putting David up for adoption because she could not cope with his behavior. There was also evidence she was having difficulty meeting David's most basic needs. She had a history of referrals to child protective services for neglect of David, although most of the referrals were evaluated out or unsubstantiated, and school personnel reported a significant change in David after he was placed in foster care: he *1646 was finishing his homework, reading, making friends, and behaving well. Finally, when Mother realized she was reaching a breaking point and needed help to cope with David, she had few people to turn to for support.
Third, there was substantial evidence that by the time of the July 11, 2007 hearing Mother had not substantially resolved the psychological factors that had interfered with her ability to discipline David without resorting to physical violence. Although Mother testified that she had obtained medicine for her menopausal symptoms and antidepressants for her mental health condition, the social worker had not received verification of that development. Mother's former therapist (who treated Mother through the week of June 11) described Mother as paranoid, exhibiting pressured speech, and tangential thinking, with significant mood fluctuations, short attention span, racing thoughts, and limited concentration. The therapist recommended that Mother undergo personality testing to determine if she could even benefit from counseling and if so what type of therapy would help her. Although Mother had completed a parenting course, the therapist opined that Mother had difficulty tailoring the general parenting techniques she had learned to specific situations and recommended parenting classes for Mother that would teach her simple disciplinary techniques. Mother had also attended many sessions of an anger management course and her teacher reported that she had made great progress. However, Mother had told the anger management counselor that she had merely spanked David; the counselor was not aware of the severity of the January 2007 beating. Mother's therapist also reported that Mother had minimized the incident.
Fourth, there were concrete examples that Mother was continuing to have difficulty controlling her behavior around David or safely responding to his misconduct. On June 26, 2007, Mother heard from David's father (an unreliable information source) that David was missing. She went to the foster home, banged on the door and windows, and called out for her son. David was scared and crying inside the house. The social worker reported that Mother was volatile with her and with others involved in the case. During visits, Mother seemed to be greatly affected by David's moods and became very agitated when he did not behave as she wished. At the July 11 hearing, the court commented that Mother's demeanor on the witness stand suggested that she was not prepared to take David back into her home.
Finally, several experts or professionals opined that David could not safely return to Mother's care: the social worker, the ICWA expert, and the Tribe's ICWA representative. The ICWA expert, a licensed social worker, also opined that David would suffer serious emotional harm if he were returned to Mother's care without certain preparations, including family therapy and interactive parent-child therapy.
*1647 (8) In sum, there was substantial evidence that, at the time of the July 11, 2007 hearing, David faced a substantial risk of serious physical harm from Mother because there was a substantial risk that Mother would resort to physical violence in disciplining him.
DISPOSITION
The July 11, 2007 jurisdictional and dispositional orders are affirmed.
Jones, P. J., and Simons, J., concurred.
NOTES
[*] Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
[1] Some of the facts in this background section are taken from the record in In re David H. (Jan. 31, 2008, A117118) (nonpub. opn.). On October 30, 2007, we granted Mother's request to incorporate by reference the record in the prior appeal.
[2] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
[3] Initially, on May 14, 2007, the Agency filed a section 388 petition seeking a modification of the dispositional order. The Agency asked the court to find that ICWA applies to the case and to hold a special hearing to take ICWA expert testimony and modify the findings in the order. The court granted the petition on May 17 and set the hearing for July 9. The court's May 17 order, however, was superseded by the court's June 12 order (discussed below) that set aside both the jurisdictional and dispositional orders and scheduled new jurisdictional and dispositional hearings for July 9.
[4] People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44].
[5] Section 352, subdivision (b) provides, "... In no event shall the court grant continuances that would cause the hearing pursuant to Section 361 to be completed more than six months after the hearing pursuant to Section 319." The section 319 hearing is the initial detention hearing, which in this case took place on January 11, 2007.
[6] Mother expressly abandons any argument that the proper remedy for the ICWA violations in the first five months of the dependency proceeding was dismissal of the action rather than setting aside the original orders and holding new jurisdictional and dispositional hearings.
[7] All rule references are to the California Rules of Court.
[8] Regarding Mother's remaining arguments on appeal, she correctly observes that errors prejudicially affecting the jurisdictional hearing would require either remand for a new jurisdictional hearing or dismissal of the proceeding for lack of jurisdiction. Thus, her remaining arguments (all of which affect the jurisdictional hearing) have not been rendered moot by subsequent proceedings.
[9] A parent may have a constitutional due process right to representation at a hearing that may result in the termination of reunification services and the setting of a section 366.26 hearing. (In re Arturo A. (1992) 8 Cal.App.4th 229, 239 [10 Cal.Rptr.2d 131]; In re Andrew S. (1994) 27 Cal.App.4th 541, 548 [32 Cal.Rptr.2d 670].) Denial of this constitutional right to representation is reversible error unless it is harmless beyond a reasonable doubt. (In re Andrew S., at p. 549.) A parent has a statutory right to representation in these proceedings. (§ 317, subds. (b), (d).) A violation of a parent's statutory right to representation is reviewed for harmless error under the standard of People v. Watson: the parent must show there was a reasonable probability of a more favorable outcome if she had been represented at the hearing. (In re Andrew S., at p. 549; People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].) Mother concedes: "[I]n non-ICWA cases, failure to appoint counsel is not per se reversible error." ICWA requires the appointment of counsel for a parent of an Indian child "in any removal, placement, or termination proceeding." (25 U.S.C. § 1912(b).) However, Mother has failed to cite any case that would support a reversible per se standard for an ICWA violation under circumstances such as those presented here. (See Matter of M.E.M. (1981) 195 Mont. 329 [635 P.2d 1313, 1317] [reversing for new hearing where much of testimony would have been excluded had a proper objection been made]; Matter of G.L.O.C. (1983) 205 Mont. 352 [668 P.2d 235, 238] [reversing where lack of representation and failure to hold hearing constituted due process violation]; Matter of J. W. (1987) 1987 OKCIVAPP 60 [742 P.2d 1171, 1173-1174, 1175] [reversing for cumulative error, which included denial of representation]; In re Desiree F. (2000) 83 Cal.App.4th 460, 476-478 [99 Cal.Rptr.2d 688] [same].) Thus, we apply the next most exacting standard of review.
[10] Section 352 provides, "(a) Upon request of counsel for the parent, guardian, minor, or petitioner, the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor. In considering the minor's interests, the court shall give substantial weight to a minor's need for prompt resolution of his or her custody status, the need to provide children with stable environments, and the damage to a minor of prolonged temporary placements. [¶] ... [¶] (b) ... In no event shall the court grant continuances that would cause the hearing pursuant to Section 361 to be completed more than six months after the hearing pursuant to Section 319."
[11] ICWA provides, "No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided, That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding." (25 U.S.C. § 1912(a).)
[12] The Agency argues more generally that Mother forfeited her challenge to jurisdiction because she failed to challenge jurisdiction during the July 11, 2007 hearing. Mother arguably preserved a challenge to the sufficiency of the evidence of jurisdiction by arguing there was no substantial evidence of a current substantial risk of harm to David (which was also relevant to David's continued removal).
[13] The other case cited in In re Jennifer R., supra, 93 Cal.App.4th at page 711, Jones T. v. Superior Court, held that Civil Code former section 4600 "no longer applies to dependency proceedings" because the Legislature had enacted "a specific statutory scheme for the care, custody, control and placement of dependent children." (Jones T. v. Superior Court, supra, 215 Cal.App.3d at p. 245, fn. 3.) That is, Jones T. essentially applied the principle that specific statutes prevail over more general statutes. (See Arbuckle-College City Fire Protection Dist. v. County of Colusa (2003) 105 Cal.App.4th 1155, 1166 [130 Cal.Rptr.2d 182].) Jones T. did not hold that the Civil Code was inapplicable to dependency proceedings unless expressly made applicable by the Welfare and Institutions Code or juvenile court rules.
[14] In re Rocco M. cited many cases in support of its holding that "the question under section 300 is whether circumstances at the time of the hearing subject the minor to the defined risk of harm," but almost all of those cases were decided under the prior statutory scheme. (In re Rocco M., supra, 1 Cal.App.4th at p. 824; see In re James B. (1986) 184 Cal.App.3d 524, 528, 529 [229 Cal.Rptr. 206]; In re Katrina C., supra, 201 Cal.App.3d at p. 546; In re Jennifer P. (1985) 174 Cal.App.3d 322, 325, fn. 2, 326 [219 Cal.Rptr. 909]; In re Nicole B. (1979) 93 Cal.App.3d 874, 877-878 [155 Cal.Rptr. 916]; In re Jessica B. (1989) 207 Cal.App.3d 504, 509, 517 [254 Cal.Rptr. 883]; In re Lisa D. (1978) 81 Cal.App.3d 192, 194, fn. 1, 196-197 [146 Cal.Rptr. 178]; cf. In re Tiffany Y. (1990) 223 Cal.App.3d 298, 301 [272 Cal.Rptr. 733] [petition filed in 1988, but alleging risk of harm rather than past harm].) The use of the present tense in the former statute (e.g., establishing jurisdiction where the "`home is an unfit place'") "indicates an intent that the unfitness exists at the time of the hearing." (In re James B., at pp. 528, 529.) In re Rocco M. emphasized that the 1987 amendments to the dependency scheme narrowed the grounds for dependency jurisdiction. (In re Rocco M., at p. 823.) However, it did so primarily by requiring "a substantial risk of serious physical harm or illness." (Id. at p. 823.) The prior statute "required no separate showing of concrete harm or risk of physical harm to the child." (Id. at p. 821.) The Legislature revised the ground for jurisdiction, as relevant here, to circumstances where the minor "`has suffered, or there is a substantial risk that the minor will suffer, serious physical harm inflicted nonaccidentally upon the minor by the minor's parent or guardian.'" (Id. at p. 823, italics added, quoting § 300, subd. (a).) The Legislature apparently concluded that a showing of past serious physical harm was sufficient to establish a need for court intervention even without a separate showing of a substantial risk of future serious physical harm.
[15] In her discussion of the facial insufficiency of the petition, Mother argues in passing that "there was no substantial evidence in terms of disposition that if David was returned to [Mother's] custody at the time of the July 11, 2007 hearing, that David likely would suffer serious physical harm by clear and convincing evidence. (25 U.S.C. 1912, subdivision (e); section 361, subdivisions (c)(1) & (6).)" We could decline to address this argument because Mother failed to comply with rule 8.204(a)(1)(B), regarding the requisite specificity for asserting arguments on appeal. However, our conclusion that the record does contain substantial evidence of a current and substantial risk of serious physical harm if David were returned to Mother at the time of the jurisdictional and dispositional hearing refutes this argument, as well as establishes another reason why the challenge to the facial sufficiency of the petition fails. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266522/ | 165 Cal.App.4th 1344 (2008)
KIMBERLY KEMPTON et al., Plaintiffs and Appellants,
v.
CITY OF LOS ANGELES, Defendant and Respondent.
No. B201128.
Court of Appeals of California, Second District, Division Four.
August 13, 2008.
*1346 Charles G. Kinney for Plaintiffs and Appellants.
Rockard J. Delgadillo, City Attorney, Susan D. Pfann, Assistant City Attorney, and Peter E. Langsfeld, Deputy City Attorney, for Defendant and Respondent.
OPINION
EPSTEIN, P. J.
Kimberly Kempton and Charles Kinney appeal from a judgment issued following the grant of a motion for judgment on the pleadings without leave to amend. They claim that their complaint was either sufficient to allege a cause of action for nuisance against the City of Los Angeles or, if not, that they should have been granted leave to amend. We reverse the judgment with directions to grant leave to amend the complaint to allege a cause of action for nuisance.
FACTUAL AND PROCEDURAL SUMMARY
Appellants own a home on Fernwood Avenue in Los Angeles. The garage at the residence has access onto Cedar Lodge Terrace. In their prelawsuit claim filed with the City of Los Angeles (City), appellants alleged their neighbors had erected fences on City property fronting Cedar Lodge Terrace. The claim asserted hazards created by these fences and asked the City to cause them to be removed from its property. The City rejected the claim.
*1347 Appellants then filed a lawsuit against the City, seeking monetary damages and an injunction requiring the City to bring proceedings to force appellants' neighbors to remove the fences from the City's right-of-way. Appellants alleged the fences diminished sight lines when entering and exiting their garage along the street, causing the appellants to be fearful while driving. They also alleged that the fences prevented pedestrian access to the unimproved pedestrian walkway portion of Cedar Lodge Terrace and created dangerous conditions for persons walking down the street, causing appellants to suffer emotional distress while walking.
City moved for judgment on the pleadings, arguing that appellants did not state facts sufficient to constitute a cause of action because they failed to allege actual injury. The trial court granted this motion, finding that emotional distress suffered under the circumstances alleged was not an actual injury. Judgment was entered on the pleadings. Appellants did not request, nor did the trial court offer, leave to amend their complaint. Nevertheless, we reach the merits of appellants' argument; a specific request to amend need not be made in the trial court "`as a prerequisite for reviewing the trial court's order on appeal.'" (Galligan v. City of San Bruno (1982) 132 Cal.App.3d 869, 876 [183 Cal.Rptr. 466], quoting Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 939 [101 Cal.Rptr. 568, 496 P.2d 480].)
DISCUSSION
(1) Since this is an appeal from judgment issued following the grant of a motion for judgment on the pleadings, we accept, for purposes of this appeal only, that all properly pleaded material facts alleged in the complaint are true.[1] (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 [119 Cal.Rptr.2d 709, 45 P.3d 1171].) We therefore accept appellants' contentions that (1) the fences are constructed on the City's right-of-way along the street and that they block public access to the pedestrian walkway area, and (2) the fences block the sight lines of drivers entering and exiting appellants' garage, resulting in hazards to those drivers and to pedestrians.
(2) That said, we must review the pleadings to determine whether the facts, as alleged in the complaint, support any valid cause of action against a defendant, or if not, whether the complaint could be reasonably amended to do so. (Zelig v. County of Los Angeles, supra, 27 Cal.4th at p. 1126; Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870, 876 [22 Cal.Rptr.2d 819] ["`The standard of appellate review of a judgment on the pleadings is ... *1348 identical to that on a judgment following the sustaining of a demurrer.'"].) Where a complaint could reasonably be amended to allege a valid cause of action, we must reverse the judgment. (Zelig, at p. 1126; Gami, at p. 876.) Leave to amend is liberally allowed; a specific request to amend is not required as a prerequisite to review on appeal the trial court's decision not to grant leave to amend. (Nestle v. City of Santa Monica, supra, 6 Cal.3d at p. 939.)
Appellants do not allege facts showing they have suffered reasonable monetary damages, and it does not appear that they can reasonably amend their complaint to do so. They allege that in allowing the fences to remain on public property, City maintained dangerous road conditions which caused pedestrians to feel "inconvenience, annoyance, frustration, [and] fear...." The essential allegation, however inartfully pled, is that these conditions amounted to negligent infliction of emotional distress. That tort does not apply here, since (among other reasons) (1) any fear or inconvenience caused to pedestrians blocked from the sidewalk area is shared by all members of the public, and (2) there has been no actual physical injury inflicted in this case. (See Bird v. Saenz (2002) 28 Cal.4th 910, 915 [123 Cal.Rptr.2d 465, 51 P.3d 324]; Thing v. La Chusa (1989) 48 Cal.3d 644, 647 [257 Cal.Rptr. 865, 771 P.2d 814].)
Appellants also asserted in their original claim, but not in their complaint, that they have suffered a diminution of property value because the fences block sight lines when they enter and exit their garage. Appellants' complaint alleges the fences were erected in (or about) 1991 and 2004, and that appellants purchased the property in 2005. A diminution of value, if any, necessarily would have occurred when the fences were first built, which was before appellants purchased the property. Appellants cannot claim diminished property value when they purchased the property after the alleged diminution in value occurred.
(3) Since appellants have not suffered cognizable monetary damages, their remaining remedy, if any, is in equity for an injunction on a theory of public nuisance. (See Kitzman v. Newman (1964) 230 Cal.App.2d 715, 725 [41 Cal.Rptr. 182].) A public nuisance is one "which `affects at the same time an entire community or neighborhood, or any considerable number of persons.'" (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1104 [60 Cal.Rptr.2d 277, 929 P.2d 596], quoting Civ. Code, § 3480.) Blocking a public sidewalk constitutes a public nuisance per se. (Kitzman v. Newman, supra, 230 Cal.App.2d at p. 722; Ex parte Taylor (1890) 87 Cal. 91, 94 [25 P. 258] [streets include sidewalks, as well as the roadway, and obstruction of a sidewalk is a public nuisance]; Civ. Code, § 3479.)
*1349 (4) The complaint alleges that the fences block the sidewalk area in a public right-of-way. Government liability under Government Code section 815 et seq. may be based upon public nuisances per se, and appellants may reasonably amend their complaint to allege an action on this theory. (See Nestle v. City of Santa Monica, supra, 6 Cal.3d at p. 933 [construing Civ. Code, § 3479, defining nuisance to constitute adequate statutory basis for government liability].) Such an action would not force the City to prosecute others for nuisance on private property, but rather require City to take such action as is necessary so that it no longer suffers a nuisance on its own property.
(5) A private individual may bring an action against a municipality to abate a public nuisance when the individual suffers harm that is "`... specially injurious to himself, but not otherwise.' [Citation.]" (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1040 [29 Cal.Rptr.2d 664], quoting Civ. Code, § 3493.) The damage suffered must be different in kind, not merely in degree, from that suffered by other members of the public. (24 Cal.App.4th at p. 1040.)
(6) Appellants' alleged fear of injury to pedestrians caused by the fences would be suffered by all members of the public and therefore would not alone constitute a special injury to appellants actionable for public nuisance. (See Koll-Irvine Center Property Owners Assn. v. County of Orange, supra, 24 Cal.App.4th at p. 1040.) But their complaint also alleges the fences block the sight lines upon entering and exiting their garage, causing "fear of being in a vehicle collision, fear of hitting a pedestrian, and/or danger to physical well-being (as a driver) when [appellants] are exiting their garage but cannot see due to fences...." Interference with the ingress and egress to and from a public street constitutes "both a private and public nuisance" and may constitute a special injury actionable by an individual. (Friends of H Street v. City of Sacramento (1993) 20 Cal.App.4th 152, 160 [24 Cal.Rptr.2d 607].)
City asserts that appellants are barred from amending their complaint to allege a cause of action for public nuisance because the original Government Code claim did not present that cause of action. We disagree. Assuming for sake of argument only that a claim is prerequisite to a lawsuit seeking only equitable relief against a public entity for a public nuisance, the claim in this case was adequate. (Neither party discusses application of the claim statute where only equitable injunctive relief is available; for authority that it is not, see Lozada v. City and County of San Francisco (2006) 145 Cal.App.4th 1139, 1164, fn. 11 [52 Cal.Rptr.3d 209]; and Gov. Code, § 905.2 [claims for money or damages against state].)
(7) Even were a claim required in order to seek equitable relief, appellants have met their burden of alleging facts in this claim which placed the *1350 City on notice to adequately investigate the alleged nuisance. (See Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 446 [20 Cal.Rptr.3d 176, 99 P.3d 500] [claim is sufficient if it provides sufficient information to enable a public entity to adequately investigate the claim and "need not contain the detail and specificity required of a pleading...."].) Appellants presented factual assertions in their claim that the fences are erected upon City property, prevent access to the sidewalk area, and block the sight lines upon entering and exiting their garage. These assertions support both a public nuisance per se and specific injury. Appellants are entitled to amend their complaint to allege a valid cause of action for public nuisance.
DISPOSITION
The judgment on the pleadings is reversed with directions to grant appellants leave to amend their complaint to allege a cause of action for nuisance. Each party shall bear its own costs on appeal.
Willhite, J., and Suzukawa, J., concurred.
NOTES
[1] While we accept appellants' allegations as true for purposes of this appeal, nothing in this opinion should be construed as proof of fact for purposes of later proceedings. Such facts are properly determined by the trier of fact. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266538/ | 159 Conn. 362 (1970)
DENTAL COMMISSION OF THE STATE OF CONNECTICUT
v.
TRU-FIT PLASTICS, INC.
Supreme Court of Connecticut.
Argued April 9, 1970.
Decided May 6, 1970.
ALCORN, HOUSE, THIM, RYAN and SHAPIRO, JS.
David B. Beizer, assistant attorney general, with whom, on the brief, were Robert K. Killian, attorney general, and F. Michael Ahern, assistant attorney general, for the appellant (plaintiff).
*363 Robert A. Slavitt, with whom, on the brief, was Abraham D. Slavitt, for the appellee (defendant).
ALCORN, C. J.
The portion of § 20-123 of the General Statutes (Rev. to 1968) which is material to the present case provides that "[a]ny person . . . who, directly or indirectly, by any means or method, furnishes, supplies, constructs, reproduces or repairs any prosthetic denture, bridge, appliance or any other structure to be worn in the human mouth, except upon the written direction of a licensed dentist, or who places such appliance or structure in the human mouth or attempts to adjust the same, or delivers the same to any person other than the dentist upon whose direction the work was performed... shall be deemed as practicing dentistry or dental medicine." The penalty for each week in which dentistry is practiced in violation of the statute is, for a first offense, a fine of not less than $500 nor more than $1000 or imprisonment for not more than six months or both. General Statutes (Rev. to 1968) § 20-126.
The defendant is not licensed to practice dentistry in Connecticut. The plaintiff dental commission, pursuant to § 20-126, applied to the Court of Common Pleas for an injunction to restrain the defendant from the practice of dentistry. The court rendered judgment for the defendant, and the plaintiff has appealed.
Both parties have departed from the issues upon the basis of which the injunction was sought. In its complaint the plaintiff alleged that it and "citizens of this State, including but not limited to licensed dentists" are irreparably injured by the defendant's "manufacture and sale of denture kits". The irreparable injury is alleged to arise because *364 the defendant's activity is causing injury to the mouths or bodies of persons who purchase the kits or use dentures constructed from them; is conveying the incorrect impression that the defendant is licensed to practice dentistry; is conveying the incorrect impression that the manufacture and sale of the kits are approved by the plaintiff; is conveying the incorrect impression that the use of the kit is a medically suitable and adequate alternative to a set of dentures made under the direction of a licensed dentist; and is injuring the professional reputation of dentists through creating the incorrect impression that one may practice dentistry in Connecticut in the defendant's medically unsound and harmful manner. There was no evidence presented to the trial court in support of these allegations and a denial of injunctive relief would have been proper on that ground.
The case was submitted to the trial court, and is now before us, on a stipulation of facts, in substance, as follows: The defendant makes bulk purchases of three different powders and a liquid. It measures these into containers which it packages into what is called a "Spare Denture Kit". Included are molds and instructions on how to fashion a spare denture by using an existing denture and the materials in the kit. The defendant is not licensed to practice dentistry in Connecticut and the materials are collected and the instructions are composed without the aid or authority of a Connecticut dentist. Beginning in December, 1964, the defendant advertised the sale of the "Spare Denture Kits" so assembled in national news media and in newspapers circulated and sold in Connecticut. From December, 1964, until March 31, 1965, the defendant sold and supplied such kits to persons in Connecticut without *365 authority from a licensed Connecticut dentist. Since March 31, 1965, the defendant has sold such kits to persons outside Connecticut without authority from a licensed Connecticut dentist.
On these facts, the only issue presented to the trial court, and now to us, is whether the defendant is engaged in the practice of dentistry within the meaning of the portion of § 20-123 which we have quoted. The trial court held that it was not and we agree with that conclusion.
That the portion of § 20-123 which is in issue is a constitutional exercise, penal in nature, of the police power designed to serve the public health and that the conduct or acts which it proscribes are sufficiently explicit to meet constitutional requirements are settled law. Amsel v. Brooks, 141 Conn. 288, 297-98, 106 A.2d 152. Since the statute is in derogation of a common-law right and penal in nature, it must be strictly applied. Mack v. Saars, 150 Conn. 290, 294, 188 A.2d 863, and cases cited. When the language used in a statute is clear and unambiguous, its meaning is not subject to modification by construction. State v. Simmons, 155 Conn. 502, 504, 234 A.2d 835; Hurlbut v. Lemelin, 155 Conn. 68, 73, 230 A.2d 36. It is not the function of courts to read into clearly expressed legislation provisions which do not find expression in its words; Lenox Realty Co. v. Hackett, 122 Conn. 143, 150, 187 A. 895; nor is it our function to substitute our own ideas of what might be a wise provision in the place of a clear expression of the legislative will. Connelly v. Bridgeport, 104 Conn. 238, 249, 132 A. 690. The statute must be applied as its words direct. Obuchowski v. Dental Commission, 149 Conn. 257, 265, 178 A.2d 537.
The language in issue describes one type of person *366 deemed to be practicing dentistry or dental medicine. Such a one is declared to be a person who "directly or indirectly, by any means or method" does certain acts "except upon the written direction of a licensed dentist". That person runs afoul of the statute if he "furnishes, supplies, constructs, reproduces or repairs any prosthetic denture, bridge, appliance or any other structure to be worn in the human mouth". Actually, we suppose, the statute might be claimed to penalize the sporting goods dealer who supplied an item such as the mouthpiece commonly used by boxers, but that is beside the point. The controlling point is that the statute makes no mention of one who assembles, packages and sells, with appropriate instructions, the materials from which an individual may, if he wishes to attempt to do so, fashion a duplicate of his own denture. Consequently, the trial court was correct in refusing to enjoin the defendant from engaging in that activity.
There is no error.
In this opinion the other judges concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266545/ | 165 Cal.App.4th 927 (2008)
HOWARD M. JAFFE, Plaintiff and Appellant,
v.
ZENAIDA C. PACELLI, Defendant and Respondent.
No. B200103.
Court of Appeals of California, Second District, Division Three.
August 1, 2008.
*929 Jaffe & Martin, Howard M. Jaffe and Arthur L. Martin for Plaintiff and Appellant.
Aguiluz Law Corporation and Heroico M. Aguiluz for Defendant and Respondent.
OPINION
ALDRICH, J.
I.
INTRODUCTION
In this case, the superior court entered a judgment against a debtor, Zenaida C. Pacelli (Pacelli), that included an award of attorney fees. Years later, Pacelli sought to discharge the debt in bankruptcy court. Pacelli's bankruptcy case was dismissed as a result of the efforts taken by the judgment creditor, appellant Howard M. Jaffe.
In this appeal, we hold that Jaffe's efforts taken in the bankruptcy court, and in related proceedings, were incurred to enforce the superior court judgment. Thus, Code of Civil Procedure section 685.040 (section 685.040) *930 entitles Jaffe to a postjudgment order awarding him compensation for the attorney fees and costs expended in those proceedings.
We reverse the trial court's postjudgment orders to the extent they denied Jaffe's request for attorney fees and costs related to Pacelli's bankruptcy proceedings and remand the case for further proceedings consistent with our holding. In all other respects, we affirm the postjudgment orders.
II.
FACTUAL AND PROCEDURAL BACKGROUND
This is the fourth appeal we have resolved involving this matter.[1]
A. Preliminary facts and the three prior appeals
Pacelli executed a promissory note with regard to the purchase of real property. The note included an attorney fees provision stating that if litigation was commenced "to collect this note or any portion thereof, such sum as the Court may deem reasonable shall be added hereto as attorney's fees." Pacelli defaulted on her obligations regarding the purchase of the property. On October 7, 1996, the Los Angeles Superior Court entered a default judgment in case No. NC016962 against Pacelli in the total amount of $458,621.83. It included an award of attorney fees and costs. On July 28, 1999, we filed an opinion (Scott v. Cruz (July 28, 1999, B120607) [nonpub. opn.]) affirming the trial court's order denying Pacelli's motion to set aside default and default judgment.[2]
By March 4, 2003, the judgment had grown to $900,660.99, with the accumulation of interest and costs. On that date, the superior court entered a renewed judgment against Pacelli.
Jaffe, as the judgment creditor, sought to enforce the judgment against Pacelli.[3] As part of the enforcement proceedings, Jaffe caused the Los Angeles County Sheriff to levy on funds deposited in a savings account at the Bank of America. Pacelli filed a claim of exemption asserting that the funds in the account were exempt from levy. In an opinion filed on November 10, 2005, in Pacelli v. Jaffe (Nov. 10, 2005, B170237) (nonpub. opn.), we *931 affirmed the trial court's order denying Pacelli's claim of exemption. We also denied Jaffe's request for sanctions.
In another opinion filed on November 10, 2005, in Aguiluz v. Jaffe (Nov. 10, 2005, B172670) (nonpub. opn.), we affirmed two orders by the trial court imposing sanctions against Pacelli's counsel, Heroico M. Aguiluz.
B. Facts underlying the present appeal
1. The filing of the fraudulent transfer act complaint
On April 13, 2004, Jaffe filed in the Los Angeles Superior Court a complaint pursuant to the fraudulent transfer act (Jaffe v. Pacelli (Super. Ct. L.A. County, No. BC313713)). In the complaint and a subsequently filed first amended complaint, Jaffe sought to set aside multiple fraudulent transfers of real and personal property by Pacelli. Jaffe estimated that the properties transferred by Pacelli were worth millions of dollars.
2. The bankruptcy proceedings
On August 13, 2004, Pacelli filed a petition for relief with the bankruptcy court seeking chapter 7. The renewed judgment in Los Angeles Superior Court case No. NC016962 was the only debt listed in the bankruptcy petition.
On November 16, 2004, Jaffe filed an adversary proceeding in the bankruptcy court seeking a determination that Pacelli was not entitled to have her debt discharged in bankruptcy. In April 2005, the bankruptcy court denied Pacelli's motion to dismiss the adversary proceeding because Pacelli had taken many steps to defraud creditors in an effort to avoid satisfying the outstanding judgment. These included fraudulently transferring numerous properties and concealing assets. The clerk of the bankruptcy court entered Pacelli's default in the adversary proceeding for her failure to answer the petition.
In November 2005, the bankruptcy court entered default judgment against Pacelli based upon the following findings: (1) Pacelli refused to obey the bankruptcy court's order directing her to answer the complaint; (2) Pacelli refused to participate in discovery; (3) Pacelli fraudulently transferred and concealed property with the intent to hinder, delay or defraud Jaffe; (4) Pacelli concealed and failed to keep or preserve books and records from which her financial condition could be ascertained; (5) Pacelli knowingly and fraudulently made a false oath or account; and (6) Pacelli failed to explain the total loss of assets to meet her liabilities. The bankruptcy court concluded that *932 Pacelli lacked entitlement to have her debts discharged in bankruptcy because, among other reasons, she "fraudulently transferred and/or concealed property within one year before the filing of her Petition with the intent to hinder, delay or defraud Jaffe as a creditor."
Pacelli filed three unsuccessful appeals with the district court and one with the Ninth Circuit Court of Appeals challenging the bankruptcy court's rulings.
On August 22, 2006, the bankruptcy court dismissed Pacelli's case and closed Jaffe's adversary proceeding, thereby vacating the automatic stay and permitting further proceedings in state courts.[4]
In forcing the dismissal of Pacelli's bankruptcy case, in defending the bankruptcy court's actions on appeal, and in pursuing the adversary proceeding (hereinafter collectively referred to as the "bankruptcy proceedings"), Jaffe stated that his attorneys had expended 987.1 hours having a lodestar value of $274,495, and that he had incurred expenses of $27,878.91.
3. Further proceedings in Jaffe's fraudulent transfer action
After the bankruptcy stay was lifted, Jaffe attempted to litigate the fraudulent transfer case (case No. BC313713) in the Los Angeles Superior Court. However, Pacelli refused to engage in discovery. In December 2006, the trial court overruled Pacelli's demurrer to the first amended complaint, ordered Pacelli to respond to discovery and pay discovery sanctions, and ordered that the admissions contained in Jaffe's first request for admissions were deemed admitted. On February 13, 2007, the trial court struck Pacelli's answer as being both false and irrelevant.
On February 22, 2007, Pacelli appealed from the February 13, 2007, order. On April 9, 2007, we dismissed Pacelli's appeal as being taken from a nonappealable order.
4. Jaffe's motions for attorney fees and expenses pursuant to Section 685.040
On March 12, 2007, Jaffe turned back to this case, the case in which the October 7, 1996, judgment had been obtained against Pacelli. The motion *933 was brought pursuant to section 685.040. Jaffe sought reasonable and necessary attorney fees and costs incurred by him from the time the judgment was renewed on March 4, 2003, through February 28, 2007. In the motion and a subsequently filed motion for reconsideration, Jaffe sought an award for the attorney fees and costs incurred by him for the efforts expended in (1) prosecuting the fraudulent transfer case (L.A. Super. Ct. case No. BC313713); (2) defending against Pacelli's three appeals in this court; and (3) participating in the bankruptcy proceedings, that included resisting, and eventually obtaining dismissal of, Pacelli's bankruptcy petition. Jaffe contended he was entitled to such an award because all efforts were reasonable and necessary costs of enforcing the October 7, 1996, judgment, which had been renewed in March 2003.
On April 24, 2007, the trial court heard and ruled on Jaffe's motion. On June 4, 2007, the trial court ruled on Jaffe's reconsideration motion. As a result of these two rulings, the trial court issued orders awarding Jaffe the total sum of $575,666.76 ($534,571.25 for attorney fees and $41,095.51 for expenses) incurred in (1) prosecuting the fraudulent transfer action and (2) defending against the three appeals in this court. However, the trial court denied Jaffe's request for an award of attorney fees and costs for those efforts expended in the bankruptcy proceedings.
In issuing the April 24, 2007, and June 4, 2007, orders, the trial court stated that it had denied Jaffe's request with regard to the expenditures incurred in the bankruptcy proceedings because, "bankruptcy, that's [an] entirely different proceeding. It's not necessary for defending the judgment; it's a process whereby the debtor seeks relief from a judgment." Or stated differently, "opposition to the bankruptcy petition is not a reasonable cost. It's not directly defending the judgment." The trial court also stated, it "[s]eems to me that if the bankruptcy court found the matter frivolous, they could have awarded fees in the bankruptcy court."
On July 13, 2007, the trial court filed an order reflecting the amount of the awards and denying Jaffe's request for an award with regard to those expenses incurred by him in the bankruptcy proceedings.
Jaffe timely appealed from the April 24, 2007, June 4, 2007, and July 13, 2007, orders. Jaffe challenges only those parts of these postjudgment orders that denied his request for an award of attorney fees and expenses incurred in the bankruptcy proceedings. Pacelli has not appeared on appeal. We reverse *934 those parts of the orders addressed by Jaffe in this appeal. In all other respects we affirm the orders.[5]
III.
DISCUSSION
Jaffe raises one contention in this appeal. He contends that pursuant to section 685.040 he is entitled to an award of attorney fees and costs for the efforts he expended in combating Pacelli's bankruptcy attempt. We agree.
A. Standard of review
The usual standard of review for an award of attorney fees is abuse of discretion. (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1176 [39 Cal.Rptr.3d 788, 129 P.3d 1]; Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142 [118 Cal.Rptr.2d 569]; Olson v. Cohen (2003) 106 Cal.App.4th 1209, 1213 [131 Cal.Rptr.2d 620].) Here, however, the issue is whether the trial court had the authority pursuant to section 685.040 to issue such an award for efforts Jaffe expended in the bankruptcy proceedings. This is a legal issue which we review de novo. (Connerly, at p. 1176; Carver, at p. 142; Olson, at p. 1213.)
B. Discussion
(1) Generally, when a judgment is rendered in a case involving a contract that includes an attorney fees and costs provision, the "judgment extinguishes all further contractual rights, including the contractual attorney fees clause. [Citation.] Thus in the absence of express statutory authorization, . . . postjudgment attorney fees cannot be recovered." (Berti v. Santa Barbara Beach Properties (2006) 145 Cal.App.4th 70, 77 [51 Cal.Rptr.3d 364] (Berti).) However, "[f]ees authorized by statute do not present the same problem. A judgment does not act as a merger and a bar to statutory fees. [Citation.]" (Ibid.)
Section 685.040 is intended to address the "problem unique to a claim for postjudgment fees in actions based on contract." (Berti, supra, 145 Cal.App.4th at p. 77.) Section 685.040 is part of the Enforcements of Judgments Law (EJL; Code Civ. Proc, § 680.010 et seq.).
*935 The former version of section 685.040 provided that attorney fees were not collectible as costs of enforcing a judgment and the prevailing party could not collect attorney fees incurred in postjudgment enforcement efforts. (Imperial Bank v. Pim Electric, Inc. (1995) 33 Cal.App.4th 540, 556 [39 Cal.Rptr.2d 432]; see Chelios v. Kaye (1990) 219 Cal.App.3d 75, 80 [268 Cal.Rptr. 38]; Hambrose Reserve, Ltd. v. Faitz (1992) 9 Cal.App.4th 129, 132 [11 Cal.Rptr.2d 638], disapproved on other grounds in Trope v. Katz (1995) 11 Cal.4th 274, 292 [45 Cal.Rptr.2d 241, 902 P.2d 259].) In 1992, the Legislature amended section 685.040 to provide that if the underlying judgment included an award of contractually based attorney fees, the party seeking to enforce the judgment may obtain posttrial attorney fees incurred to enforce the judgment. (Stats. 1992, ch. 1348, § 3, p. 6707; Miller v. Givens (1994) 30 Cal.App.4th 18, 21 [37 Cal.Rptr.2d 1].) Pursuant to the current version of the statute, the award of postjudgment attorney fees is not based on the survival of the contract, but is instead based on the award of attorney fees and costs in the trial judgment. (Imperial Bank v. Pim Electric, Inc., supra, at pp. 557-558 & fn. 13.) This is in accord with the extinction by merger analysis providing that postjudgment rights are governed by the rights in the judgment and not by any rights arising from the contract. (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1766, 1770 [31 Cal.Rptr.2d 224].)
The last sentence of section 685.040 provides the authorization for trial courts to award postjudgment attorney fees as costs according to the following criteria: "Attorney's fees incurred in enforcing a judgment are included as costs collectible . . . if the underlying judgment includes an award of attorney's fees to the judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision (a) of Section 1033.5."[6]
(2) Thus, there are two requirements before a motion for an award of postjudgment attorney fees may be awarded as costs: (1) the fees must have been incurred to "enforce" a judgment; and (2) the underlying judgment had to include an award for attorney fees pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(10)(A), which provides that attorney fees may be awarded when authorized by contract.[7]
*936 Jaffe's request for attorney fees and costs is based upon the actions he took in the bankruptcy proceedings.[8] The determination of whether section 685.040 entitles Jaffe to attorney fees and costs incurred in the bankruptcy proceedings is not dependent upon the forum in which the expenses were incurred.
Circle Star Center, supra, 147 Cal.App.4th 1203, provides guidance to the issue before us even though it addressed a request for attorney fees expended in the bankruptcy court, but did not rely upon section 685.040. In Circle Star Center, a commercial tenant stopped paying rent and filed for bankruptcy. The landlord successfully moved to dismiss the bankruptcy case. Then, the landlord sued the tenant for breach of lease, defamation, and conversion and sought attorney fees based upon a provision in the lease. (Circle Star Center, supra, at pp. 1206-1207.) The trial court sustained the commercial tenant's demurrer to one cause of action and upon the tenant's motion, struck the landlord's claim for attorney fees expended in the bankruptcy court, concluding that the fees were expended in litigating primarily federal law issues. Eventually, most of the issues were resolved through settlement. The landlord appealed from the judgment challenging the rulings on the demurrer and motion to strike. (Id. at p. 1208.)
(3) Circle Star Center agreed with the landlord's argument that it had a "right to pursue the bankruptcy-related fees in state court as a matter of contract because dismissal of the bankruptcy case restored to the parties their preexisting rights and remedies." (Circle Star Center, supra, 147 Cal.App.4th at p. 1208.) Circle Star Center reasoned as follows: "When a case remains within the jurisdiction of the bankruptcy court, the rule is well settled: A party may not recover attorney fees incurred in litigating purely bankruptcy law issues unless the fees are authorized under a specific provision of the Bankruptcy Code. [Citation.]" (Id. at pp. 1208-1209, fn. omitted.) However, this principle does not preclude a party from pursuing the fees incurred in obtaining the dismissal of a bankruptcy proceeding in postbankruptcy, state court contract actions. (Id. at p. 1209.) The landlord's case was not against a bankruptcy estate and the commercial tenant's bankruptcy petition had been dismissed. After the bankruptcy was dismissed, the bankruptcy case was undone and the tenant's debts "restored to the status they were in before it filed for bankruptcy. . . ." (Ibid.) The state court contract action could proceed, the issue was "`subject to the general laws, unaffected by bankruptcy concepts.' [Citation.]" (Ibid., italics omitted.) Permitting the landlord "to seek contractual attorney fees incurred in securing the dismissal of [the commercial tenant's] bankruptcy proceeding does not interfere with the *937 uniformity required by federal bankruptcy law or risk conflating federal procedural remedies with state tort lawsuits. Nor does permitting the recovery of contractual attorney fees interfere with the bankruptcy court's control of its proceedings." (Id. at p. 1210.)
Circle Star Center also rejected the argument that "the threat of a state court award of contract-based attorney fees incurred in bankruptcy litigation might discourage some from seeking the protection of the bankruptcy court." (Circle Star Center, supra, 147 Cal.App.4th at p. 1210.) The appellate court stated that when fees incidental to a bankruptcy are awarded by a state court following a dismissal of a bankruptcy "or with the bankruptcy court's acquiescence that a lawsuit outside of bankruptcy may proceed[,]" "they are awarded as a matter of contract to a party who prevails in the state litigation, and they are awarded as an item of costs, not as a penalty. (Civ. Code, § 1717.)" (Circle Star Center, supra, at p. 1210, fn. omitted.) Thus, "potential liability for contract-based attorney fees does not have the same disincentive specter that tort liability and damages for misuse of bankruptcy processes would have." (Ibid.)
Circle Star Center then addressed the bankruptcy court's discretion to issue awards for attorney fees as sanction orders. (10 Collier on Bankruptcy (15th ed. rev. 2008) ¶ 9011.07, p. 9011-18 [bankruptcy court has discretion to impose sanctions pursuant to Fed. Rules Bankr.Proc., rule 9011, 11 U.S.C.].) The appellate court stated, "At oral argument [the commercial tenant] asserted that if [the landlord] wished to obtain attorney fees for its effort in securing dismissal of [the tenant's] bankruptcy it could have sought them in the bankruptcy court as a penalty or sanction pursuant to Federal Rules of Bankruptcy, rule 9011. But such an award is predicated on a showing that the assessed party has engaged in frivolous, unnecessary or meritless litigation, and such fees are awarded for the primary purpose of deterring future conduct rather than as compensation to the moving party. [Citation.]" (Circle Star Center, supra, 147 Cal.App.4th at p. 1210, fn. 7.)
The rationale of Circle Star Center is applicable to a request of an award pursuant to section 685.040. Once Pacelli's bankruptcy petition has been dismissed, Pacelli's debt is restored to the status it had before the filing of the bankruptcy petition. Jaffe's claims for attorney fees and costs are not against Pacelli's bankruptcy estate and Pacelli's debts are subject to state law unaffected by bankruptcy concepts. Jaffe's enforcement proceedings may proceed. Jaffe is entitled to request in state court an award of attorney fees and costs for those efforts exerted in the bankruptcy proceedings, even if the bankruptcy court had the discretion to make such an award as a penalty or sanction. Jaffe is seeking an award as a matter of statutory right as conferred by section 685.040, and not as a penalty. (Fed. Rules Bankr.Proc., rule 9011, *938 11 U.S.C; Circle Star Center, supra, at p. 1210, fn. 7; 10 Collier on Bankruptcy, supra, ¶ 9011.07, p. 9011-18 [bankruptcy court has discretion to impose sanctions pursuant to Fed. Rules. Bankr.Proc., rule 9011].)
(4) Further, Jaffe met the two requisite requirements of section 685.040.
First, the entire purpose of Pacelli's bankruptcy filing, and her related appeals, was to avoid paying the judgment which Jaffe sought to enforce. Pacelli sought to sabotage Jaffe's collection efforts. Jaffe filed the adversary proceeding seeking a determination that Pacelli was not entitled to have her debts discharged in bankruptcy. Had Pacelli been successful in the bankruptcy proceedings, the judgment in the superior court would have been extinguished and unenforceable by the bankruptcy court's discharge order. (See fn. 4, ante.) Jaffe's preventive measures were directly related to the continued enforceability of the superior court's judgment entered on October 7, 1996, as renewed on March 4, 2003. Jaffe's actions in the bankruptcy proceedings were necessary in order to maintain, preserve, and protect the enforceability of the judgment. Jaffe successfully blocked Pacelli's efforts to have the debt discharged by the bankruptcy court and Jaffe protected the judgment. Jaffe's actions in the bankruptcy proceedings are enforcement proceedings pursuant to section 685.040.
Second, the promissory note which gave rise to the underlying case and to the resulting judgment rendered against Pacelli included an attorney fees provision. The October 7, 1996, judgment contained an attorney fees award based on the contractual provision in the promissory note, pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(10)(A).
Thus, Jaffe is entitled pursuant to section 685.040 to recover reasonable attorney fees and necessary costs incurred in the bankruptcy proceedings to enforce the judgment. To conclude otherwise would encourage judgment debtors to file bogus bankruptcy petitions and potentially escape paying for the attorney fees and costs incurred by the creditors in combating those petitions.[9]
The trial court erred in denying Jaffe's request for attorney fees and costs expended in litigating the bankruptcy proceedings.
*939 IV.
DISPOSITION
The trial court's orders of April 24, 2007, June 4, 2007, and July 13, 2007, are reversed insofar as they denied Jaffe an award of attorney fees and costs for the efforts he expended in the bankruptcy proceedings. In all other respects, the orders are affirmed. The matter is remanded to the trial court for further proceedings consistent with this opinion. Jaffe is awarded costs on appeal.
Klein, P. J., and Kitching, J., concurred.
NOTES
[1] On our own motion, we have taken judicial notice of our three prior opinions.
[2] The judgment was also entered against Edgar J. Cruz and Mila A. Cruz. However, their debt subsequently was discharged in bankruptcy.
[3] Jaffe acts as the judgment creditor in his role as the sole remaining trustee of the estate of Edward Vernon Hamilton.
[4] "A dismissal [of a bankruptcy petition], unless otherwise ordered, `revests the property of the estate in the entity in which such property was vested immediately before the commencement of the case under this title.' (11 U.S.C. § 349(b)(3).)" (Circle Star Center Associates, L.P. v. Liberate Technologies (2007) 147 Cal.App.4th 1203, 1209 [55 Cal.Rptr.3d 232] (Circle Star Center), italics added.) "In contrast, in the more usual scenario when a bankruptcy is discharged after the bankruptcy proceedings are completed, the debtor's debts are usually discharged and the proceeds of any nonexempt assets divided among creditors. [Citation.]" (Id. at p. 1209, fn. 6.)
[5] Orders denying postjudgment motions for an award of attorney fees and expenses incurred in enforcing a judgment and a renewed judgment are appealable. (Code Civ. Proc., § 904.1, subd. (a)(2); Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 648 656 [25 Cal.Rptr.2d 109, 863 P.2d 179].)
[6] Section 685.040 reads: "The judgment creditor is entitled to the reasonable and necessary costs of enforcing a judgment. Attorney's fees incurred in enforcing a judgment are not included in costs collectible under this title unless otherwise provided by law. Attorney's fees incurred in enforcing a judgment are included as costs collectible under this title if the underlying judgment includes an award of attorney's fees to the judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision (a) of Section 1033.5." (Italics added.)
[7] Code of Civil Procedure section 1033.5, subdivision (a)(10)(A) provides in part that "[t]he following items are allowable as costs under [Code of Civil Procedure] Section 1032: [¶] . . . [¶] . . . Attorney fees, when authorized by . . . [¶] . . . [c]ontract."
[8] As noted above, we collectively refer to the "bankruptcy proceedings" to include those steps taken by Jaffe to obtain a dismissal of Pacelli's bankruptcy petition and all related appeals, including those to the district court and Ninth Circuit Court of Appeals, as well as those taken in the adversary proceeding filed by Jaffe.
[9] By our opinion we take no position as to whether Jaffe is entitled to all amounts claimed for the efforts expended in the bankruptcy court proceedings. It will be for the trial court on remand to determine if all expenses claimed by Jaffe were reasonable and necessary. We also note that the present case does not involve a situation in which the bankruptcy court addressed a request for attorney fees prior to the creditor making the same request in the superior court. (Cf. Chelios v. Kaye, supra, 219 Cal.App.3d at p. 78 & fn. 2.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375882/ | 683 S.E.2d 104 (2009)
ALLISON
v.
The STATE.
No. A09A0974.
Court of Appeals of Georgia.
August 5, 2009.
*105 James C. Bonner Jr., Athens, Sheueli C. Wang, for Appellant.
Lee Darragh, Dist. Atty., Lindsay H. Burton, Asst. Dist. Atty., for Appellee.
*106 MIKELL, Judge.
After a jury trial, Steve Lamar Allison was convicted of three counts of felony theft by receiving and one count of misdemeanor theft by receiving. He pled guilty to possession of a gun by a convicted felon. Allison received an aggregate sentence of ten years to serve and ten years probation. On appeal, Allison challenges the sufficiency of the evidence and the denial of his motion to suppress. We affirm.
On appeal from a criminal conviction, we view the evidence in a light most favorable to the 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 offense beyond a reasonable doubt.[1]
So viewed, the record shows that the items that were the subject of the charges filed against Allison were a Lincoln welder (Count 1), which was the property of a construction company, a 12-gauge shotgun (Count 2), which was the property of Margie Abernathy, a Makita saw (Count 3), which belonged to Eric Ferguson, and a road sign (Count 4), which was the property of the Georgia Department of Transportation ("GDOT"). Eric Ferguson testified that in February 2005, he reported that his Makita saw had been stolen; that he had not given Allison permission to have the saw; that he had worked with Allison before and had been engaged to Allison's daughter, Stacy; and that Allison had stolen other items from him after Ferguson and Stacy ended their relationship. Ferguson testified that he discovered that his saw was missing after receiving a phone call from Janice Thompson, Allison's ex-wife, and Stacy, who stated that the saw was on their property. Even though Thompson and Allison had been married and divorced twice, they lived in the same house. Ferguson acknowledged that he had previously lived with Allison and his family for a period of time but testified that he had not left any of his property there.
Janice Thompson testified that on February 7, 2005, she went to the Hall County Sheriff's Department and reported that Allison was on drugs, that items were showing up at their house, that people were entering and exiting the house during the night, and that she did not know how to handle the situation. Thompson told the police that Allison had a road sign, which he told her he wanted to collect, and a welder, which Allison said he had gotten from another man. Thompson testified that Allison had guns in his possession, which he told her belonged to Margie Abernathy, but he did not explain how he acquired them. However, Thompson also testified that Abernathy's daughter asked Allison to come get the guns and told him he could have all but one of them.
Richard Alford testified that he and Allison worked for the same employer in 1997; that Allison worked for him for one day in 2004; that a dispute arose because Allison did not want to be paid under his own name and social security number; that some time later, he contacted the police to report that a welder had been stolen from his shop; and that the welder was found by police at Allison's house.
Investigator Brian Henderson of the Hall County Sheriff's Office testified that he obtained a search warrant to search Allison's residence after talking with Thompson, who was a confidential informant. The affidavit given in support of the search warrant provides that Thompson was considered to be a reliable informant and that she indicated that Allison was in possession of methamphetamine and a stolen engine joist.
The search was executed on February 7, 2005. The residence searched was a single family, one-story home on a slab, with a back yard. There was a modular shed located approximately 50 feet from the residence. Henderson testified that they seized a welder, a firearm, drug paraphernalia, and a street sign. The firearm, which was sitting against a wall, was wrapped in a piece of fabric and secured by duct tape. The engine hoist was located and returned to its owner, and no charges were filed in connection with it. Henderson testified that the officers *107 were told that Allison sold the Makita saw to Terry Bennett for $100. The officers went to Bennett's house, and Bennett admitted that he bought the saw from Allison for $100. The Makita saw was taken from Bennett's house and returned to Eric Ferguson, after he confirmed that it was his. The officers located drug paraphernalia in Allison's bedroom and read him his Miranda rights. Allison admitted that the paraphernalia belonged to him but refused to answer any other questions.
1. We first address Allison's argument that his motion to suppress should have been granted because the warrant was not particular enough. Allison concedes that the search warrant sufficiently described the place to be searched but argues that it did not give the officers explicit authority to seize "anything" particularly. We disagree.
In Reaves v. State,[2] our Supreme Court addressed the particularity requirement for warrants. As explained by the Court, warrants which contain residual clauses limiting the items to be seized to those relevant to the crimes identified in the warrant are sufficiently particular and do not authorize a general search in violation of the Fourth Amendment.[3] The Court stated that "[a]lthough a warrant cannot leave the determination of what articles fall within its description and are to be seized entirely to the judgment and opinion of the officer executing the warrant, the degree of specificity in the description is flexible and will vary with the circumstances involved."[4] Specifically, "the particularity requirement only demands that the executing officer be able to identify the property sought with reasonable certainty."[5]
In the instant case, the warrant provided, in pertinent part, as follows:
THERE IS NOW BEING CONCEALED CERTAIN PROPERTY, NAMELY: methamphetamine and other items related to the use of methamphetamine including needles, spoons, and baggies, stolen property, namely a stolen engine hoist and documentary materials indicating ownership and/or occupancy of said premises.
WHICH ARE EVIDENCE OF THE CRIME OF: possession of methamphetamines [sic] and theft by receiving stolen property....
YOU ARE HEREBY COMMANDED IN THE NAME OF THE STATE OF GEORGIA to enter, search and seize, ... the person, or any other person found on said premises, or property described above including all curtlidge [sic], outbuildings and vehicles that may reasonably be involved in the commission of the crime for which this search warrant is issued, and the premises or property described above, and any other buildings located thereon... and to make diligent search for the property.
We find that the warrant did not violate the particularity requirement.
Allison contends that the seizure of the shotgun, welder, and street sign was outside the scope of the warrant. Although the only item listed in the warrant was the engine joist, police officers are not compelled to overlook relevant evidence simply because it is not listed in the search warrant, and the fact that they seize items that are not listed does not convert the warrant into a general *108 warrant.[6] Henderson testified at the suppression hearing that the welder was in plain view in the outside storage building. Henderson had information prior to the execution of the warrant that a welder had been stolen and testified that the officers actually confirmed that it was the stolen welder before seizing it because it was a large piece of equipment. The gun was also in plain view. Although it was covered with fabric, Henderson testified that he could tell it was a weapon and knew that Allison was a convicted felon.
"[O]fficers are not required to ignore that which is in plain view and readily observable."[7] Allison did not argue below that the seizure of the street sign exceeded the scope of the search warrant. Although we find that it did not because it, too, was in plain view, this argument is waived. "[I]nasmuch as we are a court for the correction of errors, we do not consider issues which were not raised below and ruled on by the trial court."[8] Accordingly, this enumerated error fails.
2. Allison challenges the sufficiency of the evidence as to his convictions. The crime of theft by receiving stolen property occurs when one "receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner."[9] Allison argues that there was no evidence that he knew the items at issue were stolen. While "[s]cienter is an essential element of the crime of theft by receiving stolen property, [it] may be proved by circumstantial evidence or inferred from circumstances which would excite the suspicions of an ordinarily prudent man."[10] We address each count separately.
(a). Count 1Welder. According to the testimony of Richard Alford, Allison saw the welder in the shop at R & B Construction on the day that Alford contacted Allison to work for him. After their dispute, Alford noticed that the welder was missing and reported it stolen. Alford testified that he could identify the machine based upon the color, size, design, and the stickers that were on the machine when it was taken from his shop. The police found the welder in the shed behind Allison's home. Ferguson testified that Allison stored items in the shed. Terry Bennett testified that he believed that all of the items in the shed belonged to Allison. Thompson testified that when she asked Allison about the welder, he said that he needed it and had gotten it from a former co-worker.
Mere proof of possession, even though in the absence of an explanation, is not enough evidence to support a verdict of guilty of theft by receiving stolen property, but such possession, coupled with facts and circumstances from which knowledge may be inferred that the property so received was stolen is sufficient to support the verdict.[11]
Based on this testimony, the jury could infer that Allison knew or should have known that the welder was stolen because Alford testified that Allison had seen the welder at his shop; therefore, he knew that it belonged to Alford. But Allison told Thompson that he had obtained the welder from "another man" when she asked why it was in his shed. Therefore, the evidence was sufficient to enable a rational trier of fact to find Allison guilty on this count.
(b). Count 2Shotgun. Margie Abernathy testified that she knew Allison and Thompson because they helped her and her husband operate a food ministry. After the death of Abernathy's husband, Allison approached Abernathy about purchasing *109 some of her husband's guns, but she was not ready to sell them. Abernathy noticed that the guns, which she kept in an outside storage building, were missing in December 2004, and she reported the theft to the police. Abernathy recalled that she received a phone call from an investigator asking her to come to identify a gun found at Allison's house. Abernathy testified that the gun found in Allison's shed was one of her husband's guns.
Officer Heath Migliore, who assisted in the execution of the search warrant, testified that Abernathy's son also identified the gun as one owned by his father. Migliore further testified that two of the other guns stolen from Abernathy were recovered from a gun shop. An employee from the gun shop testified that Allison sold them two guns. The serial numbers on the two guns from the gun shop matched the serial numbers of two of the guns that Abernathy reported as stolen. The gun shop receipt was found during the execution of the search warrant. Even though there was no evidence that Allison attempted to pawn the weapon found on his property, the evidence sufficiently established that the seized gun belonged to Abernathy, and that Allison pawned two other guns, also owned by Abernathy. Based on the evidence presented, the jury could infer Allison's guilt.[12]
c. Count 3Saw. Based on the evidence in the record that Allison had previously stolen items from Ferguson and that Allison sold Ferguson's saw to Barnett for $100, the jury could infer that Allison knew the saw was stolen.
Count 4Street Sign. Larry Gregory of the GDOT testified that no individual, including Allison, had been given permission to take down or possess the street sign. Thompson testified that Allison told her he wanted to keep the street sign. This evidence was sufficient to enable a rational trier of fact to find Allison guilty of theft by receiving stolen property.
Judgment affirmed.
JOHNSON, P.J., and ELLINGTON, J., concur.
NOTES
[1] (Citations omitted.) Al-Amin v. State, 278 Ga. 74(1), 597 S.E.2d 332 (2004).
[2] 284 Ga. 181, 664 S.E.2d 211 (2008).
[3] Id. at 185-186(2)(d), 664 S.E.2d 211. See also Smith v. State, 274 Ga.App. 106, 110(3), 616 S.E.2d 868 (2005) (search warrant's general description of evidence of crimes listed therein was sufficient); Maddox v. State, 272 Ga.App. 440, 444(2), 612 S.E.2d 484 (2005) (taken as a whole, search warrant was sufficiently specific where it authorized the seizure of all items contained within a specified motel room). But see United States v. George, 975 F.2d 72, 75-77(I)(A) (2d Cir. 1992) (authorization to search for evidence of any crime is overly broad and constitutes a general warrant, which is prohibited).
[4] (Citation and punctuation omitted.) Reaves, supra at 184(2)(d), 664 S.E.2d 211.
[5] (Citation omitted.) Id. at 187(2)(d), 664 S.E.2d 211. Compare Daniels v. State, 278 Ga.App. 332, 336(1)(b), 629 S.E.2d 36 (2006) ("statement in the affidavit that `the affiant or designee will determine what information constitutes evidence of the offenses' did not convert the search warrant into a general warrant") (punctuation omitted).
[6] Walsh v. State, 236 Ga.App. 558, 560(1)(b), 512 S.E.2d 408 (1999).
[7] (Citation omitted.) Bryan v. State, 137 Ga.App. 169, 170(1)(D), 223 S.E.2d 219 (1976).
[8] (Citation omitted.) Mann v. State, 259 Ga.App. 553, 554(2), 578 S.E.2d 238 (2003).
[9] OCGA § 16-8-7(a).
[10] (Citation and punctuation omitted.) Dunbar v. State, 228 Ga.App. 104, 107(1)(b), 491 S.E.2d 166 (1997).
[11] (Citations and punctuation omitted.) Perry v. State, 180 Ga.App. 273, 274, 349 S.E.2d 25 (1986).
[12] See generally Leachman v. State, 226 Ga.App. 98, 100, 485 S.E.2d 587 (1997) (evidence that defendant immediately disposed of guns at a financial loss to himself sufficiently established the guilty knowledge element of theft by receiving stolen property). See also Dunbar, supra ("[r]ecent possession of stolen property, in conjunction with other evidence, allows the jury to infer knowledge of the theft of the property") (citations omitted). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1375890/ | 683 S.E.2d 581 (2009)
BROWN
v.
The STATE.
No. S09A1073.
Supreme Court of Georgia.
September 28, 2009.
Little & Crumly, Samuel F. Little, Jr., Atlanta, for appellant.
Gwendolyn Keyes Fleming, Dist. Atty., Leonora Grant, Asst. Dist. Atty., Thurbert E. Baker, Atty. Gen., Christopher R. Johnson, Asst. Atty. Gen., for appellee.
HINES, Justice.
A jury found Andrew Kenyattie Brown guilty of felony murder and aggravated assault in connection with the fatal stabbing of his estranged wife, Kimberly James. Brown appeals his conviction for felony murder, challenging the Georgia "statutory homicide scheme" and the exclusion of certain expert testimony, and claiming that the cumulative effect of the alleged errors denied him a fair trial. For the reasons that follow, we affirm.[1]
*582 The evidence construed in favor of the verdicts showed that Brown met James in the workplace in 2004, and the two began a romantic relationship. Brown moved in with James and her four children. The pair married in February of 2006; however, soon the relationship began to deteriorate, and the couple had repeated heated arguments. During one argument, Brown drew a knife on James, telling her that "he was going to kill her" and that "if he couldn't have her, nobody else will." Brown moved out of James's residence, but Brown continued to contact James and wanted to move back into her home. Brown telephoned James at her place of work numerous times each day. James attempted to avoid Brown's visits and telephone calls.
On the morning of August 28, 2006, James left a bus stop to walk to work. Brown had been waiting at the bus stop and approached James with a rose, a greeting card, and a knife. James told Brown that she wanted a divorce and that she was seeing someone else. Brown began to physically assault James and the two struggled, falling off the sidewalk and into a grassy ditch by the roadside. Brown stabbed James with the knife at least twelve times, penetrating her carotid artery on the left side; James died from a loss of blood from the stab wounds to her neck. A passing motorist witnessed Brown attacking James and telephoned 911. Brown saw the eyewitness and the eyewitness observed Brown "just walk away with a nonchalant attitude . . . there was no remorse."
At trial, Brown admitted that he stabbed James, stating that he did so "because she said she wanted a divorce. And, she said she was seeing somebody else." Brown stated that he "was angry and depressed and everything," "didn't want to lose [James]," and that he "wanted her back." On cross-examination, Brown testified that he tried to avoid stabbing his wife in the face, that he "was just trying to stab her in the neck, that's all." When asked about when he "snapped," Brown replied "I did not snap. I was angry. I didn't snap"; he reiterated that he chose where to stab the victim.
1. Initially, Brown asserts that the trial court erred in failing to declare the murder and voluntary manslaughter statutes, OCGA §§ 16-5-1 and 16-5-2, unconstitutional on several bases.[2] However, Brown first raised his constitutional challenge in his amended motion for new trial. A criminal defendant may not initiate a constitutional attack against a statute in a motion for a new trial because such a challenge must be made at the first opportunity, and it is too late to do so after a guilty verdict has been returned by the jury. Perez-Castillo v. State, 275 Ga. 124, 125, 562 S.E.2d 184 (2002). Consequently, this challenge must be deemed waived on appeal. Id.
2. Brown contends that the trial court denied him the right to present a defense by erroneously excluding "teaching" testimony by psychologist Webb, who performed an evaluation of Brown at Brown's request, regarding Brown's depression. Brown argues that his depression was clearly a factor in his actions, and that by preventing Webb from so testifying, the trial court effectively coerced Brown into testifying on his own behalf in order to address his "behavior and mens rea."
The admission or exclusion of expert testimony is a matter within the sound discretion of the trial court, and the trial court's determination will not be disturbed absent a clear abuse of that discretion. Riley v. State, *583 278 Ga. 677, 683(4), 604 S.E.2d 488 (2004); Johnson v. State, 272 Ga. 254, 255, 526 S.E.2d 549 (2000). No such abuse of discretion can be shown by the exclusion of Webb's testimony.
Brown never raised the defenses of insanity, delusional compulsion or mental incompetency. In fact, Webb's written report, following the evaluation of Brown, stated that Brown was then competent to stand trial, that there was no evidence that Brown was not able to determine right from wrong at the time of the killing, and that there was no evidence that Brown was acting on the basis of a delusional compulsion. Indeed, as already noted, at trial, Brown adamantly denied that he had "snapped," and recounted how he tried to methodically inflict the victim's injuries. Brown sought to introduce evidence of his depression at the time of the attack as a circumstance for the jury to consider in deciding whether he had the intent to kill the victim. But, any depression suffered by Brown was not a legal defense to the murder; the expert evidence was irrelevant to the state of mind necessary to determine Brown's guilt in light of the absence of an insanity or other relevant mental health defense. Paul v. State, 274 Ga. 601, 603(2), 555 S.E.2d 716 (2001); compare Turpin v. Lipham, 270 Ga. 208, 219, 510 S.E.2d 32 (1998) (expert assistance needed in penalty phase of death penalty trial for jury to understand effect mental problems might have had on defendant's commission of murder). Thus, the exclusion of Webb's testimony did not deny Brown the right to a defense nor compel him to take the stand in order to defend himself.
3. Brown urges that even if this Court concludes that each contended individual error enumerated above is insufficient to warrant reversal, the cumulative effect of the alleged errors amounts to a denial of due process. But, Brown has failed to demonstrate any error by the trial court. See Divisions 1 and 2, supra. Moreover, with regard to asserted errors by the trial court, a cumulative error rule is not applied. Hargett v. State, 285 Ga. 82, 88(6), 674 S.E.2d 261 (2009).
4. The evidence was sufficient to enable a rational trier of fact to find Brown guilty beyond a reasonable doubt of the felony murder of Kimberly James. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
Judgment affirmed.
All the Justices concur.
NOTES
[1] The stabbing occurred on August 28, 2006. On November 20, 2006, a DeKalb County grand jury indicted Brown for malice murder, felony murder while in the commission of aggravated assault, and aggravated assault. Brown was tried before a jury April 2-4, 2007, and was found guilty of felony murder and aggravated assault. The jury was unable to reach a verdict on the malice murder count, and an order of nolle prosequi on that charge was entered on April 13, 2007. On April 4, 2007, Brown was sentenced to life in prison for felony murder; the aggravated assault merged for the purpose of sentencing. A motion for new trial was filed on May 2, 2007, and an amended motion for new trial was filed on January 15, 2009. The motion for new trial, as amended, was denied on January 28, 2009. A notice of appeal was filed on February 26, 2009, and the case was docketed in this Court on March 20, 2009. The appeal was submitted for decision on May 11, 2009.
[2] Brown urges that the statutes should have been found unconstitutional "on grounds of abridgment of the right to present a defense, which challenged the State statutory homicide scheme because of a mens rea gap between malice murder and felony murder and manslaughter." He bemoans that Georgia, unlike some other jurisdictions, does not designate by varying degrees homicides classified as murder, that "no middle ground exists" between murder and voluntary manslaughter, that the statutory affirmative defenses fail to "provide for a meaningful alternative sentencing range for homicides involving diminished capacity," and that "the current statutory scheme also violates constitutional protections against cruel and unusual punishment in that it requires a minimum of life imprisonment and permits the death penalty in cases that would otherwise be second-degree murder." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2573251/ | 210 P.3d 945 (2009)
228 Or. App. 756
STATE
v.
GRAY.
Court of Appeals of Oregon.
May 20, 2009.
Affirmed without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/458637/ | 773 F.2d 166
UNITED STATES of America, Plaintiff-Appellee,v.Paul R. BONANSINGA, Defendant-Appellant.
No. 85-1119.
United States Court of Appeals,Seventh Circuit.
Argued June 18, 1985.Decided Sept. 18, 1985.
Steven J. Rosenberg, Steven J. Rosenberg, Chicago, Ill., for defendant-appellant.
Patrick J. Chesley, Asst. U.S. Atty., Gerald D. Fines, U.S. Atty., Springfield, Ill., for plaintiff-appellee.
Before CUMMINGS, Chief Judge, and BAUER and EASTERBROOK, Circuit Judges.
BAUER, Circuit Judge.
1
Defendant, Paul Bonansinga, was indicted in a twenty-seven count indictment stemming from alleged abuse of his positions as a member of the City Council of Springfield, Illinois and as the Commissioner of the Department of Public Property, commonly known as City Water, Light & Power (CWLP). Defendant was tried before a jury in the Central District of Illinois, found guilty of Counts 22, 23 and 24, involving mail fraud, 18 U.S.C. Sec. 1341, and acquitted of the other charges. The district judge sentenced defendant to a term of eighteen months imprisonment on Count 22 and suspended the imposition of sentence on the other two counts, ordering that defendant be placed on three years concurrent probation after the end of his parole supervision on Count 22. The district court also imposed a $1,000 fine for each of the three counts and ordered defendant to pay $1,685 in restitution as a special condition of probation. We affirm the conviction on Counts 23 and 24, reverse the conviction on Count 22, and remand for a new sentencing determination.
2
The three counts that form the basis of defendant's conviction all charged that defendant's accomplices, acting for defendant, took automotive supplies that were provided for the use of CWLP by the Springfield Auto Supply Company (Sasco) and S-M-W Auto Supply (SMW). Count 22 charged that defendant improperly received $985 worth of auto supplies. In July 1981 at defendant's request, James Hankins, who worked for CWLP and was a close friend of defendant, went to Sasco to pick up the supplies, which had been pre-ordered. Hankins signed invoices for these supplies but delivered them to defendant for defendant's own use, rather than to CWLP. The bill for these supplies, which Sasco mailed to CWLP on July 25, 1981, is the mailing alleged in Count 22. The city never paid Sasco for these supplies.
3
Count 23 charged that Patrick Butler, a long-time friend of defendant who was hired to various supervisory positions at CWLP after defendant's election, picked up supplies at the CWLP garage on several occasions during 1981 and 1982 and delivered them to defendant for defendant's own use. The check to pay for these supplies that CWLP mailed to SMW on December 21, 1981, was the mailing asserted to form the jurisdictional basis for this count.
4
Count 24 charged defendant with receiving $341.92 worth of auto supplies, picked up from SMW by James Hankins and Denton Meyer, another CWLP employee. The check mailed by the city to pay the four vouchers submitted by SMW for these items is the mailing alleged in this count.
5
To prove mail fraud, the government must establish: (1) that defendant participated in a scheme to defraud; and (2) that defendant caused the mails to be used in furtherance of the scheme. See United States v. Brooks, 748 F.2d 1199, 1202 (7th Cir.1984); United States v. Brack, 747 F.2d 1142, 1146 n. 3 (7th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1193, 84 L.Ed.2d 339 (1985). Defendant first argues that the mailings that the government proved do not satisfy part two of the government's required showing.
6
The mailings in the instant case were between CWLP and the auto supply companies, none of whom were part of defendant's scheme, except to the extent of being victimized by it. However, mailings between innocent parties can support a mail fraud conviction. See United States v. Lindsey, 736 F.2d 433 (7th Cir.1984); United States v. Dick, 744 F.2d 546 (7th Cir.1984); United States v. Wormick, 709 F.2d 454 (7th Cir.1983); United States v. Galloway, 664 F.2d 161 (7th Cir.1981), cert. denied, 456 U.S. 1006, 102 S.Ct. 2296, 73 L.Ed.2d 1300 (1982). "It is not necessary that the scheme contemplate the use of the mails as an essential element." Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 362-363, 98 L.Ed. 435 (1954). "Where one does an act with knowledge that the use of the mails will follow in the ordinary course of business, or when such use can be reasonably foreseen, even though not actually intended, then he 'causes' the mails to be used." Id. at 8-9, 74 S.Ct. at 362-363. After defendant's friend, Hankins, picked up the supplies from Sasco, he signed the invoices that are charged in Count 22. It was forseeable that the mails would be used to send these invoices to CWLP. Similarly, when defendant asked Hankins and Meyer to pick up auto supplies at SMW, it was forseeable that CWLP would use the mails to pay for these items by check as charged in Count 24. Count 23, in contrast, is closer to simple theft than the other counts. The items involved in this count were taken by defendant's accomplices from the CWLP garage, not from the sellers of the goods. The mailing alleged was a check sent after the materials had been delivered to CWLP but before some (but not all) of the goods had been expropriated for defendant. Nonetheless, at the time that they placed their orders at the CWLP garage, defendant's aides knew that the supplies that defendant had requested were going to be used by defendant and not CWLP. There was testimony that many of the items paid for by the check alleged in this count were not ordinarily on hand at CWLP. Therefore, defendant's scheme was the cause of the mailing alleged in this count, and the fact that the supplies were picked up from the CWLP garage rather than directly from SMW is immaterial. It is clear that defendant "caused" all of the mailings alleged in the indictment. The question remains, however, whether these mailings were "in furtherance" of the scheme to defraud.
7
Mailings between two innocent parties, as alleged in this case, are distinct from those found in the majority of mail fraud cases, which involve a mailing between a defendant (or his accomplices) and the intended victim. The mailings alleged in this case can be distinguished from those cases in which the mailing provided funds for further kickbacks to the defendant, United States v. Primrose, 718 F.2d 1484 (10th Cir.1984), cert. denied, --- U.S. ----, 104 S.Ct. 2352, 80 L.Ed.2d 825 (1984), or the source of the booty for the scheme, United States v. Cavale, 688 F.2d 1098 (7th Cir.1982), cert. denied, 459 U.S. 1018, 103 S.Ct. 380, 74 L.Ed.2d 513; 459 U.S. 1208, 103 S.Ct. 1199, 75 L.Ed.2d 441 (1983); United States v. Stanford, 589 F.2d 285 (7th Cir.1978), cert. denied, 440 U.S. 983, 99 S.Ct. 1794, 60 L.Ed.2d 244 (1979). Nor can it be said that the mailings in this case served to "lull" the auto supply dealers into a false sense of security. See United States v. Sampson, 371 U.S. 75, 78, 83 S.Ct. 173, 174, 9 L.Ed.2d 136 (1962); United States v. Kuna, 760 F.2d 813 (7th Cir.1985). That theory has been applied only to mailings from one of the schemers, and to the extent that SMW received checks from CWLP paying for the merchandise (as charged in counts 23 and 24), there was no need to lull it because it ceased being a victim.
8
The Supreme Court has considered the sufficiency of mailings between innocent parties under 18 U.S.C. Sec. 1341. In United States v. Maze, 414 U.S. 395, 400-01, 94 S.Ct. 645, 648-49, 38 L.Ed.2d 603 (1974), the mailing, by a defrauded hotel, of invoices for hotel services that respondent had obtained with a stolen credit card was held to be insufficient to support a mail fraud conviction. Similarly, in Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960), the Court struck down the conviction of members of a school district's Board of Trustees who fraudulently obtained gasoline and other filling station products and services for themselves with the district's credit card. The mailings charged were two invoices mailed by the oil company and, in a separate count, the district's check to the oil company paying one of the invoices. The Court stated, "[t]he scheme in each case had reached fruition when ... the persons intended to receive the [goods and services] had received them irrevocably. It was immaterial to them, or to any consummation of the scheme, how the [oil company] * * * would collect from the [District]. It cannot be said that the mailings in question were for the purpose of executing the scheme as the statute requires." Id. at 393, 80 S.Ct. at 1184 [quotation marks omitted, brackets in the original]. Finally, in Kann v. United States, 323 U.S. 88, 65 S.Ct. 148, 89 L.Ed. 88 (1944), the Court held that the depositing bank's mailing to the drawee bank, of a check obtained through petitioner's fraudulent scheme for diverting funds to a dummy corporation, was insufficient under 18 U.S.C. Sec. 1341.
9
This court has written that the teaching of Maze and Kann is that mailings "directed to the end of adjusting accounts between victims of a scheme after the scheme has reached fruition cannot support a mail fraud conviction." United States v. Wormick, 709 F.2d 454, 462 (7th Cir.1983). The mailings in the instant case were directed toward adjusting accounts between two victims. Thus, the pertinent question in this case is whether the scheme had reached fruition at the time of the charged mailings. We conclude that it had not.
10
A mailing will support a conviction even if it follows the defendant's fraudulent acts, United States v. Gorny, 732 F.2d 597, 601-2 (7th Cir.1984); United States v. Galloway, 664 F.2d 161, 164-65 (7th Cir.1981), cert. denied, 456 U.S. 1006, 102 S.Ct. 2296, 73 L.Ed.2d 1300 (1982), or occurs after the schemers have obtained the victim's money or goods, United States v. Sampson, 371 U.S. 75, 80, 83 S.Ct. 173, 175, 9 L.Ed.2d 136 (1962). Fraudulent schemes cannot often be easily dissected into discrete parts. In United States v. Lindsey, 736 F.2d 433 (7th Cir.1984), the appellant was convicted of causing the "salvage value" designation to be deleted from the title before the wholesale sale of used automobiles, and in United States v. Galloway, the appellant was convicted of rolling back the odometer readings on automobiles before their wholesale sale. The mailings in both cases occurred after the appellants had obtained money for the cars, and consisted of title documents mailed from, and to, respectively, the Illinois Secretary of State and the Wisconsin Department of Transportation. The title documents were necessary for the retail customers to perfect title to the automobiles.1 In Lindsey and Galloway, we noted that any failure of title would hurt the appellants' dealings with auto auctions and wholesalers in the future; thus the scheme did not reach fruition until the retail customers had perfected title. Similarly, in United States v. Wormick, 709 F.2d 454, 462 (7th Cir.1983), we held that a check from a defrauded insurance company to an innocent car rental agency was in furtherance of the scheme to defraud. Defendant, a police officer, was convicted of submitting false accident and theft reports to assist others in filing false claims to their insurance company. The insurance company check was a sufficient mailing because it helped to conceal the fraud. Had no one involved in the purported accident temporarily rented a replacement car, the insurance company might have become suspicious. In the instant case, it is quite likely that CWLP orders were backed by the full faith and credit of the city, and the record shows that there were many auto dealers in Springfield. Nonetheless, the Count 23 check mailed by CWLP for goods defendant's co-workers took from the CWLP garage furthered the scheme by smoothing the relationship between CWLP and SMW and making it easier for Hankins and others to get supplies from SMW in the future. In addition, had SMW not been paid on December 21, 1981, it would have made inquiries and possibly triggered an investigation. The payment helped to conceal defendant's fraud, and allowed him to continue taking goods from the CWLP garage throughout 1982.
11
Count 24 presents a closer case. The check in this count was mailed on February 3, 1983. Defendant is not charged with having taken any auto supplies in 1983, and argues that the scheme had reached fruition by that date. However, defendant did not simply defraud the city of property that it owned; the indictment alleges that he also deprived citizens of his loyal, honest, and faithful service, free from the influence of corruption, collusion and dishonesty. See United States v. Lea, 618 F.2d 426, 429 (7th Cir.), cert. denied, 449 U.S. 823, 101 S.Ct. 82, 66 L.Ed.2d 25 (1980); United States v. Bush, 522 F.2d 641, 646-49 (7th Cir.1975), cert. denied, 424 U.S. 977, 96 S.Ct. 1484, 47 L.Ed.2d 748 (1976); United States v. Isaacs, 493 F.2d 1124, 1149-1150 (7th Cir.1974), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974). Not only did defendant take auto supplies, there was evidence that he extorted $32,000 in kickbacks from a CWLP coal supplier, used CWLP materials and labor to construct a garage at his residence, and took an orbital sander purchased by CWLP. The indictment charges that this corruption persisted through the date of defendant's indictment in July 1984. In particular, James Faulkner testified that he approached Hankins in the spring of 1983 about getting his wife a job with CWLP, and eventually offered to pay $5,500. According to Hankins, Falkner paid $5,500 cash in May 1983, and Hankins, in turn, gave $4,000 to defendant. Faulkner's wife was later hired. Defendant schemed to deprive the citizens of Springfield of their right to faithful service free from the influence of corruption. If any part of his dishonesty came to light, the entire scheme might fail. While it is true that the jury acquitted defendant of selling jobs, this does not mandate the conclusion that defendant's overall scheme had reached fruition by 1983. See United States v. Chappell, 698 F.2d 308, 310 (7th Cir.) cert. denied, 461 U.S. 931, 103 S.Ct. 2095, 77 L.Ed.2d 304 (1983). The jury might have been exercising it's "historic power of lenity." United States v. Carbone, 378 F.2d 420, 423 (2d Cir.), cert. denied, 389 U.S. 914, 88 S.Ct. 242, 19 L.Ed.2d 262 (1967). Juries frequently convict on some counts but acquit on others because of compassion or compromise. United States v. Fox, 433 F.2d 1235, 1238 & n. 22 (D.C.Cir.1970).
12
In addition, the present case is strikingly similar to United States v. Dick, 744 F.2d 546 (7th Cir.1984), in which a mailing between two victims of a scheme that ultimately determined who bore the loss was held to be sufficient to support a mail fraud conviction. The defendant was an attorney for Heritage Insurance Company, a surety. He was convicted of participating in a scheme to rig bids for a contract to complete a construction project. Defendant used his position to assure that a particular concrete subcontractor was selected, and this person in turn let the project to another subcontractor at half the price. The evidence that defendant had personally received any pecuniary gain from the fraud was unclear. See id. at 551. He argued that reimbursement checks from the Small Business Administration (SBA) to Heritage were not in furtherance of the scheme, apparently because they were mailed after the surrepetitious subcontractor had been fully paid. Id. at 552 n. 10. This court held that reimbursement checks from SBA to Heritage were chargeable mailings. Although Heritage was an innocent victim of the scheme, this court concluded that the scheme did not reach fruition until the SBA had reimbursed the sureties. This court stated:
13
The reimbursements, however, were part of the fruit of the scheme. Dick knew that the SBA would cover ninety percent of the sureties' loss on the [original defaulting subcontractor's] bond. Also aware of that fact, Heritage may have given Dick more leeway than it would have otherwise in letting the completion contract. Further, the regulations promulgated under the statutory mandate for the guarantee program require sureties, in order to qualify for the SBA guarantee, to affirm that without the guarantee they would not issue the bond to the principal.
14
Id. at 552.
15
We conclude that the checks mailed, as charged in Counts 23 and 24, helped to keep defendant's scheme concealed, made it easier for defendant's accomplices to continue dealing with the merchants involved, and thus, were in furtherance of the scheme. Although the mailings were simply directed towards settling accounts between victims, they occurred before defendant's scheme had reached fruition, and therefore support his conviction under 18 U.S.C. Sec. 1341.2
16
On the other hand, the invoice mailing charged in Count 22 was not in furtherance of the scheme, but worked against it, and the conviction on that count cannot stand. Although the mailing occurred on July 25, 1981, and this was before the scheme had reached fruition, the mailing made it more likely that defendant's scheme would be detected. We find this mailing to be indistinguishable from the one found insufficient in United States v. Maze, 414 U.S. 395, 400-01, 94 S.Ct. 645, 648-49, 38 L.Ed.2d 603 (1974). Rather than concealing the fraud, this mailing put CWLP on notice that Hankins was receiving materials in its name, and the mailing could have prompted an audit that might have revealed that the automotive supplies were never used on CWLP equipment. "Indeed, from [defendant's] point of view, he probably would have preferred to have the invoices misplaced by [Sasco] and never mailed at all." Maze, 414 U.S. at 402, 94 S.Ct. at 649. "Congress could have drafted the mail fraud statute so as to require only that the mails be in fact used as a result of a fraudulent scheme. But it did not do this; instead it required that the use of the mails be 'for the purpose of executing such scheme or artiface...' " Id. at 405, 94 S.Ct. at 651. We reverse the conviction on Count 22.
17
Defendant next argues that there was insufficient evidence to link him with the stolen supplies. In reviewing the sufficiency of the evidence produced at trial, we must consider whether, taking the view most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Moya, 721 F.2d 606, 609-10 (7th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 1312, 79 L.Ed.2d 709 (1984). Hankins testified that defendant asked him to get the materials charged in Count 24, and that he personally took them to defendant. Government Exhibit 324 consists of the invoices from SMW for the materials paid for by the check that constitutes the mailing charged in Count 23. Both Butler and Catalano testified that they obtained sandpaper, doublefaced buffing pads, and # 7447 3M sanding pads for defendant, all of the type described in the invoice. A jury could reasonably infer that these items matched those charged in this count. In any event, as long as there is a sufficient nexus between the use of the mails and the fruits of an on going scheme, it is not necessary to match item for item stolen money or property with an individual mailing. Cf. United States v. Lea, 618 F.2d 426, 431 (7th Cir.1980), cert. denied, 449 U.S. 823, 101 S.Ct. 82, 66 L.Ed.2d 25 (1980). Defendant was convicted of perpetrating a continuing scheme to defraud the city and the citizens of Springfield of materials to be paid for by CWLP, and of his honest and faithful service. We conclude that there was sufficient evidence to convict defendant of mail fraud on Counts 23 and 24.
18
Finally, defendant argues that there was no scheme to defraud in this case, only a series of isolated transactions. We disagree. Congress has decided not to define "scheme or artiface to defraud," because the range of potential schemes is as broad as the criminal imagination. See United States v. Lemire, 720 F.2d 1327, 1335 (D.C.Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 2678, 81 L.Ed.2d 874 (1984). Defendant embarked on a persistent pattern of taking property that was to be paid for by the city, and of depriving the citizens of Springfield of his loyal and honest service. Defendant's repeated fraudulent actions were not accidental, and we have no difficulty in concluding that a scheme existed here, as the meaning of that word has evolved in the case law.
19
Defendant's conviction on Counts 23 and 24 is AFFIRMED, and his conviction on Count 22 is REVERSED. We vacate the sentence and remand the case to the district judge for a new sentencing determination on the two existing counts.
1
In contrast, in the instant case, check and invoice mailings were not necessary to perfect title to the goods misappropriated by defendant. Under the Uniform Commercial Code, as adopted in Illinois, title was perfected when the goods were delivered, ILL.ANN.STAT. ch. 26 Sec. 2-401(2) (Smith-Hurd 1963), either when defendant caused them to be picked up from the supplier's place of business (Counts 22 and 24), or when they were shipped to CWLP (Count 23). The supplies furnished were mostly paints, sandpaper, and other consumables; therefore, under the U.C.C. the probable remedy for Sasco and SMW for nonpayment following delivery would be an action for the price of the goods, not repossession. Victorian Inns, Inc. v. Benda, 22 Ill.App.3d 247, 317 N.E.2d 287 (1974); ILL.ANN.STAT. ch. 26, Secs. 2-703, 2-709 (Smith-Hurd 1963). But cf. ILL.REV.STAT. ch. 26 Sec. 2-403(1) (Smith-Hurd 1963) (indicating that a purchaser misrepresenting his identity has a voidable title)
2
While one mailing found to be insufficient in Parr v. United States, 363 U.S. 370, 392-3, 80 S.Ct. 1171, 1184, 4 L.Ed.2d 1277 (1960), was a single check from the school district paying the oil company for gasoline obtained by defendants, there was no finding in Parr that the petitioners were involved in an ongoing, virtually perpetual scheme, as was defendant. Further, the Court did not address the benefit that petitioners obtained through concealment | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1376317/ | 584 S.E.2d 827 (2003)
In the Matter of APPEAL OF THE CHURCH OF YAHSHUA, The Christ at Wilmington from the decision of the Pender County Board of Equalization and Review concerning property tax exemption for tax year 2000.
No. COA02-1005.
Court of Appeals of North Carolina.
September 2, 2003.
*828 The Church of Yahshua the Christ at Wilmington, pro se, appellant.
Robert H. Corbett for Pender County, appellee.
GEER, Judge.
This appeal arises under N.C. Gen.Stat. § 105-278.3(a) (2001), which exempts from property tax "[b]uildings, the land they actually occupy, and additional adjacent land reasonably necessary for the convenient use of any such building" to the extent the property is used "for religious purposes...." Appellant, The Church of Yahshua The Christ at Wilmington ("the Church"), challenges a decision of the North Carolina Property Tax Commission. The church contends that real property owned by the Church should be exempt from taxation under § 105-278.3 even if the land has no buildings on it. The Church argues alternatively that if the tax exemption provided in § 105-278.3 requires that there be buildings on the land, then the statute is unconstitutional as applied to the Church because the Church's religious tenets prohibit members worshiping in buildings.
We hold that the tax exemption set out in § 105-278.3 applies only to buildings and the land necessary for their convenient use. Because the Church admits that no buildings exist on its land, the Commission correctly determined that the property at issue was not entitled to tax exemption under § 105-278.3. We do not reach the constitutional question as set forth by the Church because the Church does not contend that its members are barred from using buildings for "religious purposes" as opposed to worship.
The Church owns approximately 50 acres of land located in Pender County, North Carolina. For tax year 2000, the Church filed a request with the Pender County tax assessor for exemption of this land from property taxes. The tax assessor denied the request and the Pender County Board of Equalization and Review affirmed the decision. The Church appealed to the North Carolina Property Tax Commission. Following an evidentiary hearing, the Commission affirmed the decision of the Board. The Church appeals the Commission's final decision.
The Commission found that the Church is a religious body and that it owns the approximately 50 acres of land at issue. According to the Commission, there is "no formal building of worship" on the land, but the Church has plans to construct buildings "such as an outdoor pavilion, tractor shed, workshop, storage buildings and homes for active ministers." The Commission found that the land is used for camping and recreational outings as well as observing nature, but further found that the Church had failed to demonstrate that regular instruction or courses of study occur on the land.
Based on these findings, the Commission concluded that the Church failed to meet its burden of proving its entitlement to an exemption under N.C. Gen.Stat. § 105-278.4 (2001) (exemption for property used for educational purposes), § 105-278.5 (2001) (exemption for property owned by a religious educational assembly), § 105-278.6 (2001) (exemption for property used for charitable purposes), and § 105-278.3 (exemption of property used for religious purposes). Since the Church has assigned error solely to the conclusion of law that it failed to meet its burden of proof with respect to N.C. Gen. Stat. § 105-278.3, we review only whether the Commission erred in its decision under that statute. In re Appeal of the Master's Mission, 152 N.C.App. 640, 645, 568 S.E.2d 208, 211 (2002) (charitable and religious exemptions not reviewed where taxpayer solely *829 assigned error as to the educational exemption).
With respect to N.C. Gen.Stat. § 105-278.3, the Commission noted that the Church "contends that the subject property should be exempt because the property is used as a natural retreat for outdoor altar services that requires extended buffers to create such an environment." The Commission rejected this argument because the Church "failed to show that the subject land qualifies for the exemption when there were no buildings of worship situated on the property that are used for a religious purpose."
Standard of review
This Court reviews decisions of the North Carolina Property Tax Commission pursuant to N.C. Gen.Stat. § 105-345.2 (2001). "Questions of law receive de novo review, while issues such as sufficiency of the evidence to support the Commission's decision are reviewed under the whole-record test." In re Appeal of The Greens of Pine Glen Ltd. P'ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003). Under de novo review, the Court "considers the matter anew and freely substitutes its own judgment for that of the Commission." Id.
When the evidence is conflicting, the whole-record test requires the Court to review all the evidence in the record, including evidence contradictory to that upon which the Commission relied, to determine whether the decision has a rational basis in the evidence. In re Southview Presbyterian Church, 62 N.C.App. 45, 47, 302 S.E.2d 298, 299, disc. review denied, 309 N.C. 820, 310 S.E.2d 354 (1983). We may not substitute our judgment for that of the Commission, but rather must decide whether substantial evidence exists to support the decision. Id.
I
The Church first argues that since it uses its land for religious purposes, it should be entitled to a property tax exemption under N.C. Gen.Stat. § 105-278.3 even in the absence of any buildings on the land. We disagree.
N.C. Gen.Stat. § 105-278.3(a) (emphasis added) provides:
(a) Buildings, the land they actually occupy, and additional adjacent land reasonably necessary for the convenient use of any such building shall be exempted from taxation if wholly owned by an agency listed in subsection (c), below, and if:
(1) Wholly and exclusively used by its owner for religious purposes as defined in subsection (d)(1), below....
The statute is unambiguous. The focus of the exemption is on "buildings." Land is exempted only to the extent necessary for convenient use of the building.
The Church's construction of the statute would significantly expand the scope of the exemption to cover not only buildings, but land used for religious purposes. It is for the General Assembly to determine what property should be exempt from taxation and when the General Assembly has intended to exempt land, as opposed to buildings, it has done so explicitly. See N.C. Gen.Stat. § 105-278.4(b) ("Land (exclusive of improvements); and improvements other than buildings, the land actually occupied by such improvements, and additional land reasonably necessary for the convenient use of any such improvement shall be exempted from taxation" if owned by an educational institution that also owns buildings exempted from taxation). The Church's proposed construction of the statute is particularly unwarranted given the principle that statutes exempting specific property from taxation based on the purpose for which the property is used should be construed strictly against exemption and in favor of taxation. In re Appeal of Worley, 93 N.C.App. 191, 195, 377 S.E.2d 270, 273 (1989).
We hold that N.C. Gen.Stat. § 105-278.3 does not provide for a tax exemption in the absence of buildings used by the owner "for religious purposes." The Commission erred, however, in requiring a "building of worship" for property to qualify for the exemption under § 105-278.3. The building and accompanying land need only be used "for religious purposes." N.C. Gen.Stat. § 105-278.3(d)(1) defines "religious purpose" as "one that pertains to practicing, teaching, *830 and setting forth a religion." The statute notes that "[a]lthough worship is the most common religious purpose, the term encompasses other activities that demonstrate and further the beliefs and objectives of a given church or religious body." Id.
The Commission should, therefore, have made findings of fact regarding whether there were buildings being used for religious purposes on the property at issue. Under the whole record test, we may review the record to determine whether the evidence is conflicting and whether remand is therefore necessary. See In re Rogers, 297 N.C. 48, 60, 253 S.E.2d 912, 920 (1979) (even after determining that an error justifying remand has occurred, an appellate court may "examine the record to see if there would have been sufficient evidence to support necessary findings if they had been properly made"). Here, the record reveals no dispute. When asked at the hearing whether there were any buildings on the property, counsel for the Church replied, "No, sir, there are not...." Additionally, the Church stated in its reply brief filed with this Court: "The fact that no building used for religious purposes existed on the subject property was known to the Commission before the hearing on the merits." Because the property has no buildings at all, it does not qualify for tax exemption under N.C. Gen.Stat. § 105-278.3.
II
The Church next argues that to the extent N.C. Gen.Stat. § 105-278.3 requires a building for the tax exemption to apply, it is unconstitutional as applied to the Church because the Church's religious beliefs prohibit worshiping as a group in a building. We need not address the constitutional issue as posed by the Church because the Church does not suggest that its beliefs preclude using buildings "for religious purposes" other than worship.
In fact, the record reveals that the Church advised the Commission that the Church's "long term plans include the construction of some buildings, principally on the front third of the subject property. These buildings will include an outdoor pavilion, tractor shed, workshop, storage buildings, and homes for active ministers, elderly or infirm ministers, and caretakers." Because the Church is not barred by its beliefs from constructing buildings to be used for non-worship related religious purposes and therefore may, without violating its religious beliefs, still qualify for the tax exemption under N.C. Gen.Stat. § 105-278.3, this case presents no constitutional issue.
Because of our disposition of this appeal, we do not address the Church's remaining assignments of error.
Affirmed.
Judges MARTIN and HUNTER concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1376330/ | 584 S.E.2d 74 (2003)
261 Ga. App. 839
BARABONT
v.
VILLANUEVA.
No. A03A0789.
Court of Appeals of Georgia.
June 20, 2003.
Certiorari Denied October 20, 2003.
*76 Daniele C. Johnson, for appellant.
Seacrest, Karesh, Tate & Bicknese, Atlanta, Karsten Bicknese, Robert D. Brunson, Norcross, for appellee.
*75 SMITH, Chief Judge.
Rozalia Barabont appeals from an order that dismissed her action, denied her motion for service by publication, and denied her motion for sanctions. Primarily, Barabont contends that the trial court applied the wrong legal standard in determining that she failed to exercise due diligence in attempting to obtain personal service on Marcelino Villanueva. We find no error and affirm.
Barabont and Villanueva were involved in an automobile collision on March 20, 1998. On March 17, 2000, Barabont filed a suit for damages against Villanueva and served Villanueva and One Beacon Insurance Group (One Beacon), Barabont's uninsured motorist carrier. Shortly after the pretrial conference, Barabont voluntarily dismissed her suit on October 11, 2001. Six days before the expiration of the six-month renewal period, Barabont recommenced her complaint pursuant to OCGA § 9-2-61 on April 5, 2002. When service was attempted on Villanueva at the same address Barabont had used previously, the deputy was unable to serve Villanueva. The deputy filed a non est service return on April 22, notifying Barabont that service was not perfected and that Villanueva no longer lived at that address. Barabont knew about the service problem on or about April 26. One Beacon, Barabont's uninsured motorist carrier, acknowledges that it was served with copies of the summons and complaint in both actions.
One Beacon timely answered. Subsequently, on May 31, noting that Villanueva had not yet been served, One Beacon filed a motion to dismiss or alternatively a motion for summary judgment. In moving to dismiss for insufficient service of process, One Beacon claimed that Barabont "failed to exercise due diligence in perfecting service upon defendant after the expiration of the statute of limitation, given that 55 days have already elapsed between plaintiff's re-filing of the Complaint and the filing of this Motion." In support of its motion, One Beacon argued that when service is not perfected within five days of the expiration of the statute of limitation, the service relates back only "if the plaintiff demonstrates that `he acted in a reasonable and diligent manner in attempting to ensure that a proper service was made as quickly as possible. [Cit.]'"
Thereafter, on June 12, 2002, Barabont filed a motion for the appointment of a special process server, and that motion was granted two days later. The process server attempted service on Villanueva on June 14, 22 and 23 and searched for his address through various databases and sources between June 12 and June 25. On June 27, the process server executed an affidavit of due diligence, describing his efforts to serve Villanueva and attesting that he could not locate Villanueva's current address. After filing that affidavit on July 1, Barabont sought no further assistance from the court until August 1, 2002, the day of the hearing on One Beacon's motion to dismiss and her motion for sanctions. At that time Barabont submitted a motion for service by publication.
*77 More than three weeks after the hearing, on August 23, Barabont amended her motion for service by publication and attached her counsel's affidavit needed to comply with OCGA § 33-7-11(e). Apparently unaware that another trial court was already considering Barabont's motion for service by publication, along with other motions, a different judge granted Barabont's amended motion for service by publication. Meanwhile, One Beacon moved to strike portions of the affidavit of Barabont's counsel. After learning about the pending motions, the trial court vacated its own order for service by publication noting, "this matter had been heard by [another judge] who has taken the matter under advisement."
In dismissing the complaint, without explicitly using the term "laches," the trial court faulted Barabont for "inactivity." The court noted that Barabont "took her first steps to locate the Defendant 51 days after the return of the Sheriff's service on April 22, 2002 (and some 12 days after One Beacon filed its Motion to Dismiss)." The trial court observed that Barabont failed to move for service by publication until August 1, "some 101 days after Plaintiff first knew the Defendant could not be personally served at the address provided (and over two months after One Beacon's Motion to Dismiss was filed and 40 days after the process server advised he could not locate the Defendant)." The court found:
Plaintiff's failure to attempt to locate Defendant for over 3 ½ months between the initial attempted service on April 22, 2002, and Plaintiff's filing of her Motion for Service by Publication over two months after One Beacon Insurance Group's Motion to Dismiss on May 31, 2002, as well as Plaintiff's inactivity from the time of the filing of the process server's affidavit on June 27, 2002, to the filing of Plaintiff's Motion for Service by Publication on the day of oral argument, does not constitute due diligence.
1. In multiple, somewhat overlapping enumerations of error, Barabont disputes the court's determination. Primarily, she contends that the trial court applied the wrong legal standard of due diligence and erroneously held her to a higher degree of due diligence than the law authorizes. We disagree.
When OCGA § 33-7-11(d) is applicable and service is required upon both the uninsured motorist and the uninsured motorist carrier, service on the tortfeasor is a condition precedent for recovery against the uninsured motorist carrier. Swanson v. State Farm &c. Ins. Co., 242 Ga.App. 616(1), 530 S.E.2d 516 (2000). It is the plaintiff's burden to investigate and ascertain the tortfeasor's whereabouts. Bailey v. Lawrence, 235 Ga.App. 73, 76(1), 508 S.E.2d 450 (1998). In locating a missing tortfeasor and attempting to effect service, a plaintiff must exercise due diligence. See Swanson, supra. And, when
service is made after the expiration of the applicable statute of limitation, the timely filing of the complaint tolls the statute only if the plaintiff shows that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible.
(Citations and punctuation omitted; emphasis supplied.) Brown v. State Farm &c. Ins. Co., 242 Ga.App. 313(1), 529 S.E.2d 439 (2000). Whether a plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitation lies within the trial court's discretion and will not be disturbed on appeal absent abuse. Sykes v. Springer, 220 Ga.App. 388, 390(1), 469 S.E.2d 472 (1996).
Although Barabont argues otherwise, the trial court did not use the wrong legal standard of due diligence. While it is true that the "due diligence" required for personal jurisdiction for liability purposes and the due diligence required for service by publication to satisfy uninsured motorist coverage are different standards, Barabont misperceives the law applicable to her situation. Wilson v. State Farm &c. Ins. Co., 239 Ga. App. 168, 170-171, 520 S.E.2d 917 (1999). When the statute of limitation has expired and a defendant raises the issue of defective service, from that point forward a plaintiff must act with "the greatest possible diligence" to ensure proper and timely service *78 or risk dismissal of her case. Ingraham v. Marr, 246 Ga.App. 445, 447-448(2), 540 S.E.2d 652 (2000). When One Beacon raised the defense of defective service, Barabont incurred the heightened obligation of exercising the greatest possible diligence to ensure proper and timely service. Patterson v. Johnson, 226 Ga.App. 396, 398, 486 S.E.2d 660 (1997). This Barabont failed to fulfill.
Barabont did not seek the appointment of a special process server until June 12 and did not move for service by publication until August 1, more than two months after One Beacon moved for dismissal and more than three months after the initial failed attempt at service. Without question, Barabont knew about the service problem in late April. Yet, even though One Beacon moved in May to dismiss her case, Barabont did not seek service by publication until August. Then, still later, to correct the apparent deficiencies in her motion, Barabont submitted an amended motion on August 23. Under these facts, we cannot say that the trial court abused its discretion in finding that Barabont failed to exercise the requisite due diligence. See Brown, supra at 314(1), 529 S.E.2d 439.
2. Barabont contends that the trial court abused its discretion by vacating its own order for service by publication. She argues that by issuing the order, the trial court, in effect, made a finding that she had acted with due diligence. She claims that the trial court's action "smacks of impropriety" since the court's decision to order service by publication constituted proof of her due diligence. We disagree.
Less than two weeks after entering an order for service by publication, the same judge vacated its own order. When the trial court authorized service by publication, it did not enter any finding whatsoever about due diligence. Compare Starr v. Wimbush, 201 Ga.App. 280, 282(2), 410 S.E.2d 776 (1991). Moreover, even assuming that such a finding was implicit, during the same term of court in which an order is entered a trial court has the inherent power to revise, revoke, vacate, or modify its judgment. Andrew L. Parks, Inc. v. SunTrust Bank, 248 Ga.App. 846, 847, 545 S.E.2d 31 (2001). Absent a manifest abuse of discretion, the exercise of this discretionary power will not be disturbed. Kirkley v. Jones, 250 Ga.App. 113, 114(1), 550 S.E.2d 686 (2001). No such showing was made.
3. Barabont contends that the trial court erred in denying her motion for sanctions against One Beacon. She asserts that One Beacon's motion to dismiss "was based on wrong and incompetent grounds and reasoning" and "was patently frivolous." In light of our holding in Division 1, this claim necessarily lacks merit.
Judgment affirmed.
RUFFIN, P.J., and MILLER, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266608/ | 461 F.Supp. 49 (1978)
INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS, INC. and Nico Kuyt, on behalf of themselves and all International Society for Krishna Consciousness members, Plaintiffs,
v.
Salvador LENTINI, Kenner Police Chief, and James Maxwell, Kenner City Attorney, Individually and in their official capacities, and New Orleans Aviation Board, Defendants.
Civ. A. No. 75-2233.
United States District Court, E. D. Louisiana.
August 1, 1978.
*50 Barry A. Fisher, Beverly Hills, Cal., Michael Silvers, New Orleans, La., for plaintiffs.
H. A. Vondenstein, Kenner, La., for defendant, City of Kenner.
Herbert W. Christenberry, Jr., Lawrence S. Kullman, New Orleans, La., for defendant, New Orleans Aviation Board.
CASSIBRY, District Judge:
MOTION FOR SUMMARY JUDGMENT
The International Society for Krishna Consciousness (ISKCON) and an individual devotee Nico Kuyt have brought this action for declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 and 28 U.S.C. §§ 2201-02 alleging that Kenner Ordinance No. 764 and New Orleans Aviation Board Regulations 700.5-700.6 are unconstitutional. Plaintiff, ISKCON, is a religious group which seeks to distribute its literature and solicit donations at the New Orleans International Airport. The ordinance and regulations at issue attempt to regulate solicitations in Kenner, Louisiana, the location of the airport, and in the airport terminal itself.
This action was originally filed in July 1975, and the parties were advised by letter opinion after a hearing on the preliminary injunction that the Regulations and Ordinance are unconstitutional. At the same time the Court recognized the position of all parties that valid reasonable "time, place and manner" regulations could be implemented and suggested that the parties reach an accommodation that would satisfy all concerned parties. This accommodation remained in effect for three years until defendants refused to sign a stipulated judgment maintaining the status quo. Because of this refusal by defendants, plaintiffs once again have come before this Court on motion for summary judgment to have the regulations and ordinances used to exclude the devotees of ISKCON from soliciting at the airport declared unconstitutional.
The motion for summary judgment was submitted on memoranda and initially the ruling was deferred to afford the defendants a hearing on their charges of improper conduct against the solicitors for ISKCON. The matter is now before the Court on ISKCON's motion for reconsideration of the ruling to defer. The motion for reconsideration is valid and the motion of plaintiffs for summary judgment is GRANTED.
ISKCON claims that the ordinance and regulations [hereinafter both will be referred to as simply "regulations"] are unconstitutional on their face because they include First Amendment freedoms within their ambit and vest discretion in officials to grant or deny licenses to engage in such freedoms without definite standards to govern their discretion. Defendants claim that plaintiffs "deceptive business practices" have removed them from the protection of the First Amendment thus depriving them of the standing to challenge the constitutionality of the regulations.
The first question to be decided is whether or not plaintiffs have standing to challenge the regulations. The traditional rule of standing is that a person to whom a statute may be constitutionally applied will not be allowed to challenge a statute on the ground that it might be unconstitutionally *51 applied to others. Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Yet Broadrick and many other cases recognize the exception to this rule that allows a person to challenge a vague and overbroad regulation or statute which affects First Amendment rights despite the fact that the state might validly regulate that person's conduct with a more concisely and narrowly drawn statute, Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965); ISKCON v. Hays, 438 F.Supp. 1077 (S.D.Fla.1977); ISKCON v. Engelhardt, 425 F.Supp. 176 (W.D.Mo.1977); and despite the fact that the person himself is not engaging in privileged conduct, NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); LeFlore v. Robinson, 434 F.2d 933 (5th Cir. 1970) vac. on other grounds 446 F.2d 715 (5th Cir. 1971); Oestreich v. Hale, 321 F.Supp. 445 (E.D.Wis. 1970). The rationale behind this exception is that the mere existence of such legislation may cause some persons not before the court to refrain from exercising their First Amendment rights. See Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). Thus even assuming arguendo that defendants' claim that ISKCON is no longer protected by the First Amendment is true, plaintiff still has standing to challenge the regulations as being impermissibly vague and over-broad.
Distribution of literature and solicitation of funds is a religious activity protected by the First Amendment. The United States Supreme Court has held that solicitation of donations and contributions incident to the main objective of propagating the doctrines of a religion is a constitutionally protected activity. Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940); ISKCON v. Rochford, 425 F.Supp. 734 (N.D. Ill.1977).
The final issue is the effect of the ordinance and regulations on the First Amendment right of religious solicitation. When a licensing regulation subjects the exercise of First Amendment freedoms to the prior restraint of a license, it must be drawn with narrow, objective, and definite standards to guide the licensing authority. Shuttlesworth v. City of Birmingham, Alabama, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); ISKCON v. Hays, 438 F.Supp. 1077 (S.D.Fla.1977); ISKCON v. Engelhardt, 425 F. 176 (W.D.Mo.1977). The licensing authority cannot have unfettered discretion, and if it does, the regulation is unconstitutional. ISKCON v. Hays, 438 F.Supp. 1077 (S.D.Fla.1977); ISKCON v. Rochford, 425 F.Supp. 734 (N.D.Ill.1977). New Orleans Aviation Board Regulation 700.5[1] prohibits any solicitation of funds. It is clear that this total prohibition is ineffective against First Amendment rights; therefore, it is unconstitutional on its face. Regulation 700.6[2] purports to be an exception to the absolute prohibition in 700.5 and vests discretion in the Director of Aviation to grant or deny a permit to solicit. There are no standards to guide the Director's discretion; therefore this regulation is also unconstitutional because it is too vague and overbroad and vests total unfettered discretion in the Director.
Kenner Ordinance 764 provides for the regulation and licensing of solicitors within the city of Kenner, the location of the New Orleans International Airport. To obtain a *52 permit and be licensed to solicit in Kenner, one must first file an application with the city clerk.[3] A ten dollar fee must accompany the application[4] which must contain, along with other information, evidence supplied by the applicant, of his "good character and business respectability",[5] his criminal record, if any,[6] and a statement from a Kenner physician that the applicant is free of contagious, infectious or communicable disease.[7]
The city then uses this information to investigate the applicant's character and business responsibility. Section IV of the ordinance makes his character and responsibility the main criteria for issuance of the permit. If "satisfactory", the permit is issued; if "unsatisfactory", no permit is issued.[8] There are no guidelines in the ordinance to help the mayor and the Board of Aldermen determine what is satisfactory or unsatisfactory.
Assuming that the above criterion is met, there are further steps that must be followed before the applicant becomes and remains a licensed solicitor. If he is not a resident of Kenner or represents a firm with its principal place of business outside Louisiana, he must file a one thousand dollar surety bond with the city.[9] After the permit is granted, the licensee must pay to the city daily fees of $5.00[10] and must wear a badge at all times of solicitation stating on it that he is a "licensed solicitor."[11]
*53 The above is an overview of Kenner's licensing scheme for solicitors, a scheme which runs afoul of the U.S. Constitution in several of its provisions. As previously stated, when a licensing scheme attempts to regulate the exercise of first amendment freedoms, it must be drawn with narrow, objective, and definite standards. Shuttlesworth v. City of Birmingham, Alabama, supra. Kenner ordinance 764 has as its main criteria for issuance of permits the character and business responsibility of the solicitor. There are no rules, guidelines, or standards to control the unfettered discretion of the mayor and Board of Aldermen. For this reason, Section IV of the ordinance is unconstitutional.
To sustain specific restrictions on the exercise of first amendment freedoms, a state or municipality must have a compelling or overriding interest which is achieved by the restriction. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976); Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976); Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960). As the court stated in Elrod: "The interest advanced must be paramount, one of vital importance, and the burden is on the Government to show the existence of such an interest." Elrod v. Burns, supra, 96 S.Ct. at 2684. Section III of the Kenner ordinance requires a statement from a Kenner physician that the applicant is free from "contagious, infectious, or communicable" disease. It could be argued that the City has the health of its citizens as a compelling interest and that this requirement is valid for that reason. However, the statement from a physician does not serve the purpose of protecting the health of the citizens of Kenner. The statement only insures that the applicant is free from disease on that particular day. Thus it is entirely ineffective in preventing the spread of any disease contracted after the date of examination by a physician. Furthermore, there is no constitutional right which requires a statement from a physician before it can be exercised. It is the opinion of this court that the City has not met its burden of showing a compelling interest for this requirement; therefore, this requirement is also unconstitutional. Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943). See also Harper v. Virginia State Board of Elections, 383 U.S. 663, 89 S.Ct. 1079, 16 L.Ed.2d 169 (1966); Follett v. Town of McCormick, S.C., 321 U.S. 573, 64 S.Ct. 717, 88 L.Ed. 938 (1944); Grosjean v. American Press Co., Inc., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 (1936). The Kenner Ordinance imposes three different fees upon the exercise of the first amendment right to disseminate religious materials and solicit donations. Section III requires a ten dollar filing fee to cover the cost of handling the solicitor's application for a permit. The City of Kenner cannot validly impose this fee upon plaintiffs in their exercise of First Amendment freedoms. This prohibition applies equally to the daily fee of five dollars imposed by Section V and to the one thousand dollar surety bond requirement in Section VI. Finally, the City cannot require plaintiffs to wear a badge stating that they are "licensed solicitors." Wulp v. Corcoran, 454 F.2d 826 (1st Cir. 1972); Strasser v. Doorley, 432 F.2d 567 (1st Cir. 1970).
Wherefore, it is the Order of the Court that Kenner Ordinance 764 and New Orleans Aviation Board Regulations 700.5-700.6 are unconstitutional on their face and judgment will be entered permanently enjoining the City of Kenner and the New Orleans Aviation Board from applying them to plaintiff and its members.
NOTES
[1] "700.5 Soliciting of Funds. No person shall solicit funds for any reason whatsoever, at the airport."
[2] "700.6 Selling, soliciting, entertaining. No person, except those persons or firms authorized by contract by the Aviation Board to do so, or any other persons with the written permission of the Director of Aviation for specific occasions, shall, in or upon any area, platform, stairway, station, waiting room, or any other appurtenance of an air terminal:
(a) Sell, or offer for sale, any article or merchandise;
(b) Solicit any business or trade, including the carrying of baggage for hire, the shining of shoes or bootblacking;
(c) Entertain any persons by singing, dancing or playing any musical instrument;
(d) Solicit alms."
[3] SECTION III. APPLICATION. Applicants for permit and license under this Ordinance must file with the City Clerk a sworn application in writing; (in duplicate) on a form to be furnished by the City Clerk. . . .
[4] SECTION III. At the time of the filing of the application, a fee of $10.00 shall be paid to the City Clerk to cover the cost of investigation of the facts stated therein.
[5] SECTION III
(h) The fingerprints of the applicant and the names of at least two reliable property owners of the City of Kenner, who will certify as to the applicant's good character and business respectability, or, in lieu of the names of references, such other available evidence as to the good character and business responsibility of the applicant as will enable an investigator to properly evaluate such character and business responsibility; . . ..
[6] SECTION III
(i) A statement as to whether or not the applicant has been convicted of any crime, misdemeanor, or violation of any municipal ordinance, the nature of the offense and the punishment or penalty assessed. . . .
[7] SECTION III
(j) A statement by a reputable physician of the City of Kenner, dated not more than ten (10) days prior to submission of the application, certifying the applicant to be free of contagious, infectious, or communicable disease.
[8] SECTION IV. INVESTIGATION AND ISSUANCE. (a) Upon receipt of such application, the original shall be referred to the Mayor and Board of Aldermen, who shall cause such investigation of the applicant's business and moral character to be made as they deem necessary for the protection of the public good.
(b) If as a result of such investigation, the applicant's character or business responsibility is found to be unsatisfactory, the Mayor and Board of Aldermen shall endorse on such application their disapproval and their reasons for the same, and return the said application to the City Clerk, who shall notify the applicant that his application is disapproved and that no permit and license will be issued. (c) If as a result of such investigation, the character and business responsibility of the applicant are found to be satisfactory, the Mayor and Board of Aldermen shall endorse on the application their approval, execute a permit addressed to the applicant. . . .
[9] SECTION VI. BOND. Every applicant, not a resident of the City of Kenner, or who being a resident of the City of Kenner, represents a firm whose principal place of business is located outside the State of Louisiana, shall file with the City Clerk a surety bond, running to the City in the amount of $1,000, with surety acceptable to and approved by the Mayor, conditioned that the applicant shall comply fully with all the provisions of the ordinances of the City of Kenner and the statutes of the State of Louisiana regulating and concerning the business of solicitor. . . .
[10] SECTION V. FEES. (a) The license for which shall be charged by the City Clerk for such license shall be $5.00 per day, $25.00 per week, $75.00 per month, $100.00 per year.
[11] SECTION VII. BADGES. The City Clerk shall issue to each licensee at the time of delivery of his license a badge which shall contain the words "Licensed Solicitor," the period for which the license is issued and the number of the license, in letters and figures easily discernible from a distance of ten feet. Such badge shall, during the time such licensee is engaged in soliciting, be worn constantly by the licensee on the front of his outer garment in such a way as to be conspicuous. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266614/ | 165 Cal.App.4th 1154 (2008)
MT. DIABLO UNIFIED SCHOOL DISTRICT, Petitioner,
v.
WORKERS' COMPENSATION APPEALS BOARD and NICOLE ROLLICK, Respondents.
No. A121204.
Court of Appeals of California, First District, Division Four.
August 8, 2008.
*1156 Pulley & Cohen and Warren A. Pulley for Petitioner.
Falk & Hamblin and C. Patrick Hamblin for Alliance of Schools for Cooperative Insurance Program as Amicus Curiae on behalf of Petitioner.
Neil P. Sullivan and Vincent Bausano for Respondent Workers' Compensation Appeals Board.
Gearheart & Otis and Mark E. Gearheart for Respondent Nicole Rollick.
*1157 OPINION
REARDON, J.
We granted a petition for review filed by Mt. Diablo Unified School District (Mt. Diablo) to decide whether temporary disability payments commence when a school district pays an injured employee his or her normal wages under Education Code[1] section 44043. Given that section 44043 payments are, in part, temporary disability benefits under the workers' compensation laws, the answer is yes. We therefore annul the decision of the Workers' Compensation Appeals Board (WCAB) and remand the matter for further proceedings consistent with this opinion.
BACKGROUND
Mt. Diablo employed Nicole Rollick as a special education assistant. In June 2004, she sustained an injury to "her right lower extremity, back, and spine, excluding the neck." Although Mt. Diablo initially disputed industrial causation for part of Rollick's injury, the parties eventually resolved that dispute by stipulation in January 2007. Mt. Diablo conceded Rollick's injuries arose in the course of her employment and it agreed to make payments for periods of temporary disability up to the date of the stipulation and continuing.
In February 2007, however, Mt. Diablo asked the WCAB for an order terminating further liability for temporary disability indemnity based on Labor Code section 4656, subdivision (c)(1). That subdivision generally provides for termination of temporary disability payments two years from the date payments commence.[2] In a letter to Rollick, Mt. Diablo's adjusting agency informed her temporary disability payments would end "because of the 2 year anniversary rule of temporary disability." The letter stated the first disability payment had been made in February 2005.
Rollick objected. At a hearing on the matter, the parties stipulated Mt. Diablo had paid Rollick 85.71 weeks of "education code" benefits and 7.14 weeks of "temporary disability."[3] Although the stipulation did not define "education code" benefits, it appears Rollick and the workers' compensation *1158 judge assumed the payments were made pursuant to section 44043. That section, in part, directs a school district to pay an injured employee receiving temporary disability benefits his or her normal wage by supplementing the disability benefits with the employee's accrued leave time.[4]
The workers' compensation judge found "Education Code Benefits do not constitute temporary disability payments as they are not conferred upon the employee by Division 4 of the Labor Code." The workers' compensation laws are found in division 4 of the Labor Code. The judge did not explain the effect of this finding, but presumably this meant Rollick's temporary disability payments did not commence, for purposes of Labor Code section 4656, subdivision (c)(1), when Mt. Diablo made the first payment of Education Code benefits.
Mt. Diablo filed a petition for reconsideration. In an opinion and order denying the petition, the WCAB agreed with the workers' compensation judge's finding and stated its own conclusion: "In summary, we will deny the School District's petition for reconsideration because the plain language of Education Code section 44043 is language that restricts the total amount an employee can receive from both temporary disability and other `Education Code benefits.' It is not language that equates temporary disability to such other benefits for purposes of the limitation[s] of Labor Code section 4656(c)(1)."
DISCUSSION
There is no dispute over the underlying facts. Our task here, the interpretation of section 44043, presents a question of law we review de novo. (Department of Rehabilitation v. Workers' Comp. Appeals Bd. (2003) 30 Cal.4th 1281, 1290 [135 Cal.Rptr.2d 665, 70 P.3d 1076].)
Mt. Diablo contends the first payment of section 44043 benefits triggered the start of the 104-week limit on disability payments found in Labor Code section 4656, subdivision (c)(1); Mt. Diablo advances several reasons why the WCAB's interpretation of section 44043 is incorrect. Many of those reasons are sound.
*1159 The WCAB correctly concluded section 44043 restricts the amount of wages or salary an injured school district employee may receive. The first paragraph of section 44043 provides that an employee receiving "temporary disability benefits under the workers' compensation laws of this state, shall not be entitled to receive wages or salary from the district which, when added to the temporary disability benefits, will exceed a full day's wages or salary." (See also §§ 44984, par. f, 45192, subd. (f).)
This is far from the end of the analysis, however. The second paragraph of section 44043 provides: "During such periods of temporary disability so long as the employee has available for the employee's use sick leave, vacation, compensating time off or other paid leave of absence, the district shall require that temporary disability checks be endorsed payable to the district. The district shall then cause the employee to receive the person's normal wage or salary less appropriate deductions including but not limited to employee retirement contributions."[5]
(1) The WCAB did not find, and no one is arguing, that section 44043 is ambiguous. When a school district employee with available leave time is disabled and receiving temporary disability benefits under the workers' compensation laws, the employee endorses his or her disability check and gives it to the school district. In turn the school district pays the employee his or her normal wages as long as the employee has accrued leave available.
As Mt. Diablo asserts, entitlement to section 44043 benefits is contingent on payment of workers' compensation temporary disability benefits. (See § 45192, subd. (f) [employee is entitled to use only so much of accumulated leave time which when added to workers' compensation award provides for full day's wage or salary].) It follows that the date temporary disability payments commence can be no later than the first payment under section 44043. Further, each subsequent section 44043 payment is contingent on receipt of a temporary disability check and consists, in part, of temporary disability benefits. The fact the school district issues a single check combining temporary disability and leave benefits does not change the essence of the underlying payments.
The only real issue here is that Mt. Diablo admits it does not precisely follow the procedure outlined in section 44043, or the alternate procedure set *1160 forth in section 44044.[6] Instead, according to Mt. Diablo, its "insurer"[7] issues a "voucher" equal to the injured worker's temporary disability rate directly to the school district. Mt. Diablo then pays the injured worker's full salary. Mt. Diablo states this procedure is used by school districts throughout California, and that it saves all parties time and money, while speeding and simplifying the administration of benefits. Amicus curiae Alliance of Schools similarly states the practice of mailing disability checks to injured workers was abandoned when "the vast majority of California School Districts" became self-insured. The record before us does not confirm those statements, but sending the temporary disability payment directly to the school district undoubtedly simplifies matters for both the school district and the employee.
We note the WCAB made no mention of this deviation from the procedure outlined in section 44043 in reaching its decision. Rollick, however, has made it a cornerstone of her argument that the Education Code payments in this case were not temporary disability benefits and did not trigger the two-year period for temporary disability payments. She states that for most of the time period in question she was not receiving temporary disability. Instead she "simply received full salary from the District." Rollick argues that as Mt. Diablo decided not to follow the statute, it cannot argue temporary disability commenced with the first payment of section 44043 benefits.
(2) Rollick's argument could be read as implicitly conceding that if Mt. Diablo had followed the procedures set forth in section 44043 (or § 44044) to the letter, temporary disability benefits would have commenced with the first section 44043 payment. So the question is whether the result should be different here because the temporary disability checks never landed in Rollick's hands (at least until her accrued leave time was exhausted). We conclude the answer is no because a contrary answer would elevate form over substance. Rollick received exactly what she was entitled to under section 44043. And it is no surprise that she accepted her Education Code payments without objection, and without having to go through the additional steps of receiving, endorsing and delivering her disability check to Mt. Diablo. Although the Legislature has set forth a certain procedure to follow in section *1161 44043, we do not believe it would be concerned with a slight administrative deviation that is mutually beneficial to the parties and achieves the same end result. To conclude otherwise would lead to an absurd result.
The last point that requires discussion is Rollick's and the WCAB's belief that section 44043 payments are analogous to salary continuation benefits payable to public safety workers under Labor Code section 4850. The WCAB has concluded Labor Code section 4850 benefits are not subject to the two-year limit on payment of temporary disability. (See County of Sacramento v. Workers' Comp. Appeals Bd. (2007) 72 Cal.Comp.Cases 854; City of Oakland v. Workers' Comp. Appeals Bd. (2007) 72 Cal.Comp.Cases 249; see also City and County of San Francisco v. Workers' Comp. Appeals Bd. (2007) 72 Cal.Comp.Cases 1013.)
(3) We express no opinion on the WCAB's conclusion regarding Labor Code section 4850 salary continuation benefits. Instead, it is readily apparent from comparing section 4850 with section 44043 that one is looking at two quite distinct provisions. Labor Code section 4850 provides that defined public safety workers are entitled to a leave of absence while disabled, "whether temporarily or permanently," without loss of salary for up to one year. (Id., subd. (a).) The payment of salary is "in lieu of temporary disability payments." (Ibid.) Section 4850 does provide for the remittance of any disability insurance payments to the employer (id., subd. (d)), but receipt and transfer of such payments is not a prerequisite to payment of the salary continuation benefits.
Section 44043, rather than providing for payment in lieu of temporary disability payments, provides for payment of accumulated leave time in addition to temporary disability payments. Section 44043 payments are contingent on receiving temporary disability benefits. Section 44043 payments end when leave time is exhausted. In sum, section 44043 provides a different and inferior benefit than Labor Code section 4850.[8]
It is unnecessary to discuss the additional arguments advanced by Mt. Diablo and Alliance for Schools supporting reversal of the WCAB's decision. But we do think it is appropriate to acknowledge that the brief of Alliance of Schools contributed to a better understanding of the history and context of Education Code benefits for injured school employees.
*1162 DISPOSITION
The order and opinion of the WCAB is annulled, and the case is remanded for further proceedings consistent with this opinion. The parties shall bear their own costs.
Ruvolo, P. J., and Rivera, J., concurred.
NOTES
[1] All further statutory references are to the Education Code unless otherwise indicated.
[2] Labor Code section 4656, subdivision (c)(1), provides: "Aggregate disability payments for a single injury occurring on or after April 19, 2004, causing temporary disability shall not extend for more than 104 compensable weeks within a period of two years from the date of commencement of temporary disability payment."
[3] Mt. Diablo also paid 22.42 weeks of "reimbursement from the Employment Development Department." Those payments are not at issue here.
[4] Amicus curiae Alliance of Schools for Cooperative Insurance Programs (Alliance of Schools) points out that section 44043 merely implements one tier of benefits available to injured school employees. (See, e.g., §§ 44977, 44983, 44984, 45192, 45196.) Our opinion is limited to discussing payments made pursuant to section 44043, but we cannot rule out the possibility Rollick received benefits pursuant to other provisions of the Education Code.
[5] The third and final paragraph of section 44043 provides: "When sick leave, vacation, compensating time off or other available paid leave is used in conjunction with temporary disability benefits derived from workers' compensation, as provided in this section, it shall be reduced only in that amount necessary to provide a full day's wage or salary when added to the temporary disability benefits."
[6] Section 44044, in relevant part, provides: "Notwithstanding the provisions of Sections 44043, 44984 and 45192, a school district may waive the requirement that temporary disability checks be endorsed payable to the district, and may in lieu thereof, permit the employee to retain his temporary disability check, providing that notice be given to the district that such check has been delivered to the employee. In such cases, the district shall then cause the employee to receive his normal wage or salary less appropriate deductions, including, but not limited to, employee retirement contributions, and an amount equivalent to the face amount of the temporary disability check, which the employee has been permitted to retain. In all cases, employee benefits are to be computed on the basis of the employee's regular wage or salary prior to the deduction of any amounts for temporary disability payments."
[7] Mt. Diablo is permissibly self-insured and adjusted by Contra Costa County Schools Insurance Group.
[8] A better but still far from perfect analogy is industrial disability leave payable to state employees under Government Code sections 19869 through 19877.1. Industrial disability leave payments count toward the 104 weeks of temporary disability indemnity. (Brooks v. Workers' Comp. Appeals Bd. (2008) 161 Cal.App.4th 1522, 1526 [75 Cal.Rptr.3d 277].) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266640/ | 461 F.Supp. 1159 (1978)
COLONIAL SECURITIES, INC. and Pasquale Catizone, Plaintiffs,
and
Neuberger Securities Corp., Intervenor-Plaintiff,
v.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, Defendant,
Carl Hornung et al., Additional Defendants on Counterclaim.
No. 77 Civ. 1014.
United States District Court, S. D. New York.
December 13, 1978.
*1160 *1161 Gusrae, Greene & Kaplan, New York City, for plaintiffs; Bert L. Gusrae, New York City, of counsel.
Lefrak, Fischer, Myerson & Mandell, New York City, for intervenor-plaintiff; Sander Marc Rabin, Edward R. Mandell, New York City, of counsel.
Brown, Wood, Ivey, Mitchell & Petty, New York City, for defendant Merrill Lynch, Pierce, Fenner & Smith Inc., Roger J. Hawke, Thomas J. Mullaney, New York City, of counsel.
Schwenke & Devine, New York City, for additional defendants; Richard W. Lyon, New York City, of counsel.
OPINION
ROBERT J. WARD, District Judge.
Plaintiffs, Colonial Securities, Inc. ("Colonial") and Pasquale Catizone ("Catizone") bring this action to recover damages resulting from two transactions involving stock delivered to defendant Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") on January 21, 1977 ("the Amdahl transaction") and on February 24, 1977 ("the Kirby transaction"). Defendant Merrill Lynch has asserted a counterclaim against plaintiffs and additional defendants Carl Hornung and Joseph Ward ("Ward") d/b/a J&S Farms, to recover damages resulting from a third transaction ("the Polaroid transaction"). The action was tried before the Court without a jury. For the reasons hereinafter stated, plaintiffs' claims are dismissed and defendant Merrill Lynch is awarded judgment on its counterclaim.
I
The Parties
Plaintiff Colonial, a New Jersey corporation, with its principal place of business at *1162 One Exchange Place, Jersey City, New Jersey, is registered with the Securities and Exchange Commission ("Commission") and the National Association of Securities Dealers ("N.A.S.D.") as a broker and dealer of securities. Plaintiff Catizone, a New Jersey resident, is present of Colonial. Intervenor-plaintiff Neuberger Securities Corp. ("Neuberger") is registered with the Commission and the N.A.S.D. as a broker and dealer of securities. Neuberger has purportedly assigned its claim against Merrill Lynch in the present action to Colonial.
Defendant Merrill Lynch, a Delaware corporation with its principal place of business at One Liberty Plaza, New York, New York, is also registered with the Commission and the N.A.S.D. as a broker and dealer of securities. Additional defendant Carl Hornung, a New York resident, managed accounts at Colonial and Merrill Lynch in the name of J&S Farms. Additional defendant Ward, a New York resident, contributed the capital for the J&S Farms accounts managed by Carl Hornung. Additional defendant Paul Hornung, a New York resident and brother of Carl Hornung, was at all relevant times a partner in New Hampshire Capital Co. ("New Hampshire") and the principal shareholder of Exeter Capital Fund, Inc. ("Exeter"), which had accounts at both Colonial and Merrill Lynch.
II
The Kirby Transaction
Prior to January 21, 1977, defendant Paul Hornung, acting through New Hampshire and Exeter, sold short a total of 10,200 shares of Kirby Exploration Co. ("Kirby") common stock in two special cash accounts at Merrill Lynch for settlement on or before January 21, 1977. Although the New Hampshire and Exeter accounts were nominally separate, Paul Hornung commingled funds between the two accounts and treated them as one. By February 23, 1977, more than a month after the settlement date, none of the 10,200 shares of Kirby had been delivered to Merrill Lynch. On that date, Merrill Lynch bought in 6,200 shares of Kirby for the account of Exeter. As a result of this purchase, and the buy-in of other stock, a debit balance was created in the Exeter account.
On February 24, 1977 Colonial delivered to Merrill Lynch certificates for 1,500 shares of Kirby which it had obtained from Neuberger earlier that day. The delivery bills accompanying the certificates stated that 1,100 of the shares were being delivered "for the account of: Exeter Capital Fund against the amount of: $38,198.96" and that 400 of the shares were being delivered "for the account of: New Hampshire Cap. Fund against the amount of: $13,740.53 vs. trade of 1/21/77." In delivering the Kirby stock to Merrill Lynch, Colonial acted at the request of Paul Hornung and as agent for the New Hampshire and Exeter accounts. Neither Colonial nor Catizone had any beneficial interest in either of the accounts.
The 1,500 shares of Kirby which were delivered to Merrill Lynch had been purchased by Paul Hornung in a special cash account maintained in the name of New Hampshire at Colonial. Prior to making payment for the Kirby shares, Paul Hornung instructed Colonial to deliver the stock to Merrill Lynch against payment of the price at which the stock had previously been sold at Merrill Lynch. Colonial was therefore aware that Paul Hornung was planning to sell the stock before payment and that it would be paid for the Kirby stock only from the proceeds of the sale of that stock at Merrill Lynch.
Merrill Lynch, however, upon accepting delivery of the Kirby certificates did not pay cash to Colonial for New Hampshire's account. Instead, it credited the New Hampshire account with the full price at which the 1,500 shares of Kirby stock had been sold.
During the course of these dealings in Kirby stock, Merrill Lynch made no representations to Colonial or Catizone that it would make a cash payment to Colonial for Colonial's own account, nor did it ever suggest to Colonial that it would pay out any *1163 more than the credit balance which existed in the New Hampshire and Exeter accounts. Nor did Catizone ever inform Merrill Lynch that New Hampshire and Exeter had accounts at Colonial, that Colonial had any transactions with Paul Hornung in Kirby stock, or that Colonial was ever acting as other than delivery agent for its principals.
After crediting New Hampshire for the 1,500 shares of Kirby received in the New Hampshire account, Merrill Lynch bought in, at a loss, on February 24, 1977, the remaining 2,500 shares of Kirby which were overdue in that account.
As a result of these transactions, there existed on February 24, 1977, a net debit balance in the Exeter account of $4,168.76, a net credit balance in the New Hampshire account of $17,643.55, or an overall net credit balance between the two accounts of $13,474.79. If Merrill Lynch had paid out $51,939.49 in cash for the 1,500 shares of Kirby it received on February 24, 1977, instead of crediting the New Hampshire account in that amount, there would have been an unsecured debit of $38,464.70 in the New Hampshire and Exeter accounts.
III
The Amdahl Transaction
Defendant Ward doing business as J&S Farms maintained special cash accounts at the Syracuse and One Liberty Plaza, New York City offices of Merrill Lynch, as well as at other brokerage firms. The capital for the J&S Farms brokerage accounts was contributed by Ward. Carl Hornung was authorized by Ward to manage the accounts and to enter orders for the purchase and sale of securities. However, Merrill Lynch sent account statements directly to Ward.
In December 1976, Ward d/b/a J&S Farms sold short 2,700 shares, 5,400 after a split, of Rovac stock in the Syracuse account. Upon his failure to deliver that stock, Merrill Lynch bought in 5,400 shares for the account of J&S Farms for settlement on January 24 and 26, 1977 at a total cost of $91,960. This buy-in resulted in a debit balance of $36,221.73. On January 21, 1977, Colonial, acting as agent for Ward d/b/a J&S Farms, delivered 1,000 shares of Amdahl stock to Merrill Lynch's New York office against payment of $34,057.50. The delivery was in partial satisfaction of the sale of 3,000 shares of Amdahl which Carl Hornung and Ward d/b/a J&S Farms had previously made at Merrill Lynch in that account.
The 1,000 shares of Amdahl delivered to Merrill Lynch had been purchased by Carl Hornung in a special cash account at Colonial in the name of J&S Farms. The purchase price was $36,586.50. However, neither Carl Hornung nor Joseph Ward d/b/a J&S Farms ever paid Colonial for the stock. Instead, they instructed Colonial to deliver the stock to Merrill Lynch against payment of $34,057.50. The fact that Colonial had not been paid for the Amdahl stock was not disclosed to Merrill Lynch at the time.
The settlement of the Rovac buy-ins had not occurred by January 21, 1977. On that date, Merrill Lynch's New York office believed that the Syracuse account of J&S Farms had sufficient funds to cover the delivery against payment of the 1,000 shares of Amdahl. Accordingly, on January 21, 1977, Merrill Lynch issued a check for $34,057.50 to "Colonial Securities, Inc. a/c J&S Farms." After the settlement of the Rovac buy-ins on January 24th and 26th, Merrill Lynch realized that the J&S Farms account had a credit balance of only $7,025.77, and not in excess of $34,057.50. Upon learning of its mistake, Merrill Lynch stopped payment on its check, advised Carl Hornung and Ward by letter dated January 27, 1977 of the facts and circumstances and offered to issue a check for the sales proceeds of the Amdahl shares upon receipt of a certified check for the cost of the buy-ins.
At the time the Amdahl stock was delivered to Merrill Lynch on January 21, 1977 Colonial was acting as a delivery agent and had no beneficial interest in the J&S Farms account.
IV
The Polaroid Transaction
At some time prior to February 4, 1977, Catizone and Carl Hornung agreed that, as *1164 a means of repaying the debit balance in the J&S Farms account at Colonial, they would purchase a number of shares in the J&S Farms account at Merrill Lynch, obtain delivery of the stock and stop payment on the check given to Merrill Lynch for the purchase of the stock. They selected 1,000 shares of Polaroid because it would yield $33,175.00 approximately the amount that Catizone felt he had lost on the Amdahl transaction.
On Friday, February 4, 1977, Carl Hornung ordered the purchase of 1,000 shares of Polaroid Corporation in a special cash account of J&S Farms at Merrill Lynch. That afternoon, Catizone, acting for Colonial as agent for J&S Farms, personally delivered to Merrill Lynch Colonial's check payable to Merrill Lynch in the amount of $33,175.00, and dated February 7, 1977. He received in exchange a certificate for 1,000 shares of Polaroid Corporation common stock. Catizone knew at the time that Carl Hornung and Ward d/b/a J&S Farms would not and could not pay for the Polaroid stock. At the time Catizone presented Colonial's check to Merrill Lynch, he intended to stop payment on it before it was cashed. On February 7, 1977, Colonial stopped payment on its check to Merrill Lynch. Up until the present time the check has not been paid.
The Polaroid stock was delivered by Catizone into the J&S Farms account at Colonial on February 7th and sold for $32,538.50 on the following day. As a result, Carl Hornung and Ward d/b/a J&S Farms were able to reduce the J&S Farms debt to Colonial by that amount. Neither Catizone, Colonial, Ward d/b/a J&S Farms nor Carl Hornung has ever returned to Merrill Lynch the Polaroid stock which was procured in this transaction or paid Merrill Lynch for it.
V
The Claims of the Parties
Plaintiffs have cast their claims in a number of different counts in their amended complaint. Counts One and Two, seeking injunctive relief and Counts Four and Nine, seeking damages for violation of Section 10(b) of the Securities Exchange Act of 1934 ("Exchange Act"), 15 U.S.C. § 78j(b),[1] and Rule 10b-5, 17 C.F.R. § 240.10b-5,[2] were dismissed on consent at trial. The remaining counts seek damages for breach of contract in the Kirby transaction (Count Three), damages for conversion in the Kirby transaction (Count Five), damages and punitive damages for "willful and malicious acts" in the Kirby transaction (Counts Six and Eight), damages for interference with plaintiffs' contractual rights (Count Seven), damages for common law fraud in Amdahl transaction (Count Ten), damages for breach of contract in the Amdahl transaction (Count Eleven), and damages for stopping the check in the Amdahl transaction (Count Twelve).
*1165 As of June 9, 1977, Paul Hornung had judgments against him in favor of Paine Webber Jackson & Curtis in the amount of $6,000.00 plus interest, Doft & Company in the amount of $11,000.00 and John Meyers in the amount of $12,000.00. Another action pending against him by Kidder, Peabody for $113,000.00 was then in the process of being settled. In August 1977, Paul Hornung executed a purported assignment of the New Hampshire account at Merrill Lynch to Catizone and Colonial. Prior to the assignment, levies in excess of the credit balance in this account were served upon Merrill Lynch by the Sheriffs of New York County, New York and Essex County, New Jersey. Plaintiffs allege that as assignees of Paul Hornung they are entitled to any credit balance in the New Hampshire account at Merrill Lynch and that as assignees of Neuberger's claim against Merrill Lynch they are entitled to either possession of the Kirby stock or its equivalent value.
Defendant Merrill Lynch counterclaims that plaintiffs and additional defendants, Carl Hornung and Ward d/b/a J&S Farms, in the course of the Polaroid transaction violated Section 10(b) and Rule 10b-5 and committed common law fraud.
Discussion
This Court has jurisdiction over the parties and the subject matter of this action based upon diversity of citizenship and pursuant to § 27 of the Exchange Act, 15 U.S.C. §§ 78aa et seq.
Plaintiffs' main contention is that Merrill Lynch's failure to pay Colonial the full cash amount for the Kirby and Amdahl stock upon delivery constituted breach of contract. Specifically, plaintiffs assert that Merrill Lynch and Colonial "entered into binding contracts wherein Merrill [Lynch] agreed to pay Colonial for stock upon Colonial's delivery to Merrill [Lynch]." Plaintiffs further argue that Colonial's agency relationship with the New Hampshire, Exeter, and J&S Farms accounts did not preclude it from entering into binding delivery versus payment contracts directly with Merrill Lynch.
The facts adduced at trial failed to establish any principal-to-principal dealings between Merrill Lynch and Colonial in either the Kirby or Amdahl transactions. Indeed, plaintiff Catizone himself flatly testified, with respect to the Kirby transaction, that Colonial acted solely as delivery agent "for the account of New Hampshire and Exeter," that Colonial had "no purchase or sale transactions with Merrill Lynch," and that Colonial had no "beneficial interest" in the New Hampshire or Exeter accounts. Catizone also testified that Merrill Lynch made no representation that it would make any cash payments to Colonial for Colonial's own account or that it would pay out in cash more than the credit balance in the respective accounts. In sum, all the evidence supports this Court's finding that Colonial acted solely as a delivery agent for disclosed principals in both the Kirby and Amdahl transactions.
It is a well settled rule in the law of agency that a person making or purporting to make a contract with another as an agent for a disclosed principal does not become a party to the contract, absent an agreement or indication to that effect. Restatement (Second) of Agency § 320 (1958). Without such an agreement or indication, the principle of legal identity embodied in the common law maxim Qui facit per alium facit per se, he who acts through another acts himself operates to make the acts of an agent within the scope of his authority, in legal effect, the acts of his principal. It is the principal who is entitled to any advantage flowing from the agent's authorized acts. It is also well settled that an agent cannot maintain an action on a contract in his own name on behalf of his principal unless he is a party to the contract, a transferee, or a holder of an interest in the contract. Restatement (Second) of Agency §§ 363, 372 (1958).
Applying these principles to the present case, the Court concludes that plaintiffs have failed to prove their claim against Merrill Lynch with respect to the Kirby transaction. The record amply demonstrates *1166 that the New Hampshire and Exeter accounts were long overdue in providing Merrill Lynch with the 10,200 shares of Kirby stock which had previously been sold in those accounts and that Paul Hornung owed Merrill Lynch the stock delivered by his agent, Colonial. Merrill Lynch was therefore fully justified in crediting the New Hampshire account with the proceeds of that overdue delivery and in applying the credit against the existing debits.
Nor does the fact that Colonial's dealings with Merrill Lynch were in the form of "delivery versus payment" transactions support plaintiffs' contention. As defendant quite properly points out, the form of delivery begs the question of whether there were any direct contracts or principal-to-principal dealings between Colonial and Merrill Lynch. The "delivery" of stock was made by Colonial for the account of its principals, not for the account of Colonial; likewise, the "payment" against delivery was for the account of Colonial's principals, not for its own account.
Similarly, the record supports this Court's conclusion that plaintiffs have failed to prove any claim for relief against Merrill Lynch arising from the Amdahl transaction. The uncontroverted evidence presented at trial establishes that Colonial acted solely as an agent for Carl Hornung and Ward d/b/a J&S Farms in delivering 1,000 shares of Amdahl stock to Merrill Lynch on January 21, 1977. The evidence also conclusively establishes that Carl Hornung and Ward owed Merrill Lynch 3,000 shares of Amdahl stock on January 21, 1977 because of previous sales transactions in the J&S Farms accounts at Merrill Lynch's Syracuse office. Inasmuch as Merrill Lynch did not owe Ward d/b/a J&S Farms or Carl Hornung $34,057.50 on January 21, 1977, the issuance of a check to Colonial for the account of J&S Farms on that date, in that amount, was a mistake and Merrill Lynch was justified in stopping payment on the check. When Merrill Lynch received the 1,000 shares of Amdahl for the account of J&S Farms, it was under no obligation to pay Colonial for its own account an amount it did not owe to Colonial's principals, Ward or Carl Hornung.
Plaintiffs' additional contentions that Merrill Lynch was guilty of wrongful conversion, common law fraud, and other "willful and malicious acts" in the Kirby and Amdahl transactions appear to be little more than restatements of their breach of contract claims and, in any event, are equally without merit. It is clear, as noted above, that Colonial delivered the Kirby and Amdahl stock to Merrill Lynch because the principals on whose behalf Colonial acted owed those shares to Merrill Lynch. Moreover, it is clear that Colonial's principals received full credit for the price at which the stock had been sold in their Merrill Lynch accounts. There was thus nothing wrongful, fraudulent or malicious in Merrill Lynch's refusal in both the Kirby and Amdahl transactions to pay Colonial. If Colonial has not been paid for the Kirby and Amdahl stock which it purchased and delivered to Merrill Lynch on behalf of New Hampshire, Exeter and J&S Farms, Colonial's remedy lies in an action against its principals for breach of their duty to reimburse their agent not against Merrill Lynch.
Accordingly, Count Three, Counts Five through Eight, and Counts Ten through Twelve of the amended complaint are dismissed.
The Neuberger and Hornung Assignments
Shortly after the commencement of trial, intervenor-plaintiff Neuberger entered into a stipulation with Colonial assigning its claim against Merrill Lynch to Colonial.[3] Shortly before trial, Colonial obtained the purported assignment of Paul Hornung's credit balance in the New Hampshire account at Merrill Lynch. Neither *1167 of these assignments improves Colonial's position in the present action.
Under New York's Uniform Commercial Code ("the Code"), Section 8-301(2), a "bona fide purchaser" acquires both the rights in a security which his transferor had and the security free of any adverse claim. An adverse claim is defined to include "a claim that a transfer was or would be wrongful or that a particular adverse person is the owner of or has an interest in the security." U.C.C. § 8-301(1). A bona fide purchaser is defined as "a purchaser for value in good faith and without notice of any adverse claim . . .." U.C.C. § 8-302.
Although Colonial now asserts that Merrill Lynch was not a bona fide purchaser of the Kirby shares because it had notice of an adverse claim Colonial's own claim Colonial failed to offer any evidence whatsoever at trial to support its assertion. Indeed, all the evidence presented at trial supports the conclusion that Merrill Lynch received the Kirby stock as a bona fide purchaser without notice.
With respect to the first of the three required elements for establishing bona fide purchaser status, it is clear that Merrill Lynch acquired the Kirby shares for "value." Having received the stock for the account of its customer, who had previously sold the stock, and having promptly credited the sales price to its customer's account, the Court finds that Merrill Lynch acquired it in "partial satisfaction of a pre-existing claim," U.C.C. § 1-201(44)(b), and thus for value within the meaning of the Code.
Likewise, there is nothing in the record to support the argument that Merrill Lynch did not act "honestly in fact" in the Kirby transaction and therefore failed to meet the Code's good faith requirement. U.C.C. § 1-201(19). On the contrary, plaintiff Catizone admitted that he never informed Merrill Lynch that the Kirby stock had been purchased at Colonial and that he never discussed Paul Hornung's transactions at Colonial with Merrill Lynch. There was thus no reason for Merrill Lynch to suspect that Colonial had any interest in the securities being delivered for the New Hampshire and Exeter accounts.
Finally, there is simply no evidence that Merrill Lynch had notice of any adverse claim to the Kirby shares. The record fully supports defendant's assertion that it received the 1,500 shares of the Kirby stock in the good faith belief that the stock had been paid for by the customer on whose behalf it was delivered.
Accordingly, the Court concludes that Merrill Lynch's status as a bona fide purchaser of the Kirby stock requires the dismissal of Neuberger's assigned claim.
The Court further concludes that whether plaintiffs are entitled to recover on the purported assignment of Paul Hornung's credit balance at Merrill Lynch cannot properly be determined in the context of the present action inasmuch as the parties failed to address this as an issue at trial. The Court is of the view that, in the absence of any apparent prejudice to the parties, the validity of the Hornung assignment should be determined in a separate interpleader action where all the claimants whose interests would be affected by such a ruling might be afforded an opportunity to be heard.
Therefore, the claim based upon the Paul Hornung assignment is dismissed without prejudice.
The Polaroid Transaction
On its counterclaim, Merrill Lynch asserts that plaintiffs and Carl Hornung violated § 10(b) of the Exchange Act, and Rule 10b-5 promulgated by the Securities and Exchange Commission, and committed common law fraud in the Polaroid transaction in order to compensate Catizone for a debt which Carl Hornung had incurred on behalf of Ward d/b/a J&S Farms in connection with the earlier purchase of Amdahl stock at Colonial.
It has long been established New York law that it is an act of fraud to purchase or secure goods with a preconceived intention not to pay for them. Nichols v. Michael, 23 N.Y. 264, 266 (1861); Hall v. Naylor, 18 *1168 N.Y. 588, 589 (1859); Security Trust Co. v. Voxakis, 67 Misc.2d 143, 144, 323 N.Y.S.2d 810, 812 (Sup.Ct. Monroe Co. 1971). Where the evidence is "clear and convincing" the party alleging fraud has met his burden of proof. Manchel v. Kasdan, 286 A.D. 483, 484, 144 N.Y.S.2d 694, 695 (1st Dep't 1955), aff'd mem., 1 N.Y.2d 734, 151 N.Y.S.2d 940, 134 N.E.2d 687 (1956).
In the instant case, the Court concludes that defendant has met this burden. Although plaintiff Catizone testified that he did not consider stopping Colonial's check until he analysed the J&S Farms account at Colonial on the day after tendering his check to Merrill Lynch and realized there was an insufficient credit balance to cover the purchase price of the Polaroid shares, the Court having assessed his demeanor rejects his statement. All the credible evidence indicates that, from the outset, Catizone and Carl Hornung intended to pass on Catizone's loss on the Amdahl transaction to Merrill Lynch. Carl Hornung himself admitted, in the course of his pre-trial deposition, that 1,000 shares of Polaroid stock were arbitrarily chosen because they closely approximated the value of the Amdahl stock on which Merrill Lynch had stopped payment and would allow Colonial to "return the favor" to Merrill Lynch. Moreover, the Court finds highly persuasive evidence of Catizone's preconceived intent to defraud the defendant in the fact that the check delivered to Merrill Lynch on February 4, 1977 in exchange for the Polaroid certificates was post-dated February 7, 1977 and was in fact stopped early that morning. When viewed in conjunction with the accelerated manner in which the entire Polaroid transaction was conducted the expedited transfer of the Polaroid shares to a nominee of Colonial early on the morning of February 7, 1977 and the prompt sale of that stock the next day the issuance of the post-dated check fully warrants the finding that Catizone and Carl Hornung had no intention of paying Merrill Lynch for the Polaroid stock when it was purchased on February 4, 1977 and therefore committed common law fraud.
Having reached this conclusion, the Court need not decide whether the "garden type variety of fraud" present here sufficiently affects the strong public interest in maintaining the integrity of the securities markets as to constitute a violation of § 10(b) of the Exchange Act and Rule 10b-5. See A. T. Brod & Co. v. Perlow, 375 F.2d 393, 396-97 (2d Cir. 1967).
Inasmuch as Joseph Ward authorized Carl Hornung to act on his behalf, knowingly received and accepted delivery of the fraudulently obtained stock in his account at Colonial, knowingly benefitted from the fraud by selling that stock in his account in order to reduce his debt to Colonial, and failed to return the Polaroid stock to Merrill Lynch or pay for it, he too is liable to Merrill Lynch in the same amount. Taylor v. Commercial Bank, 174 N.Y. 181, 188, 66 N.E. 726, 728 (1903).
Accordingly, the Court concludes that Colonial, Catizone, Carl Hornung, and Joseph Ward d/b/a J&S Farms are jointly and severally liable to Merrill Lynch on its counterclaim in the amount of $33,175 plus interest for fraud in obtaining 1,000 shares of Polaroid on February 4, 1977.
The foregoing constitutes the findings of fact and conclusions of law of the Court for the purposes of Rule 52, Fed.R.Civ.P.
Settle judgment on notice.
NOTES
[1] Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), provides:
It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange
* * * * * *
(b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.
[2] Securities and Exchange Commission Rule 10b-5, 17 C.F.R. § 240.10b-5, provides:
It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails, or of any facility of any national securities exchange,
(1) to employ any device, scheme, or artifice to defraud,
(2) to make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
(3) to engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.
[3] Neuberger's claim arose from Colonial's stopping payment on the check which the latter tendered to Neuberger for the Kirby stock on February 24, 1977. Neuberger alleged that Merrill Lynch did not receive good title to the Kirby stock from Colonial, because Colonial merely had voidable title. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2214004/ | 891 N.E.2d 35 (2008)
DAMMEYER
v.
MILLER.
Supreme Court of Indiana.
January 10, 2008.
Transfer denied. All Justices concur, except Shepard, C.J., who votes to grant transfer. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2214007/ | 891 N.E.2d 38 (2008)
BEE
v.
STATE.
Supreme Court of Indiana.
January 31, 2008.
Transfer denied. All Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1582495/ | 31 So. 3d 1057 (2010)
STATE ex rel. Robert GRAHAM
v.
STATE of Louisiana.
No. 2009-KH-1096.
Supreme Court of Louisiana.
April 16, 2010.
Reconsideration denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266662/ | 165 Cal.App.4th 1237 (2008)
HENRY AVILA, Plaintiff and Appellant,
v.
CONTINENTAL AIRLINES, INC., Defendant and Respondent.
No. B196603.
Court of Appeals of California, Second District Division Five.
August 11, 2008.
*1243 Mancini & Associates, Marcus A. Mancini; Benedon & Serlin, Gerard M. Serlin and Kelly R. Horwitz for Plaintiff and Appellant.
Law Offices of Steven Drapkin and Steven Drapkin for Defendant and Respondent.
OPINION
MOSK, J.
INTRODUCTION
Plaintiff and appellant Henry Avila (plaintiff) appeals from a summary judgment entered against him on his claims that he was discharged from his employment with Chelsea Food Services (Chelsea), a division of defendant and respondent Continental Airlines, Inc. (Continental), in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12940 et seq.),[1] California's Moore-Brown-Roberti Family Rights Act (§ 12945.2; CFRA), and public policy. We affirm the summary adjudication of plaintiff's FEHA claims because plaintiff failed to raise a triable issue as to whether the Continental employees who made the decision to discharge him knew of his alleged disability at the time they made that decision. We reverse the summary adjudication of plaintiff's CFRA and public policy claims, however, because there are triable issues of fact as to whether plaintiff submitted material to Continental that constituted a request for CFRA-qualifying leave. Although the forms plaintiff asserts he submitted to Continental were insufficient to put Continental on notice that he was disabled for purposes of FEHA, they could suggest that plaintiff had suffered a "serious medical condition" as defined in CFRA and could be viewed as a request for leave under CFRA. If, as plaintiff's evidence shows, he was terminated because of absences for a period that was subject to a request for CFRA leave, plaintiff has a CFRA claim.
BACKGROUND
A. Factual Background[2]
Chelsea was in the business of airline food catering at Los Angeles International Airport (LAX) and other locations. Plaintiff worked for Chelsea *1244 from 1998 through January 2005. Chelsea's attendance policy in effect throughout plaintiff's employment stated that an employee would be terminated if he or she accrued seven or more "recordable" absences in any rolling 12-month period. A "recordable" absence was any absence other than specified nonrecordable incidents. Approved short-term disability and approved family medical leave both were nonrecordable incidents if prearranged. An absence was recorded for each day of missed work unless the employee provided a doctor's note justifying the absence for medical reasons. If a doctor certified the employee's illness, only one absence would be recorded, even if the employee was absent for multiple days. Plaintiff was terminated in 2001 for violating the attendance policy, but was later reinstated. He had been warned about his attendance on other occasions.
In December 2004, plaintiff was hospitalized for acute pancreatitis and missed four days of work. Plaintiff testified that, when he returned to work, he provided two medical forms from Kaiser Permanente (the Kaiser forms) establishing that he had been hospitalized.[3] Plaintiff also testified that, after he returned to work, he told approximately "50 persons"his "close friends probably"that he had been sick. He did not talk to his supervisors, however. Plaintiff was charged two recordable absences for his illness and recuperation, bringing his total number of recordable absences to six for the relevant 12-month period.
During January 2005, plaintiff incurred another recordable absence. On January 18, 2005, Chelsea's human resources manager Daysi Bellamy determined that plaintiff had been absent from work seven times in the preceding 12 months, and on that basis determined that plaintiff would be suspended and terminated. The absences relied on by Bellamy in reaching that decision are set forth on a monthly employee attendance review dated January 18, 2005, which document does not set forth the reasons for any of plaintiff's absences. Bellamy's decision to discharge plaintiff was approved by Chelsea's LAX general manager Judy Tanes and a human resources manager for Continental in Houston, neither of whom had any independent knowledge of plaintiff's employment situation. The next day, at Bellamy's direction, *1245 assistant operations manager Leonard Johnson suspended plaintiff from his employment and told plaintiff that his employment probably would be terminated. Plaintiff told Johnson that he had been "sick."
Sometime prior to January 25, 2005, Bellamy informed Johnson that a decision had been made to terminate plaintiff's employment. Bellamy and Johnson met with plaintiff on January 25 and informed him that he was discharged, effective immediately. Plaintiff testified that, after he was told his employment was being terminated, he told Bellamy and Johnson that he had been hospitalized with pancreatitis. The next day, plaintiff and his nephew prepared and delivered a letter to general manager Judy Tanes explaining plaintiff's illness, providing the medical records related to plaintiff's hospitalization, and requesting plaintiff's reinstatement. Plaintiff also requested an appeal hearing pursuant to company policy. A divided company appeal board upheld the termination.
B. Procedural Background
Plaintiff commenced this action in October 2005. By late 2006, the only surviving claims were against Continental for (1) disability discrimination in violation of FEHA; (2) failure reasonably to accommodate plaintiff's disability in violation of FEHA; (3) wrongful termination in retaliation for plaintiff's exercise of his rights under CFRA; and (4) a Tameny[4] claim for wrongful termination in violation of public policy. Continental moved for summary judgment. The trial court granted Continental's motion, concluding that (1) because Continental had no knowledge of plaintiff's disability and therefore did not terminate him because of that disability, plaintiff had no valid FEHA claim; (2) because plaintiff did not request reasonable accommodation, he could not maintain a FEHA failure-to-accommodate claim; (3) plaintiff's CFRA claim failed because plaintiff did not request leave or an accommodation under CFRA for his illness; and (4) plaintiff's Tameny claim could not proceed because that claim was predicated on his insufficient claims under FEHA and CFRA. The trial court entered judgment for Continental. Plaintiff timely appealed.
DISCUSSION
A. Standard of Review
On an appeal from a grant of summary judgment, we examine the record de novo to determine whether triable issues of material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767 [107 Cal.Rptr.2d 617, *1246 23 P.3d 1143].) We view the evidence in a light favorable to, and resolve any evidentiary doubts or ambiguities in favor of, the nonmoving party. (Id. at pp. 768-769.) The moving party bears the burden to demonstrate "that there is no triable issue of material fact and that [it] is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850, fn. omitted.) If the moving party makes a prima facie showing, the burden shifts to the party opposing summary judgment "to make [its own] prima facie showing of the existence of a triable issue of material fact." (Ibid.) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Ibid., fn. omitted.)
B. FEHA Claims
1. The Disability Discrimination Claim
FEHA provides, in relevant part, that "[i]t shall be an unlawful employment practice . . . [¶] (a) For an employer, because of the . . . physical disability [or] medical condition . . . of any person, to refuse to hire or employ the person . . . or to bar or to discharge the person from employment. . . ." (§ 12940, subd. (a); see Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 925-926 [70 Cal.Rptr.3d 382, 174 P.3d 200].) FEHA proscribes two types of disability discrimination: (1) discrimination arising from an employer's intentionally discriminatory act against an employee because of his or her disability (referred to as disparate treatment discrimination), and (2) discrimination resulting from an employer's facially neutral practice or policy that has a disproportionate effect on employees suffering from a disability (referred to as disparate impact discrimination). (Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 128-129 [33 Cal.Rptr.3d 287].) In opposing summary judgment, plaintiff asserted only disparate treatment discrimination.
To establish a prima facie case for disparate treatment discrimination, plaintiff must show (1) he suffers from a disability, (2) he is otherwise qualified to do his job, (3) he suffered an adverse employment action, and (4) the employer harbored discriminatory intent. (See Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355 [100 Cal.Rptr.2d 352, 8 P.3d 1089]; Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 342 [77 Cal.Rptr.3d 654] ["`"[T]he plaintiff must prove the ultimate fact that the defendant engaged in intentional discrimination."'"]; Knight v. Hayward Unified School Dist., supra, 132 Cal.App.4th at p. 128; Faust v. California Portland Cement Co. *1247 (2007) 150 Cal.App.4th 864, 886 [58 Cal.Rptr.3d 729].) "An adverse employment decision cannot be made `because of a disability, when the disability is not known to the employer." (Brundage v. Hahn (1997) 57 Cal.App.4th 228, 236 [66 Cal.Rptr.2d 830]; see also Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1046 [32 Cal.Rptr.3d 436, 116 P.3d 1123] [no FEHA retaliation claim "where there is no evidence the employer knew" that the employee was engaging in protected conduct]; Trop v. Sony Pictures Entertainment Inc. (2005) 129 Cal.App.4th 1133, 1145 [29 Cal.Rptr.3d 144] ["An employee cannot make out a prima facie case of discrimination based on pregnancy under FEHA in the absence of evidence the employer knew the employee was pregnant."]; Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 70 [105 Cal.Rptr.2d 652] ["`Essential to a causal link is evidence that the employer was aware that the plaintiff had engaged in the protected activity.'"].)
To prevail on summary judgment, Continental was required to show either that (1) plaintiff could not establish one of the elements of the FEHA claim, or (2) there was a legitimate, nondiscriminatory reason for its decision to terminate plaintiff's employment. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at pp. 355-356; Kelly v. Stamps.com Inc. (2005) 135 Cal.App.4th 1088, 1097-1098 [38 Cal.Rptr.3d 240]; see 3 Chin, et al., Cal. Practice Guide: Employment Litigation (The Rutter Group 2008) ¶ 19:728, p. 19-81.) Continental submitted evidence and the trial court concluded that plaintiff could not prove discriminatory intent because Bellamy and Johnson, the Continental employees who made the decision to discharge plaintiff, did not know of plaintiff's disability. The issue on appeal is thus whether plaintiff's evidence raised a triable issue of material fact with respect to whether Bellamy and Johnson knew of plaintiff's disability when they decided to discharge him. Plaintiff relies on evidence that (1) he "provided his supervisors medical forms confirming he had been hospitalized," (2) he "told numerous co-workers that he had had pancreatitis," (3) he asked Bellamy and the review board "why he was being penalized for his hospitalization," and (4) he and his nephew wrote a letter to Chelsea general manager Judy Tanes detailing his medical problems and attaching his medical records. Plaintiff's evidence fails to raise a triable issue of material fact.
a. The Kaiser Forms
(i) Relevant Background
The Kaiser forms are preprinted forms from Kaiser Permanente called "Documentation of Medical Impairment" forms. Plaintiff testified that he submitted two Kaiser forms to Continental. One Kaiser form, dated December 15, 2004, stated that plaintiff visited the Kaiser Permanente South Bay *1248 Medical Center for an illness or injury that began that same day. Under a section with the heading "Employer InstructionsRecommended Impact on Work," the form stated that plaintiff was unable to work for one day. The second Kaiser form, dated December 19, 2004, indicated that plaintiff was admitted to the hospital on December 16 and discharged on December 19. In the section headed "Employer InstructionsRecommended Impact on Work," the form stated that plaintiff was unable to work for five days, beginning on December 16 and ending on December 21. A handwritten comment says, "OK to return to work on 12/21/04." Neither Kaiser form indicated that plaintiff required any restrictions on his work activities going forward, and neither contained diagnostic or other information to indicate the nature of plaintiff's illness or injury. Plaintiff testified that he gave the Kaiser forms to the manager on duty at Chelsea when he returned to work, although he could not recall to whom he gave the forms and admitted that he might have left the forms on the manager's desk rather than personally handing them to someone. The trial court concluded that the Kaiser forms were insufficient to raise a triable issue because they did not identify plaintiff's illness "let alone a `disability,'" and plaintiff's testimony about "to whom he gave the Kaiser form . . . is at best equivocal and at worst contradictory and inconclusive."
(ii) Discussion
Under section 12926, subdivision (k), "`[t]he touchstone of a qualifying [physical] disability is an actual or perceived physiological disorder which affects a major body system and limits the individual's ability to participate in one or more major life activities.'" (Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 353-354 [118 Cal.Rptr.2d 443], quoting Cassista v. Community Foods, Inc. (1993) 5 Cal.4th 1050, 1061 [22 Cal.Rptr.2d 287, 856 P.2d 1143].) Physical disabilities do not include "sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs." (§ 12926, subd. (k)(6).)
As noted above, to show that Continental acted with discriminatory intent, plaintiff was required to produce evidence that the Continental employees who decided to discharge him knew of his disability. (Brundage v. Hahn, supra, 57 Cal.App.4th at pp. 236-237.) "While knowledge of the disability can be inferred from the circumstances, knowledge will only be imputed to the employer when the fact of disability is the only reasonable interpretation of the known facts. `Vague or conclusory statements revealing an unspecified incapacity are not sufficient to put an employer on notice of its obligations under the [FEHA].' [Citations.]" (Id. at p. 237.)
*1249 The Kaiser forms did not contain sufficient information to put Continental on notice that plaintiff suffered from a disability.[5] Reading the Kaiser forms most favorably to plaintiff, the forms communicated only that plaintiff was unable to work on four workdays (Dec. 15, 16, 17 & 20) due to an unspecified condition, and that plaintiff was hospitalized for three days. The forms did not specify that plaintiff suffered from pancreatitis or any other condition that qualified as a disability under section 12926, subdivision (k). Informing Continental merely that plaintiff had been hospitalized was not sufficient to put Continental on notice that plaintiff was suffering from a qualifying disability. (See Burch v. Coca-Cola Co. (5th Cir. 1997) 119 F.3d 305, 317 [citing cases under ADA[6] rejecting proposition that "any condition requiring temporary hospitalization is disabling . . ."].) Plaintiff might have been hospitalized for reasons other than disabilityfor example, he might have had minor elective surgery, or he might have sought preventive treatment for some other condition that was not disabling. From Continental's point of view, the fact that plaintiff was hospitalized for only three days and then returned to work days later without restrictions or accommodations is consistent with the conclusion that plaintiff did not suffer from a condition that qualifies as a disability.
Moreover, in his response to Continental's separate statement of undisputed facts, plaintiff did not assert that the evidence raised a triable issue that Bellamy and Johnson knew that plaintiff was disabledrather, plaintiff asserted that his evidence established that "Johnson and Bellamy knew Plaintiff was sick." (Italics added.) "Not every illness qualifies as [a] disability. . . ," however. (Mont-Ros v. City of West Miami (S.D.Fla. 2000) 111 F.Supp.2d 1338, 1352 [applying ADA]; see also Arteaga v. Brink's, Inc., supra, 163 Cal.App.4th at p. 348 ["Pain alone does not always constitute or establish a disability."].) Accordingly, that plaintiff suffered a disability was not "the only reasonable interpretation of the information in the Kaiser forms. (Brundage v. Hahn, supra, 57 Cal.App.4th at p. 237 [employer's knowledge that employee "had taken a substantial amount of leave for medical appointments" insufficient to establish employer's knowledge of disability]; see also Crandall v. Paralyzed Veterans of America (D.C.Cir. 1998) 330 U.S. App.D.C. 381 [146 F.3d 894, 896-897] ["the employer must have acted with an awareness of the disability itself, and not merely an awareness *1250 of some deficiency in the employee's performance that might be a product of an unknown disability"].)
b. Plaintiff Told Other Chelsea Employees
Plaintiff testified that, when he returned to work, "[p]eoplethey always ask why you were sick. Obviously, I have to tell them why I was sick." Plaintiff could not "mention names, because probably I would have to tell you 50 person [sic]" who were plaintiff's "close friends probably." Plaintiff specified, however, that he did not discuss his pancreatitis with Chelsea's managers, including Johnson. Plaintiff believed he did not "have to tell the managers because the managers already know by the letters" (presumably, the Kaiser forms).
Plaintiff asserts that this testimony raised a triable issue whether Bellamy and Johnson knew of his alleged disability. We disagree. Plaintiff testified he did not tell Johnson or any of Chelsea's other managers that he suffered from pancreatitis. Plaintiff submitted no evidence that any of the "close friends" whom plaintiff told "why [he] was sick" actually relayed or had a duty to relay that information to Bellamy, Johnson or anyone else involved in the decision to discharge plaintiff. There is no basis to impute to Bellamy or Johnson actual knowledge of plaintiff's statements to his coworkers concerning his disability. (See Morgan v. Regents of University of California, supra, 88 Cal.App.4th at p. 73 [evidence that employer's decision makers were not aware that the plaintiff had filed a grievance was not controverted on summary judgment by evidence that other supervisory employees, who were not involved in the adverse employment decisions, knew of plaintiff's grievance]; see also Woodman v. WWOR-TV, Inc. (2d Cir. 2005) 411 F.3d 69, 87 [in federal age discrimination case, plaintiff's testimony that she told other employees her age was insufficient to raise triable issue; "[t]o defeat summary judgment, [plaintiff] was obliged to do more than produce evidence that someone at [employer company] knew her age. [Plaintiff] was obliged to offer evidence indicating that persons who actually participated in her termination decision had such knowledge"]; Hedberg v. Indiana Bell Telephone Co., Inc. (7th Cir. 1995) 47 F.3d 928, 931-932 [immediate supervisor's knowledge of employee's disability not imputed to decision maker in higher management]; Rogers v. CH2M Hill, Inc. (M.D.Ala. 1998) 18 F.Supp.2d 1328, 1337-1338 [in ADA case, nonmanagement employee's knowledge of fellow employee's depression "in no way reflect[s] the knowledge of employer].)
Plaintiff argues in his reply brief that knowledge of his disability could be "imputed to a decision-maker where others who provided information to the decision-maker knew of the [disability], or where it was reasonable that the *1251 decision-maker would know of such [disability]." The cases plaintiff relies upon do not support that proposition. Rather, two of those cases hold that when an employment decision is influenced by several people, "a decision maker's ignorance does not `categorically shield the employer from liability if other substantial contributors to the decision bore the requisite animus. [Citation.]'" (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 421 [69 Cal.Rptr.3d 1], quoting Reeves v. Safeway Stores, Inc. (2004) 121 Cal.App.4th 95, 110 [16 Cal.Rptr.3d 717].) Plaintiff submitted no evidence that any of the coworkers to whom he spoke about "why [he] was sick" was a "substantial contributor" to the decision to discharge him. The third case relied upon by plaintiff, Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216 [51 Cal.Rptr.3d 206], disapproved on another ground in Jones v. The Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158 [72 Cal.Rptr.3d 624, 177 P.3d 232], held that a plaintiff had pleaded sufficient facts from which to infer a causal link between the employer's adverse employment action and the plaintiff's protected activity when the plaintiff alleged that the employer's decision maker took the adverse action "within days" of the plaintiff's protected activity and told other management personnel that the plaintiff was a "troublemaker." (Taylor v. City of Los Angeles Dept. of Water & Power, supra, 144 Cal.App.4th at p. 1236.) No such facts are in evidence in this case.
c. Posttermination Statements
Plaintiff testified that, after he was informed by Bellamy and Johnson that his employment was terminated, he informed Bellamy that he had been hospitalized with pancreatitis. Further, the day after he met with Bellamy and Johnson, he submitted a letter to general manager Judy Tanes explaining that plaintiff had been hospitalized with acute pancreatitis. Plaintiff submitted with the letter medical records related to his hospitalization. Plaintiff also testified that he told the company appeal board that he had had pancreatitis.
None of this evidence assists plaintiff. Evidence that a decision maker learned of a plaintiff's disability after deciding to take adverse employment action is not probative of whether the decision maker was aware of the plaintiff's disability when he or she made the decision. Such evidence is irrelevant to determining whether the decision maker acted from a discriminatory animus. (Brundage v. Hahn, supra, 57 Cal.App.4th at pp. 236-237 [decision maker must be aware of disability "when the adverse employment decision was made"]; see also Hedberg v. Indiana Bell Telephone Co., Inc., supra, 47 F.3d at pp. 931-932 [no discrimination when decision maker was informed of plaintiff's disability after making decision to discharge him].) *1252 The trial court properly granted summary judgment on plaintiff's FEHA discrimination claim.
2. FEHA Failure-to-Accommodate Claim
Section 12940, subdivision (m) provides that it is an unlawful employment practice "[f]or an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee." "Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. [Citation.] Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith. [Citation.]" (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54 [43 Cal.Rptr.3d 874]; see generally 2 Chin, et al., California Practice Guide: Employment Litigation, supra, ¶ 9:2346, p. 9-184.) The trial court granted summary judgment on the ground that plaintiff failed to raise a triable issue that he requested an accommodation from Continental. In his response to Continental's separate statement, plaintiff cited evidence that (1) he called in sick on December 15, 16 and 19 (the latter call for Monday, December 20); and (2) he submitted a medical excuse (the Kaiser forms) for his relevant absences.[7]
Section 12940, subdivision (m) requires an employer to accommodate only a "known physical . . . disability." (Italics added; see also Cal. Code Regs., tit. 2, § 7293.9.) The employee bears the burden of giving the employer notice of his or her disability. (Raine v. City of Burbank (2006) 135 Cal.App.4th 1215, 1222 [37 Cal.Rptr.3d 899].) Although no particular form of request is required (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 954 [62 Cal.Rptr.2d 142]), "`[t]he duty of an employer reasonably to accommodate an employee's handicap does not arise until the employer is "aware of respondent's disability and physical limitations." [Citations.]'" (Id. at pp. 949-950.) "`[T]he employee can't expect the *1253 employer to read his mind and know he secretly wanted a particular accommodation and sue the employer for not providing it. Nor is an employer ordinarily liable for failing to accommodate a disability of which it had no knowledge. . . .' [Citation.]" (Id. at p. 954.)
As discussed above, the information in the Kaiser forms was not sufficient to put Continental on notice that plaintiff suffered a disability covered by FEHA. Further, evidence that plaintiff "called in sick"without further evidence regarding to whom at Continental plaintiff spoke or what plaintiff saidis inadequate to support a conclusion that plaintiff informed Continental of his disability or the physical limitations it caused, such that Continental was on notice that plaintiff required accommodation. Plaintiff cites no authority to the contrary. The trial court properly granted summary judgment on plaintiff's FEHA claims.
Continental terminated plaintiff for being absent. In a case of medical emergency, plaintiff might have shown after the fact that his absence was due to a qualifying disability, but plaintiff in this case did not timely present to the appropriate managers information that his absence was due to a qualifying disability. The termination therefore does not violate FEHA.
C. CFRA Claim
Plaintiff asserts that he was discharged in retaliation for taking leave under CFRA. CFRA "is intended to give employees an opportunity to take leave from work for certain personal or family medical reasons without jeopardizing job security." (Nelson v. United Technologies (1999) 74 Cal.App.4th 597, 606 [88 Cal.Rptr.2d 239].) In general, CFRA makes it an unlawful employment practice for an employer of 50 or more persons to refuse to grant an employee's request to take up to 12 "workweeks" in any 12-month period for family care and medical leave. (§ 12945.2, subds. (a), (c)(2)(A); see generally Lonicki v. Sutter Health Central (2008) 43 Cal.4th 201, 208-209 [74 Cal.Rptr.3d 570, 180 P.3d 321] (lead opn. of Kennard, J.).) CFRA also prohibits an employer "to refuse to hire, or to discharge, fine, suspend, expel, or discriminate against, any individual because of" his or her "exercise of the right to family care and medical leave provided by subdivision (a)." (§ 12945.2, subd. (l)(1); see also Cal. Code Regs., tit. 2, § 7297.7, *1254 subd. (a).) This antidiscrimination provision prevents employers from counting CFRA leave as absences under a no-fault attendance policy. (Cal. Code Regs., tit. 2, § 7297.10, incorporating by reference, inter alia, 29 C.F.R. § 825.220(d) (2008).)[8]
"Family care and medical leave" includes "[l]eave because of an employee's own serious health condition that makes the employee unable to perform the functions of the position of that employee," with certain exceptions relating to pregnancy or childbirth. (§ 12945.2, subd. (c)(3)(C).) A "serious health condition" is defined as "an illness, injury, impairment, or physical or mental condition that involves either of the following: [¶] (A) Inpatient care in a hospital, hospice, or residential health care facility. [¶] (B) Continuing treatment or continuing supervision by a health care provider." (§ 12945.2, subd. (c)(8); see Cal. Code Regs., tit. 2, § 7297.0, subd. (o).) That is, "for an employee to be entitled to a medical leave for her own serious health condition, the condition must cause her to be unable to work at all or unable to perform one or more of the essential functions of her position." (Neisendorf v. Levi Strauss & Co., supra, 143 Cal.App.4th at pp. 516-517.)
"[T]he elements of a cause of action for retaliation in violation of CFRA . . . are as follows: (1) the defendant was an employer covered by CFRA; (2) the plaintiff was an employee eligible to take CFRA leave; (3) the plaintiff exercised her right to take leave for a qualifying CFRA purpose; and (4) the plaintiff suffered an adverse employment action, such as termination. . . , because of her exercise of her right to CFRA leave." (Dudley v. Department of Transportation, supra, 90 Cal.App.4th at p. 261; accord, Faust v. California Portland Cement Co., supra, 150 Cal.App.4th at p. 885.) The trial court granted summary judgment on the ground that plaintiff's only evidence that he requested CFRA leave was that he called in sick, which the trial court deemed to be insufficient as a matter of law.
1. Triable Issue of Adequate Request
As with his FEHA failure-to-accommodate claim, plaintiff cited in his response to Continental's separate statement evidence that (1) he called in sick on December 15, 16 and 19 (for Dec. 20); and (2) he submitted a *1255 medical excuse (the Kaiser forms) for his relevant absences.[9] Defendant argues that neither plaintiff's calling in sick nor the Kaiser forms constituted a "request" for CFRA leave because in neither case did plaintiff "request" or "ask for" leave.
That plaintiff called in sick was, by itself, insufficient to put Continental on notice that he needed CFRA leave for a serious health condition. (See Gibbs v. American Airlines, Inc. (1999) 74 Cal.App.4th 1, 9 [87 Cal.Rptr.2d 554] ["an employee who calls in sick to work for several days while taking antibiotics for an apparent flu has not provided her employer with `notice sufficient to make the employer aware that the employee needs CFRA-qualifying leave'"]; see also Stevens v. Department of Corrections (2003) 107 Cal.App.4th 285, 292 [132 Cal.Rptr.2d 19] ["in the context of leave for an employee's own serious health condition, the mere notice that an employee seeks to use sick time is insufficient to place the employer on notice that the employee seeks CFRA-qualifying leave"] [dictum].)
Plaintiff, however, also testified that he provided Continental with the Kaiser forms. The December 19 Kaiser form indicated that plaintiff had been hospitalized for three days. As noted above, CFRA defines as a "serious health condition" any "illness, injury, impairment, or physical or mental condition that involves . . . [¶] . . . [i]npatient care in a hospital." (§ 12945.2, subd. (c)(8); see Cal. Code Regs., tit. 2, § 7297.0, subd. (o).) Whether notice is sufficient under CFRA is a question of fact. (See Manuel v. Westlake Polymers Corp. (5th Cir. 1995) 66 F.3d 758, 764 [under FMLA, "[w]hat is practicable, both in terms of the timing of the notice and its content, will depend upon the facts and circumstances of each individual case"]; Mora v. Chem-Tronics, Inc. (S.D.Cal. 1998) 16 F.Supp.2d 1192, 1217 [under FMLA].) The issue is thus whether a reasonable trier of fact (see Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 846) could conclude that (1) plaintiff submitted the December 19 Kaiser form to Continental; and (2) if so, whether doing so constituted a "request" for leave for a CFRA-qualifying purpose.
a. Whether Plaintiff Submitted the Kaiser Forms
Continental argues, and the trial court concluded, that plaintiff's testimony that he submitted the Kaiser forms to Continental was not substantial evidence that he did so because the testimony was "at best equivocal and at worst contradictory and inconclusive." We disagree. Plaintiff's testimony that he submitted the Kaiser forms was not mere "speculation or conjecture" (Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798, 807 *1256 [85 Cal.Rptr.2d 459]), but direct evidence of plaintiff's own actions. He testified unequivocally that he gave the Kaiser forms "to the manager on duty." He did not remember who the manager on duty was, but he testified that he was "positive" that he did provide the forms to the manager.
Continental asserts that plaintiff's other testimony is equivocal and indicates that plaintiff, in fact, did not remember whether he submitted the Kaiser forms to Continental. Read in context and in the light most favorable to plaintiff, however, a reasonable trier of fact could interpret that testimony to relate not to whether plaintiff submitted the Kaiser forms to Continental, but specifically to whom at Continental he gave the Kaiser forms. Plaintiff's testimony that he might have the left the forms on the manager's desk rather than handing them personally to the manager also is not an equivocation plaintiff testified that this was how he "usually" submitted medical excuses. That plaintiff was unable to recall precisely to whom or in what manner he submitted the Kaiser forms does not render his testimony that he did so mere speculation. It is the trier of fact's function at trial to determine whether plaintiff's testimony is credible.
b. Request for CFRA Leave
CFRA does not define what constitutes a "request" for leave. Instead, the Legislature expressly delegated to the Commission the task of "adopt[ing] a regulation specifying the elements of a reasonable request" for CFRA leave. (§ 12945.2, subd. (a); see Cal. Code Regs., tit. 2, § 7297.1, subd. (b)(2) ["A request to take a CFRA leave is reasonable if it complies with any applicable notice requirements, as specified in section 7297.4 . . . ."].) The regulation adopted by the Commission provides in relevant part that, to request CFRA leave, "[a]n employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs CFRA-qualifying leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under CFRA or FMLA, or even mention CFRA or FMLA, to meet the notice requirement; however, the employee must state the reason the leave is needed, such as, for example, the expected birth of a child or for medical treatment. The employer should inquire further of the employee if it is necessary to have more information about whether CFRA leave is being sought by the employee and obtain the necessary details of the leave to be taken." (Cal. Code Regs., tit. 2, § 7297.4, subd. (a)(1).) The regulation further provides, "Under all circumstances, it is the employer's responsibility to designate leave, paid or unpaid, as CFRA or CFRA/FMLA qualifying, *1257 based on information provided by the employee . . . , and to give notice of the designation to the employee." (Cal. Code Regs., tit. 2, § 7297.4, subd. (a)(1)(A).)[10]
When the need for leave is foreseeable, an employer may require up to 30 days' advance notice. (Cal. Code Regs., tit. 2, § 7297.4, subd. (a)(2).) When the need is not foreseeableas in cases of medical emergency "notice must be given as soon as practicable." (Cal. Code Regs., tit. 2, § 7297.4, subd. (a)(3).) An employer may not deny leave for a medical emergency because the employee did not provide advance notice. (Cal. Code Regs., tit. 2, § 7297.4, subd. (a)(4).)
A reasonable trier of fact could conclude that plaintiff provided sufficient notice to put Continental on notice that plaintiff needed CFRAqualifying leave. In a case involving a medical emergency, notice on a hospital's preprinted form that an employee was hospitalized and unable to work may be sufficient to inform an employer that the employee might have suffered a serious medical condition under CFRA, and the timing and duration of the necessary leave. The absence itself under such circumstances suggests the necessity of a leaveat least as to those absent days. Such information may be "sufficient to make the employer aware that the employee needs CFRA-qualifying leave," and thus may constitute a "request" for leave under CFRA. (Cal. Code Regs., tit. 2, § 7297.4, subd. (a)(1); see Mora v. Chem-Tronics, Inc., supra, 16 F.Supp.2d at p. 1212 [under FMLA, notice sufficient when employee told employer that son was HIV positive, had a high fever, and that employee could not leave son "`when he is so ill'"]; Brannon v. Oshkosh B'Gosh, Inc., supra, 897 F.Supp. at pp. 1032-1033, 1038-1039 [under FMLA, notice sufficient when employee called to tell employer that employee's daughter was too sick for [employee] to come to work and employee's husband delivered physician's note saying, "Please excuse off work till 1-12-94."].) The regulation expressly provides that plaintiff was not required to invoke CFRA to request leave. If Continental required further information as to whether the information was a request that the absence be treated as a CFRA-qualifying leave, the burden was on *1258 Continental to inquire of plaintiff as to his condition and situation, whether the information constituted a request, and to determine whether plaintiff's leave was CFRA-qualifying leave. (Cal. Code Regs., tit. 2, § 7297.4, subd. (a)(1)(B).)
Because plaintiff's need for leave was unforeseeable due to an emergency medical condition, and because plaintiff testified that he both called in sick during his absence and submitted the Kaiser forms to Continental upon returning to work, a reasonable trier of fact could also conclude that plaintiff requested leave "as soon as practicable." (Cal. Code Regs., tit. 2, § 7297.4, subd. (a)(3); see Sims v. Alameda-Contra Costa Transit District (N.D.Cal. 1998) 2 F.Supp.2d 1253, 1267 [under FMLA, plaintiff provided adequate notice when he signed employer's "sick book" three times and provided "doctor's slips within two days of his return to work"].)[11]
2. Triable Issue of Causal Connection
Continental recognizes that the Kaiser forms, if received by Continental, "arguably would have provided notice that [plaintiff] had been hospitalized and thus would have been germane to the CFRA claim . . . ." Continental nevertheless argues that there is no evidence that Bellamy and Johnson personally were aware of plaintiff's "protected conduct or status," so that plaintiff's discharge could not have been "because of" plaintiff's exercise of his right to CFRA leave, as required by section 12945.2, subdivision (l). We believe Continental's analysis of CFRA is not correct.
The "because of" language in section 12945.2, subdivision (l) requires only proof of a causal connection between the employee's protected status or conduct and the adverse employment action taken by the employer. (Dudley v. Department of Transportation, supra, 90 Cal.App.4th at p. 261 [CFRA retaliation claim]; see also Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 478 [4 Cal.Rptr.2d 522] [FEHA retaliation claim].) Continental does not dispute that it assessed two recordable absences against plaintiff for missed work due to his hospitalization and recovery. Nor does Continental dispute that Bellamy and Johnson knew of those absences and discharged plaintiff in reliance onthat is, "because of"those absences. The facts are sufficient to demonstrate a causal link between plaintiff's leave and his discharge.
Continental argues, in effect, that proof of a causal connection requires that Bellamy and Johnson knew not only of plaintiff's conduct (that is, his *1259 absences), but also that plaintiff's conduct was legally protected. Continental, however, cites no authority so holding, and the case law appears to be to the contrary. For example, in Faust v. California Portland Cement Co., supra, 150 Cal.App.4th 864, an employee took a 30-day psychiatric leave that expired before the employee felt well enough to return to work. The employee obtained and submitted a medical certification form from his chiropractor stating that the employee needed "physiotherapy, chiropractic therapy and rest," and that the employee was "`unable to perform regular job duties'" for another month. (Id. at p. 870.) The employer's human resources manager determined that the chiropractor's certification was "`insufficient to sustain an approved absence from work.'" (Id. at p. 872.) Because the employee missed two weeks of work without a valid excuse, the human resources manager notified the employee that he was discharged. (Ibid.) The human resources manager, it appears, did not know that the employee's absences were "protected" leave under CFRAto the contrary, it appears that she believed in good faith that the employee's absences were not protected because the employee had failed to provide a valid physician's certification. Nevertheless, the Court of Appeal reversed a summary judgment for the employer, holding that the employee had made out a prima facie case of CFRA retaliation "by presenting evidence that he was entitled to leave under the CFRA, he availed himself of that right, and [he] was terminated for taking the leave to which he was entitled." (Faust, at p. 885; see Price v. City of Fort Wayne, supra, 117 F.3d at p. 1026 [summary judgment for employer reversed despite employer's contention that employee's request for paid leave "foreclosed the inference that she might be interested in FMLA leave"]; Sharpe v. MCI Telecommunications Corp. (E.D.N.C. 1998) 19 F.Supp.2d 483, 491 [employer liable for FMLA retaliation although relevant managers "were unaware whether [employee's] leave had even been classified as FMLA leave"]; see also Trans World Airlines, Inc. v. Thurston (1985) 469 U.S. 111, 129-130 [83 L.Ed.2d 523, 105 S.Ct. 613] [plaintiffs made out prima facie case of age discrimination although airline "acted reasonably and in good faith" with respect to legality of policy denying overage captains right to transfer to an alternative position].)
The rule advocated by Continental would be inconsistent with the antidiscrimination provisions of CFRA, and would encourage managers to remain ignorant of both the law and the facts relating to CFRA leave. For example, if an employer has a no-fault attendance policy mandating termination after a certain number of absences, then an employee can be discharged automatically for absences. Under the rule advocated by Continental, if the employer's human resources manager remains ignorant either that the employee's leave was for a serious health condition, or that leave for a serious health condition is protected by CFRA, then the discharge would not be "because of" the employee's exercise of CFRA rights, and the employer could not be *1260 liable for CFRA discrimination. Such a result would be inconsistent with the purposes of the statute. (Reeves v. Safeway Stores, Inc., supra, 121 Cal.App.4th at p. 109.)
Moreover, a principle allocating to an employee-plaintiff the burden of proving that a manager subjectively knew that an employee's conduct was legally protected would, in effect, require a plaintiff to negate an employer's good faith as part of the employee's prima facie case.[12] There is no authority to support such a principle. Under CFRA and its implementing regulations, the employer bears the burden to determine whether an employee's leave is protectedthat is, to "inquire further of the employee if it is necessary to have more information about whether CFRA leave is being sought . . ." (Cal. Code Regs., tit. 2, § 7297.4, subd. (a)(1)), and ultimately "to designate leave, paid or unpaid, as CFRA or CFRA/FMLA qualifying . . . ." (Cal. Code Regs., tit. 2, § 7297.4, subd. (a)(1)(A).) Once an employee has submitted a request for leave under CFRA, the employer is charged with knowledge that the employee's absences pursuant to the leave request are protected, and may not thereafter take adverse employment action against the employee based uponthat is, "because of"those protected absences. (§12945.2, subd. (l)(1); Cal. Code Regs., tit. 2, § 7297.7, subd. (a); Dudley v. Department of Transportation, supra, 90 Cal.App.4th at p. 264 ["If any of the leaves [employee] took qualified as CFRA leave, and if [employer] took any adverse employment action against [employee] because she exercised her right to take that leave, then [employee] has established a prima facie case of retaliation in violation of CFRA . . . ."]; see Brannon v. Oshkosh B'Gosh, Inc., supra, 897 F.Supp. at p. 1039 ["because the plaintiff gave sufficient notice that her absence was necessitated by an FMLA-qualifying reason, her absence . . . was protected by the FMLA"; accordingly, employer's "assessment of [attendance] points against plaintiff and subsequent termination of plaintiff violated the Act"].) Unlike in the FEHA situation, it is not necessary to show that a particular management employee subjectively knew that an employee's absences were protected under CFRA to establish a causal connection between an employee's CFRA leave and an adverse employment action taken "because of" the absences.
We have concluded that plaintiff submitted sufficient evidence to raise a triable issue of fact whether the Kaiser forms under the circumstances *1261 constituted a request for CFRA-qualifying leave. If the trier of fact concludes that plaintiff requested CFRA-qualifying leave, then Continental's admission that those absences were the cause of plaintiff's discharge is sufficient to establish a causal connection between plaintiff's exercise of his right to CFRA leave and his discharge. Summary judgment on plaintiff's CFRA claim was therefore improper.
D. Tameny Claim for Termination in Violation of Public Policy
Because triable issues precluded summary adjudication of plaintiff's claim for violation of CFRA, it necessarily follows that triable issues precluded summary adjudication of plaintiff's Tameny claim for wrongful termination in violation of public policy. (Faust v. California Portland Cement Co., supra, 150 Cal.App.4th at p. 886; Nelson v. United Technologies, supra, 74 Cal.App.4th at p. 612 ["an employee may state a claim under California law for wrongful termination in violation of the public policy within the CFRA"].)
E. Continental's Motion for Sanctions
Continental requests that this court impose sanctions against plaintiff's appellate counsel on the grounds that plaintiff's appeal was "patently" frivolous. We deny Continental's motion.
"`Free access to the courts is an important and valuable aspect of an effective system of jurisprudence, and a party possessing a colorable claim must be allowed to assert it without fear of suffering a penalty more severe than that typically imposed on defeated parties.'" (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 648 [183 Cal.Rptr. 508, 646 P.2d 179] (Flaherty).) Nevertheless, California courts are authorized to impose sanctions against a party or counsel when he or she has abused the right of free access by prosecuting a frivolous appeal. (Code Civ. Proc., § 907 ["When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just."]; see also Cal. Rules of Court, rule 8.276(a)(1).)
Sanctions should be "used most sparingly to deter only the most egregious conduct." (Flaherty, supra, 31 Cal.3d at p. 651.) That an appeal lacks merit does not, alone, establish that it is frivolous. (Dodge, Warren & Peters Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1422 [130 Cal.Rptr.2d 385].) An appeal is frivolous "only when it is prosecuted for an improper motiveto harass the respondent or delay the effect of an adverse judgmentor when it indisputably has no meritwhen any reasonable attorney would agree that the appeal is totally and completely without merit." *1262 (Flaherty, supra, 31 Cal.3d at p. 650; accord, Coleman v. Gulf Ins. Group (1986) 41 Cal.3d 782, 790, fn. 6 [226 Cal.Rptr. 90, 718 P.2d 77].) The first standard is tested subjectively. The focus is on the good faith of the appellant and counsel. The second standard is tested objectively. (Flaherty, supra, 31 Cal.3d at pp. 649-650.)
Although we have concluded that plaintiff's appeal on his FEHA claims lacked sufficient merit, it was not frivolous. Plaintiff had a "colorable argument . . . that the judgment resulted from an error of law." (Summers v. City of Cathedral City (1990) 225 Cal.App.3d 1047, 1078 [275 Cal.Rptr. 594].) The requirement of decision maker knowledge of a plaintiff's disability in FEHA discrimination and failure-to-accommodate claims is well established under California law. California law is not as well developed, however, with respect to the circumstances in which a decision maker will be deemed to have such knowledge. Continental cited, and we are aware of, no California case that was factually on point and therefore dispositive of plaintiff's FEHA claims. Moreover, the fact that Continental devoted 11 pages of its brief and cited more than two dozen casesmost of them nonbinding federal decisions under the ADAto support its argument on this issue is illustrative of the uncertainty in California law. This is not to say that uncertainty in the law is necessary to avoid sanctions for an appeal. (See Simonian v. Patterson (1994) 27 Cal.App.4th 773, 786 [32 Cal.Rptr.2d 722], quoting rule 3-200 of the California State Bar Association's Rules of Professional Conduct [A member should not present a claim "`unless it can be supported by a good faith argument for an extension, modification, or reversal of such existing law'"].)
With respect to plaintiff's CFRA and Tameny claims, we have determined that plaintiff's appeal was meritorious. Continental's motion for sanctions is therefore denied.
DISPOSITION
The summary adjudications of plaintiff's FEHA claims are affirmed. The summary adjudications of plaintiff's CFRA and Tameny claims are reversed, and the matter is remanded for further proceedings consistent with this opinion. Each party is to bear his or its own costs on appeal.
Armstrong, Acting P. J., concurred.
KRIEGLER, J., Concurring and Dissenting.
I concur in the majority's holding that summary judgment was properly granted on Henry Avila's California Fair Employment and Housing Act (the FEHA; Gov. Code, § 12900 et seq.) cause of action, but respectfully dissent from reversal of the summary judgment on California's Moore-Brown-Roberti Family Rights Act (the CFRA; *1263 Gov. Code, §§ 12945.2, 19702.3) cause of action. The trial court properly granted summary judgment in favor of defendant and respondent Continental Airlines, Inc., on Avila's CFRA cause of action because the undisputed facts show that Avila never requested leave from Chelsea Food Services, a division of Continental Airlines, under the CFRA. In addition, the evidence is undisputed that the decision to terminate Avila's employment was made by managers who had absolutely no knowledge of the hospitalization and who made the decision based upon Avila's habitual absences.
One need only look to Avila's unambiguous deposition testimony in order to conclude the trial court properly granted summary judgment on the basis there was never a request for CFRA leave by Avila. The following testimony was given by Avila in his deposition:
"Q: Okay. Now, at any time, did you ask Chelsea or any manager at Chelsea saying you wanted a leave of absence? You didn't, did you?
"A: No.
"Q: Okay. You would just miss work when you missed work because of the reasons you explained. But you never asked for
"A: No, no.
"Q: leave of advance [sic] or anything like that?
"A: No.
"Q: And did youand you never asked afterwards to say, let me treat that as a leave?
"A: No."
As this colloquy makes clear, Avila does not claim to have ever made a request under the CFRA. In fact, it is undisputed that the first time Avila ever mentioned the issue of leave under the CFRA was months after his termination, when Avila filed charges with the Department of Fair Employment and Housing. The trial court correctly ruled there was no request for leave under the CFRA in granting Chelsea's motion for summary judgment.
The absence of a request for leave is fatal to Avila's CFRA cause of action. Under the CFRA, it is "an unlawful employment practice for any employer. . . to refuse to grant a request by any employee" who qualifies under the act "for family care and medical leave." (Gov. Code, § 12945.2, subd. (a), *1264 italics added.) The Legislature's choice of words could not have been clearerthe right to CFRA leave is triggered by an employee's request.
Not only does the express language of Government Code section 12945.2, subdivision (a) require a request for leave by the employee, the implementing regulation contains a similar requirement. California Code of Regulations, title 2, section 7297.4, subdivision (a)(1) provides that the "[a]n employee shall provide at least verbal notice sufficient to make the employer aware that the employee needs CFRA-qualifying leave, and the anticipated timing and duration of the leave. The employee need not expressly assert rights under CFRA or FMLA, or even mention CFRA or FMLA, to meet the notice requirement; however, the employee must state the reason the leave is needed, such as, for example, the expected birth of a child or for medical treatment. The employer should inquire further of the employee if it is necessary to have more information about whether CFRA leave is being sought by the employee and obtain the necessary details of the leave to be taken." (Italics added.)
Moreover, if it is not practical to provide advance notice of the need for leave because the need is unforeseeable, the employee must give notice "as soon as practicable." (Cal. Code Regs., tit. 2, § 7297.4, subd. (a)(3).) The regulation clearly contemplates an employee's request for leave, because "[t]he employer shall respond to the leave request as soon as practicable and in any event no later than ten calendar days after receiving the request." (Id., subd. (a)(6), italics added.)
Despite the uncontradicted evidence that Avila never requested leave under the CFRA, the majority holds that Avila's own conflicting deposition testimony[1] regarding how he presented a form from Kaiser Permanente indicating he had been in the hospital in December 2004 somehow required Continental to determine if Avila needed CFRA leave pursuant to California Code of Regulations, title 2, section 7297.4. To the contrary, Continental had no obligation to make any such inquiry because Avila made no request for leave until well after his termination. Whatever obligation an employer has under the regulation was simply never triggered in this case because of the absence of any request for leave.
Avila's conduct did not constitute a request for leave as defined in the California Code of Regulations, title 2, section 7297.4. He never gave verbal or written notice that he was requesting a leave. He did nothing to let his employer know the reason for his need for a leave. When Avila returned to *1265 work in December 2004 after his hospitalization, he did not request leave because he was not terminated. In fact, Avila was not terminated until January 2005, when his habitual absences exceeded that permitted by Continental. At that point, Avila chose to follow an internal appeal process, which he had successfully pursued years earlier when he was also terminated for excessive absences. To suggest that Avila made a request for leave under the CFRA, in the face of these undisputed facts, is entirely inconsistent with the requirements of the CFRA and the California Code of Regulations, title 2, section 7297.4.
In addition to summary judgment being properly granted because a request for leave under the CFRA was never made by Avila, there is a second, independent basis to uphold the grant of summary judgment. It is undisputed the persons responsible for the decision to terminate Avila had no knowledge of his hospitalization. Because the managers had no knowledge of the hospitalization and Avila never made a request for a CFRA leave, I cannot see how there is a triable issue of fact as to whether Continental committed an unlawful employment practice.
Daysi Bellamy, the human resources manager of Chelsea, made the decision to terminate Avila and presented an uncontroverted declaration that she had no knowledge of Avila's hospitalization before making the termination decision. Similarly, Judy Tanes, the managing director of Chelsea, approved Avila's discharge, expressly declared that she had no knowledge of Avila's medical condition, and was unaware of any request for leave from him prior to the date of his termination. There is no evidence anyone affiliated with Chelsea ever saw the Kaiser Permanente report of Avila's hospitalization prior to the time Avila's employment was terminated.
There cannot be an unfair employment practice under the CFRA where the employer has no knowledge of the employee's condition. It is manifestly unreasonable to require an employer to defend against a CFRA cause of action at trial on a claim that it improperly denied leave where the undisputed facts demonstrate the employer had no knowledge of any condition justifying such leave and no request for leave is made by the employee.
In a similar context arising under the FEHA, this court has held that an employee cannot make a prima facie case of discrimination sufficient to survive summary judgment where the undisputed facts show the employer had no knowledge of the employee's condition. (Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th 1133 [29 Cal.Rptr.3d 144] [employee's claim that she was terminated due to her pregnancy did not survive *1266 summary judgment where the undisputed facts demonstrated the employer had no knowledge of the pregnancy].) Here, the absence of any proof that Continental's decision makers had notice of Avila's hospitalization, combined with Avila's admission that he never requested CFRA leave, defeats Avila's CFRA cause of action.
I would affirm the trial court's order granting summary judgment in its entirety.
NOTES
[1] Statutory references are to the Government Code unless stated otherwise.
[2] We state the facts consistent with the rules that "we view the evidence in the light most favorable to plaintiffs . . ." and "liberally construe plaintiffs' evidentiary submissions and strictly scrutinize defendants' own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiffs' favor." (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142 [12 Cal.Rptr.3d 615, 88 P.3d 517].) Evidentiary objections not made or ruled upon are deemed waived. (Code Civ. Proc., § 437c, subds. (b)(5), (d); Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1186-1187, fn. 1 [91 Cal.Rptr.2d 35, 989 P.2d 121], overruled on another ground in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854 [107 Cal.Rptr.2d 841, 24 P.3d 493].)
[3] Plaintiff asserts in his brief on appeal that it is undisputed that the Kaiser forms were received by Continental and placed in plaintiff's personnel file. Continental, on the other hand, asserts that plaintiff misrepresents that one of the Kaiser forms was "found" in plaintiff's personnel file. The record is insufficient for us to evaluate Continental's claim, and it is unnecessary for us to do so to resolve plaintiff's appeal.
[4] Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167 [164 Cal.Rptr. 839, 610 P.2d 1330].
[5] For purposes of this appeal, Continental does not dispute that plaintiff's bout of pancreatitis was a physical disability within the meaning of FEHA. (See Diaz v. Federal Express Corp. (C.D.Cal. 2005) 373 F.Supp.2d 1034, 1046-1048 [temporary, nonchronic conditions may be disabilities under FEHA].)
[6] Federal Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.).
[7] On appeal, plaintiff also relies on evidence of his statements to coworkers; his posttermination statements to Bellamy, Johnson and the review board; and his posttermination letter to Judy Tanes to argue that triable issues precluded summary judgment on his failure-to-accommodate claim. Plaintiff forfeited his contentions that such evidence raised a triable issue by failing to cite or argue that evidence with respect to this issue in the trial court. (Code Civ. Proc., § 437c, subd. (p)(2); Cal. Rules of Court, rule 3.1350(f); see Expansion Pointe Properties Limited Partnership v. Procopio, Cory, Hargreaves & Savitch, LLP (2007) 152 Cal.App.4th 42, 54 [61 Cal.Rptr.3d 166] ["`possible theories that were not fully developed or factually presented to the trial court cannot create a "triable issue" on appeal'"].) In any event, as noted above, this evidence was insufficient to put Continental's decision makers on notice of plaintiff's disability prior to his termination.
[8] The regulations promulgated by California's Fair Employment and Housing Commission (the Commission) under CFRA incorporate by reference federal regulations interpreting the federal Family and Medical Leave Act of 1993 (29 U.S.C. § 2601 et seq.) (FMLA), to the extent the federal regulations are not inconsistent with California law. (Cal. Code Regs., tit. 2, § 7297.10.) FMLA provides protections to employees needing family or medical leave similar to those provided by CFRA. California courts applying CFRA frequently rely on federal decisions applying FMLA. (Neisendorf v. Levi Strauss & Co. (2006) 143 Cal.App.4th 509, 514, fn. 1 [49 Cal.Rptr.3d 216]; Dudley v. Department of Transportation (2001) 90 Cal.App.4th 255, 261 [108 Cal.Rptr.2d 739].)
[9] As with his FEHA failure-to-accommodate claim, plaintiff also relies on other, additional evidence in his briefs on appeal. We do not consider such evidence in reaching our conclusion. (See fn. 7, ante.)
[10] FMLA also places on the employer the burden to inquire whether an employee is seeking, and whether to designate leave as, FMLA-qualifying leave. (29 C.F.R. § 825.303(b) (2008); Xin Liu v. Amway Corp. (9th Cir. 2003) 347 F.3d 1125, 1134 ["It is the employer's responsibility to determine when FMLA leave is appropriate, to inquire as to specific facts to make that determination, and to inform the employee of his or her entitlements."]; Price v. City of Fort Wayne (7th Cir. 1997) 117 F.3d 1022, 1025-1026 [employee gave sufficient notice by filling out leave request form and "indicat[ing] that the cause was medical need"; "[i]t was then the [employer's] responsibility to inquire further"].) Employers can discharge their obligation to inquire through relatively simple internal procedures. (See, e.g., Brannon v. Oshkosh B'Gosh, Inc. (M.D.Tenn. 1995) 897 F.Supp. 1028, 1033 [noting employer's "policy that if an employee is out sick for more than three days, management asks the employee if he or she wants to obtain further documentation so that management can determine whether the FMLA applies"].)
[11] The California Supreme Court recently disagreed with the decision in Sims v. Alameda-Contra Costa Transit District, supra, 2 F.Supp.2d 1253, but on an issue not relevant here. (Lonicki v. Sutter Health Central, supra, 43 Cal.4th at pp. 212-213 (lead opn. of Kennard, J.]; id. at p. 217 (conc. & dis. opn. of Chin, J.).)
[12] It is unclear whether an employer's mistaken good faith belief that its conduct was legal is a defense to a CFRA retaliation claim. (Compare Bachelder v. America West Airlines, Inc. (9th Cir. 2001) 259 F.3d 1112, 1130, fn. 19 ["employer's good-faith mistake as to whether its action violates the law is not a defense to liability . . ." under FMLA] with Medley v. Polk Co. (10th Cir. 2001) 260 F.3d 1202, 1207-1208 ["an employer who discharges an employee honestly believing that the employee has abandoned her job and is otherwise not using FMLA leave for its . . . `intended purpose' . . . would not be in violation of FMLA, even if its conclusion is mistaken . . ." (fn. omitted)].) That issue is not before us.
[1] At various times in his deposition, Avila testified to having no recollection of how he made delivery of the Kaiser Permanente form, that he gave the paperwork to an unidentified manager, that he gave it to someone filling in for a manager, or that he merely left it on a desk. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266665/ | 461 F.Supp. 659 (1978)
In the Matter of An Application to Enforce an Administrative Subpoena Duces Tecum of the COMMODITY FUTURES TRADING COMMISSION, Applicant,
v.
FIRST NATIONAL BULLION CORP. (a New York Corporation) and Stanley Merdinger, Respondents.
Misc. No. 18-304.
United States District Court, S. D. New York.
December 14, 1978.
*660 Michael R. Koblenz, Regional Counsel and Michael S. Sackheim, New York City, for applicant.
Gusrae, Greene & Kaplan, New York City, for respondents by Martin H. Kaplan, New York City.
*661 MEMORANDUM
POLLACK, District Judge.
This is an action to enforce an administrative subpoena duces tecum issued by the Commodity Futures Trading Commission to the First National Bullion Corporation. Respondents contend the subpoena is defective and should not be enforced. As is set forth more fully below, respondents' arguments are without merit, and the application to enforce the subpoena must be granted.
On September 22, 1978, the Commission entered an order in connection with a private investigation entitled "Possible Violations of the Commodity Exchange Act, as Amended, by Persons Conducting Business which Offer to Sell and Sell Contracts for Future Delivery Traded Other than by or through a Designated Contract Market." The order authorized specified employees of the Commission to take testimony and to compel the production of evidence relevant to the investigation. The investigation was "to determine whether any entity or entities listed in Attachment A hereto [including the respondent] or any affiliates of or persons associated with any of said entities engaged in violations of Sections 4b, 4c(b), 4d, 4h, 4m, and 4o of the Commodity Exchange Act, as amended, 7 U.S.C. §§ 6b, 6c(b), 6d, 6h, 6m, and 6o, and Regulations 30.03, 32.9, and 32.11 thereunder, 17 C.F.R. §§ 30.03, 32.9, and 32.11, or in similar acts or practices in violation of any other provisions of the Commodity Exchange Act, as amended, or Regulations thereunder."
On September 29, 1978, an employee of the Commission issued a subpoena duces tecum pursuant to the authority granted to him in the September 22d order. Respondents refused to comply with the subpoena after it was served, claiming it was issued unlawfully and was too broad and vague to be enforceable.
The parties agree that enforcement of a subpoena of an administrative agency is proper where (1) the investigation is for a proper statutory purpose; (2) the information sought is reasonably relevant to that purpose; (3) the required administrative steps have been followed; and (4) the information requested is not within the agency's possession. United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964).
Respondents' contentions are addressed to the third criterion cited, and are in essence that the Commission has delegated an excessive proportion of its authority to its staff, and that required procedures have thus been bypassed. Respondents recognize, however, that the Commission may properly delegate the authority to engage in fact gathering and fact finding. In its order of September 22, 1978, the Commission has done just that, and has not shifted any of its basic or primary functions to its staff.
Respondents further argue that Section 8 of the Commodity Exchange Act, 7 U.S.C. § 12, erects a requirement that the Commission itself make an express finding that the subjects of an investigation are "persons subject to any of the provisions of this Act." This contention lacks any support in the plain language of the statute, and must be rejected.
Respondents contend that the order of the Commission is vague and thus is in violation of 17 C.F.R. § 11.4. which requires such an order to include a "general description of the scope of the investigation." The order does contain such a general description, as quoted above, and does not violate Regulation 11.4.
Respondents also argue that the Commission has failed to show that the information it seeks through the subpoena is relevant to the investigation. The Commission has submitted an affidavit of one of its Futures Trading Specialists, stating that the testimony and documents sought are relevant to the investigation. Apart from their conclusory allegations, respondents have failed to explain why any of the subpoenaed documents should be found irrelevant to an investigation of possible violations of the Commodity Exchange Act. In the absence of such an explanation, the records of a corporation trading in commodity *662 futures contracts, such as the respondent First National Bullion Corporation, must be held prima facie relevant to the instant investigation.
Accordingly, the application of the Commission to enforce the subpoena duces tecum as served on the respondents is granted.
SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266668/ | 461 F.Supp. 425 (1978)
William M. ARNOLD et al.,
v.
The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., and Warehouse Employees Union Local No. 169.
Civ. A. No. 77-2221.
United States District Court, E. D. Pennsylvania.
October 3, 1978.
*426 *427 Mead S. Spurio, Philadelphia, Pa., for plaintiffs.
Robert W. Hartland, Pittsburgh, Pa., for defendants.
MEMORANDUM AND ORDER
NEWCOMER, District Judge.
Sixteen named plaintiffs bring this action under § 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a) alleging breach of a collective bargaining agreement by defendant Atlantic and Pacific Tea Company and breach of the duty of fair representation by their union, Warehouse Employee Union Local No. 169. A & P has moved for summary judgment on all counts of the plaintiffs' complaint. For the reasons set forth below, A & P's motion is granted in part and denied in part.
The suit arose out of A & P's application of the terms of a multi-employer collective bargaining agreement (the "contract") negotiated between Local 169, of which the plaintiffs are members, and a group of Philadelphia area food store chains, which included A & P. A & P operates three food handling facilities in the Philadelphia area. There is a produce handling facility and a separate grocery handling facility in Yeadon, Pennsylvania, and another produce handling plant in Florence, New Jersey. The work history of the sixteen plaintiffs vary as to details, but all were at one time employees in one of A & P's produce facilities, and all allege the same legal wrongs. First, they allege that A & P violated the contract by laying off the plaintiffs from their produce jobs while employees of the grocery facility with lesser seniority were retained. Second, they allege that A & P violated and is violating the contract by hiring and continuing to hire casual employees in the grocery plant without recalling or reinstating the plaintiff produce employees who are on layoff status.
There are two sections of the collective bargaining agreement in issue. Count I of the complaint alleges that A & P has violated Section 28 of the contract, which says, in pertinent part:
Straight seniority shall prevail in each individual warehouse coming within the provisions of this Agreement, particularly as to layoffs and reemployment. (emphasis supplied)
A & P takes the position that "warehouse", as it is used in Section 28, has a definite and long-accepted meaning. According to A & P, the Yeadon grocery facility is one warehouse and the Yeadon and Florence produce facilities together are a separate warehouse. Under A & P's interpretation, the plaintiff producemen were properly laid off, despite having more time in service with A & P than some grocery employees, because each "warehouse" laid off according to its own seniority list.
The plaintiffs, on the other hand, contend that the three Yeadon and Florence facilities together constitute a single warehouse for purposes of Section 28 seniority rights.[1]
Count II alleges that A & P has violated Schedule F of the contract. Schedule F defines workers' employment rights vis-a-vis temporary workers:
No casuals will be hired under the terms of Section 5, paragraph d [procedure for hiring casuals] while regular seniority employees are on layoff status.
A & P urges that "regular seniority employees . . . on layoff status", in this context, refers only to employees laid off from either the grocery or produce warehouse (as warehouse is defined by A & P). Under such an interpretation producemen would not be entitled to be hired in grocery in preference to casuals.
*428 The plaintiffs interpret Schedule F to mean that all warehousemen are entitled to recall before casuals may be hired in either grocery or produce.
In interpreting a collective bargaining agreement it is necessary first to examine the canons of contract construction and second the "`common law of a particular industry or of a particular plant'". Ludwig Honold Mfg. Co. v. Fletcher, 405 F.2d 1123, 1131 (3d Cir. 1969), quoting United Steel Workers of America v. Warrior and Gulf Navigation Co., 363 U.S. 574, 579, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960).
One rule of contract construction is particularly applicable in the context of a motion for summary judgment:
Where . . . the meaning of a writing is uncertain or ambiguous, and parol evidence is introduced in aid of its interpretation, the question of its meaning should be left to the jury. Williston on Contracts, 3d Ed. § 616.
The "common law of the shop" will usually reach the fact finder by parol evidence. Thus, if the language of the collective bargaining agreement is not clear, and must be supplemented by evidence of industrial practice, its meaning becomes a question of fact.[2]
In International Union of Mine, Mill and Smelter Workers Local 515 v. American Zinc, Lead and Smelting Company, 311 F.2d 656, 660 (9th Cir. 1963) the Ninth Circuit provided useful guidance for a trial court faced with a motion for summary judgment in a § 301 suit:
We hold that the district court's ruling . . . was premature and should not have been made on the motions for summary judgment. . . . [I]t is apparent that the meaning of the words . . of the collective bargaining agreement . . . is not so clear as to be self-evident; and that accordingly, evidence outside the agreement itself is admissible to show what the parties meant by the words. What the parties meant by the words is a controlling issue of fact in this case, to be determined in a trial at which the parties may offer evidence in aid of their respective interpretations of the language used. [citations omitted]
The meaning of Section 28 and Schedule F is a controlling question in the instant case. If the meaning is clear, no genuine issue of fact exists; if it is not, summary judgment is inappropriate.
II
The Court concludes that the meaning of Section 28, is not clear and that there is an issue of fact as to its proper interpretation. Three facts revealed by the moving papers compel that conclusion.
First, A & P suggests that a 1974 Supplemental Agreement between Local 169 and A & P conclusively establishes the proper meaning of "seniority . . . in each individual warehouse." That Supplemental Agreement says in part:
(2). All employees (except maintenance men) in the Perishable operations at Yeadon, Pennsylvania constitute one separate seniority list.
(3). For purposes of layoffs and job openings . . . all employees . . . in the Grocery Warehouse operations at the Yeadon and Florence warehouses together constitute one separate seniority list. (emphasis supplied)
The difficulty with A & P's suggestion is that, by 1974, A & P operated a grocery facility and a produce facility in Yeadon, while there was only a produce plant in Florence. The 1974 Supplemental Agreement does separate producemen and grocerymen into different seniority groups, but it does not speak to the current physical division (or even the 1974 physical division) of warehousing functions. As a result, the divergence between the terms of the Supplemental Agreement and what A & P suggests *429 has been its practice, creates rather than eliminates ambiguity as to the meaning of Section 28.[3]
Second, A & P has cast doubt on its own interpretation of "warehouse" in its "Notice of Termination" given to some producemen (including some plaintiffs) on February 6th, 1975.
In that document produce/perishable is listed as a "Department". The wording would perhaps not be significant except that Section 28 discusses "transfers . . from one department to another within the warehouse." If, as the Notice of Termination might imply, produce is a department for purposes of Section 28, the larger "warehouse" would have to be, as the plaintiffs suggest, all grocerymen and producemen. The Court would perhaps ignore the nomenclature used in the Notice of Termination, but that Notice relates to layoffs the same subject to which Section 28 applies.
Third, the plaintiffs by affidavit have raised the possibility that A & P's practice has been to recognize the seniority of producemen as to layoff and rehiring after their transfer to grocery. The affidavit of Edward T. Burton, an A & P produce employee who is not a plaintiff says in part:
During the entire period of his [Burton's] employment in the Produce Department [1946-present] A & P has never consistently adhered to a policy of administering and applying seniority separately in the Produce and Grocery Department for purposes of job layoffs and transfers . . . A & P has on numerous and repeated occasions allowed employees of one department to move into the other department with their seniority rights and privileges intact. (Burton affidavit at 1-2, emphasis supplied.)
The Court accepts the proposition that the application of a collective bargaining agreement may be used as an aid to its interpretation. Ludwig Honold Mfg. Co. v. Fletcher, 275 F.Supp. 776 (E.D.Pa.1967), rev'd on other grounds, 405 F.2d 1123 (3rd Cir. 1969). Furthermore, the plaintiffs do not contest that A & P's practice has been to lay off and rehire according to separate grocery and produce lists. Mr. Burton's affidavit merely says that A & P has never consistently adhered to that policy. Nevertheless, the Court cannot conclude that the practice is so clear that it confirms A & P's interpretation of Section 28 seniority so as to eliminate any genuine issue of fact as to the meaning of the contract language.[4]
III
A & P argues that the "language of Schedule F has consistently been interpreted to prohibit the hiring of casual employees for warehousing work only when regular employees from that particular type of warehousing operation are on layoff status . . . For decades there has existed no misunderstanding regarding the interpretation of Schedule F." (A & P Brief at 16.) A & P's argument is somewhat disingenuous inasmuch as the provision contained in Schedule F never appeared in any of the collective bargaining agreements before the one in issue. (Plaintiffs' Brief at 16-17) Even assuming, however, that A & P is correct that there had been a practice of hiring casuals in grocery when producemen were laid-off, the meaning of the language is still not clear.
The contract was negotiated between Local 169 and a multiemployer bargaining group. Some of the other signatories (e. g. Food Fair Stores, Acme Markets) apparently maintained a single seniority list for all of their Local 169 Warehousemen, whether grocery or produce. Under the circumstances even if Section 28 seniority is *430 defined as A & P suggests, the Court would not be persuaded that Schedule F seniority rights were not intended to accrue to all of a signatory's Local 169 Warehousemen. A & P is right to suggest that local practice may help to define the terms of a multi-employer pact, but the Court is not willing to accept that there is no issue of fact as to what Schedule F means as it applies to A & P. Where the application of a provision in a labor contract is objected to soon after its first appearance in the agreements between the parties, the language itself, rather than past practice, must serve as a crucial indicator of what the parties wanted. Otherwise, attempts to change the terms of the relationship by means of new provisions would be seriously hampered, since the meaning of the new terms could be clouded by evidence of the very practices that the parties are attempting to change. The language of Schedule F does not lend itself easily to A & P's interpretation, and fact-finding will be required.[5]
IV
In Count III of their complaint the plaintiffs have alleged that the "practice and policy of the Defendant, A & P . . . in terminating the Plaintiffs herein by means of lay-off [despite Section 28 and Schedule F seniority rights] . . . constitutes an intentional and wrongful discharge of Plaintiffs herein."
In its brief supporting its motion for summary judgment A & P argues that there is no such thing as a cause of action for "wrongful discharge." The Court is inclined to agree, but Count III will be permitted to stand nevertheless.
Section 301(a), upon which the plaintiffs assert jurisdiction, provides that "Suits for violations of contracts between an employer and a labor organization . . may be brought in any district court of the United States having jurisdiction of the parties . . ." As is clear from the language of the statute, the plaintiffs' action against A & P must be considered, in essence, an action for breach of contract. In that light, "wrongful discharge" is not a cause of action but is rather a way in which a collective bargaining agreement can be breached or violated. The authorities cited by the parties[6] and others considered by the Court, that use the term wrongful discharge share a common characteristic all are § 301 suits in which the discharge is argued to be a breach of contract. Retana v. Apartment, Motel, Hotel and Elevator Operators Union, Local No. 14, 453 F.2d 1018 (9th Cir. 1972), relied on by the plaintiffs as demonstrating the existence of a wrongful discharge cause of action, is illustrative:
[T]he complaint alleged three causes of action, two based upon wrongful discharge in violation of the collective bargaining agreement . . . It is conceded that the district court had jurisdiction of the wrongful discharge causes of action under § 301(a). Id. at 1021 (Emphasis supplied).
The language of Section 301(a) only permits recognition of a "wrongful discharge" claim against an employer under the "Suits for violation of contracts . . ." clause quoted above. Thus it is apparent that the wrongful discharge claim in Count III adds little to the more conventional allegations of breach of the collective bargaining agreement by means of improper lay-offs *431 which are at the heart of Counts I and II. Furthermore, all three Counts demand precisely the same relief.[7]
Nevertheless, the Court will not, by treating this part of A & P's motion for summary judgment as a Rule 12(f) motion to strike, order Count III stricken as redundant. In deference to usage (see Retana v. Apartment, Motel etc., supra), and for whatever value it may have for purposes of clarifying the plaintiffs' claims, Count III will be permitted to stand.
The Court hastens to note, however, that by permitting the "wrongful discharge" claim to stand it is not recognizing a tort of wrongful discharge, or some form of "aggravated breach of contract" under the auspices of § 301.
This Court recently considered a claim sounding in tort for wrongful discharge. O'Neill v. ARA Services, Inc., et al., 457 F.Supp. 182, (E.D.Pa.1978).[8] There is considerable doubt as to whether such a tort exists; moreover this Court is certainly not prepared to engraft such a right of action in tort onto the contract language of § 301(a).
Finally, the plaintiffs' complaint does not specifically ask this Court to exercise pendent jurisdiction over any claims based on state law, and the Court declines to treat Count III as such a request.
IV
The plaintiffs have not opposed A & P's motion for summary judgment as to Count V and Count VI.[9] Count V alleges that A & P conspired with Local 169 to breach the collective bargaining agreement, and Count VI alleges racial discrimination on the part of A & P and Local 169.
The Court has examined Counts V and VI and agrees that they are without merit and that A & P is entitled to summary judgment thereon.
The plaintiffs seek thirty thousand dollars ($30,000) in exemplary damages. The law of this circuit is that exemplary (i. e. punitive) damages are not recoverable in a § 301 action. Local 127, United Shoe Workers v. Brooks Shoe Mfg. Co., 298 F.2d 277 (3d Cir. 1962). See also Deboles v. Trans-World Airlines, Inc., 552 F.2d 1005, 1019 (3d Cir. 1977). Accordingly, the Court will dismiss the plaintiffs' claims for exemplary damages on its own motion.
NOTES
[1] Neither side suggests that each of the three warehouses is a "warehouse".
[2] The language of a collective bargaining agreement can be so clear that extrinsic evidence should not be admitted to aid interpretation. See, e. g., Hardy v. H. K. Porter Co., Inc., 417 F.Supp. 1175 (E.D.Pa.1976); Garlick Funeral Homes, Inc. v. Local 100 Service Employees International Union AFL-CIO, 413 F.Supp. 130 (S.D.N.Y.1976).
[3] From 1964 until May 1973 A & P's warehousing was done in the plants referred to in the Supplemental Agreement, i. e. the Yeadon Grocery Facility, the Yeadon Produce Facility and the Florence Grocery Facility.
[4] Of course, nothing in this opinion is intended to deprecate A & P's interpretation of the language of Section 28. The Court also refrains from comment upon the strength of the plaintiffs' interpretation, but notes that the plaintiffs still must prove the correctness of their interpretation at trial.
[5] Bargaining history will be admissible to show the meaning of the contract language. See, e. g. Garlick Funeral Homes v. Local 100 Service Employees, etc., supra, 413 F.Supp. at 135. The Court recognizes that evidence of bargaining history is uniquely in the defendants' control, but will not for that reason exclude it if it is useful and probative.
[6] Brady v. Trans-World Airlines, Inc., 401 F.2d 87 (3d Cir. 1978), cert. den., 393 U.S. 1048, 89 S.Ct. 680, 21 L.Ed.2d 691 reh. den., 394 U.S. 955 (1969); Local 4076, United Steel Workers v. United Steel Workers, 338 F.Supp. 1154, 1158 (W.D.Pa.1972); Davidson v. International U. U. A., A. & A. I. W., Local No. 1189, 332 F.Supp. 375, 377 (D.N.J.1971); Retana v. Apartment, Motel, Hotel and Elevator Operators Union, Local No. 14, 453 F.2d 1018 (9th Cir. 1972).
[7] The plaintiffs demand a single seniority list for all warehouse employees; reinstatement; wages due them during the period of their layoffs; counsel fees; and injunction prohibiting A & P and Local 169 from maintaining any seniority system except that provided for in the contract, and requiring the establishment of seniority lists in conformity with those established by other signatories; reinstatement in Local 169 with back benefits; and exemplary damages.
[8] The claim was made under state law, having arrived in this Court under diversity jurisdiction. See, generally, Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974).
[9] Count IV, alleging breach of the duty of fair representation, was directed only against Local 169. Accordingly, it is not a subject of this Order. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266680/ | 165 Cal.App.4th 798 (2008)
COUNTY OF SAN DIEGO, Plaintiff and Appellant,
v.
SAN DIEGO NORML et al., Defendants and Respondents;
WENDY CHRISTAKES et al., Interveners and Respondents.
COUNTY OF SAN BERNARDINO et al., Plaintiffs and Appellants,
v.
STATE OF CALIFORNIA et al., Defendants and Respondents;
WENDY CHRISTAKES et al., Interveners and Respondents.
No. D050333.
Court of Appeals of California, Fourth District, Division One.
July 31, 2008.
*808 John J. Sansone, County Counsel, Thomas D. Bunton and C. Ellen Pilsecker, Deputy County Counsel, for Plaintiff and Appellant County of San Diego.
Ruth E. Stringer, County Counsel, Alan L. Green, Charles J. Larkin and Dennis Tilton, Deputy County Counsel, for Plaintiffs and Appellants County of San Bernardino and Gary Penrod.
American Civil Liberties Union Foundation, Adam B. Wolf, Allen Hopper; ACLU of San Diego & Imperial Counties and David Blair-Loy for Defendants and Respondents San Diego NORML, Wo/Men's Alliance for Medical Marijuana and Dr. Stephen O'Brien.
Edmund G. Brown, Jr., Attorney General, Christopher E. Krueger, Assistant Attorney General, Jonathan K. Renner and Peter A. Krause, Deputy Attorneys General, for Defendants and Respondents State of California and Sandra Shewry.
Americans for Safe Access and Joseph D. Elford for Interveners and Respondents Wendy Christakes, Norbert Litzinger, William Britt, Yvonne Westbrook and Americans for Safe Access.
OPINION
McDONALD, Acting P. J.
In 2003, the California Legislature enacted the Medical Marijuana Program Act. (Health & Saf. Code, §§ 11362.7-11362.9; hereafter MMP.)[1] Among other provisions, the MMP imposed on counties the obligation to implement a program permitting a limited group of persons those who qualify for exemption from California's statutes criminalizing certain conduct with respect to marijuana (the exemptions)to apply for and obtain an identification card verifying their exemption.
In this action, plaintiffs County of San Diego (San Diego) and County of San Bernardino (San Bernardino) contend that, because the federal Controlled Substances Act (21 U.S.C. §§ 801-904; hereafter CSA) prohibits possessing or using marijuana for any purpose, certain provisions of California's statutory scheme are unconstitutional under the supremacy clause of the United States Constitution. San Diego and San Bernardino (together Counties) did not claim below, and do not assert on appeal, that the exemption from state criminal prosecution for possession or cultivation of marijuana provided by *809 California's Compassionate Use Act of 1996 (§ 11362.5; hereafter CUA) is unconstitutional under the preemption clause. Instead, Counties argue the MMP is invalid under preemption principles, arguing the MMP poses an obstacle to the congressional intent embodied in the CSA.
The trial court below rejected Counties' claims, concluding the MMP neither conflicted with nor posed an obstacle to the CSA. On appeal, Counties assert the trial court applied an overly narrow test for preemption, and the MMP is preempted as an obstacle to the CSA. We conclude Counties have standing to challenge only those limited provisions of the MMP that impose specific obligations on Counties, and may not broadly attack collateral provisions of California's laws that impose no obligation on or inflict any particularized injury to Counties. We further conclude, as to the limited provisions of the MMP that Counties may challenge, those provisions do not positively conflict with the CSA, and do not pose any added obstacle to the purposes of the CSA not inherent in the distinct provisions of the exemptions from prosecution under California's laws, and therefore those limited provisions of the MMP are not preempted. We also reject San Bernardino's claim that the identification card provisions of the MMP are invalid under the California Constitution.
I
THE STATUTORY FRAMEWORK
A. California Law
The CUA
(1) In California, marijuana is classified as a schedule I controlled substance (see § 11054, subd. (d)(13)), and its possession is generally prohibited. However, when California voters adopted the CUA, California adopted an exemption from state law sanctions for medical users of marijuana. The CUA, codified in section 11362.5, provides:
"(b)(1) The people of the State of California hereby find and declare that the purposes of the [CUA] are as follows:
"(A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.
*810 "(B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.
"(C) To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.
"(2) Nothing in this section shall be construed to supersede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the diversion of marijuana for nonmedical purposes.
"(c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes.
"(d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician.
"(e) For the purposes of this section, `primary caregiver' means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person."
The MMP
(2) In 2003, the Legislature enacted the MMP to "address issues not included in the CUA." (People v. Wright (2006) 40 Cal.4th 81, 85 [51 Cal.Rptr.3d 80, 146 P.3d 531].) Among the MMP's purposes was to "`facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers.'" (40 Cal.4th at p. 93.) To that end, the MMP included provisions establishing a voluntary program for the issuance of identification cards to persons qualified to claim the exemptions provided under California's medical marijuana laws. (§§ 11362.7, subd. (f), 11362.71.) Participation in the identification card program, although not mandatory, provides a significant benefit to its participants: they are not subject to arrest for violating California's laws relating to the possession, transportation, delivery or cultivation of marijuana, provided they meet the conditions outlined in the MMP. (§ 11362.71, subd. (e).)
*811 (3) Although the bulk of the provisions of the MMP confer no rights and impose no duties on counties,[2] one set of provisions under the MMPthe program for issuing identification cards to qualified patients and primary caregiversdoes impose certain obligations on counties. (§ 11362.71 et seq.) Under the identification card program, the California Department of Health Services is required to establish and maintain a program under which qualified applicants may voluntarily apply for a California identification card identifying them as qualified for the exemptions; the program is also to provide law enforcement a 24-hour a day center to verify the validity of the state identification card. (§ 11362.71, subd. (a).) The MMP requires counties to provide applications to applicants, to receive and process the applications, verify the accuracy of the information contained on the applications, approve the applications of persons meeting the state qualifications and issue the state identification cards to qualified persons, and maintain the records of the program. (§§ 11362.71-11362.755.)
The identification card program is voluntary and a person need not obtain an identification card to be entitled to the exemptions provided by state law. (§ 11362.765, subd. (b); People v. Wright, supra, 40 Cal.4th at pp. 93-94 [the MMP applies to both cardholders and noncardholders].)
B. Federal Lawthe CSA
(4) The CSA provides it is "unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice ...." (21 U.S.C. § 844(a).) The exception regarding a doctor's prescription or order does not apply to any controlled substance Congress has classified as a schedule I drug (see 21 U.S.C. § 812(c)), including marijuana. (Gonzales v. Raich (2005) 545 U.S. 1, 14-15 [162 L.Ed.2d 1, 125 S.Ct. 2195].) Schedule I drugs are so categorized because they have (1) a high potential for abuse, *812 (2) no currently accepted medical use in treatment in the United States, and (3) a lack of accepted safety for use under medical supervision. (21 U.S.C. § 812(b)(1).)
Possession of marijuana for personal use is a federal misdemeanor. (21 U.S.C. § 844a(a).) The legislative intent of Congress to preclude the use of marijuana for medicinal purposes is reflected in the statutory scheme of the CSA:[3] "By classifying marijuana as a Schedule I drug, as opposed to listing it on a lesser schedule, the manufacture, distribution, or possession of marijuana became a criminal offense, with the sole exception being use of the drug as part of a Food and Drug Administration preapproved research study. [Citations.]" (Gonzales v. Raich, supra, 545 U.S. at p. 14.)
Although the use of marijuana for medical purposes has found growing acceptance among the states (Conant v. Walters (9th Cir. 2002) 309 F.3d 629, 643 [noting "Alaska, Arizona, Colorado, Maine, Nevada, Oregon and Washington... have followed California in enacting medical marijuana laws by voter initiative"]), marijuana remains generally prohibited under the CSA. (Conant, at p. 640; Gonzales v. Raich, supra, 545 U.S. at p. 15, fn. 23 [efforts to reclassify marijuana to permit medicinal uses have been unsuccessful].)
II
PROCEDURAL BACKGROUND
In 2006 San Diego filed a complaint against the State of California and Sandra Shewry, in her former capacity as Director of the California Department of Health Services (together State), as well as the San Diego chapter of the National Organization for the Reform of Marijuana Laws (NORML). San Diego's complaint alleged it had declined to comply with its obligations under the MMP and NORML had threatened to file suit against San Diego for its noncompliance. Accordingly, San Diego sought a judicial declaration that it was not required to comply with the MMP, arguing the entirety of the MMP and the CUA (except for § 11362.5, subd. (d)) was preempted by federal law. San Bernardino filed its suit raising the same preemption claims, and its complaint was subsequently consolidated with that of San Diego. The County of Merced intervened in San Diego's action and alleged, as an additional ground for relief, that the MMP was invalid because it amended the CUA in violation of article II, section 10, subdivision (c) of the *813 California Constitution.[4] Additional parties, composed of medical marijuana patients and others qualified for exemptions under the CUA and MMP, also intervened in the action.
State demurred to Counties' complaints, alleging in part that Counties did not have standing to prosecute the claims, but its demurrer was overruled. The parties subsequently filed cross-motions for judgment on the pleadings, which were consolidated for hearing in November 2006. The court ruled the CUA and MMP were not preempted by federal law and the MMP was not invalid under the California Constitution, and entered judgment accordingly. Counties appeal.
III
THE STANDING ISSUE
State argues on appeal that Counties do not have standing to assert the CUA and MMP are unconstitutional.[5] State's argument presents two distinct issues. The first issue is whether a political subdivision of California, charged with the ministerial obligation to enforce or carry out state laws, may ever challenge a state enactment as unconstitutional. Must the entity comply with a state law until a court has declared the law unconstitutional, or may it instead bring a declaratory relief action challenging the constitutionality of that law? The second issue, which assumes a local governmental entity may challenge a state law as unconstitutional, is the extent of its standing. Does the entity have standing to challenge an entire statutory schemeincluding those aspects of the scheme that impose no obligations on the entityor is it limited to challenging only those aspects that impose specific obligations on or inflict particularized injury to the local governmental entity?
A. General Principles
(5) A declaratory relief action requires an "actual controversy relating to the legal rights and duties of the respective parties." (Code Civ. Proc., § 1060.) Courts will decline to resolve lawsuits that do not present a justiciable controversy, and justiciability "involves the intertwined criteria of ripeness and standing." (California Water & Telephone Co. v. County of Los Angeles (1967) 253 Cal.App.2d 16, 22 [61 Cal.Rptr. 618].)
*814 (6) "As a general principle, standing to invoke the judicial process requires an actual justiciable controversy as to which the complainant has a real interest in the ultimate adjudication because he or she has either suffered or is about to suffer an injury of sufficient magnitude reasonably to assure that all of the relevant facts and issues will be adequately presented to the adjudicator. [Citations.] To have standing, a party must be beneficially interested in the controversy; that is, he or she must have `some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.' [Quoting Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 796 [166 Cal.Rptr. 844, 614 P.2d 276].] The party must be able to demonstrate that he or she has some such beneficial interest that is concrete and actual, and not conjectural or hypothetical." (Holmes v. California Nat. Guard (2001) 90 Cal.App.4th 297, 314-315 [109 Cal.Rptr.2d 154], italics added.)
(7) When a party asserts a statute is unconstitutional, standing is not established merely because the party has been impacted by the statutory scheme to which the assertedly unconstitutional statute belongs. Instead, the courts have stated that "[a]t a minimum, standing means a party must `"show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant ..."....' [Quoting Valley Forge College v. Americans United (1982) 454 U.S. 464, 472 [70 L.Ed.2d 700, 102 S.Ct. 752].] ... `"[I]t is well-settled law that the courts will not give their consideration to questions as to the constitutionality of a statute unless such consideration is necessary to the determination of a real and vital controversy between the litigants in the particular case before it. It is incumbent upon a party to an action or proceeding who assails a law invoked in the course thereof to show that the provisions of the statute thus assailed are applicable to him and that he is injuriously affected thereby." [Citations.]' [Quoting Worsley v. Municipal Court (1981) 122 Cal.App.3d 409, 418 [176 Cal.Rptr. 324].]" (In re Tania S. (1992) 5 Cal.App.4th 728, 736-737 [7 Cal.Rptr.2d 60].)
This court's analysis in Tania S. demonstrates that a party does not have standing to raise hypothetical constitutional infirmities of a statute when the statute, as applied to the party, does not occasion any injury to the party. In Tania S., the appellant's children were declared dependents and removed from his custody when the court found, under Welfare and Institutions Code section 300, subdivision (b), that appellant's inability or failure to protect the children created a substantial risk of serious physical harm to them. (In re Tania S., supra, 5 Cal.App.4th at pp. 732-733.) The appellant did not challenge the constitutionality of the portion of section 300, subdivision (b), under which the juvenile court made its jurisdictional findings, but instead asserted a second aspect of section 300, subdivision (b) (which cautioned that an allegation of willful failure to provide adequate medical treatment based *815 on religious beliefs required a court to give some deference to the parent's religious practices) improperly created two classes of parentsthose who injure their children out of a religious belief and those who injure their children for nonreligious reasonsmaking the entirety of section 300, subdivision (b), unconstitutional. (In re Tania S., at pp. 735-736.) This court rejected the appellant's standing to raise the claim because the proceedings were not based on an allegation he did not provide the children adequate medical treatment or provided spiritual treatment through prayer. This court concluded that because the appellant "has not demonstrated he suffered any direct injury resulting from the assertedly unconstitutional portion of [the statute]," "we do not determine the substantive merits of [appellant's] claim the challenged portion of [the statute] is unconstitutional. Such determination will be made only if the claim is raised by one with standing." (In re Tania S., at pp. 736-737, fn. omitted.)
B. Limitations on Governmental Entities
Plaintiffs here are local governmental entities that sought in the proceedings below, and seek in this appeal, a determination that they are not obligated to comply with their duties under the statutory scheme because the statutory scheme is unconstitutional. We must evaluate the extent to which a local governmental entity of the state may attack the constitutionality of the laws it is obligated to administer.
(8) As a general rule, a local governmental entity "charged with the ministerial duty of enforcing a statute ... generally does not have the authority, in the absence of a judicial determination of unconstitutionality, to refuse to enforce the statute on the basis of the [entity's] view that it is unconstitutional." (Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 1082 [17 Cal.Rptr.3d 225, 95 P.3d 459], fn. omitted.) In Lockyer, the court rejected the entity's argument that because the entity believed certain statutes (limiting marriage to a union between a man and a woman) were unconstitutional, it could bring the issue into court by defying state law and issuing licenses to same-sex couples. Lockyer noted that, although there may be limited circumstances in which a public entity might refuse to enforce a statute as a means of bringing the constitutionality of the statute before a court for judicial resolution, the exception does not apply when there exists "a clear and readily available means, other than the officials' wholesale defiance of the applicable statutes, to ensure that the constitutionality of the current marriage statutes would be decided by a court." (Id. at p. 1099.) Lockyer noted that if the local officials charged with the ministerial duty of issuing marriage licenses and registering marriage certificates believed the state's current marriage statutes are unconstitutional and should be tested in court, "they could have denied a same-sex couple's *816 request for a marriage license and advised the couple to challenge the denial in superior court. That procedurea lawsuit brought by a couple who has been denied a license under existingis the procedure that was utilized to challenge the constitutionality of California's antimiscegenation statute .... The city cannot plausibly claim that the desire to obtain a judicial ruling on the constitutional issue justified the wholesale defiance of the applicable statutes that occurred here." (Lockyer, at pp. 1098-1099, fn. and citation omitted.)
However, under some limited circumstances, a public entity threatened with injury by the allegedly unconstitutional operation of an enactment may have standing to raise the challenge in the courts. For example, in County of Los Angeles v. Sasaki (1994) 23 Cal.App.4th 1442 [29 Cal.Rptr.2d 103], one enactment (Sen. Bill No. 1135 (1993-1994 Reg. Sess.)) reallocated property tax revenues away from the county and to school and community college districts, while a second enactment (Sen. Bill No. 399 (1993-1994 Reg. Sess.)) affected the formulas for determining the amount of moneys to be applied by the state for the support of school and community college districts. (23 Cal.App.4th at pp. 1447-1448.) The court concluded the county could challenge Senate Bill No. 1135's reallocation of funds away from the county. However, the court concluded the county did not have standing to challenge Senate Bill No. 399, stating: "Without mentioning [Senate Bill No.] 399, the County alleged in its complaint that the state will use the funds reallocated pursuant to [Senate Bill No.] 1135 to fulfill its responsibilities for the financial support of schools as mandated by Proposition 98. On appeal, the County contends the `State's action' was invalid because `it mandated a major shift in the use of local property taxes for a specific State purpose, to fulfill the State's obligation under Proposition 98 to provide a constitutionally prescribed minimum amount of public education funding "from state revenues."' Thus, the County seeks to challenge both [Senate Bill No.] 1135 ... and [Senate Bill No.] 399 .... [¶] The constitutionality of [Senate Bill No. 399] is not before us on this appeal. This appeal deals only with the reallocation of property tax revenues from local governments and special districts to school and community college districts. The County's concern is with the loss of property tax revenue to it because of the [Senate Bill No.] 1135 reallocation. How the state treats the reallocation in connection with the mandate of California Constitution, article XVI, section 8 (Proposition 98), is of possible concern to the educational entities which are beneficiaries of the constitutional mandate, but not the County. In short, there is simply no theory based on Proposition 98 and/or the effect of [Senate Bill No.] 399 upon it, which would, even assuming there were no other obstacles, entitle the County to a writ of mandate compelling compliance with County Ordinance No. 1993-0045, and negating [Senate Bill No.] 1135. The County lacks standing to raise the issue." (23 Cal.App.4th at p. 1449.)
*817 The other courts that have granted standing to local public entities to raise constitutional challenges to enactments they were otherwise bound to enforce have similarly done so in the limited context of enactments that imposed duties directly on or denied significant rights to the entity itself. (See, e.g., Star-Kist Foods, Inc. v. County of Los Angeles (1986) 42 Cal.3d 1, 5-10 [227 Cal.Rptr. 391, 719 P.2d 987] [state law provided exemption from local taxation for business inventories of foreign origin; county had standing to assert exemption violated commerce clause "because ... the agencies experienced significant revenue loss"]; City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355 [68 Cal.Rptr.3d 656] [entity asserted materials it seized from medical marijuana user could not be returned because federal preemption principles barred return of marijuana; standing to raise issue recognized because entity had specific duty at issue under the statutory scheme and issue was limited to whether that duty violated preemption principles].) However, the courts have declined to confer standing on the entity to raise constitutional challenges to enactments that had no direct impact on the entity but instead affected only the entity's constituency. (See, e.g., City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 59-63 [24 Cal.Rptr.3d 72] [standing denied where enactment imposed no obligations on entity and only imposed restrictions on officials of entity].)
C. Analysis
State, relying on Lockyer v. City and County of San Francisco, supra, 33 Cal.4th 1055 and In re Tania S., supra, 5 Cal.App.4th 728, argues that because Counties have suffered no cognizable injury from the exemptions for medical marijuana users provided by the MMP or CUA, the action should be dismissed because Counties' "mere dissatisfaction with ... or disagreement with [state] policies does not constitute a justiciable controversy" and does not confer standing on Counties to raise constitutional complaints about the MMP or CUA. (Zetterberg v. State Dept. of Public Health (1974) 43 Cal.App.3d 657, 662 [118 Cal.Rptr. 100].) Counties, relying on Star-Kist Foods, Inc. v. County of Los Angeles, supra, 42 Cal.3d 1 and City of Garden Grove v. Superior Court, supra, 157 Cal.App.4th 355, assert they have standing because they will suffer harmby being required to establish and operate the apparatus to process and issue identification cardsfrom statutory obligations they argue are preempted by the CSA.[6]
*818 The standing principles distilled from the cases convince us Counties do not have standing to challenge those portions of the MMP and CUA that are not applicable to them and that do not injuriously affect them. (In re Tania S., supra, 5 Cal.App.4th at 737.) Accordingly, because major portions of the MMP and CUA neither impose obligations on nor inflict direct injury to Counties, we reject Counties' effort to obtain an advisory opinion declaring the entirety of the MMP and the bulk of the CUA are invalid under preemption principles.[7] However, because limited portions of the MMPi.e., those statutes requiring counties to adopt and operate the identification card systemdo impose obligations on Counties, which obligations would be obviated were those statutes preempted by federal law, we conclude Counties have standing to raise preemption claims insofar as the MMP establishes the identification card system. Accordingly, we reach Counties' preemption arguments as to those statutes, and only those statutes, that require Counties to implement and administer the identification card system.[8]
IV
THE PREEMPTION ISSUE
A. General Principles
(9) Principles of preemption have been articulated by numerous courts. "`The supremacy clause of article VI of the United States Constitution grants Congress the power to preempt state law. State law that conflicts with a *819 federal statute is "`without effect.'" [Citations.] It is equally well established that "[c]onsideration of issues arising under the Supremacy Clause `start[s] with the assumption that the historic police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress.'" [Citation.] Thus, "`"[t]he purpose of Congress is the ultimate touchstone"' of pre-emption analysis." [Citation.]'" (Jevne v. Superior Court (2005) 35 Cal.4th 935, 949 [28 Cal.Rptr.3d 685, 111 P.3d 954].)
(10) The California Supreme court has identified "four species of federal preemption: express, conflict, obstacle, and field. [Citation.] [¶] First, express preemption arises when Congress `define[s] explicitly the extent to which its enactments pre-empt state law. [Citation.] Pre-emption fundamentally is a question of congressional intent, [citation], and when Congress has made its intent known through explicit statutory language, the courts' task is an easy one.' [Citations.] Second, conflict preemption will be found when simultaneous compliance with both state and federal directives is impossible. [Citations.] Third, obstacle preemption arises when `"under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."' [Citations.] Finally, field preemption, i.e., `Congress' intent to pre-empt all state law in a particular area,' applies `where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress "left no room" for supplementary state regulation.' [Citation.]" (Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 935-936 [63 Cal.Rptr.3d 50, 162 P.3d 569], fn. omitted (Viva!).)
The parties agree, and numerous courts have concluded, Congress's statement in the CSA that "[n]o provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter" (21 U.S.C. § 903) demonstrates Congress intended to reject express and field preemption of state laws concerning controlled substances. (See, e.g., People v. Boultinghouse (2005) 134 Cal.App.4th 619, 623 [36 Cal.Rptr.3d 244] [21 U.S.C. § 903's "`express statement by Congress that the federal drug law does not generally preempt state law gives the usual assumption against preemption additional force'"]; Gonzales v. Oregon (2006) 546 U.S. 243, 289 [163 L.Ed.2d 748, 126 S.Ct. 904] (dis. opn. of Scalia, J.) [characterizing § 903 as a "nonpre-emption clause"]; City of Hartford v. Tucker (1993) 225 Conn. 211 [621 A.2d 1339, 1341] [describing 21 U.S.C. § 903 and "the antipreemption provision of the Controlled Substances Act"].) When Congress has expressly described the scope of the state laws it intended to preempt, the courts "infer Congress *820 intended to preempt no more than that absent sound contrary evidence." (Viva!, supra, 41 Cal.4th at p. 945.)
B. Conflict and Obstacle Preemption
Although the parties agree that neither express nor field preemption apply in this case, they dispute whether title 21 United States Code section 903 signified a congressional intent to displace only those state laws that positively conflict with the provisions of the CSA, or also signified a congressional intent to preempt any laws posing an obstacle to the fulfillment of purposes underlying the CSA.
Conflict Preemption
Conflict preemption will be found when "simultaneous compliance with both state and federal directives is impossible." (Viva!, supra, 41 Cal.4th at p. 936.) In Southern Blasting Services v. Wilkes County, NC (4th Cir. 2002) 288 F.3d 584, the court construed the effect of a federal preemption clause substantively identical to title 21 United States Code section 903.[9] In rejecting the plaintiffs' argument that the local ordinances were invalid because they were in "direct and positive conflict" with the federal law, the Southern Blasting court concluded that "[t]he `direct and positive conflict' language in 18 U.S.C. § 848 simply restates the principle that state law is superseded in cases of an actual conflict with federal law such that `compliance with both federal and state regulations is a physical impossibility.' [Quoting Hillsborough County v. Automated Medical Labs. (1985) 471 U.S. 707, 713 [85 L.Ed.2d 714, 105 S.Ct. 2371].] Indeed, § 848 explains that in order for a direct and positive conflict to exist, the state and federal laws must be such that they `cannot be reconciled or consistently stand together.'" (Southern Blasting, supra, at p. 591; accord, Florida Avocado Growers v. Paul (1963) 373 U.S. 132, 142-143 [10 L.Ed.2d 248, 83 S.Ct. 1210] [state law preempted where "compliance with both federal and state regulations is a physical impossibility"].)
(11) Congress has the power to permit state laws that, although posing some obstacle to congressional goals, may be adhered to without requiring a person affirmatively to violate federal laws. (Geier v. American Honda Motor Co. (2000) 529 U.S. 861, 872 [146 L.Ed.2d 914, 120 S.Ct. 1913] [dicta].) In *821 Gonzales v. Oregon, supra, 546 U.S. 243, the court considered whether the CSA, by regulating controlled substances and making some substances available only pursuant to a prescription by a physician "issued for a legitimate medical purpose" (21 C.F.R. § 1306.04(a) (2008)), permitted the federal government to effectively bar Oregon's doctors from prescribing drugs pursuant to Oregon's assisted suicide law by issuing a federal administrative rule (the Directive) that use of controlled substances to assist suicide is not a legitimate medical practice and dispensing or prescribing them for this purpose is unlawful under the CSA. The majority concluded the CSA's preemption clause showed Congress "explicitly contemplates a role for the States in regulating controlled substances" (Gonzales v. Oregon, at p. 251), including permitting the states latitude to continue their historic role of regulating medical practices. In dissent, Justice Scalia concluded title 21 United States Code section 903 was "embarrassingly inapplicable" to the majority's preemption analysis because the preemptive impact of section 903 reached only state laws that affirmatively mandated conduct violating federal laws. (Gonzales v. Oregon, supra, 546 U.S. at p. 289 (dis. opn. of Scalia, J.).)[10] Thus, it appears Justice Scalia's interpretation suggests a state law is preempted by a federal "positive conflict" clause, like 21 U.S.C. section 903, only when the state law affirmatively requires acts violating the federal proscription.
Obstacle Preemption
(12) Obstacle preemption[11] will invalidate a state law when "`"under the circumstances of [a] particular case, [the challenged state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."' [Citations.]" (Viva!, supra, 41 Cal.4th at p. 936.) Under obstacle preemption, whether a state law presents "a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects: [¶] `For when the *822 question is whether a Federal act overrides a state law, the entire scheme of the statute must of course be considered and that which needs must be implied is of no less force than that which is expressed. If the purpose of the act cannot otherwise be accomplishedif its operation within its chosen field else must be frustrated and its provisions be refused their natural effectthe state law must yield to the regulation of Congress within the sphere of its delegated power.'" (Crosby v. National Foreign Trade Council (2000) 530 U.S. 363, 373 [147 L.Ed.2d 352, 120 S.Ct. 2288].)
C. The State Identification Card Laws and Preemption
The parties below disputed the effect of the language of title 21 United States Code section 903, which provides: "No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together." (Italics added.)
In the proceedings below, State and other respondents contended this language evidenced a congressional intent to preempt only those state laws in direct and positive conflict with the CSA so that compliance with both the CSA and the state laws is impossible. Counties asserted this language was merely intended to eschew express and field preemption and should be construed as declaring Congress's intent to preempt any state laws that posed a substantial obstacle to the fulfillment of purposes underlying the CSA in addition to those in direct conflict. The trial court, after concluding title 21 United States Code section 903 was intended to preserve all state laws except insofar as compliance with both the CSA and the state statute was impossible, found the MMP and CUA were not preempted because they did not mandate conduct violating the CSA.
21 U.S.C. Section 903 Limits Preemption to Positive Conflicts
(13) The intent of Congress when it enacted the CSA is the touchstone of our preemption analysis. (Jevne v. Superior Court, supra, 35 Cal.4th at p. 949.) When Congress legislates in a "field which the States have traditionally occupied[,] ... we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." (Rice v. Santa Fe Elevator Corp. (1947) 331 U.S. 218, 230 [91 L.Ed. 1447, 67 S.Ct. 1146].) (14) Because the MMP and CUA address fields historically occupied by the statesmedical practices (Medtronic, Inc. v. Lohr (1996) 518 U.S. 470, 485 *823 [135 L.Ed.2d 700, 116 S.Ct. 2240]) and state criminal sanctions for drug possession (City of Garden Grove v. Superior Court, supra, 157 Cal.App.4th at pp. 383-386)the presumption against preemption informs our resolution of the scope to which Congress intended the CSA to supplant state laws, and cautions us to narrowly interpret the scope of Congress's intended invalidation of state law. (Medtronic, supra, 518 U.S. 470.)
Our evaluation of the scope of Congress's intended preemption examines the text of the federal law as the best indicator of Congress's intent and, where that law "contains an express pre-emption clause, our `task of statutory construction must in the first instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress' pre-emptive intent.'" (Sprietsma v. Mercury Marine (2002) 537 U.S. 51, 62-63 [154 L.Ed.2d 466, 123 S.Ct. 518].) Because "[i]n these cases, our task is to identify the domain expressly pre-empted [citation] ... `an express definition of the pre-emptive reach of a statute ... supports a reasonable inference ... that Congress did not intend to pre-empt other matters ...' [citation]." (Lorillard Tobacco Co. v. Reilly (2001) 533 U.S. 525, 541 [150 L.Ed.2d 532, 121 S.Ct. 2404]; accord, Viva!, supra, 41 Cal.4th at pp. 944-945 [inference that express definition of preemptive reach means Congress did not intend to preempt other matters "is a simple corollary of ordinary statutory interpretation principles and in particular `a variant of the familiar principle of expressio unius est exclusio alterius: Congress' enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not pre-empted.'"].)
(15) The language of title 21 United States Code section 903 expressly limits preemption to only those state laws in which there "is a positive conflict between [the federal and state law] so that the two cannot consistently stand together." (Italics added.) (16) When construing a statute, the courts seek to attribute significance to every word and phrase (United States v. Menasche (1955) 348 U.S. 528, 538-539 [99 L.Ed. 615, 75 S.Ct. 513]) in accordance with their usual and ordinary meaning. (Strong v. State Bd. of Equalization (2007) 155 Cal.App.4th 1182, 1193 [66 Cal.Rptr.3d 657].) The phrase "positive conflict," particularly as refined by the phrase that "the two [laws] cannot consistently stand together," suggests that Congress did not intend to supplant all laws posing some conceivable obstacle to the purposes of the CSA, but instead intended to supplant only state laws that could not be adhered to without violating the CSA. Addressing analogous express preemption clauses, the court in Southern Blasting Services v. Wilkes County, NC, supra, 288 F.3d 584 held the state statute was not preempted because compliance with both the state and federal laws was not impossible, and the court in Levine v. Wyeth (Vt. 2006) 944 A.2d 179, 190-191 construed a federal statute with an analogous express preemption clause (which preserved state laws unless there is a direct and positive conflict) as "essentially *824 remov[ing] from our consideration the question of whether [state law] claims [are preempted as] an obstacle to the purposes and objectives of Congress." Because title 21 United States Code section 903 preserves state laws except where there exists such a positive conflict that the two laws cannot consistently stand together, the implied conflict analysis of obstacle preemption appears beyond the intended scope of title 21 United States Code section 903.
(17) Counties argue this construction is too narrow, and we should construe Congress's use of the term "conflict" in 21 United States Code section 903 as signifying an intent to incorporate both positive and implied conflict principles into the scope of state laws preempted by the CSA. Certainly, the United States Supreme Court has concluded that federal legislation containing an express preemption clause and a savings clause does not necessarily preclude application of implied preemption principles. (See Geier v. American Honda Motor Co., supra, 529 U.S. 861; Buckman Co. v. Plaintiffs' Legal Comm. (2001) 531 U.S. 341 [148 L.Ed.2d 854, 121 S.Ct. 1012]; Sprietsma v. Mercury Marine, supra, 537 U.S. 51.) However, none of Counties' cited cases examined preemption clauses containing the "positive conflict" language included in title 21 United States Code section 903, and thus provide little guidance here.[12] Indeed, Counties' proffered construction effectively reads the term "positive" out of section 903, which transgresses the interpretative canon that we should accord meaning to every term and phrase employed by Congress. (United States v. Menasche, supra, 348 U.S. at 538-539.) Moreover, when Congress has intended to craft an express preemption clause signifying that both positive and obstacle conflict preemption will invalidate state laws, Congress has so structured the express preemption clause. (See 21 U.S.C. § 350e(e)(1) [Congress declared that state requirements would be "preempted if[¶] (A) complying with [the federal and state statutes] is not possible; or [¶] (B) the requirement of the State ... as applied or enforced is an obstacle to accomplishing and carrying out [the federal *825 statute]"].) Where statutes involving similar issues contain language demonstrating the Legislature knows how to express its intent, "`the omission of such provision from a similar statute concerning a related subject is significant to show that a different legislative intent existed with reference to the different statutes.'" (In re Jennings (2004) 34 Cal.4th 254, 273 [17 Cal.Rptr.3d 645, 95 P.3d 906].)
(18) Because Congress provided that the CSA preempted only laws positively conflicting with the CSA so that the two sets of laws could not consistently stand together, and omitted any reference to an intent to preempt laws posing an obstacle to the CSA, we interpret title 21 United States Code section 903 as preempting only those state laws that positively conflict with the CSA so that simultaneous compliance with both sets of laws is impossible.
The Identification Laws Do Not Positively Conflict With the CSA
Counties do not identify any provision of the CSA necessarily violated when a county complies with its obligations under the state identification laws.[13] The identification laws obligate a county only to process applications for, maintain records of, and issue cards to, those individuals entitled to claim the exemption. The CSA is entirely silent on the ability of states to provide identification cards to their citizenry, and an entity that issues identification cards does not engage in conduct banned by the CSA.
(19) Counties appear to argue there is a positive conflict between the identification laws and the CSA because the card issued by a county confirms that its bearer may violate or is immunized from federal laws.[14] However, the applications for the card expressly state the card will not insulate the bearer from federal laws, and the card itself does not imply the holder is immune from prosecution for federal offenses; instead, the card merely identifies those *826 persons California has elected to exempt from California's sanctions. (Cf. U.S. v. Cannabis Cultivators Club (N.D.Cal. 1998) 5 F.Supp.2d 1086, 1100 [California's CUA "does not conflict with federal law because on its face it does not purport to make legal any conduct prohibited by federal law; it merely exempts certain conduct by certain persons from the California drug laws"].) Because the CSA law does not compel the states to impose criminal penalties for marijuana possession, the requirement that counties issue cards identifying those against whom California has opted not to impose criminal penalties does not positively conflict with the CSA.
Accordingly, we reject Counties' claim that positive conflict preemption invalidates the identification laws because Counties' compliance with those laws can "consistently stand together" with adherence to the provisions of the CSA.
D. The Identification Card Laws and Obstacle Preemption
(20) Although we conclude title 21 United States Code section 903 signifies Congress's intent to maintain the power of states to elect "to `serve as a laboratory' in the trial of `novel social and economic experiments without risk to the rest of the country'" (United States v. Oakland Cannabis Buyers' Cooperative (2001) 532 U.S. 483, 502 [149 L.Ed.2d 722, 121 S.Ct. 1711] (conc. opn. of Stevens, J.)) by preserving all state laws that do not positively conflict with the CSA, we also conclude the identification laws are not preempted even if Congress had intended to preempt laws posing an obstacle to the CSA. Although state laws may be preempted under obstacle preemption when the law "`"stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress"'" (Viva!, supra, 41 Cal.4th at p. 936), not every state law posing some de minimus impediment will be preempted. To the contrary, "[d]isplacement will occur only where, as we have variously described, a `significant conflict' exists between an identifiable `federal policy or interest and the [operation] of state law,' [citation] or the application of state law would `frustrate specific objectives' ... [citation]." (Boyle v. United Technologies Corp. (1988) 487 U.S. 500, 507 [101 L.Ed.2d 442, 108 S.Ct. 2510], italics added.) Indeed, Boyle implicitly recognized that when Congress has legislated in a field that the states have traditionally occupied, rather than in an area of unique federal concern, obstacle preemption requires an even sharper conflict with federal policy before the state statute will be invalidated. (Ibid.)
(21) We conclude the identification card laws do not pose a significant impediment to specific federal objectives embodied in the CSA. The purpose of the CSA is to combat recreational drug use, not to regulate a state's medical practices. (Gonzales v. Oregon, supra, 546 U.S. at pp. 270-272 *827 [holding Oregon's assisted suicide law fell outside the preemptive reach of the CSA].) The identification card laws merely provide a mechanism allowing qualified California citizens, if they so elect, to obtain a form of identification that informs state law enforcement officers and others that they are medically exempted from the state's criminal sanctions for marijuana possession and use. Although California's decision to enact statutory exemptions from state criminal prosecution for such persons arguably undermines the goals of or is inconsistent with the CSAa question we do not decide hereany alleged "obstacle" to the federal goals is presented by those California statutes that create the exemptions, not by the statutes providing a system for rapidly identifying exempt individuals. The identification card statutes impose no significant added obstacle to the purposes of the CSA not otherwise inherent in the provisions of the exemptions that Counties do not have standing to challenge, and we therefore conclude the limited provisions of the MMP that Counties may challenge are not preempted by principles of obstacle preemption.
We are unpersuaded by Counties' arguments that the identifications laws, standing alone, present significant obstacles to the purposes of the CSA.[15] For example, Counties assert that identification cards make it "easier for individuals to use, possess, and cultivate marijuana" in violation of federal laws, without articulating why the absence of such a cardwhich is entirely voluntary and not a prerequisite to the exemptions available for such underlying conductrenders the underlying conduct significantly more difficult.
(22) Counties also appear to assert the identification card laws present a significant obstacle to the CSA because the bearer of an identification card will not be arrested by California's law enforcement officers despite being in violation of the CSA. However, the unstated predicate of this argument is that the federal government is entitled to conscript a state's law enforcement officers into enforcing federal enactments, over the objection of that state, and this entitlement will be obstructed to the extent the identification card precludes California's law enforcement officers from arresting medical marijuana users. The argument falters on its own predicate because Congress does not have the authority to compel the states to direct their law enforcement personnel to enforce federal laws. In Printz v. United States (1997) 521 U.S. 898 [138 L.Ed.2d 914, 117 S.Ct. 2365], the federal Brady Act purported to compel local law enforcement officials to conduct background checks on prospective handgun purchasers. The United States Supreme Court held the *828 10th Amendment to the United States Constitution deprived Congress of the authority to enact that legislation, concluding that "in [New York v. United States (1992) 505 U.S. 144 [120 L.Ed.2d 120, 112 S.Ct. 2408] we ruled] that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the State's officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program." (Printz, at p. 935.)[16] Accordingly, we conclude the fact that California has decided to exempt the bearer of an identification card from arrest by state law enforcement for state law violations does not invalidate the identification laws under obstacle preemption. (Cf. Conant v. Walters, supra, 309 F.3d at p. 646 (conc. opn. of Kozinski, J.) ["That patients may be more likely to violate federal law if the additional deterrent of state liability is removed may worry the federal government, but the proper responseaccording to New York and Printzis to ratchet up the federal regulatory regime, not to commandeer that of the state."].)
We conclude that even if Congress intended to preempt state laws that present a significant obstacle to the CSA, the MMP identification card laws are not preempted.
V
THE AMENDMENT ISSUE
The CUA was adopted by initiative when the voters adopted Proposition 215. (People v. Urziceanu (2005) 132 Cal.App.4th 747, 767 [33 Cal.Rptr.3d 859].) Article II, section 10, subdivision (c) of the California Constitution *829 provides the Legislature may "amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval." San Bernardino asserts on appeal that the identification laws, which are among the statutes adopted by the Legislature without voter approval when it enacted the MMP, are invalid because they amend the CUA.
This issue, although not pleaded in the complaints filed by either San Bernardino or San Diego, was initially raised by County of Merced's (Merced) complaint in intervention. State argues on appeal that because Merced has not appealed, and only Merced formally pleaded the article II, section 10, subdivision (c), issue, we may not on appeal consider San Bernardino's arguments as to this issue. During oral arguments on the motions for judgment on the pleadings, San Bernardino adopted and joined in Merced's arguments, without objection by State that the arguments were beyond the scope of San Bernardino's pleadings. Additionally, the trial court's judgment, after noting that one of the issues raised by Merced and joined in by San Bernardino was the article II, section 10, subdivision (c), issue, specifically noted in its judgment that "[a]t oral argument, each party agreed that all plaintiffs win or lose together," and thereafter ruled on the article II, section 10, subdivision (c), issue. Under these circumstances, we conclude that because (1) the parties litigated the matter below on the understanding that San Diego and San Bernardino were properly asserting the additional ground of invalidity raised by Merced, and (2) the trial court's judgment against San Bernardino included a rejection of all of the arguments raised by all coplaintiffs, San Bernardino may litigate this issue on appeal. (See, e.g., Jones v. Dutra Construction Co. (1997) 57 Cal.App.4th 871, 876-877 [67 Cal.Rptr.2d 411].)
(23) Although legislative acts are entitled to a strong presumption of constitutionality, the Legislature cannot amend an initiative, including the CUA, unless the initiative grants the Legislature authority to do so. (Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1251-1253 [48 Cal.Rptr.2d 12, 906 P.2d 1112].) Because the CUA did not grant the Legislature the authority to amend it without voter approval, and the identification laws were enacted without voter approval, those laws are invalid if they amend the CUA within the meaning of article II, section 10, subdivision (c) of the California Constitution.
(24) The proscription embodied in article II, section 10, subdivision (c) of the California Constitution is designed to "`protect the people's initiative *830 powers by precluding the Legislature from undoing what the people have done, without the electorate's consent.'" (Proposition 103 Enforcement Project v. Quackenbush (1998) 64 Cal.App.4th 1473, 1484 [76 Cal.Rptr.2d 342].) "[L]egislative enactments related to the subject of an initiative statute may be allowed" when they involve a "related but distinct area" (Mobilepark West Homeowners Assn. v. Escondido Mobilepark West (1995) 35 Cal.App.4th 32, 43 [41 Cal.Rptr.2d 393]) or relate to a subject of the initiative that the initiative "does not specifically authorize or prohibit." (People v. Cooper (2002) 27 Cal.4th 38, 47 [115 Cal.Rptr.2d 219, 37 P.3d 403].)
(25) The identification laws do not improperly amend the provisions of the CUA.[17] The MMP's identification card system, by specifying participation in that system is voluntary and a person may "claim the protections of [the CUA]" without possessing a card (§ 11362.71, subd. (f)), demonstrates the MMP's identification card system is a discrete set of laws designed to confer distinct protections under California law that the CUA does not provide without limiting the protections the CUA does provide. For example, unlike the CUA (which did not immunize medical marijuana users from arrest but instead provided a limited "immunity" defense to prosecution under state law for cultivation or possession of marijuana, see People v. Mower (2002) 28 Cal.4th 457, 468-469 [122 Cal.Rptr.2d 326, 49 P.3d 1067]), the MMP's identification card system is designed to protect against unnecessary arrest. (See § 11362.78 [law enforcement officer must accept the identification card absent reasonable cause to believe card was obtained or is being used fraudulently].) Additionally, the MMP exempts the bearer of an identification card (as well as qualified patients as defined by the MMP) from liability for other controlled substance offenses not expressly made available to medical marijuana users under the CUA. (Compare § 11362.5, subd. (d) [§§ 11357 and 11358 do not apply to patient or primary caregiver if substance possessed or cultivated for personal medical purposes] with § 11362.765, subd. (a) [specified persons not subject to criminal liability for §§ 11359, 11360, 11366.5 or 11570 in addition to providing exemptions from §§ 11357 and 11358, which parallel the CUA's exemption].)
*831 Counties, relying on Franchise Tax Board v. Cory (1978) 80 Cal.App.3d 772 [145 Cal.Rptr. 819],[18] asserts that any legislation that adds provisions to an initiative statute, for purposes of either correcting it or clarifying it, is amendatory within the proscriptions of article II, section 10, subdivision (c).[19] However, in Franchise Tax Board, the court invalidated the legislative enactment because the initiative statute required audits of financial reports of candidates for public office, and the legislative enactment both added to the audit requirements of the initiative statute (by specifying the standards to be employed by the audit) and by "significantly restricting the manner in which audits are to be conducted." (Franchise Tax Board v. Cory, supra, 80 Cal.App.3d at p. 777.)
Here, although the legislation that enacted the MMP added statutes regarding California's treatment of those who use medical marijuana or who aid such users, it did not add statutes or standards to the CUA. Instead, the MMP's identification card is a part of a separate legislative scheme providing separate protections for persons engaged in the medical marijuana programs, and the MMP carefully declared that the protections provided by the CUA were preserved without the necessity of complying with the identification card provisions. (§ 11362.71, subd. (f).) The MMP, in effect, amended provisions of the Health and Safety Code regarding regulation of drugs adopted by the Legislature, not provisions of the CUA. Because the MMP's identification card program has no impact on the protections provided by the CUA, we reject Counties' claim that those provisions are invalidated by article II, section 10, subdivision (c), of the California Constitution.
*832 DISPOSITION
The judgment is affirmed.
O'Rourke, J., and Irion, J., concurred.
NOTES
[1] All statutory references are to the Health and Safety Code unless otherwise specified.
[2] For example, the MMP's exemptions encompass a broad list of specified drug offenses from which qualified patients and primary caregivers would be immune. The MMP provides that exempt persons would not "`be subject, on that sole basis, to criminal liability under Section 11357 [possession of marijuana], 11358 [cultivation of marijuana], 11359 [possession for sale], 11360 [transportation], 11366 [maintaining a place for the sale, giving away or use of marijuana], 11366.5 [making available premises for the manufacture, storage or distribution of controlled substances], or 11570 [abatement of nuisance created by premises used for manufacture, storage or distribution of controlled substance].' (§ 11362.765, subd. (a).)" (People v. Wright, supra, 40 Cal.4th at p. 93.) The MMP also contains definitional provisions for those entitled to the protections of the MMP (§ 11362.7), imposes obligations on applicants and holders of identification cards (§§ 11362.715, 11362.76, 11362.77, 11362.81), and contains several other miscellaneous provisions.
[3] Counties also note the United States is a party to a treaty, the Single convention on narcotic drugs, March 30, 1961, 18 U.S.T. 1407, T.I.A.S. No. 6298 (see 21 U.S.C. § 801(7)), which includes prohibitions on marijuana. However, this treaty is not self-executing, and Counties do not explain how the treaty lends any added weight to the preemption questions presented here.
[4] County of Merced is not a party to this appeal and its complaint in intervention is not part of the record on appeal. However, we grant State's unopposed motion for judicial notice of County of Merced's complaint in intervention.
[5] The issue of standing, raised at trial, is a jurisdictional issue that may be raised at any time notwithstanding the absence of a cross-appeal. (Citizens for Uniform Laws v. County of Contra Costa (1991) 233 Cal.App.3d 1468, 1472 [285 Cal.Rptr. 456].)
[6] Counties, citing Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432 [261 Cal.Rptr. 574, 777 P.2d 610] and Harman v. City and County of San Francisco (1972) 7 Cal.3d 150 [101 Cal.Rptr. 880, 496 P.2d 1248], appear also to assert that standing exists when the party has a sufficient interest in the litigation to ensure the matter will be prosecuted with vigor. However, these cases did not hold a person willing to litigate a claim intensely acquires standing that is otherwise absent, and we are not aware of any case law suggesting that a willingness to fervently pursue a cause is the sine qua non of standing to litigate that cause.
[7] Our decision to limit Counties' constitutional challenge to those portions of the CUA and MMP that directly affect them is consonant with "[w]ell-settled principles of judicial restraint [that establish] when a case must be decided upon constitutional grounds, a court should strive to resolve the matter as narrowly as possible, and should avoid expansive constitutional pronouncements that inevitably prejudge future controversies and may have unforeseen and questionable consequences in other contexts. [Citations.]" (Powers v. City of Richmond (1995) 10 Cal.4th 85, 116 [40 Cal.Rptr.2d 839, 893 P.2d 1160] (conc. opn. of George, J.).) This principle of jurisprudential restraint cautions against deciding broad constitutional questions raised, as here, by persons not injuriously affected by the challenged statute. (See generally Longval v. Workers' Comp. Appeals Bd. (1996) 51 Cal.App.4th 792, 802 [59 Cal.Rptr.2d 463].)
[8] Specifically, we examine Counties' preemption claims only as to sections 11362.71, subdivision (b) (requiring counties to administer the identification card system established by the Department of Health Services), 11362.72 (specifying counties' obligations upon receipt of application for identification card), 11362.735 (specifying contents of identification card issued by counties), 11362.74 (specifying grounds and procedures for denying application), 11362.745 (specifying renewal procedures for cards), and 11362.755 (permitting counties to establish fees to defray cost of administering system), which impose obligations on Counties. We conclude Counties do not have standing to challenge (and therefore we do not evaluate) whether the remaining sections, and in particular sections 11362.5, subdivision (d), and 11362.765 (providing specified persons with exemptions from state law penalties for specified offenses), are preempted by the CSA.
[9] The preemption clause evaluated by the Southern Blasting court provided that, "No provision of this chapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter, unless there is a direct and positive conflict between such provision and the law of the State so that the two cannot be reconciled or consistently stand together." (18 U.S.C. § 848.)
[10] Justice Scalia explained that title 21 United States Code section 903 only "affirmatively prescrib[ed] federal pre-emption whenever state law creates a conflict. In any event, the Directive does not purport to pre-empt state law in any way, not even by conflict preemptionunless the Court is under the misimpression that some States require assisted suicide. The Directive merely interprets the CSA to prohibit, like countless other federal criminal provisions, conduct that happens not to be forbidden under state law (or at least the law of the State of Oregon)." (Gonzales v. Oregon, supra, 546 U.S. at pp. 289-290 (dis. opn. of Scalia, J.).)
[11] The parties dispute whether obstacle preemption is merely an alternative iteration of conflict preemption, or whether obstacle preemption requires an analytical approach distinct from conflict preemption. Our Supreme Court, although recognizing that the courts have often "group[ed] conflict preemption and obstacle preemption together in a single category" (Viva!, supra, at pp. 935-936, fn. 3), has concluded the two types of preemption are "analytically distinct and may rest on wholly different sources of constitutional authority [and] we treat them as separate categories ...." (Ibid.)
[12] In Geier and Sprietsma, the express preemption clauses precluded a state from establishing any safety standard regarding a vehicle (Geier) or vessel (Sprietsma) not identical to the federal standard, but separate "savings" clauses specified that compliance with the federal safety standards did not exempt any person from any liability under common law. (Geier v. American Honda Motor Co., supra, 529 U.S. at pp. 867-868; Sprietsma v. Mercury Marine, supra, 537 U.S. at pp. 58-59.) The analysis of the interplay between two statutes, as addressed by the Geier and Sprietsma courts, bears no resemblance to the issues presented here. In Buckman Co. v. Plaintiffs' Legal Comm., supra, 531 U.S. 341, the issues examined by the court are even more remote from the issues we must resolve. First, the Buckman court specifically recognized that the preemption issue there involved "[p]olicing fraud against federal agencies[, which] is hardly `a field which the States have traditionally occupied,' [citation] such as to warrant a presumption against finding federal pre-emption of a state-law cause of action." (Buckman, at p. 347.) Moreover, Buckman effectively relied on field preemption concerns to delimit state fraud claims. (Id. at pp. 348-353.) Neither of these aspects of Buckman is relevant to the issues we must resolve.
[13] San Bernardino concedes on appeal that compliance with California law "may not require a violation of the CSA," although it then asserts it "encourages if not facilitates the CSA's violation." However, the Garden Grove court has already concluded, and we agree, that governmental entities do not incur aider and abettor liability by complying with their obligations under the MMP (City of Garden Grove v. Superior Court, supra, 157 Cal.App.4th at 389-392), and we therefore reject San Bernardino's implicit argument that requiring a county to issue identification cards renders that county an aider and abettor to create a positive conflict with the CSA.
[14] San Diego also cites numerous subdivisions of the CUA and MMP, which contain a variety of provisions allegedly authorizing or permitting persons to engage in conduct expressly barred by the CSA, to show the CUA and MMP in positive conflict with the CSA. However, none of the cited subdivisions are contained in the statutes that Counties have standing to challenge (see fn. 8, ante), and we do not further consider Counties' challenges as to those provisions.
[15] The bulk of Counties' arguments on obstacle preemption focus on statutory provisions other than the identification card statutes. Because Counties do not have standing to challenge those statutes, we decline Counties' implicit invitation to issue an advisory opinion on whether those statutes are preempted by the CSA, and instead examine only those aspects of the statutory scheme imposing obligations on Counties.
[16] San Diego argues the anticommandeering doctrine discussed in Printz is inapplicable because the court in Hodel v. Virginia Surface Mining & Recl. Assn. (1981) 452 U.S. 264, 289-290 [69 L.Ed.2d 1, 101 S.Ct. 2352] explicitly rejected the assertion the Tenth Amendment delimited Congress's ability under the commerce clause to displace state laws. However, Printz rejected an analogous claim when it held that, although the commerce clause authorized Congress to enact legislation concerning handgun registration, the Brady Act's direction of the actions of state executive officials was not constitutionally valid under United States Constitution, article I, section 8, as a law "necessary and proper" to the execution of Congress's commerce clause power to regulate handgun sales, because when "a `La[w] ... for carrying into Execution' the Commerce Clause violates the principle of state sovereignty reflected in the various constitutional provisions we mentioned earlier [citation] it is not a `La[w] ... proper for carrying into Execution the Commerce Clause.'" (Printz, supra, 521 U.S. at pp. 923-924.) Thus, although the commerce clause permits Congress to enact the CSA, it does not permit Congress to conscript state officers into arresting persons for violating the CSA.
[17] We recognize the Second District Court of Appeal has concluded that one statute enacted as part of the MMPsection 11362.77, subdivision (a) (establishing a ceiling on the amount of marijuana a qualified patient or primary caregiver may possess)was an improper amendment of the CUA. (See People v. Kelly (2008) 163 Cal.App.4th 124 [77 Cal.Rptr.3d 390].) Although it is unclear either that the Kelly court was required to reach the issue or that its resolution of the issue was correct, Kelly did not purport to hold the entire MMP invalid but instead severed the quantity limitations of section 11362.77, subdivision (a) from the balance of the MMP and determined only that the severed aspect of the MMP was an unconstitutional amendment of the CUA. Because we here address different aspects of the MMP from that considered in Kelly, the conclusion in Kelly is inapposite to our task.
[18] San Bernardino appears to rely on Planned Parenthood Affiliates v. Swoap (1985) 173 Cal.App.3d 1187 [219 Cal.Rptr. 664] for the proposition that legislative action constitutes an amendment of a prior initiative statute in violation of article II, section 10, subdivision (c), of the California Constitution if its purpose is to clarify or correct uncertainties in existing law. However, the Planned Parenthood Affiliates court evaluated whether the legislation under consideration violated the single subject rule of article IV, section 9 of the California Constitution, and had no occasion to consider whether the statute was invalid under article II, section 10, subdivision (c).
[19] San Bernardino also quotes, without citation to the record, certain statements of legislative intent allegedly declaring the intent of the MMP was to "clarify the scope" of the CUA and "address issues that were not included in the [CUA]." Even were we to consider this argument (but see Regents of University of California v. Sheily (2004) 122 Cal.App.4th 824, 826-827, fn. 1 [19 Cal.Rptr.3d 84] [failure of party to cite record permits appellate court to disregard matter]), it ignores that other legislative history accompanying adoption of the MMP specified "[n]othing in [the MMP] shall amend or change Proposition 215, nor prevent patients from providing a defense under Proposition 215 .... The limits set forth in [the MMP] only serve to provide immunity from arrest for patients taking part in the voluntary ID card program, they do not change Section 11362.5 (Proposition 215)." (Sen. Rules Com., Off. of Sen. Floor Analyses, com. on Sen. Bill No. 420 (2003-2004 Reg. Sess.) as amended Sept. 9, 2003.) Thus, the legislative history suggests the MMP was not intended to alter or affect the rights provided by the CUA. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266686/ | 165 Cal.App.4th 345 (2008)
BRIAN KOPONEN et al., Plaintiffs and Appellants,
v.
PACIFIC GAS & ELECTRIC COMPANY, Defendant and Respondent.
No. A116728.
Court of Appeals of California, First District Division One.
July 28, 2008.
*348 Coughlin Stoia Geller Rudman & Robbins, Frank J. Janecek, Jr., Pamela M. Parker, Christopher Collins; Bushnell, Caplan & Fielding and Alan M. Caplan for Plaintiffs and Appellants.
Mark H. Penskar, Cesar V. Alegria, Jr.; Willenken, Wilson, Loh & Lieb, Nhan T. Vu, Jason H. Wilson and Paul J. Loh for Defendant and Respondent.
Lionel B. Wilson, Helen W. Yee and Carrie G. Pratt for California Public Utilities Commission as Amicus Curiae.
OPINION
STEIN, Acting P. J.
Plaintiffs Brian Koponen, Gloria Peterson and The Edith A. Hayes Trust filed suit on behalf of themselves and a class of persons similarly situated against Pacific Gas & Electric Company (PG&E), a public utility, seeking damages and other relief after PG&E leased or licensed rights in easements burdening plaintiffs' property to telecommunications companies for the purposes of installing and using fiber-optic lines. PG&E demurred, contending (1) Public Utilities Code section 1759[1] deprived the superior court of jurisdiction to adjudicate plaintiffs' claims, (2) plaintiffs' claims cannot survive the decision in Salvaty v. Falcon Cable Television (1985) 165 Cal.App.3d 798 [212 Cal.Rptr. 31] (Salvaty) and (3) the case is not suitable for class adjudication. The trial court sustained PG&E's demurrer on the first of these grounds, ruling it had no jurisdiction over plaintiffs' claims. Having decided the matter on that point, the court did not rule on PG&E's other contentions, concluding they were mooted by its jurisdictional finding. The court then dismissed the complaint without leave to amend. We conclude section 1759 bars some but not all of plaintiffs' claims.
BACKGROUND
According to plaintiffs' allegations, PG&E, by condemnation or private agreement, obtained easements creating rights-of-way over plaintiffs' properties for the purposes of furnishing and supplying electricity, light, heat and power to the public. Plaintiffs allege that at some time after 1990, PG&E began installing fiber-optic telecommunications lines and wireless telecommunications equipment in the corridors subject to the easements. PG&E later began leasing or licensing fiber-optic capacity and telecommunications services to third parties, including leading telecommunications and Internet *349 companies. Plaintiffs claim by leasing or licensing its facilities to telecommunications providers, PG&E exceeded the scope of the easements granted or conveyed to it and reduced the value of plaintiffs' properties. They assert the installation and leasing of fiber-optic lines has increased and will increase the burden on the servient estates by increasing maintenance activities along the easement corridors and by creating the possibility that the estates will be subject to 1996 amendments to the Pole Attachment Act, 47 U.S.C. § 224 et seq., which requires electric utility companies to grant telecommunications carriers nondiscriminatory access to poles and rights-of-way owned or controlled by the companies.[2] Plaintiffs also complain the leases and licenses subject plaintiffs to increased risks of tort liability by allowing third parties to use the easement corridors. Plaintiffs allege causes of action for unlawful business practices, unfair business practices, unjust enrichment, and intentional and negligent trespass. They seek compensatory and punitive damages; injunctive, declaratory and equitable relief; restitution, pre-judgment and post-judgment interest and attorney fees.
DISCUSSION
I.
Standard of Review
"On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend ... [t]he reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed `if any one of the several grounds of demurrer is well taken. [Citations.]' [Citation.]" (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967 [9 Cal.Rptr.2d 92, 831 P.2d 317].)
II.
Section 1759 Does Not Bar Plaintiffs' Suit
Limitations Imposed by Section 1759
(1)This case, like others before it, concerns the interplay between sections 1759 and 2106. Section 1759 recognizes the Public Utilities Commission *350 (commission, or, sometimes, PUC) is an agency of constitutional origin with broad powers granted to it by the Constitution (Cal. Const., art. XII, §§1-6) and the Legislature through the plenary power granted to the Legislature by article XII, section 5 of the California Constitution. The Legislature, by means of the Public Utilities Act (§ 201 et seq.), has authorized the commission to "do all things, whether specifically designated in [the act] or in addition thereto, which are necessary and convenient in the exercise of such power and jurisdiction [over public utilities]." (§ 701.) California Constitution article XII, section 5 further grants the Legislature plenary power to "establish the manner and scope of review of commission action in a court of record." The Legislature has not conferred authority on the superior courts to review commission decisions. Rather, review of most commission decisions may be obtained by filing a "petition for a writ of review in the court of appeal or the Supreme Court for the purpose of having the lawfulness of the original order or decision or of the order or decision on rehearing inquired into and determined." (§ 1756, subd. (a).)[3] Section 1759, subdivision (a) provides: "No court of this state, except the Supreme Court and the court of appeal, to the extent specified in this article, shall have jurisdiction to review, reverse, correct, or annul any order or decision of the commission or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the commission in the performance of its official duties, as provided by law and the rules of court." (2) The Legislature accordingly has made it clear "that no other court has jurisdiction either to review or suspend the commission's decisions or to enjoin or otherwise `interfere' with the commission's performance of its duties." (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 916 [55 Cal.Rptr.2d 724, 920 P.2d 669] (Covalt).)[4]
(3)Notwithstanding this limitation, chapter 11 of the Public Utilities Act, entitled "Violations," recognizes the superior courts have jurisdiction to redress violations of commission decisions committed by public agencies. (§ 2100 et seq.; Covalt, supra, 13 Cal.4th at p. 916.) Section 2106 creates a private remedy, providing, "Any public utility which does, causes to be done, or permits any act, matter, or thing prohibited or declared unlawful, or which omits to do any act, matter, or thing required to be done, either by the Constitution, any law of this State, or any order or decision of the commission, shall be liable to the persons or corporations affected thereby for all loss, damages, or injury caused thereby or resulting therefrom. If the court finds that the act or omission was wilful, it may, in addition to the actual *351 damages, award exemplary damages. An action to recover for such loss, damage, or injury may be brought in any court of competent jurisdiction by any corporation or person." The Supreme Court, recognizing a potential conflict between sections 2106 and 1759, has held section 2106 "must be construed as limited to those situations in which an award of damages would not hinder or frustrate the commission's declared supervisory and regulatory policies." (Waters v. Pacific Telephone Co. (1974) 12 Cal.3d 1, 4 [114 Cal.Rptr. 753, 523 P.2d 1161] (Waters).) "[T]he two sections must be construed in a manner which harmonizes their language and avoids unnecessary conflict. Section 2106 reasonably may be interpreted as authorizing only those actions which would not interfere with or obstruct the commission in carrying out its own policies." (Id. at p. 11.)
(4) "Under the Waters rule [Waters, supra, 12 Cal.3d 1], accordingly, an action for damages against a public utility pursuant to section 2106 is barred by section 1759 not only when an award of damages would directly contravene a specific order or decision of the commission, i.e., when it would `reverse, correct, or annul' that order or decision, but also when an award of damages would simply have the effect of undermining a general supervisory or regulatory policy of the commission, i.e., when it would `hinder' or `frustrate' or `interfere with' or `obstruct' that policy." (Covalt, supra, 13 Cal.4th at p. 918.) (5) The Supreme Court established a three-part test to determine whether an action is barred by section 1759: (1) whether the commission had the authority to adopt a regulatory policy; (2) whether the commission had exercised that authority; and (3) whether the superior court action would hinder or interfere with the commission's exercise of regulatory authority. (Id. at pp. 923, 926, 935; see Hartwell Corp. v. Superior Court (2002) 27 Cal.4th 256, 266 [115 Cal.Rptr.2d 874, 38 P.3d 1098] (Hartwell).)
Application of Three-part Test
As the present case illustrates, the test may be somewhat easier to state than to apply. PG&E identifies a regulatory policy of promoting the joint use of utility property for general telecommunications purposes. PG&E then cites five commission opinions explaining the commission's reasons for granting applications by PG&E to enter into agreements with providers of telecommunications services. The opinions recognize that allowing PG&E to install, lease and/or license fiber optics on its transmission lines will benefit the public by encouraging energy utilities to use their property productively and by reducing the need for construction of new telecommunications project sites. In addition, at least some of the agreements provide additional benefit to the public by allowing PG&E to increase its capacities and obtain supporting facilities at minimal cost. Installing fiber-optic lines also would provide some additional stability to existing transmission lines. The commission also considered what PG&E should do with the revenues generated by *352 the licenses or leases, and concluded, for the most part, that the revenues should be credited to PG&E's ratepayers.[5]
We do not doubt the commission has power to regulate PG&E's use of its facilities, including the power to regulate whether PG&E may install fiber-optic lines or license or lease its facilities to providers of telecommunications services. We also do not doubt the commission, subject to state or federal statutory requirements, has the power to determine how revenues from *353 PG&E's leases or licenses must be allocated or distributed. There also is little question that the commission has exercised its regulatory power by authorizing PG&E to enter into specific licensing or leasing agreements and also by determining how resulting revenues will be allocated. We therefore agree plaintiffs' suit is barred to the extent it could hinder or interfere with the commission's exercise of its authority to determine what use PG&E can make of its facilities or how revenues generated from that use should be allocated.
Plaintiffs, however, contend their claims have nothing to do with the commission's authority to regulate PG&E's use of PG&E property, including PG&E's property interest in the rights-of-way over plaintiffs' land. Rather, plaintiffs seek to establish PG&E is invading plaintiffs' property rights by attempting to sell to the telecommunications providers a use of the rights-of-way that PG&E does not own. Plaintiffs contend the commission has no regulatory authority or interest in private disputes over property rights between PG&E and private landowners. We agree.
In Covalt, the plaintiffs filed an action seeking damages and injunctive relief from an electric company alleging injury and property damage from electric currents through power lines on an easement on land adjacent to the plaintiffs' residence. (Covalt, supra, 13 Cal.4th at p. 910.) According to the complaint, the currents caused "`high and unreasonably dangerous levels of electromagnetic radiation [EMF'sfor electromagnetic fields] [to be emitted] onto [the] plaintiffs' property.'" (Id. at p. 911.) The Supreme Court found the commission had authority to determine whether the service or equipment of any public utility poses a danger to the health or safety of the public, and, if so, to prescribe corrective measures and order them into effect. (Id. at pp. 923-924.) It also has broad authority over the design and siting of electric power lines. (Id. at pp. 924-925.) The commission, therefore, had the authority to adopt a policy on whether electric and magnetic fields arising from the power lines are a public health risk and what action, if any, the utilities should take to minimize that risk. (Id. at p. 923.) The commission had been investigating the potential public health effects of exposure to electromagnetic fields (EMF's), had issued reports on its findings and had developed and implemented rules based on its findings. The Supreme Court therefore found, "the commission has exercisedand is still exercisingits constitutional and statutory authority to adopt a general policy on whether electric and magnetic fields arising from the powerlines of regulated utilities are a public health risk and what steps, if any, the utilities should take to minimize that risk." (Id. at p. 935.)
Most of the plaintiffs' theories against the electric company were barred for reasons unrelated to the reach of section 1759. (Covalt, supra, 13 Cal.4th at *354 pp. 935-937, 939-943.) The Supreme Court, however, considered whether section 1759 deprived the superior court of jurisdiction to adjudicate the plaintiffs' claim of nuisance. The plaintiffs alleged their use and enjoyment of their property had been impaired by the fear that the EMF's would cause them physical harm. (13 Cal.4th at p. 939.) The court found that even if such a claim were viable, the trier of fact could award damages only by finding reasonable persons viewing the matter objectively would experience a substantial fear that the EMF's would cause physical harm and also that the invasion was so serious as to outweigh the social utility from the complained-of conduct. It held, "Such findings, however, would be inconsistent with the commission's conclusion, reached after consulting with [the State Department of Health Care Services], studying the reports of advisory groups and experts, and holding evidentiary hearings, that the available evidence does not support a reasonable belief that [the EMF's to which the plaintiffs had been exposed] present a substantial risk of physical harm, and that unless or until the evidence supports such a belief regulated utilities need take no action to reduce field levels from existing powerlines." (Ibid.)
In Covalt, supra, 13 Cal.4th 893, then, the plaintiffs by their court action sought a ruling directly contrary to a decision of the commission made in response to an issue actually and properly before it: the regulation of EMF's to protect the public safety. Similarly in Waters, supra, 12 Cal.3d 1, a suit against a telephone utility seeking damages for failing to provide adequate service was barred because the commission had adopted a policy of limiting the liability of telephone utilities. The Supreme Court held, "Since an award of substantial damages to plaintiff would be contrary to the policy adopted by the commission and would interfere with the commission's regulation of telephone utilities, we have concluded that section 1759 bars the instant action." (Id. at p. 4.) Here, in contrast, there is no evidence the commission has considered the extent of PG&E's property interests in its rights-of-way, or that it has adopted any policy limiting a utility's liability for invading the property interests of private parties.
The court in Covalt, supra, 13 Cal.4th 893, distinguished two appellate court cases. In Cellular Plus, Inc. v. Superior Court (1993) 14 Cal.App.4th 1224 [18 Cal.Rptr.2d 308] (Cellular Plus), consumers and corporate sales agents, including Cellular Plus, brought suit against two cellular telephone service companies, claiming price fixing under the Cartwright Act (Bus. & Prof. Code, § 16700 et seq.). (Cellular Plus, at p. 1229.) The trial court sustained demurrers to those claims, apparently finding they were barred by section 1759. (14 Cal.App.4th at p. 1231.) The companies asserted the demurrer properly had been granted because the trial court proceedings would interfere with the commission's overall primary jurisdiction over rates charged by public utilities. (Id. at p. 1246.) The appellate court disagreed. "We cannot conceive how a price fixing claim under the Cartwright Act could *355 `hinder or frustrate' the PUC's supervisory or regulatory policies. The only apparent policy of the PUC that could be affected is its regulation of rates charged by cellular telephone service providers. However, Cellular Plus does not dispute that the PUC has jurisdiction over rates, nor does it seek any relief requiring the PUC to change any rates it has approved. Cellular Plus is merely seeking treble damages and injunctive relief for alleged price fixing under the Cartwright Act." (Ibid.; and see Covalt, supra, at p. 919.) In addition, although not directly applicable to the companies' arguments about section 1759, the Court of Appeal recognized the PUC does not have jurisdiction over antitrust violations. (Cellular Plus, supra, at p. 1247.)
In Stepak v. American Tel. & Tel. Co. (1986) 186 Cal.App.3d 633 [231 Cal.Rptr. 37] (Stepak), a minority shareholder in a telephone utility filed a class action against the utility alleging breaches of fiduciary duty in connection with a proposed merger with a second utility. The commission later approved the merger. (Id. at pp. 636-638.) In finding section 1759 did not bar the shareholder's suit, the Court of Appeal reasoned, "We are aware of no `declared supervisory and regulatory policies' [citation] ever formulated or relied on by the commission on the subject of safeguarding minority investor interests. Applying the Waters test of jurisdiction [Waters, supra, 12 Cal.3d 1], we cannot conceive of how the superior court's award of damages or other relief to wronged minority shareholders would `hinder or frustrate' [citation] declared commission policy. Appellant's class action suit is therefore authorized under section 2106." (Stepak, supra, at pp. 640-641; and see Covalt, supra, 13 Cal.4th at pp. 919-920.) In addition, the court found the commission had "entered an area beyond its regulatory realm when it purported to adjudicate the `fairness' of the transaction to minority shareholders, as distinct from the issue of whether retention of minority shareholders was in the public interest." (Stepak, at p. 641.)
In both Cellular Plus, supra, 14 Cal.App.4th 1224, and Stepak, supra, 186 Cal.App.3d 633, the commission had no legitimate regulatory interest in the claims underlying the plaintiffs' complaints. It had no authority to respond to antitrust claims and no authority to respond to claims a transaction would be unfair to minority shareholders. That the claims were brought against public utilities did not, in and of itself, invest the commission with regulatory authority over them, nor did it matter that the plaintiffs might have been entitled to relief for action that had been approved by the commission. Similarly here, the commission has no authority to determine the property dispute between plaintiffs and PG&E, and it does not matter that the commission has approved PG&E's applications. The commission certainly can determine that the applications are in the public interest, just as the commission in Stepak was entitled to determine that the merger was in the public interest, but neither that finding nor the commission's approval of the applications in any way determined the extent of PG&E's rights in the *356 easements. Moreover, even if the commission's decisions might be interpreted as finding PG&E's interest in the easements permitted PG&E to enter into the leases or licenses, PG&E has not established that the commission's regulatory authority actually allows it to adjudicate private property rights.
(6) In Cal. Water & Tel. Co. v. Public Util. Com. (1959) 51 Cal.2d 478 [334 P.2d 887], the commission, in essence, determined that a contract, plus amendments thereto, between a utility and an individual, obligated the utility to dedicate services to portions of the individual's property. The commission then ordered the utility to carry out the terms of its agreement as modified by the commission's own opinion, directing the utility to reexecute the contract, as amended by agreement of the parties, and as modified by the commission's order. (Id. at pp. 487-488.) The Supreme Court reversed the commission's order, pointing out "`the ... commission is not a body charged with the enforcement of private contracts. [Citation.] Its function ... is to regulate public utilities and compel the enforcement of their duties to the public [citation], not to compel them to carry out their contract obligations to individuals.' The commission cannot `modify' a public utility's contract or order a public utility to perform a contract, whether `modified' or `unmodified.' It may, however, within the limits of its jurisdiction, order a public utility to render certain services on certain terms and conditions, and in so doing it is not bound by the terms of a utility's previously negotiated contracts.'" (Id. at p. 488, quoting Atchison etc. Ry. Co. v. Railroad Com. (1916) 173 Cal. 577, 582 [160 P. 828].) Similarly, the commission cannot "modify" the terms of the rights-of-way obtained by PG&E by eminent domain or private contract.
Our conclusion on this point is supported by the commission itself, which filed an amicus brief at our request. The commission affirms it has established a policy favoring the joint use of utility property, including easements, and has authorized PG&E to lay fiber-optic cable alongside existing electrical lines and to share those fiber-optic cables with telecommunications providers. It explains, "Implicit in this authorization, however, is the assumption that PG&E in fact possesses the legal right to lay such cable alongside its electrical lines. That issue was not presented to the Commission for determination, and no such determination was made. It is important to note that, in the Commission decisions cited by PG&E, the Commission did not (and could not) authorize PG&E to do more than what is legally permitted under the scope of PG&E's existing easements."
Section 1759 Bars Some of Plaintiffs' Claims
That the commission has made no determination of the extent of PG&E's easements means only that plaintiffs are not barred from seeking a court *357 determination of that issue. It does not, however, follow that plaintiffs are entitled to obtain all the relief they seek by their complaint. To the contrary, some of the relief plaintiffs seek invades the commission's rate-making authority, and is barred by section 1759.
The problem is illustrated and partially resolved by the opinion in Hartwell, supra, 27 Cal.4th 256. The plaintiffs there sought damages and injunctive relief on allegations, among others, that water companies regulated by the commission had provided contaminated well water to the plaintiffs, causing death, personal injury and property damage. (Id. at pp. 260-261.) The commission, exercising its regulatory authority, had adopted standards for water safety which it used as benchmarks in setting the rates the water companies could charge. (Id. at pp. 272, 276.) The court held the plaintiffs were not entitled to challenge the adequacy of water standards approved by the commission or seek damages on the theory the public utilities had provided unhealthy water despite meeting the standards. An award of damages on such theory would interfere with a broad and continuing supervisory program of the commission and would undermine the commission's policy by holding the utility liable for not doing what the commission repeatedly had determined it and all similarly situated utilities were not required to do. (Id. at p. 276.)
(7) The plaintiffs could, however, pursue claims that a utility had failed to meet the water standards, because those claims would not interfere with the commission's regulatory policy requiring water utility compliance with those standards. (Hartwell, supra, 27 Cal.4th at p. 276.) "[S]uperior courts are not precluded from acting in aid of, rather than in derogation of, the PUC's jurisdiction. [Citation.]" (Id. at p. 275.) This was true even though the commission had made a retrospective finding that the water companies had substantially complied with drinking water standards for the past 25 years. The commission's factual finding was not part of an identifiable broad and continuing supervisory or regulatory program. (Id. at pp. 276-277.) In addition, while the commission had authority to redress past violations, the remedies it could order would be essentially prospective in nature. As the commission could not award damages for past failures to meet state and federal drinking standards, the plaintiffs' "damage actions would not interfere with the [commission] in implementing its supervisory and regulatory policies to prevent future harm." (Id. at p. 277.) Further, "the Covalt language regarding the contravention of an order was simply a reference to the statutory language in subdivision (a) of section 1759 that `[n]o court of this state, except the Supreme Court and the court of appeal ... shall have jurisdiction to review, reverse, correct, or annul any order or decision of the commission . . . .' [Citation.] Although a jury award supported by a finding that a public water utility violated [State Department of Health Care Services] and PUC standards would be contrary to a single PUC decision, it would *358 not . . . constitute a direct review, reversal, correction, or annulment of the decision itself. Accordingly, such a jury verdict would not be barred by the statute." (Hartwell, at pp. 277-278, quoting Covalt, supra, 13 Cal.4th at p. 918.)
(8) For the same reason, section 1759 presents no bar to plaintiffs' claim for damages incurred as a result of unauthorized uses of the rights-of-way. Any suggestion in a commission order that PG&E acted properly in leasing or licensing the use of its right-of way in a specific case is not part of an identifiable broad and continuing supervisory or regulatory program. An award of damages for past invasions of plaintiffs' property rights would not interfere with the commission's authority to implement supervisory or regulatory policies to prevent future harm. And finally, a finding PG&E was violating plaintiffs' property rights would not interfere with the PUC's declared policy of encouraging joint use of PG&E's facilities even if such finding would be contrary to or inconsistent with a PUC order, and would not constitute a review, reversal, correction, or annulment of the order itself.
Section 1759 also does not bar plaintiffs from seeking to enjoin PG&E from invading plaintiffs' property interests by licensing or leasing its facilities. It is true the Supreme Court ruled in Hartwell a grant of injunctive relief would conflict with a decision made by the commission and would interfere with its regulatory function. In that case, however, the commission had investigated the plaintiffs' claims, had concluded they were unfounded, and effectively found no need to take any remedial action against the utilities. It followed that "[a] court injunction, predicated on a contrary finding of utility noncompliance, would clearly conflict with the PUC's decision and interfere with its regulatory functions in determining the need to establish prospective remedial programs." (Hartwell, supra, 27 Cal.4th at p. 278.) In the present case, the commission has made no investigation into the validity of plaintiffs' claims, has made no finding PG&E has complied with the terms of the grants of its rights-of-way, and has made no determination further action has been rendered unnecessary.
Plaintiffs, however, may not seek relief in the nature of "disgorgement of unjustly obtained profits" or restitutionary or declaratory or other relief requiring PG&E to pay to plaintiffs some or all of the revenues from leasing or licensing its facilities. The commission, as part of its rate-making authority, has determined how those revenues are to be allocated. An award of relief that effectively redirects the payment of those revenues would directly contravene or annul the commission's decisions.
*359 CONCLUSION
The trial court erred in ruling that section 1759 deprived it of jurisdiction to consider all of plaintiffs' claims. Having found that some of those claims survive the bar of the section, we remand this matter to the superior court for further proceedings.
Swager, J., and Margulies, J., concurred.
NOTES
[1] Further statutory references are to the Public Utilities Code.
[2] 47 U.S.C.A. section 224(f)(1) provides, "A utility shall provide a cable television system or any telecommunications carrier with nondiscriminatory access to any pole, duct, conduit, or right-of-way owned or controlled by it."
[3] Certain decisions may be reviewed only by petition for writ of review in the Supreme Court. (See § 1756, subds. (f), (g).)
[4] At the time Covalt, supra, 13 Cal.4th 893 was decided, section 1759 limited jurisdiction to review commission decisions or orders to the Supreme Court. It was revised in 1996 to confer jurisdiction also on the Court of Appeal.
[5] In January 2000, the commission granted PG&E's application to permit Electric Lightwave, Inc., to install and use fiber-optic lines on PG&E's transmission towers and rights-of-way. In seeking approval, PG&E asserted, "The agreement allows PG&E to obtain expanded utility communications capacity with minimal investment and at low annual expense.... The fiber optic facilities on the transmission towers will function as a static wire that will give additional protection to transmission lines against lightning." In granting the application, the commission found "[j]oint use of utility property should be encouraged in appropriate cases because of the obvious economic and environmental benefits."
In July 2002, the commission issued a decision granting, in part, PG&E's application for approval of two irrevocable license agreements with IP Networks, Inc., that would permit the provider to use utility support structures, optical fiber and equipment sites on PG&E property. The commission found, "The public interest is served when utility property is used for other productive purposes without interfering with the utility's operation or affecting service to utility customers. [¶] ... [¶] PG&E's grant of the irrevocable licenses to IP Net will also serve the public interest by enabling PG&E to improve its internal utility communications and control systems and to thereby provide enhanced service to the public. In addition, in appropriate cases, the shared use of utility property by energy utilities and telecommunications providers results in both economic and environmental benefits, by encouraging energy utilities to use their property productively and reducing the need for construction of new telecommunications sites." The commission rejected a request by PG&E that it be allowed to split the revenues generated from the licenses between its ratepayers and its shareholders, ruling instead that revenues should be credited to ratepayers.
In May 2002, the commission granted an application for approval of an irrevocable license for Metromedia Fiber Network Services, Inc., to use fiber-optic cable on PG&E's facilities. The commission found "the application serves the public interest by proposing joint use of utility facilities and minimizing duplicative infrastructure." Among other things, the opinion finds, "It is sensible for California's energy utilities, with their extensive easements, rights-of-way, and cable facilities, to cooperate in this manner with telecommunications utilities that are seeking to build an updated telecommunications network. Joint use of utility facilities has obvious economic and environmental benefits. The public interest is served when utility property is used for other productive purposes without interfering with the utility's operation or affecting service to utility customers." The commission again rejected PG&E's request to split net revenues 50/50 between ratepayers and shareholders, ruling PG&E should credit all revenue stemming from the agreement to the ratepayers.
In October 2004, the commission approved an irrevocable lease allowing WilTel Communications to install and use fiber-optic facilities on PG&E's electrical transmission towers, substations, and other facilities. The commission reiterated its previous findings of public benefit.
In September 2005, the commission authorized PG&E to enter into an irrevocable lease with Broadwing Communications Services permitting Broadwing to install and use fiber-optic facilities on PG&E's electric transmission towers, substations, rights-of-way and other facilities. The commission again recognized the public interest would be served by PG&E's cooperation with a telecommunications provider. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266547/ | 440 Pa. 37 (1970)
Commonwealth
v.
Leamer, Appellant.
Supreme Court of Pennsylvania.
Submitted April 20, 1970.
October 9, 1970.
Before BELL, C.J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
*38 T. Dean Lower, for appellant.
Amos Davis, District Attorney, for Commonwealth, appellee.
OPINION BY MR. JUSTICE ROBERTS, October 9, 1970:
Glenn Leamer was indicted on a charge of murder in 1956. Following a plea of guilty he was adjudged guilty of murder in the first degree and sentenced to death; but his conviction was reversed[*] after it was found that he had not been competent to stand trial at the time he pleaded guilty.
Leamer was again tried on the murder charge in 1958, this time before a jury which found him guilty of murder in the first degree and fixed the penalty at life imprisonment. Immediately after the jury returned its verdict, Leamer's counsel made an oral motion for a new trial, but the motion was withdrawn at the time Leamer was brought before the court for sentencing and no appeal was taken.
Leamer is now appealing from the dismissal of a 1969 PCHA petition in which he alleged, inter alia, that he was denied his right of appeal, asserting that he consented to the withdrawal of his motion for a new trial only because he was told that the trial judge, the same judge who had earlier sentenced him to death, was unhappy with the leniency of his life sentence and would welcome another opportunity to impose the death penalty.
*39 At the PCHA hearing, Leamer testified that: "[T]hey told me that if I continued with the motion for a new trial, why this Honorable Court would order a new trial at once because this Honorable Court was mad because I got a life sentence, and that this Court would order a new trial so that I would get a chance for a death sentence again." And Leamer's counsel testified that ". . . the primary consideration [behind Leamer's decision not to prosecute the appeal] was the fact that he could be sentenced [to death]."
The hearing judge, who had presided at both of Leamer's trials, accepted these assertions: "It was stated by counsel in their testimony that it was indicated by the District Attorney that he would be perfectly willing to grant a new trial by reason of the fact of his feeling that the jury in recommending life imprisonment was to him a miscarriage of justice. The Court could not believe or find otherwise than with a motion for a new trial pending the same would be withdrawn had it not been by and with the consent of the defendant and even further at his insistence knowing that a new trial might result in the imposition of a sentence different than that which he had received by the jury." [sic]
In Commonwealth v. Littlejohn, 433 Pa. 336, 250 A. 2d 811 (1969), we held that a defendant who had been given a sentence of life imprisonment could not be sentenced to death on a retrial, and that a decision not to appeal based on the fear that the death sentence could be imposed on a retrial could not, as a matter of law, be a knowing and voluntary waiver of the right to appeal. 433 Pa. at 349, 250 A. 2d at 817. See Commonwealth v. Stewart, 435 Pa. 449, 257 A. 2d 251 (1969); Commonwealth v. Magee, 436 Pa. 57, 258 A. 2d 627 (1969).
*40 The judgment of the Court of Common Pleas of Blair County is reversed and the record is remanded so that Leamer may, with the assistance of counsel, file post-trial motions as though timely filed.
Mr. Chief Justice BELL dissents.
NOTES
[*] Leamer filed a petition for writ of habeas corpus with the Court of Common Pleas of Blair County at No. 58 January Term 1957, and that court reversed his conviction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266550/ | 10 Md. App. 215 (1970)
269 A.2d 96
DELONE EMERSON BROWN
v.
STATE OF MARYLAND.
No. 358, September Term, 1969.
Court of Special Appeals of Maryland.
Decided September 16, 1970.
The cause was argued before MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
Jack R. Turney and William W. Grant for appellant.
Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, T. *217 Bryan McIntire, State's Attorney for Carroll County, and Fred A. Thayer, State's Attorney for Garrett County, on the brief, for appellee.
THOMPSON, J., delivered the opinion of the Court.
Delone Emerson Brown, the appellant, was convicted of second degree murder in the Circuit Court for Carroll County, in a court trial; a sentence of fifteen years was imposed. Brown had been convicted of the same crime in a previous trial, but the judgment was reversed by this Court in Brown v. State, 6 Md. App. 564, 252 A.2d 272.
On this appeal, Brown contends: (1) the conviction should be reversed due to a conflict of interest in counsels' representation of appellant and a co-indictee, an alleged accessory after the fact; and that the trial court improperly: (2) refused to admit the confession of another to the murder, (3) admitted a statement made by the appellant, and (4) refused a motion for judgment of acquittal. For the reasons set out below, we reverse and remand.
On February 18, 1968, William Everett Paugh was stabbed to death in Bob and Madelyn's Tavern near Deer Park in Garrett County, Maryland. The stabbing occurred after a scuffle and argument between the appellant, the decedent, and Ruth Malcomb, the woman with whom the appellant was living, and who was indicted as an accessory after the fact. Although there were about 25 people in the tavern at the time, no witness admitted actually seeing the stabbing. The State called only two of those present to testify as to what occurred: Alexander Snyder and Ricky Malcomb, son of Ruth Malcomb.
Snyder testified he was a patron in the tavern on the evening in question. Noting that the tavern was dimly lit and noisy, Snyder said he saw the appellant and Ruth Malcomb sitting in a booth together. He also heard an argument between the deceased and Mrs. Malcomb at the booth. After the argument, a scuffle broke out during which the deceased swung at the appellant and the appellant *218 held his hands in front of his face seeming to defend himself. The scuffle stopped and then started again about a half minute later, but Snyder was unable to see what happened because of the people surrounding the booth. After the scuffle stopped again, Snyder heard a thud and saw the deceased lying on the floor. Snyder did not see anyone with a knife; he did see Mrs. Malcomb hit the deceased; and he did not see the appellant leave his seated position next to the wall in the booth. Several times Snyder repeated he was not paying much attention and could not see the booth at the time of the homicide.
Ricky Malcomb, who was ten years old at the time of the crime, testified he lived with his mother, two sisters, and the appellant at his mother's house at that time. On the evening of February 18, 1968, he went to the tavern with Albert Paugh, the brother of the decedent, and Mrs. Paugh. At the tavern he sat with Mr. and Mrs. Paugh, his mother, and the appellant. In the tavern, he saw the deceased, whom he had previously known because he had lived with Ricky's mother. Ricky testified a fight erupted between the deceased and the appellant after some name-calling and shouting; during the fight the booth in which they were sitting was knocked over. After the fight, Ricky was taken home by his mother and the appellant. In the house, while he was in the other room, Ricky overheard a conversation between his mother and the appellant during which the appellant said "You don't have to worry anymore, I killed the son of a bitch." Ricky also observed the appellant burn a knife sheath. He testified he had seen the knife which belonged with the sheath earlier that evening at the tavern. He identified a knife shown to him by the prosecution as belonging to the appellant and said that he had seen the appellant with it at the tavern. On cross-examination, it was brought out that Ricky had not testified concerning the conversation in the first trial.
Virginia Lee Malcomb, the daughter of Ruth Malcomb, who was seventeen at the time of trial, stated that on the evening in question after her mother and appellant *219 returned to the house where Virginia was, she heard the appellant say "I killed the son of a bitch, he won't bother you or no one else no more." She also heard the appellant ask to be driven to Ohio but Mrs. Malcomb refused. Virginia contradicted Ricky as to where they were in the house when they overheard the appellant's conversation. Prior to the first trial, she had not revealed the conversation to joint counsel for appellant and her mother.
Trooper Robert Lashley testified about being called to the tavern after the stabbing, discovering the deceased lying on the floor, arresting Malcomb and the appellant, and recovering the knife, later identified as belonging to appellant.
Dr. Benedict Skitarelic, the medical examiner, testified as to the results of his examination of the decedent, including the stab wound in the left chest which was the cause of death. There were also two cuts on the right arm and right side of the chest. Blood alcohol content was .22, indicating the deceased was drunk at the time of death. Upon being called as a defense witness, Dr. Skitarelic testified that someone in a seated position against the wall in the booth described in the tavern could not inflict a wound like the one that caused death.
The defense called nine patrons in the tavern at the time of the stabbing as witnesses. Most of them did not observe any significant facts; however, two of them, the proprietor and a waitress, observed a fight between Mrs. Malcomb and the deceased, immediately after which the deceased fell to the floor and died. Several witnesses did testify to seeing the appellant remain seated in the corner of the booth against the wall. Such other facts as are necessary will be presented with the various contentions.
CONFLICT OF INTEREST
Appellant contends there is a conflict of interest since the same counsel represented him as represented Ruth Malcomb, who had been indicted as an accessory after the fact. After the crime, Malcomb confessed to the killing, describing in great detail how she took a knife from appellant, *220 carried it with her into the tavern, and stabbed the decedent. She later recanted this confession. After the first trial, Malcomb was told by a probation and parole officer that she "had nothing to lose" and could freely discuss the case; whereupon, she directed all guilt to the appellant. In the interim between the first and second trials, appellant's counsel indicated that Mrs. Malcomb would not speak or cooperate with counsel, but she did cooperate with the State by discussing the case without counsel present with the State's Attorney on several occasions. Also, neither of the Malcomb children revealed the alleged admission of guilt made by the appellant in Malcomb's home prior to or at the first trial although both did testify about it at the instant trial. The evening before the trial, appellant's counsel discovered that Mrs. Malcomb was to be a prosecution witness; however, she ultimately did not testify. Several times during the course of the trial, the problem of a conflict of interest was presented to the trial court, although it was presented in the context of a conflict of interest if Mrs. Malcomb testified, which she did not. Counsel did indicate that he felt hampered in his cross-examination due to the special knowledge that had come to him as a result of being Malcomb's attorney and expressed uncertainty about how to remedy what he felt was a clear conflict of interest.[1]
Although there have been numerous conflict of interest issue cases, the issue has been by no means resolved. Most logically, it can be handled by answering a series of questions:
I. Is an actual or imminent conflict of interest present?
II. Given an actual or imminent conflict of interest in existence, *221 a. What quantum of prejudice must exist before there is reversible error?
b. Does that amount of prejudice exist in the present case?
III. What responsibility, if any, is on the trial court to raise the conflict of interest sua sponte?
I
Existence of an Actual Conflict of Interest
In Maryland, a conflict of interest begins with a consideration of the requirement that either an actual conflict of interest exists or that a conflict of interest be "imminently potential", Pressley v. State, 220 Md. 558, 155 A.2d 494. Previous Maryland opinions give general guidance in how to determine whether this requirement has been fulfilled. Within the facts of an individual case, it is proper to consider the complexity of both the law and the facts since the more complex a case becomes, either legally or factually, the more opportunity exists for a conflict of interest. Conversely, if the law is simple and the evidence of guilt strong, the opportunity for conflict of interest may be lessened. Pressley v. State, supra. Of course, the contention may still be found to be an unsupported allegation, Pressley v. State, supra, or to have been waived at trial, Plater v. Warden, 211 Md. 629, 126 A.2d 574.
In addition to these general considerations, certain specific guidance is provided by Maryland precedent. This Court reaffirms its holding that mere joint representation, without more, of two or more defendants by one attorney is not a conflict of interest. Davenport v. State, 7 Md. App. 89, 253 A.2d 768, 772. It would be unusual to find a conflict of interest when, as in Davenport, supra, each of the co-defendants presents an alibi which maintains his own innocence and coincidentally the innocence of his co-defendant, albeit the stories are conflicting. The mere fact that the stories are different does usually not present a conflict of interest if the innocence of both parties is maintained by both stories.
*222 It is mainly to out-of-state cases that we must turn in order to review factual situations which have been found to contain actual or imminent conflicts of interests. Generally, if not always, a conflict of interest is found to be actual or imminent when the accuracy of the determination of guilt or innocence is questioned as a result of the conflict. This may be true when: (1) one co-defendant cooperates with the prosecution and attempts to place the blame for the crime on the other or (2) the effectiveness of cross-examination is significantly diminished as a result of an actual or imminent conflict of interest.
The leading Supreme Court case on conflict of interest, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, dealt mainly with the quantum of prejudice involved and hence made no attempt to extensively analyze or catalog those factual situations which would include an imminent conflict of interest. The Court found that the inability of counsel to effectively cross-examine was an actual conflict of interest. In Glasser, one attorney represented two clients at a joint trial and could not effectively cross-examine prosecution witnesses because questions which would exculpate one client would inculpate the other. The importance of effective cross-examination was also crucial in Commonwealth v. Jones, 215 Pa. Super. 41, 257 A.2d 367 (Pa. Super. Ct. 1969), California v. Fuller, 74 Cal. Rptr. 488 (Cal. Ct. App. 1969), Application of Buffalo Chief, 297 F. Supp. 687 (U.S.D.C., S.D. 1969), and Craig v. United States, 217 F.2d 355 (6th Cir.1954). In Jones, Buffalo Chief and Craig, relief was granted since the effectiveness of cross-examination had been impaired. As the cases indicate, cross-examination is especially important where it would benefit one party to attack the credibility of another party.
A case factually close to the instant case is that of People v. Bopp, 279 Ill. 184, 116 N.E. 679 (1917), wherein the Supreme Court of Illinois found error in appointing the same counsel to represent the accused and an accessory or co-defendant where they had different alibis, the alibi of one tending to exculpate himself but inculpate *223 the other. A similar result was reached in Commonwealth v. Jones, supra, Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 176 A.2d 641 (Pa. S.Ct. 1962) and United States v. Gougis, 374 F.2d 758 (7th Cir.1967). In Jones and Whitling, each co-defendant attempted to shift all blame to the other defendant, while in Gougis the government solicited the cooperation of the co-defendant to present a version of the case that would convict the appellant.
Of special relevance to our consideration in this case are those cases in which one attorney was simultaneously representing the defendant and a prosecution witness against the defendant, who was usually under indictment or awaiting sentence. See State v. Ebinger, 97 N.J. Super. 23, 234 A.2d 233 (N.J. Super. Ct. 1967), People v. Ware, 39 Ill.2d 66, 233 N.E.2d 421 (Ill. S.Ct. 1968), United States ex rel. Williamson v. LaVallee, 282 F. Supp. 968 (U.S.D.C., N.Y. 1968) and United States ex rel. Platts v. Myers, 253 F. Supp. 23 (U.S.D.C., Pa. 1966).
In these cases, relief was granted since it was a harmful conflict of interest for one attorney to represent both a defendant and the witness who testified against him. A similar result was reached in People v. Jenkins, 32 A.D.2d 632, 300 N.Y.S.2d 403 (S.Ct. N.Y. 1969) wherein a defendant was without his knowledge represented by the same attorney who represented the informer against him.
In actuality, the factual situations which contain an actual or imminent conflict of interest cannot be put into compartments as neatly as has been done in this analysis. A factual situation wherein the effectiveness of cross-examination has been impaired will frequently, though not always, contain conflicting alibis which exculpate one party but inculpate another. Even after a factual analysis of numerous cases, it is difficult to state general rules. Impaired cross-examination, exculpatory alibis and joint representation of defendant and a prosecution witness are mere signposts indicating that further inquiry into potential conflicts of interest is required rather than conclusive indications that a conflict already exists. Even *224 given the presence of these signposts, a case by case review remains a practical necessity.
In the instant case, our considerations of the factual situation lead to the conclusion that an actual conflict of interest existed. From the very beginning of the trial, counsel frequently indicated his cross-examination of Mrs. Malcomb, should she be called as a witness, and both of her children, who were called as witnesses, was significantly impaired in effectiveness due to a conflict of interest. A review of the record shows that the cross-examination was in fact less effective than that which might be expected. Further, Mrs. Malcomb had volunteered to the prosecution a story which completely exculpated herself by shifting all blame to the appellant. In addition, she had apparently cooperated more with the prosecution than with her own counsel.
While it is true that Mrs. Malcomb never testified for the prosecution, appellant apparently did not take advantage of the opportunity to call her as his own witness to establish in court what her story was, and should she be found to be a hostile witness, to cross-examine her concerning her own self-interest and self-serving statements or about her confession to the homicide. The most effective testimony against the appellant was presented by the Malcomb children at a time that counsel still represented their mother. The prospect of an attorney cross-examining the children about any attempts to influence their memories or testimony at a time when their mother could still be convicted presents a real conflict.
II Prejudice
Given the existence of an actual conflict of interest, we must next evaluate the quantum of prejudice resulting from that conflict of interest to determine whether harmful error has occurred. This evaluation requires the answering of two sub-questions: (A) What quantum of prejudice is required before a conflict of interest is found to be harmful error? (B) Does that quantum of prejudice exist in the instant case?
*225 (A) Quantum of Prejudice
In this area the Supreme Court has provided its most useful guidance. In Glasser v. United States, supra, after establishing the existence of a conflict of interest, the Court said, 315 U.S. at 70-77, 62 S.Ct. at 465, 467-468:
"`Assistance of Counsel' guaranteed by the Sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests. If the right to the assistance of counsel means less than this, a valued constitutional safeguard is substantially impaired. * * * Irrespective of any conflict of interest the additional burden of representing another party may conceivably impair counsel's effectiveness.
"To determine the precise degree of prejudice sustained by Glasser as a result of the court's appointment of Stewart as counsel for Kretske [Glasser's co-defendant] is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial. * * * Our examination of the record leads to the conclusion that Stewart's representation of Glasser was not as effective as it might have been if the appointment had not been made [to also represent the co-defendant]. We hold that the court thereby denied Glasser his right to have the effective assistance of counsel, guaranteed by the Sixth Amendment. This error requires that the verdict be set aside and a new trial ordered as to Glasser."
The Court also considered the strength of the government's case in view of the allegation of conflict of interest, 315 U.S. at 67, 62 S.Ct. at 463-464:
"Admittedly the case against Glasser is not *226 a strong one.... This is significant in relation to Glasser's contention that he was deprived of the assistance of counsel contrary to the Sixth Amendment. In all cases the constitutional safeguards are to be jealously preserved for the benefit of the accused, but especially is this true where the scales of justice may be delicately poised between guilt and innocence. Then error, which under some circumstances would not be ground for reversal, cannot be brushed aside as immaterial since there is a real chance that it might have provided the slight impetus which swung the scales toward guilt."
Although Glasser stated "the right to counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial", and stated further reversal was required since "[counsel's] representation was not as effective as it might have been", there still remains a split of opinion as to the amount of prejudice required. This split was summarized in Lollar v. United States, 376 F.2d 243 (C.A.D.C. 1967) wherein Judge J. Skelly Wright said, 376 F.2d at 246:
"What constitutes sufficient prejudice, however, is uncertain, some courts apparently requiring a very strong showing of actual prejudice,[7] others suggesting the possibility of prejudice is sufficient.[8]
"[7] See, e.g., Lott v. United States, 5 Cir., 218 F.2d 675 (1955); United States v. Burkeen, 6 Cir., 355 F.2d 241, cert. denied, sub. nom. Matlock v. United States, 384 U.S. 957, 86 S.Ct. 1582, 16 L.Ed.2d 553 (1966); Lugo v. United States, 9 Cir., 350 F.2d 858 (1965).
"[8] See e.g., Glasser v. United States, 315 U.S. 60, 75-76, 62 S.Ct. 457 (1942); United States v. Dardi, supra Note 6; Sawyer v. Brough, 4 Cir., 358 F.2d 70 (1966); Craig v. United States, supra Note 3; Commonwealth ex rel. Whitling v. Russell, 406 Pa. 45, 176 A.2d 641 (1962). And see Waltz, Inadequacy of Trial Defense Representation as a Ground for Post-Conviction Relief in Criminal Cases, 59 Nw.U.L. Rev. 289, 334 (1963); Note, The Right to Effective Counsel in Criminal Cases, 9 Vand.L.Rev. 1920, 1926 (1965)."
*227 Judge Wright also explains the logic behind the Supreme Court's admonition against "nice calculations as to the amount of prejudice" by saying at 376 F.2d at 246:
"The obvious reason against insisting on a precise delineation of the prejudice suffered is that such a task is made very difficult when one must rely on a cold, printed record for reconstruction of the manifold and complex dynamics of the trial process, including reasons for trial tactics which may have been dictated by the joint representation."
In Maryland, Pressley v. State, supra, indicates that to merit relief there must be prejudice which prevents the lawyer from impartially and adequately representing his client. As to degrees of partiality and inadequacy, the opinion is silent. In this situation, the analysis returns to Glasser, supra, and the resultant split of opinion.
This Court feels the better position, in line with both Pressley and Glasser, is that there must be a showing of some prejudice but the prejudice need only be slight before relief is required. While Pressley requires a showing of prejudice, Glasser is written in terms too specific to require more than slight prejudice. Hence, the Supreme Court granted a new trial since the representation of Glasser "was not as effective as it might have been...." Thus, this Court holds that once an actual or imminently potential conflict of interest is shown, the only demonstration of prejudice that is required is that counsel was not as effective as he might have been had the conflict not existed.
(B) Prejudice in the Instant Case
Having decided that a conflict exists in the present case and having decided that once a conflict is shown, some prejudice, although only slight prejudice, must also be shown, it remains to evaluate whether sufficient prejudice exists in the facts of this case to require relief. We hold there is sufficient prejudice to require a reversal.
*228 As the Supreme Court did in Glasser, supra, we note that the case against appellant here was not strong, being significantly weaker than the case in either Pressley or Davenport, supra. This weakness shows in all phases of the trial from the opening statement, through the testimony of all the witnesses, and in the findings of the court at the close of the trial.
In his opening statement the State's Attorney was well aware of the dearth of probative evidence, the poor conditions for observations in the tavern, and the crucial nature of the Malcombs' testimony. The State's Attorney's prediction of a weak case was borne out in the evidence introduced at trial, where no witness, either from the State or the defense, actually saw the stabbing. At the conclusion of the trial, the trial judge was also aware of the weak nature of the evidence against the appellant, and relied heavily on the testimony of the Malcombs about appellant's statement that he stabbed the victim.
It is clear the defense counsel, due to the conflict of interest, was significantly impaired in his cross-examination of the Malcombs, who presented the most damaging testimony. This impairment prejudiced the appellant at least to the slight degree prejudice is required. Any question or legitimate tactic the defense counsel could have adopted to lessen the credibility of the Malcombs would have directly benefited the appellant. There were numerous questions which were available to undermine their credibility which were not asked by counsel.
It is not the purpose of this opinion to catalog the subtle and psychological means to influence the testimony of a witness, especially a child, but given the situation that a ten year old, whose mother was also indicted, was the key witness, this point should have been explored, indeed exhausted, to guarantee appellant a proper trial. Nor was it explored at trial whether Ricky Malcomb was aware of the proceedings against his mother and whether that awareness affected him. At the time of appellant's trial, Mrs. Malcomb was cooperating with the State's Attorney's office, without her attorney's knowledge, in a manner *229 which was never explored. In the absence of such an exploration in a case where the factual issue is as close as it is here, with as much circumstantial evidence, where the essential testimony is given by the children of the co-indictee, the prejudice is so clear that the case must be reversed.
Further, it is entirely possible that counsels' strategy would have been entirely different if they had not represented Mrs. Malcomb. It is possible that defense counsel would have called Mrs. Malcomb as a hostile witness, and either forced her to tell her story in open court where she could be cross-examined, or require her to take the Fifth Amendment.
The complexity of the relationship between Mrs. Malcomb, appellant Brown, the State's Attorney, the Malcomb children, and defense counsel, none of which was adequately explored, leaves too much uncertainty that appellant's counsel were effective in spite of the conflict of interest to allow this conviction to stand.
In addition, there is the defense attorneys' own opinions of the conflict of interest in this case. Though caught somewhat by surprise at Mrs. Malcomb's cooperation and willingness to testify for the prosecution, the defense attorneys consistently maintained there was a conflict of interest, though its definite bounds and specific application were not explored at trial. While the attorneys' own opinions of whether there is a conflict of interest is not binding, we do take note of those opinions especially when they are substantiated by conduct at trial that can only be explained by an inhibited attitude on the part of counsel. In this record, it frequently appears that when an effective advocate would have moved forward forcefully, defense counsel held back in the cross-examination of the Malcomb children. The prejudice which exists in this factual situation is heightened by the attorneys' own realization that they were impaired in their presentation of the case.
Having determined there is error and prejudice resulting from the conflict of interest, it is clearly not harmless *230 beyond a reasonable doubt, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 and a reversal is required.
III Duty of the Trial Court
Even if neither the defense attorneys nor the State's Attorney presents the conflict of interest issue to the trial court, the court still has a great responsibility.
"Upon the trial judge rests the duty of seeing that the trial is conducted with solicitude for the essential rights of the accused ... `with a caution increasing in degree as the offenses dealt with increase in gravity.' Patton v. United States, 281 U.S. 276, 312, 313, 50 S.Ct. 253, 263, 74 L.Ed. 854, 70 A.L.R. 263. * * * Of equal importance with the duty of the court to see that an accused has the assistance of counsel is its duty to refrain from embarrassing counsel in the defense of an accused by insisting, or indeed, even suggesting that counsel undertake to concurrently represent interests which might diverge from those of his first client, when the possibility of that divergence is brought home to the court." Glasser, supra, 315 U.S. at 71, 76, 62 S.Ct. at 465, 467.
Thus, where, as here, the conflict was so immediately obvious and apparent the trial court has the responsibility, with or without objection from counsel, to protect the right of the accused from being lessened by an actual or imminent conflict of interest.
MRS. MALCOMB'S CONFESSION
At appellant's trial, certain questions arose concerning admissibility of evidence which will likely arise again on retrial. Among these points is the admissibility of a confession made the day after the homicide by Mrs. Malcomb to Trooper Lashley that she killed the deceased, describing with some particularity how she obtained the knife from the appellant, hid it in her purse, concealed it under *231 the tavern table, and used it to stab the deceased. Appellant tried to introduce the confession in order to direct guilt away from himself.
As the Court of Appeals said in Dyson v. State, 238 Md. 398, 209 A.2d 609 at 614:
"Although Maryland formerly followed the general rule that a penal declaration against interest of a third party was not admissible evidence, the later cases have established that a confession by one other than the defendant, that he committed the crime in question, should be received and considered by the trier of the guilt of the accused, unless it is clearly collusive, frivolous or otherwise obviously untrustworthy."
The Court of Appeals has discussed three ways in which the confession of someone other than the accused could be introduced in evidence. In Thomas v. State, 186 Md. 446, 452, 47 A.2d 43, 46, the Court outlined these three methods:
(1) If the confessor is called as a witness at the trial of defendant, the defendant should be allowed to introduce the confession in evidence and question the confessor in regard to the confession and the circumstances under which it was made.
(2) If a police officer has secured contradictory confessions from two different persons, the defense should be permitted to question him about both confessions.
(3) The confession itself is apparently admissible without calling either the confessor or the police officer to whom it was given, unless it appears that there was some collusion in obtaining it.
Thus, should the trial court be faced again with attempts by appellant to introduce the confession of Mrs. Malcomb, it should decide the admissibility based on this discussion.
ADMISSION OF STATEMENT
Appellant contends his statement, purportedly made at the Malcomb house after the crime, that he killed the deceased, *232 should not have been admitted in evidence in the testimony of Ricky and Virginia Malcomb. He alleges violation of the principle of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246, in that the State illegally discovered this evidence while interviewing Mrs. Malcomb, in the absence of her counsel, at the time she was under indictment and represented by counsel. While that case might be relevant to the trial of Mrs. Malcomb, we fail to see its applicability to the trial of the appellant. Assuming the State violated Mrs. Malcomb's rights, that does not constitute a violation of the appellant's rights, despite the fact that both persons were represented by the same counsel. Constitutional rights are ordinarily personal and the violation of another's rights cannot be raised by an accused unless the violation at the same time also violates the personal rights of the accused. In addition to the language of Massiah, supra, see Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 968, 22 L.Ed.2d 176; Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510; Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586; McChan v. State, 238 Md. 149, 158, 207 A.2d 632; Brown v. State, 177 Md. 321, 9 A.2d 209 and Stewart v. State, 1 Md. App. 309, 314, 229 A.2d 727.
MOTION FOR JUDGMENT OF ACQUITTAL
Since the evidence offered at a new trial may be different from that of the instant trial, we will not discuss the sufficiency of the evidence question beyond saying the contention is without merit in view of the evidence adduced at this trial.
Judgment reversed and case remanded for a new trial.
NOTES
[1] Most of the facts set out under the heading "Conflict of Interest" were not established by testimony but were alleged in written and oral motions made immediately before and during the trial. We think the allegations of these facts were sufficient to put the trial judges on inquiry as to the possibility of a conflict of interest. The record does not show this question was considered at the time the same counsel were originally appointed to represent the appellant and Mrs. Malcomb. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266554/ | 259 Md. 260 (1970)
269 A.2d 612
YINGLING ET AL.
v.
SMITH, EX'R OF THE ESTATE OF JOHN N. YINGLING
[No. 18, September Term, 1970.]
Court of Appeals of Maryland.
Decided October 16, 1970.
*261 The cause was argued before HAMMOND, C.J., and BARNES, McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.
J. Thomas Nissel, with whom was C. Rogers Hall, Jr., on the brief, for appellants.
William B. Dulany, with whom were Donald M. Smith and Dulany, Davis & Smith on the brief, for appellee.
FINAN, J., delivered the opinion of the Court.
We have before us an appeal from a grant of the defendant-appellee's motion for summary judgment in the court below. The narrow legal question presented to us is whether or not a bill of complaint filed September 20, 1968, satisfies the statutory requirement of "filing within six calendar months after" the appointment of an executor on March 19, 1968.
The appellants, plaintiffs below, filed a bill of complaint against the appellee, in his capacity as executor of the estate of John N. Yingling, requesting specific performance of a contract allegedly entered into between John N. Yingling (John) and his sister, Grace Yingling (Grace), who predeceased him. The contract allegedly provided that John and Grace would execute reciprocal wills giving each other a life estate in the property of the other, and granting the appellants (their nephews) a residuary estate after the eventual demise of the survivor of either John or Grace. The appellants, in their bill of complaint filed on September 20, 1968, allege that to their "irreparable damage" and "severe loss," John changed his will after the death of his sister. The appellee answered and raised the issue, inter alia, of whether the appellants had filed suit within the six months limitation stated in Article 93 of the Maryland Code. After hearings on this *262 question, appellee filed his motion for summary judgment. It is from the granting of this motion that the appellants bring this appeal.
Maryland Code (1964 Repl. Vol.), Art. 93, § 112 (as amended by Ch. 642 of the Acts of 1966) provides in pertinent part:[1]
"* * * and they [executor or administrator] shall be liable to be sued in any court of law or equity, in any action (except slander) which might have been maintained against the deceased; * * * provided, however, that any such action maintainable against an executor or administrator must be commenced within six calendar months after the date of the qualification of the executor or administrator of the testator or intestate * * *."
Appellant contends that, according to the formula for computation of time set out in Code (1964 Repl. Vol.), Art. 94, § 2 and Maryland Rule 8, his filing of the bill of complaint comes within the six months statute of limitations set out above. However, we think this contention runs contrary to the clear language of Art. 94, § 2 of the Code which reads as follows:
"In computing any period of time prescribed or allowed by an applicable statute, the day of the act, event, or default, after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included unless: (1) It is a Sunday or a legal holiday, in which event the period runs until the end of the next day, which is neither a Sunday or a holiday; or, (2) the act to be done is the filing of some paper in court and the office of the clerk of said court on said last day of the period is not open, or is closed for a part of a day, in which event, the period runs until *263 the end of the next day which is neither a Sunday, Saturday, a legal holiday, or a day on which the said office is not open the entire day during ordinary business hours. When the period of time allowed is more than seven days, intermediate Sundays and holidays shall be considered as other days; but if the period or time allowed is seven days or less, intermediate Sundays and holidays shall not be counted in computing the period of time."
Maryland Rule 8 recites verbatim the formula for computation set forth above in Art. 94, § 2.
It is manifest from a reading of the above provision that the computation of the six calendar months in the statute of limitations must exclude March 19, 1968. The time for filing commenced on March 20, 1968, and ended on the last day of the "period so computed." Appellant urges that this period runs up to and including September 20, 1968, and for that reason, summary judgment should not have been granted. We disagree, and affirm the order of the lower court.
We must, for a proper interpretation of the meaning of Art. 93, § 112, determine exactly what is meant by a calendar month. We hold that a calendar month is the period of time running from the beginning of a certain numbered day up to, but not including, the corresponding numbered day of the next month, and if there is not a sufficient number of days in the next month, then up to and including the last day of that month. Stated differently, a calendar month runs from the first moment of a given day in month X and expires at midnight of the day before the same numerical day in month Y. In the case before us, the six month period provided for bringing a suit against an executor or administrator commenced on March 20, 1968, and expired at midnight on September 19, 1968.
This formula, though not enunciated in any Maryland case, was nevertheless applied by this Court in Stiegler *264 v. Eureka Life Insurance Co., 146 Md. 629, 127 A. 397 (1925). In Stiegler an insurance company brought suit to recover proceeds of an insurance policy allegedly procured by fraud, and the question arose as to whether bills of exception were signed within the three month period during which the record was to be sent to the Court of Appeals. This Court ruled (for the purpose of determining whether or not the bills were signed in time) that, when an appeal was filed on February 25, 1924, the end of the three month period for transmission of the record was May 25, 1924. Although not explicitly stated in this opinion, it is obvious that the rationale behind such a holding was that February 25, 1924, the day on which the bill of exceptions were filed, was not to be included in the time computation and that the three month period began on the next following day, namely, the 26th of February and thus ended on May 25, three calendar months later.
To accept the appellant's interpretation of Art. 93, § 112 would be to say, in effect, that the calendar month of January begins at 12:01 of January 1st and expires at midnight of February 1st instead of midnight of January 31st. Such a holding would be an expansion of the generally accepted rule, and an unwarranted extension of the statute. For decisions from other jurisdictions which have applied essentially the same formula we presently apply, see Kennedy v. Pilot Life Ins. Co., 4 N.C. App. 77, 165 S.E.2d 676 (1969), Krajniak v. Wilson, 157 Conn. 126, 249 A.2d 249 (1968), and In re Lynch's Estate, 123 Utah 57, 254 P.2d 454 (1953).
Our decision gives effect to the purposes of Art. 93, § 112 of the Code, as previously set forth in Bertonazzi v. Hillman, 241 Md. 361, 216 A.2d 723 (1966). In Bertonazzi this Court, speaking through Hammond, C.J., stated:
"* * * Statutes of limitations are designed primarily to assure fairness to defendants on the theory that claims, asserted after evidence is gone, memories have faded, and witnesses disappeared, *265 are so stale as to be unjust. The six-month statute of limitations in suits against executors or administrators has the added purpose of requiring claimants seeking damages resulting from the negligence of a decedent to make claim by suit within six months so that the personal representative of the decedent can make the prompt settlement of the estate contemplated by the law without liability for claims not filed within the time and in the manner prescribed." 241 Md. at 367.
The appellee further presented what he considered to be a threshold issue. Essentially, it was his contention that because the appellants had not denied in their answer to the motion for summary judgment the allegations as to their failure to comply with the six month limitations imposed by Art. 93, § 112 of the Code, such a failure on the part of the appellants should be considered to have been admitted.[2] Appellee further urged, apparently on the theory that the question of compliance with the limitations imposed in the Code was a factual question, that this Court should be bound by those admissions and not consider the substance of this appeal. However, since we deem this issue of computing limitations sufficiently important to be dealt with by this Court and have considered the merits of the case on that point, which we decide in favor of the appellee, we see no need to prolong this opinion by a discussion of the in limine arguments raised by him.
Order of the lower court affirmed; appellants to pay costs.
NOTES
[1] Recodified as Maryland Code (1969 Repl. Vol.) Art. 93, § 8-103.
[2] See Maryland Rule 372 b. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266556/ | 165 Cal.App.4th 150 (2008)
CARLA M. CLARK et al., Plaintiffs and Appellants,
v.
OPTICAL COATING LABORATORY, INC., Defendant and Respondent.
CARLA M. CLARK et al., Plaintiffs and Appellants,
v.
STATE OF CALIFORNIA et al., Defendants and Respondents;
CHARLES D. COCHRAN, Objector and Appellant.
CARLA M. CLARK et al., Plaintiffs and Appellants,
v.
STATE OF CALIFORNIA et al., Defendants and Respondents;
KEITH A. ROBINSON et al., Objectors and Appellants.
CARLA M. CLARK et al., Plaintiffs and Appellants,
v.
STATE OF CALIFORNIA, Defendant and Respondent.
Nos. A115399, A115445, A115474, A116164, A116901.
Court of Appeals of California, First District, Division One.
July 24, 2008.
*154 Dell'Ario & LeBoeuf, Alan Charles Dell'Ario, Jacques LeBoeuf; Gonzalez & Robinson, Joseph D. Gonzalez and Keith A. Robinson for Plaintiffs and Appellants.
Eisenberg and Hancock, Jon B. Eisenberg and William N. Hancock for Objectors and Appellants Keith A. Robinson and Gonzalez & Robinson.
Waxler Carner Weinreb Brodsky, Andrew J. Waxler and Gretchen S. Carner for Objector and Appellant Charles D. Cochran.
Edmund G. Brown, Jr., Attorney General, David Chaney, Chief Assistant Attorney General, James Schiavenza, Assistant Attorney General, Tyler B. Pon and David W. Hamilton, Deputy Attorneys General, for Defendant and Respondent State of California.
Barg Coffin Lewis & Trapp, John F. Bargand and Jonathan Polland for Defendant and Respondent Union Pacific Railroad Company.
Collette Erickson Farmer & O'Neill, John V. Erickson and Robert S. Lawrence for Defendant and Respondent Optical Coating Laboratory, Inc.
*155 OPINION
MARGULIES, J.
This toxic tort lawsuit by 32 plaintiffs went to a jury trial against defendants the State of California (the State), Southern Pacific Transportation Company (Union Pacific), and Optical Coating Laboratory, Inc. (OCLI). The trial was marked by repeated objections, sustained by the court, that plaintiffs' attorneys were violating its in limine orders. Ultimately, after warning the attorneys that they were risking a mistrial and exposing themselves to substantial sanctions, the court declared a mistrial based on their cumulative misconduct.
Following the mistrial, the trial court took the following actions from which these consolidated appeals were taken: (1) awarded all defendants a combined total of $1,151,041.25 in attorney fees and costs as sanctions against plaintiffs' attorneys; (2) reconsidered and granted dispositive motions by OCLI and the State that had been denied before trial commenced; and (3) made a separate award to the State of $672,501.25 in attorney fees and $439,535.31 in expert witness fees jointly and severally against all plaintiffs.
Finding no legal basis for the attorney fees, costs, and expert witness fees awarded as sanctions against plaintiffs and their attorneys, we reverse those awards. We also reverse the judgment in favor of OCLI. We affirm the judgment in favor of the State, and the expert fee award made to the State under Code of Civil Procedure[1] section 998.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Overview of Plaintiffs' Allegations
Plaintiffs are 32 individuals who have all lived or worked in the West College Avenue neighborhood of Santa Rosa. In 2000, plaintiffs learned that the private water wells they used for drinking water had been contaminated with trichlorethylene (TCE) and perchlorethylene (PCE). They eventually retained the law firm of Gonzalez & Robinson to investigate the cause of the contamination and pursue compensation from those responsible. Plaintiffs claimed that the contamination caused them to suffer both economic losses and a wide range of adverse health effects.
In 2001, plaintiffs sued the City of Santa Rosa, the County of Sonoma, the State, Union Pacific, OCLI, and several entities that formerly owned or operated dry cleaning businesses near the West College Avenue neighborhood. The trial was bifurcated into liability and damages phases. Just prior to *156 jury selection in the liability phase, all of the solvent defendantsexcept the State, Union Pacific, and OCLIsettled with plaintiffs.
The relevant facts and allegations pertaining to these three defendants may be summarized as follows:
Union Pacific owned a nine and one-half acre parcel of land, known as 99 Frances Street, located approximately one-half mile northeast of the West College Avenue neighborhood. Beginning in 1967, the Frances Street property and a smaller adjacent property, 1143 Briggs Avenue, had been leased for use by a succession of scrap metal recyclers and auto wreckers. In 1988, the North Coast Regional Water Quality Control Board (Water Board) discovered that the Frances Street site was contaminated with leaking 55-gallon drums, old batteries, large quantities of shredded metal, and aboveground and underground storage tanks. Ultimately, both sites were found to be highly contaminated with TCE, PCE, and other toxic chemicals. Plaintiffs alleged that those contaminants seeped into the groundwater beneath the sites and ultimately migrated into plaintiffs' wells, contributing to their contamination.
OCLI has maintained a facility in Santa Rosa since the 1950's. OCLI developed thin film coating processes for government and industry, and created products at its Santa Rosa facility that use high performance optical thin films to manage light, such as solar cell covers on satellites, camera lenses, and mirrors used in copiers and scanners. In the process of creating certain of its products, OCLI used various industrial solvents, including acetone, PCE, TCE, trichorethane (TCA), and freon 113. Plaintiffs allege that OCLI disposed of over 300 drums containing toxic wastes, including PCE and TCE, at the Frances Street site. They allege that these contaminants migrated from that site onto their properties and into their well water.
Plaintiffs' allegations linking OCLI to the site were based in part on three internal Water Board memoranda. Two of the memos, written in 1990, purported to summarize conversations with an anonymous tipster who claimed that as an employee of Donald Kessler, the owner of an auto wrecking yard leasing the Briggs Avenue site, he had transported a truckload of 55-gallon drums from OCLI to be dumped at the site in approximately 1973. According to the memo, the tipster reported that, at Kessler's instruction, he had emptied the drums' liquid contents on the ground before dumping them. He had seen a total of approximately 300 drums at OCLI ready for disposal on that occasion. The third memo, written two years later, purported to summarize a 1992 telephone conversation between a Water Board staffer and Kessler.[2] According to that handwritten memo, Kessler *157 stated that drums were in fact either picked up or delivered to his site from OCLI and that, although the drums were supposed to be empty because they were to be used by him for storage of metal waste, some of the drums probably had liquid in them and employees "weren't always paying attention to the matter."
According to plaintiffs, the State's liability arises vicariously from the failure of certain Water Board employees to immediately notify local officials in July 1988, after the Water Board issued a cleanup and abatement order for the Frances Street site, that the contamination of that site was "likely to cause substantial injury to the public health or safety" within the meaning of Health and Safety Code section 25180.7, subdivision (b).[3]
B. Pretrial Motions
1. The State's Summary Judgment Motion and Motion for Judgment on the Pleadings
The State moved for summary judgment in January 2004, asserting that (1) Health and Safety Code section 25180.7 imposed a mandatory duty on certain State employees but not on the State itself, (2) section 25180.7 could not create tort liability because the injuries claimed by plaintiffs were not actionable under the California Tort Claims Act,[4] and (3) the undisputed evidence showed that no Water Board employee violated a mandatory duty to disclose under Health and Safety Code section 25180.7. The trial court denied the State's motion, finding that "[p]laintiffs raise triable material issues of fact, specifically showing that the moving party possessed information requiring it to provide warnings earlier, and to more people, than it did."[5] This court denied the State's ensuing petition for a writ of mandate overturning the trial court's decision, without issuing a written opinion.
*158 In July 2005, the State reiterated the purely legal arguments raised in its summary judgment motion by means of a motion for judgment on the pleadings. In addition, the State asserted one new legal argumentthat it was immune from liability under Health and Safety Code section 25400, subdivision (b).[6] The court, with a different judge presiding, denied that motion as well.
2. OCLI's Summary Judgment Motion
OCLI also moved for summary judgment, arguing among other things that there was no evidence it had ever sent hazardous wastes to the Frances Street or Briggs Avenue sites. OCLI relied on the declaration of Ken Pietrelli, a company vice-president, acknowledging that OCLI had sold empty scrap drums and drums containing scrap metal to West Coast Metalsone of the scrap metal dealers leasing the sites in the 1960's and 1970'sbut denied that OCLI had ever sent or disposed of any drums containing chemicals to West Coast Metals. In opposition, plaintiffs sought judicial notice of the 1990 and 1992 Water Board staff memos recounting information provided by the anonymous tipster and by David Kessler. Over OCLI's hearsay objection, the trial court (1) took judicial notice of the existence of the documents, and (2) denied OCLI's motion for summary judgment.
3. OCLI's In Limine Motions
As the trial date approached, OCLI made a number of in limine motions. OCLI moved to exclude as double hearsay all mention of the 1990 and 1992 Water Board internal memoranda. In opposition to these motions, plaintiffs merely asserted in one sentence that the challenged documents "have been admitted by Court." In support of that proposition, plaintiffs attached the order made in connection with OCLI's summary judgment motion, in which a different trial judge had granted plaintiffs' request that it take judicial notice of the memoranda's existence. Notwithstanding the earlier ruling, the court granted OCLI's motions in limine as to these memos on April 11, 2006.
OCLI also moved before trial to exclude evidence that the groundwater beneath its own facility was contaminated, on the ground that such evidence was irrelevant to whether it improperly disposed of hazardous waste offsite, and was unduly prejudicial under Evidence Code section 352. Plaintiffs *159 argued that the evidence was relevant to proving that OCLI was the source of the contamination found at Frances Street since the chemicals found at the two locations were assertedly identical. The trial court found the evidence to be inadmissible under Evidence Code section 352.
4. OCLI's First Motion to Dismiss
After the court granted OCLI's in limine motions, OCLI moved to dismiss the case against it, arguing that the court's rulings had excluded the only evidence of its liability. In response, plaintiffs argued that the following evidence, to be adduced at trial, would be sufficient to support an inference that chemicals originating at OCLI had found their way into the groundwater underneath the Frances Street and Briggs Avenue sites: (1) Ken Pietrelli's admission in his declaration in support of OCLI's summary judgment motion that OCLI had delivered used drums to West Coast Metals during the 1960's and 1970's; (2) the opinion of plaintiffs' expert, Dr. Lorne Everett, based on an April 1988 OCLI environmental report, that the chemical solvents OCLI had formerly used were consistent with those discovered at the Briggs Avenue and Frances Street sitesincluding TCE, freon 113, and acetone;[7] (3) Dr. Everett's anticipated testimony that this mixture of chemicals is rare and somewhat unique to the industrial activity that occurred at OCLI; (4) a 1988 Water Board report stating that 55-gallon drums containing hazardous chemicals had been found at the sites; and (5) the asserted fact that OCLI could not identify any other possible source for the contamination found at the sites.
The trial court "reluctantly" denied OCLI's motion to dismiss without prejudice to OCLI raising the same issues by way of a motion for nonsuit at the appropriate time. The court explained that it would feel more comfortable deciding the issues after plaintiffs had a chance to put in all of their admissible evidence concerning OCLI.
C. The Mistrial
Before trial commenced, Union Pacific had filed a motion in limine precluding any party in the liability phase of the trial from referring to plaintiffs' alleged damages, including their chemical exposure level, medical conditions, or the extent or nature of their personal injuries or property damage (hereafter MIL No. 1). Union Pacific's proposed order on MIL No. 1 included a provision that if plaintiffs violated the order and a mistrial *160 resulted, the court shall "impose a monetary sanction upon Plaintiffs' counsel in an amount equaling the cost of [Union Pacific's] attorneys' fees incurred from the date the trial commences to the date of any mistrial."
Plaintiffs opposed both the substantive and sanctions provisions of the proposed order. The trial court granted MIL No. 1, subject to the qualification that plaintiffs would be allowed to introduce evidence during the liability phase that their wells were contaminated. This ruling came in response to plaintiffs' argument that some evidence of harm had to be allowed because harm was an element of their negligence liability causes of action against defendants. The court accordingly modified the written order submitted by Union Pacific to allow evidence that plaintiffs' wells had been contaminated. At the hearing on the motions, the State requested that it also be awarded attorney fees as sanctions if plaintiffs violated the proposed order. Without being more specific, the court responded that the order on MIL No. 1 (hereafter In Limine Order No. 1) would "apply to everybody in the case." However, the court made no change in the wording of the submitted order to broaden its application in any respect.
After the trial began, plaintiffs' counsel and witnesses violated a series of in limine and other pretrial court orders, culminating in the declaration of a mistrial before plaintiffs were able to complete their case-in-chief. Plaintiffs' counsel first clashed with the court during jury selection on May 9, 2006, by bringing a visibly disabled minor plaintiff to the courthouse and positioning him in front of the jury panel as they entered the courtroom. This violated an in limine order generally excluding minors from the courtroom. On May 10 and 11, while under questioning by plaintiffs' counsel, Dr. Everett offered testimony on three occasions that violated in limine orders and drew objections.
On May 16, plaintiffs' counsel, Keith Robinson, who was already on notice of the court's heightened concern about violations of its orders, began asking one of the plaintiffs about the fact that she had to begin paying for water from the city after her well was found to be contaminated. Union Pacific's counsel objected based on In Limine Order No. 1 and the parties held an unreported sidebar conversation. As soon as the parties went back on the record in the presence of the jury, Robinson asked the witness whether she had suffered Limine Order No. 1 drew an immediate objection from Union Pacific's counsel. The trial court sustained the objection, excused the jury for the day, and informed Robinson in strong terms that the court was out of patience with his violation of its orders, and that he seemed to be deliberately inviting *161 a mistrial as well as a citation for contempt. Robinson apologized for his question and the court accepted his apology. At the same time, the court warned Robinson to be "very, very careful" because the cumulative prejudice from violating the court's orders was starting to reach the level where a mistrial might be required, at which point counsel would owe the opposing parties a large amount of money "because that's the order of the Court."
On May 23, 2006, the court warned Robinson during a colloquy that the next time he asked a question that invited a witness into an area covered by a motion in limine he would be risking a mistrial, contempt citation, and an attorney fee sanctions award under In Limine Order No. 1. The last straw for the court occurred the next day during the examination of Kenneth Pietrelli by Robinson's cocounsel, Charles Cochran. Cochran asked Pietrelli about the Water Board's investigation of OCLI's disposal practices, an area that the court had specifically declared off limits in an oral ruling made on May 9. At that point, the court invited the defense to bring an oral motion for a mistrial, which they did. All of the defendants also joined in an oral motion for an award of fees against plaintiffs' counsel pursuant to In Limine Order No. 1. The court granted both motions and set a date for a hearing on the amount of defendants' fees and costs. In making these rulings, the court observed that it had "never seen a case where the court's orders were so blatantly disobeyed."
Before the date set for the hearing, defendants submitted a letter to the court calling its attention to issues regarding a trial court's authority to award attorney fees as sanctions in connection with a mistrial. The letter proposed that the parties be given an opportunity to brief the issue of attorney fees as sanctions, and further advised that defendants would be asking the court to reconsider its rulings on their prior dispositive motions. At the hearing, the trial court (1) informed Robinson and Cochran that it was going to cite them for contempt, (2) invited defendants to bring their own motions for sanctions under section 128.7 and In Limine Order No. 1, (3) advised that on its own motion it was going to reconsider its rulings on the State's motion for summary judgment and OCLI's motion to dismiss, and (4) set a briefing schedule and combined hearing date for the order to show cause regarding contempt and other motions. Union Pacific and OCLI filed separate motions for sanctions, and OCLI and the State also joined in Union Pacific's motion based on In Limine Order No. 1. OCLI filed a renewed motion to dismiss and the State filed a renewed motion for summary judgment.
D. The Court's Postmistrial Rulings
Following a hearing held on August 18, 2006, the trial court made the following rulings: (1) sanctions for attorney fees and costs were appropriate as to all defendants under In Limine Order No. 1; (2) fees and costs were *162 recoverable jointly and severally from Cochran, Robinson and Gonzalez & Robinson in the amounts of $588,307.71 for Union Pacific, $419,608.80 for OCLI, and $143,124.74 for the State; (3) OCLI's award also included sanctions under section 128.7 because the case against it lacked evidentiary support; (4) OCLI was entitled to the dismissal of plaintiffs' claims against it; (5) the State was entitled to summary judgment; and (6) Cochran and Robinson were found to be in contempt of court.[8]
After its summary judgment motion was granted, the State moved for a further award of its defense costs from the plaintiffs, including expert witness fees, under sections 998 and 1038. The trial court granted the State's motion for defense costs, awarding the State $672,501.25 in attorney fees under section 1038, and $439,535.31 in expert witness feesjointly and severally against all plaintiffsunder both sections 998 and 1038.
Robinson, Gonzalez & Robinson, and Cochran timely appealed from the sanctions awards (case Nos. A115474 and A115445). Plaintiffs filed separate appeals from the granting of (1) OCLI's motion to dismiss (case No. A115399); (2) the State's motion for summary judgment (case No. A116164); and (3) the State's motion for defense costs (case No. A116901). We consolidated the five appeals.
II. DISCUSSION
A. Fee Awards Based on In Limine Order No. 1
The court found that it had the power to award fees as sanctions under In Limine Order No. 1 on three grounds: (1) its inherent powers under section 187, (2) judicial estoppel in that plaintiffs' counsel did not object to the order after it was made applicable to all parties, and (3) because all of the parties agreed to permit attorney fees as a sanction for causing a mistrial as long as it was applicable to both sides. Plaintiffs' counsel take issue with each stated basis for the court's award.
1. Court's Inherent Authority
The trial court believed it had the statutory authority to enforce the attorney fee provision of In Limine Order No. 1 under sections 187 and 128, *163 subdivision (a)(4).[9], [10] The court reasoned that section 187 gives courts broad inherent powers in complex multiparty cases to fashion new procedures to manage and control the litigation. (See Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1380 [5 Cal.Rptr.2d 882].) In particular, because this case involved complex scientific issues, many parties, and a lengthy phased trial, the court believed it had the inherent power to make orders ensuring that relevant evidence was introduced at the appropriate time and in a nonprejudicial manner. By virtue of section 128, subdivision (a)(4), the court believed it had the power to back up its orders by imposing monetary sanctions, including attorney fees, for their violation.
Plaintiffs' counsel rely primarily on Bauguess v. Paine (1978) 22 Cal.3d 626 [150 Cal.Rptr. 461, 586 P.2d 942] (Bauguess), which reversed an award of attorney fees imposed as a sanction on an attorney for causing a mistrial. (Id. at pp. 633, 640.) The Bauguess court in fact held specifically that a court's inherent power to exercise supervisory control over judicial proceedings does not include the power to award attorney fees as a sanction for attorney misconduct absent specific legislative authorization or agreement of the parties. (Id. at pp. 633-640; see also Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804, 809 [11 Cal.Rptr.3d 298, 86 P.3d 354] (Olmstead) ["Bauguess . . . held that trial courts may not award attorney fees as a sanction for misconduct unless they do so pursuant to statutory authority or an agreement of the parties."]; Trans-Action Commercial Investors, Ltd. v. Firmaterr, Inc. (1997) 60 Cal.App.4th 352, 371-373 [70 Cal.Rptr.2d 449] (Trans-Action) [in partial reliance on Bauguess, invalidating rule of court that permitted courts to impose attorney fees in situations not specifically authorized by statute].)
The rationale for the Supreme Court's holding in Bauguess was that allowing the trial courts to impose attorney fees as sanctions for attorney misconduct without statutory protections would undermine due process and threaten the independence of the bar: "It would be both unnecessary and unwise to permit trial courts to use fee awards as sanctions apart from those situations authorized by statute. If an attorney's conduct is disruptive of court processes or disrespectful of the court itself, there is ample power to punish the misconduct as contempt. Moreover, unlike the power advocated by respondent, a court's inherent power to punish contempt has been tempered *164 by legislative enactment to provide procedural safeguards. [Citations.] Among these safeguards is the opportunity, in cases where the contempt occurs out of the immediate view and presence of the court, to disqualify the judge . . . . Additionally, the Legislature has limited the penalty for civil contempt to five days in jail and a $500 fine. [Citations.] Absent such safeguards, serious due process problems would result were trial courts to use their inherent power, in lieu of the contempt power, to punish misconduct by awarding attorney's fees to an opposing party or counsel. [¶] The use of courts' inherent power to punish misconduct by awarding attorney's fees may [also] imperil the independence of the bar and thereby undermine the adversary system." (Bauguess, supra, 22 Cal.3d at pp. 637-638.)
As an initial matter, we note that the trial court in this case held that Bauguess had been superseded by the enactment of section 128.5 and was no longer controlling. We do not agree with the court's analysis. Section 128.5, which authorizes the imposition of monetary expense sanctions, including attorney fees, for bad faith "actions or tactics," was superseded for actions filed on or after January 1, 1995, by section 128.7. The latter statute provides a more limited authorization for the imposition of fees as sanctions for the filing of improper signed pleadings. (Id., subd. (a).) Although it is true that the Legislature enacted section 128.5 to broaden the power of trial courts to award monetary sanctions in response to Bauguess (see Olmstead, supra, 32 Cal.4th at p. 809), the statute only superseded Bauguess and supplied legislative authorization for the type of fee award invalidated in the Bauguess case for cases filed within the limited time window during which it was in effect, i.e., between 1982 and 1994. Rather than undermining Bauguess, the adoption of section 128.5 shows the Legislature's acceptance of its core holding that trial courts may not award attorney fees as a sanction for misconduct absent statutory authority (or an agreement of the parties). Bauguess's continued viability is shown by its application after the adoption of section 128.5. (See Sheller v. Superior Court (2008) 158 Cal.App.4th 1697 [71 Cal.Rptr.3d 207] [reversing fee award against attorney for misleading communication with prospective class members]; Trans-Action, supra, 60 Cal.App.4th at pp. 365-366.)
Sections 128.5 and 128.7 plainly do not authorize the fee awards made in this case to the extent they are based on counsel's asserted violation of In Limine Order No. 1. Section 128.5 has no application to cases filed on or after January 1, 1995, while section 128.7 applies solely to attorney misconduct in the filing or advocacy of groundless claims made in signed pleadings and other papers. (§ 128.7, subd. (b).) Equally, sections 128, subdivision (a)(4) and 187, relied upon by the court, cannot supply the type of statutory authorization required under Bauguess. (3) These generic statements of the court's powers to formulate suitable procedures and command obedience to its orders do not by their own terms authorize any specific *165 form of attorney sanction, much less impose the type of procedural safeguards that the Bauguess court found essential.
Defendants rely on Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736 [66 Cal.Rptr.3d 268] (Slesinger), a case that distinguished Bauguess and Trans-Action in upholding the trial court's inherent authority to impose terminating sanctions for egregious discovery abuses. (Slesinger, at pp. 762, 764, fn. 19.) Defendants argue that if a court has the inherent authority to dismiss a case in appropriate circumstances, it must also have the authority to include fee-shifting provisions in its pretrial orders to encourage compliance with those orders. But Slesinger involved extreme discovery abuse by a party, including the theft of confidential and privileged documents. (Id. at pp. 741-756.) Under those circumstances, where any sanction short of dismissal would have deprived the opposing party of a fair trial, the Slesinger panel found that the trial court did have the inherent power to dismiss. (Id. at pp. 762-763, 764.) In support of its position, the panel cited statutory language in which the Legislature had expressly acknowledged the inherent power of courts to dismiss. (Id. at p. 763, citing §§ 581, subd. (m), 583.110.) In contrast, citing Bauguess and Trans-Action, the Slesinger court was careful to point out that the "inherent authority to sanction for egregious misconduct does not include the power to award attorney fees to punish that misconduct." (155 Cal.App.4th at p. 764, fn. 19, italics added.) Thus, Slesinger directly refutes defendants' argument that the court had the inherent power to impose attorney fees as a sanction for violating In Limine Order No. 1.
Defendants also argue that Bauguess is inapplicable because, unlike that case, the fees here were imposed for violation of a pretrial court order. According to defendants, the issue of whether the court had the authority to enter an in limine order with a fee-shifting provision prior to trial, and to enforce such pretrial order, was not addressed in Bauguess and related cases. Here, unlike Bauguess, the issuance of the pretrial order gave counsel ample notice that fees could be awarded for causing a mistrial.
Defendants' narrow reading of Bauguess makes little sense. If a court could grant itself the power to award fees as sanctions merely by issuing a pretrial order, much of Bauguess's reasoning would have to be cast aside. The Bauguess court began its analysis of the court's inherent powers to award fees as sanctions from the premise that our courts normally follow the traditional "American rule" that each side bears its own attorney fees, and that nonstatutory departures from that practice have been recognized only infrequently "after careful analysis and a finding that compelling reasons of public policy warranted such an award." (Bauguess, supra, 22 Cal.3d at pp. 634-636.) Allowing courts to freely suspend or displace the traditional *166 rule by pretrial orderwith no comparable analysis or findingswould seem to clash directly with that premise. Further, the Bauguess court was concerned that court-crafted sanctions would lack the "`appropriate safeguards and guidelines developed following a thorough in-depth investigation'" that only the legislative process could provide. (Id. at p. 639, quoting Young v. Redman (1976) 55 Cal.App.3d 827, 838-839 [128 Cal.Rptr. 86].) Again, holding that a court may give itself the ad hoc authority to impose fee shifting as a sanction without safeguards or guidelines seems flatly inconsistent with Bauguess's reasoning.
For these reasons, we hold that the trial court's award of attorney fees against plaintiffs' counsel for their asserted violation of In Limine Order No. 1 was neither within the court's inherent powers nor authorized by statute.
2. Judicial Estoppel and Agreement of the Parties
The trial court also believed it could impose the sanctions award based on judicial estoppel and agreement of the parties because plaintiffs' counsel assertedly requested and the court agreed that the order would be made applicable to all parties. We do not believe that the record in this case supports either theory.
Plaintiffs' counsel submitted written opposition to MIL No. 1, including its sanctions provision. Plaintiffs' position was understandable. Union Pacific had made no secret of the fact that the motion and sanctions provision were aimed exclusively at plaintiffs. The motion's stated objective was to restrain plaintiffs from introducing evidence that Union Pacific considered to be highly prejudicial, although the proposed order itself precluded such evidence from being admitted without regard to the party offering it. For its part, the proposed sanctions provision addressed only one possible scenarioUnion Pacific's recovery of its fees from plaintiffs' counsel in the event the latter violated the order and a mistrial was declared.
It is true that the issue of the order's one-sidedness in favor of Union Pacific did come up at the hearing on the parties' in limine motions. However, this issue was only raised several minutes after the trial court had in fact already granted Union Pacific's motion, and it was raised by the State, not by plaintiffs.[11] At that time, the following colloquy occurred:
"[Counsel for the State]: Also, again, not to retrace steps, but we joined in [MIL No. 1]. And in Union Pacific's motion . . . one of the remedies they *167 asked for was their attorneys fees and a mistrial if plaintiffs violated that motion. I just want to make clear that when the Court issues its ruling, that we're included in that, too. And if a mistrial occurs because of misconduct by plaintiffs in bringing in damages issues or other second phase issues . . . we would like to . . . recover our attorneys fees as well.
"[The Court]: Well, just to clarify, in terms of the orders that the Court's going to impose, it's going to be plaintiffs shall be precluded, or defense shall be precluded from bringing up this evidence. Because it happens to be your motion or OCLI's motion or [Union Pacific's] motion or the plaintiffs' concern, that's going to apply to everybody in the case.
"[Plaintiffs' Counsel]: Well, shouldn't the preclusion orders not just be plaintiffs, but also be defendants are precluded from
"[The Court]: Oh, absolutely." (Italics added.)
Despite the court's comments during this colloquy, the only written modification the court made to Union Pacific's proposed order was to add some handwritten language allowing plaintiffs to introduce evidence of well contamination.
A number of conclusions may be drawn from this record. First, contrary to defendants' contention, plaintiffs never requested that In Limine Order No. 1 be modified to provide that plaintiffs could obtain their fees if a defendant violated the order and caused a mistrial. The State was the only party to request that the sanctions provision be broadened to cover parties other than Union Pacific. Its request was not that the sanctions clause be reciprocal between plaintiffs and defendants, but only that it operate in favor of the State as well as Union Pacific. Plaintiffs' counsel offered one comment during this colloquy. That comment did not refer to the sanctions provision of In Limine Order No. 1 nor was it even directed to that order in particular. Plaintiffs simply requested that all of the preclusion orders being entered that day preclude defendants as well as plaintiffs from introducing prohibited evidence. The court readily agreed to that but, as to In Limine Order No. 1 at least, no change was necessary to the proposed order because Union Pacific had already drafted it to bar any party from introducing damages evidence during the liability phase of the trial.
Second, plaintiffs never agreed that the order would be acceptable if it allowed them to recover their fees in the event one of the defendants caused a mistrial. Nothing in the record shows that such a proposal was ever initiated by or put to plaintiffs' counsel, or that counsel ever accepted it.
Third, the trial court never in fact indicated on the record that it was modifying Union Pacific's proposed In Limine Order No. 1 to reflect the type *168 of reciprocal sanctions clause that defendants claim plaintiffs sought or accepted. The court never responded on the record to the substance of the State's request that the sanctions clause cover the State's attorney fees, never stated that it intended to widen the scope of the sanctions clause to apply in favor of all parties, and never changed the written order to reflect any such modification even though it did modify that order in another respect agreed to by the parties.
Fourth, even assuming contrary to the record that plaintiffs' counsel's italicized comment ante may plausibly be taken as an implied request that the sanctions clause be made reciprocal, that would still not establish plaintiffs' acquiescence in the remedy. Faced with an objectionable order, a party may act "defensively to lessen the impact of the error" without waiving it for purposes of appellate review. (Electronic Equipment Express, Inc. v. Donald H. Seiler & Co. (1981) 122 Cal.App.3d 834, 857 [176 Cal.Rptr. 239]; see also Park City Services, Inc. v. Ford Motor Co., Inc. (2006) 144 Cal.App.4th 295, 311 [50 Cal.Rptr.3d 373] [attorney who properly objects to an erroneous ruling does not waive the error by endeavoring to make the best of a bad situation for which he was not responsible].) In this regard, plaintiffs' counsel cite the somewhat analogous case of Levine v. Pollack (1995) 37 Cal.App.4th 129 [43 Cal.Rptr.2d 491]. There, the trial court advised the plaintiff that it would grant her request for a continuance of the trial only on the improper condition that she agree to pay the defendants' attorney fees for trial preparation. (Id. at p. 132.) The plaintiff reluctantly agreed, believing she had no choice in the matter. (Ibid.) Upon the plaintiff's appeal from a later order awarding fees against her, the Court of Appeal rejected the defendants' argument that the plaintiff was estopped by her agreement from objecting to the fees. The plaintiff's comments did not operate as an estoppel, according to the appellate court, because her agreement was made reluctantly and in the mistaken belief that the court had the authority to order the fees as condition for a continuance. (Id. at p. 139.)
Since the sanctions provision of In Limine Order No. 1 was unauthorized by statute and not within the court's inherent authority, and because there is no plausible evidence in the record that plaintiffs' counsel ever agreed to the provision or forfeited objection to it by estoppel, we will reverse the three attorney fee awards defendants obtained based on that order.[12]
*169 B. OCLI Dismissal
Plaintiffs contend that the trial court committed the following prejudicial errors in granting OCLI's renewed motion to dismiss: (1) excluding the anonymous tipster and Kessler memos written by Water Board staff, (2) excluding evidence of the contamination found at OCLI's own facility, and (3) failing to recognize that even without the excluded material plaintiffs had sufficient evidence to support a jury verdict against OCLI.[13] Although the issue is a close one, we agree with plaintiffs on the latter point as discussed post, and will reverse the judgment in OCLI's favor. For the guidance of the trial court on remand, we begin with the evidentiary issues plaintiffs have raised.
1. The Tipster and Kessler Memos
Plaintiffs argue on appeal that the two Water Board memos recounting staff's 1990 contacts with an anonymous tipster and David Kessler's 1992 telephone call were admissible under Evidence Code sections 1230 and 1280, notwithstanding their double-hearsay character.[14], [15] Plaintiffs maintain that the outer layer of hearsaythe out-of-court written statements made by the Water Board staffers when they created the memoswere admissible as official records under section 1280, while the inner layer of hearsaythe out-of-court oral statements made by the tipster and Kessler as reported in the memoswere admissible as declarations against interest under section 1230.
Based on the record, it appears that plaintiffs would have been able to establish the foundational elements for the official records exceptions to apply had they been given an opportunity to do so. The authors of the memos, *170 Christine Wright-Shacklett and Susan Warner, both testified at trial. OCLI's trial counsel never disputed that the preparation of these memos was part of Warner's and Wright-Shacklett's official duties, that the documents were prepared close in time to the events described, or that Warner and Wright-Shacklett were reliable record keepers. Thus, the primary issue on appeal concerned the inner layer of hearsaywhether the statements by the tipster and Kessler as recorded in the memos could be offered for their truth.
a. The Tipster Memos
As an initial matter, plaintiffs waived their Evidence Code section 1230 argument concerning the tipster memos by failing to raise it in the trial court. In response to OCLI's motion in limine to exclude the memos, plaintiffs argued that the documents had already been admitted because the trial court had taken judicial notice of their existence. Later, plaintiffs' filed a second opposition in which they argued the memos were admissible as business records under Evidence Code section 1271. At no time did plaintiffs claim that the tipster memos should be admitted under Evidence Code section 1230. Plaintiffs may not pursue a new theory of admissibility on appeal unless the factual record surrounding it has been fully developed. (American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1281 [241 Cal.Rptr. 466].) The facts pertaining to the possible applicability of this hearsay exception were never fully developed in the trial court because plaintiffs did not invoke it and did not attempt to makenor did OCLI have an opportunity to fully contestthe preliminary fact showing required. (See Evid. Code, § 405; People v. Chapman (1975) 50 Cal.App.3d 872, 879 [123 Cal.Rptr. 862].)
Even assuming for the sake of analysis that plaintiffs timely raised the issue and the trial court decided it adversely to them, we would find no abuse of discretion based on the record before us. (See Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 456 [134 Cal.Rptr.2d 756] [in limine rulings reviewed for abuse of discretion].)
The proponent of a declaration against interest must show that (1) the declarant is unavailable, (2) the declaration was against the declarant's penal interest when made, and (3) the declaration was sufficiently reliable to warrant admission despite its hearsay character. (People v. Lucas (1995) 12 Cal.4th 415, 462 [48 Cal.Rptr.2d 525, 907 P.2d 373].) The reliability determination may take into account the circumstances under which the statement was made and the possible motivations of the speaker. (Ibid.) Moreover, Evidence Code section 1230 is "`inapplicable to evidence of any statement or portion of a statement not itself specifically disserving to the interests of the declarant.'" (People v. Duarte (2000) 24 Cal.4th 603, 612 [101 *171 Cal.Rptr.2d 701, 12 P.3d 1110].) Thus, the hearsay exception does not apply to collateral assertions within declarations against penal interest. (Ibid.)
First, the trial court would not have abused its discretion in finding that statements by an anonymous tipster fail to satisfy the fundamental requirement of a declaration against interestthat the declarant actually believes himself to be at some significant risk of civil or criminal liability when he makes the statement sought to be admitted. Many cases have rejected declaration against interest claims on this ground. (See Singh v. Woodford (N.D.Cal., Feb. 22, 2005, No. C 04-02962 CRB) 2005 U.S.Dist. Lexis 4126, *26-*27 [exception does not apply to anonymous and unidentifiable caller confessing to crime]; State v. Kiser (Tenn.App., Nov. 29, 2007, No. E2005-02406-CCA-R3-DD) 2007 Tenn.Crim. App. Lexis 890, *125-*126 [anonymous caller's statements were inadmissible because the caller, thinking he would not be discovered, did not believe he was subjecting himself to any criminal liability]; U.S. v. Burks (C.M.A. 1993) 36 M.J. 447, 451, fn. 2 ["A `confession' by one who speaks from the shadows and remains unidentifiable hardly measures up to the rationale that a statement made against the declarant's own interests is, therefore, reliable."]; State v. Tucker (1992) 331 N.C. 12 [414 S.E.2d 548, 555] [anonymous letter does not actually subject the declarant to criminal liability because a declarant who conceals his identity does not tend to expose himself to criminal liability]; Commonwealth v. Watson (1994) 36 Mass.App.Ct. 252 [629 N.E.2d 1341, 1343-1344] [anonymous informant's statement that he purchased drugs from the defendant does not gain credibility as a statement against his penal interest since there is no reason to believe he would realistically have feared prosecution for the offense]; Commonwealth v. Lewis (1977) 472 Pa. 235, 242 [372 A.2d 399] [anonymous calls confessing to murder not admissible as declarations against penal interest].)
It is true, as plaintiffs point out, that the tipster in this case took a greater risk by meeting face-to-face with Water Board staff than by simply by calling in his information. And, according to the staff memos, he did express concern about his potential criminal liability. But the declarant did insist on and succeed in maintaining his anonymity. We cannot say that it would have been an abuse of discretion to give decisive weight to this factor in determining whether the tipster reasonably believed his statement would lead to actual legal detriment when he made it.[16]
*172 Second, even if the tipster's identity had been known, the trial court would not have abused its discretion in excluding as collateral those portions of his statement that identified OCLI as the source of the barrels. While those statements were arguably against OCLI's interest, they were not against the declarant's. The only part of his statement that would have exposed him to liability was his admission that he put a pick through the barrels and dumped their contents on the ground. His identification of OCLI was arguably merely collateral to that admission, and not "`specifically disserving to the interests of the declarant.'" (People v. Duarte, supra, 24 Cal.4th at p. 612.) Thus, even if the tipster memos had been admissible, the trial court would have acted within its discretion in redacting those portions that referred to OCLI as the source of the barrels.
For these reasons, the trial court properly excluded the tipster memos.
b. Kessler Memo
Plaintiffs claim that the trial court further erred in failing to admit the handwritten 1992 Water Board memo containing notes of a telephone conversation between a Water Board staff member and Donald Kessler, the deceased former owner of an auto wrecking yard that had leased the Briggs Avenue site. The notes state in relevant part: "He said that drums were either picked up or delivered to the site from OCLI. He said the drums were supposed to be empty because they were used for storage of metal waste onsite. He said chances are there was liquid at times in the drums. He said he had employees that weren't always paying attention to the matter." Plaintiffs argued in the trial court that Kessler's statements to the employee during the call, as recorded by the employee, were admissible for their truth as declarations against Kessler's interest under Evidence Code section 1230.[17]
Kessler's statements as reported do not qualify as declarations against interest because they are, if anything, intended to be exculpatory rather than inculpatory as to Kessler himself. Kessler stated that the drums were "supposed to be empty" when he got them from OCLI. In other words, Kessler's *173 agreement with OCLI was that OCLI was to dispose of any contents the drums had once held before the drums arrived at Kessler's site. Despite this agreement, "chances are" there was "liquid" in them "at times," according to Kessler. This was apparently due to the fact that some of Kessler's employees did not "always pay[] attention," implying that he had instructed the employees to make sure the drums were empty. Kessler does not say whether the "liquid" had any relationship to the contamination found at the site or was something harmless, such as rainwater. His statements suggest that the quantity of liquid involved was small.
Kessler's statements are those of a person who is trying to avoid rather than assume liability for any contamination that OCLI's drums might have caused. According to Kessler, there was no deliberate dumping. Any spillage that did occur was infrequent, inadvertent, and came about only through the combined fault of othersOCLI leaving liquid in the drums contrary to its agreement with him and his employees neglecting to follow the directions he had given them to make sure the drums were empty. Rather than disserving his own interests, Kessler's statements appear, if anything, to be an attempt to shift the blame to OCLI. At the time of this telephone conversation, Kessler had already been named as a responsible party by the Water Board in a cleanup and abatement order so he had every reason to implicate others in order to reduce his share of the remediation costs. In that context, nothing about the statements provided any guarantee of their reliability, which is the basis for the declaration against interest exception. (See People v. Duarte, supra, 24 Cal.4th at p. 612 ["Even a hearsay statement that is facially inculpatory of the declarant may, when considered in context, also be exculpatory or have a net exculpatory effect."].)
Accordingly, the trial court did not abuse its discretion in excluding the 1992 Water Board memo. (People v. Lawley (2002) 27 Cal.4th 102, 153 [115 Cal.Rptr.2d 614, 38 P.3d 461].)
2. Contamination Found at OCLI's Facility
OCLI moved successfully before trial under Evidence Code section 352 to exclude mention of any groundwater contamination at its own Santa Rosa facility as tending to create a danger of undue prejudice, or of misleading or confusing the jury.[18] OCLI further sought to preclude plaintiffs from making any argument that OCLI had a propensity to improperly dispose of chemicals. Plaintiffs filed no written opposition, but argued at the hearing that the *174 evidence was relevant to show that OCLI took such poor care of the chemicals it used that it had contaminated the groundwater under its own site. The trial court ruled that the proposed evidence was inadmissible under section 352.
On appeal, plaintiffs argue that the evidence should have been admitted as habit or custom evidence under Evidence Code section 1105,[19] or as evidence of identity or a common scheme or plan under section 1101.[20] These claims are unavailing. First, plaintiffs waived these theories of admissibility by failing to raise them in the trial court. (American Continental Ins. Co. v. C & Z Timber Co., supra, 195 Cal.App.3d at p. 1281.) The only theory plaintiffs did offer at trialthat the evidence showed OCLI took poor care of chemicalsdepends on precisely the type of suspect inference that Evidence Code section 1101 is intended to foreclose, namely, that a person's bad conduct in one circumstance shows a propensity to act badly in others.
Second, although plaintiffs argue at some length that Evidence Code section 1101, subdivision (a) does not apply to corporations, they fail to cite a single case or authority so holding. In fact, subdivision (a) has been applied to exclude evidence offered against corporations in circumstances completely analogous to those presented here. (See Marocco v. Ford Motor Co. (1970) 7 Cal.App.3d 84, 90-92 [86 Cal.Rptr. 526] (Marocco) [evidence that car manufacturer negligently failed to discover a defect in one automobile part inadmissible to prove negligence pertaining to an unrelated part]; Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841, 850-851 [139 Cal.Rptr. 888] (Brokopp) [same].)
Third, plaintiffs had no evidence of habit or custom to offer, even by their own definition of these terms. Plaintiffs point out that a person's "habit" is his regular response to a repeated specific situation, while the term "custom" refers to the routine practice of a group or organization that is equivalent to the habit of an individual. (People v. Memro (1985) 38 Cal.3d 658, 681, fn. 22 [214 Cal.Rptr. 832, 700 P.2d 446].) Plaintiffs had no evidence whatsoever of OCLI's chemical waste disposal practices at its Santa Rosa facility. They sought to use evidence of contamination as evidence that OCLI's practices, *175 whatever they were, must have been careless. From this plaintiffs wanted the jury to infer that OCLI must have also been careless in the manner in which it disposed of its drums containing hazardous wastes at the Frances Street site. This is not habit or custom evidence, but propensity evidence of just the type condemned in Marocco and Brokopp.
Fourth, absent any evidence about OCLI's practices with regard to chemical waste disposal either at its own site or at Union Pacific's property, the exceptions for proof of identity or common scheme or plan would be inapplicable even if they had not been waived. These exceptions require a showing of distinctive similarities or common features between the two instances of conduct. (See People v. Diaz (1992) 3 Cal.4th 495, 562 [11 Cal.Rptr.2d 353, 834 P.2d 1171]; People v. Ewoldt (1994) 7 Cal.4th 380, 402 [27 Cal.Rptr.2d 646, 867 P.2d 757].) Plaintiffs had no such evidence.
The trial court did not err or abuse its discretion in excluding plaintiffs' proffered evidence of groundwater contamination at OCLI's site.
3. Sufficiency of Admitted Evidence
Plaintiffs (and their trial counsel) argue in the alternative that even if the foregoing evidence was properly excluded, the following admitted evidence would have been sufficient to support a jury verdict in plaintiffs' favor: (1) OCLI's facility was two to three miles from the Union Pacific site; (2) OCLI admittedly sent large metal drums to that site on a regular basis in the 1960's and 1970's; (3) OCLI stored its waste chemicals in 55-gallon drums before sending them out for disposal; (4) numerous such drums were found at the Union Pacific site, some of which were leaking hazardous chemicals; (5) the same six chemicals that OCLI used at its facility were also found at the Union Pacific site or in its groundwater; (6) OCLI retained no disposal records pertaining to these chemicals for a 30-month period in the mid-1970's; and (7) there is no evidence in the record of any single source other than OCLI for the particular mix of chemicals contaminating the Union Pacific site.[21]
*176 We apply the same standard of review to OCLI's renewed motion to dismiss as we would to an appeal from a successful motion for a nonsuit. OCLI brought its dismissal motions under Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444 [238 Cal.Rptr. 339], which permits a defendant to move for dismissal after the court grants in limine motions that, in the defendant's view, prevent the plaintiff from proving its case. Such a motion is tantamount to a nonsuit. (See R & B Auto Center, Inc. v. Farmers Group, Inc. (2006) 140 Cal.App.4th 327, 358-359 [44 Cal.Rptr.3d 426]; Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 28 [61 Cal.Rptr.2d 518] (Edwards).) "A trial court may grant a nonsuit only when, disregarding conflicting evidence, viewing the record in the light most favorable to the plaintiff and indulging in every legitimate inference which may be drawn from the evidence, it determines there is no substantial evidence to support a judgment in the plaintiff's favor." (Edwards, at p. 28, italics omitted.) The same rules apply on appeal from the granting of a nonsuit. (Ibid.) Thus, we must resolve all doubts and draw all legitimate inferences in plaintiffs' favor, and may uphold the judgment for OCLI only if it was required as a matter of law. (Ibid.)
Although not particularly strong, plaintiffs' case against OCLI based on the above evidence is sufficientunder the highly favorable standard of appellate review we apply to itto compel a reversal of the judgment in favor of OCLI. Indulging every legitimate inference that may be drawn from the evidence, a rational jury could conclude that it was not mere coincidence that OCLI used six of the same chemicals that were found to be contaminating the Union Pacific site.[22] While one or two chemicals in common might suggest a coincidence, six in common supports a legitimate inference of a possible causal relationship, especially in the absence of evidence that other nearby sources could account for the same six chemicals.[23] The inference that OCLI played a causal role in the contamination also requires that there be a plausible mechanism by which its waste chemicals could have migrated or been transported to the Union Pacific site. Other evidence established that mechanism. OCLI stored its waste chemicals in 55-gallon drums for disposal. It admittedly transported 55-gallon drums (supposedly empty or containing only scrap metal) to the Union Pacific site on a regular basis during the 1960's and 1970's, and could not account for where it disposed of its wastes for a 30-month period in the mid-1970's.[24] The Water Board ultimately found *177 drums like those used by OCLI for storing wastes in large quantities at the site, some observed to be leaking hazardous chemicals. One possible inference from this set of facts is that drums containing hazardous waste were in fact transported from OCLI to the site during at least part of the relevant time period.
Resolving all doubts and indulging all legitimate inferences in plaintiffs' favor, we cannot say that the judgment in favor of OCLI was required as a matter of law. We will therefore reverse it.
C. Section 128.7 Sanctions Award to OCLI
The trial court awarded sanctions to OCLI based both on In Limine Order No. 1 and section 128.7.[25] Regarding the latter, the court explained its decision in relevant part as follows: "On April 11, 2006 the court granted OCLI's two motions in limine which, according to OCLI, eliminated all evidence supporting Plaintiffs' case against OCLI and the Defendant immediately sent letters to the Plaintiffs' counsel requesting to be dismissed with prejudice. CCP § 128.7 ensures that: [¶] `(2) The claims, defenses, and other legal contentions therein are warranted by existing law . . . . (3) The allegations and other factual contentions have evidentiary support . . . .' [¶] OCLI argues that it should have been dismissed from the suit at the beginning of the trial. OCLI claims that there was not the required evidentiary support which would have demonstrated to the court that OCLI was responsible for contamination of the site. Because the Plaintiffs failed to have the `evidentiary support' and the pleadings were brought `primarily for an *178 improper purpose' sanctions should be assessed against the Plaintiffs [pursuant to section 128.7]. [¶] . . . [¶] The court grants the motion for fees [and] costs in the total amount of . . . $419,608.80 (including CCP 128.7 damages)[] to OCLI . . . . The fees and costs are owed, jointly and severally, by [plaintiffs' attorneys]."[26]
As an initial matter, it is important to clarify the conduct for which the court imposed section 128.7 sanctions. OCLI's sanctions motion emphasized that section 128.7 covered not only the filing of a pleading or similar paper without evidentiary support but also the later advocacy of positions taken in such document. The motion went on to cite as grounds 42 alleged instances of sanctionable conduct occurring after the granting on April 11, 2006, of OCLI's motions in limine. These included written and oral representations made in support of (1) a pretrial motion in limine by plaintiffs, (2) plaintiffs' opposition to OCLI's original motion to dismiss, and (3) a May 2006 request for judicial notice. OCLI also cited plaintiffs' opening statement to the jury and various representations to the court concerning the anticipated testimony of certain former OCLI employees who had not been on plaintiffs' pretrial witness list. In addition, OCLI alleged that the totality of plaintiffs' counsel's pleadings and advocacy since the rulings on OCLI's motions in limine, all in an effort to keep OCLI in the case, justified an award of all of the fees and costs incurred from April 11, 2006, forward.
Section 128.7, subdivision (e) provides that "[w]hen imposing sanctions, the court shall describe the conduct determined to constitute a violation of this section and explain the basis for the sanction imposed." Based on the wording of the trial court's order, and its omission to mention any of the other more specific instances of misconduct cited in the motion, we must assume that the court's intent was to sanction plaintiffs' counsel for the totality of its written and oral advocacy pertaining to OCLI from April 11, 2006, until the mistrial. Thus, in the language of section 128.7, plaintiffs' counsel were being sanctioned for falsely certifying through their oral and written presentations to the court after April 11 that there was still evidentiary support for the complaint's factual allegations against OCLI and that such allegations were not being maintained primarily for an improper purpose after that point.
It is thus apparent that the trial court's award of sanctions against OCLI under section 128.7 depended exclusively on its belief that plaintiffs lacked sufficient evidentiary support for their case to survive a nonsuit. Because we *179 have reached a different judgment on that point, the court's sanctions award against plaintiffs' counsel under section 128.7 must be reversed. We will not hold that a case supported by enough evidence to sustain a favorable jury verdict either lacked "evidentiary support" or was prosecuted "primarily for an improper purpose" for purposes of that section. OCLI ventures no argument that such a holding would be defensible.
D. State's Motion for Summary Judgment
Upon reconsidering the State's motion for summary judgment on its own motion, the trial court held the State had established as a matter of law that (1) no designated Water Board employee was under a duty in 1988 to give the notice to public officials required by Health and Safety Code section 25180.7, subdivision (b), that "the discharge or threatened discharge [was] likely to cause substantial injury to the public health or safety"; and (2) the State was immune from liability under section 25180.7 in any event, because any failure to give prompt notice after issuance of the 1988 cleanup and abatement order would constitute an "act or omission taken . . . to abate or attempt to abate hazards reasonably believed to be an imminent peril to public health and safety caused by the discharge, spill, or presence of a hazardous substance" for purposes of Health and Safety Code section 25400.
On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334 [100 Cal.Rptr.2d 352, 8 P.3d 1089].)
Plaintiffs contended that the cleanup and abatement order the Water Board issued for the Frances Street site in July 1988 "suggested" that the contamination of that site was "likely to cause substantial injury to the public health or safety." However, in alleged violation of Health and Safety Code section 25180.7, subdivision (b), no designated Water Board employees, including its then executive officer, Susan Warner, gave notice of the danger to local public officials until January 1990, when the board learned that groundwater beneath the Frances Street site was contaminated with industrial solvents.
The Water Board's July 1988 cleanup and abatement order reported that Water Board staff had found "numerous soil contamination problems" at the Francis Street site. (Italics added.) It noted "[m]any areas of hydrocarbon contamination in soil" at the site (italics added), and reported that drums leaking hazardous materials, old batteries, and quantities of shredded metals were piled and scattered around the site. Regarding the threat of water contamination, the order noted that "[t]he site overlies shallow groundwaters *180 and is located near tributaries to the Russian River." It further stated that the groundwater supported, among other things, domestic and agricultural water supplies. After describing the soil contamination, the proximity of groundwater supplies, and the beneficial uses being made of those supplies, the order drew the following conclusions: "The groundwater contamination[27] threatens the beneficial uses of state waters, including domestic supplies served by areal groundwaters . . . . [¶] The discharge and threatened discharge of said wastes could unreasonably affect water quality and the above described beneficial uses. Threaten[ed] discharges of contaminant were observed in the inspection which could affect public health and resources . . . ."
Plaintiffs contend that the text of the 1988 cleanup and abatement order, by itself, is sufficient to create a triable issue of material fact as to whether Susan Warner or other designated Water Board employees had a duty to give the notices required by Health and Safety Code section 25180.7, subdivision (b), at the time the order was issued. According to plaintiffs, based only on the Water Board's declaration that the waste threatened domestic water supplies and could affect public health and safety, a jury could infer that Susan Warner believed the pollution was "likely to cause substantial injury to the public health or safety." (Italics added.) We disagree.
To be subject to the disclosure duty specified in Health and Safety Code section 25180.7, a designated government employee must have information that an illegal discharge of a hazardous waste has occurred or is threatened, and must know that it is likely to cause substantial injury to the public health or safety. (70 Ops.Cal.Atty.Gen. 130, 136 (1987).)[28] It is not sufficient that the employee "`should have known'" or had a "`reasonable suspicion'" of such likelihood. (70 Ops.Cal.Atty.Gen., at p. 135.) In support of summary judgment, Warner averred that until she received a report of solvent contamination in groundwater beneath the Frances Street site in January 1990, she did not know there was any threat of substantial injury to public health or safety. She gave timely notice under Health and Safety Code section 25180.7 at that time.
Although the 1988 cleanup and abatement order had reported that some drums at the site were leaking "hazardous materials," the order made no *181 explicit finding that there had been a discharge or threatened discharge of a "hazardous waste."[29] Neither did the order make or report any finding that the conditions it described were "likely" to cause "substantial" injury to the public health or safety. The order stated only that the conditions "could affect" public health and resources. By law, cleanup and abatement orders can be issued due to possible effects that do not involve public health. (See Wat. Code, §§ 13050, subds. (l), (m), 13304, subd. (a).)
Plaintiffs' argument based on the cleanup and abatement order is tantamount to a claim that because a person has a serious illness, it is reasonable to infer that the person is likely to die. While death is one possible outcome of a serious illness, without more information there is no reason to believe that it is the most likely outcome. Such an inference could be based on no more than guesswork or speculation. Inferences based on guesswork or speculation are not sufficient to demonstrate the existence of a material fact issue. (Annod Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 1298-1299 [123 Cal.Rptr.2d 924].)
Besides the language of the order itself, plaintiffs cite three tangentially relevant excerpts from the trial testimony of two witnessesplaintiffs' expert, Dr. Everett, and a Water Board senior engineering geologist, Christine Wright-Shacklett.[30] However, this evidence was not offered in any form as part of plaintiffs' opposition to the State's original summary judgment motion in 2004, nor was it called to the trial court's attention upon the court's reconsideration of the State's summary judgment motion in 2006. We do not disagree that plaintiffs were entitled to use testimony they had elicited at trial in an attempt to defeat the State's summary judgment motion. However, having failed to call that evidence to the attention of the trial court when it reconsidered the State's motion, plaintiffs may not raise it for the first time on this appeal.[31] (See Jacobs v. Retail Clerks Union, Local 1222 (1975) 49 *182 Cal.App.3d 959, 966 [123 Cal.Rptr. 309]; North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28-29 [21 Cal.Rptr.2d 104].)
Based on the evidence before it, the trial court properly granted summary judgment to the State.[32], [33]
E. Fee Award Based on Section 1038
After granting the State's summary judgment motion, the trial court awarded the State $672,501.25 in attorney fees and $439,535.31 in expert witness fees under section 1038.[34]
Plaintiffs first contend that the present action was not brought under the California Tort Claims Act, but under Proposition 65. This contention is without merit. The Tort Claims Act governs all liability against public entities in California. (See County of Los Angeles v. Superior Court (2005) 127 Cal.App.4th 1263, 1267 [26 Cal.Rptr.3d 445].) Plaintiffs' theory of liability against the State was based solely on the State's asserted vicarious liability for the alleged omissions of designated Water Board employees. The doctrine of vicarious liability based on respondeat superior is made applicable to public employers by Government Code section 815.2. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 209-210 [285 Cal.Rptr. 99, 814 P.2d 1341].) In fact, plaintiffs expressly rely on Government Code sections 815.2, subdivision (a) and 820 in making their vicarious liability argument. They are thus in no position to argue that section 1038 is inapplicable to their claims against the State.
The applicable standard of review under section 1038 was set forth in Knight v. City of Capitola (1992) 4 Cal.App.4th 918, 932 [6 Cal.Rptr.2d 874] *183 (Knight): "Good faith, or its absence, involves a factual inquiry into the plaintiff's subjective state of mind [citations] . . . . A subjective state of mind will rarely be susceptible of direct proof; usually the trial court will be required to infer it from circumstantial evidence. Because the good faith issue is factual, the question on appeal will be whether the evidence of record was sufficient to sustain the trial court's finding. [¶] Reasonable cause is to be determined objectively, as a matter of law, on the basis of the facts known to the plaintiff when he or she filed or maintained the action. Once what the plaintiff (or his or her attorney) knew has been determined, or found to be undisputed, it is for the court to decide `"whether any reasonable attorney would have thought the claim tenable . . . ."' [Citations.] Because the opinion of the hypothetical reasonable attorney is to be determined as a matter of law, reasonable cause is subject to de novo review on appeal."
Other than the asserted groundlessness of plaintiffs' claims against it, the State offered no factual basis or argument in the trial court for an inference that plaintiffs lacked a "good faith belief that there was a justifiable controversy under the facts and law." The trial court for its part made no factual findings in support of its order under section 1038. Accordingly, the section 1038 fee award must stand or fall in this case on whether, under de novo review, plaintiffs had "reasonable cause" to bring or maintain the proceedings against the State. (See Knight, supra, 4 Cal.App.4th at p. 931 [§ 1038 applies not only to commencement of action but also to maintaining it without reasonable cause after it has been filed]; Kobzoff v. Los Angeles County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851, 863-864 [80 Cal.Rptr.2d 803, 968 P.2d 514] (Kobzoff) [a defendant may recover defense costs if trial court finds the plaintiff lacked either reasonable cause or a good faith belief the case was justified].)
Section 1038 provides a way for public entities, who are barred from bringing malicious prosecution suits, to recover the cost of defending frivolous suits. (Kobzoff, supra, 19 Cal.4th at p. 857; Knight, supra, 4 Cal.App.4th at p. 931 [§ 1038 provides "a judicially approved alternative to a constitutionally proscribed action for malicious prosecution"].) The case law on the tort of malicious prosecution provides analogous, instructive, and persuasive authority in construing the concept of "reasonable cause" under section 1038. (Carroll v. State of California (1990) 217 Cal.App.3d 134, 141-142 [265 Cal.Rptr. 753].) In particular, the term "reasonable cause" in section 1038, and as defined in Knight, is synonymous with the term "probable cause" in malicious prosecution law. (Knight, at p. 932; see Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 886 [254 Cal.Rptr. 336, 765 P.2d 498].)
In Roberts v. Sentry Life Insurance (1999) 76 Cal.App.4th 375 [90 Cal.Rptr.2d 408] (Roberts), the Court of Appeal held that "[i]n an action *184 alleging malicious prosecution of an earlier suit, evidence that the trial court in the earlier suit denied a defense summary judgment motion establishes that there was probable cause to bring the earlier suit." (Id. at p. 378.) The Roberts court reasoned as follows: "California courts have held that victory at trial, though reversed on appeal, conclusively establishes probable cause. [Citations.] The rationale is that approval by the trier of fact, after a full adversary hearing, sufficiently demonstrates that an action was legally tenable. [Citation.] . . . [S]uccess at trial shows that the suit was not among the least meritorious of meritless suits, those which are totally meritless and thus lack probable cause. [¶] Denial of a defendant's summary judgment motion provides similarly persuasive evidence that a suit does not totally lack merit. A federal judge denies summary judgment if there are `genuine issues of material fact' for trial, and the moving party is not `entitled to judgment as a matter of law.' [Citation.] A California judge must reach similar conclusions to deny summary judgment. [Citation.] These conclusions necessarily imply that the judge finds at least some merit in the claim. The claimant may win, if certain material facts are decided favorably. This finding (unless disregarded) compels conclusion that there is probable cause, because probable cause is lacking only in the total absence of merit." (Id. at p. 383, italics omitted.)
The same principle was recognized by our Supreme Court in Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811 [123 Cal.Rptr.2d 19, 50 P.3d 733] (Wilson): "[O]ur decision in [Sheldon Appel Co. v. Albert & Oliker] clarified that probable cause to bring an action does not depend upon it being meritorious, as such, but upon it being arguably tenable, i.e., not so completely lacking in apparent merit that no reasonable attorney would have thought the claim tenable. [Citation.] Denial of a defense summary judgment motion on grounds that a triable issue exists, or of a nonsuit, while falling short of a determination of the merits, establishes that the plaintiff has substantiated, or can substantiate, the elements of his or her cause of action with evidence that, if believed, would justify a favorable verdict . . . . [A] claimant or attorney who is in possession of such evidence has the right to bring the claim, even where it is very doubtful the claim will ultimately prevail. [Citation.]" (Id. at p. 824, italics omitted.)
In this case, the court denied the State's original summary judgment motion and, with a different judge presiding, denied a substantially similar motion for judgment on the pleadings. Plaintiffs were allowed to try their case to a jury although not to a verdict. It is true that the court ultimately reversed the earlier summary judgment ruling but, as stated in Wilson: "It would be a `"hard law,"' indeed, that `"would render a plaintiff liable in *185 damages for instituting an action . . . in the event that, notwithstanding a judge of the superior court was satisfied that upon those facts the plaintiff had a meritorious case, a ruling to that effect should afterwards be set aside."'" (Wilson, supra, 28 Cal.4th at p. 822, quoting Cowles v. Carter (1981) 115 Cal.App.3d 350, 357 [171 Cal.Rptr. 269].)
In our view, based on the principles applied in Roberts and Wilson, the trial court's award to the State under section 1038 must be reversed. Although we have found that the State was ultimately entitled to summary judgment, we cannot say that no reasonable attorney would have thought plaintiffs' claim against the State tenable.
F. Section 998 Award to the State
In May 2005, the State made a settlement offer to plaintiffs under section 998, which plaintiffs declined to accept.[35] The offer was to pay each plaintiff $1,000. After granting the State's summary judgment motion, the court awarded the State $439,535.31 in expert witness fees based on section 998. On appeal, plaintiffs contend the award must fail because (1) the State's offer was not made in good faith, and (2) the court failed to consider the financial impact of its award on plaintiffs.
A section 998 offer must be made in good faith to be valid. (Wear v. Calderon (1981) 121 Cal.App.3d 818, 821 [175 Cal.Rptr. 566].) Good faith requires that the offer of settlement be "`realistically reasonable under the circumstances of the particular case . . . .' [Citation.]" (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1262 [74 Cal.Rptr.2d 607].) A token or nominal offer made with no reasonable prospect of acceptance will not pass the good faith test. (Ibid.)
"Whether a section 998 offer was reasonable and made in good faith is left to the sound discretion of the trial court." (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 134 [84 Cal.Rptr.2d 753].) "In reviewing an award of costs and fees under Code of Civil Procedure section 998, the appellate court will examine the circumstances of the case to determine if the trial court abused its discretion in evaluating the reasonableness of the offer or its refusal." (Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 152 [118 Cal.Rptr.2d 569].) "`["]The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless *186 there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power." [Citations.]'" (Nelson v. Anderson, at p. 136.)
Plaintiffs failed to satisfy their burden of demonstrating a clear abuse of discretion in this case. To prevail against the State at trial, plaintiffs had the burden of proving that a designated State employee had violated Proposition 65. Despite time to investigate the facts before filing, and four years after filing suit in which to depose Water Board employees and review all of the Water Board's files on this subject, the plaintiffs' opposition to the State's 2004 summary judgment motion showed that plaintiffs had little more to support their Proposition 65 claim than a shaky circumstantial argument based on the text of the 1988 cleanup and abatement order. From the State's viewpoint, given the weakness of the plaintiffs' case, the fact that the State's summary judgment motion had been denied did not mean that plaintiffs were likely to prevail at trial. This was particularly the case since the trial court had decided the motion without considering the principal declaration the State had offered in support of it.
Plaintiffs also maintain that before setting the amount of the award under section 998, the trial court should have first considered the award's severe financial impact on them. (See Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1561-1562 [47 Cal.Rptr.3d 206] [when opposing parties possess vastly disparate economic resources, court may be required to "`scale'" the award to their respective resources to avoid placing undue pressure on the less affluent party to accept unreasonable § 998 offers].) Plaintiffs did not raise this issue in the trial court nor have they created a factual record sufficient to resolve it in their favor. For example, there is no evidence in the record regarding the assets owned by plaintiffs, including the disposition of the settlement proceeds obtained in this lawsuit. Although we nonetheless have discretion to consider the issue, we decline to do so because no important question of public policy is involved. (See In re S.B. (2004) 32 Cal.4th 1287, 1293 [13 Cal.Rptr.3d 786, 90 P.3d 746].) In any event, we find no indication that the Legislature intended to require courts to conduct a means test as part of determining the amounts to award under section 998. Such a rule, which would alter the settlement incentives provided by section 998 in a wide range of cases, should not be mandated by placing a judicial gloss on the statute's text.
We find no abuse of discretion in the fact or amount of the trial court's section 998 award to the State.
*187 III. DISPOSITION
The orders awarding sanctions pursuant to In Limine Order No. 1, and sections 128.7 and 1038, are reversed as is the judgment dismissing plaintiffs' claims against OCLI. The summary judgment and order awarding expert witness fees under section 998 in favor of the State are affirmed. The matter is remanded to the trial court for further proceedings consistent with the views expressed in this opinion.
Each side shall bear its own costs on appeal.
Stein, Acting P. J., and Swager, J., concurred.
NOTES
[1] All statutory references are to the Code of Civil Procedure unless otherwise indicated.
[2] Kessler had passed away by the time the lawsuit was filed.
[3] The pertinent provision, which was enacted as part of Proposition 65, reads as follows: "Any designated government employee who obtains information in the course of his or her official duties revealing the illegal discharge or threatened illegal discharge of a hazardous waste within the geographical area of his or her jurisdiction and who knows that the discharge or threatened discharge is likely to cause substantial injury to the public health or safety must, within 72 hours, disclose that information to the local Board of Supervisors and to the local health officer." (Health & Saf. Code, § 25180.7, subd. (b).)
[4] Government Code section 810 et seq.
[5] The trial court decided the motion without considering the State's principal declaration in support of it. The trial court excluded in its entirety the declaration of Water Board executive officer, Susan Warner, upon the sole ground that she failed to include a recitation that she had personal knowledge of the matters stated therein. It was evident from the declaration that Warner did have personal knowledge of the matters discussed in it.
[6] Health and Safety Code section 25400, subdivision (b) states in relevant part: "[A] public entity . . . shall not be liable for any injury or property damage caused by an act or omission taken by . . . a person authorized by a public entity . . . acting within the scope of employment to abate or attempt to abate hazards reasonably believed to be an imminent peril to public health and safety caused by the discharge, spill, or presence of a hazardous substance, unless the act taken or omission was performed in bad faith or in a grossly negligent manner."
[7] The 1988 environmental report suggested that at least some of these chemicals were stored in drums at various locations in the OCLI facility, as were other materials. According to the Pietrelli declaration, OCLI sold only drums that had been used to hold scrap metal to West Coast Metals.
[8] We reversed the contempt orders and have directed the trial court to take no further action with respect to contempt. (Robinson v. Superior Court (Jan. 26, 2007, A115483) [nonpub. opn.] and Cochran v. Superior Court (Jan. 26, 2007, A115711) [nonpub. opn.].)
[9] "When jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code." (§ 187.)
[10] Section 128, subdivision (a)(4) provides in relevant part: "(a) Every court shall have the power to . . . [¶] . . . [¶] (4) . . . compel obedience to its judgments, orders, and process, and to the orders of a judge out of court, in an action or proceeding pending therein."
[11] At plaintiffs' request, and with the concurrence of all parties, the trial court had by that time already agreed to modify the proposed in limine order to clarify that evidence of well contamination could be introduced.
[12] We do not reach plaintiffs' counsel's further arguments that (1) the court's after-the-fact finding of an agreement regarding fees violated plaintiffs' due process rights; (2) Attorney Cochran was not bound by any purported agreement by Attorney Robinson to a reciprocal sanctions clause; (3) on its own terms, In Limine Order No. 1 did not authorize the fee awards made because the mistrial did not arise from its violation; and (4) the sanctions awarded under In Limine Order No. 1 must fail because the trial court abused its discretion in declaring a mistrial.
[13] Plaintiffs also argued that the trial court erred by not "allowing" them to conduct additional discovery before deciding OCLI's renewed motion to dismiss. In our view, plaintiffs did not need the court's permission to conduct discovery since the declaration of mistrial automatically reopened discovery. (See Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 247 [92 Cal.Rptr.2d 70, 991 P.2d 156].) In any event, this issue is mooted by our reversal of the judgment in OCLI's favor.
[14] Evidence Code section 1230 provides in relevant part: "Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability . . . that a reasonable man in his position would not have made the statement unless he believed it to be true."
[15] Evidence Code section 1280 provides in pertinent part: "Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered . . . to prove the act, condition, or event if all of the following applies: [¶] (a) The writing was made by and within the scope of duty of a public employee. [¶] (b) The writing was made at or near the time of the act, condition, or event. [¶] (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness."
[16] Plaintiffs cite cases holding that information told to police officers by an anonymous tipster in a face-to-face meeting is considered more reliable than that obtained from an anonymous telephone tip for purposes of establishing probable cause or reasonable suspicion sufficient to support a search warrant or traffic stop. (See, e.g., U.S. v. Valentine (3d Cir. 2000) 232 F.3d 350, 354-355.) One rationale for this rule is that a person who meets with the police has greater reason to fear being identified and prosecuted for making a false police report. However, these cases do not involve either self-incriminating statements by tipsters or the declaration against interest exception to the hearsay rule. We do not find them particularly persuasive in deciding, for purposes of Evidence Code section 1230, what weight to give to the fact that the tipster in this case agreed to meet with the staff of a civil administrative agency.
[17] OCLI argues that plaintiffs waived the declaration against interest theory by mentioning it only in passing at oral argument before the trial court without making any attempt to further develop it. In our view, plaintiffs have preserved this issue for appellate review, if only barely. In addition to the comment made at oral argument, plaintiffs attached their earlier-filed request for judicial notice of the Kessler memo as part of their opposition to the motion in limine. That request included an argument that the memo was admissible notwithstanding the hearsay rule based on Evidence Code sections 1230 and 1280.
[18] Evidence Code section 352 states: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
[19] Evidence Code section 1105 provides: "Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom."
[20] Evidence Code section 1101 states in relevant part: "(a) Except as provided in this section . . . evidence of a person's character or a trait of his or her character . . . is inadmissible when offered to prove his or her conduct on a specified occasion. [¶] (b) Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, [or the] absence of mistake or accident . . .) other than his or her disposition to commit such an act."
[21] In response to OCLI's original motion to dismiss, plaintiffs also submitted a declaration from Dr. Everett in which he opined, among other things, that the mix of chemicals found in the groundwater was "rare" and that this group of chemicals was "somewhat unique" to the manufacturing activity that occurred at OCLI. The trial court granted OCLI's motion in limine to exclude these opinions because they had not been disclosed at Everett's deposition. It declined to consider Dr. Everett's declaration when it was offered again in opposition to OCLI's renewed motion to dismiss. Because plaintiffs have not claimed error in these rulings, we will not consider Everett's opinions on these points in evaluating the sufficiency of plaintiffs' showing. However, plaintiffs are not precluded from offering competent opinion evidence along these lines on remand as long as OCLI has a reasonable opportunity to fully depose plaintiffs' expert on them before the testimony is offered at trial.
[22] OCLI disputed plaintiffs' evidence that one of the six chemicals it usedacetonewas found at the Union Pacific site. However, for purposes of appellate review we ignore all such conflicts in the evidence. (Edwards, supra, 53 Cal.App.4th at p. 28.)
[23] OCLI disputed the claim that there was no evidence of other possible sources.
[24] OCLI claims that the evidence plaintiffs rely on to establish OCLI's delivery of drums to West Coast Metals in the 1960's and 1970'sthe Pietrelli declarationdoes not establish the frequency of such deliveries. However, Pietrelli refers in the declaration to OCLI's "dealings with West Coast Metals in the 1960's and 1970's," which consisted of West Coast Metals's purchase of "scrap drums and drums containing scrap metal." It may be inferred from this that West Coast Metals obtained regular deliveries of drums from OCLI over that extended time period.
[25] Section 128.7 provides in relevant part as follows: "(b) By presenting to the court, whether by . . . filing . . . or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney . . . is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met: [¶] (1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. [¶] (2) The claims, defenses, and other legal contentions therein are warranted by existing law . . . . [¶] (3) The allegations and other factual contentions have evidentiary support . . . . [¶] . . . [¶] (c) If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) . . . . [¶] (1) A motion for sanctions under this section shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). Notice of motion . . . shall not be filed with . . . the court unless, within 21 days after service of the motion . . . the challenged paper [or] claim, . . . is not withdrawn . . . ."
[26] The $419,608.80 figure represented the total amount of fees and costs that OCLI claimed to have incurred between March 30, 2006, and May 24, 2006, the day the mistrial was declared. The court did not specify what part of its award was based on section 128.7 or whether it regarded that section as a separate and independent basis for the entire award.
[27] Despite its use of the phrase "[t]he groundwater contamination," the order made no actual finding of groundwater contamination. It merely found surface, soil, and site conditions that created a threat of groundwater contamination sufficient to require the landowner to remove all surface wastes and contaminated soil, and to investigate the extent of any groundwater contamination. Plaintiffs do not contend otherwise.
[28] We have found no case law construing Health and Safety Code section 25180.7, subdivision (b). Opinions of the Attorney General are considered persuasive in the absence of any controlling authority. (County of San Diego v. State of California (1997) 15 Cal.4th 68, 103-104 [61 Cal.Rptr.2d 134, 931 P.2d 312].) Here the Attorney General's opinion is based on a straightforward reading of the statute's text.
[29] The term "hazardous waste" is defined in Health and Safety Code section 25117. The word "waste" is defined in Health and Safety Code section 25124 and in Water Code section 13050, subdivision (d).
[30] Dr. Everett testified that in his experience the language used in the cleanup and abatement order was not the type of language that would be used if the Water Board believed there was no "offsite contamination." Wright-Shacklett testified under questioning by plaintiffs' counsel that she worked on the Frances Street project for approximately three years, from the latter part of 1989 to the latter part of 1992. Later in her testimony, she responded affirmatively when plaintiffs' counsel asked whether it was correct that the whole reason she was working on the project was because the groundwater contamination at the site had spread to other property. According to plaintiffs, Wright-Shacklett's answers would have allowed the jury to infer that the Water Board knew of the contamination's spread in the latter part of 1989, more than 72 hours before it gave its first Proposition 65 notice on January 4, 1990. (See Health & Saf. Code, § 25249.5 et seq.)
[31] We express no opinion as to whether the Everett and Wright-Shacklett testimonies were sufficient to create a triable issue of material fact.
[32] To the extent that plaintiffs argue in passing that they should have been permitted to conduct further discovery in connection with the State's motion, they waived such argument by failing to request a continuance to conduct discovery in the trial court. (Lewinter v. Genmar Industries, Inc. (1994) 26 Cal.App.4th 1214, 1224 [32 Cal.Rptr.2d 305].)
[33] We do not reach the additional grounds proposed by the State for upholding the trial court's decision.
[34] Section 1038 provides in relevant part: "(a) In any civil proceeding under the California Tort Claims Act . . . , the court, upon motion of the defendant . . . , shall, at the time of the granting of any summary judgment, . . . or at a later time . . . , determine whether or not the plaintiff . . . brought the proceeding with reasonable cause and in the good faith belief that there was a justifiable controversy under the facts and law which warranted the filing of the complaint . . . . If the court should determine that the proceeding was not brought in good faith and with reasonable cause . . . the court shall render judgment in favor of that party in the amount of all reasonable and necessary defense costs . . . . [¶] (b) `Defense costs,' as used in this section, shall include reasonable attorneys' fees, expert witness fees, the expense of services of experts, advisers, and consultants in defense of the proceeding . . . ."
[35] Section 998, subdivision (c)(1) states in relevant part: "If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment . . . . the court . . ., in its discretion, may require the plaintiff to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in . . . preparation for trial . . . or during trial . . . of the case by the defendant." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266570/ | 461 F.Supp. 999 (1978)
WACHOVIA BANK AND TRUST CO., N.A., et al., Plaintiffs,
v.
NATIONAL STUDENT MARKETING CORP. et al., Defendants.
M.D.L. No. 105. Civ. A. No. 166-73.
United States District Court, District of Columbia.
November 21, 1978.
*1000 *1001 *1002 Juan A. Del Real, Richard M. Phillips, Hill, Christopher & Phillips, P. C., Washington, D. C., for plaintiffs.
Milton V. Freeman, Thomas D. Nurmi, Robert H. Winter, Arnold & Porter, Washington, D. C., for defendants White & Case and Marion Jay Epley, III.
William E. Hegarty, Mathias E. Mone, Harvey J. Golubock, Joseph W. Muccia, Cahill, Gordon & Reindel, New York City, for defendants Peat, Marwick, Mitchell & Co., Anthony M. Natelli and Joseph Scansaroli.
MEMORANDUM OPINION
BARRINGTON D. PARKER, District Judge:
In this private federal securities laws litigation, filed by the Wachovia Bank and Trust Company and other plaintiffs[1] (the Wachovia plaintiffs), two questions are presented for the Court's resolution. First, do the plaintiffs have implied causes of action under § 17(a) of the Securities Act of 1933 (1933 Act)[2] and §§ 10(b), 13(a) and 14(a) of the Securities Exchange Act of 1934 (1934 Act)?[3] Second, is this private action, brought under these statutory sections, barred by the applicable statute of *1003 limitations and, if so, is there an independent cause of action based on common law fraud, breach of fiduciary duty and legal malpractice?
These issues have been raised by the law firm of White & Case, Marion J. Epley, a partner, and the accounting firm of Peat, Marwick, Mitchell & Co. (Peat Marwick).[4] The defendants have moved for judgment on the pleadings under Rule 12(c), Federal Rules of Civil Procedure, or alternatively to dismiss the complaint with prejudice under Rule 12(b)(6).
The Court has considered the various memoranda, affidavits and exhibits filed as well as the oral argument of counsel. For the reasons set forth herein the Court finds that plaintiffs have stated a private cause of action under § 17(a) of the 1933 Act and § 10(b) of the 1934 Act and, therefore, defendants' motion for judgment on the pleadings on the issue of implied causes of action is denied. However, the Court agrees with the defendants on the statute of limitations issue and concludes that the federal claims asserted by plaintiffs are time-barred and the remaining claims must be dismissed for lack of pendent jurisdiction.
INTRODUCTION
In late 1969 when the economic fortunes of the National Student Marketing Corporation (NSMC) were most favorable and the reports on its financial operations extremely optimistic, the Wachovia plaintiffs purchased at a private placement nearly five million dollars worth of that corporation's stock. The terms of the purchase were governed by two contracts between the parties, dated December 17, 1969. White & Case, acting as NSMC's counsel, drafted a Common Stock Purchase Agreement and issued a legal opinion to plaintiffs. Peat Marwick, the independent auditor of NSMC, certified the annual financial statements and played a role in preparation of interim financial reports and documents filed with the Securities and Exchange Commission (SEC).
In February of 1970, almost immediately following the Wachovia transaction, NSMC's fortunes suffered a sharp reversal and the stock's market price dropped markedly.[5] Shortly thereafter, in early 1970, two civil actions arising out of the collapse were filed in the Southern District of New York federal court. Garber v. Randell, (March 2, 1970); Lipsig v. National Student Marketing Corp., (May 15, 1970) (naming Peat Marwick as defendant). In early 1972, a third action was filed in the Southern District, Natale v. National Student Marketing Corp., (February 18, 1972) (naming White & Case as defendant).[6] Also, on March 19, 1970, a civil complaint was filed in the Southern District of Texas federal court. Stuckey v. National Student Marketing Corp., (March 19, 1970). While White & Case and Peat Marwick were not parties in either Garber or Stuckey, the complaints outlined the alleged fraudulent scheme and financial manipulation that underlie the Wachovia complaint. A complaint was also filed in October 1971 in the Southern District of Ohio, Monroe v. Peat, Marwick, Mitchell & Co., alleging that the accountants aided and abetted others in misrepresenting Student Marketing's financial condition.
In February 1972, the SEC filed an enforcement and injunctive action against the *1004 major participants in the corporate acquisition and merger of National Student Marketing and Interstate National Corporation.[7] White & Case and Peat Marwick, among others, were named as defendants in that proceeding.
Despite this turn of events, more than three years elapsed after their December 1969 purchase before the Wachovia plaintiffs sought relief. On January 29, 1973, their original complaint was filed seeking damages from NSMC, several of its officers and employees; Peat Marwick, the partner in charge of the Washington, D. C., office, Anthony M. Natelli; and the auditor, Joseph Scansaroli. The complaint charged those named defendants with a conspiracy to defraud and violations of applicable federal securities laws in connection with plaintiffs' purchase of NSMC common stock in 1969.[8] The complaint did not include any common law counts.
On January 27, 1973, two days before this suit was filed, the Wachovia plaintiffs and the attorney-defendants entered into a letter agreement that the statute of limitations would be tolled for two years from that date as to them.[9] By its terms, however, no claims could be asserted which were then barred by any applicable provision of law.
It was not until May 28, 1975, that the Wachovia plaintiffs amended their original complaint to include White & Case and Epley as defendants. The amended complaint charges those attorneys with various securities laws violations in addition to common law fraud, breach of fiduciary duty and legal malpractice.
In addition to the motions of the attorney and accountant defendants addressed in this opinion, the Wachovia plaintiffs seek to amend the original complaint, largely to raise common law fraud claims against Peat Marwick and the other remaining original defendants. Also before the Court is a motion of the defendant Roger O. Walther, a principal executive officer of NSMC and a major participant in its operations. He seeks to amend his answer to raise the statute of limitations defense.
THE IMPLIED CAUSES OF ACTION ISSUE
In seeking dismissal of all claims asserted under § 17(a) of the 1933 Act and §§ 10(b) or 14(a) of the 1934 Act,[10] the defendants contend in substance that since certain provisions of the securities laws expressly provide private remedies for the conduct alleged here, the Wachovia plaintiffs cannot bypass the substantive and procedural limitations of those provisions by basing their claims for relief on judicially implied causes of action under the above-cited provisions. Resort to the express remedies is now time-barred and thus dismissal of the present implied claims would effectively foreclose any recovery under the federal securities laws. Plaintiffs strenuously object that their allegations encompass conduct which is not covered by the express provisions and which clearly falls within the recognized scope of implied causes of action.
*1005 The Court concludes that plaintiffs have stated a claim under § 17(a) of the 1933 Act and § 10(b) of the 1934 Act. However, even assuming an implied action would be appropriate under § 14(a) of the 1934 Act, they have failed to state a claim under that provision.
Initially, it should be noted that defendants do not contest the implication of a private remedy under all circumstances, and for good reason, since an implied right of action has been recognized repeatedly under § 10(b), see e. g., Ernst & Ernst v. Hochfelder, 425 U.S. 185, 196, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976); Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 730, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975). With less frequency and certitude, such an action has also been sanctioned under § 17(a), see e. g., Daniel v. International Brotherhood of Teamsters, 561 F.2d 1223, 1244-45 (7th Cir. 1977), cert. granted, 434 U.S. 1061, 98 S.Ct. 1232, 55 L.Ed.2d 761 (1978); Forrestal Village, Inc. v. Graham, 179 U.S.App.D.C. 225, 551 F.2d 411, 413 (1977); but see Shull v. Dain, Kalman & Quail, Inc., 561 F.2d 152, 159 (8th Cir. 1977), cert. denied, 434 U.S. 1086, 98 S.Ct. 1281, 55 L.Ed.2d 792 (1978). Rather, the defendants urge that where an express remedy covers the conduct alleged, judicial implication of a cause of action is not necessary to effectuate the goals of the securities laws. See Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 477, 97 S.Ct. 1292, 51 L.Ed.2d 480 (1977); Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 41, 97 S.Ct. 926, 51 L.Ed.2d 124 (1977). Thus, they do not appear to argue that implied actions under § 17(a) or § 10(b) are inapplicable to the conduct alleged, but only that such implied remedies are unnecessary under the facts and circumstances here presented since express remedies were available if the plaintiffs had chosen to use them.
Defendants contend that § 18(a) of the 1934 Act[11] and § 12(2) of the 1933 Act[12] provide remedies for the misstatements and omissions alleged by plaintiffs. Specifically, they assert that most, if not all, of the materially false and misleading statements are substantially contained in documents filed with the SEC and are thus subject to the remedy provided by § 18(a). Insofar as certain statements may not be contained in such filed documents, they urge that § 12(2) provides an adequate remedy.
This Court is not persuaded that these express remedies suffice to effectuate *1006 congressional intent, as indicated by the securities laws, to proscribe the type of fraudulent conduct alleged here. With limited exceptions, plaintiffs do not allege reliance upon documents filed with the SEC and, contrary to the position of defendants, such reliance is essential to recovery under § 18(a). Heit v. Weitzen, 402 F.2d 909, 916 (2d Cir. 1968), cert. denied, 395 U.S. 903, 89 S.Ct. 1740, 23 L.Ed.2d 217 (1969); Gross v. Diversified Mortgage Investors, 438 F.Supp. 190, 195 (S.D.N.Y.1977). The fact that statements similar to those alleged by plaintiffs were also contained in documents filed with the SEC is insufficient; absent reliance upon the filing of the statements with the Commission, § 18(a) is inapplicable.[13] In addition, plaintiffs have alleged materially false statements which were never contained in a document filed with the SEC and thus are clearly exempt from § 18(a) liability.
Defendants respond that the remedy for such nonfiled statements rests with § 12(2). That provision, however, contains a number of restrictions, based in large part on the fact that it reaches even negligent misstatements and omissions, and is not directed solely at the intentional fraud alleged here. It appears doubtful that Congress intended victims of intentional fraud to be limited to the negligence remedy provided by § 12(2). Moreover, there is some question whether the section applies to the present defendants since they were not "sellers" of the securities in question. See e. g., In re Equity Funding Corp. of America Securities Litigation, 416 F.Supp. 161, 181 (C.D.Cal.1976). While such a restriction is appropriate in a negligence context, it clearly is unwarranted here where the participants are charged with intentional fraud.
In short, it appears that neither § 18(a) nor § 12(2) provides the plaintiffs with adequate remedies. If the Court were to recognize defendants' solution, the plaintiffs would be relegated to state courts to pursue their claims based on common law fraud. Such a suggestion needs little discussion. The gravamen of plaintiffs' complaint is that defendants participated in a scheme to manipulate the national market for NSMC stock through the broad dissemination of materially false and misleading statements concerning NSMC. Such conduct is clearly a matter of federal, not state, concern. See 15 U.S.C. § 78b.[14]
Since this is not a case where the allegations in the complaint fall entirely within the scope of express provisions of the securities laws,[15] and since the allegations *1007 primarily concern a complex market manipulation rather than individual misstatements or omissions, see Blackie v. Barrack, 524 F.2d 891, 907 (9th Cir. 1975), cert. denied, 429 U.S. 816, 97 S.Ct. 57, 50 L.Ed.2d 75 (1976), the Court concludes that plaintiffs have stated a claim under § 10(b) of the 1934 Act and § 17(a) of the 1933 Act.[16]
A different conclusion is reached with respect to plaintiffs' asserted cause of action under § 14(a) of the 1934 Act. To support such a claim, plaintiffs must allege an injury to their corporate suffrage rights or an injury resulting from a corporate transaction whose approval was obtained by a misleading proxy statement. In re Penn Central Securities Litigation, 347 F.Supp. 1327, 1342 (E.D.Pa.1972), aff'd, 494 F.2d 528 (3rd Cir. 1974). In an attempt to meet the second part of the test, the Wachovia plaintiffs allege that the stock they purchased was authorized on the basis of the misleading NSMC proxy material concerning the Interstate transaction. The Court does not read the test so broadly. Plaintiffs' injury did not result from the authorization of the stock, but from their later purchase of it at an allegedly inflated price. To state a claim under the second part of the test, the alleged stock transaction must be part of the merger itself and not a subsequent transaction. Therefore, plaintiffs have failed to state a claim under § 14(a) and defendants' motion to dismiss claims asserted under that provision must be granted. Of course, to the extent allegations contained in these claims are also applicable to the alleged manipulative scheme, they are properly brought under § 10(b) and § 17(a). See 347 F.Supp. at 1342.
THE STATUTE OF LIMITATIONS ISSUE
A. Motion of White & Case and Epley
The District of Columbia Securities Act, the so-called "blue sky law," includes a statute of limitations which in part provides that:
No person may bring an action under this section after two years from the contract of sale. . . .[17]
Only recently our Circuit ruled that when a private action is brought under § 10(b) of the 1934 Act and § 17(a) of the 1933 Act, this two-year blue sky period is the applicable statute of limitations. Forrestal Village, Inc. v. Graham, 179 U.S.App.D.C. 225, 551 F.2d 411 (1977). Since the Wachovia plaintiffs allege violations of §§ 10(b) and 17(a), and their other claims concern securities fraud, Forrestal Village mandates application of the two-year statute of limitations.
The pending claims against the attorney-defendants were not filed until May 1975, though, by virtue of the tolling letter, it must be assumed that these claims were filed on January 27, 1973.[18] Both of these dates are more than two years after the December 17, 1969, contracts of sale. The defendants accordingly urge that the securities laws claims are untimely filed under the blue sky law and should be dismissed with prejudice. Because plaintiffs' common law claims are allegedly dependent upon the time-barred securities claims, defendants contend that the Court should not exercise pendent jurisdiction over the state law claims.
*1008 Plaintiffs argue initially that Forrestal Village should not be applied retroactively and that they are entitled to the benefits of the D.C. three-year statute of limitations for common law fraud actions.[19] Citing the criteria of Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), they allege that Forrestal Village overrules the only precedent in the District and therefore creates a new principle of law which cannot fairly be applied retroactively.
The Court, in agreement with defendants, cannot accept this argument. Indeed, White & Case point out that prior law is by no means unequivocal, consisting largely of three unreported United States District Court cases, all of which barred actions under the three-year general fraud limitations period.[20] The Forrestal Village court did not announce a new general principle of law, but "join[ed] the majority of circuits" in applying a local blue sky law statute of limitations in securities fraud cases. 551 F.2d at 413. Lastly, this Court has already applied the decision retroactively. Houlihan v. Anderson-Stokes, 434 F.Supp. 1324 (D.D.C.1977).
Having adopted the blue sky provision, the Court must next determine when the two-year period commenced to run. Plaintiffs' principal opposition to defendants' motion to dismiss is that the federal common law tolling doctrine is applicable and held the limitations period in abeyance until such time as the alleged fraud was or should have been discovered. They identify the relevant date as February 3, 1972, when the SEC filed its injunction action before this Court.[21] Only then, they contend, was it that "[t]he first hint of any participation by White & Case in the massive NSMC stock fraud surfaced. . . ."[22]
The federal tolling doctrine appears in Bailey v. Glover, where the Supreme Court announced that:
the decided weight of authority is in favor of the proposition that where the party injured by the fraud remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute does not begin to run until the fraud is discovered, though there be no special circumstances or efforts on the part of the party committing the fraud to conceal it from the knowledge of the other party.
88 U.S. (21 Wall.) 342, 348, 22 L.Ed. 636 (1875) (emphasis added). Where federal securities laws violations are alleged, as here, this time-honored doctrine has been recognized to mean that the statute of limitations cannot be said to run until a plaintiff, in the exercise of reasonable diligence, discovered or should have discovered the fraudulent activity underlying his cause of action.[23] The law is also clear that the statutory period will not await a plaintiff's leisurely discovery of the full details of the fraudulent scheme, but begins to run when plaintiff possesses sufficient information, which in the exercise of due diligence, warrants further inquiry.[24]
White & Case and Epley do not contend that the Wachovia plaintiffs had actual knowledge of their participation in the *1009 fraudulent scheme. Instead, they allege that the facts were such that plaintiffs, four large sophisticated institutional investors, should have formulated some suspicion against the law firm shortly after the private placement in 1969. Defendants label the following uncontroverted occurrences, established and known to the public in early 1970, as "code blue" alert notices of fraud:
a. The precipitous decline of NSMC stock within sixty days after the plaintiffs' purchase, from 69½ on December 17, 1969, to 26 on February 17, 1970;[25]
b. The loss, ranging from 1.2 to 1.7 million dollars, reported in early 1970 by NSMC for the quarter ended November 30, 1969;[26] and
c. News articles reporting NSMC financial difficulties in Barron's (December 12, 1969) and The Wall Street Journal (February 17, 1970).
In addition to the above, it is established that in early 1970, key officials of two plaintiffs, The Dreyfus Offshore Trust (general counsel and vice president) and First Wisconsin Trust Company (investment analyst), commenced investigation and contemplated suit.[27]
The Court agrees that these facts, coupled with the several lawsuits filed in 1970, provided a clearly marked trail which, if pursued with diligence, would have led the plaintiffs to the fraud of the NSMC officials and to the attorney-defendants and their involvement in the stock sale. A statute of limitations does not become operative when a plaintiff discovers all aspects of a fraudulent scheme, but rather from the time when a clue to the facts, if pursued diligently, would lead to an uncovering of the general fraudulent scheme. Berry Petroleum Co. v. Adams & Peck, 518 F.2d 402, 410 (2d Cir. 1975); Klein v. Bower, 421 F.2d 338, 343 (2d Cir. 1970).
This situation is virtually indistinguishable from that in the recent § 10(b) case of Robertson v. Seidman & Seidman, [Current] Fed.Sec.L.Rep. (CCH) ¶ 96,420 (S.D.N.Y. May 3, 1978). In that proceeding an investor asserted that the defendant-accountants certified false and misleading financial statements in a stock sale. The district court granted summary judgment and dismissed the complaint as time-barred, holding that the investor should have discovered the fraud more than two years before suit was filed. The investor relied upon the federal tolling doctrine, claiming ignorance of the accountants' role until a later time when the SEC announced proceedings against them. The court found that the investor should have discovered the fraud far earlier, because the evidence showed that in the intervening period: the stock dropped markedly in value; he had suspected fraud and had discussed it with his broker; and was aware of a class action suit arising out of the same stock offering, charging price inflation through dissemination *1010 of false and misleading information. While that class complaint did not specifically name the accountants, the court found that "the plaintiff should at least have been on notice that further inquiry into the fraudulent practices surrounding . . . the public offering would be prudent," Robertson at 93,518, and there were public facts available indicating the accountants' role.
There is no difference between Robertson and this action except for the involvement of accountants rather than attorneys. That of course is of no consequence. The Wachovia plaintiffs knew that White & Case had drafted the Stock Purchase Agreement as well as the legal opinion to secure their purchase. Their blanket claim that before the SEC injunctive action was filed in 1972 they had no reason to suspect this "reputable and prestigious" law firm of any unlawful role in a stock sale is rejected. As responsible money managers and investors, they had a duty to pursue every aspect of the transaction, including the role of the legal counsel in such a suspect sale. Their experience and their access to highly specialized personnel and consultants imposed an obligation of reasonable diligence commensurate with their sophistication and standing in the financial community.
Whatever is notice enough to excite attention and put the party on his guard and call for inquiry, is notice of everything to which such inquiry might have led. When a person has sufficient information to lead him to a fact, he shall be deemed conversant of it . . .. The presumption is that if the party affected by any fraudulent transaction or management might, with ordinary care and attention, have seasonably detected it, he seasonably had actual knowledge of it.
Wood v. Carpenter, 101 U.S. 135, 141, 25 L.Ed. 807 (1879).
Plaintiffs argue that the question as to when they had knowledge of White & Case's fraud and the issue of reasonable care as grounds for tolling the statute are disputed factual issues and cannot be disposed of without a trial. The Court disagrees. See Jones v. Rogers Memorial Hospital, 143 U.S.App.D.C. 51, 53, 442 F.2d 773, 775 n. 2 (1971). The National Student Marketing matters were consolidated for pretrial discovery and have been pending for more than five years. All parties in this proceeding have conducted expensive, time consuming and exhaustive discovery. The papers, exhibits and argument on these motions have been especially thorough and, in this Court's opinion, if there are any undisclosed facts at this stage, their relevancy and materiality are minimal.
Taken as a whole, the record is more than sufficient to show that plaintiffs should have investigated the attorney-defendants' potential role in the suspicious sale and should have known of the fraud within the two-year statute of limitations, running immediately after the sale. Plaintiffs' complaint as to White & Case and Epley is untimely filed and the motion of these defendants to dismiss must be granted. With dismissal of the federal claims at this time, the pendent state common law claims fall as well. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Robertson v. Seidman & Seidman, supra at 93,519; Hupp v. Gray, 500 F.2d 993, 997 (7th Cir. 1974).
B. Motion of Peat Marwick, Natelli and Scansaroli.
In seeking dismissal, the accountant-defendants adopt in large measure the White & Case and Epley argument that Forrestal Village controls and that, in this private action under §§ 17(a) and 10(b) of the federal securities laws, the applicable statute of limitations is the two-year provision of the District of Columbia blue sky law. To counter the federal tolling doctrine urged by the Wachovia investors, they point to the several private actions filed in the New York federal courts, particularly the Lipsig class action of May 15, 1970, the first to name Peat Marwick as a defendant. The accountant-defendants also argue that those lawsuits, together with other events and developments widely publicized in the financial community, were yellow caution lights, all ignored by Wachovia. Since the *1011 complaint under consideration was not brought until January 29, 1973, the federal tolling doctrine does not protect the plaintiffs.
The plaintiffs on the other hand allege and urge that filing of the several New York class actions, of which they were asserted members, tolled the running of the limitations period. The Lipsig, Garber and Natale complaints were filed on behalf of NSMC shareholders who made their stock purchases between April 1968 and February 1972, and did indeed include plaintiffs as purported members. These actions were consolidated in April 1972 and later transferred by the Judicial Panel on Multidistrict Litigation to this Court for pretrial proceedings. The New York actions were certified as class actions and, during October 1973, notice of class action determination was sent to the various class members including the Wachovia plaintiffs.
In January 1973, however, the Wachovia plaintiffs had filed the present complaint naming Peat Marwick, Natelli and Scansaroli among the defendants. In justification for their course of action they asserted that their status as institutional purchasers made their complaint dissimilar to the earlier class actions. On November 29, 1973, they "opted out" to pursue their independent claims.
Peat Marwick argues that the Wachovia plaintiffs should have filed an action within two years of the 1969 purchase and that the January 1973 complaint is therefore time-barred. The accountant-defendants contend that the statute of limitations was not tolled by the various class actions, because by opting out, the plaintiffs forfeited any benefits accruing to the class members. As members in the earlier filed class action proceedings the Wachovia plaintiffs could not exclude themselves from the class and then file lawsuits which otherwise would be time-barred.
The class action tolling doctrine is best illustrated in American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), where the Supreme Court held that filing of a class action complaint tolls the running of the statute of limitations for all purported class members who timely seek intervention after the lower court has found the asserted class too small to certify. According to the Court, a contrary rule allowing participation only by those potential class members who had earlier filed motions to intervene would deprive class actions of the efficiency and economy of litigation which they are designed to promote. This rule is not inconsistent with the functional operation of a statute of limitations, since the policies of ensuring fairness to defendants and of barring plaintiffs who have slept on their rights are satisfied when a named plaintiff "notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment." 414 U.S. at 554-55, 94 S.Ct. at 767.
In light of these policy considerations, this Circuit has called for a "broad, functional" reading of American Pipe.[28]McCarthy v. Kleindienst, 562 F.2d 1269, 1274 (D.C.Cir. 1977). The court there extended the American Pipe tolling doctrine to a case where a motion for class certification had been denied not because of size but on grounds of untimeliness and nonpredominance of common questions. The court found that a motion to intervene brought by 266 asserted class members four years after the events at issue, but one day after denial of class certification, was timely, because there was no evidence of manipulative behavior by the plaintiffs and the defendants had received "sufficient notice of the contours of potential claims to toll the running of the statute of limitations." 562 F.2d at 1275. See also United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977).
*1012 The American Pipe line of cases concerns the propriety of intervention following denial of class certification. Here, there has been certification of a class which includes the Wachovia plaintiffs. Before that certification decision, plaintiffs filed a separate action. Following certification, they opted out of the class rather than pursuing class relief. The broad issue here, therefore, is whether the policy considerations of American Pipe operate to toll the limitations period for all purported class members until certification is decided.
The Court finds that, under the circumstances presented here, the class action tolling doctrine does not protect the Wachovia complaint brought against the accountant-defendants. Preliminarily, the doctrine cannot operate against defendants Natelli and Scansaroli. Since they were not named in the original New York actions, they cannot fairly be charged with the notice requisite for class action tolling. Notice considerations also mean that the consolidated amended complaint naming them, filed on June 2, 1972, does not relate back for tolling purposes. Arneil v. Ramsey, 550 F.2d 774, 782 n. 10 (2d Cir. 1977).[29]
Insofar as Peat Marwick is concerned, plaintiffs base their opposition to the motion largely on a footnote in a Supreme Court class action decision following American Pipe. In Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974), a case concerning notice to potential class members, the Court referred to American Pipe as establishing that
commencement of a class action tolls the applicable statute of limitations as to all members of the class.
417 U.S. at 176 n. 13, 94 S.Ct. at 2152. While at least one court has found that this dictum "appears to have . . . eliminated" the general tolling question,[30] this Court is not so persuaded. There is precedent supporting an interpretation opposite to plaintiffs' in the Second Circuit. In Arneil v. Ramsey, supra, that court refused to toll the running of the statute of limitations for a separate action brought by two plaintiffs who were not asserted members of a class action as originally filed. See also Stull v. Bayard, 561 F.2d 429, 433 (2d Cir. 1977), cert. denied, 434 U.S. 1035, 98 S.Ct. 769, 54 L.Ed.2d 783 (1978).
For the Court to find otherwise, that the class action filings tolled the limitations period for plaintiffs' separate suit, would sanction duplicative suits and violate the policies behind American Pipe. Even assuming that this action and the original class actions raise identical issues, the filing of a class action should not cause Peat Marwick to be responsible for meeting separate independent actions by class members after their statute of limitations has run. If different issues are raised, there is even less reason to credit Peat Marwick with notice.
The Court also finds it noteworthy that the plaintiffs filed this action before class certification had been decided. If, following certification, they had determined that the class action strategy would not protect their rights and had then promptly filed a separate action, their arguments might be more persuasive. By filing their action before a certification decision, opting out of the class after certification, and then claiming the benefits of tolling, they appear to have been manipulating the tolling doctrine and other class action procedures. While the Court is aware that American Pipe had not been decided as of January 29, 1973, when plaintiffs filed this action, their delay is not justifiable in light of the traditional purposes of a statute of limitations.
*1013 Since the Wachovia plaintiffs are not protected by the class action tolling doctrine, their complaint against Peat Marwick was not timely filed and must be dismissed. In light of this disposition, it is not necessary for the Court to address Peat Marwick's contention that the instant action does not involve the same issues raised in the New York actions.
OTHER MOTIONS
a. In light of the Court's dismissal of the Wachovia plaintiffs' complaint against the accountant-defendants, the motion of the plaintiffs to amend the complaint to add common law fraud claims against Peat Marwick, Natelli and Scansaroli is denied. The Court would not exercise pendent jurisdiction over such state claims if the amendment were allowed. See p. 1010 supra.
The motion to amend will also be denied insofar as plaintiffs seek to amend the caption to reflect the parties who have not settled, given that various cross-claims are pending and such a technical change is not necessary. The motion will be granted, at this time, only insofar as plaintiffs seek to delete references to § 13(a) of the 1934 Act under the Count I heading.
b. The Court finds that defendant Walther's motion to amend his answer to raise a statute of limitations defense is appropriate. In light of the pleadings that have been filed on this issue, the plaintiffs will not be prejudiced by the amendment.
c. The motion of the Wachovia plaintiffs to compel White & Case and Epley to produce documents, memoranda allegedly prepared for counsel, does not bear on the factual issues involved in these motions and will be denied as moot.
ORDERED accordingly.
NOTES
[1] This is one of several private lawsuits growing out of the National Student Marketing Corporation stock fraud scheme. M.D.L. No. 105. The plaintiffs in this proceeding are Wachovia Bank and Trust Co., First Wisconsin Trust Co., The Dreyfus Offshore Trust, and the National Fire Insurance Company of Hartford. See note 7 infra.
[2] 15 U.S.C. § 77q(a).
[3] 15 U.S.C. §§ 78j(b), 78m(a) and 78n(a).
[4] The defendants also include Anthony M. Natelli and Joseph Scansaroli, members of Peat Marwick.
[5] The low bid price fell from 69½ on December 17, 1969, to 26 on February 17, 1970 (after giving effect to a two-for-one stock split). National Quotation Bureau Report, Dec. 1, 1976, at 16, 18.
[6] Marion J. Epley, III, was first named as a defendant in the Consolidated, Amended and Supplemental Complaint, Garber v. Randell, No. 70-835 (S.D.N.Y. June 2, 1972).
Taken together, the New York class action filings were complaints brought on behalf of all purchasers of NSMC stock who made their purchases between April 1, 1968, and February 17, 1972, and therefore included the Wachovia group as "asserted" class members. On November 29, 1972, following formal class certification and notice, the Wachovia plaintiffs officially "opted out" of the class.
[7] SEC v. National Student Marketing Corp., 457 F.Supp. 682 (D.D.C.1978).
[8] The plaintiffs have since settled and dismissed their claims against NSMC and various named defendants.
[9] The tolling letter, dated January 27, 1973, provides that:
White & Case and Mr. Epley are agreeable to the tolling of the statute of limitations for a period of two years from the date of this letter as to claims of [the plaintiffs] against White & Case and Mr. Epley arising out of the purchase of NSMC securities . . . in December, 1969. . . .
. . . . .
In any such litigation or suit brought by [the plaintiffs] after termination or expiration of the tolling period, if White & Case and Mr. Epley plead the statute of limitations as to any claims by [the plaintiffs], it is further understood that any period during which the statute of limitations is tolled pursuant to this letter shall be excluded from the computation of the running of the limitation period. This letter shall not apply to and shall not revive any claims which [the plaintiffs], as of the date of this letter, are already barred from asserting by any applicable provisions of law.
[10] Plaintiffs' claim under § 13(a) of the 1934 Act has been abandoned.
[11] Section 18(a), 15 U.S.C. § 78r, provides:
Any person who shall make or cause to be made any statement in any application, report, or document filed pursuant to this chapter or any rule or regulation thereunder or any undertaking contained in a registration statement as provided in subsection (d) of section 78o of this title, which statement was at the time and in the light of the circumstances under which it was made false or misleading with respect to any material fact, shall be liable to any person (not knowing that such statement was false or misleading) who, in reliance upon such statement, shall have purchased or sold a security at a price which was affected by such statement, for damages caused by such reliance, unless the person sued shall prove that he acted in good faith and had no knowledge that such statement was false or misleading. A person seeking to enforce such liability may sue at law or in equity in any court of competent jurisdiction. In any such suit the court may, in its discretion, require an undertaking for the payment of the costs of such suit, and assess reasonable costs, including reasonable attorneys' fees, against either party litigant.
[12] Section 12(2), 15 U.S.C. § 77l, provides:
Any person who
. . . . .
(2) offers or sells a security . . . by the use of any means or instruments of transportation or communication in interstate commerce or of the mails, by means of a prospectus or oral communication, which includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading (the purchaser not knowing of such untruth or omission), and who shall not sustain the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of such untruth or omission, shall be liable to the person purchasing such security from him, who may sue either at law or in equity in any court of competent jurisdiction, to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if he no longer owns the security.
[13] It is unclear whether reliance must be on the actual document filed with the SEC, or whether reliance on a copy of such document would suffice. The latter seems to be the more reasonable position since it is the knowledge that it has been filed with the Commission that justifies reliance on the document.
[14] Section 78b, 15 U.S.C., provides:
transactions in securities as commonly conducted upon securities exchanges and over-the-counter markets are affected with a national public interest which makes it necessary to provide for regulation . . . in order to protect interstate commerce, the national credit, . . . and to insure the maintenance of fair and honest markets in such transactions:
. . . . .
(3) Frequently the prices of securities on such exchanges and markets are susceptible to manipulation and control, and the dissemination of such prices gives rise to excessive speculation . . ..
[15] An implied cause of action should be available even where the alleged misconduct also falls completely within the confines of an express remedy. "The fact that there may well be some overlap is neither unusual nor unfortunate," SEC v. National Securities, Inc., 393 U.S. 453, 468, 89 S.Ct. 564, 573, 21 L.Ed.2d 668 (1969), especially since recent developments have properly restricted such implied remedies to the scope authorized by specific statutory provisions. See TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 96 S.Ct. 2126, 48 L.Ed.2d 757 (1976) (materiality); Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976) (scienter); Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975) (purchaser/seller). Moreover, to conclude that express and implied causes of action should not overlap would require a case-by-case determination of the applicability of implied remedies under the particular factual situation presented. Such a procedure, especially in a pretrial stage when the factual bases for the various claims have not been developed, would significantly burden an already complex area of the law.
But see Kulchock v. Government Employees Insurance Co., [Transfer Binder '77-'78 Decisions] Fed.Sec.L.Rep. (CCH) ¶ 96,002 (D.D.C. 1977) (complaint dismissed on ground that there is no implied cause of action for misstatements in documents filed with the SEC because § 18 of the 1934 Act provides express remedy for same); appeal of this dismissal Order withdrawn in light of final judgment and settlement, C.A. No. 76-206 (D.D.C. July 28, 1978).
[16] Since defendants' motions are primarily directed to the distinction between express and implied remedies, the Court need not consider the relationship between the two implied causes of action.
Defendants make other minor arguments in support of their motions to dismiss, none of which has merit.
[17] D.C.Code § 2-2413(e) (1973).
[18] See p. 1004 and note 9.
[19] D.C. Code § 12-301(8) (1973).
[20] See Reply by Defendants White & Case and Marion J. Epley, III, to Plaintiffs' Memorandum in Opposition to Motion to Dismiss the Complaint, August 26, 1977, at 18-22.
[21] See note 7 supra.
[22] Plaintiffs' Memorandum in Opposition to Motion by Defendants White & Case and Marion J. Epley, III, July 29, 1977, at 2.
[23] Cook v. Avien, Inc., 573 F.2d 685, 694-95 (1st Cir. 1978); Arneil v. Ramsey, 550 F.2d 774, 780-01 (2d Cir. 1977); Newman v. Prior, 518 F.2d 97, 100 (4th Cir. 1975); Tomera v. Galt, 511 F.2d 504, 509 (7th Cir. 1975); Hudak v. Economic Research Analysts, Inc., 499 F.2d 996, 1001-02 (5th Cir. 1974), cert. denied, 419 U.S. 1122, 95 S.Ct. 805, 42 L.Ed.2d 821 (1975); Vanderboom v. Sexton, 422 F.2d 1233, 1240 (8th Cir. 1970), cert. denied, 400 U.S. 852, 91 S.Ct. 47, 27 L.Ed.2d 90 (1970); Janigan v. Taylor, 344 F.2d 781, 784 (1st Cir. 1965), cert. denied, 382 U.S. 879, 86 S.Ct. 163, 15 L.Ed.2d 120 (1965); Long v. Abbott Mortgage Corp., 459 F.Supp. 108 (D.Conn.1978).
[24] Cook v. Avien, Inc., supra note 23, at 696; Klein v. Bower, 421 F.2d 338, 343 (2d Cir. 1970).
[25] See p. 2 and note 5 supra and affidavit of Thomas D. Nurmi, filed October 26, 1977.
See also Hupp v. Gray, 500 F.2d 993, 996-97 (7th Cir. 1974) (dramatic fall in market price from $47 per share to $17.50 per share, rather than the $75 predicted to the purchaser, sufficient to put wholly unsophisticated investor on notice that "something was amiss"); Robertson v. Seidman & Seidman, [Current] Fed.Sec. L.Rep. (CCH) ¶ 96,420 (S.D.N.Y. May 3, 1978) (85% decline in value of stock over less than a year, among other signs, should have led plaintiff to suspect fraud). See also Cook v. Avien, Inc., supra note 23, at 696.
[26] This loss was reported in the national press, including the February 17, 1970, Wall Street Journal.
[27] Lawrence M. Greene, general counsel and vice president of Dreyfus, began investigating in January 1970. When questioned concerning the Barron's article of December 12, 1969, his deposition at p. 118 reads:
Q Is it your understanding that upon your review of the Barron's article in January of 1970 that any subsequent investigations you made with respect to National Student Marketing were in contemplation of litigation?
A I was greatly concerned when I read the article . . ., and, in fact, I was rather upset about it and I therefore began to investigate the situation more deeply. Whatever I did following that in connection with looking into the facts is all part and parcel of my turning the matter over to our counsel for litigation. (emphasis added).
Robert G. Steffel, an investment analyst, testified that First Wisconsin Trust was contemplating suit in late 1970 or early 1971.
[28] See also United Airlines, Inc. v. McDonald, 432 U.S. 385, 97 S.Ct. 2464, 53 L.Ed.2d 423 (1977) (potential class members could intervene after final judgment for the purpose of appealing the denial of class certification, even though the limitations period had run).
[29] The amendment came more than two years after the Lipsig action naming Peat Marwick. Therefore, even if the latter suit should have put plaintiffs on notice that individual accountants at Peat Marwick were involved in the fraud, the federal tolling doctrine cannot be added to the class action tolling doctrine to protect the suit against Natelli and Scansaroli.
[30] Agostine v. Sidcon Corp., 69 F.R.D. 437, 448 n. 13 (E.D.Pa.1975) (Truth in Lending case). See also McAlpine v. AAMCO Automatic Transmissions, Inc., 1977-1 Trade Cases ¶ 61,359 (E.D.Mich.1977) (antitrust case court found dicta "highly persuasive" and tolled the statute of limitations for damage purposes). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1376692/ | 22 S.W.3d 747 (2000)
Melvin DUBINSKY, et al., Respondents,
v.
UNITED STATES ELEVATOR CORP., Appellant.
No. ED 76502.
Missouri Court of Appeals, Eastern District, Division One.
July 18, 2000.
*749 Mark A. Smith, Joseph H. Guffey, Husch & Eppenberger, LLC, St. Louis, for appellant.
Gregory H. Wolk, Berg Borgmann Wilson & Wolk, LLC, St. Louis, for respondent.
PAUL J. SIMON, Judge.
Defendant Thyssen Dover Elevator Corporation, formerly known as United States Elevator Corporation, appeals from a judgment entered upon a jury verdict in favor of plaintiffs, Melvin Dubinsky, Daniel Siegal, Alan Pervil and Henry Dubinsky, Trustee of Trust under Will of Harold Dubinski, d/b/a Chemical Building Partnership.
On appeal, defendant contends that the trial court erred in denying its motions for: (1) directed verdict and/or judgment notwithstanding the verdict (JNOV), because plaintiffs failed to establish damages, in that they admittedly suffered no diminution in value; (2) new trial because the trial court improperly gave MAI 4.01 as the damages jury instruction, in that MAI 4.02 is the proper instruction where only property damage is at issue; (3) new trial because the jury verdict was excessive in that plaintiffs were improperly awarded damages based on a faulty jury instruction and based on the cost of replacing three entire elevator hoist machines. We affirm in part, reverse in part and remand for a new trial on damages only.
On appeal in a jury-tried case, we review the evidence and reasonable inferences therefrom in a light most favorable to the jury's verdict, disregarding evidence to the contrary. Seitz v. Lemay Bank and Trust Co., 959 S.W.2d 458, 461 (Mo. banc 1998). In reviewing the trial court's denial of motions for directed verdict and JNOV, we determine whether the plaintiff has made a submissible case. Id. We will reverse a judgment based on a jury verdict for insufficient evidence only where there is a complete absence of probative fact to support the jury's conclusion; thus where reasonable minds can differ on the question before the jury, we do not disturb the jury's verdict. Id.
The record, viewed in the light most favorable to the jury verdict, reveals that the Chemical Building is located on the northeast corner of Eighth and Olive. The building was built in 1896, with an addition built in 1898 and is on the National Register of Historic Places. Plaintiffs purchased the building in 1974 and their offices are located on the 16th floor.
In 1986, they decided to renovate the building and replace the six original manually operated elevators with three new ones. Plaintiffs entered into a five year contract with defendant, whereby defendant was to replace the original six elevators with three new ones and to maintain, repair and replace, as warranted, in exchange for payments of $1075.00 per month. Defendant had the right to adjust the contract price each year. The new elevators contained hoist machines manufactured by Kaneko, a Japanese company with no offices or phone numbers in the United States.
The contract was performed for the term and renewed again for a five year term up to and including June 4, 1996. In 1996, the contract price to maintain the elevators had escalated to $1700.00 per month and plaintiffs decided to determine whether other elevator maintenance companies could maintain the elevators at lower cost. Before giving notice of termination *750 of the contract, plaintiffs contracted with Joseph Stabler, an elevator consultant, to determine the condition of the elevators. Stabler conducted an inspection and reported to plaintiffs that the ring gears on all three elevators were excessively "pitted."
"Pitting" means that the surface of the gear develops small cavities or "pock marks." A ring gear is a circular bronze gear that intermeshes with the worm gear. The ring gear, worm gear, along with the hoist motor, gear case, drive sheave, bed plate, drive shaft, brake pulley and lubricant reservoir make up the hoist machine, which raises and lowers the elevator.
Plaintiffs and defendant discussed Stabler's report and the condition of the elevators and defendant agreed to perform certain repairs. However, the parties disagreed about the condition of the ring gears. After performing an independent inspection of the ring gears, Thomas Peterson, defendant's vice president, wrote a letter to plaintiffs, dated May 23, 1996, explaining that although it had located signs of minor isolated pitting in some of the ring gears, defendant found no evidence of severe pitting and that "useful life still remains on the ring gear and related components. Defendant refused to replace any of the ring or worm gears, and thereafter plaintiffs cancelled the contract in 1996, with the last day for which defendant was responsible for maintaining the elevators as June 4, 1996. Plaintiffs retained Archway Elevator, an elevator maintenance company, to maintain the elevators, however this contract excluded repair of the ring gear.
In April 1998, nearly 2 years after defendant's contract to maintain the elevators had been terminated, plaintiffs replaced the entire hoist machine in Elevator No. 1. As of the date of trial, April 1999, plaintiffs had not replaced any of the components on Elevators Nos. 2 and 3.
Plaintiffs filed a two count petition in the Circuit Court for the City of St. Louis, Missouri in November 1996, seeking damages in the amount of $60,480.00 and costs, attorneys fees and "further relief as is just in the premises." In their first count, plaintiffs alleged that Defendant failed and neglected to properly inspect, maintain, repair and replace the various components of the three elevators in the Chemical Building, allowing the components to become worn, defective and dangerous, breaching an agreement between the parties in which defendant agreed to maintain, repair and replace the elevator system. In the second count, they alleged that defendant breached an implied warranty that the work to be performed under the agreement would be performed in a skillful and workmanlike manner, free from defects in materials and workmanship.
At trial, Alan Pervil, one of the individual plaintiffs and owners of the building, testified that he was advised in 1996 by Archway Elevator that they could continue to use the elevators at that time because Archway Elevator was taking extra special precautions, such as observing the elevator four to five times per month, rather than the usual once or twice a month servicing. Elevator No. 1 was replaced in 1998 based on the advice of Archway Elevator that the elevator was dangerous and required immediate replacement. Elevators Nos. 2 and 3 remained in place but with the same precautions. Elevator No. 3 would likely be the next to be replaced because of its level of deterioration. He testified that the cost of replacing Elevator No. 1 was $18,383.00 and estimated, based on the time value of money, that the cost of replacing elevator No. 3, would be about $23,000 to $24,000 and elevator 2, which was smaller, would be about $21,000.
Jerry Follen of Archway Elevator testified on behalf of plaintiff that he was engaged in maintenance of Elevator No. 1 from 1996 to 1998, when he advised that the hoist machine needed to be replaced because of the condition of the ring gear. It was his opinion that it would be more economical to replace the entire hoist machine *751 than to try to replace the ring gear. He was unfamiliar with Kaneko and recommended that the machine be replaced by Hollister-Whitney, a company with which he had previously conducted business. Archway Elevator replaced the ring gear in Elevator No. 1, charging plaintiff $18,383.00, with $8,500.50 representing labor costs and $9,882.50 for materials. Elevators Nos. 2 and 3 would have to be replaced in the same manner when they were ready for replacement.
Defendant's witness Peterson testified that he had no experience with Kaneko elevators before joining defendant and that of the approximately 200 elevator service contracts he oversaw in St. Louis while employed with defendant, none of the other elevators serviced by defendant were Kaneko elevators. Further, he knew nothing of the company. He testified that the ring and worm gears could have been replaced without replacing the entire hoist machine at about a cost of $2000 to $3000 dollars per elevator.
Defendant moved for a directed verdict at the close of the plaintiff's evidence and again at the close of all of the evidence alleging that plaintiffs failed to establish the essential element of damages in that they suffered no diminution of value as was the proper measure of damages. Both motions were denied.
At the instruction conference, defendant offered three alternate instructions of damages based on MAI 4.02, discussing the diminution in value. The first refers to the diminution in value of the chemical building, the second of the elevator hoist machines and the third of the value of the ring gear. Plaintiffs offered a damage instruction based on MAI 4.01. The trial court rejected defendant's instructions and used MAI 4.01. The jury returned a verdict for the plaintiffs for damages in the amount of $60,259. The judgment also awarded plaintiffs prejudgment interest in the amount of $1,516.59.
Defendant moved for JNOV or in the alternative a new trial, alleging that: (1) plaintiff had failed to establish diminution of value as defendant had contended in its motions for directed verdict; (2) the trial court erred in giving MAI 4.01 as the damage instruction, and (3) the jury verdict was excessive because it awarded plaintiffs the full amount for replacing the entire hoist machine in all three elevators, when plaintiff witnesses admitted that the problems were with the ring gears. The motions were denied.
On appeal, defendant's points are directed to the damages and do not address its contractual liability. In its first point on appeal, defendant contends that the trial court erred in refusing to grant its motions for directed verdict and JNOV because plaintiffs failed to establish damages in that they admittedly suffered no diminution of value.
Our courts have established the rule, and have followed it for many years, that the measure of damages to real property is the difference between the market value of the property immediately before and immediately after the damage is sustained. Gulf, M. & O.R. Co. v. Smith-Brennan Pile Co., 223 S.W.2d 100, 103-104 (Mo.App.1949). In cases, where the amount of damage is insignificant, as compared to the value of the property as a whole and involves only a small part thereof, there is an exception to the general rule. Id. To qualify for the cost of repair exception, plaintiffs must present evidence showing that the cost of repair is insignificant to the total market value of the building. Id.
The particular facts and circumstances of each case dictate which measure of damages is appropriate. McLane v. Wal-Mart Stores, Inc. 10 S.W.3d 602 (Mo. App. E.D.2000). However, the general rule in calculating damages for a breach of contract is that the non-breaching party is entitled to the cost of repairing or replacing the defective work. Ken Cucchi Construction, Inc., v. O'Keefe, 973 S.W.2d 520, 527 (Mo.App. E.D.1998). However, if the *752 cost of repair or replacement would constitute an economic waste, then the proper measure of damages is the diminished value of the property because of the defective work. Id.
The repair or replacement of the defective property is economic waste if the cost of repair or replacement is disproportionate to the diminution in the value of the property. Id. Once the landowner presents evidence on the cost of repair or replacement, the contractor has the burden of presenting evidence that the cost of repairing or replacing the property is disproportionate to the diminution in value of the property and if the contractor fails to present any evidence on the diminution of value of the property it fails to meet its burden of production. Id.
The rationale for the general rule in favor of cost of repairs recovery is based on the purpose of damages in a contract action, which is to restore a plaintiff to the position plaintiff would have been in if the contract had not been breached, rather than to place plaintiff in a better position. McLane 10 S.W.3d at 605.
Although the cases cited above involve defective construction and a breach of a lease covenant to repair, and this case involves breach of an agreement to maintain, the rationale for applying the cost of repair rule over the diminution in value rule is applicable. Here, defendant contracted to maintain, repair and replace the elevators as necessary in fulfilling the contract but failed to perform its contractual obligations. Generally in breach of contract cases, our goal is to award plaintiffs a sum that would put them in the same position as if defendant had fulfilled his obligations under the contract to repair or replace the elevators and an award of the cost of repairs would put plaintiffs in the position they would have been in had the defendant performed under the contract. Thus, the appropriate measure is the cost of repair. The trial court did not err in refusing to grant defendant's motions for directed verdict and JNOV. Point denied.
In its second point, defendant contends that the trial court erred in denying its motion for new trial, because the trial court improperly instructed the jury as to damages using MAI 4.01, while MAI 4.02 is the correct instruction where only property damage is at issue. MAI 4.01 Damages-Personal and Property, provides:
If you find in favor of plaintiff, then you must award plaintiff such sum as you believe will fairly and justly compensate plaintiff for any damages you believe he sustained [and is reasonably certain to sustain in the future] as a direct result of the occurrence mentioned in the evidence.
MAI 4.02 Damages-Property Only, provides,
If you find in favor of plaintiff, then you must award plaintiff such sum as you may find from the evidence to be the difference between the fair market value (here identify property) before it was damaged and its fair market value after it was damaged, [plus such sum as you may find from the evidence will fairly and justly compensate plaintiff for the loss of use thereof during the time reasonably necessary for the property to be repaired or replaced.] (Emphasis in the original.)
The Notes on Use for MAI 4.02 contain a modification for those instances where cost of repair is the appropriate measure of damages, providing:
If you find in favor of plaintiff, then you must award plaintiff such sum as you may find from the evidence to be the reasonable cost of repair of any damage to (here identify property) [plus such sum as you may find from the evidence will fairly and justly compensate plaintiff for the loss of use thereof during the time reasonably necessary for the property to be repaired or replaced.] (Emphasis in the original.)
*753 Rule 70.01(b) states that when MAI is applicable in a particular case, such instruction shall be given to the exclusion of any other on the same subject. It has been the policy of the courts to require strict compliance with the requirements of MAI. Sands v. R.G. McKelvey Bldg. Co., 571 S.W.2d 726, 730 (Mo.App. E.D.1978). In general, when an MAI is applicable, its use is mandatory and any deviation from or unnecessary modification of the applicable MAI is "presumptively prejudicial." Id.
In a cases such as this, where the damages sought are for damage to property only, the proper jury instruction for the submission of the question of damages is MAI 4.02. Id. The highlighted titles of the two MAI's indicate that 4.01 is to be used when personal or both personal and property damages are claimed and 4.02 is to be used in cases of property damage only. Id. Further, the Notes on Use to 4.02 state that "This instruction should be used in cases involving property damage only." Id. The Notes on Use are to be "religiously followed". Id.
Even in cases such as this one where plaintiffs contend that there is no prejudice because the damages awarded were the same as they would have been had the proper instruction been given, we have nonetheless granted a new trial, finding that the aim and purpose of MAI would not be served if the court is made to search the record and in some way speculate whether the jury verdict was thereby affected and plaintiff prejudiced. Id, at 731. Plaintiffs has not conclusively proved lack of prejudice, therefore we remand the case for a new trial on damages only, using MAI 4.02.
In its final point, defendant contends that the trial court erred in denying its motion for new trial because the jury verdict was excessive in that plaintiff was improperly awarded damages based on a faulty jury instruction and based on the cost of replacing three entire elevator hoist machines. In light of our resolution of the second point and remand of the case for a new trial on damages only, we need not address this point.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART AND REMANED WITH DIRECTIONS.
GARY M. GAERTNER, P.J. and JAMES R. DOWD, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1376698/ | 167 Cal.App.2d 567 (1959)
E. A. TALIAFERRO, Appellant,
v.
MARGARET M. RIDDLE et al., Defendants; VALENTINE K. HARTMAN et al., Respondents.
Civ. No. 17907.
California Court of Appeals. First Dist., Div. One.
Feb. 4, 1959.
E. A. Taliaferro, in pro. per., for Appellant.
Royal E. Handlos for Respondents.
WOOD (Fred B.), J.
Plaintiff appeals from an order of April 1, 1957, which quashed service of an alias summons and amended complaint upon defendants Valentine K. and Elsie M. Hartman. These defendants had been served on March 9 and March 28, 1957, pursuant to an order of June 18, 1954, which directed the joining of the Hartmans as necessary parties defendant.
The notice of motion specified two grounds only: (1) On June 14, 1954, an order was made dismissing this action as to the Hartmans, and (2) they were not served within three years after the commencement of the action.
Neither of these grounds furnishes legal support for the order appealed from. *569
[1] The dismissal of June 14, 1954, was made pursuant to the mandate of section 581a of the Code of Civil Procedure which requires service of summons within three years after the commencement of the action. [fn. *] The original complaint was filed on June 21, 1950. The Hartmans were served in May of 1954. That order of dismissal decided nothing on the merits and was not res judicata on the question whether the Hartmans are necessary parties. (Gonsalves v. Bank of America, 16 Cal.2d 169, 172-173 [105 P.2d 118].) It had the procedural effect of making them strangers to the action, so that when later they were ordered joined and were named as defendants in the amended complaint filed pursuant to that order, they came in as new parties and the action commenced anew as to them.
[2] Section 581a does not prevent the bringing of a new action against a dismissed defendant by filing a new complaint against him. We see no reason why a plaintiff can not do the same, in legal effect, by suitably amending his complaint in the original action upon obtaining leave of court therefor. The reason for such a rule is especially cogent when, as here, the court directed that the new parties be joined as "necessary" parties. [3] The provisions and purposes of section 389 of the Code of Civil Procedure, which sanctions and in some cases requires the bringing in of new parties, would frequently be completely thwarted if the one-year and the three-year limitation periods of section 581a were to commence on the day of the filing of the original complaint when a new party is brought in.
[4] It is already established that for the purpose of computing the running of a statute of limitations when a new party is brought into an action, the action commences as to him when an appropriate amended or supplemental complaint is filed. (Jackson v. Lacy, 37 Cal.App.2d 551, 558 [100 P.2d *570 313]; Jeffers v. Cook, 58 Cal. 147, 150 (supplemental complaint); Spaulding v. Howard, 121 Cal. 194, 198 [53 P. 563] (supplemental complaint, but cause of action had accrued before filing of the original complaint); John Bollman Co. v. S. Bachman & Co., 16 Cal.App. 589, 591 [117 P. 690, 122 P. 835] (amended complaint).) The same principle applies with equal logic to the computation of time "after the commencement of ... [the] action" under section 581a when a new party is brought in.
It appears that the amended complaint for joinder of the Hartmans was filed June 24, 1954. That marks the date of commencement of the action anew as to the Hartmans. It follows that service of the alias summons and amended complaint in March of 1957 was within three years of the second commencement of the action as to them.
Accordingly, we hold that neither of the grounds specified in the notice of motion to quash supports the order appealed from. [5] No other ground for that order is available. A notice of motion, other than for a new trial, "must state ... the grounds upon which it will be made." (Code Civ. Proc., 1010.) Only such grounds as are specified may be considered. (Westphal v. Westphal, 61 Cal.App.2d 544, 550 [143 P.2d 405]; Castagnoli v. Castagnoli, 124 Cal.App.2d 39, 41 [268 P.2d 37]; Hernandez v. National Dairy Products Co., 126 Cal.App.2d 490, 493 [272 P.2d 799]; and cases cited in each), in the absence of any element of waiver by the opposite party. No such element appears in the record before us.
It does appear that an alias summons which named the Hartmans as defendants and was used in effecting service upon them in March of 1957, was issued on March 8, 1957, more than one year after June 24, 1954, when the action was commenced anew as to them. This suggests the possibility of a failure of the plaintiff to meet the one-year requirement of section 581a and a consequent duty upon the part of the trial court to dismiss the action as to the Hartmans. However, that question was not before the trial court nor is it before us upon this appeal. Its subject matter was not indicated in the notice of motion to quash. Plaintiff would be entitled to an opportunity to explain the seemingly undue delay. For example, a stipulation extending time may have been filed.
The order appealed from is reversed.
Peters, P. J., and Bray, J., concurred.
An affidavit asserting that the judge who made the 1954 dismissal order was disqualified to act because of bias and prejudice, was filed on the day the order was made, but the record does not show whether the filing preceded the order, and the order recites that no one appeared in opposition to the motion for dismissal. This is an insufficient basis for a collateral attack upon the order.
NOTES
[fn. *] *. Plaintiff makes an ineffectual collateral attack upon the dismissal order of 1954. It was not appealed from and long since became final. The record supports the order upon the theory that the Hartmans were served as fictitiously named defendants. As such they were defendants from the beginning and thus entitled to invoke the mandates of section 581a. (See Brock v. Fouchy, 76 Cal.App.2d 363 [172 P.2d 945]; dismissal, upon motion of a fictitiously named defendant, for failure to issue the original summons within one year.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1376682/ | 184 Kan. 89 (1959)
334 P.2d 326
RALPH LINDSAY, Appellant,
v.
WALTER KEIMIG, Appellee.
No. 41,154
Supreme Court of Kansas.
Opinion filed January 24, 1959.
Maurice P. O'Keefe, of Atchison, argued the cause, and Karl W. Root, Dolan McKelvy, Maurice P. O'Keefe, Jr., and Terence D. O'Keefe, all of Atchison, were with him on the briefs for the appellant.
Steadman Ball, of Atchison, argued the cause, and J.W. Lowry, William E. Stillings, and Robert D. Caplinger, were with him on the briefs for the appellee.
The opinion of the court was delivered by
PARKER, C.J.:
This was an action to recover a money judgment by reason of a controversy arising out of the purchase and sale of a farm tractor and incidental farming equipment.
Plaintiff commenced the action against the defendant, who was engaged in the business of selling tractors and farm implements, by filing a petition which, for purposes of issues raised on appeal, may be said to contain two causes of action, both based on defendant's alleged false and fraudulent representations to the effect that the tractor in question was new, whereas in truth and in fact it was not but had been used for a considerable period of time prior to the date it was sold to, and purchased by, plaintiff as new and unused. For like purposes it can be stated the first cause of action, set forth in such pleading, disaffirms the contract of sale, seeks its rescission, and asks to recover the purchase price, while the second affirms that instrument and seeks to recover damages claimed to have been sustained *90 by reason of the fraud perpetrated by the defendant on the plaintiff in selling him a used tractor instead of a new one.
Following the filing of the petition defendant moved to make that pleading more definite and certain. When this motion was overruled he filed an answer and cross-petition in which he denies all material allegations of the petition, alleges that the tractor had been sold to plaintiff as a used vehicle, sets forth other defenses to plaintiff's cause of action, asks affirmative relief for repairs made on the tractor at plaintiff's instance and request, and prays that plaintiff take naught by virtue of his petition and that he recover judgment against plaintiff for the amount claimed to be due for repairs as set forth in his counterclaim.
The reply contains a general denial and other factual allegations relied on by plaintiff in defense of new matters set forth in the answer and cross-petition.
With issues joined, as heretofore related, the case was set for trial by a jury. Thereupon defendant moved for judgment on the pleadings. This motion was taken under advisement. Some two months later the cause again came on for hearing on such motion, whereupon plaintiff moved to dismiss his second cause of action without prejudice. Following this action the court took under further advisement the motion for judgment on the pleadings, as well as the motion to dismiss without prejudice. Several months later further argument was had with respect to both motions, at the close of which the court sustained the defendant's motion for judgment, overruled plaintiff's motion to dismiss the second cause of action stated in the petition, and rendered judgment against plaintiff for costs. Thereupon plaintiff perfected the instant appeal wherein, under proper specification of errors, he appeals from the rulings on the respective motions and from the judgment.
Assuming arguendo, that under the previously decribed facts and circumstances, it could be raised by a motion for judgment on the pleadings the record discloses the all decisive question involved in this case is whether a plaintiff who comes into court with a petition containing causes of action predicated upon inconsistent remedies, which have not been previously asserted, is barred from pursuing one of such remedies to final judgment under the doctrine of election of remedies. We therefore turn directly to such issue, the disposition of which will be simplified by clarification, at the outset, of certain matters to be presently mentioned.
The first has to do with the remedies available to appellant under *91 the existing facts and his rights in connection therewith. These, it may be stated, have been determined by previous decisions of this court under similar facts and circumstances. See Beneke v. Bankers Mortgage Co., 119 Kan. 105, 237 Pac. 932, where it is said:
"... A person fraudulently induced to buy and pay for property delivered to him has two remedies, one legal and one equitable. He may affirm the contract and sue for damages, or he may disaffirm and sue for rescission. If he affirm, he keeps the property, the seller keeps the consideration paid, and the buyer recovers damages for the difference in value between what he received and what he should have received. If he disaffirm, he seeks restoration of the status existing when the sale was made. Affirmance and disaffirmance are contradictory of each other. The sale cannot stand and at the same time be set aside. Because the remedy by way of damages rests on affirmance, and the remedy by way of rescission rests on disaffirmance, the two are inconsistent and incompatible. Resort to one excludes resort to the other, and in choosing a remedy it is the first decisive step which counts...." (p. 107.)
The second relates to the doctrine of election of remedies and its application in this jurisdiction. Many of our decisions deal with the subject and, in a general way, it may be stated they consistently hold that when the law gives several means of redress or relief predicated upon conflicting theories, the election of one of them operates as a bar against a subsequent adoption of others. See, e.g., Railway Co. v. Henrie, 63 Kan. 330, 65 Pac. 665; Ireland v. Waymire, 107 Kan. 384, 191 Pac. 304; Morse v. Grain and Ice Co., 116 Kan. 697, 229 Pac. 366; Beneke v. Bankers Mortgage Co., supra; Pitt v. Keenan, 124 Kan. 810, 262 Pac 567; Baltimore American Ins. Co. v. Millheisler, 131 Kan. 173, 289 Pac. 439; Baron v. Lyman, 136 Kan. 842, 18 P.2d 137; Fee & Liddon Co. v. Porter, 144 Kan. 108, 58 P.2d 55; Turner v. Jarboe, 145 Kan. 202, 64 P.2d 26; Davidson v. McKown, 157 Kan. 217, 139 P.2d 421.
For a well considered decision where the subject is discussed and exhaustively treated, in all its phases, see Taylor v. Robertson Petroleum Co., 156 Kan. 822, 137 P.2d 150, where it is held:
"The doctrine of election of remedies applies only when two or more inconsistent remedies actually exist at the time the election of one remedy is made.
"An election of one remedy with full knowledge, or means of knowledge, of the facts bars the pursuit of a later wholly inconsistent remedy when the remedy first chosen is not based upon a misapprehension of legal rights.
"The doctrine of election of remedies, or assertion of rights, goes not to the form but to the essence of the remedy. It is the inconsistency of demands which makes the election of one remedial right an estoppel against the assertion *92 of the other, and not the fact that the forms of action are different.
"The doctrine of election of remedies is an application of one phase of the law of estoppel which prevents one who comes into court, asserting or defending his rights, from taking and occupying inconsistent positions.
"To make actions inconsistent one action must allege what the other denies, or the allegation in one must necessarily repudiate or be repugnant to the other.
"Whether coexistent remedies are inconsistent is to be determined by a consideration of the relation of the parties with reference to the right sought to be enforced as asserted in the pleadings.
"The fact that a first action did not proceed to judgment, but was dismissed without prejudice, does not avoid the effect of the election. The commencement of an action or any decisive act of a party makes the election final although such action is not prosecuted to a finality." (Syl. ¶¶ 1 to 7 Incl.)
Conceding the rule to be as last above stated, appellee's position, on what we have heretofore denominated the all decisive question, is that in a case such as is here involved a plaintiff, before bringing suit must determine which of two inconsistent positions he will take and which of two inconsistent remedies he will pursue. In other words, he claims that where as here a plaintiff files a petition containing two causes of action based upon inconsistent theories such plaintiff thereby makes an election as to each remedy, the result being that, under the doctrine of election of remedies, he is thus precluded from asserting any remedy whatsoever. We know of no decisions expanding the doctrine to this extent and appellee cites none. Under such circumstances we might well conclude his counsel, after diligent search, have been unable to find any. (McCoy v. Fleming, 153 Kan. 780, 783, 113 P.2d 1074; Ehrhart v. Spencer, 175 Kan. 227, 233, 263 P.2d 246.) Even so we are not disposed to base our decision on the premise no decisions supporting appellant's position have been cited. Instead we refuse to extend the doctrine further than it has been heretofore applied under our existing decisions, and based on sound authority (28 C.J.S., Election of Remedies, pp. 1088, 1091, 1105, 1106 §§ 15, 32a; 18 Am. Jur., Election of Remedies, pp. 150, 151 § 30), hold that where a party alleges two inconsistent causes of action or remedies in the same petition there is no election as to either, but while the case is pending or at the time of trial the plaintiff may be required to elect between them. For other authorities less pertinent, but nevertheless supporting the foregoing conclusion, see 28 C.J.S., Election of Remedies, p. 1107 § 32b; 18 Am. Jur., Election of Remedies, pp. 133, 139, 141 §§ 9, 16, 17. Indeed we believe such *93 conclusion is warranted, if not compelled, by our own decisions. See Federal Savings & Loan Ins. Corp. v. Urschel, 159 Kan. 674, 157 P.2d 805, cited and quoted with approval in Waddell v. Blanchard, 171 Kan. 280, 283, 232 P.2d 467, where it is held:
"Under the doctrine of election of remedies a plaintiff who comes into court with a petition containing causes of action predicated upon inconsistent theories may be required to elect upon which one of the several inconsistent positions so asserted by him he relies as a basis for the relief he seeks to obtain in his action." (Syl. ¶ 1.)
What has been stated and held compels the conclusion the trial court erred in sustaining the appellee's motion for judgment on the pleadings and, based on that ruling, in rendering judgment against the appellant.
One other point requires consideration. Appellant contends the trial court erred in overruling his motion to dismiss his second cause of action without prejudice. In the face of the record presented we believe this contention has merit and must be upheld. Appellant, as we have seen, could maintain but one of his two inconsistent causes of action, he had the right to elect as to which he would pursue and, if he did not so elect, he could be required to do so. Under the statute (G.S. 1949, 60-3105) the right of a plaintiff to dismiss his action without prejudice, at any time before the final submission of it, is absolute, and a denial of his application to do so is prejudicial error. See Henry v. Edde, 148 Kan. 70, 73, 79 P.2d 888, and cases there cited. Moreover, in Kinsch v. Missouri-Kansas-Texas Railroad Co., 183 Kan. 224, 326 P.2d 327, after consideration of the force and effect to be given such section of the statute, we held the provisions thereof applied to separate and distinct causes of action and that the trial court in that case erred in denying the plaintiff's motion to dismiss his second cause of action.
The judgment is reversed and the cause remanded for further proceedings in accord with the views expressed in this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266584/ | 440 Pa. 61 (1970)
Commonwealth
v.
Falcone, Appellant.
Supreme Court of Pennsylvania.
Submitted April 24, 1970.
October 9, 1970.
*62 Before BELL, C.J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Thomas S. McCready, for appellant.
Murray Mackson, First Assistant District Attorney, and John Deutsch, District Attorney, for Commonwealth, appellee.
OPINION BY MR. JUSTICE JONES, October 9, 1970:
Following a jury trial in the Court of Common Pleas of Carbon County, Daniel Falcone was found guilty of first-degree murder and was sentenced, on January 29, 1955, to life imprisonment. No direct appeal was taken, but on February 11, 1969, Falcone filed a petition for the allowance of an appeal under the Post Conviction Hearing Act. An evidentiary hearing was held on May 16, 1969, at which time testimony was given by Falcone and by his trial counsel, Edmond Turtzo, Esquire. In an opinion filed January 2, 1970, the lower court dismissed Falcone's petition. This appeal followed.
The contention raised on this appeal is that Falcone did not knowingly and understandingly waive his right to appeal because: (1) he was not informed of his right to appeal (Act of February 15, 1870, P.L. 15, § 1, 19 P.S. § 1186); (2) he was not informed of his right to have the aid of court-appointed counsel to prosecute *63 his appeal, if indigent (Douglas v. California, 372 U.S. 353 (1963)); and (3) his failure to appeal was due to a fear of receiving the death penalty on retrial (Commonwealth v. Littlejohn, 433 Pa. 336, 250 A. 2d 811 (1969)).
As to the first point, the record is clear, as found by the lower court, that Falcone was fully informed of his right to appeal following his conviction. At the PCHA hearing, Turtzo stated that he had told Falcone that a new trial was not available simply by asking for it, that Turtzo could not find any errors which might be grounds for an appeal, but that, nevertheless, Turtzo would file Falcone's appeal if so desired. The following passage is exemplary of Turtzo's testimony: "Q. Now, in keeping with the court's ruling, Mr. Turtzo, are you able to state, in your opinion, whether or not Mr. Falcone knew of his rights to appeal, based upon your discussions with him, after the trial and up until sentencing or shortly after? A. He certainly did. After the trial, as well as many conversations held with him about that matter of appeal and the consequences, and so on, prior to the time of conviction, and we took copious notes throughout the trial, between myself particularly and Mr. Joella and the other attorneys, looking for error, as an attorney should." We affirm the finding of the lower court that Falcone knew of his right to appeal.
The second point raised by Falcone is based upon the fact that, at the time of trial in 1954 and 1955, Turtzo did not advise his client that he was entitled to have court-appointed counsel on his appeal, if indigent. The lower court made the following finding of fact, which has ample support in the record: "The evidence warrants a finding that defendant, who has employed [four] trial lawyers, was not an indigent either before or after the trial, and that post-trial motions were not *64 filed solely because of lack of any reason therefor, in counsel's opinion, and knowingly acquiesced therein by defendant." There is utterly no evidence that Falcone was indigent and the record indicates that Falcone, in fact, has had able, self-retained counsel at all relevant times, including the instant appeal.
The final point raised on this appeal is based upon the allegation that Falcone did not pursue his right to appeal because he was afraid that a new trial might result in the death penalty. Turtzo testified that he had informed Falcone, in accordance with the law at the time of trial, that a new trial might conceivably result in the death penalty. However, Turtzo stated clearly and unequivocally that the decision not to appeal was made solely because of the total lack of any grounds therefor. Turtzo summarized his attitude as follows: "If I had found any error, any real ground for a new trial, as we attorneys understand them, I would have been practically fearless to go through another trial. Having already gotten him life, I felt confident that it would not be death, but it was my duty to tell him that it was a possibility. If I had found anything at all upon which to predicate a motion for a new trial I would have gone right through [with] it."
In view of the evidence of record, we cannot conclude that Falcone voluntarily, knowingly and understandingly waived his right to appeal. The uncontradicted testimony that the possibility of being subjected to the death penalty in the event a new trial was granted was a factor in Falcone's determination of whether to seek a new trial contraindicates the type of waiver which would preclude him from now seeking the right to such appeal. See: Com. ex rel. Smith v. Myers, 438 Pa. 218, 261 A. 2d 550 (1970); Com. v. Stewart, 435 Pa. 449, 257 A. 2d 251 (1969); Com. v. Littlejohn, 433 Pa. 336, 250 A. 2d 811 (1969).
*65 Order reversed and the matter remanded to the court below so that Falcone can file post-trial motions and, in the event such post-trial motions are dismissed, that Falcone can then file, if he so chooses, an appeal from the judgment of sentence.
Mr. Chief Justice BELL dissents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266589/ | 259 Md. 199 (1970)
269 A.2d 566
A. & A. MASONRY CONTRACTORS, INC.
v.
POLINGER ET AL.
[No. 34, September Term, 1970.]
Court of Appeals of Maryland.
Decided October 13, 1970.
*200 The cause was argued before HAMMOND, C.J., and McWILLIAMS, SINGLEY, SMITH and DIGGES, JJ.
Stanley R. Jacobs for appellant.
Harvey H. Holland, Jr., with whom was William N. Dunphy on the brief, for appellees.
SMITH, J., delivered the opinion of the Court.
Appellant A. & A. Masonry Contractors, Inc. (A. & A.) sued appellees, Howard Polinger, et al. (Polinger) for labor and materials furnished in connection with construction of an apartment hotel in Montgomery County for Polinger. Polinger filed a counterclaim. The matter was removed to Dorchester County for trial where a finding was made in favor of A. & A.
A. & A. appeals to us contending, (1) that it should have received judgment for even more, having particular reference to a claim for $9,328.42; (2) that the trial court failed to include interest in the judgment in favor of A. & A.; and (3) that the trial court failed to direct the clerk to enter the judgment to carry interest.
For procedural reasons we shall be obliged to dismiss the appeal. To avoid a further appeal to this Court we shall indicate our views relative to liability and procedure pursuant to Maryland Rule 885.
I.
On the matter of the additional claim of A. & A. we adopt the pertinent portion of the opinion of Judge Mace in the trial court in which he said:
"I find that by proposal dated March 24, 1965, plaintiff undertook to do certain masonry work on an Apartment-Hotel known as Highland House, located in Chevy Chase, Maryland, which was being constructed by the defendants. The proposal in the amount of $205,000 was accepted by defendants on April 7, 1965, although, there *201 were further discussions. At that time, the defendants inserted two paragraphs on the bottom of page two of the proposal relating to the setting of Cast Stone and the incorporation of certain conditions which appear on a printed sheet attached to the agreement. On May 13, 1965, at a meeting between the parties or their representatives, an additional two paragraphs were inserted at the bottom of page two of the proposal, and initialed by the parties. The paragraphs read as follows:
`This Contract for Seaboard Glazed tile is for furnishing the 1 1/4" thick 18" x 24" Ceramic Veneer Design Facing as shown on architects drawings No. 9, 15, 16, 26, 27 dated 9/14/64.
`This contract does not include a low fire glaze.'
(Emphasis added.)
"The biggest item in dispute is Change Order No. 23, in the amount of $9,382.42, and is made up of the terra cotta wall facing panels referred to in the two quoted paragraphs. Plaintiff maintains that it is extra to the basic proposal, and defendants claim that it is included in the basic proposal and contract. It is conceded that plaintiff typed the two paragraphs, and that defendant inserted in ink the phrase `for Seaboard Glazed tile', which appears as an interlineation in the first of the two paragraphs. Both parties took the position that the contract was clear and unambiguous in their respective favor. The Court, in an effort to throw additional light on the general intention of the parties, heard testimony and admitted documentary evidence relating to the circumstances and the actions of the parties concerning the terra cotta work. This evidence, while extensive and conflicting, does not change the findings of this Court as based *202 on the contract itself, and within its four corners. It is conceded that the proposal of March 24, 1965, was the only contract between the parties. The two paragraphs in question each refer to `this contract', and simply set forth the size of the terra cotta to be furnished, and by the insertion in ink by the defendant, the manufacturer's name. Nowhere, is there any reference to the tile as an extra, nor any indication that the two paragraphs are intended to comprise a separate contract for the tile. The first sentence of the basic contract provides:
`We propose to do all of the masonry work in accordance with the Architectural Drawings identified as Sheet 1 thru Sheet 29 inclusive and Structural Drawings identified as Sheet S1 thru S17, all dated September 14, 1964, prepared by your Architect Berla & Abel, in accordance with Division 4 "Masonry & Cast Stone", of the Specifications bearing no date, Section 4A paragraphs 1 thru 12, for the Apartment-Hotel, West Chevy Chase, Maryland, known as Highland House for Messrs. Milton & Howard Polinger, being constructed by you at Wisconsin Avenue and High Street, West Chevy Chase, Maryland, for the sum of TWO HUNDRED FIVE THOUSAND DOLLARS ($205,000.).' (Emphasis added.)
"The foregoing provision incorporates specific drawings which were in evidence, and which showed by drawing and by written words, the specific location and the specific wall areas to be faced with terra cotta veneer panels, along with the other masonry work, describing the terra cotta facing to be furnished, including the method of installing the same. This information is specifically set forth in Division 4 of the specifications.
"When the evidence beyond the written contract *203 is considered, I reach the same conclusion. Defendants' Exhibit 3, which is a general estimate from plaintiff's records, clearly shows that in making a detailed cost estimate for the masonry work on the Highland House job, at the bottom of such estimate and after adding sums for overhead, profit, supervision, et cetera, a figure of $200,000 was arrived at following the computation. It is clear that there was, then, added the sum of $9,000 indicated as terra cotta work, and a total of $209,000 which, obviously, was rounded out to a final bid or proposal of $205,000, which final figure was circled in red on the document. This, of course, is the figure quoted in the basic proposal. The specifications, originally, called for 20x20x1 5/8's terra cotta tile. A less expensive terra cotta panel, 18x24x1 1/2 was finally approved on May 13. It appears clear that by adding the two paragraphs in question, the plaintiff was protecting itself in the use of the less expensive panel, in lieu of that required by the specifications, and by inserting in ink `Seaboard Glazed tile', defendants were assuring that the desired brand would be used. I find, therefore, that the claimed extra of $9, 328.41 [sic] was, in fact, incorporated in the basic contract."
II.
Judge Mace was the trier of fact in this case. The cases of City Pass. R.W. Co. v. Sewell, 37 Md. 443 (1873), and Atlantic States v. Drummond and Co., 251 Md. 77, 246 A.2d 251 (1968), are dispositive of the claim of A. & A. that the trial judge erred in not including interest on the sums he allowed in the judgment he directed be entered in its favor. In City Pass. R.W. Co. our predecessors said:
"It must be conceded that interest is not an inseparable and invariable incident of claims for *204 money, or unliquidated accounts. `It is recoverable as of right, upon contracts in writing to pay money upon a day certain; as upon bills of exchange and promissory notes, or on contracts for the payment of interest, or where the money claimed has been actually used, and upon bonds, etc., but in other cases, it is a question entirely for the jury to be decided according to the equities of the transaction.' Newson v. Douglass, 7 H. & J. 417; Karthaus v. Owings, 2 G. & J. 430." (emphasis in original) Id. at 452.
In Atlantic States Judge McWilliams said for the Court:
"Ordinarily the matter of interest is left to the discretion of the jury or the court sitting without a jury. In Affiliated Distillers Brands Corp. v. R.W.L. Wine & Liquor Co., 213 Md. 509, 516, 132 A.2d 582 (1957), we said:
`However, this general rule is subject to certain exceptions that are as well established as the rule itself. Among the exceptions are cases on bonds, or on contracts, to pay money on a day certain, and cases where the money has been used. If the contractual obligation be unilateral and is to pay a liquidated sum of money at a certain time, interest is almost universally allowed from the time when its payment was due. [Citing cases.]'
"To the same effect see Mullan Contracting Co. v. International Business Machs. Corp., 220 Md. 248, 151 A.2d 906 (1959)." Id. at 85.
The trial court did not err in not including interest in the judgment.
III.
We next pass to the contention of A. & A. that there was error in not directing that the judgment bear interest from its date. An examination of the docket entries reveals a reference to the filing of the memorandum opinion *205 of the trial judge. The next succeeding docket entry is an order for appeal to this Court. There is no docket entry reflecting entry of judgment nisi. Likewise, judgment absolute apparently was not entered.
In Merlands Club v. Messall, 238 Md. 359, 208 A.2d 687 (1965), Judge Barnes said for the Court:
"It is well settled that in an action at law tried by the court, the judgment absolute is entered a) within 3 days after the judgment nisi has been entered, if no motion for a new trial has been filed, or b) upon the denial of that motion, if such motion has been filed, and is the `final judgment' from which an appeal may be taken; any order for appeal filed prior to the entry of that judgment absolute is premature and without effect. Md., Del. and Va. Ry. Co. v. Johnson, 129 Md. 412, 99 A. 600 (1916)." Id. at 362-63.
Since there has been no judgment absolute, the appeal is prematurely taken and must be dismissed.
Maryland Rule 642 states:
"A judgment nisi entered by the court following * * * trial by the court without a jury * * * shall be so entered as to carry interest from the date of the entry of judgment nisi."
Accordingly, upon the remand we have no doubt judgment nisi will be entered to carry interest in accordance with the rule.
Appeal dismissed, appellant to pay the costs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266678/ | 461 F.Supp. 210 (1978)
UNITED STATES of America
v.
Jerry TAYLOR, a/k/a "Robert Lee Brown", Defendant.
No. 78 Cr. 596 (KTD).
United States District Court, S. D. New York.
November 15, 1978.
*211 Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., New York City, for the United States of America; Mary Jo White, Asst. U. S. Atty., New York City, of counsel.
Maloney, Viviani & Higgins, New York City, for defendant; Arthur J. Viviani, New York City, of counsel.
OPINION & ORDER
KEVIN THOMAS DUFFY, District Judge:
Defendant Jerry Taylor, also known as Robert Brown, has moved to suppress certain statements made by him as well as all evidence derived from the use of such statements. A hearing was held before me on October 6 and 20, 1978 and counsel were granted leave to submit post-hearing memoranda. The following opinion constitutes my findings of fact and conclusions of law.
On the evening of June 16, 1978, Police Officers Frank Rogers and John Taglioni *212 were on duty in the vicinity of 139th Street between Lenox and Fifth Avenues. There they spotted defendant with his girlfriend Michelle Williams, both of whom were known to the officers from previous arrests and other encounters. Defendant was removing two tires of a vehicle known by the officers to be stolen, while Ms. Williams was sitting on the hood of an adjacent auto apparently serving as lookout. After removing the tires and carrying them into a nearby abandoned building, defendant attempted to break the chain lock that secured the hood of the vehicle. The officers then moved in to arrest both Ms. Williams and defendant. Defendant, fleeing into an abandoned building, successfully escaped the officers. Ms. Williams, however, was arrested and taken to the stationhouse.
Approximately twenty minutes after Ms. Williams' arrest, defendant appeared at the stationhouse to inquire after his friend. He was immediately arrested and given Miranda warnings. Defendant also signed his arrest sheet acknowledging in writing that he had received and understood his rights. Defendant neither asked for a lawyer nor evidenced an unwillingness to speak with any of those who questioned him.
Shortly thereafter, defendant volunteered that he had information concerning a shotgun stolen from a vehicle. The police were able to confirm that such a weapon had, in fact, been stolen from a Secret Service vehicle. Defendant denied any participation in the crime but began to provide the police with details of the theft while they all awaited the Secret Service Agents who had been notified of defendant's statements. Defendant was a registered informant with the Bronx District Attorney and had previously provided reliable information to the authorities.
Upon the arrival of Agents Steven Scott and Thomas Tully, they were escorted into the precinct's anticrime office. There they were briefed on what had transpired that evening and advised that defendant had received Miranda warnings. At approximately 12:30 a.m. they met with defendant. The agents did not re-administer the warnings but did ask defendant to recount what he had already told the police. He then revealed that a man known as "Tippin T" had sold a shotgun to a man known as "Jew Baby." According to defendant, Tippin T also had binoculars, a Polaroid camera and gas grenades. All these items matched the description of items stolen from the Secret Service vehicle. Defendant said he also knew of a box containing bits and pieces of other equipment.
At this point Scott asked if defendant was part of the burglary ring. Defendant denied participation in the crime; he said that Tippin T was a business associate of his and that he knew of the stolen items because of this association.
The agents were apparently convinced that defendant was not a party to the crime. They then left the precinct and found the box of stolen property where defendant had said it would be. Upon their return, they asked defendant to come with them and point out the car with the grenades in it. Defendant was reluctant to do so for fear of being seen, but the agents assured him he would be safe if he kept low in the car. Taylor went with them and identified the car. They then returned to the precinct at approximately 3:00 a.m.
The Secret Service agents, having procured a search warrant based upon the information provided by defendant, executed the warrant and arrested Jew Baby. On June 20, 1978, they returned to the stationhouse where defendant identified Tippin T out of a photo spread. Scott then gave defendant $50 and thanked him for his cooperation. According to Scott, without defendant's aid the government agents could not have made a case.
Subsequently, on June 22, 1978, Tippin T was arrested. After receiving his rights, Tippin T accused defendant of being his accomplice in the theft and sale. Scott thereupon secured a warrant for defendant's arrest and on August 2, 1978, defendant was apprehended by the Newark, New Jersey Police. The Secret Service were notified and took defendant into custody on August 3rd. He was escorted to a Secret *213 Service office in Newark where he was photographed and fingerprinted. Defendant was advised of his rights and taken before a United States Magistrate. The Magistrate also gave defendant his rights and defendant waived his right to an attorney. However, defendant did not waive his right to a preliminary hearing on the question of probable cause for the charges against him and a hearing was set down for August 14, 1978. Defendant also executed a waiver of counsel form, indicating he was aware of his rights. He was then removed to the Metropolitan Correction Center (MCC).
Four days later, on August 7, Agents Scott and Tully visited him at the MCC. They once again advised defendant of his rights but he chose to speak to Scott without benefit of counsel. The inculpatory statements he made on August 7 are among the statements defendant seeks to suppress.
Defendant has moved to suppress three statements made by him. The first was the statement made to Officers Taglioni and Rogers on the evening of his first arrest, June 16, 1978. Defendant claims that there was no probable cause to arrest him and that, accordingly, any statement made by him should be suppressed. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).
In this connection, defendant concedes that if I find the testimony of Officers Taglioni and Rogers credible, then probable cause has been established. He suggests, however, that his own version of the events of the evening is entitled to greater weight. According to defendant, at the time Ms. Williams was arrested, he was not near the car and did not run into an abandoned building. Rather, defendant testified, he was in a bar on Lenox Avenue from where he saw Ms. Williams apprehended. Thereafter, he went to the precinct to learn why she had been taken into custody.
Defendant suggests that his version should be credited for two reasons. First, he concludes that Officer Taglioni's assessment of Ms. Williams' activity as merely "looking" was an insufficient basis upon which to predicate an arrest. Defendant would have me believe that Ms. Williams' arrest was merely a sham, effected to get her known boyfriend into the precinct. Secondly, he argues that if Taglioni's version is credited, then it would be very unlikely for defendant to present himself at the precinct, since it was clear that just a short time before he had been seen in the midst of committing a crime.
After hearing testimony from the two officers and defendant, I conclude that the officers' version of the events of June 16 is the more creditable one. The officers' testimony as to Ms. Williams' activities on that evening reveals that she and defendant were seen during the course of the evening near the stolen car. On two occasions she glanced in the direction of the officers' unmarked vehicle and spoke to defendant, whereupon they quickly walked off. When defendant was later seen removing the tires from the car, Ms. Williams was sitting nearby. Based upon these events together with the fact that both defendant and Ms. Williams were known to the officers because of past arrests and involvement with stolen cars, the officers had ample cause to make the arrest.
Nor do I find defendant's later appearance at the stationhouse incredible. Defendant was not a stranger to the precinct. In the past, he had provided information to the police and it is likely that in presenting himself at the stationhouse he thought he might exchange information for leniency. Perhaps, when he initially fled, he thought he could elude the police. But after his girlfriend's arrest, it was not unlikely that he would soon be caught. To appear at the stationhouse in light of these circumstances was a reasonable action and does not, in my view, suggest defendant's lack of culpability.
The second statement which defendant seeks to suppress was that made to Agents Scott and Tully later in the evening of his arrest. These agents did not give defendant his Miranda warnings and accordingly, *214 defendant urges, the statements made must be suppressed.
Under the circumstances of the instant case, the Miranda warnings did not have to be repeated. When the agents arrived at the precinct they questioned the officers regarding the administration of "rights." They were advised that he had, in fact, received them but that he was not involved in the thefts about which he spoke. Rather, he was merely "throwing the officers a bone", (Tr. 31-32)[1] apparently in the hopes of helping himself and his girlfriend.
Once a defendant has waived his right to counsel, there is no requirement that Miranda warnings be repeated every time he is questioned. See, United States v. Paulton, 540 F.2d 886 (8th Cir. 1976); United States v. Maguire, 396 F.2d 327 (9th Cir. 1968); Moore v. Hopper, 389 F.Supp. 931, 933-34 (D.Ga.1974) aff'd 523 F.2d 1053 (5th Cir. 1975). These warnings do not become stale so quickly. United States v. Kinsey, 352 F.Supp. 1176 (E.D.Pa.1972). Since defendant effectively waived his rights before the local police, he may not complain of a Miranda violation simply because the federal agents did not repeat those warnings a short time later.
Moreover, defendant was not implicated in the crime charged herein at the time he gave his statement. The agents apparently credited his story as to how he became privy to the information regarding the stolen gun. Their faith in him was evidenced by the payment of $50 to defendant following his identification of Tippin T. In such a situation, the failure to administer Miranda warnings does not mandate suppression since defendant was not a target of the investigation.
The last statement which defendant seeks to suppress is that made to federal agents while he was incarcerated at the MCC. Defendant claims that his sixth amendment right to counsel attached upon his appearance before the Magistrate in New Jersey and that his oral and written waivers of counsel were ineffective. Relying upon cases involving sixth amendment waivers following indictment,[2] he asserts that the Magistrate was required to comply not only with Rule 5 of the Federal Rules of Criminal Procedure, but also to tell defendant that it was advisable to have an attorney appointed. There is simply no authority for this position. Rule 5 of the Federal Rules of Criminal Procedure sets forth the procedure for advising a defendant of his rights at an initial post-arrest appearance before a Magistrate. In the case at bar, the Magistrate complied with the requirements of this Rule. I have uncovered no authority requiring more of her, notwithstanding the fact that upon indictment a defendant should be encouraged to have an attorney appointed. See, e. g., United States v. Plattner, 330 F.2d 271, 276 (2d Cir. 1964).
Defendant also contends that his waiver of an attorney was merely for removal purposes. Moreover, he suggests that because he was a heroin addict, a more incisive inquiry by the Magistrate would have demonstrated his incapacity to waive an attorney.
A review of the record belies these claims. First of all, defendant did not claim to be high on drugs when he appeared before the Magistrate and waived his right to an attorney. Rather, he was beginning to withdraw. The fact that he may have felt ill due to withdrawal, moreover, would seem insufficient to vitiate his waiver. Additionally, there is nothing in the record, aside from defendant's own testimony, to suggest that his understanding of his waiver was as limited as he suggests. The Magistrate's *215 statements would surely not cause him to believe he was waiving counsel solely for removal purposes. Indeed, the fact that she advised him of his right to a hearing on the question of probable cause, and that he invoked it, suggests a contrary conclusion. In short, based on the present record, I cannot give credence to defendant's claim that he misunderstood the nature of his waiver.
As his final point, defendant urges that the interrogation conducted by Agent Scott at the MCC was also violative of his sixth amendment rights. I conclude, however, that under the facts of this case no violation occurred.
At his initial post-arrest hearing, defendant was given his "rights" and knowingly waived his right to counsel. Thereafter, he was transported to the MCC for lodging. While there, Agents Scott and Tully visited, admittedly for the purpose of obtaining admissions from him. Agent Scott scrupulously administered "rights" and after defendant insisted he had no desire for an attorney, he made the inculpatory statements he now seeks to suppress.
So long as a defendant is advised of his rights and given an opportunity to obtain counsel, should he so desire, the sixth amendment does not prohibit non-coercive, pre-indictment in-custody questioning. See, United States v. Duvall, 537 F.2d 15 (2d Cir. 1976); United States v. Ramirez, 482 F.2d 807, 815-16 (2d Cir. 1973), cert. denied, 414 U.S. 1070, 94 S.Ct. 581, 38 L.Ed.2d 475 (1973), compare United States v. Massimo, 432 F.2d 324, 327 (2d Cir.) (Friendly, J., dissenting), cert. denied, 400 U.S. 1022, 91 S.Ct. 586, 27 L.Ed.2d 633 (1971). Indeed, even after indictment, a defendant may be questioned and his statements may be admissible, so long as the government shows that a valid waiver, i. e. a knowing and intelligent one, had been obtained. United States v. Lord, 565 F.2d 831, 839-40 (2d Cir. 1977). In this case, defendant was given ample opportunity to obtain counsel had he so desired. He does not claim to have been under a disability at the time of questioning, nor does he claim that the questioning was coercive in nature. I find that defendant was at all times aware of his rights and that he voluntarily made the statements he now moves to suppress. Under the circumstances, that motion must be denied.
SO ORDERED.
NOTES
[1] Reference to the hearing on October 6, 1978 is designated as "Tr."
[2] United States v. Plattner, 330 F.2d 271 (2d Cir. 1964); United States v. Spencer, 439 F.2d 1047, 1050 (2d Cir. 1971); United States v. Duty, 447 F.2d 449 (2d Cir. 1971); United States v. Harrison, 451 F.2d 1013 (2d Cir. 1971); United States v. Calabro, 467 F.2d 973 (2d Cir. 1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1386, 35 L.Ed.2d 587 (1973); United States ex rel. Martinez v. Thomas, 526 F.2d 750 (2d Cir. 1975); United States v. Satterfield, 417 F.Supp. 293 (S.D.N.Y.), affirmed, 558 F.2d 655 (2d Cir. 1976). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266683/ | 57 N.J. 39 (1970)
269 A.2d 153
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JESSE EDWARD WILSON, DEFENDANT-APPELLANT.
The Supreme Court of New Jersey.
Argued November 5, 1969.
Decided September 29, 1970.
*42 Mr. Kenneth S. Javerbaum, Assistant Deputy Public Defender, argued the cause for defendant-appellant (Mr. Stanley C. Van Ness, Public Defender, attorney; Mr. Kenneth S. Javerbaum 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.
Jesse Edward Wilson was found guilty by a jury of first degree murder on two indictments, one for the murder of Esther Friedman and the second for the murder of Shep Binyard. The jury did not recommend life imprisonment and Wilson was sentenced to death on both convictions. His direct appeal to this Court is pursuant to R.R. 1:2-1(c), (now R. 2:2-1(a)(3)). The appeal is from Wilson's second trial. Previously he had been jointly tried with Wilbert Sinclair who had also been indicted for the same crimes, and both men were convicted and sentenced to death. These convictions were reversed because the trial judge failed to instruct the jury on the possibility of returning a verdict of second degree murder. 49 N.J. 525 (1967). In the course of our opinion we strongly suggested that the cause of justice would be better served if the defendants were tried separately. Id. at 550. Our suggestion was heeded, and it is from the conviction in Wilson's separate trial that he now appeals.
The State's theory at the trial was that Wilson was guilty of felony murder in that the victims were shot by Sinclair while he and Wilson were engaged in an attempt to rob. The principal prosecution witness, Abraham Friedman, *43 testified that at about 8:30 P.M. on October 24, 1964, he and his wife, Esther, were working in his package liquor store in Newark. One customer, Shep Binyard, was also in the store. Two men, later identified by Friedman as Wilson and Sinclair, entered the store. Wilson attempted to sit on a chair but fell. Binyard tried to help him up, but Wilson refused the help and got up himself and sat on the chair. Sinclair sought to purchase some "corn whiskey" or "bootleg whiskey," but was refused because Friedman thought Wilson looked "kind of under the weather."
Sinclair then drew a gun and said: "This is a stickup and just be quiet and nobody will get hurt." Mrs. Friedman implored, "Take whatever you want, but just leave us alone." Sinclair then directed Wilson to go behind the counter. Wilson did so and began walking toward the cash register which was on the far end of the counter. At that time Binyard approached Sinclair and said, "Why don't you fellows be nice and leave these good people alone?" As soon as Binyard said this, Sinclair shot and killed him. At this time Wilson was behind the counter in front of the cash register, and he tried to open it. He was at first unable to do so, but after receiving instructions from Friedman, he succeeded. Mrs. Friedman "got sort of hysterical" and ran out of the store screaming for help. Sinclair turned and fired at her. At the time of this shooting, Wilson had his hands in the register. Sinclair ran out of the store, and Wilson was left alone with Friedman. Friedman then picked up a bottle of whiskey and hit Wilson over the head, breaking the bottle. Wilson stood stunned for a moment, and Friedman ran toward a burglar alarm in an icebox at the rear of the store. Wilson followed until Friedman threatened him with the broken bottle which he still held. Wilson stood still for a second or so, looked around the store, and ran out. Friedman then went into the walk-in refrigerator and sounded the burglar alarm. Afterwards, he left the store and found his wife lying on the sidewalk, and with some help from *44 passersby, he carried her into the store and sat her on a chair. He learned later at the hospital that her wound had been fatal.
The police arrived three to five minutes after the alarm was sounded and questioned Friedman regarding the shootings. They then took him to the hospital to see about his wife's condition. While there he identified Wilson as "the man that was in my store that I hit over the head with the bottle." Wilson was being treated in the hospital for the head injury he received; he had been picked up by the police several blocks from the Friedman store. After he learned that his wife was dead, Friedman was taken back to the store where he, his son, and the porter closed up. As far as he knew, no money had been taken from the cash register. The police then took Friedman and his son to police headquarters where he was shown about six or eight photographs in a group from which he identified Wilson and Sinclair. Friedman then gave a statement to the police. As he was leaving the police station, he happened to look in an interrogating room and saw Sinclair whom he identified.
The State also presented several police officers who went to the store to answer the alarm. Detectives Farese and Moore testified that when they arrived at the store, Friedman told them that there had been a stickup, and "there was shots fired, and his wife got hit and the patron got hit." Friedman was hysterical, worried about his wife, and had to be asked questions three or four times. Moore testified that the cash register was open three or four inches. Officer Di Blasi, a fingerprint identification expert, testified he found no finger prints of value anywhere in the store.
Detectives Alford and Farese testified to the circumstances of Sinclair's arrest over defendant's objections. They said they saw Sinclair walking near his mother's home. They called for him to halt and when he did not they pursued him. About fifty yards away, in a parking lot, Sinclair sat down on a log and threw an object under a car. This object *45 was later identified by an expert as the gun which killed Mrs. Friedman and probably that which killed Binyard. Sinclair was arrested following his pursuit and taken to police headquarters where he was identified by Friedman.
The State also presented testimony that when Wilson was treated at the hospital for the wound on his head, slivers of glass were found on his jacket. An expert later identified this glass as part of the bottle which Friedman had used to strike the man he identified as Wilson.
The final evidence produced by the State was portions of Wilson's testimony from the first trial. These were read to the jury over defendant's objections. In this prior testimony, Wilson said that he had known Sinclair for about twelve years. On October 23, he left work late in the afternoon and began drinking. Without going into the details, it appears that he went on drinking intermittently until the next evening when the shootings occurred. That night, at about 7:00 o'clock, he and Sinclair went to Wilson's sister's house to get a gun which Wilson had obtained two days before. The sister was not there and they entered by forcing the locked door. The pair then left for a bar where they found Wilson's sister. Wilson testified that while at the bar, he dropped the gun on the floor and that Sinclair picked it up and kept it. Sinclair also obtained the bullets from Wilson, but it is not clear whether these were also picked up off the floor. The next thing Wilson remembered was being on the street with a bleeding head.
The defendant did not take the stand in the present trial but produced several witnesses on his case. Only two gave testimony of any significance. Officer Purcell testified that he responded to the alarm and that when he arrived, two officers were already present at the scene of the crime. He was in the store for about a half hour during which he asked Friedman questions regarding the shootings and listened while the other officers questioned him. Purcell filed a report in which he did not mention any attempted robbery, and he testified that "to the best of my knowledge" *46 Friedman never told him of any attempted robbery, but rather that Sinclair took out the gun after Friedman refused to sell him liquor.
Milton Unger, a newspaper reporter, testified that in response to questions by himself and police, Friedman gave a version of the events which did not include mention of an attempted holdup or any reference to the opening of the cash register. Friedman had said that the shootings took place after one of the men "took out a gun and demanded liquor."
Although these witnesses were produced to refute the State's theory that there had been an attempted robbery, the jury obviously accepted the State's version of the occurrence. The jury must have believed that Wilson acted in concert with Sinclair in an attempt to rob Friedman's liquor store in order for it to return a verdict of first degree murder. On this appeal the defendant contends that there was insufficient evidence of an attempted robbery, that there were several other trial errors and that his constitutional rights were violated. We will consider these issues in the order raised.
I
The defendant first contends that the trial court erred in permitting the State to introduce portions of Wilson's testimony from the prior trial. Defendant concedes the general rule that "statements made by an accused ... at a former trial, voluntarily, and under such circumstances that he is not deprived of his constitutional right against self-incrimination may be reproduced at a later trial." Edmonds v. United States, 106 U.S. App. D.C. 373, 273 F.2d 108, 112-113 (1959); United States v. Grunewald, 164 F. Supp. 644 (S.D.N.Y. 1958). See also Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968); 2 Wharton, Criminal Evidence § 475 (12th ed. 1955); Annotation, "Use in Subsequent Prosecution of Self Incriminating Evidence *47 Given Without Invoking Privilege," 5 A.L.R.2d 1404, 1411 (1949). Nevertheless, he contends that in the present case the testimony was inadmissible for several reasons. First, he urges that the State did not establish a foundation of voluntariness before reading the excerpts to the jury. There is no merit to the argument. Defendant was represented by a competent attorney at the first trial and the decision to take the stand at that trial was the same tactical decision which every defendant must make. There is no evidence to indicate that defendant was unfit to make this decision. To the contrary, the court found Wilson competent to stand trial and to consult intelligently with his counsel. See State v. Sinclair, supra at 549-50.
Defendant also argues that the admission of his prior testimony constituted comment upon his failure to take the stand in violation of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). We disagree. In Griffin, the United States Supreme Court held that it was improper for the prosecutor or the trial judge to call to the jury's attention defendant's failure to take the stand. The decision was never intended to cover a situation such as that here. If defendant's contentions were valid, no confession or admission by an accused could ever be admitted where a defendant failed to take the stand. The constitutional right to remain silent does not shield the defendant from the lawful evidence against him. See State v. Garvin, 44 N.J. 268, 276-79 (1965).
Finally, defendant contends that the testimony is not admissible under the New Jersey Rules of Evidence. Defendant argues the only rule which is at all applicable is Rule 63(3) which deals with depositions and prior testimony of a declarant. That rule provides, inter alia, that where a declarant is unavailable as a witness, his testimony from a prior trial is admissible. Rule 62(6) defines unavailability, and does not include the exercise of a privilege, such as the privilege against self-incrimination in the present case, as a ground for finding a witness to be unavailable. We do not *48 think that Rule 63(3) is applicable to the present case. The State, when it presents its case in chief cannot be certain whether the defendant will take the stand, and thus the introduction of the testimony cannot hinge upon that choice by the defendant. We think the problem is closer to that involved when confessions are admitted into evidence. In our view there is no real difference between inculpatory statements made at a prior trial and voluntary confessions. If anything, the former are more reliable than the latter since they are made under oath in the solemnity of the court room before judge and jury and in the presence of his own consel. That the statements from the prior trial tended to inculpate Wilson, e.g., that he was with Sinclair prior to the shooting and was the owner of the murder weapon, only tend to increase their reliability. See Rule 63(10) dealing with declarations against interest.
The trial court did not err in admitting the defendant's testimony from the first trial.
II
The defendant next urges that the trial court erred in instructing the jury on flight. Defendant contends that an instruction regarding flight was improper because the court overlooked a portion of the model instruction distributed by the Administrative Office of the Courts, because there was no evidence to support an inference of flight and because the doctrine of flight only applies when the defendant flees from custody or is found hiding after the crime. The claims are baseless. The administrative bulletin containing the model charge to which defendant refers merely suggests that in deciding whether to give an instruction on flight the trial court should take note that mere departure from the scene of the crime does not itself constitute flight. It is clear that the trial judge in the present case was fully aware of this fact and his instruction to the jury was substantially the *49 same as that approved by this Court in State v. Sullivan, 43 N.J. 209, 238-39 (1964). The judge charged that the jury could consider flight "with all of the evidence in the case as a circumstance tending to prove a consciousness of guilt" if it found that the defendant fled "fearing an accusation would be made against him on the charges involved in these indictments or an arrest by reason thereof * * * for the purposes of evading the accusation or arrest." Thus, the jury was required to find not only "departure," but the motive which would turn the departure into flight.
Defendant's contention that there was no evidence to support an inference of flight is also without merit. There was ample evidence from which the jury could conclude that Wilson and Sinclair entered Friedman's store to commit a robbery, and that while attempting to carry out that plan, Sinclair shot and killed two persons. Friedman testified that after he struck Wilson with the bottle and retreated toward the alarm in the rear of the store, Wilson came after him. Wilson then looked around, apparently saw that Sinclair had fled, and ran from the store himself. Although the jury could have inferred that Wilson left the store because he was threatened with a broken bottle, it could also readily infer that he fled to avoid apprehension by the police and thereby exhibited consciousness of guilt.
Finally, we cannot accept defendant's contention that a charge regarding flight can only be given where an accused flees from custody of where he is found hiding after the crime. A jury may infer that a defendant fled from the scene of a crime by finding that he departed with an intent to avoid apprehension for that crime. It is not necessary that he flee from custody or that he be found hiding. See State v. Hedinger, 126 N.J.L. 288, 290-291 (Sup. Ct. 1941), aff'd o.b. 127 N.J.L. 564 (E. & A. 1941); State v. Copeland, 94 N.J. Super. 196 (App. Div. 1967). See also 2 Underhill, Criminal Evidence § 373 (5th ed. 1956).
*50 III
Defendant's next contention is that certain remarks made by the prosecutor during summation constituted plain error. The prosecutor referred to the defendant as "this, the lion, or the wounded bear * * * whatever animal type he is partaking in now." In the context of this case, we cannot say that the prosecutor exceeded the bounds of fairness and propriety. In his own summation, defendant's counsel used numerous metaphorical references concerning animals. He said that Sinclair had "savagely shot and killed two human beings" but that Wilson had led "a gentle life" rather than "a murderer's course." He asked the jury: "Can you compare the lion with the mouse? Can you compare the falcon with the dove?" It was in apparent response to these remarks that the prosecutor made the challenged comments. While we do not condone this sort of name calling, it is unrealistic to expect that in the context of heated criminal trials it will not occasionally occur. As we said in State v. Johnson, 31 N.J. 489 (1960): "It is unreasonable to expect that criminal trials will be conducted without some show of feeling. Defense counsel traditionally make dramatic appeals to the emotions of the jury. In these circumstances, a prosecutor cannot be expected to present the State's case in a manner appropriate to a lecture hall." Id. at 510-511. Where we have found that a prosecutor in his summation has overstepped the bounds of propriety and created a real danger of prejudice to the accused, we have not hesitated to reverse convictions. State v. Welsch, 29 N.J. 152 (1959); State v. Siciliano, 21 N.J. 249 (1956). But not every departure from the facts and reasonable inferences necessarily calls for a reversal, and "on the question whether the improper comment shall have that effect, the making by trial counsel of a timely and proper objection and the action of the trial judge in connection therewith are ordinarily controlling considerations." State v. Vaszorich, 13 N.J. 99, 119 (1953). In addition *51 to giving the trial judge an opportunity to take corrective action, a timely objection signifies that the defense believes itself to have been prejudiced by the prosecutor's remarks. Conversely, a failure to object, as here, indicates that in the atmosphere of the trial the defense did not believe that the prosecutor's remarks were prejudicial. State v. Johnson, supra at 511. Considering the context in which the prosecutor's remarks were made, and the failure by the defense to object, we do not believe that the defendant was prejudiced or that the jury's ability to rationally evaluate the evidence was impaired.
IV
Defendant next contends that the trial court erred in permitting testimony over objection concerning the actions of Sinclair following the commission of the crimes and the arrest of Wilson. The trial court allowed several police officers to testify that about two hours after the shooting they saw Sinclair walking near his mother's home, and that after they called for him to stop, he began to run away. Further, they said that just prior to his capture, he was seen to throw an object under a car, the object later being identified as the murder weapon. We think the evidence was properly admitted. Although it is clear that a conspirator's flight may not be admitted against his co-conspirators, e.g., State v. Simon, 113 N.J.L. 521 (Sup. Ct. 1934), aff'd 115 N.J.L. 207 (E. & A. 1935), attempts to conceal a weapon or evidence of the crime by a conspirator are admissible. 2 Wharton, supra at § 430. 3 Underhill, supra at § 864. In the present case the trial court did not instruct the jury on Sinclair's flight. Evidence of Sinclair's running from the police was admitted only to explain the circumstances of his disposal of the weapon. The disposal of the murder weapon by a co-conspirator fleeing from the police is an act in furtherance of the conspiracy and probative against both conspirators. Moreover, *52 the defendant's objection at trial was too broad. It was not limited to the evidence of Sinclair's running from the police but applied to all the events of his arrest, including the concealment of the murder weapon.
V
Defendant urges that the trial court erred in denying his motion to eliminate felony-murder from the case. The standard for deciding this question is whether the evidence viewed in its entirety and giving the State the benefit of all favorable inferences which can be reasonably drawn therefrom supports the conviction beyond a reasonable doubt. State v. Fiorello, 36 N.J. 80, 86-90 (1961), cert. denied 368 U.S. 967, 82 S.Ct. 439, 7 L.Ed.2d 396 (1962). Although the defendant produced two witnesses (Officer Purcell and Unger) whose recollections of Friedman's responses to questioning did not include any mention of an attempted robbery, we think there was ample evidence from which the jury could find that Wilson participated in an attempted robbery during which Sinclair shot and killed two people. Friedman's testimony establishes such an attempt directly and several other police officers corroborated this testimony. Moreover, Wilson admitted having possession of the murder weapon on the night of the killings. The evidence overwhelmingly supported Friedman's testimony, and the jury was entitled to believe him as they did.
VI
Defendant argues that the exclusion of two veniremen for cause by reason of their position on capital punishment denied him a representative jury, thus violating his rights under the due process and equal protection clauses of the fourteenth amendment.
During the voir dire examination 80 veniremen were called; 19 were excused for cause on grounds unrelated to *53 the death penalty; 26 were challenged peremptorily, eight by the prosecution and 18 by the defense; 21 were excused for cause on the basis of their attitude toward the death penalty. Of the 21, 15 were excused because they said they could not vote for the death penalty regardless of the evidence. Of the remaining six, one was excused because he would never consider life imprisonment. Another admitted that his feelings about the death penalty would prejudice him in determining guilt. A third was excused because he did not believe in capital punishment but his dismissal was consented to by the defense. A fourth was excused because he could not vote for death of an accomplice. The only errors asserted by the defense concern the excusing for cause of the two remaining veniremen, Karl and Johnston. Karl said unequivocably when first examined that in "no circumstances, regardless of what the evidence might disclose" could he vote for a verdict of murder in the first degree knowing that a defendant would suffer the death penalty. Later he said that he "might become emotionally charged enough to do so," but he was unable to assure the court that even in those circumstances he would be able to vote for murder in the first degree knowing that the accused might receive a penalty of death. A similar problem arose with venireman Johnston. At first he said that the death penalty would pose no problem for him. Later he said that he was "undecided" about capital punishment and was unable to come to a conviction on the subject. Still later when questioned as to whether he "could vote for a verdict of murder in the first degree knowing that that individual would suffer the death penalty" he answered. "I would have to say no." Finally, he admitted that he did not know how he would react when confronted with the question. Thus, the questioning of both veniremen elicited responses which were at best equivocal.
In Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the United States Supreme Court reversed a death sentence where the prosecution *54 eliminated nearly half the venire of prospective jurors by challenging for cause any veniremen who expressed qualms about capital punishment. This Court first considered the effect of Witherspoon upon New Jersey's practice of jury selection in State v. Mathis, 52 N.J. 238 (1968). There we concluded that our previous cases "define cause in terms agreeable to Witherspoon" since before a prospective juror may be challenged for cause it must appear that he is "unable to return a death sentence no matter what may be the facts of the case." Id. at 244. We held that if a venireman could not affirmatively say whether he was able to vote for the death penalty where the circumstances warranted it, cause was established. Writing for a unanimous Court, Chief Justice Weintraub said:
"[I]f we accept literally the juror's final statement that he could not definitely say whether he was unable to vote for a death sentence, cause was nonetheless established. The State is entitled to a juror who is impartial, i.e., one who is capable of considering whether the death sentence may be meet. Impartiality is a positive attribute. Its presence must appear affirmatively. If a juror, acknowledging racial, religious, or ethnic bias against an accused, is unable to say whether he could or could not judge the case on the merits, he is not an impartial juror. So here, the State is entitled to a juror who can at least assure the court that he will judge." (emphasis added) Id. at 248.
Thus, in accordance with Mathis, it was not error to excuse veniremen Karl and Johnston for cause since neither could assure the court that he was "capable of considering whether the death sentence may be meet." See also State v. Artis, 57 N.J. 24 (1970) (slip opinion at 13-14); State v. Forcella, 52 N.J. 263, 291 (1968). In any event, our examination of the voir dire satisfies us that the trial judge correctly understood the controlling principles of Witherspoon and our cases. And, under these circumstances, even if one or two jurors were erroneously excluded, that does not constitute prejudicial error where, as here, the jury was representative in character. State v. Mathis, supra at 249-251.
*55 VII
Finally, defendant makes several constitutional attacks on the imposition of the death penalty. He concedes that all these arguments were rejected in State v. Forcella, supra. These issues are pending before the United States Supreme Court in cases from other jurisdictions. In addition, our decision in Forcella was the subject of a petition for certiorari and, although Forcella has since died of natural causes, Funicello, who was also involved in the appeal to this Court, is still pursuing the petition for certiorari. We understand the petition has not yet been acted upon. In view of these circumstances and since the death penalty is involved, we think the judgment in this case should be withheld until the United States Supreme Court acts. See State v. Artis, supra, 57 N.J. at 37; State v. Conklin, 54 N.J. 540, 549-550 (1969).
VIII
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. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266715/ | 4 F.Supp. 230 (1933)
COLE
v.
HELBURN, Collector of Internal Revenue.
District Court, W. D. Kentucky, at Louisville.
March 24, 1933.
*231 Elwood Hamilton, of Louisville, Ky., for plaintiff.
T. J. Sparks, U. S. Atty., and Frank A. Ropke, Asst. U. S. Atty., both of Louisville, Ky., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and E. E. Angevine, Atty., Bureau of Internal Revenue, both of Washington, D. C., for defendant.
DAWSON, District Judge.
This is a suit for a refund of income taxes claimed to have been illegally exacted of the plaintiff by the Commissioner for the year 1929. The material facts are as follows:
On July 25, 1929, the plaintiff bought, through a member of the New York Stock Exchange, eight hundred shares of the capital stock of Arcturas Radio Corporation, paying therefor $32,320 in cash. On October 4, 1929, through the same brokers, he purchased one thousand shares of the capital stock of Earl Radio Corporation, paying therefor $7,000 in cash, the two purchases costing him a total of $39,320. On December 16, 1929, he sold through the same brokers the eight hundred shares of Arcturas Radio Corporation stock and the one thousand shares of Earl Radio Corporation stock for $8,635.50, which was $30,684.50 less than the stock cost him. On the same date he sold for his wife, Mary Bass Cole, through the same brokers, two hundred shares of the capital stock of Arcturas Radio Corporation. The broker gave the plaintiff a check for the entire proceeds of these sales, including the stock sold for his wife. On December 17, 1929, W. R. Cole, Jr., son of the plaintiff, purchased through the same brokerage firm one thousand shares of Arcturas Radio Corporation stock and one thousand shares of Earl Radio Corporation stock for the sum of $11,092.50, and on the same date the plaintiff delivered his check for $11,092.50, payable to W. R. Cole, Jr., to said W. R. Cole, Jr., who indorsed same and delivered it to the broker in payment for the shares of stock purchased by him. Simultaneously with the delivery of the check of the plaintiff to his son, W. R. Cole, Jr., the son delivered to plaintiff his demand note for the sum of $11,092.50, with interest at the rate of 6 per cent. per annum from date, and the one thousand shares of Arcturas Radio Corporation stock and the one thousand shares of Earl Radio Corporation stock were indorsed in blank by W. R. Cole, Jr., and attached to the note as collateral security therefor. The plaintiff indorsed on the face of the note this notation: "Mary Bass Cole owns a one-fifth interest in this note." This notation is explained by the fact that two hundred shares of the one thousand shares of Arcturas Radio Corporation stock sold by plaintiff belonged to Mary Bass Cole. No payment, either of principal or interest, was ever made on the note, and on June 15, 1931, the plaintiff wrote the word "cancelled" on the note and took over the stock.
Plaintiff in his evidence frankly admits that the sale of the radio stock was made by him for the purpose of establishing a loss in 1929 for income tax purposes, but that it was a bona fide sale. He and his son agree that the purchase by the son made on December 17, 1929, was on the advice of the plaintiff, who honestly believed that this stock would rise in value; that the plaintiff desired his son to make some money out of same, and that this paternal interest on his part prompted the plaintiff to furnish the son with the money with which to make the purchase. The record contains no evidence contradicting this testimony.
On February 6, 1928, the plaintiff bought four hundred shares of the capital stock of the Atlantic Coast Line Railroad Company for $72,500, these shares of stock being evidenced by certificates numbered from 23,984 to 23,991, both inclusive, and on February 24, 1928, he purchased three hundred additional shares of this stock for $49,200, the stock being represented by certificates numbered from 24,808 to 24,810, both inclusive. On July 22, 1929, he sold three hundred shares of this stock for $60,798, and in consummation of this sale he delivered the certificates representing the purchase made by him on February 24, 1928. He explains in his evidence that he intended to make delivery out of his first purchase, and that delivery out of the second purchase was a mistake on his part.
In his income tax return for 1929 the plaintiff claimed as a deductible loss sustained on his radio stock the sum of $30,684.50, and in reporting the profit realized on the sale of the three hundred shares of railroad stock he figured the cost at what he paid for that much stock purchased on February 6, 1928, instead of the price paid for the stock purchased on February 24, 1928. The Commissioner disallowed the deduction claimed as a loss on the radio stock, and figured the profit on the railroad stock transaction on the basis of what the shares actually delivered cost the plaintiff on February 24, 1928. The propriety *232 of this action of the Commissioner is the question for decision in this case.
The defendant makes no contention that the sale of the radio stock by the taxpayer was not a bona fide sale. The brief for the defendant expressly disclaims any intention to claim that the sale was a fraudulent device for the purpose of evading taxation. It is conceded that the plaintiff had the right to sell the stock for the purpose of establishing a loss for income tax purposes. The defendant bottoms his whole case upon the proposition that the plaintiff, within thirty days after the date of the sale of the radio stock, acquired substantially identical property, and that therefore, by the express provisions of section 118 of the Revenue Act of 1928 (26 USCA § 2118), is precluded from setting up the loss sustained as a deduction. Section 118 reads as follows: "In the case of any loss claimed to have been sustained in any sale or other disposition of shares of stock or securities where it appears that within thirty days before or after the date of such sale or other disposition the taxpayer has acquired (otherwise than by bequest or inheritance) or has entered into a contract or option to acquire substantially identical property, and the property so acquired is held by the taxpayer for any period after such sale or other disposition, no deduction for the loss shall be allowed under section 2023 [23] (e) (2) of this title; nor shall such deduction be allowed under section 2023 [23] (f) unless the claim is made by a corporation, a dealer in stocks or securities, and with respect to a transaction made in the ordinary course of its business. If such acquisition or the contract or option to acquire is to the extent of part only of substantially identical property, then only a proportionate part of the loss shall be disallowed."
In view of the concession made by the defendant that the plaintiff actually sold his stock, and the further concession that W. R. Cole, Jr., actually bought and paid for an equal amount of stock, I am unable to see how section 118 has any application. Viewed in its real light, under this record W. R. Cole, Jr., simply borrowed from his father $11,092.50 and executed his note therefor, pledging as security the stock which he had bought and paid for. In transferring this stock in blank at the time he pledged same, W. R. Cole, Jr., simply did what every person is required to do who pledges corporate stock as collateral security on a note. It is a new conception to treat such a transaction as a sale by the pledgor to the pledgee. In my judgment, it possesses none of the elements of a sale by the pledgor to the pledgee, as that term is commonly used and understood. The situation is not altered by the fact that subsequently, on June 15, 1931, the plaintiff canceled the note and by agreement between him and his son took over the stock. The plaintiff testified that, at the time he took over the stock, the Arcturas Radio Corporation stock had dropped to less than half of the price paid for same by his son, and that the Earl Radio Corporation stock was practically worthless; that these stocks had been bought by his son on his advice, and he did not want his son to sustain a loss because of having acted upon his advice, and that these considerations prompted the cancellation of the note and the taking over of the pledged stock by the plaintiff. Independently of this testimony of the plaintiff, however, the stipulation precludes the defendant from characterizing the transaction between the plaintiff and his son other than as I have described it. As the plaintiff did not acquire title to his son's stock until long after the expiration of thirty days following the sale of his own stock, section 118 has no application, and plaintiff was entitled in his 1929 income tax return to deduct the loss sustained by him in the sale of his radio stock.
I cannot sustain plaintiff's contention with reference to the sale of the Atlantic Coast Line Railroad Company stock. He did not direct his broker to sell any particular stock. He simply directed him to sell three hundred shares, and, when the time came for plaintiff to deliver the property sold, he delivered certificates representing the stock purchased by him on February 24, 1928. There is no claim that plaintiff and the purchaser of this stock had any agreement or understanding as to the particular shares of stock involved in the transaction. Therefore, there can be no contention successfully made that the minds of the parties were in agreement as to the particular shares of stock bought, and that by mistake other and different shares were delivered. The only mistake was made by the plaintiff himself, and for this he must suffer. As it is beyond question that he actually sold and delivered the three hundred shares bought on February 24, 1928, the price paid for these shares on that date must be treated as the cost in computing plaintiff's profit on the sale of these shares.
A finding of facts, conclusions of law, and judgment in conformity with the views herein expressed may be prepared and presented for entry. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1376659/ | 22 S.W.3d 504 (2000)
Maria MARTINEZ, Appellant,
v.
The STATE of Texas
No. 1182-99.
Court of Criminal Appeals of Texas, En Banc.
June 28, 2000.
*505 Penny Lee Andersen, El Paso, for appellant.
Karen Landinger, Asst. DA, El Paso, Matthew Paul, State's Atty., Austin, for the State.
Before the court en banc.
OPINION
KEASLER, J., delivered the unanimous opinion of the Court. WOMACK, J., delivered a concurring opinion, joined by MANSFIELD and JOHNSON, J.J. JOHNSON, J., delivered a concurring opinion.
At Maria Martinez's trial for cocaine delivery, the State called John Rudd, a Department of Public Safety laboratory supervisor, to testify about laboratory test results. Rudd testified that although he did not conduct the tests personally, he reviewed his subordinate's work and could give his opinion of the results. The State asks us to decide if Martinez preserved error regarding Rudd's expert qualifications and whether Rudd's testimony was hearsay. We find that Martinez did not preserve error and that Rudd's testimony was not hearsay.
FACTS
Martinez was charged with cocaine delivery. On direct examination, Rudd testified that he had been a DPS laboratory supervisor for 25 years. He explained his duties, the laboratory's testing procedures, and the security measures he and his employees follow. He also stated that he had testified as an expert witness in narcotics cases more than 1300 times. Based on a laboratory report of tests that Rudd's subordinate Fernando Pena, Jr., performed, the State asked Rudd if he had an opinion as to what the substance tested was. Martinez objected and stated that any opinion Rudd reached was based on hearsay and inadmissable under Cole v. State.[1] The trial court overruled the objection and Rudd testified that the substance was cocaine.
PROCEDURAL HISTORY
Martinez was convicted and sentenced to two years in prison, probated for five years.
She appealed arguing that Rudd's testimony was hearsay and violated her right to confrontation. The court of appeals reversed the conviction, holding that Rudd was not an expert and that his testimony was inadmissible hearsay.[2]
The El Paso District Attorney and the State Prosecuting Attorney filed petitions *506 for discretionary review, and we granted review of two questions:
Did the court of appeals err by reversing the trial court's implicit ruling that Rudd qualified as an expert when Martinez never objected to Rudd's qualifications during trial?
Did the court of appeals err by holding that the present opinion of a testifying witness constitutes hearsay?
ANALYSIS
Expert Testimony
The State called Rudd to testify as to his opinion on the weight and identity of the substance tested. The relevant testimony follows:
Q: ... And did you weigh the substance that was inor was the substance weighed that laboratory Number L4E-25807 refers to?
A: Yes, sir, it was.
Q: What was the weight of that substance?
DEFENSE: Objection, Your Honor. This witness has no personal knowledge. He's previously testified, he did not do the tests. Another individual in the office did them. If they want to do this, then they need to bring the person who did the tests so that we can confront them, cross-examine them about how they were done.
THE COURT: Overruled.
A: The net weight of the powder was .34 grams.
* * * *
Q: Do you have an opinion after reviewing those reports as to what the substance is?
DEFENSE: Objection, Your Honor. May we approach?
THE COURT: Yes, you may approach.
(The following proceedings were held at the bench, outside the hearing of the jury:)
DEFENSE: Judge, any opinion he reaches is going to be based on hearsay. He's testified he did not perform the tests. Under Cole v. State, which we previously called to this Court's attention. We believe it's inadmissible. I understand the State's going to try and argue it comes in as an expert witness. However, the expert witness rules have the contemplation this is something that was not prepared in anticipation of litigation, i.e., medical report in an emergency room.
When we have this type of situation, it goes to the very heart of the hearsay rules which is to confrontation. This witness did not do the test. Fernando Pena did the test. For Ms. Martinez to have her constitutional right to confront the witnesses against her upheld, we are entitled to have the State bring in Mr. Pena so we can cross-examine him as to how he did the tests, the exact procedures used in the tests, exactly what he did and the conclusions he received.
If all Mr. Rudd did, lab supervisor or not, is review some of the reports from a machine, all he's doing is repeating hearsay. He does not have the personal knowledge, and it violates the confrontation clause of the Texas and United States Constitutions.
THE COURT: I believe his testimony is he supervised the work.
DEFENSE: He stated he did not perform the test. He's previously testified to this Court that other people performed the tests. He only reviews the actual results after it's already done.
THE COURT: Okay. Mr. Havlovic, you want to make any statement here?
PROSECUTOR: I think we laid the proper predicate for him to come testify as an expert. And he can testify to his opinion as to what a substance is, and he can review any of the records *507 that were used. And I think that is clear through theas to Rule 705.
DEFENSE: And, Your Honor, we would once again point out, the State is just trying to get n [sic] through the back door and go around the issue of the confrontation clause. This was prepared with the intention of pending litigation. The State does this with drug cases, for preparation to use at trial to prove up their allegations. They ought to bring in the appropriate witness so that my client can confront her accuser, in this case, the person who actually did the test.
THE COURT: Well, I don't know. The Court will overrule the objection.
(The following proceedings were held in open court:)
Q: (BY PROSECUTOR) Mr. Rudd, do you have an opinion as to what the substance is in laboratory number L4E-25807?
A: Yes, sir.
Q: And
DEFENSE: Could we just get a running objection on that ground, Your Honor?
THE COURT: Yes, you may.
DEFENSE: Thank you, Your Honor.
Q: (BY PROSECUTOR) And what is that substance?
A: That the powder did in fact contain cocaine. And as I stated, the net weight was .34 grams.
To preserve error regarding the admission of evidence, a defendant must lodge a timely and specific objection.[3] The purpose of requiring the objection is to give to the trial court or the opposing party the opportunity to correct the error or remove the basis for the objection.[4] During Rudd's testimony, Martinez repeatedly objected on the bases of lack of personal knowledge, hearsay, and a defendant's right to confront the witnesses against her. Not once did Martinez object to Rudd's qualifications as an expert in order to preserve error on that ground.
The court of appeals decided that the State "wholly failed to carry its burden of establishing that Mr. Rudd was an expert witness."[5] The court found that by admitting the testimony, the trial court implicitly found that Rudd qualified as an expert, even though the State never tendered Rudd as an expert.[6] But in the exchange before the trial court noted above, the prosecutor expressly stated that he "laid the proper predicate for [Rudd] to testify as an expert," to which defense counsel again responded with concern for Martinez's right to confrontation. If Martinez wanted to challenge Rudd's qualifications as an expert, she could have objected at this point. She did not, nor did she argue on appeal that Rudd was not qualified as an expert. The court of appeals erred in reversing Martinez's conviction on that ground when it was not preserved.[7]
Hearsay
During his testimony, Rudd relied on a report prepared by his subordinate, Pena, which reflected the results of the tests Pena performed. Rudd based his expert opinion on these results, but the report itself was never offered into evidence. Martinez objected on hearsay grounds and noted that because Pena was not there to testify to his report, Rudd's testimony violated Martinez's right to confrontation. The court of appeals found that because Rudd relied on Pena's report, *508 his testimony was hearsay which the trial court erroneously admitted into evidence.
In the exchange before the trial judge, Martinez cited Cole v. State[8] as the basis for her objections. In Cole, we held that a Department of Public Safety chemist's report was a "matter observed by law enforcement personnel" and therefore, inadmissible under Rule 803(8)(B).[9] Martinez argued that under Cole, Rudd's testimony was hearsay and violative of her right to confrontation because Rudd did not perform the tests reflected in the report, nor did he prepare the report he relied on to form his opinion. We find Martinez's reliance on Cole to be misplaced and that the more appropriate analysis invokes Aguilar v. State.[10]
In Aguilar, a plurality of this Court concluded that the present opinion of a testifying witness does not constitute hearsay because it is not, and can never be, a statement "other than one made by the declarant while testifying at the trial."[11] The plurality said that "even if the expert relies in whole or in part upon information of which he has no personal knowledge, ... the admissibility of his opinion is not affected `unless the court determines that he does not have a sufficient basis for his opinion.'"[12] The Court noted that while there are limits to revealing the basis for an expert's opinion to a jury, those limitations do not apply to the expert opinion itself, but only to the "underlying facts and data."[13] The Court decided that the dispositive issue was whether the report itself was ever actually offered or admitted into evidence over the appellant's objection.[14] We agree with the reasoning of the Aguilar plurality.
Rudd testified at trial as to his present opinion of the test results. While Rudd relied on Pena's report to form the opinion he testified to, the report itself was never offered into evidence. The underlying data and facts were never elicited before the jury. Neither the report nor its contents were offered for the truth of the matter asserted and therefore did not trigger the exclusion of Rudd's testimony on hearsay grounds.
In its opinion reversing Martinez's conviction, the court of appeals found that "the State necessarily failed to establish its right to rely on the hearsay exception carved out by Aguilar."[15] But Rudd testified as to his present expert opinion, so his testimony was not hearsay at all. There was no need to consider whether it fell within an exception to the hearsay rule.
CONCLUSION
Since the trial court implicitly found Rudd qualified as an expert, the State had no burden to invoke an exception to the hearsay rule. Rudd was free to offer his opinion based on Pena's report. And since Martinez never challenged Rudd's expert qualifications, his present opinion regarding the test results was properly admitted over Martinez's hearsay objections.
The trial court properly admitted Rudd's testimony and the court of appeals erred in reversing Martinez's conviction. Therefore, we reverse the judgment of the court of appeals and affirm the judgment of the trial court.
WOMACK, J., filed a concurring opinion joined by MANSFIELD and JOHNSON, JJ.
I join the judgment of the Court, and its opinion so far as it goes. I agree that the issue of the witness's qualifications was not *509 preserved by specific objection, and its opinion that the witness's expert opinion was not hearsay. I write separately because the Court has not addressed a third point which is necessary to the resolution of the case.
The appellant objected to a question other than the one asking for the witness's opinion. She objected to the question, "What was the weight of the substance?" The answer was hearsay if it was offered to prove the weight. I see no other reason for its offer, and the offer was not limited by the State. It is not within the hearsay exception for public records and reports.[1] There was no effort to qualify it as a record of regularly recorded activity.[2] It may have been a type of evidence that an expert could reasonably rely on.[3] But, as the Court points out, there are limits on introducing the inadmissible bases of the admissible opinion.[4] If the State had responded to the hearsay objection by asking for the evidence of weight to be admitted for the limited purpose of showing the basis for the opinion that the substance was cocaine, that might have made it admissible. But the State didn't, and the burden to request admission for a specific, limited purpose is on the proponent of the evidence.[5] So it was error to overrule the hearsay objection to the question about the weight.
The error was harmless, though. Because this was the lowest grade of controlled-substance offense, the State had no burden to prove the weight. And the weight was small, so it probably was not of consequence in the verdict.
JOHNSON, J., filed a concurring opinion.
I agree that the trial court impliedly found that Mr. Rudd qualified as an expert. On that basis, I believe that Mr. Rudd's testimony was of the type which is contemplated by TEX.R.CRIM. EVID. 703, and was therefore properly admitted. With that comment, I join the opinion of the court.
NOTES
[1] 839 S.W.2d 798 (Tex.Crim.App. 1990).
[2] Martinez v. State, 993 S.W.2d 751 (Tex. App.El Paso 1999).
[3] See Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App.1991).
[4] Norris v. State, 902 S.W.2d 428, 446 (Tex. Crim.App.), cert. denied, 516 U.S. 890, 116 S. Ct. 237, 133 L. Ed. 2d 165 (1995).
[5] Martinez, 993 S.W.2d at 759.
[6] Id. at 758-59.
[7] See Hughes v. State, 878 S.W.2d 142, 151 (Tex.Crim.App.1992) (op. on reh'g) (error preservation a "systemic requirement" which appellate courts should address).
[8] 839 S.W.2d 798 (Tex.Crim.App.1990).
[9] Id. at 806.
[10] 887 S.W.2d 27 (Tex.Crim.App.1994) (plurality op.).
[11] Id. at 29, citing TEX.R.CRIM. EVID. 801(d).
[12] Ibid., citing TEX.R.CRIM. EVID. 705(c).
[13] Id. at 30.
[14] Ibid.
[15] Martinez, 993 S.W.2d at 759.
[1] See TEX.R. EVID. 803(8)(B); Cole v. State, 839 S.W.2d 798 (Tex.Cr.App.1990).
[2] See TEX.R. EVID. 803(6).
[3] See TEX.R. EVID. 703; Aguilar v. State, 887 S.W.2d 27 (Tex.Cr.App.1994).
[4] See ante at 508, citing Aguilar, 887 S.W.2d at 30.
[5] See Jones v. State, 843 S.W.2d 487 (Tex.Cr. App.1992). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1376650/ | 467 F. Supp. 324 (1979)
Henry OHLAND
v.
CITY OF MONTPELIER, and the following named Individuals in their official capacity cited herein and as Individuals, Arthur McLellan, Police Chief, City of Montpelier, Roland Dubay, City Manager, City of Montpelier.
Civ. A. No. 75-167.
United States District Court, D. Vermont.
February 26, 1979.
*325 *326 *327 *328 John A. Burgess, Burgess & Normand, Montpelier, Vt., for plaintiff.
*329 W. Edson McKee, McKee, Giuliani & Cleveland, Montpelier, Vt., for defendants.
OPINION AND ORDER
COFFRIN, District Judge.
In this action the plaintiff seeks money damages against the City of Montpelier, its police chief and city manager. The plaintiff alleges that rights guaranteed to him by the first and fourteenth amendments to the Constitution were violated by his discharge as a policeman on March 29, 1974. Plaintiff brought his claim against the individual defendants under 42 U.S.C. § 1983 and its jurisdictional counterpart, 28 U.S.C. § 1343. His direct constitutional claim against the city was brought under the general federal question statute. 28 U.S.C. § 1331. Before addressing the issues and arriving at its decision the court deems a chronological review of the proceedings will be helpful because of the length of time the case has been under advisement following trial on the merits and because of the manner in which the parties have chosen to raise the various issues presented.
I. Procedural History of the Case
Plaintiff filed his complaint on July 2, 1975, and the defendants answered on July 17, 1975. Plaintiff moved for summary judgment under Fed.R.Civ.P. 56(c) on August 11, 1975 arguing that since defendants admitted discharging plaintiff without a hearing after he had served for eleven months there was no genuine issue of material fact. He contended that defendants' failure to provide him a hearing violated his fourteenth amendment due process rights, because the City Charter set the probationary period for policemen at six months. On March 26, 1976 the City of Montpelier moved to dismiss the action "since this is a civil rights action and such action does not lie against a municipality." The defendants also raised an alternative defense, claiming that plaintiff had been a probationary employee when discharged, because he was hired pursuant to the city's Personnel Plan, which provided that classified employees could be hired on a probationary status for up to twelve months. Plaintiff's motion for summary judgment and defendants' motion to amend answer were denied following argument at a hearing on March 30, 1976. Counsel for the parties jointly prepared a proposed pre-trial conference order and presented it to the court on April 26, 1976 for consideration; counsel waived a pre-trial conference scheduled for May 3, 1976. The court accepted the proposal as the pre-trial conference order in the case and it was filed on August 11, 1976. The order limited the issues of fact for determination by the court to:
A. Was the plaintiff employed as a regular police officer;
B. Was the plaintiff discharged as a result of the exercise of his rights under the first amendment to organize a union and to voice opinions; and
C. What damages, if any, is the plaintiff entitled to?
The issues of law were stated to be:
A. Whether a municipal corporation is amenable to federal jurisdiction for violation of constitutional rights pursuant to 28 U.S.C. § 1331(a);
B. Whether the acts of the individual defendants are actionable under 42 U.S.C. § 1983; and
C. Whether res judicata or collateral estoppel bars the plaintiff from raising his claims in this action.[1]
On September 28, 1976, after the pre-trial order was filed, the defendants moved to dismiss the action for lack of jurisdiction, claiming that the Supreme Court's ruling in Bishop v. Wood, 426 U.S. 341, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976), barred this court's consideration of plaintiff's employment status. By written order and opinion filed February 10, 1977 we denied this motion but granted the City of Montpelier's motion to dismiss the action as to it. The court relied on the holdings in Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), and Mitchell v. Libby, 409 F. Supp. 1098 (D.Vt.1976), that a cause of action against a municipality for damages due to a *330 constitutional violation did not lie either under 42 U.S.C. § 1983 or directly under the Constitution and 28 U.S.C. § 1331. At that time the court also held that the decision of the Vermont Supreme Court in Ohland v. Dubay, 133 Vt. 300, 336 A.2d 203 (1975), did not bar us from determining whether plaintiff was a probationary employee or whether he had a cognizable property interest in continued employment.
By order of January 27, 1977, the court allowed amendments to plaintiff's complaint and defendants' answer requesting an award of attorney's fees to the prevailing party pursuant to 42 U.S.C. § 1988.
On February 17, 1977 the plaintiff filed a motion in which he sought to have the court amend its order dismissing the City of Montpelier to enable him to take an immediate appeal therefrom pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5. This motion was denied on March 9, 1977 for reasons stated in a written opinion.
Trial commenced by court on March 15, 1977 and the taking of evidence was completed that day. The court granted leave for the parties to take and file the deposition of defendant McLellan who was ill, and deferred hearing evidence on the question of damages to a date subsequent to the filing of the McLellan deposition. On July 6, 1977 this deposition was filed and the court received evidence on the question of damages. Decision on the merits was reserved at the conclusion of the trial and the parties subsequently filed requests for findings and post-trial memoranda as requested by the court.
In the interval between the commencement and conclusion of the taking of evidence, defendants McLellan and Dubay filed a motion requesting the court to reconsider its February 10, 1977 holding that plaintiff had been a regular employee of the city with a continued expectation of employment. Defendants advanced the argument that in Ohland v. Dubay, 133 Vt. 300, 336 A.2d 203 (1975), "the following issues were litigated:
(1) Dismissal for union activity.
(2) Dismissal for activities in bringing about an investigation of the Police Department.
(3) That the dismissal was for inability to perform routine police work in a competent fashion."
Motion to Reconsider and Memorandum in Support of Defendants' Motion Concerning Res Judicata, filed March 23, 1977. Defendants asserted that evidence with respect to those allegations should not have been received in the instant action under principles of res judicata and collateral estoppel. A discussion of these claims will follow below.
On November 3, 1977, with the case still under advisement, the plaintiff filed a motion to reinstate the City of Montpelier as a party defendant, following the Second Circuit's decision in Gentile v. Wallen, 562 F.2d 193 (2d Cir. 1977), holding that a complaint setting forth a denial of due process by a municipal corporation stated a cause of action directly under the fourteenth amendment. We withheld decision on this motion pending the en banc decision of the Second Circuit in Turpin v. Mailet, 579 F.2d 152 (2d Cir. 1978), which was expected to address the same question. Turpin was decided on June 5, 1978. A divided court held that a damage action could be maintained against a municipality to redress injuries resulting from the actions of its employees that have been authorized, sanctioned or ratified by municipal officials or bodies functioning at a policy-making level. The following day, June 6, 1978, the United States Supreme Court decided the case of Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), which held that local governments were "persons" to whom the provisions of 42 U.S.C. § 1983 apply.
On June 19, 1978 the court met with counsel and requested additional memoranda of law concerning the effect of Turpin and Monell on the present case. On June 28, 1978 the parties stipulated to the reinstatement of the City of Montpelier as a party defendant. Based thereon, it is now so ordered. In the same stipulation the *331 parties agreed that "[f]or all purposes, including that of determining the liability of the City of Montpelier, this action may be submitted to the Court on the basis of the facts which are already of record, and further taking of evidence being waived by all parties." The court now undertakes an examination of those facts.
II. Findings of Fact
On April 15, 1973, the individual defendants, acting jointly and severally in their official capacities and as representatives of the City of Montpelier, hired plaintiff as a police officer. At the time he was hired, plaintiff was advised that he would be on the "usual" probationary status. It is unclear what the parties had in mind at that time with regard to the period or terms of probation but it is likely that no specific consideration was given to either.
At that time the Montpelier City Charter provided for a six-month probationary period for newly-appointed regular police officers, during which period the chief of police could summarily revoke an appointment. Thereafter an officer could be discharged only for incompetence, neglect of duty or misconduct, and would be entitled to a hearing on those charges before the city council.
The City of Montpelier had also adopted a personnel policy pursuant to a legislative grant of authority, Vt.Stat.Ann. tit. 24, §§ 1121-22 (1975), which policy was in effect at the time plaintiff was hired. Section 2-703 of that Personnel Plan reads:
All appointments of classified employees shall be, in the first instance, made for a minimum probationary period of six months and a maximum period of twelve months. The determination of length of probationary period is to be made by the department head when employing applicants and made a permanent record within the employee's personnel file.
Any employee may be discharged from duty during his probationary period by the department head without the benefit of notice or hearing as provided in Sec. 2-720.
No evidence indicates whether defendant McLellan, the head of the police department, made the required permanent record of the length of plaintiff's probationary period in plaintiff's personnel file at the time of hiring.[2] Ohland later understood from conversations with other police officers that the probationary term was customarily twelve months.
Prior to being hired by the City of Montpelier, plaintiff had worked for five years for the Nassau County, New York, police department as a patrolman and acting detective. During that period he was a member of an organized policemen's association. When he was hired in Montpelier there was no employee's organization of any type in the Montpelier Police Department.
During the spring and summer of 1973 discussions arose among Montpelier police officers, including the plaintiff, about forming a Police Benevolent Association (PBA).[3] On September 20, 1973 department members of the rank of sergeant or below agreed to form such an association. Although he initially declined the nomination, plaintiff became the organization's first president on October 4, 1973.
Prior to his election as president, plaintiff, Sergeants Rock and Graham and Captain Roya met with defendant McLellan. Defendant Dubay was not present. McLellan referred to the PBA as a union and warned the participants to "watch it" and "go very, very carefully." McLellan nevertheless provided the members of the department with the opportunity to form the organization by furnishing a meeting room and allowing time for meetings during working hours.
*332 During the period when the PBA was being organized plaintiff and other representatives of the police department met with defendant Dubay in his capacity as city manager to discuss complaints that the officers had about the operation of the department. In addition to a number of minor issues, they discussed the possible discharge of Chief McLellan by defendant Dubay.[4] McLellan's attitude was that he was not going to let a "politician get him." The PBA backed Chief McLellan but sought better organization of the department.
Plaintiff and Michael O'Neill, a member of the police force who testified as a witness for plaintiff, stated that at a meeting with defendant Dubay in early October, 1973, at which the PBA was discussed, Dubay advised that the members of the police department could have a union but he would fight it every way "not legal."[5] Ohland testified that, at a meeting held later the same week, defendant Dubay stated to the officers present that if the union caused any difficulties "you will be down the road." Ohland also testified that Dubay had had difficulties with police unions in other municipalities and that Dubay stated that he had a reputation as a "union buster." Both Dubay and Captain Roya, who attended the meetings, denied that there had been any anti-union threats made by Dubay or that he had even stated or implied he was a "union buster." Dubay did indicate in a conversation with plaintiff that although he had no objection to the PBA, he was a little concerned with it in the first instance and later believed it was leading to the organization of a union.
In February, 1974 the PBA became affiliated with the American Federation of State, County and Municipal Employees, AFL-CIO (AFSCME). Plaintiff remained active in the PBA until his discharge and had further meetings with both Dubay and McLellan about union matters following the affiliation with AFSCME. From the date of plaintiff's election as president of the PBA until his discharge, however, McLellan never said anything about plaintiff's involvement with the union affecting his employment status. Ohland did testify that on two, possibly three, occasions McLellan told him that Dubay was looking for reasons to fire plaintiff.
As a police officer plaintiff had a mixed record. His performance of routine matters such as traffic control and the answering of non-criminal complaints was not satisfactory. He did his best work in the area of criminal and narcotics investigations. McLellan, who was in close contact with plaintiff, was aware of the manner in which Ohland performed his duties but Dubay, who did not see plaintiff frequently, testified he had no complaint with plaintiff's work. Controversy existed in the Montpelier Police Department in late March, 1974. Although the exact nature of the problem is not clear from the evidence, there was testimony indicating that the department was generally badly managed and disorganized. The city council was sufficiently concerned about the situation that on two separate occasions it appointed citizens committees to review the department's operations. Prior to this time there had been newspaper publicity about PBA meetings; and on at least one occasion plaintiff had talked to a reporter from the local newspaper, the Montpelier Times-Argus, about conditions in the police department.
On March 25, 1974 defendant McLellan requested and received a letter from the city attorney, which in its entirety read:
March 25, 1974
Arthur McLellan, Chief of Police
City Hall
Montpelier, Vermont 05602
Dear Chief McLellan:
You have requested my opinion concerning your right to discharge a probationary patrolman and whether or not it would be an unfair labor practice under Municipal Labor Relations.
Article VII entitled City Employees Personel [sic] Plan § 2-703 gives you the *333 privilege to discharge any person during his probationary period without notice or hearing as provided in § 2-720. It would appear that under the Municipal Labor Relations Act that a person on probationary status is not a municipal employee and it would be my opinion that such a discharge would not violate the Act.
Very truly yours,
s/ W. Edson McKee
W. Edson McKee
City Attorney
wem/ll
c.c. Roland Dubay, City Manager[6]On March 28, 1974 plaintiff received a letter from defendant McLellan which stated:
This department has made an evaluation of your progress during your probationary period and concluded that you do not meet the standards of this department. Your services are terminated as of March 29, 1974.[7]
At the time of his discharge the plaintiff was not given a hearing or a statement of reasons for his discharge.
Defendant McLellan testified that plaintiff was discharged because he was "still a probationary patrolman [and] I wasn't satisfied with his work as a patrolman." He also testified that he had spoken with plaintiff about his dissatisfaction before the discharge and that Ohland's union activities had nothing to do with his discharge. Ohland on the other hand testified that McLellan told him he had been fired for union activities "but he would deny it in court."
Defendant Dubay did not instruct McLellan to discharge Ohland nor did McLellan consult with Dubay before doing so. The city manager first had notice of the discharge when he received a copy of Ohland's termination letter. The court notes, however, that the city attorney's letter of March 25, 1974 to McLellan bears a notation that a copy had gone to Dubay.
Following his discharge plaintiff and the union filed an unfair labor practice charge against defendants Dubay and McLellan with the Vermont State Labor Relations Board (the Board) pursuant to the Vermont Municipal Labor Relations Act, Vt.Stat. Ann. tit. 21, Ch. 22 (1975). After a hearing, the Board made Findings of Fact and Conclusions of Law and dismissed the complaint based thereon. The Vermont Supreme Court sustained the holding of the Board on appeal. Ohland v. Dubay, 133 Vt. 300, 336 A.2d 203 (1975).
At some point in this history, the exact time not appearing, plaintiff secretly taped a conversation he had with defendant Dubay. In the course of that interview, a query from Ohland as to the real reason he was fired precipitated a response from Dubay "right off the top of my head and straight from shoulders, . . . Why the hell didn't you keep your mouth shut for a year?"[8] Dubay also stated that Ohland's discharge was the result of many factors, but primarily his attitude.[9]
Following his discharge on March 29, 1974, plaintiff was unemployed until September 5, 1975. During the period of unemployment he made 187 job applications for positions both in and out of police work. Also during this period of time he was recuperating for a period of approximately three months from a broken leg sustained in a snowmobile accident which occurred around Thanksgiving, 1974. On September 5, 1975 plaintiff finally secured employment with the Burlington Police Department, and he remained there until February 4, 1976, when he voluntarily quit in anticipation of *334 securing employment with the Barre Police Department. In July 1976, after the Barre job did not materialize, he opened his own business and from that time forward his financial situation has been "recovering."
At the time of his discharge plaintiff's pay was $144.90 a week. After losing his job, he was unemployed for a period of 75 weeks. For approximately 13 of those 75 weeks plaintiff was recovering from the effects of his broken leg. Nothing in the record indicates that this period of convalescence detracted in any way from his ability to obtain work or that he was less able to obtain work during this period than at other times during his unemployment.
When plaintiff finally went to work for the Burlington Police Department he was paid $121 a week, or $23 less than he was receiving from the City of Montpelier at the time of his discharge. The loss he sustained for the 22-week period that he worked in Burlington was $525.80. Inasmuch as the plaintiff voluntarily severed his Burlington employment, he suffered no loss of income from that point forward as the result of his discharge by the defendants. Therefore, his total loss of income due to his job termination was $10,867.50 plus $525.80, or $11,393.30.
The evidence does not support the award of any additional damages for emotional distress. After the loss of his job, the plaintiff became upset and experienced some emotional difficulty. Following his discharge, he verbalized some thoughts about killing himself, his relationship with his wife deteriorated, he exhausted $3,000 which he had received from an insurance settlement, and his family was dependent upon welfare for a period of time. The plaintiff did not seek medical treatment for these emotional difficulties although his counsel arranged an appointment for him and his wife with Dr. Peter H. LeQueur, a psychiatrist associated with the Vermont State Hospital. As the result of an interview held on May 12, 1975 which lasted approximately one and a half hours, Dr. LeQueur formed the judgment that prior to his discharge the plaintiff and his wife were cheerful, pleasant people who got along reasonably well. Ohland was inclined to push his wife around somewhat but did not beat her. He was also a good and fair father although his wife thought he was away from home too much. After the loss of his job, the plaintiff became irritable toward his wife and despondent about life in general. He suffered from a loss of dignity and self-worth and made comments about self-destruction a number of times to his wife. As a result Dr. LeQueur concluded at the time of the interview that the plaintiff had endured a feeling of life without dignity for 14 months and that his discharge was a contributing factor to that state. Other contributing causes, according to Dr. LeQueur, were plaintiff's broken leg, a gall bladder attack and difficulties associated with the collapse of his house sometime prior to the loss of his job.
The loss of his job was upsetting and caused the plaintiff emotional difficulty but it is impossible to find, and accordingly the court does not, that his emotional problems were any greater or different than those associated with the loss of employment by most individuals who find themselves suddenly without a job regardless of the cause. The court does not find that plaintiff's emotional difficulty was directly attributable to any intentional, malicious or unlawful acts on the part of the defendants.
The court has also considered plaintiff's claims for damages arising specifically from his being deprived of procedural due process rights in the manner of his termination. Because plaintiff would have been discharged for cause even if he had been given notice and a hearing before the city council, he has suffered no independent harm due to the city's failure to follow those procedures. In addition, since at the time of his discharge he did not believe that the city's procedures were deficient, we cannot find that he suffered any mental distress as a result of the denial of procedural due process itself.[10] We conclude, *335 therefore, that if plaintiff were entitled to recover damages from the defendants for the deprivation of due process, he would be entitled to recover nominal damages only. However, for the reasons discussed below, the court holds that the defendants are not answerable in damages under any of the theories of liability advanced by the plaintiff in this action.
III. Collateral Estoppel Effect of State Proceedings
Defendants in this action have affirmatively asserted the defense of res judicata.[11] The defense, however, is more properly one of collateral estoppel,[12] or estoppel by verdict as it is generally called in Vermont.[13] The defense is claimed to arise from the findings and conclusions of the Vermont State Labor Relations Board and the Vermont Supreme Court concerning the plaintiff's employment status at the time of his discharge and the reasons for that discharge. The focus of the state court litigation on this matter was whether the discharge constituted an unfair labor practice under Vt.Stat.Ann. tit. 21, § 1726 (1978). In the instant proceeding the issue is whether the discharge violated the plaintiff's constitutional rights. Our examination of the record of the state proceedings reveals nothing from which we could even infer that the constitutional issues were either raised or decided in those proceedings. It is therefore apparent that res judicata will not bar this court's consideration of the constitutional claims. Ornstein v. Regan, 574 F.2d 115 (2d Cir. 1978); Winters v. Lavine, 574 F.2d 46 (2d Cir. 1978); Ellentuck v. Klein, 570 F.2d 414 (2d Cir. 1978); *336 Turco v. Monroe County Bar Ass'n, 554 F.2d 515 (2d Cir.), cert. denied, 434 U.S. 834, 98 S. Ct. 122, 54 L. Ed. 2d 95 (1977); Newman v. Board of Education, 508 F.2d 277 (2d Cir.), cert. denied, 420 U.S. 1004, 95 S. Ct. 1447, 43 L. Ed. 2d 762 (1975); Lombard v. Board of Education, 502 F.2d 631 (2d Cir. 1974), cert. denied, 420 U.S. 976, 95 S. Ct. 1400, 43 L. Ed. 2d 656 (1975); Thistlewaite v. City of New York, 497 F.2d 339 (2d Cir.), cert. denied, 419 U.S. 1093, 95 S. Ct. 686, 42 L. Ed. 2d 686 (1974).
This general conclusion, however, does not resolve the question of whether this court is bound by the specific findings of the Vermont State Labor Relations Board as to whether the plaintiff was a probationary employee at the time of his discharge and whether he was discharged for union activities or for the unsatisfactory performance of his duties. The Board ruled that the plaintiff was on a probationary status at the time of his discharge and that he was properly discharged for failure to perform his regular duties satisfactorily. Defendants' position is that these findings have collateral estoppel effect in the present litigation and are determinative of the plaintiff's constitutional claims that is, because plaintiff was a probationary employee, he had no due process right to notice and hearing on his termination; and because he was fired for good cause, he could not have been fired for the exercise of protected first amendment rights.
Upon review of the record of the Board's hearings, appropriate Vermont law, the Printed Case before the Vermont Supreme Court, and upon thorough consideration of the cases dealing with the collateral estoppel effect of state administrative determinations, we reject the argument that this court is estopped from making an independent review of any issue decided by the Board. We are convinced, however, that the Vermont Supreme Court's determination in this case stands in a different posture and precludes our examination of those issues that were fully and fairly litigated in that forum, concluded by a final judgment, and the determination of which was necessary to the judgment rendered. These conclusions require us to dismiss the first amendment claim and to consider the due process claim on its merits.
28 U.S.C. § 1738[14] requires federal courts to give full faith and credit to judgments entered by state courts of competent jurisdiction. A federal court must accord a prior judgment of a state court the same conclusive effect that res judicata considerations would have required it to be given within the state. Winters, 574 F.2d at 54; Mitchell v. National Broadcasting Co., 553 F.2d 265 (2d Cir. 1977); McCune v. Frank, 521 F.2d 1152, 1155-57 (2d Cir. 1975); American Mannex Corp. v. Rozands, 462 F.2d 688 (5th Cir.), cert. denied, 409 U.S. 1040, 34 L. Ed. 2d 489 (1972). Section 1738 also requires in appropriate circumstances that a federal court apply the state court's standards of collateral estoppel. Winters, 574 F.2d at 54; American Mannex Corp., 462 F.2d at 690; United States v. Silliman, 167 F.2d 607, 620-21 (3d Cir.), cert. denied, 335 U.S. 825, 69 S. Ct. 48, 93 L. Ed. 379 (1948); 1B Moore's Federal Practice ¶ 0.406 at 902 n.4 (2d ed. 1974); Developments in the Law Section 1983 and Federalism, 90 Harv.L.Rev. 1133, 1138 n.37 (1977).
Although the Second Circuit decisions have not always been consistent on this issue, the rule regarding collateral estoppel *337 in federal civil rights lawsuits in this circuit has recently been restated by the court of appeals:
[A] litigant in federal court is precluded from relitigating issues which were litigated and determined adversely to him in the prior court proceeding, but "for the doctrine of issue preclusion [i. e., collateral estoppel] to be applicable, the determination of the issue must have been necessary to the [prior] decision."
Winters v. Lavine, 574 F.2d 46, 57 (2d Cir. 1978) (quoting Lombard v. Board of Education, 502 F.2d 631, 637 (2d Cir. 1974)) (additional citation omitted). The doctrine of collateral estoppel expressed in Winters is in accord with the Vermont rule of estoppel by verdict;[15] therefore, it is unnecessary for the court to determine whether "general" federal res judicata doctrine or Vermont collateral estoppel doctrine applies in this case. See id. at 55.
Some support can be found for the proposition that the findings of fact and conclusions of law of state administrative agencies should be given collateral estoppel effect in subsequent federal court proceedings. Mitchell v. National Broadcasting Co., 553 F.2d 265 (2d Cir. 1977). Cf. United States v. Utah Construction & Mining Co., 384 U.S. 394, 422, 86 S. Ct. 1545, 16 L. Ed. 2d 642 (1966). However, this is not a rule to be applied mechanically. The degree of deference accorded to state administrative rulings in subsequent federal civil rights actions is a function of several factors, including the thoroughness of the prior proceeding, the procedural protections employed, whether the parties were represented by counsel, whether the ruling was one of law or fact, and whether the ruling was upheld on appeal in the state courts. See Mitchell, 553 F.2d at 269; Whitman Electric, Inc. v. Local 368, IBEW, 398 F. Supp. 1218 (S.D.N.Y.1974).
The first matter for consideration is the Vermont State Labor Relations Board's finding that plaintiff was discharged because of his unsatisfactory performance of routine police duties, and not because of his membership in, leadership of, or advocacy on behalf of the Police Benevolent Association, nor because of his public criticism of the administration of the police department. On appeal the Vermont Supreme Court upheld this conclusion as being "supported by credible evidence and legitimate inferences which fall within the Board's special province . . .." Ohland v. Dubay, 133 Vt. 300, 303, 336 A.2d 203, 205 (1975). The Board and the supreme court both determined that plaintiff's dismissal was not a violation of rights protected by the Municipal Labor Relations Act, Vt.Stat.Ann. tit. 21, §§ 1721-1735 (1978). Such a conclusion would not necessarily bar a § 1983 action based on first amendment grounds, because the statutory definition of unfair labor practices might not cover the full range of expression protected by the first amendment. The state court's opinion in Ohland, however, is determinative of the constitutional claim in the present case because the statutory claim argued in the state proceedings and the constitutional claim presented here are based on the same facts. Plaintiff's union-related activity would be protected in either case,[16] and plaintiff alleges no other impermissible *338 ground for the discharge in the complaint before this court. The factual conclusion in the state litigation that the plaintiff was discharged for cause, not in violation of the Municipal Labor Relations Act, is binding on this court and is dispositive of plaintiff's first amendment cause of action.
The second issue before the court involves the Vermont State Labor Relations Board's determination that the plaintiff was a probationary employee at the time of his discharge and was therefore not entitled to notice and a hearing before being fired. The Board explicitly ruled that "[c]omplainant Ohland was a probationary police officer for one year from his April 5, 1973, date of hire" and that he was "dismissed during his probationary period without hearing for cause." (Printed Case at 19). If this court accepted the Board's ruling as conclusive, it would be necessary to dismiss the plaintiff's due process claim, because a probationary employee has no independent federal constitutional right to receive a hearing prior to discharge. Bishop v. Wood, 426 U.S. 340, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976). We do not believe, however, that we should give the Board's determination in this matter collateral estoppel effect.
There has been no factual dispute among the parties over the date or manner of plaintiff's discharge, but there has been substantial disagreement with respect to his legal status at the time of his discharge. The Montpelier City Charter, Title IX, § 7 provides that "[a]ll persons hereafter appointed as regular police officers shall serve a six months' probationary period before such appointment becomes final." The city's Personnel Plan, on the other hand, permits department heads to establish probationary periods for new employees ranging from six to twelve months. The Montpelier Police Department has uniformly applied a twelve-month period. The dispute in this case has involved solely questions of law namely, whether the Charter and the Personnel Plan are in conflict, and if so, which would govern the establishment of probationary employment periods.
The policy justifications for according prior determinations of state tribunals collateral estoppel and res judicata effect in federal civil rights litigation become somewhat attenuated when administrative agencies are involved and are weaker still when the agency's decision turns solely on a question of law. As the Second Circuit stated in Mitchell,
The distinction we draw for res judicata purposes between state administrative and state judicial proceedings is particularly valid in this case, where the legal merit of the complaint was resolved by the state agency. It is reasonable to question whether such a legal determination, when made only by administrative officials, should bar consideration of the complaint by a federal court.
Mitchell v. National Broadcasting Co., 553 F.2d 265, 276 (2d Cir. 1977). Keeping in mind the importance of federal avenues for redress of civil rights claims and the limitations of administrative decisionmaking, we decline to be bound by the legal conclusion of the Vermont State Labor Relations Board on this matter.
Nor can we give any collateral estoppel effect to the subsequent decision of the Vermont Supreme Court on this issue. The court expressly declined to decide the issue of plaintiff's employment status, merely pointing out that "[i]t is fair to say that both he, his employer, and the Board considered his status to be a probationary one." Ohland v. Dubay, 133 Vt. 300, 303, 336 A.2d 203, 205 (1975). The court found plaintiff's employment status to be "irrelevant if the Board's determination of the focal issue regarding unfair labor practice is sustained." Id. It is obvious that no collateral estoppel effect can be granted to this language, particularly since plaintiff's employment status is, in fact, extremely relevant to his due process claim.
IV. The Due Process Claim
We now turn to evaluation of the merits of plaintiff's remaining claim, an action in *339 damages for deprivation of his due process right not to be discharged except for cause and only after notice and a hearing before the city council. This action is brought under two distinct jurisdictional theories. The first is an action under 42 U.S.C. § 1983, and its jurisdictional counterpart, 28 U.S.C. § 1343, for redress for the deprivation of a constitutional right under color of state law. Under the second theory, plaintiff urges the court to find jurisdiction under the general federal question statute, 28 U.S.C. § 1331, and to imply a damage remedy directly under the Constitution for violation of his fourteenth amendment due process rights.
There are two distinct requirements for recovery for the violation of due process rights in an action brought under either the fourteenth amendment or § 1983: the defendant must have acted under color of state law, and the defendant's actions must have deprived the plaintiff of a federally secured liberty or property interest. See, e. g., Board of Regents v. Roth, 408 U.S. 564, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972); Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970); Monroe v. Pape, 365 U.S. 167, 184, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). It is undisputed in this case that the defendants acted under color of state law, but they have argued strenuously that no federally secured liberty or property interest was involved.
This court has ruled otherwise. In an opinion and order dated February 10, 1977, we held, after thorough consideration of the applicable Vermont law, that the provisions of the Montpelier City Charter governed plaintiff's employment, and that he was therefore a probationary employee for only the first six months of his employment. Consequently, at the time of his discharge, he could have been discharged only for incompetence, neglect of duty or misconduct, and he was entitled to a pretermination hearing before the city council. City of Montpelier Charter, tit. IX, §§ 7, 14, 16. See Rutter v. Burke, 89 Vt. 14, 93 A. 842 (1915).
Because he could have been discharged only for cause, plaintiff had a property interest in his employment that was entitled to constitutional protection. Bishop v. Wood, 426 U.S. 341, 345 n.8, 96 S. Ct. 2074 n.8, 48 L. Ed. 2d 684 n.8 (1976); Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970). It is undisputed that the plaintiff was not accorded the protections guaranteed him by the due process clause. Without advance notice, he received a form letter from the chief of police stating only, "you do not meet the standards of this Department." Defendant's Exhibit A. He was given neither a formal statement of reasons for his discharge, nor a hearing before the city council. Without repeating the reasons and support for our conclusions, we reaffirm our belief in the soundness of the prior order. Having determined that defendants violated plaintiff's due process rights, we must turn to the question of whether the relief he requests, monetary damages, is an appropriate remedy under either of the theories of recovery advanced.
A. Recovery in Damages under § 1983
In enacting § 1983,[17] Congress created a far-reaching statute offering considerable flexibility for the vindication of constitutional rights. The Supreme Court has held that actions under § 1983 will lie against municipal defendants and that monetary damages are potentially an appropriate remedy in such cases:
*340 Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief where, as here, the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers.
Monell v. Department of Social Services, 436 U.S. 658, 690, 98 S. Ct. 2018, 2035-36, 56 L. Ed. 2d 611 (1978) (footnote omitted). The scope of relief under § 1983 is broader than the quoted language would indicate. In Monell, the Court also held that, when sued in their official capacity, the officials of a suable local entity are "persons" potentially liable under § 1983, and that governmental "custom," even if not formally endorsed by the lawmaking body, may give rise to § 1983 liability. Id. at 691, 98 S. Ct. 2018. Plaintiff's discharge in the circumstances of this case was undeniably an official act of the City of Montpelier pursuant to established city policies. Thus, plaintiff's cause of action does not suffer either because it is in part grounded on the actions of individual defendants sued in their official capacities or because the custom of the police department as to twelve-month probationary periods was never officially endorsed by the city council.
Nevertheless, in the circumstances presented here, we cannot hold the defendants liable for monetary damages under § 1983 due to their failure to accord plaintiff his due process rights, because they are entitled to a qualified good faith immunity[18] for acts undertaken in setting and enforcing an official policy reasonably thought to be constitutional and applied in a nondiscriminatory manner. This qualified good faith immunity applies to the individual defendants in their personal and representative capacities, and to the City of Montpelier as a corporate "person" subject to § 1983 liability. Taking each category of defendants in turn, we will treat first the question of the liability of the named defendants as they are sued in their individual capacities, and then turn to the question of official-capacity and municipal liability.
Liability of the Individual Defendants
The Supreme Court set forth the history of and rationale for the doctrine of qualified immunity for governmental officials in Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974):
Public officials, whether governors, mayors or police, legislators or judges, who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices. Implicit in the idea that officials have some immunity absolute or qualified for their acts, is a recognition that they may err. The concept of immunity assumes this and goes on to assume that it is better to risk some error and possible injury from such error than not to decide or act at all.
Id. at 241-42, 94 S.Ct. at 1689 (footnote omitted).
These considerations have been considered especially significant when executive officials are sued as individuals for actions taken in the good faith performance of their official duties, because such liability would deter qualified persons from taking and exercising executive authority. Wood v. Strickland, 420 U.S. 308, 320, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975). In enacting § 1983, Congress did not intend to impose strict liability for constitutional torts. Individual defendants have a qualified immunity measured by both objective and subjective tests of good faith. An individual is not *341 liable under § 1983 unless "he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights" of the plaintiff, or "he took the action with a malicious intention to cause a deprivation of constitutional rights or other injury . . .." Id. at 322, 95 S.Ct. at 1001.
In the case at bar, there has been no claim that the individual defendants acted maliciously or with discriminatory intent in denying plaintiff a pretermination hearing. The Vermont Supreme Court found that all of the parties involved in this case believed that the twelve-month probationary period was properly authorized. Ohland v. Dubay, 133 Vt. 300, 303, 336 A.2d 203 (1975). Moreover, defendants uniformly applied the period to all new officers in the police department. Thus, defendants' individual liability turns on the question whether they should have known that their actions would violate the constitutional rights of the plaintiff.
We do not believe any such duty existed in the present case. Whatever merit there may be in holding officials liable for unknowing violations of the well-established constitutional rights of others, we can find no justification for requiring officials to interpret unsettled law or to predict how courts may subsequently decide constitutional issues. See McKinnon v. Patterson, 568 F.2d 930, 934-35 (2d Cir. 1977), cert. denied, 434 U.S. 1087, 98 S. Ct. 1282, 55 L. Ed. 2d 792 (1978). The issue of the conflict between Montpelier's Charter and its Personnel Plan had not been determined by any court, or to our knowledge, even been raised in a judicial proceeding prior to plaintiff's discharge. Defendants' actions were reasonable under a statute believed to be valid and only later held to violate plaintiff's rights; they cannot be held liable in monetary damages for their good faith implementation of the city's Personnel Plan. Wood v. Strickland, 420 U.S. 308, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975); Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974); Sullivan v. Meade Independent School District No. 101, 530 F.2d 799 (8th Cir. 1976).
Liability of the Municipal Defendants
We now consider the liability of the municipal defendants. The first question is whether the liability rules that apply to the individual defendants sued in their representative capacity differ from the rules that govern the liability of the City of Montpelier as a governmental entity. Both logic and established precedent support the conclusion that these defendants should be considered in one class.
Prior to the Supreme Court's decision in Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978), it was settled doctrine that the federal courts had no jurisdiction under § 1983 to award damages against municipalities, states, or counties, because they were not "persons" within the meaning of that statute. City of Kenosha v. Bruno, 412 U.S. 507, 93 S. Ct. 2222, 37 L. Ed. 2d 109 (1973); Moor v. County of Alameda, 411 U.S. 693, 707-10, 93 S. Ct. 1785, 36 L. Ed. 2d 596 (1973); Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). The lower federal courts were not in complete agreement as to whether the Supreme Court's rulings on public entity liability would nonetheless have permitted damage awards against municipal officials sued in their official capacities. See Muzquiz v. City of San Antonio, 520 F.2d 993 (5th Cir. 1975), rev'd on rehearing en banc, 528 F.2d 499 (1976), vacated, 438 U.S. 901, 98 S. Ct. 3117, 57 L. Ed. 2d 1144 (1978); Harkless v. Sweeny Independent School District, 427 F.2d 319 (5th Cir. 1970), cert. denied, 400 U.S. 991, 91 S. Ct. 451, 27 L. Ed. 2d 439 (1971); Black Brothers Combined v. City of Richmond, 386 F. Supp. 147, 148 (E.D.Va.1974). The chief issue in these cases was whether or not municipal officials acting within their representative capacities ought to be treated as extensions of the municipality for the purposes of § 1983 damage actions, and thus be given immunity along with the municipality.
*342 The Second Circuit adopted the better view in Monell v. Department of Social Services, 532 F.2d 259 (2d Cir. 1976), rev'd on other grounds, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). In Monell, the court of appeals rejected a number of arguments for creating different liability rules for local political entities and their officials. Noting that damage awards would come from the public treasury in either case, the court held that "[t]he mere substitution of the name of the official for the name of the city in the complaint cannot be used as a subterfuge to circumvent the intent of Congress." 532 F.2d at 266.
The Supreme Court endorsed this conclusion, noting that "official capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent." Monell v. Department of Social Services, 436 U.S. 658, 690 n.55, 98 S. Ct. 2018, 2036 n.55, 56 L. Ed. 2d 611 (1978). Because the Court held that municipalities were potentially liable under § 1983, it followed that "local government officials sued in their official capacities are "persons" under § 1983 in those cases in which, as here, a local government would be suable in its own name." Id. It is thus apparent that the liability rules for damage awards under § 1983 ought to be identical for local political entities and officials sued in their representative capacity.
The question remaining is what those liability rules should be.[19] The Supreme Court explicitly left this issue unresolved by declining to address "what the full contours of municipal liability under § 1983 may be," 436 U.S. at 695, 98 S.Ct. at 2038. More specifically, the Court expressed "no views on the scope of any municipal immunity beyond holding that municipal bodies sued under § 1983 cannot be entitled to an absolute immunity, lest our decision that such bodies are subject to suit under § 1983 `be drained of meaning.'" 436 U.S. at 701, 98 S.Ct. at 2041 (quoting Scheuer v. Rhodes, 416 U.S. 232, 248, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974)) (additional citation omitted).
Although neither the Supreme Court nor the Second Circuit has ruled on the matter, we are not without guidance in determining the applicability to the municipal defendants of the good faith immunity doctrine. This guidance comes from the legislative history of § 1983 as interpreted by the Court in Monell, from earlier decisions involving the individual immunity of governmental officials and the policies underlying them, and from a number of cases considering the motives of governmental entities in analogous causes of action.[20]*343 This authority and strong reasons of policy persuade us that the § 1983 liability of local governmental entities should be limited by a qualified good faith immunity parallel to that applicable to individual government employees.
When Congress enacted § 1983 in 1871 (as § 1 of the Civil Rights Act) its proponents argued that, as a remedial statute, its terms "ought to be construed liberally" and should be given the "largest latitude consistent with the words employed." Remarks of Representative Shellabarger, Cong.Globe, 42d Cong., 1st Sess., App. at 68 (1871). While § 1983 has been the fountainhead of an enormous body of litigation for the redress of constitutional wrongs, the liberal construction of the act is not without limits. The courts have repeatedly imposed reasonable restrictions on the applicability of § 1983 in accord with important public policies and their interpretation of Congress' intent in enacting the Civil Rights Act. See, e. g., Monell v. Department of Social Services, 436 U.S. 658, 691-95, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978) (rejecting municipal liability based on respondeat superior); Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978) (judicial immunity bars § 1983 action); Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974) (executive immunity).
The legislative history of the Act as a whole reveals Congress' intent to impose liability under § 1983 only when the defendant was in some sense acting wrongfully with respect to the rights of the plaintiff and only when liability could reasonably and justly be expected to deter that wrongful conduct. Because § 1 of the 1871 legislation was enacted without substantial debate or amendment, its legislative history is not very instructive. Congress' intentions appear, however, in the debates and history of the Sherman amendment, which would have become § 7 of the 1871 Act, but which failed passage by Congress. The Sherman amendment would have imposed liability on a municipality for property losses and other damages sustained by the victims of organized private violence,
whether or not it had notice of the impending riot, whether or not the municipality was authorized to exercise a police power, whether or not it exerted all reasonable efforts to stop the riot, and whether or not the rioters were caught and punished.
Monell v. Department of Social Services, 436 U.S. 658, 668, 98 S. Ct. 2018, 2024, 56 L. Ed. 2d 611 (1978) (footnote omitted). Congress rejected the proposal to impose vicarious liability on local governments and local taxpayers for the constitutional torts of private citizens. The Supreme Court has suggested that this rejection was not due to a congressional belief that municipalities were immune from federally-created damage actions, but rather was a reaction to the fear that the amendment would have imposed damages "without regard to whether a local government was in any way at fault for the breach of the peace for which it was to be held for damages." Id. at 681 n.40, 98 S. Ct. 2031 n.40. (emphasis added). Congress' rejection of the amendment can then be understood "as a limitation of the statutory ambit to actual wrongdoers, i. e., a rejection of respondeat superior or any other principle of vicarious liability." Id. at 707, 98 S.Ct. at 2044 (Powell, J., concurring) (citation omitted).
The debates on the Sherman amendment also reveal Congress' concern with the effectiveness of the provisions of the Act to deter unlawful conduct. The amendment's proponents argued that vicarious liability would have a salutory deterrent effect through increased political pressure on public officers. See Monell, 436 U.S. at 667, 98 S. Ct. 2018. Opponents pointed out that local government liability would not necessarily *344 deter unlawful conduct if liability were imposed on government entities without regard to their officers' knowledge of unlawful conduct or their legal authority to act to preserve constitutional rights. Representative Willard, for example, argued:
But it seems very clear to me that if there is in the Constitution any power vested in Congress to resort to a provision like this for the punishment of offenses, or for giving redress to persons injured, this is very clearly an unwise and improper exercise of that power. . . . [T]he state . . . has the creation and the control of the laws for the protection of the people. . . . What can a city do, to give me the equal protection of the laws? The city and the county have no power except the power that is given them by the State. They cannot keep violence away from me; they cannot protect me in my rights, except as the State has clothed them with power to do so . . .. We should never impose an obligation upon a community when we do not and cannot give that community the power to discharge that obligation.
Cong.Globe, 42d Cong., 1st Sess., at H. 791 (1871).
Proponents of the Sherman amendment also advanced an insurance theory for imposing municipal liability independent of the wrongfulness of the government's actions or the deterrent effect that liability might have. But, as the Supreme Court pointed out in Monell, 436 U.S. at 694, 98 S. Ct. 2018, the theory of "mutual insurance" was obviously insufficient to sustain passage of the amendment, and without explicit congressional direction, we should be extremely reluctant to impose municipal liability for § 1983 violations under a loss-spreading or mutual insurance rationale. Id. at 692 n.57, 98 S. Ct. 2018 n.57.
We have found no reported decision that applies these considerations to the question of whether a qualified good faith immunity exists for municipal violations of § 1983. The Supreme Court, however, carefully considered these issues when it ruled in Monell that there was sufficient support neither in policy nor in the legislative history of § 1983 to justify the application of the doctrine of respondeat superior to § 1983 actions for damages against municipalities. Monell, 436 U.S. at 691-95, 98 S. Ct. 2018.
The Court's decision in Monell is an extension of its prior holding in Rizzo v. Goode, 423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976), that an action will not lie under § 1983 for injunctive relief against individual government officials who are not directly involved in § 1983 violations but who are sued only on the basis of their supervisory authority. The Second Circuit has reached the same conclusion to limit the § 1983 damages liability of supervisory personnel. Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S. Ct. 462, 38 L. Ed. 2d 32 (1973).
The same policy considerations underlying the respondeat superior decisions support the application of a qualified good faith defense to municipal as well as individual defendants in § 1983 actions. To begin with, the concept of "wrongfulness" extends beyond the question of causation alone. Rizzo and Monell hold that a governmental entity is liable under § 1983 only if its policies or customs are the actual cause of the plaintiff's injury. But liability for constitutional torts, as for other torts, turns also on whether the defendant acted wrongfully in causing that injury. The courts have held repeatedly that governmental officials should not be found liable in damages for § 1983 violations if they reasonably believed that their actions were constitutional and they did not act with any malicious intention toward the injured plaintiff. Procunier v. Navarette, 434 U.S. 555, 98 S. Ct. 855, 55 L. Ed. 2d 24 (1978); Wood v. Strickland, 420 U.S. 308, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975); Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974). If the governmental decision-makers responsible for an unconstitutional policy or custom satisfy this good faith test, then the government, as an entity, has not acted wrongfully even if the constitutional rights of the plaintiff have been abridged.
Nor do other considerations advanced in favor of vicarious liability counsel for the *345 imposition of strict liability against governmental entities acting in good faith. Such liability would be of questionable value as an additional deterrent to unconstitutional conduct, since by its terms the good faith defense requires a reasonable belief that the conduct ordered or approved of was constitutional. The retroactive application of damage awards to situations where public decisionmakers "could not reasonably have been expected to be aware of a constitutional right that had not yet been declared," Procunier, 434 U.S. at 565, 98 S.Ct. at 861, cannot deter unconstitutional conduct unless decisionmakers are expected to be prescient. More realistically, retroactive liability would either not affect public decisionmaking at all, or would paralyze decisionmaking with continual reference to advisory prognostications, the imposition of unnecessary procedural protections, and the avoidance of politically controversial issues that might result in § 1983 suits.
The argument for imposing liability on the government as an insurer is no stronger in the context of the good faith defense than it is when the government is sued under the doctrine of respondeat superior. As pointed out above in the respondeat superior context, both Congress and the Supreme Court have rejected the notion. Although the Court has held that municipalities cannot be immune from suit simply because of the fear of "financial ruin that civil rights liability might impose," Monell, 436 U.S. at 664 n.9, 98 S.Ct. at 2023 n.9, it does not follow that governmental entities should be made liable without fault in order to compensate past "victims" of governmental conduct which was not known to be unconstitutional at the time it occurred. It might be argued that such awards are part of the price that all citizens must pay for the benefits of governmental decisions and programs. See Note, Damage Remedies Against Municipalities for Constitutional Violations, 89 Harv.L.Rev. 922, 956-57 (1976). On the other hand, as the Second Circuit has pointed out in an analogous context, "while allowing recovery for unconstitutional behavior on the part of the municipality is fair and reasonable, we should not needlessly expand recovery at the expense of already overburdened taxpayers." Turpin v. Mailet, 579 F.2d 152, 165 (2d Cir.), vacated sub nom West Haven v. Turpin, ___ U.S. ___, 99 S. Ct. 554, 58 L. Ed. 2d 645 (1978).
We hesitate to extend the logic of strict liability in the realm of private enterprise to the governmental arena. Taxpayers are not private investors willingly accepting the risks of doing business in return for anticipated profits. Moreover, governments, unlike private businesses, cannot choose to avoid acting in areas of greater risk. Nor can governments minimize liability for constitutional torts by engaging in "product development" or improved procedures when the contours of future constitutional decisions are unknown, and the rights of different groups of possible plaintiffs are potentially in conflict. Compare The T. J. Hooper, 60 F.2d 737 (2d Cir.), cert. denied, 287 U.S. 662, 53 S. Ct. 220, 77 L. Ed. 571 (1932), with Goode v. Rizzo, 506 F.2d 542 (3d Cir. 1974), rev'd, 423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976).
Because so many governmental decisions affect large numbers of potential plaintiffs, a rule of retroactive liability would pose a substantial threat to the quality and efficiency of governmental decisionmaking. The losses that some persons may be forced to bear because a court's finding of unconstitutionality comes too late are not fundamentally different from the losses that many individuals bear as a result of governmental decisionmaking in the areas of health and safety and economic regulation. See Williamson v. Lee Optical Co., 348 U.S. 483, 75 S. Ct. 461, 99 L. Ed. 563 (1955). In all of these cases, absent an explicit legislative determination that these losses will be shared, they should be considered part of the accepted risk attending governmental decisionmaking in a complex society.
Plaintiff contends, and the argument has been made in many other cases, that the words of § 1983 are explicit in imposing liability and do not permit the application of any mitigating doctrines such as the good faith defense. See, e. g., Pierson v. Ray, 386 U.S. 547, 559, 87 S. Ct. 1213, 18 *346 L.Ed.2d 288 (1967) (Douglas, J., dissenting). This argument must yield in light of the Act's legislative history, discussed earlier, and in view of the long line of cases finding either absolute immunities or good faith defenses for individual "persons" in § 1983 actions. These cases have read into § 1983 the common law doctrines of official immunity and their underlying policies; these policies are instructive in resolving the question of municipal immunity in the case at bar.
Although the language and legislative history of § 1983 reveal Congress' intention to expose state officials to liability in damages in some circumstances, the courts have limited the scope of the section by preserving the absolute common law immunities to officials acting in the legislative and judicial realms. Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978) (judges); Imbler v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976) (prosecutors); Tenney v. Brandhove, 341 U.S. 367, 71 S. Ct. 783, 95 L. Ed. 1019 (1951) (legislators). Courts have granted a qualified immunity to numerous executive officials. Procunier v. Navarette, 434 U.S. 555, 98 S. Ct. 855, 55 L. Ed. 2d 24 (1978) (state prison officials); O'Connor v. Donaldson, 422 U.S. 563, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1975) (superintendent of state hospital); Wood v. Strickland, 420 U.S. 308, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975) (school board members); Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974) (state governor, president of state university, officers and members of state national guard); Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967) (policemen). A review of these cases discloses a common policy underpinning "the public interest requires decisions and action to enforce laws for the protection of the public," Scheuer, 416 U.S. at 241, 94 S.Ct. at 1689; therefore, "immunity is necessary to protect the decisionmaking process in which the official is engaged," Imbler, 424 U.S. at 435, 96 S.Ct. at 997 (White, J., concurring). These cases have considered only the inhibiting effect of personal liability on public officials, yet it is logical to conclude that strict liability for constitutional torts would have a considerable undesirable impact on public decisionmaking even if liability were limited to the governmental agencies alone.
Several observations support this conclusion. First, while it is true that personal liability would be much more immediate, public officials committed to the missions of their agencies are also concerned about the impact of tort liability on their operating budgets. Damage awards in § 1983 actions would necessarily subtract from the limited resources available for budgeted public programs. In addition, officers may reasonably fear that the imposition of awards against their agencies would be a negative factor in their future promotions and career opportunities. Finally, the possible harassment effect of unfounded litigation would cause a deflection of agencies' energies and officers' time from their public duties, and would impose additional expenses upon the agencies' budgets. See Imbler v. Pachtman, 424 U.S. 409, 423, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976). Where large damage awards are feared because governmental decisions affect large numbers of people for example, in school districting, capital budgeting and public employment policies the absence of a good faith defense to public entity liability under § 1983 could impede principled, effective decisionmaking even more dramatically. The logic of the cases finding an individual good faith immunity supports the extension of the defense to governmental entity defendants.
Our inquiry by no means ends with the determination that the qualified good faith defenses available to local governmental officials are also available to governmental entities in § 1983 actions for damages. We must still decide how the good faith of a governmental entity is to be determined, and we must apply that scrutiny to the facts of the case before the court. Monell instructs us that § 1983 does not impose liability upon a municipal government unless the government "under color of some official policy, `causes' an employee to violate another's constitutional rights." 436 *347 U.S. at 692, 98 S.Ct. at 2036. Since a municipality can act only through its agents, its reasonableness and intentions can only be inferred from the actions and policy determinations of those in high office considered in light of all of the circumstances of the case. See Turpin v. Mailet, 579 F.2d 152, 164 (2d Cir.), vacated on other grounds sub nom West Haven v. Turpin, ___ U.S. ___, 99 S. Ct. 554, 58 L. Ed. 2d 645 (1978). While such inferences are not always easily drawn, they are not beyond the competence of courts, and they have frequently been drawn in the context of constitutional claims involving fact patterns considerably more subtle than that here. See, e. g., Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 97 S. Ct. 555, 564, 50 L. Ed. 2d 450 (1977) (determining whether racial discrimination in zoning was purposeful "demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available."); Washington v. Davis, 426 U.S. 229, 242, 96 S. Ct. 2040, 2048, 48 L. Ed. 2d 597 (1976) (motives behind city's hiring practices "may often be inferred from the totality of the relevant facts"); Arastra Limited Partnership v. City of Palo Alto, 401 F. Supp. 962 (N.D.Cal.1975) (finding city lacked good faith in enacting open space zoning ordinance).
Although the complaint does not set forth specifically the grounds alleged for municipal liability, there are only three ways in which the city's official policies and customs give rise to a cause of action. First, in enacting its Personnel Plan for city employees, the city council authorized the adoption of personnel practices that would be invalid under the City Charter. Second, acting under this invalid grant of authority, the police department applied a probationary period that impermissibly denied some new officers certain job protections and the right to a pretermination hearing after six months of employment. Finally, plaintiff was fired in accordance with that policy and practice.
As stated earlier, the good faith defense applied to individual executive officials in § 1983 actions has both subjective and objective elements, Wood v. Strickland, 420 U.S. 308, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975), both of which must be considered here. With respect to the first element, there has been no claim that any of the city's official acts noted above was taken with a "malicious intention to cause a deprivation of constitutional rights or other injury" to the plaintiff. Id. at 322, 95 S.Ct. at 1001. Whether the city as an entity knew or reasonably should have known that the actions its policies caused to be taken would violate the constitutional rights of the plaintiff might in some cases be difficult to determine. Finding the individual named defendants protected by a qualified good faith immunity does not necessarily lead to the conclusion that the governmental entity should also be immune, because the municipality's immunity is not merely derivative.[21] For this cause of action, it is necessary for the courts to look beyond the state of knowledge and responsibilities of the named individual defendants and to construct a good faith standard for the city as an entity, taking into account the nature of the legislative and administrative processes and the knowledge of the city's legislative and executive officers and its legal advisors.
Under the circumstances of this case, however, it is unnecessary to delineate these factors precisely, because none of the potentially relevant actors including city council members, the city attorney, the city manager and the police chief knew or had reason to know that the city's Personnel Plan was unconstitutional as applied to the probationary period of police officers. Nor, *348 as stated above, has there been any allegation of malice on the part of any of these actors in promulgating and enforcing the Personnel Plan. Consequently, the city as an entity is not liable in damages for deprivation of the plaintiff's due process rights.
B. Recovery in Damages Directly Under the Fourteenth Amendment
Following the Second Circuit's decision that the federal courts had jurisdiction under 28 U.S.C. § 1331(a) to entertain a suit for damages against a municipality on a cause of action grounded directly on the fourteenth amendment, Turpin v. Mailet, 579 F.2d 152 (2d Cir.), vacated sub nom West Haven v. Turpin, ___ U.S. ___, 99 S. Ct. 554, 58 L. Ed. 2d 645 (1978), this court agreed to consider such a cause of action against the City of Montpelier in the present case. We now hold that a damage remedy against the City of Montpelier should not be implied under the fourteenth amendment.
The courts have generally shown great reluctance to exercise the judicial power to create a damage remedy in cases arising directly under the constitution. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), the Supreme Court held that an action for damages could be implied against federal officers under the fourth amendment. The lower federal courts have split on the question of whether similar actions would lie against municipal officers or entities directly under the fourteenth amendment. Compare Owen v. City of Independence, 560 F.2d 925 (8th Cir. 1977), vacated 438 U.S. 902, 98 S. Ct. 3118, 57 L. Ed. 2d 1145 (1978), and Turpin v. Mailet, 579 F.2d 152 (2d Cir.), vacated sub nom West Haven v. Turpin, ___ U.S. ___, 99 S. Ct. 554, 58 L. Ed. 2d 645 (1978), with Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977).
Although not directly deciding the issue, the Supreme Court referred to this question in Monell. Justice Powell, concurring, stated:
Rather than constitutionalize a cause of action against local government that Congress intended to create in 1871, the better course is to confess error and set the record straight, as the Court does today.
436 U.S. at 713, 98 S.Ct. at 2047 (footnote omitted). The Court subsequently vacated and remanded the Turpin and Owen cases for reconsideration in light of its decision in Monell. 438 U.S. 902, 98 S. Ct. 3118 (1978); ___ U.S. ___, 99 S. Ct. 554 (1978). Upon reconsideration, the Second Circuit concluded that "there is no place for a cause of action against a municipality directly under the 14th Amendment, because the plaintiff may proceed against the [municipality] under § 1983." Turpin v. Mailet, 591 F.2d 426, 427 (2d Cir. 1979). Because the plaintiff herein has stated a cause of action under § 1983 we decline to imply the existence of a remedy directly under the Constitution. See Cale v. City of Covington, 586 F.2d 311 (4th Cir. 1978), Smith v. Ambrogio, 456 F. Supp. 1130, 1134 (D.Conn.1978).
There is no inconsistency between this holding and our conclusion above that the plaintiff cannot recover damages because the municipal defendants have a good faith defense. To begin with, Bivens implies that specific congressional action would preclude judicial creation of a damages remedy against the federal government, 403 U.S. at 397, 91 S. Ct. 1999, and judicial restraint is even more appropriate where judicially-created federal remedies may intrude into state and local governmental decisionmaking. Molina v. Richardson, 578 F.2d 846, 850-53 (9th Cir. 1978), cert. denied, ___ U.S. ___, 99 S. Ct. 724, 58 L. Ed. 2d 707 (1978). The municipal good faith defense is, as noted below, based on Congress' intentions in constructing § 1983, and we are reluctant to avoid that intention by holding that a direct cause of action is permitted where municipal good faith would bar a § 1983 action for damages. Moreover, we believe that the policy underpinning of the good faith defense applies equally to direct constitutional actions. It is thus unlikely that a plaintiff would be able to recover directly under the constitution *349 when a good faith defense barred recovery in a § 1983 cause of action.[22]
V. Attorney's Fees
The parties have filed requests for the award of attorney's fees under the provisions of the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988. That statute by its terms allows the court to award fees to the "prevailing party" in a civil rights case brought under 42 U.S.C. § 1983. These motions raise two questions: first, is the plaintiff herein a "prevailing party" within the meaning of the statute; and second, if he is not, does the statute authorize an award of fees to the municipal defendants? Since we conclude, for the reasons stated below, that the answer to both of these questions is "no", we must deny the parties' motions for the award of fees.
Plaintiff's motion for the award of fees turns on the meaning of the words "prevailing party," because the statute does not authorize the award of fees unless the plaintiff has prevailed in the action. We cannot find that the plaintiff here prevailed. Although "[a] party need not win a full trial on the merits to be said to prevail," at the least, "the lawsuit must have resulted in or been the catalyst of a victory" for the plaintiff in order to come within the meaning of the act. N.A.A.C.P. v. Bell, 448 F. Supp. 1164, 1166 (D.D.C.1978) (citations omitted). It is not necessary for a plaintiff to succeed on every issue. Rather, the focus of the court should be on a more generalized question, namely whether the party "has accomplished the objectives of his litigation." Id.
In this case, plaintiff has not accomplished his objectives; he has pursued only a remedy in damages and has been denied recovery in damages altogether. Adverse state court rulings defeated his equal protection and first amendment claims. The recovery requested in the due process claim failed because of the good faith immunity defense. In this prolonged and complicated litigation, plaintiff has won a favorable ruling on only one subsidiary issue of importance the court's ruling of February 10, 1977, that he was entitled to notice and a hearing prior to his discharge.
To hold that this ruling would entitle plaintiff to an award of fees as a "prevailing party," however, would stand § 1988 on its head. The cases point out that to require a plaintiff to prevail on all issues in order to recover fees would undercut the purposes of the act, because it would stifle the presentation of innovative causes of action and would force courts to rule on every issue in a case, even if its rulings would be redundant. Similarly, to require a defendant to prevail on every subsidiary issue in order to defeat a claim for an award of fees would encourage the pursuit *350 of theoretical issues that would complicate and prolong the litigation without altering its outcome. Unless awards were to be made to both parties, an outcome apparently not anticipated by Congress or yet approved by the courts, such a rule could reduce the term "prevailing party" to "prevailing plaintiff." Congress did not intend this result. In the instant case, the plaintiff pursued only a damages action. He did not seek an injunction ordering reinstatement or a pretermination hearing. He did not bring a class action to secure the rights of all probationary police officers who might be denied a hearing before discharge between the sixth and twelfth months of service. The court has thus not had the opportunity to consider or rule on any of these questions, and it would be inappropriate to surmise whether plaintiff would have prevailed in securing some form of positive relief if he had chosen to pursue different remedies. The attorney's fees statute requires objective, not theoretical recovery.[23]
Defendants' motion for an award of fees must also be denied, despite their having prevailed in the litigation. In enacting § 1988, Congress intended to advance the remedial purposes of the civil rights acts. To ensure that the prospect of having to pay defendants' attorney's fees would not deter civil rights litigants from bringing good faith actions, Congress indicated that courts should not grant fees to a prevailing defendant unless the plaintiff's "suit was clearly frivolous, vexatious or brought for harassment purposes." S.Rep. No.1011, 94th Cong., 2d Sess. 5, reprinted in [1976] U.S.Code Cong. & Ad.News, 5908, 5912.
In civil rights litigation, courts have interpreted fee award provisions to entitle prevailing defendants to awards when plaintiffs pursue suits that are without a reasonable legal basis, regardless of plaintiff's subjective intent. Christianburg Garment Co. v. EEOC, 434 U.S. 412, 98 S. Ct. 694, 54 L. Ed. 2d 648 (1978) (interpreting fee award provision for Title VII claim, 42 U.S.C. § 2000e-5(k)); Prate v. Freedman, 583 F.2d 42 (2d Cir. 1978) (interpreting 42 U.S.C. § 2000e-5(k)). Accord, Griffin v. Collins, 443 F. Supp. 1010 (S.D.Ga.1978) (construing § 1988). As may be obvious from the court's extended discussion of the legal issues raised in this case, we do not find plaintiff's claims to have been groundless, vexatious, or frivolous. Defendants' motion for award of fees is therefore denied.
Judgment is to be entered for the defendants. The parties will bear their costs.
NOTES
[1] Stated in the pre-trial order as: "Does res judicata govern some of the issues?"
[2] Defendant Dubay, the only witness of whom inquiry was made with respect to plaintiff's personnel file, testified that he had never examined it.
[3] Plaintiff testified that a PBA is a collective bargaining unit with characteristics of both a fraternal organization and a union.
[4] Plaintiff testified that this occurred in November, 1974, which would be after his discharge. He probably intended to say 1973.
[5] In testifying, plaintiff used the words "not legal." It is possible he meant to say "not illegal."
[6] Defendants' Exhibit B.
[7] Defendants' Exhibit A.
[8] Transcript of interview at 4.
[9] Transcript of interview at 10 and 12. Conflicting inferences might well be drawn from statements made by Mr. Dubay during the taped conversation. Because, as discussed in the text below, this court is bound by the conclusions of the Vermont courts as to the reasons for Mr. Ohland's discharge, it is unnecessary to weigh those possible inferences. We are satisfied that the state tribunals considered the factual issues underlying the constitutional claims made here when deciding that Mr. Ohland was discharged for cause.
[10] Although some courts have awarded damages for lost wages under the theory of "constructive reinstatement" even where an employee discharged without a proper hearing was later found to have been discharged for cause, see, e. g., Horton v. Orange County Board of Education, 464 F.2d 536 (4th Cir. 1972), the Supreme Court has explicitly disapproved of that theory. Carey v. Piphus, 435 U.S. 247, 260 n.15, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978). Carey teaches that in order to recover more than nominal damages for the deprivation of procedural rights in a job termination, a plaintiff must prove that the procedure itself caused some compensable harm independent of the losses due to the underlying termination. The plaintiff herein has made no such showing. As discussed in the text below, the Vermont courts have found that plaintiff was discharged for cause, and this finding is binding in the present action. It follows that his subsequent loss of income was not the result of the city's failure to give him notice and a hearing before his discharge. Carey also holds that one whose procedural due process rights have been violated cannot recover for mental distress unless he actually knew that the procedures were irregular and this knowledge caused mental and emotional harm. 435 U.S. at 263, 98 S. Ct. 1042. The plaintiff admits, and the Vermont Supreme Court has found, Ohland v. Dubay, 133 Vt. 300, 303, 336 A.2d 203 (1975), that at the time of his discharge plaintiff did not think he was a regular employee entitled to the procedural protections set out in the Montpelier City Charter.
[11] Res judicata denotes that a valid, final judgment, when rendered on the merits, is an absolute bar between the same parties or those in privity with them, upon the same claim or demand. 1B Moore's Federal Practice ¶ 0.405[1] (2d ed. 1974).
[12] Collateral estoppel denotes that a judgment constitutes an estoppel between the same parties or those in privity with them as to issues that were necessarily litigated and determined although the claim or demand in the subsequent action is different. 1B Moore's Federal Practice ¶ 0.441[1]-[2] (2d ed. 1974).
[13] Estoppel by verdict is a component of the doctrine of res judicata. The distinction between a former judgment as a bar to a subsequent action under a plea of res judicata, and an estoppel by verdict or findings is set forth in Fletcher v. Perry, 104 Vt. 229, 231-32, 158 A. 679 (1932). The rule under the latter theory was stated in Gilman v. Gilman, 115 Vt. 49, 52, 51 A.2d 46, 48 (1947), as follows:
[W]hen some controlling fact or question material to the determination of both suits has been adjudicated by a court of competent jurisdiction and is again at issue between the same parties, or some of them, the former adjudication will, if properly presented, be conclusive of the same fact or question in the second suit, although the two suits are not for the same cause of action.
Citing Fletcher v. Perry, 104 Vt. 229, 158 A. 679 (1932); Spaulding, Admr. v. Mutual Life Ins. Co. of N. Y., 96 Vt. 67, 117 A. 376 (1922); Blondin v. Brooks, 83 Vt. 472, 76 A. 184 (1910). The point decided must have been essential to the former judgment, one which must necessarily have been decided in order to support the judgment. Turner v. Bragg, 117 Vt. 9, 83 A.2d 511 (1951); Trapeni v. Walker, 120 Vt. 510, 144 A.2d 831 (1958).
[14] 28 U.S.C. § 1738 reads as follows:
The Acts of the legislature of any State, Territory, or Possession of the United States, or copies thereof, shall be authenticated by affixing the seal of such State, Territory or Possession thereto.
The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.
Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.
[15] See note 13, supra.
[16] Three alleged violations of the Municipal Labor Relations Act, Vt.Stat.Ann. tit. 21, § 1726(a)(1), (3), and (4), were at issue before the Vermont State Labor Relations Board; an affirmative finding as to any one of them would have amounted to a finding of an unfair labor practice. Noting that the heart of any employment discharge linked with anti-union discrimination is the question of employer motivation, the Vermont Supreme Court cited three guidelines helpful in examining the question. These are "whether the employer knew of the employee's activity in the union, whether there was a climate of coercion, and whether the timing of discharge was suspect." Ohland v. Dubay, 133 Vt. 300, 302-03, 336 A.2d 203, 205 (1975). The opinion does not restate either the evidence before the Board on this issue or the findings of fact that the Board ultimately made, but it does uphold the Board's determination that the plaintiff's discharge was not related to his union activities. It follows that his discharge was unrelated to his exercise of first amendment rights to organize an employee organization, to participate in its activities, and to criticize the police department.
[17] 42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof, to the deprivation of any rights, privileges, or immunities secured by the constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
[18] Technically, an immunity is a legal bar to a lawsuit, while good faith is an affirmative defense. See Lehman, Bivens and its Progeny: The Scope of a Constitutional Cause of Action for Torts Committed by Government Officials, 4 Hastings Const.L.Q. 531, 589 (1977). The courts have not adhered to this distinction. The "qualified good-faith immunity" set forth by the Supreme Court, Wood v. Strickland, 420 U.S. 308, 95 S. Ct. 992, 43 L. Ed. 2d 214 (1975), is actually a defense requiring a close examination of facts, including defendants' knowledge and motives, as well as the state of the law on the constitutional issue that is the focus of the suit.
[19] This is a question of federal law alone. Defendant City of Montpelier asserts that it is immune under the Vermont law of municipal sovereign immunity, Vt.Stat.Ann. tit. 29, § 1403 (1970). Under Vermont law, a damage recovery can be had against a municipality for wrongs committed in the pursuance of governmental functions only to the extent that the municipality is covered by liability insurance. Orleans Village v. Union Mutual Fire Insurance Co., 133 Vt. 217, 335 A.2d 315 (1975). It is unnecessary for the court to inquire into the liability coverage of the city, however, because it has "never been the law" that state law immunities could restrict the scope of a § 1983 cause of action. Monell v. Dep't of Social Services, 436 U.S. 658, 695 n.59, 98 S. Ct. 2018 n.59, 56 L. Ed. 2d 611 (1978). Although the Court has found common-law immunities instructive in constructing individual immunities in § 1983 actions, Imbler v. Pachtman, 424 U.S. 409, 421, 96 S. Ct. 984, 47 L. Ed. 2d 128 (1976), the scope of § 1983 cannot be limited by state governmental immunities. Deference to state doctrines of sovereign immunity could render the Court's interpretation of § 1983 "drained of meaning." Monell v. Dep't of Social Services, 436 U.S. 658, 701, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978) (quoting Scheuer v. Rhodes, 416 U.S. 232, 248, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974)).
[20] Our broad consideration of policy issues and analogous authority is not unusual in this area of the law. Concerning the scope of judicially-created remedies for constitutional violations, Justice Harlan has written:
[I]t seems to me that the range of policy considerations we may take into account is at least as broad as the range of those a legislature would consider with respect to an express statutory authorization of a traditional remedy.
Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 407, 91 S. Ct. 1999, 2010, 29 L. Ed. 2d 619 (1971) (Harlan, J., concurring). The Supreme Court has also stated that § 1983 "should be read against the background of tort liability," Monroe v. Pape, 365 U.S. 167, 187, 81 S. Ct. 473, 484, 5 L. Ed. 2d 492 (1961), and the Second Circuit has observed that the experience of the common law is "a valuable source of instruction in arriving at minimum standards for imposition of liability based essentially on tortious conduct, whether or not it be labelled as a violation of a constitutional or some other right." Brault v. Town of Milton, 527 F.2d 730, 740 (2d Cir. 1975).
[21] We have found only one decision in which the court even impliedly considered this question. In Hostrop v. Board of Junior College District No. 515, 523 F.2d 569 (7th Cir. 1975), cert. denied, 425 U.S. 963, 96 S. Ct. 1748, 48 L. Ed. 2d 208 (1976) the court found a school board liable in damages for deprivation of procedural due process even though the individual board members had good faith immunity. This decision involved a direct cause of action under the Constitution, not a § 1983 action, and the court did not address the question whether a separate good faith defense should be available to the school board as an entity.
[22] Good faith defenses have been found to bar recovery in damages in a range of cases involving causes of action arising directly under the Constitution. See Butz v. Economou, 438 U.S. 478, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978) (good faith immunity for federal administrative officials sued for first and fifth amendment violations); Kermit Construction Co. v. Banco Credito Y Ahorro Poncano, 547 F.2d 1, 3 (1st Cir. 1976) ("[T]he immunity of various governmental officers from damages under § 1983 rests on policies that apply as strongly to actions based directly on the Fourteenth Amendment."); Brault v. Town of Milton, 527 F.2d 730 (2d Cir. 1975) (town's good faith enforcement of zoning law bars cause of action for fourteenth amendment due process violation); Hostrop v. Board of Junior College Dist. No. 515, 523 F.2d 569 (7th Cir. 1975), cert. denied, 425 U.S. 963, 96 S. Ct. 1748, 48 L. Ed. 2d 208 (1976) (school board members entitled to official immunity in fifth amendment due process case); Sanfilippo v. County of Santa Cruz, 415 F. Supp. 1340 (N.D.Cal.1976) (recognizing good faith of local government as defense to action for damages in fifth and fourteenth amendment takings case). The Supreme Court has stated that it would be "untenable to draw a distinction for purposes of immunity law between suits brought against state officials under § 1983 and suits brought directly under the Constitution against federal officials." Butz v. Economou, 438 U.S. 478, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978). The logic of these decisions is applicable to the question of municipal immunity in a constitutional cause of action in much the same way as the logic of the cases finding individual good faith defenses is applicable to the question of municipal immunity in § 1983 actions.
[23] See Harrington v. Vandalia-Butler Bd. of Ed., 585 F.2d 192, 197-98 (6th Cir. 1978), reversing a fee award in a Title VII employment discrimination case despite a finding of discrimination, because plaintiff's voluntary retirement barred recovery under the only forms of relief to which she would have been entitled. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1750808/ | 952 So. 2d 1196 (2007)
RAFUSE
v.
STATE
No. 1D05-5886.
District Court of Appeal of Florida, First District.
March 14, 2007.
Decision wihtout published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1750816/ | 952 So. 2d 699 (2007)
Casey Prevost RUSSELL, et al.
v.
The STATE of Louisiana, Louisiana DEPARTMENT OF WILDLIFE AND FISHERIES of the State of Louisiana, et al.
No. 2007-CC-0153.
Supreme Court of Louisiana.
March 16, 2007.
Denied.
TRAYLOR, J., would grant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1376956/ | 485 F. Supp. 887 (1980)
DRUG PURCHASE, INC., Plaintiff,
v.
Mitchell DUBROFF, Clement J. Deodati, Victor J. D'Amico, John J. O'Grady, Albert J. Sica, Doe 1, Doe 2 and Doe 3, Defendants.
No. 78 Civ. 5298.
United States District Court, S. D. New York.
February 25, 1980.
*888 Bass, Ullman & Lustigman, New York City, for plaintiff; Robert Ullman, Joan Licht Mantel, New York City, of counsel.
Kaminsky & Breitbart, White Plains, N.Y., for defendant Mitchell Dubroff; Harvey A. Kaminsky, Roberta S. Bren, White Plains, N.Y., of counsel.
Jacobson & Goldberg, Garden City, N.Y., for defendant Clement J. Deodati; Richard E. Schrier, Garden City, N.Y., of counsel.
Kean & Kean, New York City, for defendant Victor J. D'Amico; Paul H. Kean, New York City, of counsel.
Robert Abrams, Atty. Gen. of N. Y., New York City, for defendant John J. O'Grady; Albert O. Marston, Asst. Atty. Gen., New York City, of counsel.
Rubin, Seidman & Dochter, New York City, for defendant Albert J. Sica; Ivan M. Dochter, J. Mitchell Rosenberg, Joel L. Hecker, New York City, of counsel.
LASKER, District Judge.
Drug Purchase, Inc. sues under 42 U.S.C. § 1983 for damages and injunctive relief for allegedly unconstitutional searches of its *889 warehouse on four occasions by officials for the New York State Board of Pharmacy (Board). The defendants are the Board inspectors who conducted the searches, the Assistant Attorney General who allegedly directed the searches, and the Secretary and Chief Executive Officer of the Board.
Drug Purchase moves for summary judgment on the issue of liability. The defendants cross-move for summary judgment dismissing the complaint.
I. Facts
On November 6, 1975, Mitchell Dubroff, inspected the warehouse owned by Drug Purchase in the presence and with the consent of its employees. On November 7th, a quarantine of the drugs found in the warehouse was imposed by a New York State Supreme Court justice. The order of quarantine stated:
". . . LET the drugs which are the subject of this proceeding located in the basement premises 31 Washington Street, Brooklyn, New York, be placed under quarantine by the New York State Board of Pharmacy . . . and . . . LET . . . all persons upon whom this Order and the papers annexed hereto are served, be enjoined from removing or disposing of any of said drugs from that premises without further order of this Court."
On November 10th, 12th, 13th and 14th the Board inspectors reentered the warehouse without a warrant to take an inventory of the drugs under quarantine. Drug Purchase claims that these four entries were without its consent and violated its Fourth Amendment rights, giving rise to Section 1983 liability.
II. Collateral Estoppel and Res Judicata
The defendants argue that this action is barred by a decision of Judge Cannella dismissing the suit brought by Drug Purchase against the Board alone, for injunctive relief based on the same facts alleged here. Drug Purchase, Inc. v. New York State Board of Pharmacy, 76 Civ. 5845 (S.D.N.Y. April 10, 1978).
In that case, Judge Cannella held that "the complaint fails to allege the requisite `case or controversy' between the parties" because the possibility of continued inspections was too remote. Id. Slip op. at 6-7. He also ruled that comity and federalism militated against granting an injunction against the state agency. Id. at 8.
Defendants contend that because of the earlier decision this action is barred under principles of res judicata and collateral estoppel. Drug Purchase answers that a decision "clearly premised on the fact that the defendant . . . was the State agency and the Court's view that the causes of action asserted against the agency in that case did not merit injunctive relief"[1] does not bar an action brought against individuals for damages. Plaintiff's Memorandum in Support of Motion for Summary Judgment, p. 7.
A. Res Judicata
Although the parties do not distinguish the two, res judicata and collateral estoppel are analytically distinct. Res judicata, or "claim preclusion," bars relitigation of a cause of action brought (or which might have been brought) in a prior action in which there has been a final judgment on the merits. Collateral estoppel, or "issue preclusion," applies when the second action is brought on a different cause of action, and renders a prior action conclusive as to issues actually or necessarily litigated. Expert Electric, Inc. v. Levine, 554 F.2d 1227, 1232-33 (2d Cir.), cert. denied, 434 U.S. 903, 98 S. Ct. 300, 54 L. Ed. 2d 199 (1977); 1B Moore's Federal Practice ¶ 0.405[1], at 621-25 (2d ed. 1974).
For res judicata to apply, the parties to the second action must be identical to or in privity with the parties to the first action. Expert Electric, Inc. v. Levine, supra, *890 554 F.2d 1227, 1233-34 (2d Cir.), cert. denied, 434 U.S. 903, 98 S. Ct. 300, 54 L. Ed. 2d 199 (1977); see Ellentuck v. Klein, 570 F.2d 414, 425-26 (2d Cir. 1978). The defendants here were not joined in the first action and the Board is not a defendant here. Moreover, the cause of action asserted against the individual officials is distinct from that asserted against the Board in the earlier case. Consequently, res judicata does not apply to bar this action. To hold otherwise would in effect create a "mandatory joinder" rule of procedure, since, in order to avoid the res judicata bar, a plaintiff would be required to join all possible defendants when suing one party.
B. Collateral Estoppel
Collateral estoppel does apply here, however, to limit the subject matter of this action. An issue decided by Judge Cannella, that the threat of future inspections was too remote to warrant injunctive relief, is raised here by Drug Purchase's demand for an injunction against the individuals. The only change in the factual circumstances occurring since the earlier decision is the passage of time. If affected at all, the threat of injury has become even more remote since the earlier decision. Consequently, since the issue whether the threat of future inspections is sufficiently concrete to warrant injunctive relief has been decided by Judge Cannella, the identical issue here must be decided in favor of defendants.
As noted earlier, the parties to this suit are not identical to those in the first action. However, since the abandonment of the "mutuality" doctrine, identity of parties is not necessary to the application of collateral estoppel, particularly when a party invokes a prior judgment "defensively in a second action against a plaintiff bringing suit on an issue he litigated and lost as plaintiff in a prior action." Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 324, 91 S. Ct. 1434, 1440, 28 L. Ed. 2d 788 (1971); Lowell v. Twin Disc, Incorporated, 527 F.2d 767, 771 (2d Cir. 1975); Kaiser Industries Corporation v. Jones & Laughlin Steel Corporation, 515 F.2d 964 (3d Cir.) cert. denied, 423 U.S. 876, 96 S. Ct. 150, 46 L. Ed. 2d 110 (1975).
Accordingly, defendants' motions for summary judgment dismissing the complaint are granted insofar as the complaint seeks injunctive relief.
III. Violation of Section 1983
A. The Constitutionality of the Searches
Defendants argue that the undisputed facts establish that the searches did not violate the rights of Drug Purchase for two reasons.
First, that Drug Purchase's consent to the first search, which occurred on November 6th and is not challenged, extended to the subsequent four searches in question. After the November 6th inspection, Dubroff placed two locks on the door to the warehouse, and the lock belonging to Drug Purchase was removed. Defendants claim that this action constituted further indication of Drug Purchase's consent to the subsequent searches.
If consent to the searches was given, it waived Drug Purchase's constitutional right to be free of those searches. Consequently, clear and convincing proof is required to establish that consent. United States v. Mapp, 476 F.2d 67, 77 (2d Cir. 1973). Defendants, however, only argue that the initial consent to the first search was not "revoked" and that Drug Purchase's failure to place its lock on the warehouse when the Board's two locks were placed there created the inference of Drug Purchase's consent to further inspections. This attenuated inference hardly constitutes the clear and convincing evidence that is required.
Second, defendants argue that the searches were authorized by the quarantine order quoted earlier, and by various provisions of the New York Education Law.[2]
*891 The import of defendants' argument is not altogether clear. They appear to be arguing either that a warrant was unnecessary because of the statutory authorization or that the quarantine order was equivalent to a warrant. Whichever the argument, it does not prevail.
As to the first, even assuming that the statute authorized a warrantless search of Drug Purchase's warehouse, an assumption not supported by the statutory language the Supreme Court has held such statutes unconstitutional.[3]Marshall v. Barlow's, Inc., 436 U.S. 307, 325, 98 S. Ct. 1816, 1827, 56 L. Ed. 2d 305 (1978); Camara v. Municipal Court, 387 U.S. 523, 534, 87 S. Ct. 1727, 1733, 18 L. Ed. 2d 930 (1967); See v. City of Seattle, 387 U.S. 541, 545, 87 S. Ct. 1737, 1740, 18 L. Ed. 2d 943 (1967). As in G.M. Leasing Corp. v. United States, 429 U.S. 338, 358, 97 S. Ct. 619, 631, 50 L. Ed. 2d 530 (1977),
"to give the statute that reading would call its constitutionality into serious question. We therefore decline to read it as giving carte blanche for warrantless invasions of privacy. Rather, we give it its natural reading, namely, as an authorization for all forms of seizure, but as silent on the subject of intrusions into privacy." (Emphasis in original)
As to whether the order was equivalent to a warrant, the language of the order clearly only placed under quarantine the drugs. It did not refer to the premises of the warehouse except insofar as it located the drugs quarantined. It did not transfer possession of the warehouse to the Board. Nor did it expressly authorize the search of Drug Purchase's warehouse. Nevertheless, defendants contend that the quarantine order necessitated an inventory of the drugs quarantined, so that it impliedly authorized the entries. While it may be true that an inventory was necessary to fulfill the mandate of the quarantine order, it does not automatically follow that it was necessary to enter the warehouse without a warrant or Drug Purchase's consent. Since the defendants had double-locked the warehouse, *892 they had ample time to obtain a warrant to carry out the duties which they claim to have been created by the quarantine order.
B. Sica's liability
Albert J. Sica, the Secretary and Chief Executive Officer of the Board is alleged to be liable for the searches as a supervisory official. Since the doctrine of respondeat superior does not apply in Section 1983 cases, a plaintiff must establish the personal responsibility of supervisory personnel. Duchesne v. Sugarman, 566 F.2d 817, 831 (2d Cir. 1977); Arroyo v. Schaefer, 548 F.2d 47, 51 (2d Cir. 1977); Williams v. Vincent, 508 F.2d 541, 546 (2d Cir. 1974); Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S. Ct. 462, 38 L. Ed. 2d 32 (1973); see Monell v. Department of Social Services, 436 U.S. 658, 691-94, 98 S. Ct. 2018, 2036-2038, 56 L. Ed. 2d 16 (1978). Consequently, to prevail against Sica, Drug Purchase must show
"that it was [his] own conduct which resulted in the constitutional violations. It is not necessary for § 1983 liability that [Sica] directed any particular action with respect to [Drug Purchase], only that [he] affirmatively promoted a policy which sanctioned the type of action which caused the violations. In short this is not a case of indifference, that is, a failure to act in the face of misconduct by subordinates, but is rather a case of affirmative policy-making which may have caused the misconduct."
Duchesne v. Sugarman, supra, at 831 (Emphasis in original).
Drug Purchase argues that Sica is personally responsible for the searches because he "has taken no action to avoid their repetition." Plaintiff's Memorandum In Support of Motion for Summary Judgment, p. 29. This is simply insufficient to establish that Sica had an affirmative policy at the time of the searches that caused them to occur as they did.
Accordingly, Sica's motion for summary judgment is granted.[4]
IV. Immunities
A. O'Grady
John J. O'Grady is an Assistant Attorney General who is alleged to have directed the illegal searches. Although he denies having authorized the searches, that question need not be decided. Since it is not disputed that he was acting as a prosecutor in this matter, he is entitled to absolute immunity from liability. Imbler v. Pachtman, 424 U.S. 409, 427, 96 S. Ct. 984, 993, 47 L. Ed. 2d 128 (1976).
Accordingly, O'Grady's motion for summary judgment dismissing the complaint as to him is granted.
B. The Inspectors
The parties appear to agree that the three inspectors who entered the warehouse are entitled to the qualified immunity enjoyed by government officials set forth in Wood v. Strickland, 420 U.S. 308, 322, 95 S. Ct. 992, 1001, 43 L. Ed. 2d 214 (1975):
". . . [an official] is not immune from liability for damages under § 1983 if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury . . .."
See Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974).
Drug Purchase has shown no evidence establishing that the defendants acted maliciously. However, as to the other *893 qualifications of defendants' immunity, Drug Purchase argues that the individual inspectors
"were well aware of the fact that at no time previously had they entered the premises of any person without notice to such person. . . . Had there been any question in their minds as to the propriety of an inspection without notice to the inspectee, the refusal of the FDA officials to accompany them . . . should have dispelled that impression."
Plaintiff's Memorandum in Support of Motion for Summary Judgment, p. 28. Each of the inspectors has submitted documents establishing that they were told that the searches were authorized. Affidavit of Clement J. Deodati ¶ 3 (April 26, 1979); Affidavit of Victor J. D'Amico ¶ 3 (October 24, 1979); Rule 9(g) Statement of Mitchell Dubroff ¶ 12. Therefore, questions of fact have been raised as to whether the inspectors reasonably should have known that the inspections were unconstitutional, and summary judgment either for Drug Purchase or for the three inspectors is inappropriate.[5]
Accordingly, the motions of Drug Purchase, Mitchell Dubroff, Victor D'Amico and Clement Deodati are denied. The motions of John J. O'Grady and Albert Sica for summary judgment are granted.
It is so ordered.
NOTES
[1] Plaintiffs characterization of the earlier decision focuses on Judge Cannella's reliance on the defendant having been the state agency. A more balanced reading of his opinion, however, indicates that his decision rested primarily on the failure to establish a threat of future injury.
[2] N.Y. Educ. Law § 6813(1) (McKinney 1972) provides:
"1. Any drug, device or cosmetic that is adulterated, misbranded or may not be sold under the provisions of this chapter, may be seized on petition or complaint of the board and condemned in the supreme court of any county in which it is found. Seizure may be made:
a. by process pursuant to the petition or complaint, or
b. if the secretary or other officer designated by him has probable cause to believe that the article
(1) is one which may not be sold under the provisions of section sixty-eight hundred seventeen of this chapter, or
(2) is adulterated, or
(3) is so misbranded as to be dangerous to health.
The article shall be seized by order of such officer. The order shall describe the article to be seized, the place where the article is located, and the officer or employee making the seizure. The officer, in lieu of taking actual possession, may affix a tag or other appropriate marking to the article giving notice that the article has been quarantined and warning all persons not to remove or dispose of it by sale or otherwise until permission for removal or disposal is given by the officer or the court. In case of seizures or quarantine pursuant to such order, the jurisdiction of such court shall attach upon such seizure or quarantine, and a petition or complaint for condemnation shall be filed promptly."
Id. § 6823 provides:
"For purposes of enforcement of this article, officers duly designated by the secretary are authorized:
(1) to enter, at reasonable times, any factory, warehouse or establishment in which drugs, devices or cosmetics are manufactured, processed, packed, or held for introduction into commerce or are held after such introduction, or to enter any vehicle being used to transport or hold such drugs, devices or cosmetics in commerce; and
(2) to inspect, at reasonable times, such factory, warehouse, establishment or vehicle and all pertinent equipment, finished and unfinished materials, containers, and labeling therein."
[3] Although not addressed in the briefs (except for Dubroff's Memorandum of Law, p. 3) submitted on this motion, an issue remaining for trial is whether the drug industry is sufficiently regulated by the government so that Drug Purchase had no reasonable expectation of privacy in the premises where the drugs were housed. See United States v. Biswell, 406 U.S. 311, 316, 92 S. Ct. 1593, 1596, 32 L. Ed. 2d 87 (1972) (firearms); Colonnade Catering Corp. v. United States, 397 U.S. 72, 76, 90 S. Ct. 774, 776, 25 L. Ed. 2d 60 (1970) (liquor); People v. Curco Drugs, Inc., 76 Misc. 2d 222, 350 N.Y.S.2d 74, 83 (Crim.Ct.1973) (drugs).
[4] Under some circumstances, a decision granting a motion for summary judgment on these grounds would be inappropriate without affording the plaintiff an opportunity to conduct discovery in order to permit determination whether these were acts performed by the defendant which amounted to the requisite personal responsibility. Those circumstances are not present here. Here, there is no dispute that Drug Purchase has had exhaustive discovery in the action dismissed by Judge Cannella. Indeed, Sica himself was deposed in that action. Plaintiff's Memorandum in Support of Motion for Summary Judgment, p. 2.
[5] Some of the defendants argue that they cannot be found liable here by virtue of N.Y. Educ. Law § 6813(5) (McKinney 1972), which provides:
"In any proceeding against the board, or the secretary, or an agent of either, because of seizure, or quarantine, under this section, the board, or the secretary, or such agent shall not be liable if the court finds that there was probable cause for the acts done by them."
If liability is found under Section 1983, however, this statute would not shield defendants, but would be preempted by federal law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1376951/ | 485 F. Supp. 671 (1979)
GLENWILLOW LANDFILL, INC., et al., Plaintiffs,
v.
CITY OF AKRON, OHIO, et al., Defendants.
HYBUD EQUIPMENT CORPORATION et al., Plaintiffs,
v.
CITY OF AKRON, OHIO, et al., Defendants.
Civ. A. Nos. C78-65A, C78-1733A.
United States District Court, N. D. Ohio, E. D.
December 19, 1979.
*672 *673 William C. Brashares, Steven R. Schaars, Washington, D. C., Joseph E. Abdenour, John L. Wolfe, Akron, Ohio, Francis X. Beytagh, Toledo, Ohio, for plaintiffs.
James L. Bickett, Akron, Ohio, Eben G. Crawford, William H. Baughman, Jr., Cleveland, Ohio, Steven J. Schwartz, Asst. Pros. Atty., Akron, Ohio, for defendants.
MEMORANDUM OPINION AND ORDER
CONTIE, District Judge.
In December 1976, the City of Akron, Summit County, and the Ohio Water Development Authority (OWDA) entered into a cooperative agreement to enable the OWDA to sell $46,000,000 worth of revenue bonds so the City could develop a recycle energy system. To fulfill its obligations under the agreement, the City enacted Ordinance No. 846-1976. The plaintiffs in these two cases allege that certain covenants of the cooperative agreement and the ordinance are illegal because: they deprive plaintiffs of due process of law under the fourteenth amendment;[1] they take property in violation of the fifth amendment to the United States Constitution as applied to the states through the fourteenth amendment; they restrain interstate commerce in violation of Article I, section 8 of the Constitution; they violate Article 18, section 3 of the Ohio Constitution; and they violate sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1-2. The plaintiffs seek declaratory *674 and injunctive relief, and an award of attorney's fees.
The Court has jurisdiction of the action under 28 U.S.C. §§ 1331, 1337 and 2201. The parties ask the Court to exercise pendent jurisdiction over the state law claim. Venue is proper in this district under 28 U.S.C. § 1391(b), 15 U.S.C. §§ 15, 22. The Court duly heard testimony and received exhibits on May 14, 15, 16, 17, and 18, 1979. The following shall constitute the Court's findings of fact and conclusions of law in accordance with Rule 52, Federal Rules of Civil Procedure.
I. FACTS
The parties have stipulated to the great proportion of the relevant facts.[2] Paragraphs 1 through 50 and 90 through 92 of the pre-trial stipulation are incorporated herein as Appendix A. The remaining portion of the stipulation, paragraphs 51 through 89 and part of paragraph 5, is incorporated herein as Appendix B.[3] The stipulation entered into at trial, paragraphs 4 through 13 of the Ohio Water Development Authority's proposed findings of fact, is incorporated herein as Appendix C. In addition the Court finds the following facts:[4]
1. The city built the RES to solve its solid waste disposal problem. A number of factors, including Ohio Edison's desire to stop generating steam for the downtown business district, caused the city to decide the RES was the best alternative available to solve the waste disposal problem.
2. The underwriters decided it was necessary to assure a supply of waste to the RES in order to market the revenue bonds. After learning this the city and the OWDA concluded that it would be necessary to require that all waste collected within the city limits would be taken to the RES.
A. Sherman Act
When both constitutional and statutory violations are alleged it is preferable for the Court to consider the statutory questions first, thus avoiding advisory opinions on constitutional issues if possible. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-47, 56 S. Ct. 466, 80 L. Ed. 688 (1936) (Brandeis, J., concurring). This Court will, therefore, first consider the alleged antitrust violations.
Initially the Court must consider whether the plaintiffs have standing to challenge the covenants and the ordinance on anti-trust grounds. The defendants argue that the plaintiffs lack standing to attack the legality of the covenants because the covenants by themselves have no force or effect and cause the plaintiffs no injury in fact. See Warth v. Seldin, 422 U.S. 490, 498-99, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S. Ct. 1917, 48 L. Ed. 2d 450 (1976). But the plaintiffs' anti-trust claims include allegations of conspiracy.
Under the Sherman Act an agreement in restraint of trade is illegal. Proof of the actual effect on commerce caused by *675 the conspiracy is not always required to establish a violation of the statute. E. g., United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S. Ct. 811, 84 L. Ed. 1129 (1940). The cooperative agreement is arguably evidence of an illegal conspiracy in restraint of trade which may be illegal under the Sherman Act without proof of its actual effects. Therefore the Court does not believe that the plaintiffs must show injury in fact caused by the covenants to raise the Sherman Act claims. Furthermore, the enforcement of the ordinance will subject the plaintiffs who collect solid waste within the city to potential criminal penalties if they violate its terms. If injury in fact was a requirement to assert the Sherman Act claims the waste collectors would still have standing to challenge the defendants' agreement under the Sherman Act: they were injured by the ordinance that was enacted pursuant to the covenants of the cooperative agreement.[5]
Regarding the substance of the plaintiffs' antitrust claims, the defendants argue that their conduct is exempt from the operation of the Sherman Act under Parker v. Brown, 317 U.S. 341, 63 S. Ct. 307, 87 L. Ed. 315 (1943), and its progeny. In Parker a California raisin grower challenged the California prorate program under the Sherman Act.[6] The Supreme Court assumed that the program would violate the Sherman Act if it was organized and made effective solely by an agreement between private parties. The act, however, derived its force and effect from the legislative command of the state. The Supreme Court found
nothing in the language of the Sherman Act or in its history which suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature. In a dual system of government in which under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state's control over its officers and agents is not lightly to be attributed to Congress.
Id. at 350-51, 63 S.Ct. at 313. Thus, the Court decided that the administration of the California act was not covered by the Sherman Act.
The defendants argue that their conduct is similarly protected for two reasons, first because of the powers granted to the OWDA which make it the state agency with power over waste disposal facilities, and second because of the home-rule powers granted to the City of Akron under state law.
Section 6121.02 of the Ohio Revised Code creates the OWDA.[7] The OWDA's powers with respect to waste disposal facilities are set out in section 6123.03 of the Ohio Revised Code:
It is hereby declared to be the public policy of the state through the operations of the Ohio water development authority . . . to provide for the comfort, *676 health, safety, and general welfare of all employees and other inhabitants of the state and for the conservation of the land, air and water resources of the state through efficient and proper methods of disposal salvage and reuse of or recovery of resources from solid wastes thereby eliminating or decreasing accident and health hazards including rodent and insect sectors of disease, public nuisance and the adverse effect on land values caused thereby and the scenic blight marring the landscape, [and] to assist in the financing of solid waste facilities . .. In furtherance of such public policy, the Ohio water development authority . . may make loans and grants to governmental agencies for the acquisition or construction of solid waste facilities by such governmental agencies . . . and may issue solid waste revenue bonds of this state payable solely from revenues, to pay the cost of such projects.
The defendants contend that the powers granted to the OWDA within its sphere of authority are comparable to the power granted to the Supreme Court of Arizona over the practice of law, and that their actions should be accorded the immunity recognized in Bates v. State Bar of Arizona, 433 U.S. 350, 359-63, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977).
In Bates the Supreme Court held that enforcement of the state supreme court's disciplinary rule which prohibited attorneys from advertising in newspapers and other media was exempt from the Sherman Act under the doctrine of Parker v. Brown, supra. The Court isolated three factors in reaching its conclusion. First, the Court noted that the defendant in Bates was the state and not a private party.[8] Second, the Court found that the state of Arizona had an interest in protecting the public that was intimately connected to its regulation of the activities of the bar. Finally, the Court saw in the disciplinary rules a clear articulation of the state's policy with regard to professional behavior, and active supervision and review of the state policy by the responsible state agency. 433 U.S. 361-62, 97 S. Ct. 2691.
The Court will assume arguendo that if private parties entered into the covenants contained in the cooperative agreement and attempted to carry out the terms of the challenged ordinance their actions would violate the Sherman Act. Examining the factors outlined by the Supreme Court in Bates, the Court first finds the OWDA is a state agency and that its power to determine state policy concerning the issuance of state revenue bonds for facilities like the RES is supreme. Second, the Court determines that the state has a legitimate interest in promoting safe and sanitary methods of solid waste disposal; the state's concerns, and their relationship to the health and welfare of the people of Ohio, are explained in section 6123.03 of the Ohio Revised Code. The state also has a legitimate interest in giving financial aid to its subdivisions to establish projects that serve these goals without harm to the state's treasury; thus the OWDA's concern for the viability of the RES revenue bonds is a legitimate state concern. See National League of Cities v. Usery, 426 U.S. 833, 96 S. Ct. 2465, 49 L. Ed. 2d 245 (1976) (recognizing the importance of financial considerations in structuring local government services).
Finally, the statutes creating the OWDA and establishing its powers clearly articulate the state's policies. The OWDA actively participated in drafting the covenants of the cooperative agreement, and thus played a major role in creating the challenged ordinance *677 which was in all material respects set out in the covenants.[9] In doing this the OWDA was acting for the state under express statutory authority to further the state policies declared in section 6123.03 of the Ohio Revised Code. See also Ohio Revised Code §§ 6123.04, 6123.13 (further describing the powers of the OWDA). The Court concludes that the powers of the OWDA within its sphere of authority are comparable to those of the state agencies examined in Bates and Parker, and that its activities are outside the reach of the Sherman Act.
The defendants also argue that the city is a subdivision of the state exercising sovereign powers, and that the city's enforcement of the challenged ordinance is within the Parker v. Brown exemption. The home-rule powers granted to charter cities under the Ohio Constitution are sufficient, in the defendants' view, to give them sovereignty equal to that of the state within their borders. The plaintiffs respond that the Supreme Court has held that the activities of the city of Lafayette, Louisiana are outside the Parker v. Brown exemption, and that cities in Ohio should not be treated differently solely on the basis of home-rule powers established by state law, citing City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S. Ct. 1123, 55 L. Ed. 2d 364 (1978).
The Court in City of Lafayette held that a municipal light plant was not within the Parker v. Brown exemption when it was competing with other power companies in areas outside the city limits. The Justices who found Lafayette's activities were not exempt recognized nonetheless that in some situations municipalities may exercise the sovereign powers of the state.
The home-rule powers given to municipalities under the Ohio Constitution authorize charter cities to establish governmental policy within their corporate limits to the extent that the legislature has not set a uniform state policy. Ohio Const. Art. XVIII, § 3. In other words, in the language of Bates, the Ohio Constitution declares that cities act as agents of the state when they exercise governmental powers within their city limits. The Ohio Constitution grants these powers in broad terms, and does not explicitly define the scope of a city's power to regulate competition in the sphere of solid waste disposal. Rather than declare a state-wide policy to be implemented by state or local authorities, Ohio's waste disposal policy is to permit local authorities to declare the policy that will control within their borders. The Ohio courts have recognized that local governments are responsible for regulating the collection and disposal of solid waste within their borders by monopoly if the city finds it appropriate. See State ex rel. Moock v. Cincinnati, 120 Ohio St. 500, 166 N.E. 583 (1929); City of Canton v. Van Voorhis, 61 Ohio App. 419, 22 N.E.2d 651 (1939).
The plaintiffs argue that the intent to displace competition must be more clearly enunciated by the state. In City of Lafayette the plurality opinion[10] approved the Fifth Circuit's understanding of Parker, saying a state mandate to displace competition is present "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.'" 435 U.S. 415, 98 S. Ct. 1138 (citations omitted). The plurality expressly recognized: "Today's decision does not threaten the legitimate exercise of governmental power, nor does it preclude municipal government from providing services on a monopoly basis." 435 U.S. 416-17, 98 *678 S.Ct. 1139.[11] Ohio has recognized that municipalities may choose to provide waste disposal services on a monopoly basis. Furthermore, the Third Circuit has said that the intent of the state to restrain competition in a particular area "may be demonstrated by explicit language in state statutes, or may be inferred from the nature of the powers and duties given to a particular government entity." Duke & Co. v. Foerster, 521 F.2d 1277, 1280 (3d Cir. 1975) (emphasis added). In Ohio the state has delegated to local authorities the power to declare the policy that will control within their borders. The Court does not believe that the state's policy choice is entitled to less weight because it has chosen diversity over homogeneity. This is particularly true in areas of traditional local concern such as the collection and sanitary disposal of solid waste which is the focus of the challenged ordinance.
The Court has thus found, for two alternative reasons, that the challenged activities are exempt from the operation of the Sherman Act. Having decided that the statutory claims will not determine the case, the Court must consider the constitutional issues raised by the plaintiffs.
B. Commerce Clause
The plaintiffs claim that the ordinance impermissibly restricts interstate commerce in violation of the commerce clause, article I, section 8 of the United States Constitution. The commerce clause gives Congress the power to regulate commerce between the states. If there is no federal regulation preempting the field in a particular area,[12] the states are free to regulate so long as the restraints imposed do not transgress the terms of the commerce clause itself. The scope of permissible state regulation is not found in the words of the commerce clause; rather it has emerged gradually through judicial interpretation. See Philadelphia v. New Jersey, 437 U.S. 617, 623, 98 S. Ct. 2531, 57 L. Ed. 2d 475 (1978).
Before proceeding to consider the merits of the plaintiffs' commerce clause claim, the Court must consider whether the parties before it can properly raise these issues. As previously noted, for the plaintiffs to have standing to raise a claim they must assert that the challenged activity causes them injury in fact. Warth, supra; Eastern Kentucky, supra. The covenants do not impinge on the plaintiffs' activities in any way. Therefore the Court finds that the plaintiffs do not have standing to challenge the constitutionality of the covenants. The waste collectors will be subject to criminal prosecution if they fail to comply with the terms of the ordinance. They thus have standing to challenge the ordinance under the commerce clause. Because the commerce clause challenge attacks the ordinance on its face and not as applied to any particular plaintiffs, and since the plaintiffs seek only declaratory and injunctive relief, it is unnecessary to consider whether all of the plaintiffs have standing to challenge the constitutionality of the ordinance; a finding that the waste collectors have standing will be sufficient.
In evaluating an ordinance under the commerce clause the Court must ask:
(1) whether the challenged statute regulates evenhandedly with only "incidental" effects on interstate commerce, or discriminates against interstate commerce either on its face or in practical effect;
(2) whether the statute serves a legitimate local purpose; and if so, (3) whether alternative means could promote this local purpose as well without discriminating against interstate commerce.
Hughes v. Oklahoma, 441 U.S. 322, 99 S. Ct. 1727, 1736, 60 L. Ed. 2d 250 (1979). See Philadelphia v. New Jersey, supra, 437 U.S. at *679 624, 98 S. Ct. 2531; Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S. Ct. 844, 25 L. Ed. 2d 174 (1970). The party challenging the legislation has the burden of showing the discrimination against interstate commerce that is the focus of the first inquiry. Hughes, supra, 99 S.Ct. at 1736.
The Akron ordinance affects only solid waste that is collected within the city;[13] thus it categorizes waste based on its geographic place of origin. Yet under the ordinance waste originating outside Ohio is not distinguished from Ohio waste originating outside the city limits. In Hughes, Philadelphia, and Pike the unconstitutional statutes drew lines along the state boundary. The Akron ordinance directly affects only intrastate activities, and any effect on interstate commerce is indirect. Nor do the plaintiffs argue that the ordinance restrains interstate commerce in solid waste. They argue that commerce is restrained in the recyclable materials that can be separated from the solid waste. Since the ordinance acts only on solid waste, any burden on interstate commerce in recyclable goods moving in interstate commerce is indirect and incidental.
The second inquiry for the Court under the commerce clause is whether the ordinance serves a legitimate local purpose. The Akron ordinance serves the legitimate goal of making it possible to build the RES and thus assures the safe and efficient disposal of solid waste generated within the city.[14]
Turning to the final inquiry, the Court finds that the plaintiffs have not shown that the city's goals could be served by legislation that would impose a smaller burden on interstate commerce. The plaintiffs do suggest that the city should attract waste to the RES by making it economically advantageous to use the RES. The city considered that possibility, but determined the ordinance was necessary.
As not one of the three parts of the test has been shown, the Court holds that the ordinance is not invalid under the commerce clause.
C. Due Process
The plaintiffs raise two arguments under the due process clause of the fourteenth amendment. First they argue that the ordinance is not sufficiently related to legitimate governmental objectives to pass scrutiny under the due process clause of the fourteenth amendment. Second, they argue that if the ordinance does serve a legitimate public purpose, it effects a taking of their property for which they must be compensated as provided in the fifth amendment which is applied to the states through the fourteenth amendment.[15]
Plaintiffs' first argument under the due process clause asks the Court to subject the ordinance to substantive due process analysis: the Court is to determine whether the city's police power regulation has the appropriate and direct connection to the health, welfare, and safety of city residents. Nebbia v. New York, 291 U.S. 502, 54 S. Ct. 505, 78 L. Ed. 940 (1934); Mugler v. Kansas, 123 U.S. 623, 8 S. Ct. 273, 31 L. Ed. 205 (1887); Patterson v. Kentucky, 97 U.S. 501, 24 L. Ed. 1115 (1878). See Moore v. City of East Cleveland, 431 U.S. 494, 97 S. Ct. 1932, 52 L. Ed. 2d 531 (1977). The defendants argue *680 that the health, welfare, and safety of city residents were motivating factors behind the construction of the RES. Health and safety problems are a constant concern with landfill operations. Health and safety concerns also require that the city maintain a public disposal site to discourage unauthorized dumping of waste within the city limits. The defendants say also that the public welfare required the city to pursue an alternative to landfilling for waste disposal in the Akron area because of the increased difficulties encountered in locating and purchasing suitable landfill sites.
The plaintiffs emphasize the role played by a number of interested private parties: Teledyne, who will operate the RES and receive a portion of its profits (if any); Dillon Read, the firm that headed the underwriting team; Ohio Edison, with an old steam generating facility and downtown customers who need steam. Examining the intent of the council that enacted the city ordinance the plaintiffs stop with the explicit statement within the enactment:
WHEREAS, in connection with the financing of the City's recycle energy facility, it is necessary to provide for revised service charges for the collection and disposal of garbage and rubbish and to revise licensing provisions to require that garbage and rubbish collected by private haulers be disposed of at the new facility when completed.
The plaintiffs argue that the ordinance was enacted to promote narrow private financial interests, without a proper public purpose.
The Court finds that the plaintiffs' understanding of the legislative purpose is overly circumscribed and removes the ordinance from its proper context. As indicated by the whereas clause on which the plaintiffs rely, the ordinance cannot be separated from the RES. Likewise, the city's purpose in constructing, and in financing the construction of the RES cannot be separated from the ordinance. The cooperative agreement and the covenants further demonstrate this connection that plaintiffs attempt to deny.
The city's initial concern for a long term solution to the problem of safely and efficiently disposing of solid waste prompted it to explore recycling and incineration as possible solutions. Over time, as studies were being conducted and as various alternatives were being explored, many factors entered into the decisionmaking and caused the city to finally settle on the RES as the best available method for solving the local, solid waste disposal problem. The magnitude of the problems the city has encountered with landfilling and the chronology of events convince the Court that the city's motivation in building the RES and enacting the ordinance was not to advance private business interests or to undertake proprietary activity. The private interests and the private parties involved in financing and operating the RES do not negate the overriding public purposes and governmental concerns that caused the city to promote the RES and to pass the ordinance.
In California Reduction Co. v. Sanitary Reduction Works, 199 U.S. 306, 26 S. Ct. 100, 50 L. Ed. 204 (1905), and Gardner v. Michigan, 199 U.S. 325, 26 S. Ct. 106, 50 L. Ed. 212 (1905), the Supreme Court considered arguments that ordinances regulating garbage collection were unconstitutional deprivations of property. The Court held that the ordinances were valid exercises of the police power and that they did not unconstitutionally deprive the citizens of the several municipalities of their property. The plaintiffs in the instant case have tried to show themselves outside the rule of California Reduction and Gardner in several ways.
The waste collectors argue that their interest in the waste they collect is different from the interest in garbage asserted by the citizens of a municipality. Plaintiffs say that the ordinance takes something of value from the waste collectors and confers a corresponding benefit on the government. They argue that this attempted regulation must be distinguished from governmental regulation that acts evenhandedly on all citizens to control a nuisance. In this connection the plaintiffs emphasize the differences between the garbage that was being *681 regulated in 1905 and the solid waste and recyclable materials that are regulated by the Akron ordinance. The Court recognizes that there are materials of value within solid waste. It is likewise true that if solid waste is not properly disposed of it can create the same dangers to the public health, welfare, and safety as the garbage of 1905. Thus the Court concludes, as did the Supreme Court in California Reduction, that provisions to assure the proper disposal of waste "cannot be properly regarded . . as a taking of private property for a public purpose, without compensation, simply because such garbage [or waste] may have had . . . some element of value." 199 U.S. at 323, 26 S.Ct. at 105. The Court finds that the ordinance is a regulation adopted to control a nuisance (or potential nuisance) that incidentally impacts on some collectors who separate materials of value from the waste they collect.
The plaintiffs do recognize that "[t]he public interest addressed by the RES is the need of the Akron community to have a satisfactory waste disposal facility." But, they say: "the RES does not address any perceived problem in the business activities of the Plaintiffs." If perceived problems in the business activities of the plaintiffs were the justification for the ordinance, then the lack of any perceived problem in their business activities would seem to be a matter for the Court's concern. The ordinance is, however, part of the city's broader scheme to dispose of waste in a safe and sanitary manner at the RES. The ordinance is a reasonable means to achieve this legitimate goal.
Citing Moore v. City of East Cleveland, supra the plaintiffs argue that the ordinance's relation to this broader public purpose is not sufficient to sustain it. They say that the ordinance must be subjected to a more rigorous scrutiny before the Court can call it proper means to achieve a legitimate end. In Moore the Supreme Court invalidated a local zoning ordinance[16] explaining that:
When a city undertakes such intrusive regulation of the family . . .; the usual judicial deference to the legislature is inappropriate. "This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." . . . Of course, the family is not beyond regulation. But when the government intrudes on choices concerning family living arrangements, this Court must examine carefully the importance of the governmental interests advanced and the extent to which they are served by the challenged regulation.
431 U.S. at 499, 97 S.Ct. at 1936 (citations omitted). The plaintiffs have not shown that the ordinance interferes with their interests in a manner that is comparable to the intrusion into matters of personal and family choice that were at issue in Moore.[17] The "usual judicial deference to the legislature" is therefore appropriate.
Having found that there is a legitimate public purpose for the ordinance, the Court must address the plaintiffs' second argument under the fourteenth amendment, and determine whether the ordinance takes their property for a public purpose without affording them the just compensation required by the fifth amendment.
The plaintiff waste collectors argue that under Ohio law the waste they collect is abandoned property and that, once it is put in their trucks, they own the waste. Before the ordinance the collectors were always free to take their waste, i. e. their property, to any disposal site they chose. By mandating that they take the waste to the RES the *682 waste collectors claim that the ordinance takes their property without giving them compensation.
The Court notes, however, that the collectors collect waste within the city of Akron only after they have obtained a license to do so. Under the ordinance the city will not seize the waste that is now in the trucks nor the waste in the transfer station. The city is regulating where the waste may be taken for disposal. Before the effective date of the ordinance the collectors are free to choose from among several disposal sites. The ordinance removes that choice, and collectors who continue to collect solid waste in Akron while the ordinance is in force will have to abide by its terms. The ordinance takes from the waste collectors the expectation that they would always be able to take the waste they collected within the city to a disposal site of their choice. The plaintiffs have not shown that this is a property right requiring protection under the fifth amendment.
Property rights that are protected by the federal constitution are defined by reference state law or common law. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577-78, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). The plaintiffs rely on a series of state court cases where the courts found that regulations similar to the ordinance at issue here impermissibly interfered with the property rights of landfill owners. Parker v. Provo City, 543 P.2d 769 (Utah 1975); Acme Disposal Corp. v. Southeast Berrien County Landfill Authority, Case No. 75-2130-CE (Mich.Ct.App. Oct. 23, 1975); Thompson v. County of Blue Earth, No. 37447 (Fifth Judicial District, County Of Blue Earth, (1974), aff'd, 305 Minn. 438, 233 N.W.2d 770 (1975). Those courts, did not, however, describe the property interest they found it necessary to protect, nor did they offer analysis to support their result. This Court finds them unpersuasive. The plaintiffs have also failed to explain what property interest of the waste collectors this Court should protect based on those authorities.
In the procedural due process context, the Supreme Court has recognized that actions of governmental entities can foster expectations that may ripen into property rights. In Board of Regents of State Colleges, supra, an assistant professor at a state university challenged the university's decision not to rehire him for another year claiming he had not been given the procedural due process to which he was entitled. The Court found that he had been teaching under a one year employment contract, and there were no statutory or administrative standards defining eligibility for reemployment. The Court held that the teacher had not shown any property or liberty interest that was infringed when he was not given a new contract. Considering a similar due process challenge by another teacher in Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570 (1972), the Court found that the teacher, whose contract was not renewed, had alleged facts that raised a genuine issue as to his interest in continued employment at the college. The teacher's reliance on a de facto tenure program described in official policy statements issued by the college suggested a possible property interest in continued employment. The plaintiffs have not shown that the waste collectors' expectations were fostered by any official statement. The Court does not find that the expectations are a legitimate claim of entitlement that requires the protection of the fifth amendment.
The landfill operators and Budoff Iron and Metal, which operates the transfer station, have shown that the ordinance causes them injury by forcing solid waste to the RES that would otherwise come to them, depriving them of tipping fees and recyclable materials. These plaintiffs therefore have standing to challenge the ordinance.[18] As they may have property interests that are protected by the fifth amendment in situations where the waste *683 collectors do not, it is necessary to examine their fifth amendment claims separately.
These plaintiffs rely on the same series of state court cases that the Court has already determined to be unpersuasive. The transfer station and the landfills merely had the expectation that the waste collectors would continue to bring waste from the city of Akron to them for disposal. They have not shown that this expectation rises to the level of a legitimate claim of entitlement or other property interest protected by the fifth amendment.
Alternatively, accepting the argument of the waste collectors that the ordinance impacts on their ability to dispose of the waste they collect which is part of the traditional property concept of ownership, the Court finds nonetheless that this is not a compensable taking under the fifth amendment.
In zoning cases where governmental regulation affects real property interests it is well established that reasonable restrictions imposed for the health, welfare, and safety of the population are not unconstitutional deprivations of property; rather, they have been held to be legitimate exercises of the police power. E. g., Village of Euclid v. Ambler Realty, 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926); Goldblatt v. Town of Hempstead, 369 U.S. 590, 82 S. Ct. 987, 8 L. Ed. 2d 130 (1962). Similarly, in Andrus v. Allard, ___ U.S. ___, 100 S. Ct. 318, 62 L. Ed. 2d 210 (1979), the Supreme Court held that a regulation prohibiting the sale of artifacts containing eagle feathers was not a taking for which compensation was required. The Court said that "governmental regulation by definition involves the adjustment of rights for the public good. Often this adjustment curtails some potential for the use or exploitation of private property." Id. at ___, 100 S.Ct. at 327.[19] In considering the plaintiffs' first claim under the due process clause the Court has determined that the ordinance is a proper exercise of the city's police powers. The Court likewise concludes that the ordinance is not a taking for which compensation must be paid under the fifth amendment.
D. State Constitutional Claim
The plaintiffs' final claim is that the ordinance violates the state constitution. Article XVIII, section 3 of the Ohio Constitution provides:
Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws.
The plaintiffs' position is that the extraterritorial effects of the ordinance are so extensive that the ordinance effectively regulates matters outside the city limits and violates this constitutional provision.
Plaintiffs rely on a Minnesota case, Thompson v. County of Blue Earth, supra, *684 saying that the Ohio courts would reach a similar result and invalidate the local ordinance under the state constitution. As is apparent from the plaintiffs' brief, however, the Minnesota court was interpreting the due process clause of the state constitution. The Ohio constitutional provision at issue here is very different.
The Ohio case of City of Canton v. Whitman, 44 Ohio St. 2d 62, 337 N.E.2d 766 (1975), is likewise inapposite because that case presented a clash between the uniform state policy of the state environmental protection agency, which required fluoridation, and the city's decision not to add fluorides to the city water supply. Here there is no similar clash. Akron's ordinance was in fact supported by the OWDA, the state agency responsible to promote waste disposal facilities.
The Court finds that the Akron ordinance regulates waste collection and disposal within the city limits and is a proper exercise of the city's home rule powers under the Ohio Constitution.
E. Conclusion
Having found that the activities of the defendants are exempt from the Sherman Act under the doctrine of Parker v. Brown, that the ordinance does not violate the commerce clause, or the fourteenth amendment to the United States Constitution, and that the ordinance is not in violation of Article XVIII section 3 of the Ohio Constitution, the Court concludes that judgment shall be entered for the defendants and against the plaintiffs on all claims.
IT IS SO ORDERED.
APPENDIX A
Jurisdiction and Venue
1. All defendants admit the jurisdictional allegations of the consolidated complaints except that OWDA denies the jurisdictional basis for plaintiffs' 42 U.S.C. § 1983 claim against it.
2. Venue is proper in this district by virtue of 28 U.S.C. Section 1391(b), 15 U.S.C. Section 15, and 15 U.S.C. Section 22. All defendants either inhabit, transact business, reside or are found in this district and all claims asserted have arisen in this district.
The Plaintiffs
3. Plaintiff Glenwillow Landfill Inc. (hereinafter "Glenwillow") is a private corporation organized and existing under the laws of the State of Ohio. Plaintiff Portage Landfill Inc. (hereinafter "Portage") is a sole proprietorship. Plaintiffs Glenwillow and Portage operate sanitary landfill disposal sites located in the Counties of Cuyahoga and Portage, Ohio, respectively. These disposal sites, which are licensed pursuant to Ohio Revised Code, Chapter 3734, are open to the public for the disposal of solid waste materials. Parties depositing waste materials at Glenwillow and Portage disposal sites pay said plaintiffs a fee based on the quantity of waste deposited. Accordingly, a significant portion of the income derived by said plaintiffs from the operation of their disposal sites is attributable to the deposit of solid waste materials. As of June 1, 1978, Glenwillow maintained a tipping charge of approximately $4 to $5 per ton. As of January 1, 1978, Portage maintained a tipping charge of approximately $4.40 per ton.
4. Plaintiff J. R. Hawley Sanitation, Inc. (hereinafter "Hawley") is a private corporation organized and existing under the laws of the State of Ohio. Plaintiff Kovach Sanitation (hereinafter "Kovach") is a sole proprietorship. Plaintiffs Hawley and Kovach are haulers of waste material, licensed by the City of Akron, Ohio, and own and operate waste collection vehicles, waste containers and related waste collection equipment in the City of Akron, Ohio, in Summit County outside the City and in areas outside the County. Under the terms of various agreements between said plaintiffs and certain industrial and commercial concerns situated within and outside the City of Akron, Ohio, said plaintiffs covenant to remove the waste materials generated by said concerns, in return for which said plaintiffs receive a fee, based on the quantity of waste removed therefrom.
*685 5. Plaintiff Hybud Equipment Corp. (hereinafter "Hybud") is a private corporation organized and existing under the laws of the State of Ohio and is a hauler of waste material, licensed by the City of Akron and other jurisdictions in which it operates which require licenses. Hybud owns and operates waste collections vehicles, waste containers and related waste collection equipment in the City of Akron and County of Summit, Ohio, and in several contiguous counties in Ohio. Under the terms of various agreements between said plaintiff and certain industrial and commercial concerns situated within the City of Akron and County of Summit, Ohio, and in contiguous counties in Ohio, said plaintiff covenants to remove the waste materials generated by said concerns, in return for which said plaintiff receives a fee, based on the quantity of waste removed therefrom. Plaintiff Hybud also designs and manufactures solid waste containers and compactors and other types of waste handling equipment, some of which it places or leases at the location of its customers in and outside the City of Akron and the remainder of which it sells to third parties. Plaintiff Hybud has also sold bags for containment of solid waste to its customers and to others from time to time. . . .
6. Plaintiffs Hawley, Kovach and Hybud presently operate some collection routes in which solid waste collected in the City is mixed in the same trucks with waste collected outside the City.
7. Plaintiff Budoff Iron and Metal Corp. (hereinafter "Budoff") is a private corporation organized and existing under the laws of the State of Ohio. Said plaintiff owns and operates a transfer station within the City limits of Akron, Ohio. Budoff (a) receives at the transfer station "source segregated" cardboard and waste materials containing recoverable cardboard and metal, most of which is collected by plaintiff Hybud in Akron, Summit County and contiguous counties in Ohio; (b) removes therefrom cardboard and metals, (c) sells such recovered materials to paper and scrap metals dealers (or other customers) and (d) disposes of the residue of unrecovered waste materials at a landfill.
The Defendants
8. Defendant City of Akron is a charter municipality in Ohio. The City encompasses an area of 54 square miles. In 1976, its population approximated 269,000.
9. Defendant John Ballard is the Mayor of the City of Akron, Ohio.
10. Defendants Ray Kapper, Elsie Reavan, James R. Williams, Tim David, Vincent Ciraco, Robert L. Goehler, Reginald K. Brooks, Kathleen Greissing, Robert J. Otterman, Mickey Eritano, Jr., John V. Frank, Don Plusquellic and William C. Grimm, or their duly appointed or elected successors, are residents of the City of Akron and members of the Akron City Council, being duly elected in accordance with the City's Charter.
11. Defendant Robert Edwards is the Public Service Director for the City of Akron.
12. Defendant Summit County ("the County") is a county organized and existing under the constitution and laws of the State of Ohio, containing approximately 416 square miles, and having a population, as of 1976, of approximately 535,000 persons.
13. Defendants Mark Ravenscraft, Ted Cole and Don Stephens, or their duly elected or appointed successors to office, are residents of the County and comprise the Board of Summit County Commissioners, being duly elected in accordance with the laws of the State of Ohio.
14. Defendant Ohio Water Development Authority ("OWDA") is "a body corporate and politic of the State of Ohio," created by Chapter 6121 of the Ohio Revised Code.
Nature of the Akron Area Waste Business
15. The residents and businesses located in the City of Akron and in Summit County, Ohio, generated approximately 1300 tons of solid waste material daily in 1976. Single and two-family residential waste generated in the City of Akron is either collected by City trucks or by private trucks operated by *686 a firm under contract to the City and licensed by the City. Virtually all other residential solid waste, as well as solid waste generated by commercial or industrial establishments in the City (hereinafter sometimes referred to as "commercial waste"), is collected by private firms, licensed by the City, which contract directly with these customers.
16. Residential waste collected by City trucks or firms under City contract presently is disposed of at the Hardy Road Landfill operated by the City, which charges a fee for all waste it receives based upon volume. Private firms collecting residential waste, but not under City contract, or commercial waste in the City or County are presently, and always have been, free to take such material to whatever public or private disposal site they find most economical, whether inside or outside the City or County. Collectors are also presently, and always have been, free to separate, process, recycle or resell any such waste material they collect.
17. The public and private landfills, including plaintiffs, now operating in the Akron-Summit County area required to hold permits under State law and are inspected by County or Municipal Boards of Health and by the Ohio EPA. Private landfills in this area have competed among themselves and with public sites to attract waste material in the past and do so presently as well.
The Recycle Energy System
18. During the period 1950 to 1970, the City operated a series of facilities within its corporate limits to dispose of solid waste generated in the City and neighboring communities; specifically:
Inclusive
Facility Dates of Operation
Evans Avenue Closed 1954
incineration plant
Landfill at Robinson 1952-1955
Clay Products
Clay Pit
Kelly Avenue Landfill 1955-1963
Cuyahoga Street (North 1963-1968
of Tallmadge Parkway)
Landfill and Peck
Road Landfill
Cuyahoga Street (Near 1969-1970
the Workhouse) Landfill
In addition to the City's facilities, the City of Barberton operated an incinerator and there were a number of disposal facilities located throughout the County.
19. In the late 1960's, officials in Akron and Summit County foresaw a need for new solid waste disposal facilities, principally triggered by two factors:
(1) The solid waste disposal regulations (effective July 1, 1968) adopted by the Public Health Council (now EPA) pursuant to the Ohio Waste Disposal Act (Chapter 3734, Ohio Revised Code) placed substantial constraints on future location and operation of waste disposal sites.
(2) The Cuyahoga Street Landfill, then the only sanitary landfill in the County, was fast filling up.
20. The need for new facilities was discussed at several meetings between the Mayors of Akron, Cuyahoga Falls and Barberton during the first quarter of 1968. Beginning in mid-1968, representatives of the County participated in these meetings.
21. The City's Department of Planning and Urban Renewal ("Planning Department") undertook, in early 1968, a Comprehensive Regional Waste Disposal Study ("the Study") to find a long-term solution to disposing of solid waste in the Akron area. The Planning Department considered a number of alternative means to effect a long-term solution, including sanitary landfill, transfer stations, incineration, composting, rail haul to strip mines, etc. Part 1 of this Study, dated August, 1968, was devoted to sanitary landfills. In preparing this study, City employees inventoried existing disposal facilities both within and outside of Summit County. They also studied 102 potential landfill sites within Summit County, but concluded that only 7 of these sites, all located in the southern part of the County, were feasible for landfill development based on the criteria of the study.
*687 22. As part of its study, the City also helped finance and participated in a solid waste rail haul study sponsored by the American Public Works Association to research the technology and feasibility of hauling compacted solid waste to strip mines for disposal.
23. In May, 1968, representatives of the City took a field trip to New York and New Jersey to study the operation of solid waste incinerators in three communities. In late 1968, the Planning Department prepared a rough draft of Part 2 of its study devoted to incineration.
24. In February, 1969, the City appropriated $22,000 to hire Glaus, Pyle & Schomer to undertake a "Study Of The Methods And Feasibility Of Incineration For Waste Disposal" including "[a]nalysis of waste heat recovery possibilities and consideration of waste heat recovery to offset expenses." Glaus, Pyle concluded that the technology for constructing and operating a "Recycle Energy System" (RES) to convert solid waste to steam or electricity was available but economically unfeasible at the time. Consequently, the Glaus, Pyle study was shelved in September, 1969.
25. Meanwhile, the expected closing of the Cuyahoga Street Landfill created an immediate need to find a new disposal site. In meetings between officials of the County and City, alternative solutions were discussed. In early 1969, officials of the City and County agreed to cooperate in creating a new landfill to be operated by the City as a regional project. In March, the Commissioners created a Garbage and Refuse Disposal District consisting of all of the unincorporated territory in the County pursuant to Title 343 of the Ohio Revised Code to facilitate the establishment and operation of a new regional landfill site; and the City decided to establish a new sanitary landfill on a site it owned on Hardy Road in Northampton Township. In May, 1969, the Township Trustees filed suit against the City to enjoin a landfill operation on the Hardy Road site (Leo Blower, et al. v. The City of Akron, Summit County Case No. 276209), and the Court issued a preliminary injunction partially enjoining the acceptance of solid waste at the Hardy Road landfill site. This litigation was ultimately settled by agreement dated December, 1969, pursuant to which the City agreed to cease operating a landfill at the Hardy Road site at the expiration of five years, with a provisional right to operate for an additional three years if it had "operated the landfill strictly in accordance with applicable laws and regulations" during the first five year period. On April 21, 1970, the Board of Summit County Commissioners adopted Resolution 441-70, authorizing an agreement between the County and the City of Akron for the opening, operation and maintenance of the Hardy Road Landfill by the City of Akron as a waste disposal facility within Garbage and Refuse Disposal District No. 1.
26. The Hardy Road landfill opened for business in June, 1970. Total annual tonnage disposed of at the landfill from 1971 through 1978 is as follows:
Year Tons[*]
1971 79,000
1972 70,988
1973 101,958
1974 164,325
1975 239,900
1976 239,399
1977 272,273
1978 284,122
The landfill has generated complaints from some area residents, the County Board of Health and the Ohio EPA. In 1975, Northampton Township again filed suit to shut down the landfill (Board of Trustees of Northampton Township v. City of Akron, Summit Co. C.P. Case No. 7592121); and in 1977, the County Board of Health instituted a proceeding to revoke the City's license to operate the landfill. In 1978, the City succeeded in annexing the Hardy Road site *688 and contiguous land, thereby relieving it of its contractual obligation to the Township to discontinue landfill operations on the site that year.
27. In 1970 and 1971, the Planning Department continued its study, investigating a number of new technologies to dispose of solid waste, including pyrolosis, the generation of gas from solid waste. Among other things, City officials visited RES projects in Montreal, St. Louis, Chicago and Rochester.
28. In February, 1971, Ohio Edison petitioned the Public Utilities Commission to abandon its steam heating system in Akron because it was unprofitable to Ohio Edison and because the Company was faced with substantial new capital requirements to meet tightened state air emission standards. The PUCO ultimately denied this petition. That same month, Council authorized the Planning Department and Glaus, Pyle to undertake an RES preliminary feasibility study.
29. In July, 1971, the Planning Department issued its "Comprehensive Regional Waste Disposal Study." The report summarized existing solid waste disposal facilities in the County and concluded that they would be filled by 1978. The report then examined alternative methods for providing a long-term solid waste disposal solution including:
(1) sanitary landfill;
(2) incineration;
(3) composting of solid waste;
(4) rail haul;
(5) size and volume reduction methods (shredding and crushing); and
(6) resource recovery techniques.
In August, 1971, Glaus, Pyle issued its RES report entitled, "Feasibility Study of Solid Waste Reduction and Energy Recovery."
30. In the year following issuance of the Planning Department and Glaus, Pyle reports, the City's administration took the proposed RES project under advisement. In September, 1972, after a visit to the RES steam plant in Hamilton, Ontario, Mayor Ballard indicated support for the RES project. On October 2, Council held a public hearing on the project; on October 17, the City's Health Commission approved and supported the project. In November, Council passed a resolution inviting proposals from engineering firms interested in designing the project. In April, 1973, after considering a number of alternative technologies, Council authorized the administration to retain Glaus, Pyle to design an RES project at a cost not to exceed $710,000.
31. In May, 1974, the City's Planning Department issued a report entitled "Solid Waste Disposal in the Akron Area." In June, 1974, Glaus, Pyle issued its Preliminary Phase Report on the RES plant. In December, 1974, final plans and specifications for the RES project were completed. In December, 1974, construction contracts were let out for bid; and in February, 1975, the City received bids on all construction contracts for the project.
32. Commencing in March, 1975, the City, its bond counsel and its financial consultant began formulating concrete plans to finance the project by the issuance of revenue bonds. It was recognized that one element of the project's feasibility was its ability to obtain sufficient solid waste of adequate BTU content over the term of the bonds. To provide an assurance of supply, Council authorized the Director of Public Service to contract with "other units of local government and/or private firms for the deposit of trash and garbage for disposal at the recycle energy system."
33. In mid-1975, the underwriters advised the City that its proposed RES revenue bonds would not be marketable. Consequently, the City asked the Ohio Water Development Authority ("OWDA") to finance the project. OWDA agreed to finance the project at its September 11, 1975 meeting. Construction contracts were immediately awarded to the low bidders subject to obtaining financing for the project. However, in early November, 1975, counsel for OWDA opined that the City could not secure the OWDA's bonds from its general fund, and, therefore, the proposed financing had to be restructured. In the succeeding months, the underwriters unsuccessfully attempted *689 to restructure the financing. In the course of time, the City began looking for new underwriters. In July, 1976, Dillon, Reed & Co. agreed to head a new underwriting team to purchase and resell the OWDA's RES bonds.
34. The new underwriting team substantially restructured the proposed financing in an effort to make the OWDA's bonds for the RES project marketable. Among other things, the underwriters:
(1) renegotiated the steam contracts with B. F. Goodrich, Akron University and Akron City Hospital to provide stronger long-term guarantees; and
(2) required the creation of a separate $10,000,000 Project Contingency Fund to cover construction cost overruns.
The steam contracts were successfully renegotiated and the City created the $10,000,000 Project Contingency Fund by committing $5,000,000 of its own general obligation money and obtaining the County Commissioner's agreement to commit $5,000,000 of the County's general obligation money to the contingency fund.
35. The Project, to be located in, operated and owned by, the City of Akron, entered construction in December, 1976, and is scheduled to commence operation in September, 1979. It essentially consists of a solid waste shredding facility, classification and separation facilities, three industrial spreader-stokers and boilers capable of employing shredded solid waste as fuel to create steam, and existing and proposed steam distribution lines and systems located in the City of Akron, Ohio. The Project is to provide steam to many of the some 200 businesses and other energy customers presently buying steam from Ohio Edison and to other energy customers as well. Already signed to long-term contracts with the Project are approximately thirty area businesses, including B. F. Goodrich Company, and other energy customers. The Project will remove from waste it receives ferrous scrap and will seek to sell such scrap in existing markets for such material. The Project will also, if and when economically feasible, extract other metals and non-metallic waste components for sale. Defendant City has projected that revenues of the RES from the sale of ferrous material for the first year of operation of the RES will be approximately $681,000 and will increase in subsequent years.
36. On November 10, 1976, the City entered into a contract with Teledyne National, a division of Teledyne Industries, Inc. ("Teledyne"), a California corporation, to supervise construction of the Project and then to operate it for a five-year term, renewable at one-year intervals thereafter if both parties agree. Teledyne's contract includes a basic $360,000 fee, plus certain incentives, for construction supervision and a cost reimbursement plus $150,000 fixed fee arrangement for operation. In addition, Teledyne will receive half of all gross revenues of the Project attributable to sale of recovered ferrous and other materials in excess of certain minimum revenues and related expenses. The approximate volume of solid waste presently being brought to the Hardy Road Landfill from all sources is 1300 tons per day. The Project is designed to process up to a maximum of 2240 tons of solid waste per day. It is Teledyne's present intention to operate at the level of approximately 1400 tons per day.
37. An incentive to Teledyne in entering the contract to operate the RES was its agreed share of revenues from ferrous or other recoverable sales. Based on guidelines to be issued by the City, Teledyne will designate waste materials that are acceptable to the Project.
The Cooperative Agreement
38. On October 4, 1976, Council authorized the City to enter into a Cooperative Agreement with OWDA and the County to finance the RES facility. On October 14, the Board of County Commissioners authorized the County to execute the Cooperative Agreement by Resolution 1381-76. Section 5.5 of this agreement provides that the City ("LGA") covenants with the OWDA for the benefit of the bond holders that:
"H. The LGA will not establish, construct or operate nor consent to the establishment, *690 construction or operation of any facility for the disposal or other treatment of Solid Waste which is acceptable for disposal by the Project and for which the Project has capacity available and which the OWDA determines to be detrimental to the Project, and, further, to the extent legally permissible, it will oppose the establishment, construction or operation of such a facility. The LGA System shall not charge to or collect from the Project any charge for the haulage or disposal of (i) any Solid Waste residue remaining after processing by the Project and (ii) any Solid Waste which is delivered to the Project and which is not suitable for incineration by the Project or resource recovery, and the LGA shall be responsible for the disposal of such Solid Waste.
I. For the term of this Agreement, the LGA shall require that all collectors and haulers of Solid Waste within the LGA be licensed by the LGA and all such licenses shall provide that all collectors or haulers of Solid Waste shall dispose of all Solid Waste generated within the corporate limits of the LGA which is acceptable for disposal by the Project to be delivered to the Project for disposal through the Project and require that such haulers and collectors and the LGA pay or cause to be paid the fees and charges imposed by the LGA for the disposal of Solid Wastes at the Project. The LGA will take all available action, administrative, judicial and legislative, to cause all Solid Waste generated within the corporate limits of the LGA and which is acceptable for disposal by the Project, to be delivered to the Project for disposal through the Project.
* * * * * *
"O. . . . The LGA shall use its best efforts to establish rates and charges for the disposal of Solid Waste through the Project at a level which assures an adequate supply of Solid Waste for the purpose of the Project and, subject to the foregoing, shall be comparable with competitive charges for such services. . ."
Under Section 5.6 of the Cooperative Agreement, the County covenants with OWDA for the benefit of the bond holders that:
"A. The County will not establish, construct, or operate nor consent to the establishment, construction or operation of any facility for the disposal or other treatment which OWDA solely determines to be detrimental to the Project of Solid Waste which is acceptable for disposal by the Project and for which the Project has capacity available, and further to the extent legally permissible, it will oppose the establishment, construction or operation of such facilities.
"B. The County will take all legally available action, administrative, judicial and legislative, to cause all Solid Waste generated within the County and which is acceptable for disposal by the Project and for which the Project has capacity available, to be delivered to the Project for disposal through the Project."
39. Contained in section 6.10 of the Co-operative Agreement are the following warranties and representations made by the County in entering into the Cooperative Agreement:
(a) The County is a county duly organized and existing under the laws of the State, is not in violation of any provision of the Constitution or laws of the State relevant to the transactions contemplated by this Agreement or the Indenture.
(b) The County has full power and authority to execute and deliver this Agreement and to carry out the transactions contemplated thereby. This Agreement and such contracts have by proper action been duly authorized, executed and delivered by the County and all steps necessary have been taken to constitute this Agreement a valid and binding obligation of the County.
(c) The execution, delivery and performance by the County of this Agreement and the consummation of the transactions contemplated hereby will not violate *691 any provision of the constitution, law, resolution or regulation applicable to the County, or of any writ or decree of any court or governmental instrumentality, or of any indenture, contract, agreement or other undertaking to which the County is a party or which purports to be binding upon the County or upon any of its assets.
40. Counsel for the County states that the County has taken no action to implement its covenants under Section 5.6 of the Cooperative Agreement. None of the other parties to this suit is aware of any such action by the County.
41. The Cooperative Agreement was signed by the City, the County and OWDA effective December 1, 1976.
42. On December 6, 1976, OWDA issued an Official Statement noticing the offering of $46,000,000 of special obligation bonds to finance the acquisition, construction and equipping of the Project. Contained in the Official Statement is a restatement of the Cooperative Agreement.
The Ordinance
43. On October 4, 1976, prior to but in contemplation of and for the purpose of giving effect to the covenants undertaken by the three governmental entities in the Cooperative Agreement, the Council of the City of Akron, Ohio, passed Ordinance No. 841-76 (hereinafter "Ordinance"). This Ordinance, which amends Section 850.06, 1068.06 and 1068.14 of the Codified Ordinances of the City of Akron (hereinafter "Codified Ordinances"), revised licensing requirements and service charges with respect to the collection and disposal of garbage and rubbish within the City of Akron. Specifically, Section 1(a) of the Ordinance amends Section 850.06 of the Codified Ordinance as follows:
"(a) Until such time as the City's recycle energy plant begins accepting rubbish for disposal, no rubbish shall be deposited by the holder of a rubbish hauler's license within the corporate limits of the City except at a place designated in writing by the Mayor. From and after the date on which such plant begins accepting rubbish for disposal, all rubbish collected within the corporate limits of the City by a holder of a rubbish hauler's license shall be deposited at such plant; provided that rubbish which is not acceptable for disposal by such plant shall not be deposited within the City except at a place designated in writing by the Mayor."
Section 2 of the Ordinance amends Section 1068.06 of the Codified Ordinance as follows:
"No person, except duly authorized collectors of the City or private haulers licensed pursuant to law, shall collect or remove any garbage or rubbish accumulating within the City or use the streets, avenues and alleys of the City for the purpose of collecting or transporting the same. All licenses granted to such private haulers and all contracts or other forms of authorization of duly authorized collectors shall require that all garbage or rubbish collected and transported under authority for disposal by the City's energy plant, be disposed of at such plant from and after the date on which such plant begins accepting garbage and rubbish for disposal."
Section 3 of the Ordinance establishes a collection and disposal fee for garbage and rubbish generated within the City's limits during the calendar year 1978. Section 3 also provides that:
"[t]he Director of Public Service is authorized to promulgate rules and regulations for the collection of said service charge and he is further authorized with consent of Council to adjust such charge upward on January 1, 1979 or on January 1 of any year thereafter."
44. The prefatory language contained in the Ordinance states:
"Whereas, in connection with the financing of the City's recycle energy facility, it is necessary to provide for revised service charges for the collection and disposal of garbage and rubbish and to revise licensing provisions to require that *692 garbage and rubbish collected by private haulers be disposed of at the new facility when completed."
Effect of the Ordinance
45. Collectors and transporters of solid waste in the City presently holding licenses issued by defendant City, including plaintiffs Hawley, Kovach and Hybud, and persons who may in the future apply for and obtain such licenses, shall be required, as a condition of such licenses, after the RES commences operation, to bring to RES all solid waste collected in the City and which the City determines to be acceptable for RES, and to pay RES such fees for disposal there as the City shall establish from time to time. Persons holding such licenses who fail or refuse to comply with said requirements shall be subject to potential loss of such licenses, in which case they will be prohibited from collecting or transporting solid waste in the City of Akron, or they may be subject to criminal prosecution by the City. Parties who collect solid waste within the City without licenses as prescribed by the Ordinance will be subject to criminal prosecution.
46. Solid waste "acceptable for disposal" by the RES, as prescribed in the Ordinance, shall include all solid waste generated in the City other than hazardous wastes or certain items the RES is not equipped to handle. Such rejected items will not include paper, cardboard or most other combustibles or most materials containing ferrous or other recoverable metals.
47. The Ordinance will prevent plaintiffs Hawley, Kovach and Hybud, or any other persons holding City licenses, from taking solid wastes subject to the Ordinance (i. e., solid waste collected within Akron which is acceptable for disposal at RES) to private or public disposal facilities outside of the City after RES commences operation, including plaintiffs Glenwillow and Portage.
48. To the extent plaintiffs Hawley, Kovach or Hybud, or any other collectors presently, or in the future, holding licenses from the City, may, due to economic or other competitive or business factors, seek to engage in the separation of paper, cardboard, metals or other materials from the solid waste they collect that is subject to the Ordinance, for the purpose of selling such recovered materials for profit, the effect of the Ordinance will be to prevent said collectors from doing so.
49. To the extent public or private entities located in Ohio or outside Ohio may wish to purchase materials recovered from solid waste subject to the Ordinance, and to the extent they would otherwise be able to do so but for the Ordinance, the effect of the Ordinance will be to prevent them from doing so, other than directly or indirectly from the RES.
50. To the extent plaintiff Budoff or any other firms in Ohio may purchase or otherwise receive solid waste subject to the Ordinance, and to the extent they would otherwise be able to do so but for the Ordinance, the effect of the Ordinance will be to prevent them from receiving such solid waste.
90. The City, County and OWDA participated in the issuance of $46,000,000 in revenue bonds.
91. The bonds described in ¶ 90 were purchased by persons inside and outside Ohio.
92. Defendant City will offer for sale to customers inside and outside of Ohio ferrous material recovered by RES from Akron solid waste.
APPENDIX B
Appendix B shall remain under seal as it contains confidential information that is subject to a protective order entered by the Court.
APPENDIX C
B. Emergence of The Akron-Summit County Solid Waste Disposal Problem and Genesis of RES
4. Single and two-family residential waste generated in the City of Akron is either collected by City trucks or by private *693 trucks operated by a firm under contract to the City which is licensed to collect and haul solid waste in the City. Virtually all other solid waste generated in the City, including commercial and industrial solid waste is collected by private firms licensed by the City to collect and haul solid waste within its corporate limits. During the period 1950 to 1970, the City operated a series of facilities within its corporate limits to dispose of solid waste generated in the City and neighboring communities; specifically:
Inclusive
Facility Dates of Operation
Evans Avenue Closed 1954
incineration plant
Landfill at Robinson 1952-1955
Clay Products
Kelly Avenue Landfill 1955-1963
Cuyahoga Street (north 1963-1968
of Tallmadge Parkway)
Landfill and Peck
Road Landfill
Cuyahoga Street (near 1969-1970
the Workhouse) Landfill
In addition to the City's facilities, the City of Barberton operated an incinerator and there were a number of open dumps located throughout the County.
5. In the late 1960's, it became apparent that the Akron-Summit County area would soon be facing a serious waste disposal problem, principally triggered by two factors:
(1) The solid waste disposal regulations (effective July 1, 1968) adopted by the Public Health Council (now EPA) pursuant to the Ohio Waste Disposal Act (Chapter 3734, Ohio Revised Code) outlawed the open dumps being operated in the County and placed substantial constraints on future location and operation of waste disposal sites.
(2) The Cuyahoga Street landfill, then the only sanitary landfill in the County, was fast filling up, a condition exacerbated by the increasing quantities of solid waste attracted to the landfill by dump closings.
6. The impending solid waste problem was recognized by responsible officials as a regional problem, and was discussed at several meetings between the Mayors of Akron, Cuyahoga Falls and Barberton during the first quarter of 1968. At the time, Barberton was disposing of its solid waste at two open dumps which could not comply with the new solid waste disposal regulation. Cuyahoga Falls was disposing of most of its solid waste at the Portage Landfill (operated by plaintiff Waldo A. Sober, Jr.); but the City was concerned about the continued ability of that landfill to operate under the new solid waste regulations, as well as the high hauling and disposal costs it was incurring using that landfill. Beginning in mid-1968, representatives of the County participated in these meetings.
7. In response to the solid waste problem, the City's Department of Planning and Urban Renewal ("Planning Department") undertook, in early 1968, a comprehensive study to find a long-term solution to the problem. The Planning Department considered a number of alternative means to effect a long-term solution to the problem including sanitary landfill, transfer stations, incineration, composting, rail haul to strip mines, etc. Part 1 of this study, dated August, 1968, was devoted to sanitary landfills. In preparing this study, City employees inventoried existing disposal facilities both within and outside of Summit County which they determined to be inadequate. They also studied 102 potential landfill sites within Summit County, but determined that only 7 of these sites, all located in the southern part of the County, were feasible for landfill development from a physical-topographical standpoint.
8. As part of its comprehensive study, the City also helped finance and participated in a solid waste rail haul study sponsored by the American Public Works Association undertaken to research the technology and feasibility of hauling compacted solid waste to strip mines for disposal.
9. In May, 1968, representatives of the City took a field trip to New York and New Jersey to study the operation of solid waste incinerators in three communities. In late 1968, the Planning Department prepared a *694 rough draft of Part 2 of its comprehensive study devoted to incineration. This draft generally concluded, among other things, that:
"Despite the higher costs, disposal of solid wastes by incineration is inherently prompt, thorough and complete. Modern incinerator facilities are very efficient and are architecturally or aesthetically pleasing. There is little or no separating of solid waste required. A properly designed and operated incinerator can be constructed in a heavily built-up area without creating a nuisance. There should be no problem in meeting the State Health Department requirements. "It is possible to generate steam or electricity from the waste heat which may help to offset the relatively high operating costs." [p4]
The City's planners believed incineration was a superior long-range solution to land-filling for a number of reasons, including the facts that:
(1) An incinerator can be centrally located within the corporate limits, thereby obviating costly hauling and assuring that the City retains control over the facility.
(2) The ash can be used for fill or safely landfilled requiring the utilization of far less land.
(3) Incineration markedly reduces the pollution and nuisances associated with landfills and, to the extent it replaces coal fired boilers, actually reduces air pollution.
(4) The costs of operation can be offset by the sale of steam or electricity and recyclable materials.
10. By February, 1969, the City was sufficiently enthused by the incineration alternative to appropriate $22,000 to hire Glaus, Pyle & Schomer, an A & E firm with considerable experience in boiler design, to undertake a "Study Of The Methods And Feasibility Of Incineration For Waste Disposal" including "[a]nalysis of waste heat recovery possibilities and consideration of waste heat recovery to offset expenses." Glaus, Pyle concluded that the technology for constructing and operating a "Recycle Energy System" (RES) to convert solid waste to steam or electricity was available. However, after investigating a number of different markets for steam or electricity which would be produced by an RES, Glaus, Pyle concluded that there was no available market. One such potential market, the steam users in Akron's Central Business District (CBD) whose needs were being satisfied by Ohio Edison, were not enthusiastic about buying steam from the City. Furthermore, the sharp seasonal variations in the CBD's steam load made an RES project to serve the CBD uneconomic unless B. F. Goodrich, which is located close to the CBD and uses substantial quantities of steam year-round for manufacturing purposes, could be persuaded to enter into a long-term contract to purchase the project's excess steam on an interruptible basis. At that time, B. F. Goodrich was not interested in the project as a long-term source of steam. Consequently, the Glaus, Pyle study was shelved in September, 1969.
11. Meanwhile, an acute solid waste disposal problem created by the increasing quantities of solid waste being delivered to the Cuyahoga Street landfill forced the City's planners to concentrate on finding a stop-gap solution. In October, 1968, Martha D. Nelson, M.D., Health Commissioner of the Summit County General Health District, wrote the County Commissioners warning that the paucity of landfill sites in Summit County posed a serious problem. "This is a most urgent matter as it is entirely possible that on July 1, 1969 the Summit County area would be without any solid waste disposal facility." In subsequent meetings between officials of the County and City, a number of alternatives were discussed. In early 1969, officials of the City and County agreed to cooperate in creating a new landfill to be operated by the City as a regional project; and in March, the Commissioners created a Garbage and Refuse Disposal District pursuant to Title 343 of the Ohio Revised Code to facilitate the establishment and operation of a new regional landfill site.
*695 C. The Hardy Road Landfill A Short-Term Solution To The Problem
12. Faced with imminent closing of the Cuyahoga Street landfill, the City reluctantly decided to develop a new sanitary landfill on a 100 acre tract of woodland it owned outside of the City on Hardy Road in Northampton Township. The City's decision drew immediate, adverse response from residents in Northampton Township. In May, 1969, the Township Trustees filed suit against the City to enjoin a landfill operation on the Hardy Road site (Leo Blower, et al. v. The City of Akron, Summit County Case No. 276209), and the Court issued a preliminary injunction partially enjoining the acceptance of solid waste at the Hardy Road landfill site. This litigation was ultimately settled by agreement dated December, 1969, pursuant to which the City agreed to cease operating a landfill at the Hardy Road site at the expiration of five years, with a provisional right to operate for an additional three years if it had "operated the landfill strictly in accordance with applicable laws and regulations" during the first five year period.
13. The Hardy Road landfill opened for business in June, 1970. Total annual tonnage disposed of at the landfill from 1971 through 1978 is as follows:
Year Tons[*]
1971 79,000
1972 70,988
1973 101,958
1974 164,325
1975 239,900
1976 239,399
1977 272,273
1978 284,122
Since 1975, the Hardy Road landfill has been the only public solid waste disposal facility operating in the Akron area capable of disposing of solid waste. Public and private haulers of the solid waste generated within Akron, Barberton, Cuyahoga Falls and other communities in the Akron area dispose of most of the solid waste they collect in these communities at the City's Hardy Road landfill. Operation of the landfill has generated continuing complaints from its neighbors, the County Board of Health and the Ohio EPA. In 1975, Northampton Township again filed suit to shut down the landfill (Board of Trustees of Northampton Township v. City of Akron, Summit Co. C.P. Case No. 7592121); and in 1977, the County Board of Health instituted a proceeding to revoke the City's license to operate the landfill. In 1978, the City succeeded in annexing the Hardy Road site and contiguous land, thereby relieving it of its contractual obligation to the Township to discontinue landfill operations on the site that year. But the operation of the landfill continues to generate protests [from] its neighbors, the County Board of Health and the Ohio EPA.
NOTES
[1] Although the complaint alleges a claim based on the equal protection clause of the fourteenth amendment to the United States Constitution, that claim has not been discussed by the plaintiffs in any of their briefs to this Court.
[2] The parties also put 36 depositions into evidence by stipulation. Two of the depositions, those of Ned Oberlin and Richard Bain, were never filed with the Court and are therefore not part of the evidence considered.
[3] Appendix B shall remain under seal as it contains confidential information that is subject to a protective order entered by the Court.
[4] The plaintiffs have moved the Court to reconsider an evidentiary ruling made during the course of trial and have asked the Court to admit portions of the deposition of Kenneth Sheperd and several related exhibits into evidence. The Court declines to alter its prior ruling that the evidence should be excluded under Rule 408, Federal Rules of Evidence, as part of a proposed compromise to end the present litigation. The plaintiff has tried to show that the defendants failed to object to the discovery of these matters and thus waived their right to object to its admissibility, but questions of admissibility unlike matters of privilege are not so waived. See Wright & Miller, Federal Practice & Procedure § 2156. Accordingly, the motion for reconsideration is hereby denied. Alternatively, the Court finds that if the deposition and exhibits were held admissible to show bias and prejudice as permitted under Rule 408, the additional evidence would not cause the court to alter any of its findings of fact.
[5] In declaratory judgment actions it is often necessary for the court to examine another facet of the case or controversy requirement and to determine whether the dispute is ripe for adjudication. The parties do not question, and the Court finds no reason to doubt the ripeness of the instant dispute. See Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 57 S. Ct. 461, 81 L. Ed. 617 (1937). Cf. Andrus v. Allard, ___ U.S. ___, ___ n.21, 100 S. Ct. 318, 326 n.21, 62 L. Ed. 2d 210 (1979) ("All appellees, however, may face future criminal prosecutions for violations of the statutes, and that, of itself suffices to give them standing to litigate their interest in the construction of the statutes.")
[6] The California Agricultural Prorate Act authorized the establishment of programs for the marketing of agricultural commodities produced in the state, to restrict competition among the growers and maintain prices in the distribution of their commodities to packers. The program was administered by a commission of nine persons, eight members appointed by the governor and confirmed by the senate, and the ninth, an ex officio member, the state's director of agriculture. 317 U.S. at 346, 63 S. Ct. 307.
[7] The OWDA is made up of eight members. Five are appointed by the governor with the advice and consent of the senate; the state's directors of natural resources, environmental protection, and energy are ex officio members. § 6121.02, Ohio Revised Code.
[8] In Bates, the state supreme court had promulgated the regulation in question, and the state supreme court was the state agency responsible for overseeing the activities of the bar. This situation can be contrasted with Goldfarb v. Virginia State Bar Association, 421 U.S. 773, 95 S. Ct. 2004, 44 L. Ed. 2d 572 (1975), where the county bar association and the state bar association had adopted minimum fee schedules. Neither of the bar associations was the state agency responsible for regulating the bar and the responsible agency the state supreme court had not adopted or enforced the fee schedules, and was not named as a defendant. The Court therefore found that state action was not involved and the Parker exemption did not apply. In Bates the state was a party through its agent, the state supreme court.
[9] The plaintiffs emphasize the role the underwriters played in establishing the need for the ordinance. The underwriters were hired by the OWDA to market the bonds. The fact that the OWDA and the city relied in part on the underwriters' expertise in making their decision to support and enact the ordinance does not make it any less their decision.
[10] That is, part III of Justice Brennan's opinion. Justices Marshall, Powell and Stevens joined in all three parts of Justice Brennan's opinion; Chief Justice Burger joined in part I of the opinion and in the judgment.
[11] It is also worth noting that in City of Lafayette the anticompetitive activities all took place outside the city limits while the city was engaging in proprietary activity. Here, the plaintiffs challenge an ordinance that is effective only within the city limits and which was adopted to provide the city residents with safe and sanitary waste disposal.
[12] Plaintiffs do not claim any preemption in this case. See Philadelphia v. New Jersey, 437 U.S. 617, 620 21 & n.4, 98 S. Ct. 2531, 57 L. Ed. 2d 475 (1978).
[13] The plaintiffs argue that the ordinance is subject to two possible interpretations. Under the first construction all persons collecting waste that is generated within the city of Akron must obtain a license to collect waste and must take to the RES all waste material generated within the city that is deemed acceptable for disposal there. Under the second construction the collectors must take all waste generated within the city limits to the RES, and any collector transporting non-Akron waste over Akron streets, avenues, and alleys must take that waste to the RES as well. The Court finds that the language of the ordinance is susceptible only of the first construction, and the Court's analysis of the ordinance is based on this understanding.
[14] The legitimate governmental purposes that support the city's determination to construct the RES are more fully described in conjunction with the Court's discussion of the due process claims, infra at 680.
[15] Again the Court notes that the covenants cause the plaintiffs no injury in fact, and they therefore have no standing to challenge their constitutionality.
[16] Mrs. Moore lived with one of her sons, his son, and another grandson; the two grandsons were first cousins. Because her household did not comply with the definition of family in the local zoning ordinance, Mrs. Moore was convicted of a criminal offense.
[17] As discussed infra at 681 684 the Court finds the plaintiffs have not established that the ordinance interferes with any property interest protected by the Constitution. Plaintiffs have not attempted to show that the Akron ordinance interferes with any protected liberty interest.
[18] For the other constitutional claims previously examined the arguments raised by the waste collectors were no different from the arguments of the landfill operators. Thus, it has been unnecessary until this point to examine the standing of the landfill operators.
[19] Having noted that "[t]here is no abstract or fixed point at which judicial intervention under the Takings Clause becomes appropriate" the Supreme Court analyzed the regulation at issue:
The regulations challenged here do not compel the surrender of the artifacts, and there is no physical invasion or restraint upon them. Rather, a significant restriction has been imposed on one means of disposing of the artifacts. But the denial of one traditional property right does not always amount to a taking. At least where an owner possesses a full "bundle" of property rights, the destruction of one "strand" of the bundle is not a taking because the aggregate must be viewed in its entirety. In this case, it is crucial that appellees retain the rights to possess and transport their property, and to donate or devise the protected birds.
Id. (citations omitted). The plaintiff waste collectors may argue that more than one strand has been taken from their bundle: they do not have the right to donate or devise the waste they collect and the Akron ordinance does therefore accomplish a taking for which compensation must be paid. Analogizing to the zoning context, the Court finds that the owners of the eaglefeather artifacts are in the posture of a property owner with a nonconforming use. In contrast, the waste collectors who chose to pay for a waste collection license in Akron when the ordinance is in effect are in a posture comparable to a new owner who has purchased a home subject to the zoning ordinance. The ordinance restricts the waste collectors, but it is not a taking.
[*] The scales at Hardy Road periodically fail to operate. Consequently, actual tonnage delivered exceeds these figures.
[*] The scales at Hardy Road periodically fail to operate. Consequently, actual tonnage delivered exceeds these figures. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1376967/ | 22 S.W.3d 612 (2000)
TEXAS ALCOHOLIC BEVERAGE COMMISSION, Appellant,
v.
Richard and Donna WILSON d/b/a Riley's Tavern, Appellees.
No. 03-99-00428-CV.
Court of Appeals of Texas, Austin.
May 31, 2000.
Rehearing Overruled August 10, 2000.
Dewey E. Helmcamp, III, Asst. Atty. Gen., Administrative Law Division, Austin, for TABC.
Carl J. Kolb, San Antonio, for appellee.
Before Chief Justice MARILYN ABOUSSIE, Justices KIDD and POWERS.[*]
JOHN E. POWERS, Justice (Retired).
The Texas Alcoholic Beverage Commission (the "Commission") appeals from a *613 district-court judgment that reverses a Commission order denying Richard and Donna Wilson's application for an alcoholic-beverage license. We will reverse the district-court judgment and dismiss the appeal.
THE CONTROVERSY
After the Commission denied their application for a beer-and-wine license, the Wilsons filed in district court, on August 12, 1998, their "Original Petition Appealing Refusal of Alcoholic Beverage License." Therein, the Wilsons prayed that the court set the cause for hearing within ten days, that the Commission order denying their application be set aside on legal grounds specified in the petition, and that their application for the license be granted.
Afterward, the Wilsons filed in the district court their "First Amended Original Petition Appealing Refusal of Alcoholic Beverage License." Therein, they alleged additional grounds for the requested relief, which remained the same in the amended petition.
The Commission appeared in the cause by an "Original Answer and Plea to the Jurisdiction" filed September 21, 1998. The Wilsons responded to the Commission's pleading in a "Second Supplemental Petition" filed on October 29, 1998. On the same day, the cause was heard on the merits in district court.
The final order, signed by the trial judge on June 18, 1999, declares that the cause tried October 29, 1998, that the parties appeared through their respective attorneys, and that "judgment is rendered for the [Wilsons] that the ... Commission shall immediately issue the license made the subject of this appeal." The effect of the court's final order is to reverse or set aside the Commission order denying the Wilsons' application and to require the Commission to issue the license.
DISCUSSION AND HOLDINGS
The suit in district court was authorized and governed by section 11.67 of the Texas Alcoholic Beverage Code, which provides as follows:
Sec. 11.67. Appeal from Cancellation, Suspension, or Refusal of License or Permit.
(a) An appeal from an order of the commission... refusing ... a permit or license may be taken to the district court of the county in which the applicant... resides.
(b) The appeal shall be under the substantial evidence rule and against the commission alone as defendant. The rules applicable to ordinary civil suits apply, with the following exceptions, which shall be construed literally:
....
(2) the case shall be tried before a judge within 10 days from the date it is filed.
Tex.Alco.Bev.Code Ann. § 11.67 (West 1995).
The district court's jurisdiction to review and set aside or reverse the Commission's order in cases like the present derives solely from section 11.67. Trials conducted more than ten days after filing of an "appeal" under section 11.67 are void. See Cook v. Spears, 524 S.W.2d 290, 291-92 (Tex.1975); see also Cook v. Walker, 529 S.W.2d 762, 762-63 (Tex.1975).
The filing of the Wilsons' original petition on August 12, 1998, commenced the "case" or cause and vested the district court with subject-matter jurisdiction. See Tex.R.Civ.P. 22; Texas Alco. Bev. Comm'n v. Wilson, 573 S.W.2d 832, 835 (Tex.Civ. App.-Beaumont 1978, writ ref'd n.r.e.). The district court's power to try the case, under the literal language of section 11.76(b)(2), expired ten days afterward.
The final judgment rendered by the district court declares the case was tried on the merits on October 29, 1998, or a date some seventy-four days after the case was filed on August 12, 1998. Not having been set aside within the time required by the *614 only statute giving the court authority to do so, the Commission's order became final and enforceable before the district court rendered judgment.
We therefore reverse the district-court judgment and dismiss the appeal, leaving the Commission order in effect as if no appeal had been taken to the district court.
NOTES
[*] Before John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by assignment. See Tex.Gov't Code Ann. § 74.003(b) (West 1998). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1376961/ | 22 S.W.3d 638 (2000)
Carl Anthony DAVIS, Appellant,
v.
The STATE of Texas, Appellee.
No. 10-99-220-CR.
Court of Appeals of Texas, Waco.
June 21, 2000.
*639 Scott Peterson, Waco, for appellant.
John W. Segrest, Crim. Dist. Atty., James Wiley, Asst. Crim. Dist. Atty., Waco, for appellee.
Before Chief Justice DAVIS Justice VANCE, and Justice GRAY.
OPINION
Bill VANCE, Justice.
A jury convicted Carl Anthony Davis of aggravated assault and assessed punishment, enhanced by two prior felony convictions, of 35 years' imprisonment. Davis appeals on two issues, both focused on the trial court's charge. He contends (1) the court erred by failing to charge the jury on self-defense and (2) the court erred in denying his request for an instruction on the lesser-included offense of assault. We conclude the trial court did not err in refusing to instruct on self-defense, in the absence of evidence to raise the issue. Furthermore, having reviewed the record, we cannot conclude that any evidence was presented at trial to allow a jury to rationally find Davis guilty only of assault. Thus, we will affirm the judgment.
BACKGROUND FACTS
Davis lived with his mother, Onita Washington, and her husband, Lonzell Washington. On September, 11, 1996, after the Washingtons had gone to bed, Davis entered their bedroom and asked Onita for money and a gun. When Onita told Davis that she did not have any money, he told her, "You either get up and get me some money or I'm going to kill you." Davis then left the room and returned with a steak knife and stated, "I want $300 or I'm going to kill your ass." Onita told her son that she would need to go to town to borrow the money.
Davis waited while his mother and stepfather got dressed. The three of them got into a car and drove to the house of Onita's brother, Charles Davis. Onita was the front passenger while Davis sat in the back with the knife still drawn. During this time, Davis again told Onita, "I'm going to kill you." Holding the knife, Davis followed Onita to the front door. When no one answered, Davis went to rear of the house to knock on the back window. While Davis was gone, Charles came to the front door and was informed of the situation. *640 When Davis returned, Charles was able to grab the knife away from Davis without injuring anyone. Davis then walked off saying, "It's not over yet, I'm going to kill you."
SELF-DEFENSE
Davis' first issue asserts that the court erred in failing to give his requested jury instruction on self-defense based on apparent danger. The jury should be instructed on self-defense if the evidence raises the issue. Riddle v. State, 888 S.W.2d 1, 6 (Tex.Crim.App.1994); Withers v. State, 994 S.W.2d 742, 744 (Tex.App.- Corpus Christi 1999, pet. ref'd).
Davis asserts that the issue of self-defense was raised through his testimony on cross-examination:
[STATE]: [O]n September 11th, 1996, you did scare your mother [Onita] with a knife, didn't you?
[DAVIS]: Yeah.
...
[STATE]: You knew you shouldn't do it, right?
[DAVIS]: Oh, no, I didn't scare her with a knife, I just got it in self defense.
[STATE]: You knew
[DAVIS]: I remember he [Lonzell] was going to try to hit me and he hopped up with murder in his eyes, so that's all what you got to look at, is if Iif I wouldn't have got that knife and defended myself, I would have got murdered.
Davis' use of the knife was a threat of force. A threat of force is justified when the use of force is justified. Tex. Pen.Code Ann. § 9.04 (Vernon 1994). Under the theory of self-defense, "a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force." Tex. Pen.Code Ann. § 9.31(a) (Vernon Supp.2000).
Davis' testimony does not establish that he was entitled to a charge on self-defense. The evidence is uncontroverted that Davis entered the Washingtons' bedroom. Upon entry, according to Davis, Lonzell "hopped up" and "tr[ied] to hit" him. At this point, Davis walked away. Then he left the bedroom, got a knife, and returned to where Lonzell was located. These actions could not have been based upon a reasonable belief that force was immediately necessary to protect himself against Lonzell. Id. Consequently, Davis was not entitled to a charge on self-defense. Accordingly, we hold that the trial court did not err in refusing to submit such an instruction. His first issue is overruled.
LESSER-INCLUDED OFFENSE
Davis' second issue asserts that the trial court erred by refusing to instruct the jury on the lesser-included offense of assault. Davis argues that he was entitled to the instruction because he did not use a deadly weapon. The State maintains that the trial court properly denied Davis' request because the evidence did not support it. We agree with the State.
Two-step analysis
Determining the propriety of a lesser-included-offense instruction requires a two-step analysis. Forest v. State, 989 S.W.2d 365, 367 (Tex.Crim.App.1999); Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App.1993). First, the lesser-included offense must be included within the proof necessary to establish the offense charged. Forest, 989 S.W.2d at 367. Second, there must be some evidence in the record that would permit a jury rationally to find that if the defendant is guilty, he is guilty of only the lesser offense. Id. If a defendant presents no evidence and no other evidence raises the issue of a lesser offense, a charge is not required. Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim. App.1985); Garcia v. State, 17 S.W.3d 1, *641 5-6 (Tex.App.-Houston [1st Dist.] 1999, pet. ref'd).
In reviewing a court's decision not to give a charge on a lesser offense, we examine all of the evidence presented at trial, regardless of whether it is credible, controverted, or conflicting. Lugo v. State, 667 S.W.2d 144, 147 (Tex.Crim.App. 1984); Garcia, 17 S.W.3d at 6. However, the evidence may not be "plucked out of the record and examined in a vacuum." Godsey v. State, 719 S.W.2d 578, 584 (Tex. Crim.App.1986); Garcia, 17 S.W.3d at 6.
We focus on only the second element because the State does not contest that assault is within the proof necessary to prove the aggravated assault alleged in Davis' case. See Tex. Pen. Code Ann. § 22.01(a) (Vernon Supp.2000), § 22.02(a) (Vernon 1994). An assault becomes an aggravated assault if the actor "exhibits a deadly weapon." Id. § 22.02(a)(2). Consequently, a lesser-included-offense instruction was required if the record contains some evidence that Davis did not exhibit a deadly weapon. Forest, 989 S.W.2d at 367. Even then, it must be evidence that would permit a jury to rationally find that if Davis is guilty, he is guilty only of the lesser-included offense of assault. Id.
Is there evidence the steak knife was not a deadly weapon?
Davis contends the steak knife used was not a deadly weapon. Under Texas law, a deadly weapon is defined as: (A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury. Tex. Pen. Code Ann. § 1.07(a)(17) (Vernon 1994); McCain v. State, 22 S.W.3d 497, 501 (Tex. Crim.App.2000). Although a knife is not a deadly weapon per se, a knife can be found to be a deadly weapon based on the nature of its use or intended use. Thomas v. State, 821 S.W.2d 616, 619-20 (Tex.Crim. App.1991); Garcia, 17 S.W.3d at 4. Factors which are important in determining whether a knife is a deadly weapon in its use or intended use are:
1. Size, shape, and sharpness of the knife;
2. Manner of its use or intended use;
3. The nature or existence of inflicted wounds;
4. Testimony of the knife's life-threatening capabilities.
Garcia, 17 S.W.3d at 4.
Davis contends that witnesses' descriptions of the knife as a "little old bitty knife" and "little old steak looking knife" provides evidence that the knife was not a deadly weapon. However, size alone is not determinative of whether a steak knife is capable of causing death or serious bodily injury. See McCain, 22 S.W.3d at 502; Fortenberry v. State, 889 S.W.2d 634, 637 (Tex.App.-Houston [14th Dist.] 1994, pet. ref'd); see also Tisdale v. State, 686 S.W.2d 110, 113 (Tex.Crim.App.1984); Kent v. State, 879 S.W.2d 80, 83 (Tex. App.-Houston [14th Dist.] 1994, no pet.); Ford v. State, 828 S.W.2d 525, 528 (Tex. App.-Houston [14th Dist.] 1992, pet. ref'd); Wilson v. State, 823 S.W.2d 777, 779-80 (Tex.App.-Waco 1992), vacated on other grounds, 845 S.W.2d 908 (Tex.Crim. App.1993).
In addition, although the knife was not used to inflict wounds, Onita testified that Davis used the steak knife in a manner which would cause death or serious bodily injury. Furthermore, Officer John Roziski, Waco Special Investigations Unit, testified that the steak knife had life threatening capabilities. Davis can cite evidence only that the knife was a small steak knife. Consequently, although Davis produced evidence as to size of the knife, such evidence would show only that the knife was a small deadly weapon.
As a result, we find that the record does not contain evidence which would permit a *642 jury to rationally find that Davis did not use a deadly weapon. Thus, the evidence does not satisfy the second element of the Rousseau test, and Davis was not entitled to an instruction on the lesser-included offense of assault. Rousseau, 855 S.W.2d at 672-73. Issue two is overruled.
We affirm the judgment. | 01-03-2023 | 10-30-2013 |
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