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https://www.courtlistener.com/api/rest/v3/opinions/1376973/ | 167 Cal. App. 2d 251 (1959)
K. KROUZIAN, Appellant,
v.
ARAM L. HAGOPIAN, as Administrator, etc., Respondent.
Civ. No. 17870.
California Court of Appeals. First Dist., Div. One.
Jan. 21, 1959.
Claude D. Perasso for Appellant.
Gately & Gately, Nubar Tashjian and Ralph Bancroft for Respondent.
BRAY, J.
Plaintiff appeals from an order denying his motion to vacate a previous judgment and to enter a different judgment. *252
Question Presented
Were the previous findings of fact, conclusions of law and judgment signed and entered through the trial court's inadvertence and mistake?
Record
After a trial on April 26, 1957, the trial judge on May 8 signed findings of fact and conclusions of law, and on May 9 signed and had entered a judgment in favor of plaintiff for $200 (based on plaintiff's second cause of action), in favor of defendant on plaintiff's first cause of action, and granting defendant a nonsuit on plaintiff's third cause of action. Thereafter plaintiff moved to set aside said judgment and to substitute a different judgment therefor on the ground that the findings do not support the judgment, as the findings find in effect that all of the allegations of plaintiff's first and second causes of action are true, yet the conclusions of law and judgment state that defendant is entitled to judgment against plaintiff on the first cause of action. [fn. 1] On June 5 [fn. 2] a minute order signed by the trial judge was entered which stated: "Order of the Court in the above-entitled matter. It appearing to the Court that the Findings of Fact and Conclusions of Law heretofore signed on May 8, 1957, and the Judgment herein signed May 9, 1957, were signed and entered herein by said Court through the said Court's own inadvertence, improvidence and mistake and that the said Findings of Fact and Conclusions of Law and said Judgment do not conform to or represent the views of the Court heretofore expressed and the intention of the said Court, now on said Court's own motion the signing and entry of said Findings of Fact and Conclusions of Law and said Judgment are ordered vacated and set aside and counsel for the defendant is ordered and directed to prepare and submit Findings of Fact and Conclusions of Law and a form of Judgment consistent with the Court's views heretofore expressed. It is further ordered that the motion to vacate judgment and enter a different judgment filed by plaintiff herein be and the same is hereby denied." *253
Inadvertence and Mistake
It is obvious by comparing the findings relating to the first cause of action with the conclusions of law and judgment that a mistake was made in either the findings or the conclusions of law and judgment as to that cause of action. The findings found the facts to be practically as alleged in that cause of action. [fn. 3] Thus either the findings on that first cause of action were correct and the conclusions and judgment were wrong, or vice versa. The trial judge said in the minute order that the findings of fact and conclusions of law and judgment were not those expressed by her. It clearly appears that they could not have been as no judge would intentionally sign such contradictory documents. [1] It is well settled that a court has the power, regardless of the lapse of time, to correct judgments and orders on its own motion so as to make them conform to the judicial decision actually made. This power exists independently of statute. (Meyer v. Porath (1952), 113 Cal. App. 2d 808, 811 [248 P.2d 984]; Culligan v. Leider, 65 Cal. App. 2d 51 [149 P.2d 894]; Smith v. Smith, 157 Cal. App. 2d 658, 661 [321 P.2d 886].) [2] Or as stated in Minardi v. Collopy (1957), 49 Cal. 2d 348, 352 [316 P.2d 952]: "It is primarily for the trial judge to determine whether a decision misstated his real intention and whether the judgment as signed was an inadvertence. The trial court, independently of statute, has the power to correct its mistakes and amend its orders which are not the result of an exercise of judicial decision." See Bastajian v. Brown (1941), 19 Cal. 2d 209 [120 P.2d 9], holding that a court can vacate and correct its judgment both under section 473, Code of Civil Procedure, and its inherent power, whenever the judgment has been made inadvertently or by mistake. See Morgan v. State Board of Equalization (1949), 89 Cal. App. 2d 674, 677 [201 P.2d 859], holding that the trial court may correct a clerical error without notice and on ex parte application. [3] The court, of course, has no power to correct a judicial mistake. (McKannay v. McKannay, 68 Cal. App. 709 [230 P. 218]; Stevens v. Superior Court, 160 Cal. App. 2d 264, 270 [325 P.2d 204].) But such is not the case here. As stated before, a mere comparison of the findings with the conclusions and judgment show the inadvertence and mistake. It well corroborates the *254 judge's statement in the minute order. There is nothing in the record to the contrary. For that reason we deem it unnecessary to determine whether a trial court's statement of inadvertence and mistake, unsupported by anything else in the record, is sufficient to prove that a judgment as signed was not the intended judgment. [fn. 4]
[4] As the findings, conclusions of law and judgment as to the first cause of action were inadvertently signed and when corrected as originally intended will be consistent rather than contradictory, as now, the court properly denied plaintiff's motion to enter a judgment which would be inconsistent with the findings as intended.
The order is affirmed.
Peters, P. J., and Wood (Fred B.), J., concurred.
NOTES
[fn. 1] 1. The motion as made was limited to correcting the findings and judgment as to the first cause of action only for the reason that the findings found that all of the allegations of the first and second causes of action in plaintiff's complaint were true and yet the judgment was that defendant have judgment on the first cause of action.
[fn. 2] 2. The motion was noticed for May 28. The record fails to show what, if anything, happened that day. Plaintiff contends that the motion was granted. There is no evidence or record to that effect.
[fn. 3] 3. The difference between the two causes of action is that the first one sought rent for the period when plaintiff alleged that his property was occupied by the decedent, and the second sought rent for the period of alleged occupancy by the defendant administrator.
[fn. 4] 4. In another case this day decided, Nacht v. Nacht, post, p. 254 [334 P.2d 275] that very question was in issue and decided. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1376964/ | 22 S.W.3d 63 (2000)
TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,
v.
Ronald Wayne PUCEK, Appellee.
No. 13-99-683-CV.
Court of Appeals of Texas, Corpus Christi.
June 1, 2000.
*64 Stacey S. Zipp Billedo, Houston, Carla Elaina Eldred, Kevin Michael Givens, Supervising Atty., Alr Appeals, Austin, for Appellant.
Lloyd D. Stansberry, Alvin, for Appellee.
Before Chief Justice SEERDEN and Justices DORSEY and YAÑEZ
OPINION
Opinion by Justice DORSEY.
This is an appeal of a county court at law's reversal of an administrative decision suspending Ronald Wayne Pucek's driver's license. We hold that this court has jurisdiction to hear such an appeal and that the county court at law erred in reversing the findings of the agency.
Jurisdiction
Pucek contends that this court does not have jurisdiction to hear this appeal because the amount in controversy is not over $100.00, as required by Tex. Govt. Code Ann. § 22.220(a) (Vernon 1988). That section provides that the courts of appeal have appellate jurisdiction over all civil cases (1) over which the district courts or county courts have jurisdiction, and (2) where the amount in controversy exceeds $100, exclusive of interest and costs. We hold that this court has jurisdiction to hear appeals of decisions made pursuant to Tex. Transp. Code Ann. § 524.041 (Vernon 1999).
Chapter 724 of the transportation code concerns suspension of drivers' license for refusal to take an intoxication test when *65 suspected of driving while intoxicated. If a person refuses a peace officer's request to take a specimen of the person's breath or blood to determine intoxication, the officer shall serve notice of license suspension on the person and make a written report of the refusal to the director of the department. See Tex. Trans. Code Ann. § 724.032 (Vernon 1999). A person may challenge such a suspension by requesting a hearing before an administrative law judge. See id. at § 724.041. The issues at the hearing are whether (1) reasonable suspicion or probable cause existed to stop or arrest the person; (2) probable cause existed to believe that the person was operating a motor vehicle in a public place while intoxicated; (3) the person was placed under arrest by the officer and was requested to submit to the taking of a specimen; and, (4) the person refused to submit to the taking of a specimen on request of the officer. See id. at § 724.042. If the administrative law judge finds in the affirmative on each issue, the suspension order is sustained. Id. at § 724.043. If not, the department must reinstate the person's license or rescind an order denying the issuance of a license because of the person's refusal to submit to the taking of a specimen under section 724.032(a). Id. at § 724.043.
Appeal of the administrative law judge's decision is governed by chapter 524 of the transportation code. Id. at § 724.047. Chapter 524 of the transportation code provides for the administrative suspension of a person's driver's license for failure to pass a test for intoxication.
A suspension that is affirmed by the administrative law judge may be appealed to a county court at law. Id. at § 524.041(b). If there is no county court at law in the county in which the person was arrested, the appeal must be filed in county court. Id. However, if the county court judge in such an instance is not a licensed attorney, the appeal must be transferred to a district court upon motion of either party. Id.
The department may only appeal issues of law. Id. at § 524.041(d). The appeal is limited to the record of the administrative hearing with no additional evidence, except that the statute provides for a procedure whereby the appellant can apply to present additional evidence and if granted, the case will be remanded to the administrative law judge with instructions regarding the additional evidence. Id. at § 524.043. This appeal is not a jury trial, and there is no right to a jury trial. Id. at § 524.043(c). Because the transportation code provides no more details regarding judicial review of license suspensions under chapter 524, we look to the Administrative Procedures Act (APA). See Tex. Govt.Code Ann. § 2001 et seq. (Vernon's Pamph.2000).
Chapter 524 of the transportation code states that the APA applies to proceedings under that chapter "to the extent consistent with" chapter 524. See Tex. Transp. Code Ann. § 524.002(b). The APA outlines the general principles of administrative law in the State of Texas. See Tex. Govt.Code Ann. § 2001.001 (purpose of APA), §§ 2001.051-2001.176 (outlining the procedures for contesting an agency action, the evidentiary standards, and the methods of judicial review). One of its express purposes is to "restate the law of judicial review of state agency action." Id. at § 2001.001.
Under the APA, a person aggrieved by a final decision in a "contested case" is entitled to judicial review. Id. at § 2001.171. A "contested case" is "a proceeding, including a ratemaking or licensing proceeding, in which the legal rights, duties, or privileges of a party are to be determined by a state agency after an opportunity for adjudicative hearing." Id. at § 2001.003(1). The scope of review "is as provided by the law under which review is sought." Id. at § 2001.172. However, if the statute does not define the scope of judicial review, the APA supplies a standard. Under the APA, a court should *66 conduct its review under the "substantial evidence rule." Id. at § 2001.174. Because chapter 524 does not provide the scope of a county court at law's review of the administrative law judge's decision, courts have applied the "substantial evidence rule." See, e.g., Mireles v. Texas Dep't of Public Safety, 9 S.W.3d 128, 131 (Tex.1999); Texas Dep't. of Pub. Safety v. Jennings, 1 S.W.3d 348, 350 (Tex.App.-Corpus Christi 1999, no pet. h.); Texas Dep't of Pub. Safety v. Thompson, 2000 WL 377517 (Tex.App.-Beaumont April 13, 2000, no pet. h.) at *2.
A troublesome issue has arisen regarding appellate review of the county court at law decision, which is, in essence, an appeal of the administrative law judge's decision. Some courts have found that courts of appeal do not have jurisdiction to hear an appeal of the county court at law decision because the statute does not expressly provide for it, and because the APA says only that "a party may appeal a final district court judgment under this chapter in the manner provided for civil actions generally." Tex. Govt.Code Ann. § 2001.901 (emphasis added). Thus, the reasoning goes, the courts of appeal do not have jurisdiction to hear an appeal from a county court or county court at law, but may hear an appeal from a district court. See Texas Dep't of Public Safety v. Barlow, 992 S.W.2d 732, 740 (Tex.App.-Waco 1999, pet. filed).
However, the San Antonio court of appeals has expressly rejected that argument See Shirley v. Texas Dep't of Public Safety, 974 S.W.2d 321, 323 (Tex.App.-San Antonio 1998, no pet.). The San Antonio court held that the APA authorizes appeals from county courts as well as district courts even though it does not expressly say so. Id. The Court reasoned that if the statute were read literally, license suspensions heard in the district court would be appealable, but those heard in a county court or a county court at law would not be appealable. Id. Because the APA does not require suits to be filed in district courts, the San Antonio court reasoned, the statute allowing appeals from district courts should include appeals from county courts, including county courts at law. Id. While there is a definite split in the districts on this issue, most courts of appeal still exercise jurisdiction over these matters. In fact, as recently as December of 1999, the Texas Supreme Court exercised jurisdiction over such an appeal where the San Antonio court had exercised appellate jurisdiction. See Mireles v. Texas Dep't of Pub. Safety, 993 S.W.2d 426 (Tex.App.-San Antonio 1999), aff'd, 9 S.W.3d 128 (Tex.1999). While petition for discretionary review has been filed in at least one case addressing the issue of the court of appeals' jurisdiction over these matters, no action has been taken on that petition and the supreme court has made no ruling on this matter. See Texas Dep't of Pub. Safety v. Thompson, 14 S.W.3d 853 (Tex. App.Beaumont 2000).
The other jurisdictional issue that has arisen is whether courts of appeal do not have jurisdiction over these cases because there is no "amount in controversy." Section 22.220(a) states that each court of appeals has appellate jurisdiction over all civil cases within its district of which the district courts or county courts have jurisdiction when the amount in controversy or the judgment rendered exceeds $100, exclusive of interest and costs. Tex. Govt. Code Ann. § 22.220(a) (Vernon 1988). However, the suspension of a driver's license does not literally involve an "amount in controversy." Thus, some courts have reasoned, appeals of driver's licenses do not fall under the general jurisdiction of the appellate courts.
Interestingly, though, the courts appear to agree that they had jurisdiction over these appeals prior to the recodification of the jurisdictional statute. See Texas Dep't of Public Safety v. Callender, 14 S.W.3d 319 (Tex.App.-Houston [14th Dist.] 1999); Barlow, 992 S.W.2d at 738-39. We hold that if jurisdiction existed before the codification, which was intended *67 to be a nonsubstantive codification of the prior law, jurisdiction survived the codification. Compare Act approved Feb. 21, 1927, 40th Leg., R.S., ch. 52, § 1, 1927 Tex. Gen. Laws 75, 75 (amended 1981) (the former "general jurisdiction" statute) (stating that courts of appeal have general jurisdiction over every final judgment in a county court in civil cases where the county court has original jurisdiction) with Tex. Civ. Prac. & Rem. Code Ann. § 51.012 (Vernon 1997) (making no distinction between categories of cases and imposing the $100.00 amount in controversy requirement to original proceedings in the county court). Accordingly, we will continue our regular practice of exercising jurisdiction over these cases along with the majority of courts of appeal until this approach is rejected by the supreme court. See Texas Dep't of Pub. Safety v. Norrell, 968 S.W.2d 16 (Tex.App.-Corpus Christi 1998, no pet); accord Thompson, 14 S.W.3d 853 (Beaumont); Texas Dep't of Pub. Safety v. O'Donnell, 998 S.W.2d 650, 654 (Tex. App.Fort Worth 1999, no pet.); Texas Dep't of Pub. Safety v. Salas, 977 S.W.2d 845 (Tex.App.-Austin 1998, no pet.); Shirley, 974 S.W.2d at 323 (San Antonio); Texas Dep't of Public Safety v. Watson, 945 S.W.2d 262, 265 n. 4 (Tex.App.-Houston [1st Dist.] 1996, no writ).
We hold that the court of appeals has general jurisdiction over appeals from a license suspension appeal heard in a county court, county court at law or district court. If all courts agree that jurisdiction existed prior to the recodification, and if the recodification is intended to be nonsubstantive, the only reasonable construction is that the statute continues to mean what it meant prior to the recodification. We now turn to the substantive points in appellant's case.
Substantial Evidence Review
This court conducts its review of these appeals under the substantial evidence standard. See Mireles, 9 S.W.3d at 130; Tex. Transp. Code Ann. § 524.041; Tex. Gov't Code Ann. § 2001.174. The burden for overturning an agency ruling is quite formidable.
A court applying the substantial evidence standard of review may not substitute its judgment for that of the agency.... The issue for the reviewing court is not whether the agency's decision was correct, but only whether the record demonstrates some reasonable basis for the agency's action. Courts must affirm administrative findings in contested cases if there is more than a scintilla of evidence to support them. In fact, an administrative decision may be sustained even if the evidence preponderates against it.
Mireles, 9 S.W.3d at 130.
The county court at law reversed the decision of the administrative judge and rendered judgment denying the Department's petition to suspend Pucek's license. In reviewing a ("ALJ") decision by administrative law judge under the substantial evidence rule, a court may not substitute its judgment for that of the ALJ on the weight of the evidence. Tex. Gov't Code Ann. § 2001.174 (Vernon Pamph. 1999). The court may reverse or remand the case if the substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are (1) in violation of a constitutional or statutory provision; (2) in excess of the agency's statutory authority; (3) made through unlawful procedure; (4) affected by other error or law; (5) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or (6) arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion. Id.
The administrative law judge heard testimony from Officer McReynolds, who was on the scene of the accident involving Pucek. Officer McReynolds testified that Pucek admitted to him he had been driving when the accident occurred. He stated *68 that the accident occurred at an intersection in the City of Alvin. He stated that Mr. Pucek struck a barbed wire fence, a barn, a flatbed trailer, and a tractor.
The administrative law judge admitted three exhibits, which contained Officer McReynolds' report. His report stated that Pucek was given an opportunity to take a breath test to determine if he was intoxicated and Pucek declined the test. His report stated that when he arrived upon the scene of the accident, Pucek told the officer that he was the driver of the truck and that he had lost control of his vehicle. The officer noted that Pucek had a very strong odor of alcohol, slurred speech and appeared to be unsteady on his feet. Officer McReynolds administered a field sobriety test to Pucek, which Pucek did not perform well and ultimately gave up trying to pass. The officer's report also stated that when he took Pucek into custody, Pucek urinated in the backseat of the officer's patrol vehicle.
Pucek argued that the administrative law judge never formally admitted McReynolds' report into evidence. However, the record reveals that when the police officer's sworn report was offered into evidence, Puck made two objections. First, he objected that the report should only be admitted subject to the appearance of the officer. Next, he objected that the officer's statement contained "conclusory statements made by the officer which should not be allowed in under the theory of probable cause." The administrative law judge responded:
[A]s to your request to verify the presence of the witnesssubpoenaed witness, Officer McReynolds, which I also believe is the affiant on the [report] ... I will comply with that request and verify and make sure that he is present and here to testify. As to the second objection, it goes to the weight and not the admissibility of the documents.
Over objection, if that is the only objection still standing after the officer's attendance has been verified, the documents will be admitted into evidence, and the DIC, in particular, over objection.
However, I will reserve admittance of the DIC-23 until I verify the appearance of Officer McReynolds.
Officer McReynolds was then contacted and testified at the hearing via telephone.[1] He was called to testify not by the Department, but by Pucek. Pucek asked him several questions regarding his report in particular. Officer McReynolds' was the only testimony taken, and both sides were given an opportunity to make a closing statement. Pucek never argued that McReynolds' report should not be admitted into evidence, and in fact, he acted as if it had been admitted into evidence.
The record of the administrative hearing demonstrated a reasonable basis for the agency's action and thus, the administrative decision should have been affirmed. There was evidence that (1) reasonable suspicion or probable cause existed to stop or arrest Pucek; (2) probable cause existed to believe that Pucek was operating a motor vehicle in a public place while intoxicated; (3) Pucek was placed under arrest by the officer and was requested to submit to the taking of a specimen; and (4) he refused to submit to the taking of a specimen on request of the officer. See Tex. Transp. Code Ann. 724.042. We hold the county court at law erred in reversing the findings of the administrative law judge. The judgment of the county court at law is reversed, and we affirm the administrative decision.
NOTES
[1] Section 724.041(e)(2) allows the hearing to be held by telephone conference call with the consent of the person requesting the hearing and the Department. Tex. Transp. Code Ann. § 724.041(e) (Vernon 1999). Pucek did not object to the taking of the police officer's testimony via telephone. Thus, the officer's telephone testimony had the status of evidence at the hearing before the administrative law judge. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1377986/ | 594 F.3d 896 (2010)
Ricky H. KRANTZ, Petitioner-Appellant,
v.
Cherry LINDAMOOD, Warden, Respondent-Appellee.
No. 08-6489.
United States Court of Appeals, Sixth Circuit.
Argued: January 21, 2010.
Decided and Filed: February 17, 2010.
ARGUED: Caryll S. Alpert, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Brent C. Cherry, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellee. ON BRIEF: Caryll S. Alpert, Michael C. Holley, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Brent C. Cherry, Office of the Tennessee *897 Attorney General, Nashville, Tennessee, for Appellee.
Before SILER, ROGERS, and McKEAGUE, Circuit Judges.
OPINION
ROGERS, Circuit Judge.
Petitioner Ricky Krantz was involved in a dispute about an arm-wrestling match late on Super Bowl Sunday, 1993, at the Next Door Tavern in Nashville, Tennessee. Angered, he threatened that he would return to the bar with a gun and kill either the others involved in the dispute or everyone. Despite being involved in a subsequent violent car crash, Krantz returned less than forty-five minutes later and fired a shotgun into the tavern twice, killing Dan Newland and injuring Dean Harris. Krantz was convicted by a Tennessee jury of felony murder, where the underlying felony was attempted first degree murder. In a petition for a writ of habeas corpus, Krantz contends that the evidence was insufficient to support this conviction because he claims the state did not prove that he had the intent to kill any specific person. Because the intent to kill a specific victim is not a required element of attempted first degree murder under Tennessee law, Krantz is not entitled to habeas relief.
In the evening of Super Bowl Sunday, January 31, 1993, petitioner Ricky Krantz was shooting pool with Jack Speakman at the Next Door Tavern in Nashville, Tennessee.[1] Krantz and Speakman had known each other for several years. At around 10:30 p.m., Krantz stated that he wanted to arm wrestle. Speakman indicated that he was not interested, but he introduced his friend Kevin Williams to Krantz as an opponent. Krantz and Williams were also acquainted, and they had arm wrestled each other on previous occasions. The two men agreed to arm wrestle, and Speakman and at least one other person bet money on the first match. Williams prevailed, but after Krantz protested that there had been cheating, the two men agreed to a rematch. As they were preparing for the rematch, Krantz grabbed Williams's hand and slammed it to the table, took the money that had been bet on the match, and attempted to leave. Speakman then grabbed Krantz, threw him to the floor, and retrieved the money.
Krantz then exited the tavern and climbed into his truck. At Krantz's trial, tavern employee Martha Bryant testified that, as he exited the tavern, Krantz stated that he was going to get a gun and return to kill everyone. Keith Walker testified that he spoke with Krantz after Krantz had exited the tavern, and that Krantz had repeatedly stated his intention to retrieve a gun and return to kill Speakman and Williams. Speakman testified that once Krantz had climbed into his truck, Krantz had yelled to Speakman, "I'll be back to kill you, you S.O.B."
Krantz then left the tavern in his truck in the direction of his home. At some point after this, Krantz's truck ran off the road, collided with a barn, and then turned end-over-end before settling in the yard of a residence. The crash occurred approximately seven-tenths of a mile away from the tavern. At approximately 11:15 p.m. less than 45 minutes after he had left the tavernKrantz somehow returned to the tavern, having retrieved his shotgun. Krantz either fired a shot through the front door of the tavern or opened the *898 door and then fired. This first shot struck and killed Dan Newland. Either because Krantz opened the door or because the shot forced the front door open, witnesses saw Krantz standing in the doorway with a shotgun. Williams then forced the door closed. Krantz reloaded his single-shot shotgun and then either fired it through the door or fired the gun while the barrel was protruding into the tavern. This second shot injured, but did not kill, Dean Harris. Keith Walker exited the tavern and confronted Krantz near an outside corner of the tavern. Krantz pointed the shotgun at Walker, but when Krantz was briefly distracted by someone else, Walker was able to disarm Krantz. By this time, Krantz had loaded the shotgun a third time. Paramedics responding to a report of injuries at the tavern found Krantz staggering down the highway a short time later, with cuts and blood on his face.
Krantz was first indicted on April 27, 1993, for the first degree murder of Newland and for the attempted first degree murder and aggravated assault of Harris. A hung jury led to a mistrial in Krantz's first trial. Krantz was then reindicted on December 7, 1993, for the first degree murder of Newland, the felony murder of Newland with an underlying felony of assault or attempted assault with intent to commit murder, and the attempted first degree murder of Harris. Krantz filed a motion to dismiss, and after a hearing, the trial court held that assault with intent to commit murder is not a proper underlying felony for felony murder, and dismissed the felony murder count. See Tenn.Code Ann. § 39-13-202(a)(2). Krantz was finally reindicted on January 14, 1994, for first degree premeditated and deliberate murder, felony murder with an underlying felony of attempted first degree murder, attempted first degree premeditated and deliberate murder, and aggravated assault. At trial, the jury found Krantz guilty of felony murder and aggravated assault.
On direct appeal, Krantz argued unsuccessfully that the evidence was insufficient to support the conviction for felony murder. See Krantz, 1998 WL 3621, at *1, 9. The state appellate court concluded that the evidence presented at trial established "beyond a reasonable doubt that [Krantz] recklessly killed Dan Newland during the attempted murder of Williams." Id. at *9. After Krantz appealed, the Supreme Court of Tennessee remanded the case on an unrelated issue and the Court of Criminal Appeals again upheld the conviction. See State v. Krantz, No. M19999-02437-CCA-RMC, 2000 WL 59915 (Tenn.Crim.App. Jan. 25, 2000). The Supreme Court of Tennessee then denied review. See id. On state collateral review, Krantz argued unsuccessfully that he was denied effective assistance of counsel. See Krantz v. State, No. M200202978-CCAR3PC, 2004 WL 367723 (Tenn.Crim.App. Feb. 27, 2004). Krantz then filed an unsuccessful pro se petition for state habeas corpus, arguing that his felony murder conviction was void because he was acquitted of the underlying felony and because the trial judge failed to sign the court minutes. See Krantz v. State, No. M2003-02819-CCA-R3HC, 2004 WL 2599453 (Tenn.Crim.App. Nov. 12, 2004).
Krantz filed the instant petition for habeas corpus pro se on June 13, 2005. The district court granted the petition in part (i.e., invalidating the aggravated assault conviction with respect to Harris), but denied Krantz's claim that the evidence was insufficient to support his felony murder conviction. The warden does not appeal the partial grant of Krantz's petition, and the district court granted a certificate of appealability only as to Krantz's sufficiency-of-the-evidence claim. Now represented by counsel, Krantz appeals, arguing *899 that the evidence regarding felony murder was insufficient because the state failed to prove that he intended to kill a specific victim. The sole legal support relied upon by Krantz for a specific-victim-intent requirement is Millen v. State, 988 S.W.2d 164 (Tenn.1999).
The evidence in this case was sufficient because, to support a conviction of attempted murder, Tennessee courts have held that "the relevant statutes defining first degree murder and the `intentional' element of that crime do not require that a defendant's conscious objective be to kill a specific victim;" instead, "what is required is that the defendant have the conscious objective to kill `a person.'" State v. Faulkner, No. E2000-00309-CCA-R3CD, 2001 WL 378540, at *8 (Tenn.Crim.App. April 17, 2001) (quoting Millen, 988 S.W.2d at 168). In Faulkner, a woman convinced three men to kill her husband's ex-wife, promising that they could afterwards steal the ex-wife's personal property. Id. at *1. One night, the three men fired numerous bullets into the ex-wife's house; the defendant Faulkner, one of the three men, admitted in a pretrial statement that their plan "was to kill everyone in the house and steal the stuff in it." Id. at *2, 9. Four people were in the home that night, and two were injured by the gunfire. Id. at *2. Faulkner was convicted of four counts of attempted first degree murder. Id. On appeal, Faulkner argued that there was insufficient evidence that he attempted to kill anyone other than the ex-wife because he did not know anyone else was inside the house that evening. Id. at *8. The court held that, because the evidence demonstrated "that the defendant had the premeditated intent to kill everyone in the [house]," it did not matter "that he was unaware of the identity of each individual or even the exact number of individuals present." Id. at *9. For this holding, the court relied on the conclusion from Millen that the state need only prove that a defendant had the conscious objective to kill "a person," and the Faulkner court extended this holding to apply also where the charge is attempted first degree murder rather than completed first degree murder. See id. at * 8 (quoting Millen, 988 S.W.2d at 168). The court reached a similar conclusion in at least two other cases. Jackson v. State, No. W2006-00606-CCA-R3HC, 2007 WL 273649, at *4 (Tenn.Crim.App. Jan. 31, 2007); State v. Pulliam, No. M2001-00417-CCA-R3CD, 2002 WL 122928, at *5 (Tenn.Crim.App. Jan. 23, 2002).
These cases comport with the most natural reading of Millen. In Millen, the defendant "intentionally fired several gunshots at a specific person but inadvertently killed a random victim near the scene" and was thereafter convicted of first degree murder. 988 S.W.2d at 164. The Supreme Court of Tennessee first expressed its "view" that "prosecuting these `unintended victim' cases as felony murder would appear to be the most appropriate application of the statute." Id. at 167. The court then explained that if a case is prosecuted under this theory, and "[i]f the prosecution establishes that a defendant attempts to commit the premeditated and deliberate first degree murder of a specific victim but instead kills an unintended victim, the defendant may be guilty of first degree felony murder." Id. at 167-68. This quote is the sole legal basis for Krantz's argument. The court's statement does not appear to be a definition of the scope of attempted murder as the underlying felony for felony murder, but instead is only an example of how felony murder can be used to prosecute "unintended victim" murder cases without resort to the legal fiction of "transferred intent." See id. This reasoning, however, was an insufficient basis on which to affirm the conviction *900 in Millen because the defendant had been convicted of first degree murder rather than felony murder with an underlying felony of attempted first degree murder. So the court went on to construe Tennessee's first degree murder statute.
The court first noted that, under Tennessee law, "a person . . . acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result." Id. at 168 (quoting Tenn.Code Ann. § 39-11-302(a)). The court concluded that "[a] plain reading of this statute as applied to first degree murder indicates that a defendant's conscious objective need not be to kill a specific victim." Id. There is no reason to infer a "specific victim" requirement for attempted first degree murder when none exists for completed first degree murder. Thus, a natural implication of the holding in Millen is that it is possible to commit attempted murder without a conscious objective to kill a specific victim. For instance, it would be attempted first degree murder for one, with premeditation and deliberation, to fire a gun into a crowd with the conscious objective to kill a person, even if one did not have a specific victim in mind.
Krantz's counsel at oral argument appeared to accept that a conviction for attempted murder does not require that the victim be specifically intended, as in Faulkner, and that a conviction for direct murder does not require that the victim be specifically intended, as in Millen. Nevertheless, Krantz's counsel argued that in the particular situation where attempted murder is the underlying crime in a felony murder case, the victim of the attempt must be specifically intended by the defendant. Such a strange reading of the Tennessee statute is not supported by the single example given by the Millen court for purposes of comparison.
Because the state needed to prove only that Krantz intentionally attempted to kill someoneand not necessarily anyone specificallythe evidence was plainly sufficient. The evidence produced at trial revealed that Krantz, after threatening to get a gun and return to kill either Williams, Speakman, or everyone, went to his house, retrieved his shotgun, and upon returning to the tavern, fired the shotgun into the tavern. Indeed, Krantz conceded in his reply brief that the evidence was sufficient to prove that Krantz intended to kill someone.
We therefore AFFIRM the district court's denial of Krantz's petition for a writ of habeas corpus.
NOTES
[1] We generally rely upon the facts found by the Court of Criminal Appeals of Tennessee on direct appeal. See 28 U.S.C. § 2254(e)(1); State v. Krantz, No. 01C01-9406-CR-00207, 1998 WL 3621, at *1-8 (Tenn.Crim.App. Jan. 7, 1998). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/173167/ | 594 F.3d 732 (2010)
LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 578, Petitioner/Cross-Respondent,
v.
NATIONAL LABOR RELATIONS BOARD, Respondent/Cross-Petitioner.
Nos. 08-9564, 08-9569.
United States Court of Appeals, Tenth Circuit.
February 2, 2010.
*733 Terrence A. Johnson, Colorado Springs, CO, for Petitioner/Cross-Respondent.
Milakshmi V. Rajapakse (Meredith L. Jason, Supervisory Attorney, Ronald Meisburg, General Counsel, John E. Higgins, Jr., Deputy General Counsel, John H. Ferguson, Associate General Counsel, and Linda Dreeben, Deputy Associate General Counsel, with her on the brief), National Labor Relations Board, Washington, D.C., for Respondent/Cross-Petitioner.
*734 Before GORSUCH, McKAY, and HOLMES, Circuit Judges.
GORSUCH, Circuit Judge.
In this case, the National Labor Relations Board (NLRB or Board) held that the Laborers' International Union of North America, Local 578, engaged in unfair labor practices when it persuaded Shaw Stone & Webster Construction, Inc. to fire Sebedeo Lopez for failing to pay his union dues. In support of its holding, the NLRB found that the union failed to provide Mr. Lopez with legally sufficient notice about his delinquent dues or a reasonable opportunity to cure the delinquency before it threatened, and then successfully sought, his dismissal.
Before us, the union challenges the factual findings on which the NLRB pinned its decision, arguing that a better reading of the record suggests it behaved appropriately toward Mr. Lopez. The problem is that we must affirm the NLRB's decision so long as "substantial evidence" exists in the record to support its findings. Our job isn't to make the call ourselves, but only to ask whether a reasonable mind could have made the call the NLRB made. And our review of the record of this case reveals ample, if not incontestable, evidence to support the NLRB's factual findings. So it is that we are obliged to deny the union's petition for review and grant the NLRB's cross-petition seeking enforcement of its order.
I
A
The Laborers' International Union and Shaw Stone & Webster are parties to a collective bargaining agreement. Under the agreement, the union serves as the exclusive collective bargaining agent for all laborers, journeymen laborers, and apprentice-laborers at the company's Pueblo, Colorado work site. Like many collective bargaining agreements, this one contains a "union-security" provision requiring all employees represented by the union to join the union. If an employee fails to join the union, or fails to keep current on his union dues, the union-security provision permits the union to seek and obtain the employee's dismissal from the company.
Mr. Lopez started work at Shaw Stone & Webster on July 17, 2006. No one disputes that he was and is represented by the union in collective bargaining and so bound to join the union. In early October 2006, however, the union noticed that Mr. Lopez had not paid his initiation fee or certain dues. As a result, the union prepared a letter on October 12, 2006 addressed to Shaw Stone & Webster that "request[ed] the dismissal of" Mr. Lopez. The letter represented that Mr. Lopez owed the union $120 in late dues and $25 for reinstatement, but it did not explain how these amounts were calculated or provide Mr. Lopez any grace period in which to make payments. Instead, the letter purported to demand Mr. Lopez's immediate dismissal.
Still, not everything was quite as it appeared. Though the letter was addressed to the company, and though it spoke of Mr. Lopez in the third person, the union never sent the letter to Shaw Stone & Webster and the union did not actually seek Mr. Lopez's dismissal at that time. Instead, the union mailed the letter only to Mr. Lopez in an effort to coax him into paying up quickly.
But even still, not everything was as it appeared. Mr. Lopez insists he never received the letter or otherwise heard from the union about his overdue account. For its part, the union says that Mr. Lopez must have received the letter because it sent the correspondence to the right address, *735 with sufficient postage, and the letter was never returned. The union also insists that it instructed Mr. Lopez's shop steward, Dave Lucero, to discuss the overdue dues problem with Mr. Lopez in person. In any event, the parties agree Mr. Lopez didn't respond with any immediate payment.
When nothing happened, the union prepared another letter, this one dated November 1, 2006. Like the first letter, this one was addressed to Shaw Stone & Webster and sought "the dismissal of" Mr. Lopez. This letter represented that Mr. Lopez's unpaid dues now totaled $415. But again like its predecessor, this letter provided no explanation about how the overdue amount was calculated, let alone why the amount nearly tripled in three weeks, and no deadline for payment. Unlike the first letter, though, the union made sure Mr. Lopez and the company received this one, hand-delivering copies of the document to both on November 1.
The parties disagree about what happened next. Mr. Lopez says he spoke with Mr. Lucero and that Mr. Lucero told him to contact the union's office manager, Patricia Martinez, to make arrangements for payment. Mr. Lopez insists that Mr. Lucero did not explain how the union calculated the amount due or provide a specific deadline for payment. For its part, the union says that Mr. Lopez spoke over the phone to the union's Secretary Treasurer, Rudy Ortiz, who told him he had to pay $150 that week and another $150 the next week, or else he'd be fired.
It is undisputed, however, that Mr. Lopez did contact Ms. Martinez sometime between November 1 and November 5, and told her that he was able to pay $200 toward his past-due account. Ms. Martinez replied that this was "okay," and the following Friday, November 10, Mr. Lopez purchased a money order for $200. On Monday, November 13, Mr. Lopez called Ms. Martinez to tell her that he was planning on bringing the $200 money order to the union's main office in Colorado Springs that day. Ms. Martinez volunteered that Mr. Lopez "didn't have to go all the way to Colorado Springs" because Mr. Ortiz would be at the Pueblo office and Mr. Lopez could simply drop off the payment with him.
According to Mr. Lopez, when he arrived at the Pueblo office later that day it was locked and appeared unstaffed. So Mr. Lopez called Ms. Martinez to ask what he should do. Ms. Martinez told him to "go ahead and fill out the money order and throw it in the slot in the door." Mr. Lopez claims he did just that, though the union insists it never found the money order. Mr. Lopez also claims that he asked Ms. Martinez if he could have until Friday, November 17, to pay the remaining $215 sought by the union in its November 1 letter. According to Mr. Lopez, Ms. Martinez replied that he could have until Thursday, November 16, something Ms. Martinez does not dispute.
But the union didn't wait that long. Instead, on Tuesday, November 14, it contacted the company, and this time it unmistakably demanded Mr. Lopez's immediate discharge. Later the same day, Randy Espinoza, the company's General Foreman, walked Mr. Lopez off the job site. Mr. Espinoza explained to Mr. Lopez that he was acting on "strict orders from Rudy Ortiz to walk [Mr. Lopez] off the job because of [his] union dues." Despite having been fired, Mr. Lopez claims he paid the remaining $215 on Thursday, November 16, just as he and Ms. Martinez had agreed.
B
Upset with his firing and how it unfolded, Mr. Lopez complained to the union, the *736 company, and the NLRB. Eventually, the union and company agreed to reinstate Mr. Lopez and the NLRB decided to press unfair labor practice charges against the union. The case was assigned to an Administrative Law Judge (ALJ), who accepted Mr. Lopez's testimony that he never received the October 12 letter, as well as Mr. Lopez's account of the events following his receipt of the November 1 letter. With those facts in hand, the ALJ proceeded to hold that the union violated the National Labor Relations Act (NLRA) on both November 1 and November 14.
First, the ALJ concluded that the union's November 1 letter violated Section 8(b)(1)(A) of the NLRA. Section 8(b)(1)(A) makes it an unfair labor practice for a union to "restrain, or coerce employees in the exercise of their rights guaranteed in [Section 7 of the Act]," 29 U.S.C. § 158(a)(1); Section 7, in turn, affords employees the right to "refrain from any or all [union] activities," 29 U.S.C. § 157. The ALJ reasoned that the union violated Section 8(b)(1)(A) by threatening Mr. Lopez with immediate discharge without first explaining to him how it calculated his delinquency or offering him a reasonable period of time to cure that delinquency.
Second, the ALJ concluded that the union's actions on November 14, when it secured Mr. Lopez's discharge, likewise violated Section 8(b)(1)(A). The ALJ stressed that, even by this time, the union still had not explained to Mr. Lopez how it calculated the amounts it claimed were overdue. The ALJ also emphasized that, while the union had by then agreed to a payment plan with Mr. Lopez, it denied Mr. Lopez the chance to complete that payment plan, even though he was on track to do so. Separately, but relatedly, the ALJ found that the union's actions on November 14 violated Section 8(b)(2) of the NLRA, which makes it an unfair labor practice for a union "to cause or attempt to cause an employer to discriminate against an employee," 29 U.S.C. § 158(b)(2), in a manner aimed at "encourag[ing] or discourag[ing] membership in any labor organization," 29 U.S.C. § 158(a)(3). The ALJ reasoned that the union violated this provision by asking and persuading the company to fire Mr. Lopez without explaining to him how it calculated the overdue amounts or affording him the chance to complete the agreed payment plan.[1]
The NLRB adopted the ALJ's decision and ordered the union to undertake certain remedial measures. Among other things, the NLRB ordered the union to make Mr. Lopez whole for any loss of pay or benefits, to remove from its files any reference to Mr. Lopez's unlawful discharge, and to take steps to avoid similar problems with other employees in the future. In response, the union filed a timely petition for review with this court, and the NLRB filed a cross-petition for enforcement of its order.[2]
*737 II
The Board has long read the NLRA as imposing certain fiduciary duties on unions that benefit from union-security agreements. The union in this case does not contest the NLRB's interpretation of the NLRA, but instead insists as a factual matter that it discharged all of its statutorily deduced fiduciary obligations. Before turning to assess that factual claim, we first necessarily pause to outline the nature of the fiduciary duties the union admits to owe and claims to have met.
A
The NLRA seeks to secure for employees the liberty to join unions and not to join unions. In seeking to balance these sometimes competing objectives, Congress provided in Section 8(b)(1)(A) that unions may not restrain or coerce employees into engaging in union activities. 29 U.S.C. § 158(b)(1)(A). In Section 8(b)(2), Congress further prohibited unions from, among other things, seeking an employee's dismissal for lack of union membership. 29 U.S.C. § 158(b)(2).
At the same time, Congress provided an "exception" to these rules in Section 8(a)(3). NLRB v. Hotel, Motel & Club Employees' Union, Local 568, 320 F.2d 254, 257-58 (3d Cir.1963). Under that provision, a union representing employees in collective bargaining may negotiate and enter into a union-security agreement with the employer. 29 U.S.C. § 158(a)(3). Union-security agreements require represented employees to join the union and authorize the union to seek an employee's dismissal if he fails to keep current on his dues. Congress's reason for allowing these agreements, the Supreme Court has explained, is "that in the absence of a union-security provision many employees sharing the benefits of what unions are able to accomplish by collective bargaining will refuse to pay their share of the cost," essentially free-riding on the work of, and benefits provided by, the union and its paying members. NLRB v. Gen. Motors Corp., 373 U.S. 734, 740-41, 83 S.Ct. 1453, 10 L.Ed.2d 670 (1963) (internal quotation marks omitted).
Still, because union-security agreements afford the "union the formidable power to compel an employee's discharge," their enforcement is "strictly regulated." Int'l Bhd. of Elec. Workers, AFL-CIO, Local No. 99 v. NLRB, 61 F.3d 41, 43 (D.C.Cir.1995) (quoting Radio-Electronics Officers Union v. NLRB, 16 F.3d 1280, 1286 (D.C.Cir.1994)); see also Gen. Motors Corp., 373 U.S. at 742, 83 S.Ct. 1453. Relevant for our purposes, the Board has long interpreted Section 8(a)(3) to embrace a fiduciary duty on the part of the union, requiring it to "deal[] fairly *738 with the employee" when enforcing its rights under a union-security agreement. Local 545, Int'l Union of Operating Eng'rs, 161 NLRB 1114, 1121 (1966); see also Philadelphia Sheraton Corp., 136 NLRB 888, 896 (1962), enforced 320 F.2d 254 (3d Cir.1963). When a union adheres to this fiduciary duty, it lawfully operates within Section 8(a)(3)'s "carefully circumscribed" exception to Sections 8(b)(1)(A) and (b)(2). Hotel, Motel & Club Employees' Union, 320 F.2d at 258. When it fails to fulfill this obligation, however, it operates outside of the exception, and thus violates Sections 8(b)(1)(A) and (b)(2).
Among other things, before invoking the union-security clause against an employee, the union's obligation to deal fairly with employees requires it to: (1) provide the employee with actual notice of the precise amount due, including the months for which dues are owed; (2) explain how it computed the amount due; (3) give the employee a reasonable deadline for payment; and, (4) explain to the employee that failure to pay will result in discharge. See, e.g., Coopers NIU (Blue Grass), 299 NLRB 720, 723 (1990) (citing Western Publishing Co., 263 NLRB 1110 (1982)); Int'l Bhd. of Elec. Workers, 61 F.3d at 43; NLRB v. Local 1445, United Food & Commercial Workers Int'l Union, 647 F.2d 214, 217 (1st Cir.1981). Seeking an employee's discharge without first providing this sort of notice, the NLRB has held, violates Section 8(b)(1)(A) of the NLRA, because such behavior tends to "restrain or coerce" the employee from exercising his right to refrain from union membership. And it violates Section 8(b)(2) because such a request amounts to an "attempt to cause an employer to discriminate against an employee" in violation of his right to refrain from union membership.
While violations of Sections 8(b)(1)(A) and 8(b)(2) often come in pairs, the NLRB has noted that they can come singly. For example, a union might threaten an employee with immediate discharge without first providing him with adequate notice of his delinquency or a reasonable opportunity to cure it, but then take no action toward carrying out its threat. Even assuming such conduct falls beyond Section 8(b)(2)'s ambit because it doesn't constitute an "attempt to cause an employer to discriminate against an employee," the NLRB has held it still violates Section 8(b)(1)(A) because of its tendency to "restrain or coerce" employees in union activity. See Operating Eng'rs, Local Union No. 3, 313 NLRB 25, 33 (1993).
Put differently, the union cannot threaten to do under Section 8(b)(1)(A) what it cannot actually do under Section 8(b)(2). See Teamsters Local Union No. 122, 203 NLRB 1041, 1041 (1973), enforced, 502 F.2d 1160 (1st Cir.1974) (union's unlawful demand for termination constituted an 8(b)(1)(A) violation, while union's unlawful causing of termination constituted an 8(b)(2) violation). Thus, before it may threaten an employee with an adverse employment action, the union must afford him notice meeting all four requirements identified above. Neither does it make a difference whether the employee subjectively feels restrained or coerced by the union's threatening conduct: a violation occurs whenever the union's conduct "reasonably tends to have a coercive effect." Amalgamated Clothing Workers of America, AFL-CIO, Local 990 (Troy Textiles, Inc.), 174 NLRB 1148, 1151 (1969), enforced, 430 F.2d 966 (5th Cir.1970). The relevant test, then, is an objective, not subjective, one.[3]
*739 B
On appeal to us, the union does not challenge these legal principles, but instead disputes the Board's factual finding that it engaged in conduct contravening them. In assessing such a challenge, we may ask only whether substantial, not uncontested or incontestable, evidence exists in the record to support the result the NLRB reached. Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Under this standard of review, it is not our job to find facts afresh. Instead, we ask only whether the record contains "such relevant evidence as a reasonable mind might accept as adequate to support" the NLRB's decision. Id.; see also Energy West Mining Co. v. Oliver, 555 F.3d 1211, 1217 (10th Cir.2009). In this respect, our job is something like the role of the instant-replay booth in football: the call on the field presumptively stands and we may overturn it only if we can fairly say that no reasonable mind could, looking at the facts again, stand by that call. So it is that we, like the instant-replay official, often affirm decisions that we might not have made ourselves. See NLRB v. Interstate Builders, Inc., 351 F.3d 1020, 1028 (10th Cir.2003).
1
Viewed in this light, we have no difficulty concluding that the NLRB's decision in this case should be sustained. The union's November 1 letter violated Section 8(b)(1)(A), as the NLRB held, because the union claimed the right and intent to seek Mr. Lopez's immediate dismissal without first discharging its fiduciary duties. The record unmistakably reveals that the November 1 letter (1) did not explain how the union calculated the amount owed, (2) did not purport to afford Mr. Lopez any (let alone a reasonable) deadline for payment, (3) yet, threatened Mr. Lopez with immediate discharge. Whether or not the union sent the letter to the company, and whether or not the company understood the letter to be a request to fire Mr. Lopez immediately, see supra note 1, there is no question that the letter had the reasonable tendency to cause an employee to fear that possibility. And a Section 8(b)(1)(A) violation arises whenever a union engages in conduct that would reasonably tend to coerce an employee into complying with its demands, without first discharging its fiduciary obligations toward that employee.
A similar story can be told of the union's conduct on November 14, when it arranged to have Mr. Lopez fired. The record contains ample evidence that, even by this point, the union still had not explained to Mr. Lopez how it calculated his dues, or provided him a reasonable time period in which to make payment. In fact, there is evidence suggesting the union did just the opposite first agreeing to a payment schedule with Mr. Lopez on November 13, and then having him fired the next day, before he could complete the agreed schedule and while he was on track to do so. Though some of this evidence is disputed, we cannot say that a "reasonable mind" had to reject it. And accepting this evidence leads unavoidably to the conclusion that the union violated both Section 8(b)(1)(A)'s prohibition against unduly restraining or coercing employees, as well as Section 8(b)(2)'s prohibition against causing an employer to fire an employee.
*740 2
The union seeks to avoid these conclusions primarily by arguing that it discharged its fiduciary duties in its October 12 letter to Mr. Lopez. At least two problems attend this line of argument, however.
a
First, the ALJ credited Mr. Lopez's testimony that he did not receive the October 12 letter and, the ALJ held, the union could not have discharged its fiduciary duties to him by means of a letter he never received. The union asks us to overturn the ALJ's factual finding, insisting that Mr. Lopez must have received the October 12 letter because it affixed appropriate postage to the letter, properly addressed it to Mr. Lopez, and placed it in the United States mail. These facts, the union urges us, should be enough for us to invoke the "mailbox rule" and presume that Mr. Lopez received the document.
The difficulty is that, even assuming without deciding that the NLRB was obliged to follow the common law "mailbox rule" in the course of its work (an issue the parties haven't explored), that "rule" is not the sort of immutable legal command the union suggests. Rather, it is simply an evidentiary presumption a presumption that items placed in the United States mail normally arrive where they are directed because of the "probability that the officers of the [postal service] will do their duty." Rosenthal v. Walker, 111 U.S. 185, 193, 4 S.Ct. 382, 28 L.Ed. 395 (1884). Even in 1884, when the Supreme Court decided Rosenthal, no one claimed perfection for the post office and the "mailbox rule" was and never has been more than a presumption that may be rebutted by other evidence suggesting that the addressee did not receive the letter. See id. at 193-94, 4 S.Ct. 382.
In fact, we have explained that, after a party makes a presumptive showing of receipt using the "mailbox rule," an opposing party's sworn denial of receipt can "create[] a credibility issue that must be resolved by the trier of fact." Witt v. Roadway Express, 136 F.3d 1424, 1430 (10th Cir.1998); see also S. Frederick Sansone, 127 NLRB 1301, 1302 n. 4 (1960). And that's exactly what occurred here. In this case, the ALJ, as trier of fact, received extensive and conflicting sworn testimony from both sides about the letter's mailing and receipt. Ultimately, he credited Mr. Lopez's testimony that he hadn't received the letter, explained his reasons for doing so, and the Board adopted the ALJ's determination as its own. The record, moreover, contains other evidence supporting Mr. Lopez's sworn testimony that he didn't receive the October 12 letter perhaps most notably that he took no action after the October 12 letter but acted immediately after receiving the substantially similar November 1 letter.
Under the substantial evidence standard governing our review of this case, we can insist on no more. We are required to look only for the existence of some evidence from which a reasonable mind could conclude as the NLRB did, and in doing so we take special care to remember that we "do not weigh the credibility of one witness against another nor do we search for contradictory inferences." Osteopathic Hosp. Founders Ass'n v. NLRB, 618 F.2d 633, 636 (10th Cir.1980) (internal quotation marks omitted). Here, the ALJ heard live testimony from the various competing witnesses, found Mr. Lopez credible, explained his bases for doing so, and other record evidence tends to confirm that finding. Unavoidably, we must conclude substantial evidence exists to support the ALJ's finding as adopted by the Board.
*741 b
Second, even supposing that Mr. Lopez did receive the October 12 letter as the union insists, it would make no difference. The deficiencies of the November 1 letter were equally present in, not cured by, the October 12 correspondence. Take for example the question of how the union calculated the amount Mr. Lopez owed. The October 12 letter claimed that Mr. Lopez owed $145, but offered no explanation of how that amount was calculated, other than to say that $120 of the amount was attributable to "late dues" and $25 was attributable to "reinstatement fees." No explanation how the union calculated these numbers was included, nor any information about which months' dues were past due, as the NLRB requires. Compounding the problem, the October 12 letter claimed Mr. Lopez owed $145, but less than three weeks later the union sent its November 1 letter claiming Mr. Lopez owed $415 dollars. Though the digits in the two letters were the same, they were reshuffled and the amount due nearly tripled with no explanation given to Mr. Lopez for the difference. Equally problematic, the October 12 letter did no better job than the November 1 letter in affording Mr. Lopez a reasonable deadline for payment: to the contrary, just like the November 1 letter, the October 12 letter purported to seek Mr. Lopez's immediate discharge. Far from fulfilling the union's fiduciary obligations, then, the October 12 letter failed those obligations, just as the November 1 letter had.
3
Even if the October 12 letter doesn't help its cause, the union argues that it told Mr. Lopez how his fees, dues, and any penalties would be calculated when he first joined the union in June 2006. From this information, the union submits, Mr. Lopez could have "figured out" how it arrived at the $415 figure mentioned in the November 1 letter. And, the union says, the NLRB has never required more than this for unions to discharge their fiduciary obligations.
The problem is that it has. The NLRB has long held that, in addition to any duties the union owes to employees at the time of hiring, the union owes and must discharge the fiduciary obligations set forth above, see supra Part II.A, when it sets out to threaten, or take any action toward seeking, an employee's discharge under a union-security agreement. Claims that the employee knew or could have gleaned information from other sources or earlier communications will not suffice to discharge these obligations. As our sister circuit has explained, whether an employee already knows the information the union's fiduciary duties obliges it to provide "is irrelevant. The Board has articulated a prophylactic rule that obviates the need to inquire into [the employee's] subjective knowledge" and focuses instead on the "bright-line" question whether the union itself has discharged its fiduciary functions. Int'l Bhd. of Elec. Workers, 61 F.3d at 44. See also Blue Grass, 299 NLRB at 723; NLRB v. Local 1445, United Food & Commercial Workers, 647 F.2d at 217; NLRB v. Constr. & Bldg. Material Teamsters Local No. 291, 633 F.2d 1295, 1298-99 (9th Cir.1980). Neither has the union challenged the Board's substantial body of precedent on this score as an impermissible or unreasonable interpretation of the NLRA. Accordingly, it is our duty to apply those precedents faithfully, and doing so we cannot help but agree with the NLRB that the union failed to abide them in this case.[4]
*742 * * *
The union's petition for review is denied and the NLRB's cross-petition for enforcement is granted.
NOTES
[1] The ALJ declined to find that the union violated Section 8(b)(2) on November 1. Though the union's November 1 letter purported to ask the company to dismiss Mr. Lopez immediately, the union insists that it never sent the letter to the company or took any other steps at that time to secure Mr. Lopez's dismissal. The ALJ also found that the company knew the union had a practice of sending threatening letters to its members in order to coax them into paying, without really intending to seek their discharge. According to the ALJ, the company knew that the union would seek an employee's discharge only at a later time, as in this case, if its threatening letters failed to convince the employee to pay. This aspect of the ALJ's decision was not challenged before the NLRB and is not before us. Accordingly, we have no reason to pass on its propriety.
[2] At the time of its decision in this case, the NLRB enjoyed only two members, though it is statutorily entitled to five. Before us, the union has not questioned the NLRB's authority to issue decisions with only two serving members, though others have raised the question in other cases and obtained competing rulings from our sister circuits. Compare Narricot Indus., L.P. v. NLRB, 587 F.3d 654, 659 (4th Cir.2009) (holding that two-member NLRB can issue decisions), Snell Island SNF LLC v. NLRB, 568 F.3d 410, 423-24 (2d Cir. 2009) (same), New Process Steel, L.P. v. NLRB, 564 F.3d 840, 845-46 (7th Cir.2009) (same), and Ne. Land Servs., Ltd. v. NLRB, 560 F.3d 36, 41 (1st Cir.2009) (same), with Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469, 472-73 (D.C.Cir.2009) (holding that two-member NLRB cannot issue decisions). During the pendency of this appeal, two things have happened on this front: our court has joined those courts holding that two-member decisions are permissible, see Teamsters Local Union No. 523 v. NLRB, 590 F.3d 849 (10th Cir.2009), and the Supreme Court has indicated its intent to address the question, see New Process Steel, L.P., 564 F.3d 840 (7th Cir.2009), cert. granted, ___ U.S. ___, 130 S.Ct. 488, ___ L.Ed.2d ___ (Nov. 2, 2009) (No. 08-1457). At least for now, we are of course bound by our governing circuit precedent approving two-member decisions.
[3] The NLRB has suggested that the duty of fair dealing may be less rigorous when a union is seeking termination of a worker who has "willfully and deliberately sought to evade his union-security obligations." Western Publishing, 263 NLRB at 1113. In the proceedings before the ALJ and NLRB, the Union unsuccessfully argued that Mr. Lopez fit under this exception, but it does not raise the argument in this appeal, so we have no occasion to address the question.
[4] Even if Mr. Lopez's subjective knowledge were somehow relevant, the union claims only that he had knowledge sufficient to allow him to calculate and understand his past due amounts. It does not point to any record evidence that Mr. Lopez was ever told, at the time of hiring or otherwise, that he was entitled to a reasonable period to pay these overdue dues. Meanwhile, on both November 1 and 14, the union purported to claim the authority to seek Mr. Lopez's immediate termination without affording him any reasonable opportunity to pay the overdue amounts. That deficiency alone would suffice to support the NLRB's conclusion that the union violated Section 8(b)(1)(A) on November 1, and Sections 8(b)(1)(A) and (b)(2) on November 14. See Blue Grass, 299 NLRB at 724; Teamsters Local Union No. 122, 203 NLRB at 1042. | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1376953/ | 216 Ga. 553 (1961)
118 S.E.2d 456
ADLER, EXECUTRIX, et al.
v.
ADLER et al.
21067.
Supreme Court of Georgia.
Argued November 14, 1960.
Decided February 9, 1961.
*555 Harry M. Hoffheimer, Robert S. Marx, Frank S. Cheatham, Jr., Griffin B. Bell, Spalding, Sibley, Troutman, Meadow & Smith, for plaintiffs in error.
Connerat, Dunn, Hunter, Cubbedge & Houlihan, Edward T. Brennan, Hitch, Miller & Beckmann, Robert M. Hitch, John E. Simpson, contra.
QUILLIAN, Justice.
1. By the terms of the will, the executor-trustees were empowered and directed to sell or to lease the realty devised to them for the trust estate at either public or private sale and upon such terms as to them seemed best. No reference whatsoever is made in the will as to any power being conferred upon them to grant an option to purchase the property. It has long been the rule, both in America and in England, until changed by statute in England (Law of Property Act, 15 Geo. V, ch. 20, § 28, 1925), that "A trustee who has a power to sell in addition to a power to lease, whether the latter is express or implied, does not ordinarily have the power to give a lessee an option of purchase for a definite sum during the term of the lease. The purpose of this rule is to compel the trustee to exercise his judgment at the time of the sale and not at the time *556 of the making of the lease as to whether the sale is beneficial to the trust estate." 4 Bogert On Trusts and Trustees, § 796: 21 Am. Jur. 722, Executors and Administrators, § 606; 2 Scott On Trusts, 1439, § 190.8; 7 Thompson On Real Property, 348, § 3892; 30 Columbia Law Rev. 870; Clay v. Rufford, 5 De G. & Sm. 768, 780, 64 Engl. Rep. 1337, 1342 (1852); Oceanic Steam Navigation Co. v. Sutherberry, L. R. 16 Ch. Div. 236, 243 (1800); In re Armory Board, 29 Misc. 174 (60 N. Y. Supp. 882); Hickok v. Still, 168 Pa. 155 (31 A. 1100); Moore v. Trainer, 252 Pa. 367 (97 A. 462); Midland County v. Slaughter, 61 Tex. Civ. App. 328 (130 S.W. 612); Cozad v. Johnson, 171 N. C. 637, 643 (89 S.E. 37, 40); Swift v. Erwin, 104 Ark. 459 (148 S.W. 267, 269); Tibbs v. Zirkle, 55 W. Va. 49 (46 S.E. 701, 104 Am. St. Rep. 977); Trogden v. Williams, 144 N. C. 192 (56 S.E. 865); Hedgecock v. Tate, 168 N. C. 660 (85 S.E. 34).
In Campbell Coal Co. v. Baker, 142 Ga. 434 (1) (83 S.E. 105), with all the Justices concurring, it was held: "In the absence of any authority for that purpose conferred by a will, the executor nominated therein and subsequently qualified has no authority to enter into a contract granting an option to a certain person to purchase at private sale land belonging to the estate for a specified price." This case has been cited as authority in Walker v. General Insurance Co., 214 Ga. 758, 762 (107 S.E.2d 836); and in Fisher v. Pair, 69 Ga. App. 492, 497 (26 S.E.2d 187), in which latter case the following cases were also relied on: Neal v. Patten, 40 Ga. 363; Miller v. Hines, 145 Ga. 616 (3) (89 S.E. 689); Turner v. Peacock, 153 Ga. 870 (3) (113 S.E. 585); and Blumenthal v. Cain, 22 Ga. App. 596 (96 S.E. 710), in which these additional cases were relied on: Logan v. Gigley, 9 Ga. 114; Bond v. Watson, 22 Ga. 637; Downing v. Peabody, 56 Ga. 40.
It is well established and a matter of first principle, that "nothing can be tolerated which comes into conflict or competition with the interest or welfare of those interested in the estate. Lowery v. Idelson, 117 Ga. 778 (45 S.E. 51)." Hall v. White, 215 Ga. 144 (109 S.E.2d 516). From the statement of the general rule inhibiting the grant of an option to purchase trust property, even under a power of sale conferred by the will, *557 which we have quoted from Bogert at the beginning of this opinion, it is obvious that, in most cases, the courts have considered the granting of an option not to be in the best interest of the estate and the beneficiaries thereunder, as is aptly stated in Moore v. Trainer, 252 Pa. 367, supra: "An executor or other trustee acts in a representative capacity and for the benefit of the cestui que trust. Persons dealing with him are bound to know the extent of his powers and, in absence of ratification by the cestui que trust the latter is not bound by the executor's acts in excess of his authority. . . This rule is necessary for the protection of the cestui que trust against unlawful acts of the trustee. When such acts are committed, the relation between the third person and the cestui que trust is not that of two persons contracting with each other but of one person dealing with another who has limited power to act for a third person, and of the extent of which power such third person has knowledge. . . Giving the option without requiring the other party [to the lease] to purchase was not an exercise of the power [under the will] to sell, but a surrender of it for the period of the lease, and therefore, the option was invalid. The executor was bound to sell for the price stated, without exercise of discretion at the time of the sale, and regardless of the question of possible increase in the value of the property between the beginning and expiration of the lease." And this is stated to be the rule in American Law Institute's Restatement of the Law of Trusts (2d Ed.), p. 422, § 190 (k) "whether the purchase price is fixed at the time of the giving of the option or is to be fixed by appraisal at the time of the exercise of the option." And the reason there stated is "that when a power of sale is conferred it is usually contemplated that the trustee exercise discretion at the time of sale and not at some prior time."
We think that the option to purchase contained in the ten-year lease of the realty, which was entered into between the parties pursuant to the sale of the capital stock of Leopold Adler Company, is invalid under the general rule.
2. The defendants in error insist that the plaintiffs in error received for the trust estate the benefit of the lease which contained the option, and were for that reason estopped to set up *558 their want of authority to execute the option. In making this contention they have overlooked the principle that an executor cannot by his conduct expand or enlarge his power. "The intent of the testator, as the donor of a power governs. Mackay v. Moore, Dudley 94, 96; Berrien v. Thomas, 65 Ga. 61; City Council of Augusta v. Radcliffe, 66 Ga. 469, 474; Taylor v. Atkyns, 1 Burr. 60, 121; Thorley v. Thorley, 10 East. 442, 443; Daly v. James, 8 Wheat. 535, 536 (5 L. Ed. 670); 4 Kent's Com. (12th Ed.) 345. Consequently, a person claiming title under the execution of a power takes under the authority of that power. (Ib.; Bradish v. Gibbs, 3 Johns. Ch. M. P. 550; Doolittle v. Lewis, 7 Ib. 48); for an act done under a power must have its validity from the grantor of the power, and not from the person that executes it. Ibid.; Middletown v. Crofts, 2 Atk. 662. . . The authority to sell being derived from the power, it follows that the purchaser is bound to look for and to understand the extent of the power, or, as elsewhere expressed, `taking under the power, he is bound to see that its terms are complied with.' Ormsby v. Tarascon, 3 Litt. 410. And, of course in this, as in all other contracts, the object and design of the parties should be kept strictly in view, in ascertaining the nature and extent of the power.'" Satterfield v. Tate, 132 Ga. 256, 260, 261 (64 S.E. 60); Regents of the University System v. Trust Co. of Ga., 186 Ga. 498, 506 (198 S.E. 345); Newton v. Bullard, 181 Ga. 448, 453 (182 S.E. 614). The defendant in error was a legatee under the will and had full knowledge of the powers granted thereby, and he cannot claim an estoppel by conduct or in pais against the plaintiff in error, for her having signed the lease containing the option or accepting the benefits of the lease, which was, omitting the option, perfectly legal. See Coker v. Atlanta, K. & N. Ry. Co., 123 Ga. 483 (51 S.E. 481); Bennett v. Davis, 201 Ga. 58 (39 S.E.2d 3, 7); City of Atlanta v. Anglin, 209 Ga. 170 (71 S.E.2d 419). Nor would the fact that, following the signing of the lease containing the option, one of the plaintiffs in error effected a dismissal of an action to remove her as co-executor which had been instituted in the court of ordinary, appealed to the Superior Court of Chatham County, and there delayed upon condition that she *559 agree to a sale of the capital stock of the Leopold Adler Company estop the plaintiffs in error to deny that they were authorized to execute the option. This latter action had no bearing on the defendant in error's conduct in signing the contract for the purchase of the stock or the lease containing the option. It was not in any manner misleading, nor does it appear from the record that he was induced to pursue any course of action different from what he otherwise would have pursued had the action to remove the single plaintiff in error not been delayed or dismissed. Harris v. Woodard, 142 Ga. 297 (82 S.E. 902); 31 C. J. S. 239, Estoppel, § 59 (b); 19 Am. Jur., Estoppel, §§ 83-86.
For the foregoing reasons the trial court's decree is erroneous and must be.
Reversed. All the justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1377018/ | 184 Kan. 145 (1959)
334 P.2d 408
DOROTHY DUNCAN GARVER, Appellant,
v.
CHARLES WILLIAM GARVER, Appellee.
No. 41,179
Supreme Court of Kansas.
Opinion filed January 24, 1959.
W.C. Jones, of Olathe, argued the cause, and Robert P. Anderson, of Overland Park, was with him on the briefs for the appellant.
Joseph Cohen, of Kansas City, argued the cause, and Charles S. Schnider, John E. Shamberg, Joseph P. Jenkins, and Barton P. Cohen, all of Kansas City, were with him on the briefs for the appellee.
The opinion of the court was delivered by
WERTZ, J.:
This was an action for divorce, division of property, and alimony. The wife (plaintiff-appellant) was granted a divorce for the fault of the husband (defendant-appellee). Neither party complains about that portion of the judgment granting plaintiff a divorce. Plaintiff appeals from that part of the judgment pertaining to a division of property, and contends that the court erred in not allowing her alimony. We will limit our statement to the essential facts relating to the pertinent issues involved.
A review of the record discloses the parties were husband and wife for over thirty years, and the two children born of the marriage were of legal age at the time of trial. Plaintiff had suffered an auto accident in the early part of their marriage, for which she received some money, and from time to time during the marriage she received various gifts of government bonds from her father which she, in turn, converted into stock; she had also received sums of money from the estates of her mother and her aunt, and an interest in certain real estate in Ohio. Through their joint efforts during the marriage the parties accumulated certain stocks and bonds as well as cash, a $26,000 equity in their home, and during *146 the pendency of the action an equity in an apartment in Kansas City, Missouri. Some of the jointly acquired stocks had been pledged by defendant as security for loans. The parties also acquired certain household goods and two automobiles.
The trial court, after granting the divorce to the plaintiff for the fault of the defendant, stated, "The only question now is the settlement of the property rights." The court then restored to the plaintiff her separately acquired property, subject to any indebtedness against it, and made a division of the property jointly acquired by the parties. The court set over to plaintiff the equity in the home, subject to unpaid taxes and the mortgage indebtedness of record, and subject further to a lien of $4,000 in favor of defendant if and when the home was sold. Plaintiff was also given the household goods and one of the automobiles. The trial court set over to defendant the jointly acquired stocks and bonds, subject to any outstanding indebtedness against them, an automobile and the $4,000 lien against the home. The cash on hand or on deposit to the separate credit of the parties was to remain their property. No specific mention was made of the Kansas City, Missouri, apartment. The defendant was ordered to pay the 1956 income tax in the sum of $2,217.82. However, the record fails to disclose payment of the tax, but does show a government lien in that amount against the home given plaintiff.
First, plaintiff contends the trial court failed to set aside to her all her separately acquired property. A review of the record discloses the court set aside to her all the property claimed in her affidavit, with the exception of certain shares of two separate stocks, the title to which was in dispute. Plaintiff has not made it affirmatively appear these stocks were her separately acquired property.
Plaintiff also contends the trial court erred in refusing to award alimony after granting the divorce to her for the fault of the defendant. The decree of divorce, in addition to granting the divorce, ordered a specific division of the property of the parties but made no mention of an alimony award to the wife. In overruling the motion for a new trial, the court declared:
"I tried to make what I considered an equitable division of the property, taking into consideration the alimony and all of the other factors that are necessary to be taken into consideration ... And I feel that is a proper allowance of, you can call it property division or alimony, it is one and the same thing under the statute as I understand the statute to be. It was not a cash allowance of alimony and it was not intended at that time."
*147 Plaintiff asserts the decisions of this court indicate clearly that alimony and division of property are separate and distinct, that both must be awarded to the wife when a divorce is granted by reason of the fault of the husband, and that the alimony award must be in a definite, fixed sum. She maintains the lower court made no alimony award in a definite, fixed sum.
Defendant, on the other hand, admits the trial court did not refer to the division of property as permanent alimony but asserts the necessity of awarding permanent alimony was taken into consideration in the division of property. Defendant cites Mathey v. Mathey, 175 Kan. 446, 264 P.2d 1058, in support of his contention that what the plaintiff received could have been nothing but permanent alimony. Meads v. Meads, 182 Kan. 361, 320 P.2d 830, is also cited for the proposition that the failure of the journal entry to reflect a definite division in the judgment between that part of the property allowed as alimony and that the part allowed as a division of property does not compel a reversal of the judgment.
We are of the opinion that alimony and property division are completely separate and that a wife who prevails in a divorce action is entitled to both alimony and division of property. The right to alimony is separate and distinct from the right to division of the property jointly acquired by the parties during the marriage. The doctrine of alimony is based upon the common law obligation of the husband to support his wife, which obligation is not removed by her obtaining a divorce for his misconduct. Division of property on the other hand, has for its basis the wife's right to a just and equitable share of that property which has been accumulated by the parties as a result of their joint efforts during the years of the marriage to serve their mutual needs. In this sense, the marital relationship is somewhat analogous to a partnership, and when the relationship is dissolved the jointly acquired property must be divided, regardless of which party has been at fault. (Putnam v. Putnam, 104 Kan. 47, 177 P. 838.) The distinction between alimony and property division has long been recognized in this jurisdiction. In Johnson v. Johnson, 57 Kan. 343, 348, 46 P. 700, the court declared:
"The distinction between an allowance of alimony and a division of property is discussed at length and clearly recognized in the case of Bacon v. Bacon, 43 Wis. 197. In 2 Am. & Eng. Encyc. Law. 92, alimony is thus defined: `Alimony is an allowance, which by order of court, the husband, or former husband, is compelled to pay to his wife, or former wife, from whom he has *148 been legally separated or divorced, for her support and maintenance.' The foundation for its allowance is the duty of the husband to provide for the wife's support; and where a divorce or separation occurs because of his fault, the duty of providing for her maintenance continues, and the court by an allowance of alimony compels its performance. A division of the property of the parties is an essentially different thing. No matter which party may be at fault, nor what the decision of the court on the merits of an application for a divorce, the court may for good cause make an equitable division and disposition of the property of the parties. In doing this the power of the court extends only over the property of the parties owned by them at the time the order is made. It cannot reach into the future and bind subsequent earnings or accumulations of either party."
In Cummings v. Cummings, 138 Kan. 359, 361, 362, 26 P.2d 440, the court said:
"The law of this state recognizes that a wife has an interest in property accumulated by husband and wife while the marriage relation existed. The interest is distinct from alimony. (Hardesty v. Hardesty, 115 Kan. 192, 222 P. 102; Hendricks v. Hendricks, 136 Kan. 69, 12 P.2d 804.) Alimony has for its basis right to maintenance only. Division of property has for its basis right to a just and equitable share of property. (Bowers v. Bowers, 70 Kan. 164, 167, 78 P. 430.)"
See also Putnam v. Putnam, supra, 52, 53, 54; Meads v. Meads, supra, and cases cited therein.
G.S. 1949, 60-1511 reads as follows:
"When a divorce shall be granted by reason of the fault or aggression of the husband, the wife shall be restored to her maiden or former name if she so desires, and also to all the property, lands, tenements, hereditaments owned by her before her marriage or acquired by her in her own right after such marriage, and not previously disposed of, and shall be allowed such alimony as the court shall think reasonable, having due regard to the property which came to him by marriage and the value of his real and personal estate at the time of said divorce; which alimony may be allowed to her in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or in installments, as the court may deem just and equitable. If the divorce shall be granted by reason of the fault or aggression of the wife, the court shall order restoration to her of the whole of her property, lands, tenements and hereditaments owned by her before, or by her separately acquired after such marriage, and not previously disposed of, and also the court may award the wife such share of her husband's real and personal property, or both, as to the court may appear just and reasonable; and she shall be barred of all right in all the remaining lands of which her husband may at any time have been seized. And to such property, whether real or personal, as shall have been acquired by the parties jointly during their marriage, whether the title thereto be in either or both of said parties, the court shall make such division between the parties respectively as may appear just and reasonable, *149 by a division of the property in kind, or by setting the same apart to one of the parties, and requiring the other thereof to pay such sum as may be just and proper to effect a fair and just division thereof...."
It is clear to us that when a divorce is granted the wife for the fault of the husband she is entitled to three things: (1) restoration of all the property owned by her prior to the marriage or acquired by her in her own right after the marriage, (2) such alimony as the court shall deem reasonable, and (3) a division of the property acquired jointly by the parties during the marriage. While the mentioned statute is not a model of clarity, it is apparent the legislature intended that the sentence dealing with division of jointly acquired property apply both to cases where the divorce is granted the wife for the fault of the husband and to cases where the husband is granted the divorce for the fault of the wife. A contrary conclusion would put a premium on the misconduct of the wife. It would mean that property acquired as a result of the joint efforts of the partners in marriage would be retained by the husband where his misconduct resulted in a divorce, while the property would be equitably divided between the parties where the wife's misconduct led to divorce. Such a conclusion cannot be justified in theory or in reason. We reach this conclusion fully cognizant of the opinion in Mathey v. Mathey, supra. So far as that decision is inconsistent with the views expressed herein, it is overruled.
This court has repeatedly held it is mandatory where the wife is granted a divorce for the fault of the husband that the trial court award her such alimony as it shall think reasonable, with the allowance to be made in real or personal property, or both, or in money. (Meads v. Meads, supra, and cases cited therein.) Similarly, it is mandatory that the court make an equitable division of the jointly acquired property.
In the instant case the record indicates the trial court had an erroneous view as to what constitutes alimony and division of property under the statute, a view which was stated at least twice in the course of the proceedings. As a result of the court's mistaken belief that property division and alimony are one and the same thing under the statute, it is impossible to determine whether the court in fact granted alimony to the wife, or whether the court awarded a division of property alone, or a division of property and alimony in the form of property. The division of property *150 made by the court does not justify us in concluding plaintiff was allowed alimony.
This situation differs from that in Meads v. Meads, supra, and Matlock v. Matlock, 182 Kan. 631, 323 P.2d 646. In both of those cases the trial court set aside to the wife certain property as a division of jointly acquired property and in lieu of alimony. While the journal entry should have reflected a definite division between alimony and property division, we held that under the facts of those cases failure of the trial court to so specify was not reversible error, since it was clear the court had in fact allowed the wife alimony in the form of property.
If the trial court intended the property division between plaintiff and defendant to be only a division of jointly acquired property, then this court cannot say such division was inequitable or unreasonable. It has been the inviolate rule of this court that a division of property made by the trial court in a divorce action will not be disturbed on appellate review unless it is made clearly to appear that its action in making that division amounted to abuse of discretion. This discretion is a judicial and not an arbitrary one. When so acting in a matter committed to the discretion of the court by the law the judgment ought not to be overruled by a reviewing court, for to do so would be to deny the right to exercise the discretion given by the law itself. (Reedy v. Reedy, 175 Kan. 438, 440, 264 P.2d 913.)
In view of the record in this case, the judgment of the trial court is reversed and the case is remanded with directions to enter judgment in favor of the plaintiff for alimony in a definite amount, either in real or personal property, or both, or by decreeing to her such sum of money, payable in gross or in installments, as the court may deem just and equitable, and to make a just and reasonable division between the parties of the property jointly acquired during the marriage, all in accordance with G.S. 1949, 60-1511.
It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1377046/ | 103 Ga. App. 102 (1961)
118 S.E.2d 734
BROYLES
v.
JOHNSON.
38578.
Court of Appeals of Georgia.
Decided January 6, 1961.
Rehearing Denied February 2, 1961.
*103 Jack Broyles, Elijah A. Brown, for plaintiff in error.
Johnson, Hatcher, Meyerson & Irvin, Henry M. Hatcher, Jr., contra.
NICHOLS, Judge.
1. When this case was previously before this court and the judgment of the trial court sustaining the defendant's general demurrers was reversed, no question was presented as to the defendant's special demurrers to the petition inasmuch as the trial court had not at that time passed on such demurrers. After the case was returned to the trial court and judgment was entered on the general demurrer in accordance with the decision of this court, the trial court overruled certain special demurrers and sustained one special demurrer to allegations which the defendant insisted, in its demurrer, constituted an attempt to plead evidence. These allegations, pleaded in an amendment to the original petition, sought to plead the answer pleaded in another law suit by another party. The court in striking such allegations held that such allegations constituted a pleading of evidence but further held that the admissibility of such alleged evidence on a final trial was not being passed upon. The ruling of the court, if error, was not harmful, since the allegations, as an amendment to the petition, stood automatically denied and the plaintiff was not, by this ruling prohibited from introducing evidence in support of such allegations.
2. The plaintiff demurred to two paragraphs of the defendant's answer. Both of these demurrers were overruled and the plaintiff excepted. The paragraphs of the answer objected to were not subject to the demurrers filed and, even if such paragraphs had been stricken under the other allegations of the defendant's answer, the ultimate issues to be decided by the jury would not have changed. No harmful error is shown by this assignment of error.
3. The defendant filed a plea in abatement to which the plaintiff demurred. Thereafter the defendant dismissed such plea in abatement and the court struck the plaintiff's demurrers to such *104 plea. Error is assigned on this judgment. The plaintiff admits in its brief that such action was not error but contends that he must except to such judgment if the plea in abatement could be used to aid a plea of res adjudicata filed later by the defendant. The judgment relied on in the plea of res adjudicata not having been rendered until after the first term of the present case, it was not necessary that such plea be filed at the first term. See in this connection Hill v. Cox, 151 Ga. 599 (107 S.E. 850); Loveless v. Carten, 64 Ga. App. 54 (12 S.E.2d 175). Accordingly, the plea of res adjudicata need not rely upon the plea in abatement and no error is shown by this assignment of error.
4. The defendant filed a plea of res adjudicata after a final judgment was rendered in his favor on two actions brought against him by the plaintiff on the same day that the present action was brought.
The plaintiff's demurrers to such plea were overruled and error is assigned on such judgment. The plea of res adjudicata was based on the judgments adverse to the plaintiff in the two companion cases to this case, Broyles v. Johnson, 99 Ga. App. 69 (107 S.E.2d 851), and Johnson v. Broyles, 99 Ga. App. 76 (107 S.E.2d 853). Both of these cases were based on rights arising out of the same contract on which the present cause of action arose. In the first cited case it was held that the plaintiff's petition failed to set forth a cause of action since no profits were alleged. In the latter case it was held that the petition was subject to general demurrer because the plaintiff's right to recover from the defendant was based on his right to recover from the corporation, which right he did not have. The present case deals with the right of the plaintiff to recover from the defendant the amount of advances made to the corporation because the defendant failed to require, or refused to permit, the corporation to repay such advances. The exhibits attached to the plea of res adjudicata show that at least a part of the money sought in the present action was sought in the prior action where a general demurrer to the plaintiff's petition was sustained. In the prior action where the same money was sought it was sought because of an alleged breach, by the defendant, of the same clause of the contract as the alleged breach in the present case. Therefore, *105 the plea was not subject to general demurrer for such reason. The remainder of the grounds set forth as to why the plea was subject to demurrer are controlled adversely to the plaintiff by the cases cited in the preceding division of this opinion. This ruling also disposes, adversely to the plaintiff, of the assignments of error on the judgments refusing to "strike" the defendant's plea of res adjudicata, overruling the objection to evidence adduced on the trial of the plea of res adjudicata, and sustaining the plea of res adjudicata as to a part of the recovery sought. See also Spence v. Erwin, 200 Ga. 672 (38 S.E.2d 394).
5. The next question presented is whether the trial court erred in refusing an amendment, on the trial of the case, in which attorney's fees were sought. Under Code § 20-1404 attorney's fees are allowable when "the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense."
In the case of Schaffer Baking Co. v. Greenberg, 51 Ga. App. 324, 326 (180 S.E. 499), it was held that, when the amount of the defendant's liability was substantially less than the amount sued for, a finding for attorney's fees was unauthorized. See also Crump v. Ojay Spread Co., 87 Ga. App. 250, 252 (73 S.E.2d 331), and cases there cited. The plaintiff here sued for considerably more than the amount recoverable inasmuch as the defendant's plea of res adjudicata was sustained as to a considerable part of the recovery sought. Accordingly, the trial court did not err as contended in this assignment of error.
6. Just prior to the trial of the case the defendant filed an amendment to his answer in which he sought to have set off, against any recovery that the plaintiff might be entitled to, a judgment obtained against the plaintiff's assignor in the Superior Court of DeKalb County (See Walton v. Johnson, 213 Ga. 108, 97 S.E.2d 310).
The plaintiff relies upon cases exemplified by Bank of Oglethorpe v. Brooks, 33 Ga. App. 84 (125 S.E. 600), where it was held that when funds were received "in trust" by a bank they could not be set off by the bank in payment of a debt owed the bank by the depositor. In that and similar cases the funds were received "with knowledge" of the trust.
*106 In the present case the defendant was seeking to set off the judgment obtained against the plaintiff's assignor in a suit filed before the assignment of the chose in action to the plaintiff which pending action was known to the plaintiff when he obtained the assignment of the chose in action. In Gurry v. Perryman, 6 Ga. 119, 123, it was said "the rule, with regard to the assignment of choses in action, not negotiable, we understand to be, that every person who takes an instrument, not assignable by the terms of it, must take it principally on the credit of him from whom he receives it, for it is always liable to be defeated by equitable circumstances subsisting between the original contracting parties, being taken legally subject to all the equities of the original debtor." In McCaw Mfg. Co. v. Felder & Rountree, 115 Ga. 408 (41 S.E. 664), the Supreme Court held that, while as a general rule setoff must be between the same parties and in their own right, the transferee of a chose in action other than a negotiable security takes it subject to the equities existing between the original creditor and the debtor. See also Ellis v. Dudley, 19 Ga. App. 566, 568 (91 S.E. 904). The amendment to the defendant's answer, in which the setoff was pleaded, met the necessary requirements in order to permit the defendant to go to the jury on such issue, and the judgment of the trial court overruling the plaintiff's oral motion to strike such plea was not error.
7. On the trial of the case the defendant introduced in evidence the verdict, judgment, etc., relied on in his plea of setoff over the objection of the plaintiff. In view of the ruling in the preceding division it was not error to admit such evidence. This evidence, together with the assignment of the non-negotiable chose in action and the stipulation between the parties as to the amount that had been paid on such judgment, demanded the verdict for the defendant returned by the jury. Accordingly, the remaining special grounds of the motion for new trial will not be considered, for any error shown was harmless, and the judgment of the trial court overruling the plaintiff's motion for new trial and motion for judgment non obstante veredicto must be affirmed.
Judgment affirmed. Felton, C. J., and Bell, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1377047/ | 215 Or. 489 (1959)
334 P.2d 459
MORRISON ET AL
v.
KANDLER ET UX
Supreme Court of Oregon.
Argued October 28, 1958.
Reargued October 29, 1958.
Affirmed as modified December 10, 1958.
Petition for rehearing denied March 4, 1959.
*491 Harold Banta, Baker, argued the cause for appellants. On the briefs were Vernon Daniel, Payette, Idaho, and Banta, Silven & Horton, Baker.
W.F. Schroeder, Vale, and M.P. Gallagher, Ontario, argued the cause for respondents. On the brief were Lytle & Schroeder, Vale, and Gallagher & Gallagher, Ontario.
Before PERRY, Chief Justice, and WARNER, McALLISTER, SLOAN and O'CONNELL, Justices.
AFFIRMED AS MODIFIED.
McALLISTER, J.
This is a suit in equity by the plaintiffs, as vendors, for the strict foreclosure of a contract for the sale of real and personal property. The defendants, as purchasers, filed a cross-complaint to rescind the contract and to recover the amounts paid on the purchase price. From a decree in favor of plaintiffs, the defendants appeal.
By a contract dated February 2, 1952, the plaintiffs, Harrison M. Morrison and Esther L. Morrison, his wife, agreed to sell to the defendants, Floyd Kandler and Minnie Kandler, his wife, a ranch containing *492 about 170 acres, together with 211 sheep and certain farm machinery. The ranch is located in the Westfall valley of Malheur county.
The purchase price for all the real and personal property was the sum of $51,500, which defendants agreed to pay as follows:
(a) $3,500 in cash upon the execution of the agreement;
(b) $12,000 by conveying to plaintiffs a 40 acre tract of land owned by defendants;
(c) $7,000 by assuming and agreeing to pay the balance of a debt due the State Land Board and secured by a mortgage on plaintiffs' ranch; and
(d) $2,580 on February 1, 1953 and a like sum annually thereafter until the full purchase price, together with the interest thereon, was paid.
The defendants took possession of the real and personal property at about the time the contract was executed.
On June 10, 1952, the Morrisons assigned to Harley E. Noah and Lulu B. Noah the first $19,000 to be paid thereafter by defendants under the contract of sale. This assignment was given to secure the payment of an indebtedness due to the Noahs by the Morrisons. Because of this assignment, Harley E. Noah and his wife joined as plaintiffs in this suit. Since this controversy is primarily between the Morrisons as vendors and the defendants as purchasers, we will refer to the Morrisons as the plaintiffs and when necessary, refer to the Noahs by name.
The ranch in question was irrigated and used primarily for the production of alfalfa hay. The flock of sheep was referred to during the trial as a "farm flock" and was apparently of secondary importance in the farming operation.
*493 The controversy between plaintiffs and defendants which culminated in this suit began in the fall of 1953. During the latter part of November, 1953, Morrison visited the ranch on two occasions and objected to the Kandlers' conduct in disposing of some of the farm equipment without Morrison's consent. The equipment being purchased under the contract included a Model A John Deere tractor. In January, 1953 Kandler had traded this tractor to an equipment dealer as part of the down-payment for an International Super C tractor and other equipment. The Super C tractor and the other equipment was purchased by Kandler under a contract by which title was retained by the seller to secure the payment of the balance of the purchase price in the sum of $1,550.
During 1953, Kandler also traded, sold or attempted to dispose of a hydro loader, a cover crop disk, a Model D John Deere tractor, a grain drill, a manure spreader and a tractor mower. The proceeds from the sale of three of these items were paid to the escrow agent and applied on the contract. The remaining three items were recovered and returned to the ranch by Kandler after Morrison's visits in November.
Since the disposal of this farm machinery by Kandler is not decisive of this case, it is not necessary to go into further detail. Defendants contended that they were authorized to dispose of this machinery by a provision of the contract permitting them to replace unuseable equipment and claimed that the assignee, Harley Noah, had expressly approved some of the transactions.
On December 29, 1953, Morrison went to the ranch accompanied by W.F. Schroeder, one of his attorneys. These men inspected the ranch, the sheep and the farm equipment. The Kandlers were not at home but after *494 inspecting the property Morrison and his attorney prepared and left with one of the Kandler children the following notice:
" 12-29-53
11:40 a.m.
Floyd and Mrs. Kandler
By reason of your defaults under Morrison contract, 2 Feb 1952, among them and particularly in relation to absence of:
Model A John Deer tractor No. A2468R
Model D " " " No. D914R/B
Hydro Loader
Cover Crop Disk
2 Tractor Hay Bucks
1 John Deere Grain Drill & attachment
1 Manure Spreader
1 Track Harrow
2 Swathers
1 Tractor Mower
permitting tax lien on real and personal property and bad husbandry, we herewith take possession of the real and personal property involved in, and pursuant to said contract. A keeper, Mr. Lee Slabaugh to assume the lambing operation tomorrow.
s/H.M. Morrison
s/Lytle, Kilpatrick and Schroeder
by W.F. Schroeder "
Pursuant to this notice Mr. Morrison returned to the ranch the following day accompanied by Lee Slabaugh. Morrison intended to take possession of the real and personal property and leave Slabaugh to care for the sheep which were then beginning to lamb. Again, the Kandlers were not at home but the Kandler children, in emphatic language, ordered Morrison and Slabaugh to "get off" the ranch and the two men got. Morrison made no further effort to obtain possession *495 of the property and the Kandlers remained on the ranch.
The next significant step in this controversy was the filing of this suit on January 5, 1954 and the service of a summons on both defendants on that same day. Plaintiffs' complaint alleged the execution of the contract and further alleged that the defendants had failed to comply with the contract in the following particulars:
(1) in selling or otherwise disposing of certain items of the farm machinery;
(2) in failing to pay to the State Land Board the payment due October 1, 1953;
(3) in failing to pay the taxes on the real and personal property;
(4) in failing to properly care for the sheep; and,
(5) in failing to properly care for and maintain the real property and the buildings thereon.
The complaint taken as a whole recognized the right of the defendants to remain in possession of both the real and personal property during the pendency of the suit unless otherwise ordered by the court. It alleged that the sheep were not receiving proper care and asked for the appointment of a receiver to care for them. The complaint concluded with a prayer for the strict foreclosure of the contract and the restitution of the real property if the amounts found due the plaintiffs were not paid within the time fixed by the court. Plaintiffs did not press their request for the appointment of a receiver to take charge of the sheep and no receiver was appointed.
After this suit was filed the Kandlers, acting on the advice of their attorney, took prompt action to remedy the alleged defaults. On January 6, 1954, they *496 paid the first quarter of the taxes on the real and personal property for the fiscal year 1953-54. At the same time defendants paid some real property taxes for the fiscal year 1952-53 amounting to $10.65 which apparently had been overlooked the year before. On January 7, the defendants paid the delinquent installment due the State Land Board and paid to the escrow agent the proceeds received from the sale of the tractor mower in the sum of $110.
The next decisive step in this controversy was taken by defendants. On the evening of January 13, 1954, again acting on the advice of their attorney, the defendants, accompanied by two friends to serve as witnesses, called on plaintiffs at Durkee. The Kandler car was parked in front of plaintiffs' home and Morrison was persuaded to come out to the car where he and Kandler engaged in a conversation.
In substance, Kandler said that Morrison had broken the contract, that the Kandlers were moving off the property and wanted their money back. Kandler did not say how the contract was broken although Morrison questioned him about it several times. Kandler said "We are declaring the contract ended. You take possession immediately." Morrison said "All right if that is the way you feel I don't see how I broke the contract. I will have a man there by noon tomorrow." Morrison was informed that there was very little hay on the ranch to feed the sheep and that he would have to buy some feed. As a witness, Kandler was asked why he did not tell Morrison how the contract had been broken. Kandler replied "I didn't know; I am going to be frank with you; I didn't know."
On the following day, January 14, 1954, the Kandlers voluntarily vacated the property and plaintiffs *497 took possession and started caring for the sheep. The plaintiffs have been in possession of the property since that date.
On January 14, 1954, the defendants filed their answer and cross-complaint in this suit. By their answer, defendants denied that they were in default in the performance of the contract and alleged that all of the defaults charged had been cured within the 60 day period of grace allowed by the contract. In their cross-complaint, defendants alleged that plaintiffs had repudiated the contract by serving the Kandlers with the notice quoted above and by attempting to take possession of the premises on December 29, 1953. Defendants further alleged that they had acquiesced in said repudiation of the contract by plaintiffs and thereby had rescinded the contract. Defendants demanded a return of the sums paid on the contract totaling $19,735 and attorney's fees in the sum of $2,000.
On December 13, 1954 the defendants filed an amended and supplemental answer and cross-complaint. Defendants alleged an additional ground for rescission of the contract based on the conduct of plaintiffs during the pendency of this suit, as follows:
"That regardless of whether defendants' rescission, as set out in their first defense and counterclaim was justified or not at the time it was undertaken, the plaintiffs have, since that time and during the pendency of this suit, acquiesced therein, have dealt with the said real and personal property covered by said contract as their own and in so doing, have put it beyond their power to carry out and perform the said contract on their own part, in the following particulars.
"That as hereinbefore alleged, the plaintiffs have taken possession of the real and personal *498 property covered by said contract and after securing possession thereof, the said plaintiffs have in all respects dealt with and treated said property as their own. Plaintiffs have sold and disposed of all of the sheep included in said contract and have also, as defendants are informed and believe, sold and disposed of various of the farm machinery and equipment. Plaintiffs have removed various of the fences and otherwise altered the improvements and changed the condition and method of operation of said real property to suit their own convenience and wishes and have otherwise dealt with the same in all respects as though they were the sole owners thereof and wholly without regard to the wishes of the defendants or their rights under such contract."
As an additional affirmative defense defendants took an equivocal position by alleging that even if they were not entitled to rescind, nevertheless, plaintiffs were not entitled to a strict foreclosure of the contract; that defendants should be restored to possession of the real property and allowed to continue performance of the contract. Except for these allegations in their amended answer and cross-complaint, the defendants, after they surrendered possession of the property to plaintiffs, made no effort to resume possession and made no objection to the manner in which the property was being operated by plaintiffs. They took no further interest in the property except to defend this suit and prosecute their cross-complaint for rescission.
Having outlined in chronological sequence the successive steps taken by the parties to this controversy, we will now refer to the rules of law which control our decision.
1, 2. Defendants rely primarily on the well established rule that if a vendor wrongfully attempts to declare *499 a forfeiture of a contract of sale, the purchaser may treat such action as a repudiation of the contract by the vendor and may elect to rescind the contract. This court has uniformly held that the vendee may acquiesce in a wrongful repudiation of the contract by the vendor and thereby effect a mutual rescission of the contract. Macomber v. Waxbom, 213 Or 412, 325 P2d 253; Zumstein v. Stockton et ux., 199 Or 633, 641, 264 P2d 455; Grider v. Turnbow, 162 Or 622, 640, 94 P2d 285; Holland v. Bradley, 140 Or 258, 264, 12 P2d 1100; Johnson et al. v. Berns et al., 111 Or 165, 209 P. 94, 224 P. 624, 225 P. 727; Epplett v. Empire Inv. Co., Inc., 99 Or 533, 544, 194 P. 461, 700; and Cornely v. Campbell, 95 Or 345, 186 P. 563.
Defendants contend that plaintiffs' attempt, on December 29, 1953, to declare a forfeiture and take possession of the real and personal property was wrongful because defendants were not in default and because in any event, the declaration of forfeiture, being attempted without prior notice, was premature.
3. The contract of sale involved in this case merely gave the vendor, upon default by the purchaser, an option to declare a forfeiture. It has been repeatedly held by this court that a contract which, upon default by the purchaser, gives the vendor only an option to declare a forfeiture is not self-executing. Under such a contract the vendor may declare a forfeiture only after (1) he has given notice of his intention for a reasonable period of time and (2) the purchaser has failed to cure the default during the time fixed by such notice. A notice declaring that a forfeiture is then effected rather than stating that a forfeiture will be effected in the future unless payment is made within a prescribed time is a breach of the implied stipulation to give reasonable notice and does not *500 effect a forfeiture. Howard v. Jackson, 213 Or 447, 324 P2d 757; Zumstein v. Stockton et ux., supra; Grider v. Turnbow, supra; Epplett v. Empire Inv. Co., Inc., supra; Kemmerer v. Title & Trust Co., 90 Or 137, 175 P. 865; and Higinbotham v. Frock, 48 Or 129, 83 P. 536.
If, as contended by the defendants, the attempt by plaintiffs to declare a forfeiture and take possession of the property on December 29, 1953, was wrongful, it would follow as a matter of course that defendants had the right to treat such action as a repudiation of the contract by plaintiffs and elect to rescind the contract. Defendants, however, whether wisely or not, did not promptly elect to rescind the contract but on the contrary, continued in possession and engaged themselves diligently in the performance of the contract.
It will be noted that defendants, with full knowledge of the alleged wrongful conduct of the plaintiffs, remained in possession of the property, continued to treat the contract as in force and attempted to cure any alleged defect in their prior performance of it. Whether this conduct constituted a waiver by defendants of their right to rescind is a question which need not be decided now. See James v. Ward, 96 Or 667, 190 P. 1105. In any event, before defendants indicated an intent to rescind because of plaintiff's alleged wrongful declaration of forfeiture, defendants' right to rescind was extinguished by the filing of this suit.
4. A suit for strict foreclosure recognizes that the contract is presently in effect and seeks to enforce it. It is an affirmance of the contract. Howard v. Jackson, supra; Zumstein v. Stockton et ux., supra; Nielsen v. Baldridge, 173 Or 555, 146 P2d 754; Grider v. Turnbow, *501 supra; McCracken v. Walnut Park Garage, Inc., 156 Or 697, 68 P2d 123; and Flanagan v. Great Cent. Land Co., 45 Or 335, 77 P. 485. The rule is now well established that the filing of a suit for strict foreclosure is a waiver by the vendor of any right to forfeiture. In Zumstein v. Stockton, supra, the court said:
"* * * The fact that a vendor has declared a forfeiture, or that a forfeiture has automatically occurred, does not prevent the vendor from suing for strict foreclosure. The forfeiture is waived when the plaintiff seeks strict foreclosure."
In Grider v. Turnbow, supra, the court held that a vendor who had repudiated the contract by wrongfully declaring a forfeiture had a "right to recede from that position" prior to the making by purchaser of any claim of a rescission or cancellation of the contract based on vendor's action.
In Dorsey et ux. v. Tisby et ux., 192 Or 163, 180, 234 P2d 557, the purchaser contended that the action of the vendor in declaring the contract forfeited terminated the agreement and precluded the vendor from later bringing his suit for strict foreclosure. The court said:
"* * * It appears to us as not illogical to say that when the plaintiffs filed this suit [for strict foreclosure] they withdrew their notice of forfeiture and reinstated the contract."
See also Hodges et ux. v. Servine et ux., 211 Or 428, 316 P2d 312.
5. It is also well settled that when the purchaser is given possession under the contract the bringing of a suit for strict foreclosure is an admission by the vendor that the purchaser is entitled to remain in possession until barred finally by the decree of the court. Macomber v. Waxbom, supra; City of Reedsport *502 v. Hubbard et ux., 202 Or 370, 274 P2d 248; and Grider v. Turnbow, supra.
After this suit was filed, the purchasers were entitled to remain in possession of the property and were assured of the full protection of their rights by the court. If the suit for strict foreclosure was prematurely brought, defendants were entitled to have the suit abated or dismissed. Hodges et ux. v. Servine et ux., supra; City of Reedsport v. Hubbard et ux., supra; Zumstein v. Stockton et ux., supra; and Grider v. Turnbow, supra. However, instead of relying on the court to protect their rights defendants embarked on a course of self-help with apparent unfortunate results.
After the plaintiffs had affirmed the contract by bringing this suit, no action was taken by them giving the defendants any right to rescind the contract. For the first few days after suit was filed, defendants were busily engaged in curing the alleged defaults specified in plaintiffs' complaint. Then on January 13, 1954, after their right to rescind had been extinguished by the filing of this suit, defendants belatedly attempted to rescind the contract based solely on the alleged wrongful conduct of the vendors on December 29, 1953.
6. When the defendants on January 13, 1954, voluntarily surrendered possession of the property to plaintiffs and refused to further perform the contract, they acted at their peril. If defendants were acquiescing in a prior wrongful repudiation of the contract by the vendors, their conduct constituted an approved method of effecting a mutual rescission of the contract. See Zumstein v. Stockton, supra, and other cases cited supra. But if defendants were acting without sufficient cause, their conduct amounted to an unequivocal breach and repudiation of the contract by them. In *503 this case defendants concede that they relied solely on the allegedly wrongful attempt of the plaintiffs to declare a forfeiture on December 29, 1953. As we have pointed out, this cause for rescission was extinguished when plaintiffs filed this suit for strict foreclosure.
The general rules applying to an anticipatory breach of an executory contract are stated in Swick v. Mueller et ux., 193 Or 668, 238 P2d 717. See also Weaver et al. v. Williams, 211 Or 668, 317 P2d 1108 and Dibble v. Hodes Co., 132 Or 596, 277 P. 820, 286 P. 554. In this case defendants' repudiation of the contract was acted upon by plaintiffs when they resumed possession of the property. Under the facts of this case they could hardly have done otherwise. As pointed out in Dibble v. Hodes Co., supra, several remedies are available to a party to an executory contract which has been repudiated by the other party. In this case the plaintiffs elected to continue the prosecution of their suit for strict foreclosure. It is therefore unnecessary to consider what other remedies were available to them.
There is no evidence in this case tending to prove that plaintiffs intended to effect a rescission of the contract when they retook possession of the property. On this phase of the case defendants rely on the conduct of the plaintiffs after they had resumed possession.
7. We must therefore next consider whether the conduct of plaintiffs after they resumed possession of the property effected any change in the rights of the parties. We believe it did not. In the first place, there is no evidence that plaintiffs, after they resumed possession of the property, took any action which would prevent them from fully performing the contract. No evidence was offered to prove or attempt to prove to *504 what extent, if any, defendants would be damaged or even seriously inconvenienced by any action taken by plaintiffs in connection with the real and personal property.
The plaintiffs cared for the sheep until August 2, 1954 and then sold them through a local livestock marketing agency. The market value of the sheep both when they were surrendered to plaintiffs and when they were sold by plaintiffs was readily ascertainable. The sheep were white-faced ewes common to the country and easily replaced. In fact, defendants had replaced a substantial number of the ewes purchased from plaintiffs with others of like kind. Not a scintilla of evidence was offered to prove that the rights of the defendants were in any way impaired by the sale of the sheep. In fact, very little evidence about the value of the sheep was offered by either party. Kandler testified as to their value when he surrendered them to plaintiffs and Morrison testified as to the amount received for the sheep when he sold them. We have examined with care the more than 700 pages of testimony, much of which has little bearing on the issues in this case. Viewing the testimony as a whole, it is obvious that the parties attach no significance to the sale of the sheep from a practical standpoint. Their value could be readily ascertained and accounted for by plaintiffs. The defendants, if they redeemed the property, could readily replace all or any part of the sheep with others of like kind and quality.
Defendants also alleged that plaintiffs "sold and disposed of various of the farm machinery and equipment." The only items of the equipment disposed of by plaintiffs after they resumed possession was the Model D John Deere tractor and a hay chopper. The *505 Model D tractor had been in only fair shape when it was sold to Kandler and had been used by Mr. Morrison primarily for chopping hay. Kandler apparently had no use for it and sold it in 1953. It was not paid for and after Morrison's visit to the ranch in November, 1953, Kandler repossessed the tractor and returned it to the ranch. According to Morrison, the clutch of the tractor was wrecked and the steering wheel was missing. This testimony was not disputed by Kandler. Morrison traded this Model D tractor and the hay chopper to get a bigger tractor "to stack hay with." The defendants' indifference to the disposal of these two items by plaintiffs is clearly indicated by the complete lack of testimony concerning the value or usefulness of this equipment. The evidence indicates that these items were of comparatively nominal value and easily replaceable.
The same situation exists with regard to the claim that plaintiffs changed the fences. Defendants had installed an electrical fence of undisclosed value or dimensions to keep stock off the banks of the irrigation ditch. Morrison testified that he had rolled up and put away the electrical fence, one cross fence and some temporary fencing installed by Kandler. Defendants offered no evidence to prove the quality, quantity or value of this fencing or the cost of replacing it. Kandler testified that the cost of all of the fencing material installed on the property by him was about $300. What portion of this fencing was rolled up and put away by Morrison is not disclosed. No evidence was offered to show how or to what extent, if any, defendants would be damaged or even inconvenienced by the changes in the fences if they redeemed the property and resumed possession.
The charge that plaintiffs "changed the condition *506 and method of operation of said real property" is also without substance. During the entire period of this controversy the bulk of this property has been used to raise hay. About 130 acres were planted in alfalfa and about 20 acres in pasture. No significant changes in this arrangement were made by Kandler and none have been made since by plaintiffs. Morrison replanted 45 acres of alfalfa which he claimed had been killed by overpasturing and flooding while Kandler was in possession. Again, no evidence was offered to show any change in the condition of the property since it was turned back to plaintiffs nor how the rights of defendants would be impaired if they redeemed the property and resumed possession.
In short, the charge in the cross-complaint and the defendants' brief that plaintiffs have put it beyond their power to carry out and perform the contract is a technical defense not supported by the evidence. This is demonstrated quite clearly by defendants' cross-complaint. Both in their original and in their amended cross-complaint defendants asked that they be restored to possession and be allowed to perform the contract if their claim of rescission is denied. This is clearly inconsistent with defendants' claim that performance of the contract has been rendered impossible by the conduct of plaintiffs after they resumed possession.
8. In the second place, when a purchaser without sufficient cause repudiates a contract of sale and voluntarily surrenders the property, a vendor who has resumed possession and elected to sue for strict foreclosure is given a reasonable latitude in operating the property pending the final determination of his suit. To hold otherwise would put a premium on the conduct of a purchaser who refuses to perform his *507 contract and vacates the property. The reason why such conduct has not been approved by the courts is clearly stated in the early case of Rounds v. Baxter, 4 Greenl. (4 Me.) 454, as follows:
"It is a proverbial principle that a man is not permitted, in a court of justice, to take advantage of his own wrong or neglect. The principle is founded in the highest reason. If a man, after he has made a fair contract, and partially fulfilled it, may, without the consent, or any fault, on the part of him with whom he has contracted, rescind the agreement, excuse himself at once from all further concern about it, and recover back whatever he has paid, he may speculate and disappoint and injure his neighbor whenever his interest or his passions may dictate, and thus triumph over him in security, and enjoy himself a complete indemnity. Justice will not sanction such a proceeding. The cases in which one of the parties to a contract may lawfully disaffirm and rescind it are those in which the other party has been in fault, or where, by the terms of the contract, a right to rescind it is reserved."
The above statement from Rounds v. Baxter was quoted by the supreme court of Washington in Van Keulen v. Sealander, 183 Wash 634, 49 P2d 19, a case similar in many respects to the case at bar. See also Roethemeyer v. Milton, 187 Wash 582, 60 P2d 694.
9, 10. In Schuler et ux. v. Humphrey et ux., 198 Or 458, 257 P2d 865, this court held that a purchaser who, pending determination by the court of his right to rescind, continued to operate a ranch for the benefit of the vendor was not restricted to mere preservation of the status quo. The court said:
"In carrying on the ranch operations, plaintiffs were fully empowered to take all steps reasonably necessary to the conduct of the business. This included *508 the right to plant and raise crops and sell them, as well as the right to sell the livestock at the times it should be sold; in other words, plaintiffs had the right to carry on the business of the ranch for the benefit of defendants, as well as for their own protection, just as they might have been expected to carry it on were they the owners thereof."
We think the above rule must work both ways and applies equally well to a vendor who, to protect his security, is required to take back and operate a ranch pending a determination by the court of his right to strict foreclosure. A vendor, forced to take back and operate a ranch by the wrongful repudiation of a contract by the purchaser, should not at his own peril and expense be required to act as a mere keeper. In determining whether the vendors repudiated the contract after they resumed possession, the test is whether their conduct evinced an intention to no longer be bound by the contract. See Cornely v. Campbell, supra. From the evidence in this case it is apparent that the vendors have at all times been prepared to deliver the real property to defendants in substantially the same condition as when it was surrendered to them and to account for the reasonable rental value of the real property while in their possession and to also account for any personal property disposed of by them.
We think the lower court should have credited on the purchase price the market value of the sheep when they were surrendered to the plaintiffs instead of the amount for which the sheep were sold by plaintiffs in August 1954. Defendants are also entitled to credit for the reasonable value on January 14, 1954 of the Model D John Deere tractor and the hay chopper. Plaintiffs are chargeable for the reasonable rental value of the property during the pendency of this *509 appeal and are, of course, entitled to credit for any taxes or installments on the State Land Board mortgage that have been paid by them.
The case is remanded to the lower court with instructions to determine the amount due plaintiffs in accordance with this opinion and to enter a decree of strict foreclosure giving defendants six months within which to redeem the property.
Neither party is allowed costs and disbursements in this court.
PERRY, C.J., dissenting.
I am unable to concur in the result reached in the majority opinion.
I am in full accord with the conclusion that the defendants did not have a right to rely upon the plaintiffs' apparently wrongful declaration of forfeiture to effect a rescission of the contract after plaintiffs had withdrawn that declaration by filing their suit for a strict foreclosure. The commencement of a suit for a strict foreclosure recognized that defendants still retained an interest in the property and its maintenance would be inconsistent with a claim that there had been a forfeiture of all rights therein.
I cannot, however, agree with the majority conclusion that, after the suit for strict foreclosure was instituted, the plaintiffs did not by their actions assent to a mutual rescission of the contract of purchase.
Within a few days after plaintiffs commenced this suit, the defendants on January 13, 1954, went to the home of the plaintiffs' Morrison. Plaintiffs' own version of what occurred is as follows:
"A. I [Morrison] got in the car and set down, and he says, `I'm going to turn it back to you.' He [Kandler] says, `You broke the contract,' and I said, `How did I break the contract?' I asked him *510 two or three times, and no tell me; he just set there. He says, `I want my money. You broke the contract.' I never said anything about his money or nothing, only I said, `Well, Mr. Kandler, I hate to see you lose it. I have done everything I can do for you, and I hate to see you lose it.' He says, `You'll have to take the sheep over in the morning, and I have sold the hay, and I have given a few days' notice to somebody they could keep it, and there's no hay.' I said, `Well, is there any hay?' and he said, `Yes, I've got two men taking care of it.' His family had moved, I guess. So we borrowed hay the next night, or made arrangements."
While it is true the defendants had been sent by their attorney to the home of the plaintiffs', where this conversation occurred, and they did not know wherein the plaintiffs had breached the contract, whether by the premature declaration of forfeiture previously made, or for some other reason, it is clear they offered to return the property to the plaintiffs and demanded a return of their money. The plaintiffs' own account of this meeting discloses only an offer to rescind, accompanied by a tender of the property which was the subject of the contract, and a demand to be placed in statu quo. The plaintiffs on the following day went into possession of the property. While in possession of the property they lambed the ewes, sold and disposed of the lamb crop, sold the ewes, a portion of the farm machinery, and changed the operation of the farm by changing fences and operating cattle thereon.
It is immaterial whether the defendants at the time they made the offer to rescind had a legal right to do so or not, if in fact a rescission was effected. "If either party, without right, claims to rescind the contract, the other party need not object, and if he permits it to be rescinded, it will be done by mutual consent." *511 Woodard v. Willamette Val. Irr. Etc. Co., 89 Or 10, 15, 173 P. 262; 17 CJS 881, Contracts § 389.
Therefore, after the offer to rescind was made by the defendants, it is necessary to determine the legal rights of each of the parties.
There can be no question but that the plaintiffs had an election of rights. Even though the defendants had no legal right at that time to rescind, the plaintiffs were required to reject that offer or acquiesce therein. If plaintiffs rejected the offer, and the defendants left the property which was the subject of the contract, they could enter therein as keepers. If plaintiffs elected to accept the offer, then the contract was at an end and their full ownership of the property confirmed.
The defendants, in order to keep their tender of rescission intact, could either depart from the premises, as they did, or return thereto and operate the premises as keepers. Schuler et ux. v. Humphrey et ux., 198 Or 458, 257 P2d 865, 27 ALR2d 14.
We are, therefore, concerned with what was done by the parties in view of their legal rights.
It must be kept in mind that throughout these proceedings the plaintiffs have maintained they have a right to a strict foreclosure of the contract, thus maintaining that defendants have an interest in the property until terminated by legal proceedings. Such relief was granted by the trial court, and could only have been granted on the basis that defendants had breached their contract.
I believe the majority fall into error when they say:
"We must next consider whether the conduct of plaintiffs after they resumed possession of the property effected any change in the rights of the parties. We believe it did not. In the first place, *512 there is no evidence that plaintiffs, after they resumed possession of the property, took any action which would prevent them from fully performing the contract. No evidence was offered to prove or attempt to prove to what extent, if any, defendants would be damaged or even seriously inconvenienced by any action taken by plaintiffs in connection with the real and personal property." (Italics mine)
The issue is not, did plaintiffs do some act that would prevent them from being able to fully perform or which in some way would damage or inconvenience the defendants if foreclosure was denied by the court? Such conclusions would be immaterial to the true issue except as the acts from which the conclusions may be drawn disclose an election to accept the offer of rescission.
The true issue is, did they by their actions elect to consent to defendants' offer of rescission?
Assent to rescission may be accomplished by acts as well as words. Woodard v. Willamette Val. Irr. Etc., Co., supra.
Mr. Justice Holmes, speaking for the Court in Wm. W. Bierce L'D v. Hutchins, 205 U.S. 340, 346, 27 S. Ct. 524, 51 L. Ed. 828, said:
"Election is simply what its name imports: a choice, shown by an overt act, between two inconsistent rights, either of which may be asserted at the will of the chooser alone."
It seems to me that an election to treat property as one's own is established by overt acts whenever it appears a seller, having only the equitable title to the property, and although having rights of a keeper, exercises control over the property inconsistent with the ownership of the purchaser. Montgomery v. Heider, 147 Or 523, 34 P2d 657; Bodding v. Staehli et al., 146 *513 Or 370, 30 P2d 3; Gray v. Mitchell, 145 Or 519, 28 P2d 631; Kellogg v. Smith, 70 Or 449, 142 P. 330, and cases cited infra.
Under the facts of this case, I would think there could be no argument but that the plaintiffs could lawfully re-enter upon the premises, but this right would extend no further than the rights of a keeper or conservator. That this is the established law of this state there can be no question. This rule is clearly set forth by this court in Kellogg v. Smith, supra, and again re-affirmed in Schuler et ux. v. Humphrey et ux., supra. While the former case deals with acquiescence in a judgment, the rule of law relative to consent or acquiescence which results in an election is the same. Lewis et ux. v. Shook et ux., 182 Or 483, 188 P2d 148.
In the Kellogg case, Kellogg had brought a suit to cancel a deed to real property, a promissory note, and a chattel mortgage, due to the fraud of the vendor, Smith. The trial court cancelled the contract, returning Smith to the ownership of certain personal property and equipment used in the operation of a "wet-wash" laundry. Smith appealed. While the appeal was pending, Smith leased the building, machinery and equipment to a Mr. Perkins. This court dismissed the appeal for the reason that Smith had elected to acquiesce in the judgment. We said, p. 456:
"It must be conceded that it was the right and duty of the defendant to protect and preserve the property described in the chattel mortgage, and, if his possession of the machinery, equipments, etc., had been limited to such care, the motion to dismiss the appeal would necessarily be denied. It appears, however, that his management of, and control over, such property extended far beyond its mere protection."
*514 To the same effect is the case of Fluhrer v. Bramel, 158 Or 694, 72 P2d 47, 73 P2d 265, 77 P2d 824. In this case a suit was commenced to rescind a contract involving the purchase and sale of a service station. The trial court granted rescission and Bramel, the defendant, was decreed to again be the owner of the filling station. Bramel appealed. While this appeal was pending, the court, believing Bramel had leased the property for $35 per month for the purpose of obtaining money to maintain the property pending the outcome of the litigation, dismissed the appeal on the ground that Bramel had elected to acquiesce in the judgment entered by the trial court.
In Gray v. Mitchell, 145 Or 519, 28 P2d 631, the vendees, unable to make payment on the contract, executed a $500 note, payable to vendor. Also, being unable to pay this $500, vendees advised vendor of their intention to abandon the contract, and tendered the key to the premises to vendor who re-entered the land in question. Suit was brought to enforce payment of the $500 note. The court held that when the vendees declared their intention to "abandon the contract" and vacated, it was incumbent upon the vendor either to affirm or disaffirm the contract; that vendor's re-entry upon the land effected a forfeiture of the contract; that when the vendor exercised dominion and ownership over the property, such conduct was a concurrence in the "rescission of the contract." See, also, Bodding v. Staehli et al., supra.
As previously pointed out, the plaintiffs in this case on going into possession, after the offer to rescind had been made, sold the farm flock of ewes, some of the machinery, changed the fences to care for cattle which they were going to and did run upon the premises. All of these acts of the plaintiffs' occurred *515 before the rights of the defendants' were determined or extinguished by any decree of the trial court, and at a time that the plaintiffs were admitting the defendants were the owners of the property.
To me it appears clear that such actions as a sale of a portion of the corpus of the security and changing the operation of the property solely for the benefit of the plaintiffs could be done under no other theory than that the contract had been terminated and they were the owners thereof.
The plaintiffs by their overt acts in exceeding their authority as conservators or keepers for security purposes, and acting for their own benefit, did elect to accept the offer of the defendants to rescind. I would, therefore, reverse the judgment of the trial court and direct a judgment of mutual rescission, placing the parties in statu quo.
Mr. Justice SLOAN joins in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1377083/ | 167 Cal. App. 2d 662 (1959)
REV. CHARLES W. HASSELBACH, Appellant,
v.
DEPARTMENT OF ALCOHOLIC BEVERAGE CONTROL et al., Respondents; VON'S GROCERY COMPANY (a Corporation), Real Party in Interest.
Civ. No. 23001.
California Court of Appeals. Second Dist., Div. Three.
Feb. 6, 1959.
Irving Sulmeyer for Appellant.
Edmund G. Brown, Attorney General, and Edward M. Belasco, Deputy Attorney General, for Respondents.
Johnson, Bates & Sheffield and James E. Bates for Real Party in Interest.
NOURSE, J. pro tem. [fn. *]
By his petition filed in the superior court, appellant sought to review an order of the Alcoholic Beverage Control Appeals Board, hereinafter called "appeals board," affirming an order of the Department of Alcoholic *664 Beverage Control, hereinafter called the "Department" granting an on- sale liquor license to Von's Grocery Company, hereinafter called "Von's" and sought a writ of mandate to compel the appeals board to reverse its decision and the Department to annul its order and to deny a license to Von's. The superior court having entered judgment denying the relief sought, appellant, hereinafter called "petitioner" appeals.
Von's having filed its application with the board for a license and the board having given the statutory notice of such application, the petitioner on behalf of himself and the church of which he is the pastor, filed a protest with the board; the grounds of the protest being stated as follows: "That said 'Von's' are situated within the immediate vicinity of our church and Christian Elementary School, and that the issuance of this license would be contrary to public welfare and morals." After a hearing in which evidence was introduced by the Department, by the petitioner and by Von's, the hearing officer made findings of fact and from those determined that "[a]lthough the proposed premises are located within the immediate vicinity of a church and a school, issuance of the license would not be contrary to public welfare or morals," and recommended that the protest filed by petitioner be overruled. Thereafter the Department adopted the proposed decision of the hearing officer as its decision. Petitioner then prosecuted an appeal to the Alcoholic Beverage Control Appeals Board and that board affirmed the order of the Department.
By his petition filed in the superior court, petitioner alleged that Von's had made three previous applications for a license; that petitioner and the church had opposed each of these applications and that the protests had been sustained. He set forth as an exhibit to his petition a copy of the decision of the Department sustaining the protest of Von's third application. [fn. 1] This third application was filed in August of 1955 and the decision of the Department sustaining appellant's protest thereto was made on November 25th of that year. The present application for a license was filed in October of 1956.
The only question involved on this appeal as stated by appellant is as follows: "Does the Doctrine of Res Judicata *665 Apply to the Department of Alcoholic Beverage Control in Its Determinations of Whether or Not to Grant the Issuance of a License to Sell Alcoholic Beverages?" In presenting this question appellant necessarily asserts that the former order of the board estops Von's, by its present application, from again litigating the fact as to whether the granting of a license to it would be contrary to the public welfare and morals. In other words, appellant relies upon the former order as an estoppel and not upon it as a judgment which bars the prosecution of the present application.
[1] "The estoppel of a judgment extends only to the facts in issue as they existed at the time the judgment was rendered, and does not prevent a re-examination of the same questions between the same parties where in the interval the facts have changed or new facts have occurred which may alter the legal rights" of the parties affected by the order. (Hurd v. Albert, 214 Cal. 15 at 26 [3 P.2d 545, 76 A.L.R. 1348]; Lunt v. Boris, 87 Cal. App. 2d 694 at 695 [197 P.2d 568]; California Emp. etc. Com. v. Matcovich, 74 Cal. App. 2d 398 at 404 [168 P.2d 702]; 29 Cal.Jur.2d 230.)
[2] The Department is a constitution-created tribunal with fact finding power and is given the exclusive right to, in its discretion, grant or deny a license to sell intoxicating liquors. (Cal. Const., art. XX, 22.) [3] In acting as a quasi-judicial tribunal the Department may not exercise its discretion arbitrarily but only in accordance with law and its decision as to what is contrary to the public welfare and morals must be based upon sufficient evidence. (Stoumen v. Reilly, 37 Cal. 2d 713 at 717 [234 P.2d 969].)
In the present proceeding before the Department the evidence established that Von's market was opened at the location in question in the latter part of 1955; that prior to that time and in 1949 and 1950 a grocery store at the same site had held a beer and wine license; that Von's premises consist of a large market building situated in a shopping center at the corners of Riverside Drive and Fulton Avenue; that the same shopping center contains a drugstore, department store and off-street parking facilities; that Riverside Drive is a heavily traveled thoroughfare and that the traffic thereon had increased 30 per cent during the year preceding the hearing; that the area near the market is predominately commercial; that the church of which appellant here is pastor is situated across Riverside Drive from the market and that *666 the distance from the church to the market is 210 feet. It was erected in 1950; that there is a retail liquor store situated on Riverside Drive, 475 feet from the church; that during the year immediately preceding the hearing upon the present application the people patronizing the market had increased in number by approximately 3,000 per week; that in the same year a medical building which contained professional offices and a pharmacy and a building housing a hardware store and laundry had been erected; that the church has a congregation of approximately 700 and conducts an elementary school which has an enrollment of 130 students ranging in age from 5 to 12 years of age.
Appellant does not contend that these facts were not sufficient to uphold the finding of the Department that the issuance of the license would not be "contrary to public welfare and morals." Its sole contention is that the Department having in November of 1955 made a contrary finding, that finding was conclusive of the fact that the granting of the license was contrary to public welfare and morals and that the Department was precluded thereby from making a finding to the contrary and granting a license to Von's.
[4] The question as to what is or is not contrary to the public welfare and morals is not a static one and the resolution of that question may change with the lapse of time or a change in physical conditions. We are not called upon to decide whether the Department's former order would have constituted an estoppel to again litigate the question as to whether the granting of a license would or would not be contrary to the public welfare and morals had there been no change in circumstances, for even assuming that res adjudicata would have applied to those circumstances, there was a change here and it was not therefore applicable. [fn. 2] The traffic on the boulevard had increased by 30 per cent, the number of customers patronizing the market had increased by approximately 18 per cent and at least three new commercial enterprises had commenced operation in that neighborhood. In exercising its discretion as to whether a license should be granted upon the present *667 application of Von's, it was for the Department to determine whether the changes we have noted affected the ultimate fact as to whether the granting of the license would be contrary to the public welfare and morals and justify a different conclusion from the one it had theretofore reached as to the issuance of a license to Von's at the subject property.
[5] In reaching its conclusion and exercising its discretion it was the duty of the Department to take into consideration the welfare of the public as a whole and to exercise its discretion in the light of the conditions that existed at the time of the hearing as those conditions were shown by the evidence. [6] It is not the province of a court reviewing the proceedings of the Department to substitute its judgment for that of the Department as to whether a license should issue or as to whether there had been, since the prior hearing and order, a change in circumstances which justifies a change in decision, providing that there was substantial evidence of the change. To hold otherwise would be to vest in the court the discretion which by the Constitution is vested exclusively in the Department.
[7] Appellant directs our attention, however, to the fact that in its written opinion affirming the order of the Department, the Alcoholic Beverage Control Appeals Board stated that the changes which were made were not substantial and placed its affirmance of the Department's findings and decision upon the basis that res adjudicata did not apply but that the Department had the right to reverse its former rulings without change in conditions.
The statement made in the opinion of the appeals board was not a finding of fact for that board is without power to make findings of fact. Its power is limited to determining the following questions: (a) whether the Department had proceeded without or in excess of its jurisdiction, (b) whether the Department had proceeded in the manner required by law, (c) whether its decision is supported by the findings, *668 (d) whether the findings are supported by substantial evidence in the light of the whole record and (e) whether there was relevant evidence which in the exercise of reasonable diligence could not have been produced or which was improperly excluded at the hearing before the Department. (Bus. & Prof. Code, 23084; Const., art XX, 22.)
While in his notice of appeal to the appeals board appellant stated several grounds for the appeal, they in reality only presented the question as to whether the findings made by the Department supported its decision. Appellant, by his notice of appeal to the appeals board, did not assert as a ground of reversal that the findings were not supported by substantial evidence but only that the findings were capricious and arbitrary because contrary to the former decision of the board.
By its findings the Department found all of the changes and conditions which we have heretofore noted other than the increase in the patronage of the market and further found that it was not true that the issuance of the license to Von's would adversely affect the functions of the church or school or create any appreciable hazard to the morals or welfare of the children in the church school and that "in view of the nature of the business sought to be licensed and the increasingly commercial character of the neighborhood ... issuance of the license would not be contrary to public welfare or morals." (Emphasis added.) Upon the appeal to it the appeals board had but two alternatives: it might affirm the order of the Department or if it found that the Department's findings did not support its decision it might reverse and remand the matter to the Department for further consideration. (Bus. & Prof. Code, 23085.) The board did affirm the decision of the Department and thus ruled that the findings did support the Department's decision and order. The fact that in arriving at its decision affirming the decision of the Department the appeals board erroneously held (if its holding was erroneous) that res adjudicata was under no circumstance applicable in a proceeding such as the one in question here, in nowise affected the validity of its decision, for as we have pointed out, there was a change in conditions and it was for the Department to determine whether those changes were of such a character as to justify the conclusion that the granting of a license would not be contrary to public welfare and morals. The decision of the appeals board was therefore correct and it matters not that the reasons given by it were erroneous. (Sears v. Rule, 27 Cal. 2d 131, 140 [163 P.2d 443]; *669 Difani v. Riverside County Oil Co., 201 Cal. 210, 217 [256 P. 210]; Lincoln v. Superior Court, 22 Cal. 2d 304, 315 [139 P.2d 13].)
To sum up, it is our opinion that the evidence before the Department supported its findings of fact, that its findings of fact supported its decision, and that while it was within the province of the appeals board to reverse the Department's decision and remand the matter to the Department, it having affirmed and its affirmance being supported by the record, the lower court was correct in denying the writ prayed for by appellant.
The judgment is affirmed.
Shinn, P. J., and Wood (Parker), J., concurred.
NOTES
[fn. *] *. Assigned by Chairman of Judicial Council.
[fn. 1] 1. The findings of fact and decision of the Department in sustaining the protest to Von's former applications were not offered in evidence at the protest to the fourth application and were not a part of the printed record before the superior court.
[fn. 2] 2. Counsel for the respondents, by their briefs, earnestly contend that a decision of an administrative body cannot operate as a collateral estoppel under the doctrine of res adjudicata. They rely upon Altadena etc. Church v. State Board of Equalization, 109 Cal. App. 2d 99 [240 P.2d 322] and Steiger v. Board of Supervisors, 143 Cal. App. 2d 352 at 358 [300 P.2d 210] to uphold their contention. While some of the language used by the court in the cases just cited is so broad as to preclude a decision of a constitutionally constituted administrative board operating as a collateral estoppel under the doctrine of res adjudicata, we do not believe that when those cases are read in the light of the question before the court they may be so understood. It is unquestionable that the orders of an administrative body such as the Department have in proper cases the same effect and finality as judgments of a court. (People v. Lang Transportation Co., 217 Cal. 166 at 170 [17 P.2d 721]; People v. Los Angeles, 133 Cal. 338 at 342 [65 P. 749]; Mogan v. Board of Police Commrs., 100 Cal. App. 270 at 273 [279 P. 1080]; see also Davis' Administrative Law Treatise, vol. 2, pp. 545-628; 1942 Wis. L. Rev., pp. 1-42 and pp. 198-235; 40 Ill. L. Rev., pp. 56-83; 27 Mich. L. Rev., pp. 677-683; 46 Yale L. Rev., p. 1320 et seq.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1377105/ | 118 S.E.2d 17 (1961)
254 N.C. 90
In the Matter of the WILL of Sara B. COX. Deceased.
No. 607.
Supreme Court of North Carolina.
February 3, 1961.
Proctor & Proctor, Powell & Powell, D. Jack Hooks, Whiteville, D. F. McGougan, Jr., Tabor City, for propounder-appellees.
J. B. Eure, Whiteville, Wilkinson & Ward, Rodman & Rodman, Washington, Jordan, Wright, Henson & Nichols, William D. Caffrey, Greensboro, for caveator-appellants.
DENNY, Justice.
A caveat is an in rem proceeding. G.S. § 31-32. It is an attack upon the validity of the instrument purporting to be a will. The will and not the property devised is the res involved in the litigation. Whitehurst v. Abbott, 225 N.C. 1, 33 S.E.2d 129, 159 A.L.R. 380.
In Mills v. Mills, 195 N.C. 595, 143 S.E. 130, 132, the will involved was probated in common form and thereafter caveated and the issue of devisavit vel non was answered in the affirmative. The court entered judgment ordering the will admitted to probate in solemn form. In this case, citation was issued to the three executors of the will, who were legatees thereunder, but no *19 citation or notice whatsoever was given to the heirs at law of the testatrix. This Court said: "It is obvious from the judgment and agreed statement of facts that the heirs at law of testatrix under the authorities were not made parties to the caveat proceedings by citation, nor does it appear that they were cognizant of the proceeding or charged with knowledge that the devisees in the will had taken possession of the property thereunder. Under these circumstances they are not estopped to file a second caveat." Bailey v. McLain, 215 N.C. 150, 1 S.E.2d 372, 120 A.L.R. 1487; In re Will of Brock, 229 N.C. 482, 50 S.E.2d 555.
It was conceded in the Mills case in an agreed statement of facts, that the heirs at law had not been cited and had no actual knowledge of the caveat proceedings. However, in the instant case, the very question attempted to be determined in the court below was whether the caveators herein were parties to or had knowledge of the prior caveat proceedings. It was admitted the original caveat was filed and determined in favor of the propounders of the will.
It seems clear under our decisions that a second caveat was not the proper procedure to raise and determine this question of fact, but the heirs not cited and who had no knowledge of the prior caveat should have made a motion in the original cause to set aside the judgment entered therein as to them, and if successful in having the judgment set aside, then to file a second caveat to set aside the will upon the grounds alleged in their caveat.
In Freeman on Judgments, 5th Ed., Vol. I, page 418, et seq., it is said: "Assuming the power exists, the grounds upon which a decree probating a will may be set aside, except in so far as they may be affected by statute, or the nature of the case, are in general the same as those available against other judgments. * * *
"The proceedings for relief must be taken in the court in which the will was probated * * *. The procedure employed in this class of cases follows the rules governing judgments generally in similar cases, except as it may be affected by some special statutory provision, both as to the nature of the application and the time within which it should be made. * * * (N)or should the application be made by filing a caveat, but is ordinarily by motion or its equivalent rather than by petition, though as to this matter necessary showing may be proper. * * *"
In the case of Groome v. Leatherwood, 240 N.C. 573, 83 S.E.2d 536, 539, this Court said: "Ordinarily, the decrees of probate courts, when acting within the scope of their powers, will be considered and dealt with as orders and decrees of courts of general jurisdiction, and where such courts had jurisdiction over the subject matter of the inquiry, such orders and decrees are not subject to collateral attack. (Citations omitted)"
In Coker v. Coker, 224 N.C. 450, 31 S.E.2d 364, 365, the testator died, leaving a paper writing purporting to be a will, in which he devised all his property to his wife. He had no children. Plaintiffs, collateral heirs at law, filed a caveat. It appears that the caveators offered no evidence and that it was agreed that the issue of devisavit vel non should be submitted to the jury without objection by the caveators. The plaintiffs instituted a second action, alleging that they never authorized the submission of the issue of devisavit vel non to the jury without presenting their evidence. In the second cause of action they undertook to assert two separate alleged causes of action: (1) in ejectment, and (2) to set aside the verdict and judgment in the caveat proceeding. When the matter came on for hearing, the trial judge treated the second cause of action as a motion in the cause and, upon the facts presented, refused to set aside the judgment in the former caveat proceedings. On appeal to this Court, Barnhill, J., later C. J., speaking for the Court, said: "Plaintiffs, in their second cause of action, seek to attack the former judgment by independent *20 action rather than by a motion in the original cause. On the facts alleged their remedy, if any, is by motion in the cause. (Citations omitted) The court below, rather than dismiss, treated it as such. This was permissible. Abernethy Land & Finance Co. v. First Security Trust Co., 213 N.C. 369, 196 S.E. 340, and cases cited.
"Being a motion to set aside the former judgment, the evidence raised questions of fact for the court to decide and not issues of fact for the jury. Cleve v. Adams, 222 N.C. 211, 22 S.E.2d 567."
In Cleve v. Adams, supra, this Court said: "The motion made in the original action to set aside the judgment * * * presented questions of fact and not issues of fact. It was for the judge to hear the evidence, find the facts and render judgment thereon. City of Monroe v. Niven, 221 N.C. 362, 20 S.E.2d 311, and cases cited." [222 N.C. 211, 22 S.E.2d 568].
The court below might have treated the prayer to set aside the probate in common and solemn form as a motion in the cause and proceeded to dispose of it as such, but it did not do so. Simmons v. Defiance Box Co., 148 N.C. 344, 62 S.E. 435; Craddock v. Brinkley, 177 N.C. 125, 98 S.E. 280; Fowler v. Fowler, 190 N.C. 536, 130 S.E. 315; Menzel v. Menzel (Williams v. Blades), 250 N.C. 649, 110 S.E.2d 333. In this there was error.
Since the probate of a will in solemn form concludes all heirs and distributees who were cited, or who had knowledge of the proceeding and an opportunity to be heard therein, in our opinion, all the next of kin of Sara B. Cox who participated in the original caveat proceeding and the compromise referred to in connection therewith, should be bound thereby, and the judgment in such proceeding will remain binding as to them. If it should be established that the caveators herein, to wit, Winifred B. Fuller and Bernard J. Baggett, were not cited or given any notice whatsoever with respect to the original caveat proceeding and had no knowledge thereof, then as to them the judgment should be set aside and they should have an opportunity to set the will aside on the grounds alleged in the second caveat.
In In re Sanderson's Estate, 157 Misc. 473, 283 N.Y.S. 781, 783, it is said: "`Every decree of a surrogate's court is conclusive as to all matters embraced therein against every person of whom jurisdiction was obtained.' (Citations omitted)
"Upon the opening of a decree in a proceeding for reprobate, therefore, the only persons, who may avail themselves of the added opportunity to be heard, are those who were not cited in the original proceeding and who are, therefore, not bound by the adjudication made therein. (Citations omitted) The proceeding for probate is one in rem. (Citations omitted) As to all parties to such a proceeding in rem, the adjudication made is conclusive and binding, except upon appeal. * * *
"* * * (T)he order * * * reopening the decree in respect to the unserved parties meant exactly what it said, namely, that it was `without prejudice to any of the proceedings heretofore had herein,' and under such order no rights were given to nor could be acquired by, a party to the previous proceeding who was bound by that adjudication on ordinary principles of res adjudicata." See also Security Trust & Savings Bank v. Superior Court, 21 Cal. App. 2d 551, 69 P.2d 921; Lewark v. Dodd, 288 Ill. 80, 123 N.E. 260; Samson v. Samson, 64 Cal. 327, 30 P. 979; contra, Byrd v. Riggs, 211 Ga. 493, 86 S.E.2d 285.
The verdict and judgment entered below are set aside and the cause remanded for further proceeding in accord with this opinion.
Error and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1377120/ | 118 S.E.2d 313 (1961)
Daisy STAMPER, Administratrix of the Estate of Preston Park Stamper,
v.
Lillian Deremo BANNISTER.
No. 12021.
Supreme Court of Appeals of West Virginia.
Submitted January 17, 1961.
Decided February 14, 1961.
*314 William F. Carroll, E. Franklin Pauley, Charleston, Thomas E. Myles, Fayetteville, for plaintiff in error.
Mahan, White, Higgins & Graney, Fayetteville, for defendant in error.
BERRY, Judge.
The plaintiff, Daisy Stamper, Administratrix of the Estate of Preston Park Stamper, deceased, instituted an action for the wrongful death of her husband, hereinafter referred to as plaintiff's decedent, against the defendant, Lillian Deremo Bannister, in the Circuit Court of Fayette County, and at the conclusion of plaintiff's evidence in the trial of the case in said Court, a verdict was directed in favor of defendant and judgment entered on the verdict on August 17, 1959. Upon application to this Court, a writ of error and supersedeas was granted to said judgment on March 1, 1960.
The action arose out of an automobile accident which occurred on U. S. Route 60 in Kanawha County, West Virginia, near the Town of Malden on May 6, 1958. The plaintiff's decedent resided in the George's Creek community which is near Malden, but on the opposite side of U. S. Route 60.
On the day of the accident, plaintiff's decedent left his home on George's Creek around 7:30 a. m. to go to Malden to get the mail. In order to get to the post office in Malden it was necessary for him to cross U. S. Route 60. There was an under-pass with a sidewalk near the scene of the accident, and also a well worn path which crossed over the highway which was used by persons going to and from George's Creek and Malden. It was apparently more convenient to use the path going over the highway than to use the underpass; consequently, the path was frequently used by persons going to and from Malden and George's Creek. The highway, U. S. Route 60, on which this accident occurred, is heavily traveled. It is a four lane highway, with two lanes for westbound traffic going toward Charleston and two lanes for eastbound traffic traveling toward the Town of Belle. There is a 4 foot island between these two lanes.
At the time the accident occurred, about 7:45 a. m. on May 6, 1958, the defendant was driving her automobile in the west-bound traffic lane in the direction of Charleston, and was followed by cars driven by two witnesses who were also proceeding toward Charleston. There was a mist or haze at this time, although it was not raining and the highway was not wet.
The underpass at Malden and the Malden intersection into Route 60 are near the point where the path, upon which the plaintiff's decedent was walking, entered the highway. From this point to the top of a hill, in an easterly direction from the intersection and path, is a distance of about 800 feet, with an unobscured view, and there is a double white line marked on the highway between the two lanes for westbound traffic. Not only was there a clear view down the highway from the top of the hill to the place of the accident, but a person traveling on the highway toward Charleston in a westerly direction could see for several feet off to the right of the highway at the intersection and to where the path approached the highway. *315 None of the plaintiff's witnesses testified that they saw the plaintiff's decedent enter the highway. The defendant did not testify in this case. The plaintiff's witnesses were driving automobiles behind defendant's car, and, of course, did not have the clear view ahead that defendant had. According to plaintiff's witnesses the defendant was driving about 40 miles per hour at the time of the accident and was not exceeding the speed limit. These witnesses testified that the defendant drove her automobile gradually to the left about 100 feet from the point of impact and crossed over the double white lines and into the westbound passing lane, striking the plaintiff's decedent when he was about in the middle of the inside passing lane. The defendant's brake lights were noticed by the witnesses following when she was crossing over the double white lines; and for a split second before the plaintiff's decedent was struck, he was observed facing defendant's vehicle in the center of the left hand, or inside, lane. The westbound traffic lanes were about 25 feet in width from the island to the berm and the eastbound traffic lanes were about 22 feet in width from the island at the place where the accident occurred. When plaintiff's decedent was struck he was thrown up in the air across the 4 foot island and into the middle of the eastbound traffic lanes, or for a distance of approximately 20 feet. He received serious injuries and died as a result thereof two days after the accident.
Plaintiff's decedent was unemployed at the time of the accident and had been for about one year. He had been crippled previously by virtue of the loss of half of his left foot. An attempt was made by the plaintiff to have the medical, hospital and funeral expenses admitted as elements of damage, but the trial court ruled that they were not admissible as such.
The plaintiff's decedent had as much right under the law to use or cross the highway as the defendant had in driving her vehicle over said highway. Their rights were equal and mutual and each should have observed the rights of the other. Deputy v. Kimmell, 73 W.Va. 595, 80 S.E. 919, 51 L.R.A.,N.S., 989, Ann. Cas.1916E, 656. The plaintiff's decedent, according to the record of this case, had approached and entered U. S. Route 60 from the north side, or to the defendant's right, and had walked approximately three-quarters of the way across the westbound traffic lanes of said highway to the center of the left or passing lane, when he was struck. In other words, he had walked a distance of about 19 feet into and across the westbound traffic lanes of the highway at this time. This would have required several seconds in any event, and if the defendant's automobile was traveling at a speed of 40 miles per hour, as indicated by the record, she would have been several hundred feet away from the plaintiff's decedent when he first walked upon the highway. There was no vehicle or other obstruction in front of the defendant, and even with a mist of haze being present, she should have observed the plaintiff's decedent upon the highway several seconds before he was struck. There is no evidence that the mist or haze was heavy, but if it was and reduced the defendant's vision, she had the duty to reduce her speed accordingly. Thus, by the exercise of ordinary care, she might have been able to control her car in such a manner so as to have avoided striking plaintiff's decedent.
One of the witnesses who was traveling behind defendant's car stated that he saw her gradually drive to the left and cross the double white lines before striking the plaintiff's decedent. Had the defendant continued to drive in the right lane or driving lane, instead of crossing the double white lines into the passing lane, the accident might have been prevented. Then, too, the plaintiff's witness testified that for a split second before plaintiff's decedent was struck, he saw him facing the defendant's car, and if the plaintiff's decedent had been in such a position for a sufficient length of time, it may have been possible for the defendant to turn her car back to the right *316 and for her to have avoided striking plaintiff's decedent. Even if the plaintiff's decedent was guilty of negligence by placing himself in a situation of imminent danger, if the defendant, by the exercise of reasonable care could have avoided striking him, the negligence of plaintiff's decedent would not bar recovery in this case. Deputy v. Kimmell, supra; Smith v. Gould, 110 W. Va. 579, 159 S.E. 53, 92 A.L.R. 28; Meyn v. Dulaney-Miller Auto Co., 118 W.Va. 545, 191 S.E. 558.
The law in this state is that if the way appears clear to a pedestrian, he may proceed to cross a highway, and whether or not he is guilty of negligence in so doing is generally a question of fact for jury determination. Ritter v. Hicks, 102 W. Va. 541, 135 S.E. 601, 50 A.L.R. 1505; Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410; Skaff v. Dodd, 130 W.Va. 540, 44 S.E.2d 621.
It is interesting to note that an examination of cases decided by this Court involving the striking of a pedestrian upon a street or highway by a motor driven vehicle discloses that apparently it is significant to consider the position of the pedestrian upon the street or highway at the time of the accident. This was first indicated by Judge Browning in the case of Bower v. Brannon, 141 W.Va. 435, 90 S.E.2d 342, wherein cases relative to this situation were collected. It was stated therein that although the place of the accident was not conclusive, it was important by reason of the decisions of this Court and other courts. Those collected cases indicated that the cases where the evidence of contributory negligence barring recovery was held a matter of law for the court were usually cases in which the pedestrian was struck at or near the edge of the street or highway from which he had started to cross to the other side, and that in the cases where the pedestrian was struck at, or beyond the center of the highway, the question of contributory negligence is a matter for jury determination. See the Bower case for the collected cases with regard to this matter.
Although the defendant crossed the double white lines, which, under the motor vehicle laws of this state, indicate "no passing" zones, and struck the plaintiff's decedent in the passing lane, the defendant was not attempting to pass another vehicle at the time, the situation for which the statute was intended; therefore the question of negligence on the part of the defendant for crossing the double white lines and driving her vehicle into the left lane, or passing lane, would be purely, under the facts of this case, a question for jury determination, to be considered by the jury along with the fact that it was daylight at the time of the accident, and that there were no objects to obstruct the defendant's view, and that the plaintiff's decedent was three-quarters of the way across the westbound traffic lanes when he was struck by the defendant's automobile. Beane v. Keyser, 103 W.Va. 248, 137 S.E. 898; Attelli v. Laird, 106 W.Va. 717, 146 S.E. 882; Liston v. Miller, 113 W.Va. 730, 169 S.E. 398; Walker v. Bedwinek, 114 W.Va. 100, 170 S.E. 908; Cline v. Christie, 117 W.Va. 192, 184 S.E. 854; Jacobson v. Hamill, 120 W.Va. 491, 199 S.E. 593; Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410; Bower v. Brannon, 141 W.Va. 435, 90 S.E.2d 342; Walker v. Robertson, 141 W.Va. 563, 91 S.E.2d 468.
If the defendant failed to see the plaintiff's decedent on the highway and without justification struck him, or saw him and could have avoided striking him, she would be guilty of negligence, which would warrant recovery of damages by the plaintiff. See Smith v. Gould, 110 W.Va. 579, 159 S.E. 53, 92 A.L.R. 28; Cline v. Christie, 117 W.Va. 192, 184 S.E. 854 and Walker v. Robertson, 141 W.Va. 563, 91 S.E.2d 468.
In dealing with cases similar to the one at bar, this Court said in the case of Cline v. Christie, supra, 117 W.Va. at page 195, 184 S.E. at page 855, that: "It is well established that the operator of a motor vehicle is bound to anticipate the presence *317 of pedestrians on the highway and has no superior rights over them because of the character of the vehicle which he is operating. And it is incumbent upon him to maintain control of his automobile at all times, and to use reasonable care and caution under the circumstances and conditions of the particular time."
We are of the opinion, from the facts in this case and from authorities applicable thereto, that the question of negligence on the part of the defendant and the question of contributory negligence on the part of plaintiff's decedent are questions to be determined by a jury. It was therefore error for the trial court to find as a matter of law that the defendant was not guilty of negligence, or that the plaintiff's decedent was guilty of contributory negligence as a matter of law, and to direct a verdict in favor of the defendant at the conclusion of plaintiff's evidence.
Inasmuch as this case will perhaps be retried, it is deemed necessary to answer the question raised as to whether or not medical, hospital and funeral expenses are proper elements of damage in wrongful death actions.
Although some courts have held otherwise, the weight of authority in this country is that such expenses are admissible in evidence as proper elements of damage in wrongful death actions if the distributee or distributees sustain a loss as a result thereof and the amounts charged are reasonable. 25 C.J.S. Death § 108; 94 A.L.R. 441. It is true that any money received by the distributee or distributees in a wrongful death action is not subject to any debts of the deceased, but if the distributee or distributees will suffer or have sustained a loss thereby, such as where they are liable for or have paid such expenses, or where the estate is diminished by the payment of same and their distribution therefrom has been accordingly diminished, such items are admissible as elements of damage. However, the burden of proof by a preponderance of the evidence, that such loss has been, or will be, sustained, rests upon the plaintiff. Jutila v. Frye, 9 Cir., 8 F.2d 608; Archambeault v. Draper, 2 Cir., 101 F. Supp. 1004; Killion v. Dinklage, 121 Neb. 322, 236 N.W. 757; Wilt v. Moody, Mo., 254 S.W.2d 15; Boroughs v. Oliver, 226 Miss. 609, 85 So. 2d 191; Andrus v. White, 236 La. 28, 106 So. 2d 705; McEntyre v. Jones, 128 Colo. 461, 263 P.2d 313; Robison v. Leigh, 153 Cal. App. 2d 730, 315 P.2d 42.
It has been held in both Virginia and West Virginia that not only is such pecuniary loss admissible as an element of damage, but that grief and sorrow of the beneficiaries, as well as loss of earnings of the deceased, are proper elements of damage. Wigal v. City of Parkersburg, 74 W.Va. 25, 81 S.E. 554, 52 L.R.A.,N.S., 465; Morris v. Baltimore & Ohio Railroad Co., 107 W.Va. 97, 147 S.E. 547; Matthews v. Hicks, 197 Va. 112, 87 S.E.2d 629.
The West Virginia case of Wigal v. City of Parkersburg, supra, was decided before the West Virginia statute, Code, 55-7-6, was amended in 1955. However, the part of the statute involved in the Wigal case remains in the same language as it was when the Wigal case was decided in 1914, at which time it was held that such elements of damage were admissible in evidence in wrongful death actions under the statute, Code, 55-7-6, which reads: "In every such action the jury may give such damages as they shall deem fair and just, not exceeding ten thousand dollars." The amendment in 1955 provided that in cases where pecuniary loss is sustained by the distributee or distributees in an amount exceeding ten thousand dollars, and if proved by a preponderance of the evidence, the jury could give such damages for such pecuniary loss not exceeding the total of twenty thousand dollars for all damages recoverable in such actions.
It is therefore clear that, under the law pertaining to wrongful death actions in this state, and the decisions of this Court relative thereto, medical, hospital and *318 funeral expenses are proper elements of damage in wrongful death actions, and admissible in evidence, when it is shown by such evidence that the charges are reasonable and the distributee or distributees have sustained a loss as a result thereof.
For the reasons set out herein, the judgment of the Circuit Court of Fayette County is reversed, the verdict is set aside and a new trial is awarded.
Judgment reversed; verdict set aside; new trial awarded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1377393/ | 542 S.E.2d 780 (2001)
35 Va. App. 19
Diation Lamonte LANGHORNE, s/k/a Diatiation Langhorne
v.
COMMONWEALTH of Virginia.
Record No. 2124-99-2.
Court of Appeals of Virginia, Richmond.
March 6, 2001.
Shanon S. Echols (Law Offices of J. Benjamin Dick, on brief), Charlottesville, for appellant.
Michael T. Judge, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.
Present: HUMPHREYS and CLEMENTS, JJ., and COLEMAN, Senior Judge.
HUMPHREYS, Judge.
Diation Lamonte Langhorne appeals an order of the Circuit Court of the County of Fluvanna finding that he violated the terms of his probationary sentence. For the reasons that follow, we reverse the court's order.
I. Background
On April 21, 1995, a petition was issued charging Langhorne with malicious wounding, in violation of Code § 18.2-51. Langhorne was born on August 27, 1977. Thus, he was a juvenile at the time of the offense, which occurred on April 19, 1995. The petition listed the address for Ruth Langhorne, Langhorne's mother, but cited the address for Richard Langhorne, Langhorne's father, as "unknown."
*781 On April 25, 1995, Langhorne appeared before the juvenile and domestic relations district court for a preliminary intake/detention hearing. Langhorne's mother was not present during the hearing. However, the record of the proceedings states that Mrs. Langhorne was notified of the April 25, 1995 hearing "on 4-25-.95 at 7:00 a.m." Langhorne's father was also not present at the hearing. There is no record that Mr. Langhorne was notified of the hearing, nor does the record indicate that either party was issued a summons. During the hearing, counsel was appointed for Langhorne and a detention hearing was scheduled for April 26, 1995.
On April 26, 1995, Mrs. Langhorne was present, along with court-appointed counsel. However, Mr. Langhorne was not present. The record does not disclose the manner in which Mrs. Langhorne was notified of this hearing, nor does the record contain a reference that an attempt was made to notify Mr. Langhorne of the hearing. As a result of the hearing, the judge found probable cause to detain Langhorne, placed him in the "Community Attention Home," and scheduled the adjudicatory hearing for May 17, 1995.
Mrs. Langhorne was subpoenaed for the May 17, 1995 hearing by Langhorne's counsel. There is no record that Mr. Langhorne was notified of the hearing by either party. At the hearing, the Commonwealth served a "Notice of Intent to Transfer" on Langhorne's counsel, notifying Langhorne of its intent to transfer the matter to circuit court. As a result, the judge scheduled a transfer hearing for June 14, 1995. He also released Langhorne from detention and placed him on house arrest.
On June 9, 1995, a probation officer with the Department of Youth & Family Services filed a data sheet for the transfer report. The data sheet listed Mr. Langhorne's address as "unknown." It listed the appropriate contact information for Ruth Langhorne. The record does not reveal that either parent was notified of the June 14, 1995 transfer hearing.
At the transfer hearing, Mrs. Langhorne was present, along with court-appointed counsel and witnesses. Mr. Langhorne was not present. The judge found probable cause, granted the Commonwealth's motion to transfer, and revoked Langhorne's bond.
On June 26, 1995, the grand jury indicted Langhorne for malicious wounding. Thereafter, Langhorne entered into a plea agreement with the Commonwealth wherein he agreed to plead guilty in return for the imposition of a twenty-year sentence that would be suspended if he was admitted into the boot camp incarceration program. In the event he was not admitted to the program, the agreement provided that an active sentence of sixteen months would be imposed. The court accepted this agreement on August 18, 1995. Langhorne was ultimately not accepted into the boot camp incarceration program and was sentenced in accordance with the plea agreement.
On November 17, 1995, the circuit court modified its sentencing order by suspending the balance of any active sentence as of January 18, 1996. This modification was conditioned upon Langhorne's good behavior and agreement to violate none of the penal laws of the Commonwealth of Virginia, or any other jurisdiction, for a period of twenty years from his date of release.
On June 1, 1999, Langhorne's supervising probation officer informed the court that Langhorne had been found guilty, by a federal court, of distribution of cocaine and sentenced to 145 months imprisonment. In response, the circuit court issued a capias and held a probation violation hearing on July 29, 1999. At the hearing, the court found Langhorne guilty of violating the terms and conditions of his probation and revoked the suspended eighteen years and eight months of his earlier sentence. It then resuspended sixteen years of that remaining sentence and ordered that the balance of the sentence run consecutive to his federal sentence. It is this order of the circuit court that Langhorne now appeals.
Longhorne claims that the Commonwealth failed to provide the appropriate notice to Langhorne's mother and father during the juvenile proceedings. Langhorne argues that the Commonwealth's failure renders his original conviction in the circuit court void; thus rendering the subsequent order of the court revoking the suspended sentence also void.
*782 Langhorne admits he did not object to the lack of notice during the juvenile court proceedings, the circuit court proceedings, or the probation violation hearing. However, he claims that because his contention involves a question of "subject matter jurisdiction," it cannot be waived.
II. Analysis
It is axiomatic that "subject matter jurisdiction" is granted only by constitution or statute. Our Supreme Court has stated that "[i]t cannot be waived and any judgment rendered without it is void ab initio. Moreover, lack of subject matter jurisdiction `may be raised at any time, in any manner, before any court, or by the court itself.'" David Moore v. Commonwealth, 259 Va. 431, 437, 527 S.E.2d 406, 409 (2000) (quoting Humphreys v. Commonwealth, 186 Va. 765, 772, 43 S.E.2d 890, 894 (1947)).
The term "subject matter jurisdiction" refers to the power granted to the courts by constitution or statute to hear specified classes of cases. Code § 16.1-241 grants the juvenile court "exclusive original jurisdiction" over "all cases, matters and proceedings" concerning a juvenile who is alleged to have been delinquent. The classes of offenses committed by the defendant are included within this grant of jurisdiction. With certain exceptions that are not pertinent here, Code § 19.2-239 grants the circuit court "exclusive original jurisdiction for the trial of all ... indictments. . . for offenses committed within their respective circuits." Indictments for [malicious wounding] are encompassed within this statutory grant of authority. Thus, the circuit court also had subject matter jurisdiction over the classes of offenses committed by the defendant.
Dennis Moore v. Commonwealth, 259 Va. 405, 409, 527 S.E.2d 415, 417 (2000) (citations omitted).
However, "[a] court's authority [whether juvenile or circuit] to exercise its subject matter jurisdiction over a case may be restricted by a failure to comply with statutory requirements that are mandatory in nature and, thus, are prerequisite to a court's lawful exercise of that jurisdiction." Id. (emphasis added) (citing Jones v. Commonwealth, 213 Va. 425, 428, 192 S.E.2d 775, 777 (1972); Gregory v. Peyton, 208 Va. 157, 159-60, 156 S.E.2d 624, 626 (1967); Peyton v. French, 207 Va. 73, 80, 147 S.E.2d 739, 743 (1966)).
The notice provisions contained in the applicable version of Code § 16.1-263 mandate that "[a]fter a petition has been filed, the court shall direct the issuance of summonses... to the parents ... and such other persons as appear to the court to be proper or necessary parties to the proceedings. . . ."[1] The Supreme Court of Virginia has held that this requirement is "mandatory" and that a juvenile court's failure to adhere to this requirement usurps the court's authority to exercise its subject matter jurisdiction in such instances. See David Moore, 259 Va. at 438-39, 527 S.E.2d at 409-10; Dennis Moore, 259 Va. at 409, 527 S.E.2d at 417. Furthermore, because the offense committed by Langhorne occurred in 1995, Code § 16.1-269.1(E), which provides that "[a]n indictment in the circuit court cures any error or defect in any proceeding held in the juvenile court except with respect to the juvenile's age," does not apply. The Code provision applies only to offenses committed on or after July 1, 1996. See Carter v. Commonwealth, 31 Va.App. 393, 394, 523 S.E.2d 544, 545 (2000).
Accordingly, despite Langhorne's guilty plea, the absence of notice to his father, under these facts, rendered the juvenile court powerless to exercise jurisdiction in order to conduct the transfer hearing.[2]*783 Thus, the circuit court's judgment, and later revocation of probation, was void because it lacked authority to exercise subject matter jurisdiction.[3] For these reasons, we reverse the circuit court's order and remand this case to the trial court for a new trial if the Commonwealth be so advised.
Reversed and remanded.
NOTES
[1] The 1999 amendments to this statute substituted "at least one parent" for "the parents." Code § 16.1-263; 1999 Va. Acts, c. 952.
[2] The record establishes that although Ruth Langhorne was not issued a summons and did not appear at the initial intake hearing, she did appear at all subsequent proceedings, including the June 14, 1995 transfer hearing. Thus, because she had actual notice of the hearings, any departure from the statutory requirement of written notice was a procedural, rather than jurisdictional, defect that "[was] cured or waived by [her] appearance [as a] proper and necessary part[y] and a failure to object to inadequacy of notice." Turner v. Commonwealth, 216 Va. 666, 668, 222 S.E.2d 517, 519 (1976); see also Roach v. Director, Department of Corrections, 258 Va. 537, 545, 522 S.E.2d 869, 872 (1999).
[3] The Attorney General correctly points out that a guilty plea waives all defenses, except lack of an offense being charged. Peyton v. King, 210 Va. 194, 196-97, 169 S.E.2d 569, 571 (1969). However, this doctrine is applicable only in cases that are "free of jurisdictional defect." Id. Such is not the case here. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1915563/ | 167 B.R. 848 (1994)
In re DUVAL COUNTY RANCH COMPANY, et al., Debtors.
Helen Ruth MANGES, Plaintiff,
v.
Morris ATLAS, Defendant.
Bankruptcy No. 89-01286-C-11. Adv. Nos. 93-2118-C, 93-2087.
United States Bankruptcy Court, S.D. Texas, Corpus Christi Division.
January 25, 1994.
*849 Steven Peirce, McCamish & Martin, San Antonio, TX, Colin Kelly Kaufman, Corpus Christi, TX, for Manges Liquidating Trust.
C.M. Zaffirini, Zaffirini, Castillo & Pellegrin, Laredo, TX, for Helen Ruth Manges.
Evelyn H. Biery, Fulbright & Jaworski, San Antonio, TX, H. Ronald Welsh, Vinson & Elkins, Houston, TX, for Morris Atlas.
ORDER DENYING MOTION FOR MANDATORY ABSTENTION AND REMAND ALTERNATIVELY, FOR DISCRETIONARY ABSTENTION AND REMAND
RICHARD S. SCHMIDT, Bankruptcy Judge.
On this day came on for consideration the Motion for Mandatory Abstention and Remand Alternatively, for Discretionary Abstention and Remand (the "Motion"), filed by the Plaintiff, Helen Ruth Manges ("Movant"). Movant seeks mandatory or permissive abstention and remand of this proceeding to the 229th Judicial District of Duval County, Texas, under Cause No. 15,283. Pursuant to 28 U.S.C. §§ 1334, 157, 1452, and the Order of Reference of Bankruptcy Cases and Proceedings Nunc Pro Tunc entered by the United States District Court, this Court has jurisdiction to enter a final order on a motion to abstain or remand. Bankr.R. 5011(b) and 9027(e). The Court, having heard the evidence and arguments of counsel, and having reviewed the pleadings and briefs on file herein, finds that the Motion to Remand should be denied.
Movant filed her Plaintiff's Original Petition in the 229th District Court of Duval County, Texas, on July 9, 1993 (the "State Court Action"). Defendant filed his Notice of Removal of State Court Action on July 23, 1993, within the 90 day time limit set by Bankruptcy Rule 9027(a)(2)(A). Movant filed the Motion now before the Court on August 2, 1993 and a hearing was held on September 3, 1993.
Mandatory abstention does not apply in this case because no action is pending in State Court at this time. 28 U.S.C. § 1409 provides for mandatory abstention for cases related to a bankruptcy case but not arising in a bankruptcy case or under Title 11, if the "action could not have been commenced in a court of the United States absent jurisdiction under this section" and "if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction." Here, however, the State Court action was commenced after the bankruptcy and was removed to this Court. There is no pending State Court case. If this Court were to abstain, nothing would happen because there is only one lawsuit. What Movant really seeks is remand by this Court back to State Court. There is no mandatory removal statute. 28 U.S.C. § 1452(b) allows a court to remand "on any equitable ground." Remand is discretionary.
The issue of jurisdiction over this removed case "is resolved by looking at the complaint at the time the petition for removal is filed." Brown v. Southwestern Bell Telephone Co., 901 F.2d 1250, 1254 (5th Cir.1990). At the time this case was removed, Movant's State Court Action sought recovery of property, cancellation of her conveyance of property, removal of the cloud on her title to property and quieting of title to property. There is no dispute that the real property subject to the State Court Action is the community property of the Movant and Clinton Manges, the debtor, nor is there any dispute that the property was subject to the sole management of Clinton Manges.
A proceeding to determine what constitutes property of the estate pursuant to 11 U.S.C. § 541 is a core proceeding under 28 U.S.C. § 157(b)(2)(A) and (E). In re Molina y Vedia, 150 B.R. 393, 394 (Bankr.S.D.Tex. 1992). Whenever there is a dispute regarding whether property is property of the bankruptcy estate, exclusive jurisdiction is in the bankruptcy court. 28 U.S.C. § 1334(d), Slay Warehousing Co. v. Modern Boats, Inc., 775 F.2d 619, 620 (5th Cir.1985).
At the hearing on the Motion, Movant presented her "stipulation" that she was not seeking the "BSW Royalties". Counsel for Movant made oral representations that the Movant did not seek any property of the estate, but wanted only to pursue a claim against Morris Atlas for breach of fiduciary duty and mental anguish. Movant contends that her mental anguish claim is her separate *850 property and, therefore, this Court has no independent jurisdiction to hear the action. Movant has not, however, sought permission to amend her pleadings to delete her claims against property of the estate or to add claims for mental anguish. Even if it were appropriate for this Court to consider claims not asserted in the Original Petition, remand is still not proper. All of the damage claims that Movant's counsel alludes to involve property of the bankruptcy estate and actions of parties regarding that property. As such, exclusive jurisdiction is in this Court.
Movant's mental anguish claim is based on a commercial contractual transaction. The Court is doubtful whether a mental anguish claim exists for breach of contract and, if so, whether it is separate property. Movant argues that she must first seek an explanation of the disposal of property before she can establish a cause of action for mental anguish. Nevertheless, a determination of the proper disposal of the property is a core proceeding because it involves property of the estate and interpretation of the confirmed plan of reorganization. Other adversary proceedings with similar issues are pending before this Court and remand would subject the parties, this Court and the bankruptcy estate to the risk of inconsistent decisions.
Movant further argues that remand is appropriate because she has demanded a jury trial. The Court finds that Movant has no right to a jury trial in this case because, as wife of Clinton Manges, a debtor, she has gained the benefits of her husband's bankruptcy. Moreover, Movant sought affirmative relief in the Scurlock adversary proceeding pending before this Court regarding the same royalties at issue here. Movant has invoked the equitable jurisdiction of the bankruptcy Court and is not entitled to a jury trial. Langenkamp v. Culp, 498 U.S. 42, 111 S. Ct. 330, 112 L. Ed. 2d 343 (1990); In re Griffin, 143 B.R. 247, 248 (Bankr.D.Idaho 1992). Finally, Movant's petition does not seek money damages but return of property. Accordingly, there is no right to jury trial. Granfinanciera v. Norberg, 492 U.S. 33, 37, 109 S. Ct. 2782, 2787, 106 L. Ed. 2d 26 (1989).
For the foregoing reasons, the Court finds that the Motion should be denied.
It is therefore ORDERED that the Motion for Mandatory Abstention and Remand Alternative, for Discretionary Abstention and Remand is hereby DENIED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1726509/ | 465 So. 2d 482 (1985)
Greg GOANS
v.
STATE.
6 Div. 532.
Court of Criminal Appeals of Alabama.
January 8, 1985.
Rehearing Denied February 12, 1985.
Jerry N. Quick, Trussville, for appellant.
Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.
BOWEN, Presiding Judge.
Greg Goans was indicted for the first degree assault of Timothy Jenkins in violation of Alabama Code 1975, § 13A-6-20(a)(3). Sentence was ten years' imprisonment. Although three issues are raised on appeal, only one deserves our attention.
The defendant contends that the State failed to present a prima facie case of first degree assault because there was no proof of "serious physical injury."
The defendant and Royce Dunn together assaulted Jenkins. It is undisputed that Dunn was the one who actually shot Jenkins with a .22 caliber pistol. Jenkins was shot in his right collarbone. He was treated at a hospital and released the same night. The only testimony concerning the severity of the wound came from the victim himself who testified: "My right collarbone. Pieces of the bullet hit at an angle and bounced out. It left little pieces in there and that is what they took out." Jenkins testified the pain was "not all that bad."
"Serious physical injury" is specifically defined by statute. Alabama Code 1975, § 13A-1-2(9): "Physical injury which creates a substantial risk of death, or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ."
Here, there was no evidence of "serious physical injury" as defined by statute. See Caine v. State, 453 So. 2d 1081, 1082 (Ala. Cr.App.1984). The judgment of the circuit court is reversed and the cause remanded.
REVERSED AND REMANDED.
All Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267282/ | 147 N.J. Super. 17 (1977)
370 A.2d 515
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
NATALIO MIER, DEFENDANT-RESPONDENT.
Superior Court of New Jersey, Appellate Division.
Submitted January 3, 1977.
Decided January 31, 1977.
*18 Before Judges CARTON, KOLE and LARNER.
Mr. Burrell Ives Humphreys, Passaic County Prosecutor, attorney for plaintiff-appellant (Mr. Gary H. Schlyen, Assistant Prosecutor, of counsel and on the brief).
*19 Mr. Stanley C. Van Ness, Public Defender, attorney for defendant-respondent (Ms. Rosemary K. Reavey, Assistant Deputy Public Defender, of counsel and on the brief).
The opinion of the court was delivered by LARNER, J.A.D.
Pursuant to leave granted by us, the State appeals from an order suppressing evidence obtained in a search authorized by a warrant. The issue for determination is whether a search warrant is valid when issued on an affidavit which alleges that the contraband is en route from a foreign country through the mail and has not as yet reached the addressee in New Jersey. Is an anticipatory warrant valid under such circumstances when issued prior to receipt at the destination to be searched?
A subsidiary issue is whether, under the facts presented, the actions of federal authorities and of local police are so unfair as a matter of public policy that the seizure should be declared invalid.
The affidavit underlying the issuance of the warrant made by Detective Zampino of the Passaic Police Department on December 11, 1975 recited in essence the following facts. Information was received by the Passaic police from a named federal narcotics agent that Natalio Mier (defendant), residing at 88 Third Street, Passaic, had a small package addressed to him mailed from Bolivia, South America, containing coca leaves and that the package was at that time in the possession of Postal Inspector Dowling.
Dowling advised Police Officer Snyder that he, Dowling, had received the package on December 10, 1975 by registered mail from a customs officer who had examined it in the normal course of his business at the Port of New York. The contents of the package, consisting of approximately 15 grams of coca leaves, were field-tested and found to have a positive reaction for cocaine.
On the same date Detective Zampino communicated with Public Service Gas & Electric Co. and ascertained that Natalio Mier was listed as the occupant of Apt. # 1 at *20 88 Third Street, Passaic, and paid the bills addressed to him there. The affidavit continued to state that as of that time the suspected contraband was in the possession of Inspector Dowling and awaiting an opportune time for delivery to Mier when the police would confiscate it pursuant to the search warrant.
The warrant was issued by a municipal court judge on December 10, 1975 and executed the very next day by Detective Zampino, who seized the coca leaves which had been delivered five minutes before to defendant by Inspector Dowling posing as a mailman. The contraband seized by the police pursuant to the search warrant consisted of a plastic bag containing the original coca leaves shipped to defendant, in addition to other plastic bags of suspected coca leaves found in various locations in the apartment.
The trial judge suppressed the evidence on the ground that the warrant was invalid because law enforcement authorities, not the defendant, were in possession of the contraband at the time it was issued, and therefore there was no probable cause to justify its issuance. The judge also characterized the entire procedure as "patently unfair."
The question of the validity of an anticipatory warrant is one of first impression in the State of New Jersey,[1] although such a warrant has been sustained in other jurisdictions.
There is no particular constitutional infirmity in the mere fact that a warrant is sought to search for contraband which has not as yet reached the destination described therein. The test of constitutional validity is simply whether the search is reasonable under such circumstances in view of the probable cause that a crime is being committed, *21 as demonstrated by the proofs underlying the issuance of the warrant.
In People v. Glen, 30 N.Y.2d 252, 331 N.Y.S.2d 656, 282 N.E.2d 614 cert. den. (1972) 409 U.S. 849, 93 S.Ct. 58, 34 L.Ed.2d 91 (1972), the Court of Appeals sustained the validity of an anticipatory warrant under factual circumstances strikingly similar to those herein. The analysis of that court is focused upon the reasonable probability that the contraband will reach its destination before execution of the warrant because of the controlled delivery by the authorities. If that is a fair assumption, then there is an adequate showing as a matter of probability that a crime is being committed at the search locale by the individual named in the affidavit when the warrant will be executed. Contrariwise, if the factual complex demonstrates that the warrant will be executed prior to delivery of the contraband, the element of probable cause for the warrant is negated.
In People v. Glen, Judge Breitel noted:
The ultimate answer to the problem is that as long as the evidence creates substantial probability that the seizable property will be on the premises when searched, the warrant should be sustained. To be sure, where there is no present possession the supporting evidence for the prospective warrant must be strong that the particular possession of particular property will occur and that the elements to bring about that possession are in process and will result in the possession at the time and place specified. Otherwise, the hated general writs of assistance of pre-Revolutionary times would be revived, in effect, despite the constitutional limitations. Moreover, the issuing Judge should be satisfied that there is no likelihood that the warrant will be executed prematurely. In the Baker case the fact that the package was under the absolute control of the postal authorities made relatively certain delivery at the time specified in the affidavit. In the Glen case the reliability of the information and the earlier visit by the defendant not only supported the police expectation of delivery and possession but made it imminent and all but inevitable. [30 N.Y.2d at 259, 331 N.Y.S.2d at 661, 282 N.E.2d at 617]
Where the proof of the prior circumstances demonstrates that there is a strong probability that the continuation *22 of the process already initiated by the shipment of the contraband will in the natural course of events result in the consummation of the crime at the time and place anticipated, the issuance of the warrant is legally justified.
California courts have also held that anticipatory warrants involving contraband shipped from foreign countries and whose delivery is controlled by local authorities are valid. Such a conclusion is dictated by the practicalities involved in crime detection, especially in the area of the transitory activities of those engaged in the narcotics traffic.
The opinion in Alvidres v. Superior Court, Ventura Cty., 12 Cal. App.3d 575, 581, 90 Cal. Rptr. 682, 686 (D. Ct. App. 1970), well expresses the practical reasons supporting the issuance of an anticipatory warrant in such cases:
The speed with which law enforcement is often required to act, especially when dealing with the furtive and transitory activities of persons who traffic in narcotics, demands that the courts make every effort to assist law enforcement in complying with the edicts that the courts themselves have issued.
We must ask ourselves whether the objective of the rule is better served by permitting officers under circumstances similar to the case at bar to obtain a warrant in advance of the delivery of the narcotic or by forcing them to go to the scene without a warrant and there make a decision at the risk of being second-guessed by the judiciary if they are successful in recovering evidence or contraband. We believe that achievement of the goals which our high court had in mind in adopting the exclusionary evidence rule is best attained by permitting officers to seek warrants in advance when they can clearly demonstrate that their right to search will exist within a reasonable time in the future. Nowhere in either the federal or state constitutions, nor in the Statutes of California, is there any language which would appear to prohibit the issuance of a warrant to search at a future time.
See also People v. Duncan, 40 Cal. App.3d 940, 115 Cal. Rptr. 699 (D. Ct. App. 1974); People v. Shapiro, 37 Cal. App.3d 1038, 113 Cal. Rptr. 54 (D. Ct. App. 1974); People v. Sloss, 34 Cal. App.3d 74, 109 Cal. Rptr. 583 (D. Ct. App. 1973); People v. Superior Court, Santa Clara Cty. 27 Cal. App.3d 404, 103 Cal. Rptr. 874 (D. Ct. App. 1972).
*23 The Seventh Circuit ruled similarly in United States ex rel. Beal v. Skaff, 418 F.2d 430 (1969), in a case involving an interstate shipment of narcotics where the controlled delivery at its destination was to take place after the issuance of the warrant. See also, United States v. Odland, 502 F.2d 148 (7 Cir.), cert. den. 419 U.S. 1088, 95 S.Ct. 679, 42 L.Ed. 2d 680 (1974); United States v. Feldman, 366 F. Supp. 356 (D. Hawaii 1973).
We hold that an anticipatory warrant is valid under the factual circumstances of this case and that the search and seizure made pursuant to that warrant is reasonable within the purview of the protective guarantees of the Fourth Amendment of the United States Constitution and Article I, par. 7 of the New Jersey Constitution.
We find nothing therein inherently unfair or violative of public policy so as to dictate a contrary conclusion merely because the contraband was in possession of the postal authorities as of the time of the application for the warrant. In fact, the law in this area should be construed to encourage the police to resort to warrants rather than warrantless searches. See United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 744-745, 13 L.Ed.2d 684, 687 (1965); Jones v. United States, 362 U.S. 257, 270, 80 S.Ct. 725, 735-736, 4 L.Ed. 2d 697, 708 (1960).
Defendant further urges that the evidence should be suppressed because the action of the local police and federal officials "smacks of entrapment" or, as described by the trial judge, is "patently unfair." This contention is manifestly without merit.
In this case, as in similar cases, the government, whether federal, state or local, does not initiate the crime. It merely engages in a well-conceived plan to detect those involved in the commission of the crime undertaken by conspiratorial activities of the shipper of the contraband and the receiver. "[E]ntrapment is concerned with the manufacturing of crime by the police and the ensnaring of unwary innocents." State v. Talbot, 71 N.J. 160, 165 (1976). "However, this does *24 not mean that the police may not use artifice to trap the unwary criminal." Id. See also Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Chapman v. United States, 443 F.2d 917 (10 Cir.1971); Martinez v. United States, 373 F.2d 810 (10 Cir.1967); People v. Duncan, supra; People v. Shapiro, supra; People v. Kosoff, 34 Cal. App.3d 920, 110 Cal. Rptr. 391 (D. Ct. App. 1973); State v. Stein, 70 N.J. 369, 391-393 (1976).
In Chapman v. United States, supra, the court stated:
If contraband were simply seized by customs agents and disposed of, then the intended receivers of the illicit goods would go unpunished. The government in cases such as this, does not initiate the crime. It simply monitors the crime until it can identify the participants. We see no merit in appellants' contention that the commission of the offense would have been impossible without the actions of the agents. The offense would still have been committed. Without the actions of government officials the crime would have gone undetected. [443 F.2d at 920]
We find no elements of entrapment or other official misconduct in connection with the police techniques utilized herein which would violate concepts of fundamental fairness so as to taint the fruits of the search.
In view of the foregoing, the order of suppression is reversed.
NOTES
[1] In State v. Smith, 113 N.J. Super. 120 (App. Div.), certif. den. 59 N.J. 293 (1971), upon which case the trial judge and respondent relied, the court raised the question without deciding it, and proceeded to determine the appeal on another ground on an assumption of "the invalidity of the search warrant for purposes of this opinion." (At 128) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266739/ | 165 Cal.App.4th 1011 (2008)
WINFRED D., Plaintiff and Appellant,
v.
MICHELIN NORTH AMERICA, INC., et al., Defendants and Respondents.
No. B195416.
Court of Appeals of California, Second District, Division One.
August 7, 2008.
As modified August 27, 2008.
*1013 Girardi and Keese, David R. Lira, Shahram A. Shayesteh, David N. Bigelow; The Mandell Law Firm, Laurence H. Mandell and Robert J. Mandell for Plaintiff and Appellant.
Yukevich Calfo & Cavanaugh, James J. Yukevich, Thomas Borncamp and Emily Hicks for Defendants and Respondents.
*1014 OPINION
MALLANO, P. J.
Plaintiff was in the business of transporting Asian produce from markets in Los Angeles to several establishments in Las Vegas. He rented a cargo van for that purpose. On August 23, 2004, while transporting produce to Las Vegas, the right rear tire delaminated, causing a vehicle rollover. Plaintiff sustained a severe brain injury.
Plaintiff filed this personal injury action against the designer and the manufacturer of the tire, alleging defects in the right rear tire. Defendants contended that plaintiff caused the accident by overloading the vehicle with produce. At trial, over objection, the trial court permitted defendants to introduce evidence that, while plaintiff was married to his first wife, he had an affair with, and later married, his business partner's wife; he then had two wives; plaintiff falsely told his second wife, before marrying her, that he had divorced his first wife; he eventually divorced his second wife; and he thereafter had an affair with a third woman, with whom he had two children. The trial court reasoned that this evidence was relevant to plaintiff's credibility and the cause of the accident. The jury returned a verdict for defendants,
The questions on appeal are whether the evidence of plaintiff's private life should have been admitted and, if not, whether it prejudiced the case. We conclude that evidence of plaintiff's illicit, intimate conduct was not relevant; to the extent the evidence was relevant, it should have been excluded as unduly prejudicial in response to plaintiff's motion under Evidence Code section 352; and its admission caused a miscarriage of justice. The disputed evidence was so inflammatory it appears reasonably probable that had it been excluded, plaintiff could have obtained a verdict in his favor. We therefore reverse for a new trial.
I
BACKGROUND
The following allegations, facts, and testimony are taken from the pleadings, motions, depositions, and evidence at trial.
On February 3, 2005, plaintiff Winfred D. filed this action against Michelin North America, Inc., and Michelin Americas Research and Development Corporation (collectively Michelin), alleging that Michelin was liable for the delamination of a tire on the vehicle he was driving on August 23, 2004, causing him to lose control of the vehicle and sustain severe injuries, *1015 including head trauma.[1] The complaint alleged causes of action for negligence, strict products liability, and breach of express and implied warrantiesall related to the design, manufacturing, maintenance, marketing, and warranties of the tire. Winfred's wife, Celinia D., whom he married in 1970, alleged a cause of action for loss of consortium. She dismissed her claim before trial. Winfred and Celinia had two sons, one in his late 20's, the other in his early 30's, at the time of the accident.
At the first session of Winfred's deposition, Michelin asked him several questions about his private life, such as: did he get a divorce from Celinia in Mexico in 1983; did he get married to Rosalinda V. in 1984; did he live with Rosalinda for two years in Los Angeles; did he tell Celinia he was married to Rosalinda; was he married to Celinia and Rosalinda at the same time; had he visited a mistress on any of his trips to Las Vegas; and did he father two children by his mistress, Maria P.? These questions were met with objections by Winfred's attorney and instructions not to answer on grounds of relevancy and privacy. Winfred refused to provide answers.
Winfred was also asked, "Who is Maria [P.]?" Without objection, he answered, "I don't recall." After several more questions relating to Maria, all of which were answered, "I don't recall," counsel for Michelin asked, "Sir, did you ever have children with Maria [P.]?" Winfred's attorney objected on the ground of privacy and instructed Winfred not to answer. Winfred followed that advice. Winfred was then asked a series of questions about the identity of any sons he had in Nevada and whether he supported them financially. Based on privacy objections, Winfred did not give any answers.
James Merikangas, M.D., a neuropsychiatrist, testified at his deposition that the accident caused Winfred to: (1) suffer a "demonstrable loss of brain tissue and loss of brain function"; (2) experience "difficulties with his cognition in every sphere"; and (3) have problems "in moving, speaking, thinking, perceiving, having emotions, and controlling his body." From a medical standpoint, the accident made Winfred function "as if he were retarded"; he was "below 98 percent of the population in his intelligence and his general ability to function." Dr. Merikangas stated that Winfred was "incompetent" to give testimony in that "his memory is flawed," and "he has confabulation""he says things that he believes to be true which may not be because of his brain injury." Dr. Merikangas had read Winfred's deposition transcripts and thought Winfred lied when he said he could not remember the name of the woman (Maria) who mothered his illegitimate children. According to Dr. Merikangas, Winfred's answer to that question was "an indication that he has brain damage because someone who wasn't brain damaged *1016 wouldn't have responded the way [Winfred] did." Dr. Merikangas opined that Winfred had made a "bad strategic decision" because of his brain injury.
Tony Feuerman, M.D., a neurosurgeon retained by Winfred as a consultant, noted that Winfred suffered a stroke in 1995 but had made a complete recovery. Dr. Feuerman stated that the 2004 accident fractured Winfred's skull, caused bleeding on the outside of the brain, and made his scalp swell. In general, as the bleeding of the brain increases, a person's cognitive functions, including thinking and memory, deteriorate. Winfred also developed fluid on the brain. His condition worsened, and he required surgery. Two holes were drilled in his skull, one on each side of his head, to release the fluid and relieve the pressure on the brain. In addition, Winfred's brain was bruised in the front and middle lower areas, which may lead to problems with memory, thinking, and speech. As of February 2006, Winfred suffered from encephalomalacia, or loss of brain tissue. His brain had several holes (as distinguished from the two holes drilled in his skull) filled with fluid that previously contained brain tissue. There was also insufficient blood flow to the brain.
Dr. Feuerman administered a test to evaluate Winfred's memory, speech function, and ability to calculate. Winfred's score was "normal" for a person with a fourth grade education; Winfred was a college graduate. During a medical examination, Dr. Feuerman learned that Winfred had a poor attention span and would "drift[] off subject" when answering questions. Winfred also had difficulty naming objects and repeating phrases. Dr. Feuerman concluded that, as of April 17, 2006, Winfred had problems with his memory, thinking, writing, and walking, among other things. With the exception of the difficulty in writing, the other conditions will never improve. Dr. Feuerman was confident that Winfred was not faking his medical problems.
As for Winfred's physical difficulties, Celinia had to help him take a shower, go to the bathroom, and get dressed.
In June 2006, the month before trial, Winfred filed an in limine motion to exclude evidence and argument regarding his "multiple marriages and extramarital affairs." By this time, Celinia had dismissed her loss of consortium claim. The motion asserted that evidence of Winfred's illicit conduct was irrelevant (Evid. Code, §§ 210, 350) and was more prejudicial than probative because it would create a substantial danger of undue prejudice, of confusing the jury, or of misleading the jury (id., § 352; all section references are to the Evidence Code unless otherwise indicated). Michelin filed opposition based on the deposition testimony of Winfred and Dr. Merikangas, arguing that Winfred was using his brain injury as an excuse to make conscious strategic decisions about when to answer a question and when to feign memory loss. *1017 Michelin contended that Winfred's failure to answer questions about his second marriage (to Rosalinda), his subsequent affair (with Maria), and his illegitimate sons tended to disprove that he had memory problems; instead, Michelin argued, it proved he was a liar. In fact, Winfred had not disclosed any of his illicit activities to his Los Angeles family. By order dated July 21, 2006, the trial court denied the motion without a statement of reasons.
Trial began on July 24, 2006. During opening statement, one of Winfred's attorneys, David Lira, described (1) Winfred's businesstransporting "exotic" vegetables and fruits from markets in Los Angeles to restaurants and businesses in Las Vegas; (2) the accident that occurred on August 23, 2004; (3) Winfred's brain injury and cognitive deficits; and (4) the alleged defects in the right rear tire. Lira also talked about his client, saying:
"[Winfred] was raised and educated in the Philippines. . . . [I]n 1969, he received a Bachelor's of Science degree in mechanical engineering from the Mapua Institute of Technology in Manila. A year later he immigrated to the United States, to New Jersey . . . , to work for Chevron. A year later he met Celinia and they were married in New Jersey. Four years later, in 1983, he was given a job transfer by Chevron to Los Angeles, where he has resided ever since.
"In the late 1980's, [Winfred] had an entrepreneurial spirit and decided, you know I'm going to try my hand at starting some businesses. While working for Chevron, . . . he started a sausage factory here in Los Angeles that he operated for several years. He opened a dry food store in Las Vegas. He opened a restaurant in Las Vegas. [Winfred] was living the American Dream, attempting to try his hand at different businesses.
". . . [I]n the mid-1980's, he realized that maybe my business is providing produce to all these businesses in Las Vegas from Los Angeles, because . . . [y]ou are not going to find exotic vegetables from the Orient out there. So he decided he would create a niche market for himself by being the one person who will gladly travel to Las Vegas weekly to deliver this produce. . . .
"Since the 1980's, he has been driving one time, two times weekly to Las Vegas for these trips. . . . He wanted to personally go that often to call upon his clients there. [¶] . . . [¶] The only time he rented a vehicle from Enterprise [Rent-A-Car] was for the purpose of delivering produce from Los Angeles to Las Vegas. That is the sole destination [for] the use of these vans."
Attorney James Yukevich made the opening statement on behalf of Michelin. He began by explaining that Winfred allegedly caused the accident by allowing the vehicle to be overloaded with produce; the tire was not *1018 defective. Yukevich did not finish his opening statement by the end of the day. The next morning, out of the presence of the jury, Yukevich argued to the trial court that, when he resumed, he should be allowed to mention Winfred's extramarital affairs because Lira had "opened the door" to the subject during his initial remarks. Lira argued otherwise. A colloquy between Lira and the trial court ensued:
"The Court: It goes to credibility, among other things. [Y]ou essentially are appealing to the jury: Here's an American who's living the American Dream. He's coming from where? The Philippines?
"Mr. Lira: Yes.
"The Court: He expands his business. It turns out he apparently has several motives in expanding his business, at least as far as Las Vegas. [¶] Isn't the defendant entitled to point that out? [¶] . . . [¶] You are appealing to the emotions of the jury in the first place. . . . Why even mention living the American Dream? That's an appeal to the heart strings, an appeal to sympathy. Help this poor man out. He's come here from abroad, struggling to improve his life.
"Mr. Lira: That was not my intent, Your Honor.
"The Court: Well, that's clearly the implication I took from it. And I think many jurors do, too. So let's let it all come out. I cannot find, on the basis of what I've heard, that the plaintiff is unduly prejudiced by this. It can be explained." (Italics added.)
The jury was brought in. About half way through his remaining statement, Yukevich said: "What happened on the day of the accident? Well, I suppose that it's only fairand I regret really doing this, or telling you this. But yesterday you heard that [Winfred] came from the Philippines. And you heard that he was an engineer there. . . . And you heard that he worked hard. And you heard that he chose Las Vegas as a place to go because he was living the American Dream.
"And we only wish that was the case for [Winfred] because . . . there were other reasons why he went to Las Vegas. And these are the reasons:
"No. 1, he was married to another woman in Las Vegas. He had obtained, or said to this other woman, Rosalinda [V.], that he was divorced, and obtained a Mexican divorce. But in reality, [Winfred] was not divorced. He was married to the woman that's seated in this courtroom. And I'm sorry I have to say this in front of you ma'am. That's one of the reasons.
*1019 "Another one of the reasons is that he has two children from another woman in Las Vegas. And so when you say that [Winfred] was going to Las Vegas to live the American Dream, he was going there in a sense to live the American nightmare.
"And when you hear that [Winfred] was just doing this because he wanted to improve his family, going back and forth to Las Vegas twice a week, staying over the weekend, in fact, for a period of time, he had another wife, he has two other children. He supports them. Unfortunately, [Celinia] found out about this during the course of this case, which I'm sad to hear, sad to say.
"At any rate, for whatever reason, [Winfred] decided Las Vegas was the place to be. [¶] . . . [¶]
"The evidence will show that [Winfred] claims poor memory. [Winfred] said he didn't remember the woman that he married in Las Vegas, until he was shown evidence, and then he remembered. [H]e testified under oath that he didn't remember that he had two kids from another woman in Las Vegas, until he was shown. And [Winfred] wants to forget he forgets."
With opening statements concluded, Winfred testified briefly and then called a medical expert and an expert on tire defects, among other witnesses. Winfred said he could not remember anything about the morning of the accident or how the accident occurred. But he knew that the weight of the loaded produce could not exceed 2,000 pounds. On cross-examination, Yukevich asked Winfred, "[I]s it correct, sir, to say that the more you were able to put in the van to take to Las Vegas, the more money you would make?" Winfred replied in the negative, saying that overloading the van would subject him to a fine of over $300 and, because the accident occurred in August, when the temperature in Las Vegas was "too hot," any extra vegetables would require him to sleep in the van and run the air conditioner all night. Consequently, he said, "[i]t will be a waste to buy. Instead of making money, you will not make money." Winfred stated he had been engaged in the delivery business for 20 years, and he tried to load only 2,000 pounds or less. His customers in Las Vegas placed orders for a specific number of pounds of produce, and he purchased produce in Los Angelesby weightso as not to exceed 2,000 pounds. He depended on the markets in Los Angeles to determine the weight of what was being bought and loaded. Generally, the produce was contained in boxes, which were placed on top of a pallet in the van. The boxes were stacked, leaving about one to two feet of empty space between the produce and the van's ceiling. In response to a question from a juror, the trial court asked, "Things that have happened recently, you have trouble remembering, but things that happened a long time *1020 ago, you can remember those things. Do you agree with that?" Winfred said, "I agree I can remember some, but not every one, Your Honor."
Dr. Feuerman testified as Winfred's medical expert, explaining the history of Winfred's brain injury, his treatment, and the resulting effects on his cognitive abilities, including his memory problems. Dr. Feuerman stated that Winfred was not malingeringnot faking his cognitive deficits.
David Osborne was Winfred's tire expert. Osborne testified that the Michelin tire was defective, in part, because it did not contain a "nylon cap ply," that is, a layer of nylon wrapped around the tire on the top of the two layers of steel cords. In his opinion, the tire would not have failed if Michelin had put a nylon cap ply on it. In addition, the tire had adhesion defects that caused tread separation: The "inner rubber liner" was not properly bonded to the "polyester carcass," and the "lower steel belt" was not properly bonded to the rubber cushion strip that goes between the belt and the polyester carcass. Finally, Osborne did not find any of the telltale signs of a tire that has failed due to overloading the vehicle.
Winfred's eldest son John, who was 34 at the time of trial, testified he worked in his father's transport business from 1986 to 1992, going with him to Las Vegas every other week. John's primary task was loading and unloading the van. At the beginning of that period, Winfred used a van he owned. Later, he started renting vans from Enterprise Rent-A-Car. Winfred purchased the produce by the pound. Either the weight was written on the box or the markets weighed the produce. The merchants in Los Angeles had no incentive to provide "extra poundage" because Winfred would pay only for the number of pounds he ordered. John testified that his father always checked the tire pressure before and after the van was loaded. Winfred also checked the oil level and air-conditioning coolant before each trip and took the van to a mechanic for routine maintenance, such as rotation of the tires. Winfred always made sure he could see through the rear window.
On cross-examination, one of Yukevich's first questions was whether John thought his father was telling the truth about "what was happening in his life at that time." An objection was made, and the trial court told Yukevich to repeat or rephrase the question. The "rephrased" question was whether Winfred had ever said that the van's tires were "bulging out." John answered in the negative. The trial court asked, "Didn't your dad start in 1992 . . . to spend a lot more time in Las Vegas?" John said his father "spent as much time in Las Vegas as he did before." On redirect, John testified that his father's "recollection" of events before the accident "is not good."
Beginning in the summer of 2003, Winfred was assisted by Anthony Smith, who operated a tractor-trailer rig, or "18 wheeler." Smith would pick *1021 up produce in the Los Angeles markets, place it in his truck on Mondays and Thursdays of every week, and meet Winfred on Tuesdays and Fridays at a designated location in Las Vegas. Smith would transport the "excess" produce that Winfred could not carry in his van. The two men did not see one another in Los Angeles. Smith typically transported two, sometimes three, pallets of produce. Each pallet was stacked five to six boxes high and weighed from 1200 to 1500 pounds. When they met in Las Vegas, Winfred's van was empty; he had already delivered the produce he transported. Most of the time, Winfred paid Smith $65 per pallet. The produce in Smith's truck would be transferred to Winfred's van, which could usually hold about one and one-half pallets. Winfred told Smith that his van had a 2,000-pound payload limit. Smith made sure they never put more than 2,000 pounds in the van because he could be liable "if anything went wrong." They would add up the weight of the produce as they loaded the van. The boxes, when stacked in the van, would come to within six inches to one foot of the ceiling. If some of the produce could not be put in the van, Winfred would leave it behind, make his deliveries, and return for it. On the day of the accident, Smith was en route to Las Vegas with a load of produce for Winfred.
According to an accident reconstructionist called by Winfred, when the tire delaminated, the van most likely rolled over two and three-quarters times and perhaps one more time. Winfred was wearing his seat belt during the accident.
For its part, Michelin presented testimony from an engineer, a tire expert, and witnesses who arrived upon the scene of the accident, among others, but did not call a medical expert who had examined Winfred.
Edward Caufield, a professional engineer who holds a doctorate in theoretical and applied mechanics, loaded an exemplar van in several different ways to determine the weight of the produce on the day of the accident. Based in part on the exterior shape of the van after the accident and "load density" tests, Caufield concluded that Winfred had stacked the produce all the way to the ceiling, exceeding the 2,000-pound limit by approximately 1,420 poundsa total of 3,420 pounds of produce. That placed 2,560 poundsthe weight of the produce and the vehicleon the right rear tire. Caufield could not say that this weight, or any particular weight, caused the tire to fail. He testified that the van was carrying its maximum payload when the produce reached halfway toseveral feet belowthe van's ceiling.
During his testimony, Winfred was shown a photograph depicting the way in which Michelin's experts had fully loaded the vanfrom top to bottom and side to side. He was asked if that was the method he used. Winfred said, "No sir," and explained he left more empty space in the van. His son John *1022 was also shown photographs of a van that Michelin's experts had loaded in the same manner. John testified that, when he traveled with his father, he sometimes drove the van, and it was not loaded to that extent. If it had been, he said, the driver could not have seen out the back window, and "you are going to have a lot of squashed food." John saw the interior of his father's loaded van about two months before the accident. It did not resemble the Michelin photograph then either.
Gary Bolden was Michelin's tire expert. He opined that the right rear tire failed because the van was overloaded, basing his opinion in part on a "fracture" that went completely around the tire just above the wheel rim. Bolden also stated that many of the polyester cords in that area had melted at their tips, which meant that the tire had reached an extremely high temperature indicative of overloading. Bolden performed "step load" tests on the same size, type, and model tire as the one on Winfred's van. During the test, a tire with 35,000 miles on it was run on a dynamometer at 70 miles per hour, and the weight on the tire was increased by 300 pounds every hour. The tire "failed" after it had run a total of 303 miles with a load of 4,530 pounds. Bolden testified that these test results were consistent with Caufield's opinion that the actual tire failed at 2,560 pounds of combined weight from the vehicle and the produce. Yet Bolden had no opinion as to the weight on the right rear tire at the time of the accident or the weight that would have caused the tire to fail.
Officer Brandon Vessels, with the California Highway Patrol, was one of the first officers to arrive at the scene. There were boxes of produce, bags of produce, and loose produce around the outside of the van. Officer Vessels described the interior cargo area of the van as filled with produce, floor to ceiling, front to back, and side to side.
One of the tow truck operators testified that, when pulling the van onto a flatbed, the winch made a straining noise, indicating that the van, including the produce left inside, weighed more than 8,000 pounds; the van itself weighed 4,900 pounds, suggesting the produce weighed more than 3,100 pounds. On cross-examination, the operator admitted that the weight of the van and the produce plus any "drag" on the vehicle would affect the sound of the winch; in this instance, drag was created by a bent front right wheel, the delaminated right rear tire, and the failure to put the vehicle in neutral, which left both rear wheels "locked."
After calling its witnesses to the stand, Michelin closed its presentation of evidence with excerpts from Winfred's deposition. Before starting to read from the transcript, Yukevich sought the trial court's permission to add an excerptnot previously approved by the courtconcerning Winfred's financial contributions to his illegitimate sons. Yukevich argued that the proffered *1023 evidence established a motive for Winfred to overload the vehicle, namely, Winfred needed to increase his profits in order to support a second family. Winfred's counsel objected, calling Michelin's argument "despicable" because there was no evidence about the financial condition or expenses of Winfred or the two families; and, in addition, the argument was too attenuated and unduly prejudicial. The trial court responded in this colloquy:
"The Court: [The evidence] does suggest [Winfred] felt an ongoing which a father shouldan ongoing responsibility to support his children.
"[Winfred's counsel]: None of which has any way to prove that he overloaded the van to do it. . . .
"The Court: It's an inference. Mr. Yukevich wants to argue [it is] a reasonable inference from the evidence. There is some evidence that there was some support outgoing, and he felt an ongoing obligation. Therefore, he was attempting to maximize the profits fromthe income from all of his labors. [¶] . . . [¶] I think I am going to have to overrule the objections. It is arguably a motive for loading up the van. He has two families to support."
Winfred's deposition excerpts, as read to the jury, included the following. Winfred did not recall or did not know virtually anything about the loading of the vehicle on the day of the accident, although his habit and custom for 20 years had been not to exceed the 2,000-pound maximum payload. He purchased the produce by the pound at the markets in Los Angeles in accordance with the number of pounds ordered by his customers in Las Vegas. In that way, he kept track of the total weight of all the produce. Yukevich asked Winfred if bulging tires on the van would indicate to him that someone had placed too much produce in the vehicle. Winfred explained that because the tires were small, regardless of whether he was carrying 2,000 pounds of produce or less, they bulged as if the van were overloaded.
Winfred was asked, "Who is Maria [P.]," and he replied, "I do not recall." Three questions later he was asked, "Was she a manager of your store or restaurant," and he answered, "Yes." Winfred went on to say that she began working for him around 1986, and the store and restaurant closed in 1994. He recalled last seeing Maria in 1994. On July 24 and August 20, 2004, Winfred had written checks to Maria but could not remember if he gave them to her in person or sent them to her through someone else. Yukevich asked, "Maria [P.] has testified that she has given birth to two children by you; is that true?" Winfred answered, "Yes." Yukevich then read into the record the full names and birthdates of both childrena son born in 1993 and another in 1994 from their birth certificates. Winfred identified both certificates. Yukevich asked Winfred if he had provided any financial support for the boys. Winfred *1024 said he "always" gave them money, although he could not remember the amount. The money came out of his earnings from the "delivery business to Las Vegas." The checks to Maria in July and August 2004, totaling $1,000, were to buy a computer for the boys.
Moving on to a different subject, Yukevich asked Winfred if he recognized Rosalinda's name. He said, "Yes," but subsequently said, "No," when asked if he remembered marrying her. Seconds later, Winfred testified that he thought his marriage to Rosalinda had ended by annulment, not divorce. Yukevich elicited testimony to the effect that Winfred had an affair with Rosalinda while she was married to his business partner, Roger V. Winfred was shown a marriage certificate bearing his and Rosalinda's names, with a marriage date of December 31, 1984. Winfred said the document did not refresh his memory that he married Rosalinda on that day. He was then shown a divorce complaint filed in Nevada by "Winfred [D.]" against "Rosalinda [D.]" Yukevich asked if the complaint refreshed Winfred's memory that he filed for divorce in 1988. Winfred repeated his belief that his marriage to Rosalinda had ended by annulment, not divorce. He said Rosalinda had come to his store and "ma[d]e a scene," so he told her to seek an annulment. Yukevich concluded Winfred's deposition testimony by referring to portions of the divorce complaint and asking him whether they were true. In response, Winfred repeated that he could not remember if he married Rosalinda on December 31, 1984.
After reading from Winfred's deposition, the defense rested. The various exhibitsmarriage certificate, marriage license, divorce complaint, decree of divorce, and birth certificateswere admitted into evidence.
The parties presented closing arguments. In his closing, Yukevich asserted that if Winfred could "load another 1250, another 2500 pounds into his van," he would make more money. "And it is, in part, reason why the evidence of [Winfred's] having children and a family in Las Vegas is relevant."
Yukevich continued: "Because [Winfred] . . . in his deposition did not tell us the truth when [he] testified, he was asked a variety of questions about why he went to Las Vegas. He was asked a variety of questions about the issue of who . . . Maria [P.] was. First he said he didn't know. Then he said, `She worked in my store.'
"Then after we obtained birth certificates, . . . finally he admitted it. That is the way . . . to consider the testimony in this case.
"[Winfred], God bless him, he had a serious injury. . . . [Winfred] cannot be trusted, at least initially, because he wasn't truthful in his own deposition. He gave testimony under oath which is false and incorrect.
*1025 "And when you give testimony in a lawsuit and you don't tell the truth, the jury has a right to know that. [Am I] saying this because I get any enjoyment out of talking about anybody's personal life? Absolutely not. Absolutely not. And am I doing it dirty [to] the plaintiff? No."
Later in his closing, Yukevich said: "We're going to talk about whether you can believe the testimony that you heard from [Winfred]. And I'm going to tell you that there are a couple of documents, that if you wish to review them, you can. . . . The documents which were marked in evidence, which is the marriage license. And [Winfred], in 1984, . . . remember, that he had a disagreement with his partner, [Roger V.], . . . and in 1984 they dissolved the business.
"Well, you will see from the marriage license that what happened was that [Winfred] married [Roger V.'s] wife in Las Vegas while he was married to [Celinia]. He stated under oath that he had been divorced in June of 1983 in Mexico. And then went on New Year's Eve of 1984 . . . with a woman named Rosalinda [V.], and he married her. And he was married to her in Las Vegas for six years.
"And all of the marriage certificates, the summons, and the complaint for divorcenow, this is all while he was married to his present wife, he married someone else.
"And what you will find when you look at these records is that [Winfred] was capable, in his deposition, of identifying all of the things about where the [sausage] plant was, all of the things about what happened with [Roger V.] He just conveniently forgot that he had married [Roger's] wife. And that's something that you can consider with respect to the credibility of [Winfred]. And he gets up there and says, I remember what happened, 2,000 pounds. You can take a look at his testimony, how it was that he expressed it, the fact that he can't remember things that are harmful [to] him, but he can remember things that are helpful to him. [¶] . . . [¶]
"[Exhibits 598 and 599 have] to do with the two children in Las Vegas which we believe shows that [Winfred] had [an] incentive to load this van as much as he could because all of the money that he earned in this grocery business, that's where the kids and the mom in Vegas got paid from. It's as simple as that."
On August 16, 2006, the jury was instructed and commenced deliberations. On August 18, 2006, the jury returned a special verdict in Michelin's favor voting 12 to zero as to a manufacturing defect, and 11 to one as to a design defect. Judgment was entered accordingly, and notice thereof was served on the parties. Winfred appealed.
*1026 II
DISCUSSION
(1) "No evidence is admissible except relevant evidence." (§ 350.) "Relevant evidence" means "evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (§ 210.) Although proffered evidence may have some relevance, "[t]he [trial] 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." (§ 352.) We review a trial court's evidentiary rulings for an abuse of discretion. (See Red Mountain, LLC v. Fallbrook Public Utility Dist. (2006) 143 Cal.App.4th 333, 358 [48 Cal.Rptr.3d 875]; People v. Geier (2007) 41 Cal.4th 555, 584-585 [61 Cal.Rptr.3d 580, 161 P.3d 104].)
(2) "Ordinarily, evidence of marital infidelity would be inadmissible on grounds that it lacks relevance and amounts to a `smear' upon the [witness's] character" (Smith v. Com. (Ky. 1995) 904 S.W.2d 220, 222), and "its inflammatory nature far outweigh[s] any probative value" (Barnett v. Com. (Ky. 1988) 763 S.W.2d 119, 124; see Alejo Jimenez v. Heyliger (D.P.R. 1992) 792 F.Supp. 910, 919-920; Barnett v. State (Tex.App. 1987) 733 S.W.2d 342, 345; Wood v. State of Alaska (9th Cir. 1992) 957 F.2d 1544, 1545-1546, 1549-1554, modified on another point in U.S. v. Larson (9th Cir. 2007) 495 F.3d 1094, 1100-1101). On the other hand, an extramarital affair may be admissible where it has a connection to a substantive issue and goes to motive. (See Bratcher v. Com. (Ky. 2004) 151 S.W.3d 332, 350.) For example, "`"upon the trial for murder of husband or wife, evidence tending to show illicit relations of the accused with another is admissible to show [motive]. . . ."'" (People v. Houston (2005) 130 Cal.App.4th 279, 307 [29 Cal.Rptr.3d 818], quoting People v. Gosden (1936) 6 Cal.2d 14, 25 [56 P.2d 211].) And where a husband sues for the wrongful death of his wife, evidence of his extramarital affairs is admissible to show "the nature of the personal relationship [with his wife] and thus . . . whether there was any loss of love, companionship, comfort, affection, society, solace, moral support or enjoyment of sexual relations." (Morales v. Superior Court (1979) 99 Cal.App.3d 283, 288 [160 Cal.Rptr. 194].)
*1027 Here, the substantive issue was whether Winfred's vehicular accident was caused by a tire defect as he asserted, or by overloading the van with produce, as Michelin contended. The trial court admitted evidence that Winfred was married to Rosalinda while he was also married to Celinia, he had an extramarital affair with Maria after divorcing Rosalinda, and he had two sons by Maria. The trial court concluded that (1) Winfred's opening statement "opened the door" to this evidence; (2) the evidence was admissible on the issue of Winfred's credibility; (3) the evidence showed that Winfred's brain injury was not as serious as he claimed; and (4) evidence that Winfred had a family in Las Vegas permitted an inference that he overloaded the van in order to make enough money to support two families. We conclude that none of these reasons supported the admission of the disputed evidence, resulting in a miscarriage of justice. We therefore reverse for a new trial.
A. Opening Statement
Consistent with the position of the parties, we assume for purposes of appeal that an opening statement may, in some circumstances, open the door to otherwise inadmissible evidence. Nevertheless, we acknowledge a strong argument may be made that the "open the door" theory of admissibility should not apply to opening statements.
In many federal courts "`a party who raises a subject in an opening statement "opens the door" to [the] admission of evidence on that same subject by the opposing party.'" (U.S. v. Magallanez (10th Cir. 2005) 408 F.3d 672, 678, italics added; accord, U.S. v. Segal (9th Cir. 1988) 852 F.2d 1152, 1155-1156; U.S. v. Chavez (10th Cir. 2000) 229 F.3d 946, 952 [citing cases]; Jones et al., Federal Civil Trials and Evidence (The Rutter Group 2008) ¶ 6:103, p. 6-13 (rev. #1, 2005).)
In contrast, several state courts have held that, because an opening statement is mere argument and has no evidentiary value, it does not open the door to otherwise inadmissible evidence. (See, e.g., State v. Trotter (2001) 262 Neb. 443, 453-455 [632 N.W.2d 325, 335-336]; State v. Anastasia (2003) 356 N.J.Super. 534, 542 [813 A.2d 601, 606]; Cooper v. Com. (2000) 31 Va.App. 643, 650 [525 S.E.2d 72, 75]; State v. Richards (1993) 190 W.Va. 299, 302-303 [438 S.E.2d 331, 334-335].) The state courts have reasoned that "[i]f improper remarks are made by counsel, the remedy lies in a curative instruction to the jury or, if absolutely necessary, a mistrial." (State v. Anastasia, supra, 813 A.2d at p. 606].) The introduction of "actual evidence," not comments by counsel, determines the scope of rebuttal evidence. (See State v. Richards, supra, 438 S.E.2d at p. 335; State v. Trotter, supra, 632 N.W.2d at p. 336.)
*1028 In California, one court has addressed the issue. In Rufo v. Simpson (2001) 86 Cal.App.4th 573 [103 Cal.Rptr.2d 492], the Court of Appeal held that a reference in the defendant's opening statement to his willingness to take lie a detector test did not permit the plaintiff to inquire into that subject where the plaintiff failed to object to the opening statement. The court emphasized that an opening statement is not evidence and that any error had been cured by an admonition to the jury to disregard plaintiff's questions about the lie detector test. (Id. at pp. 600-604; see 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 352, pp. 439-440 ["open the door" argument is a "popular fallacy" and turns on whether evidence has been admitted by adversary that is prejudicial and not curable by objection or motion to strike].)
Winfred's opening statement mentioned the American Dream and described his biographical and business background. In the late 1980's, Winfred started the transport business he was still operating on the day of the accident. The trial judge faulted the opening statement for referring to the American Dream, appealing to the sympathy of the jury, and concealing an additional reason for Winfred's trips to Las Vegasto see his mistress and illegitimate children. The court also commented that the evidence of Winfred's illicit conduct "can be explained."
By definition, the "American Dream" is "an American social ideal that stresses egalitarianism and . . . material prosperity." (Merriam Webster's Collegiate Dict. (10th ed. 1995) p. 37, col. 1; accord, Random House Merriam Webster's College Dict. (1992) p. 44, col. 2.) We fail to see how the use of this termor any other language in the opening statementwas inappropriate or played on the jury's emotions. Counsel simply told the jury what Winfred had done in attempting to achieve material prosperity. From any objective perspective, Winfred was pursuing the American Dream: He was a successful small business owner for 20 years.
Nor do we understand how Winfred's opening statement permitted Michelin to discuss his private reasons for traveling to Las Vegas. The opening statement focused solely on Winfred's business pursuits. He rented the van to transport produce to Las Vegas. Further, he started his transport business in the 1980's, long before his "Las Vegas family" existed. And Michelin's explanation for the accident focused on the business purpose of the tripthe van was allegedly overloaded with producenot on Winfred's desire to visit Maria and the children. The sum and substance of Winfred's opening statementhis pursuit of the American Dream through various business venturesdid not include the same subject on which Michelin sought to introduce evidencehis illicit, intimate conduct. (See U.S. v. Magallanez, supra, 408 F.3d at p. 678; U.S. v. Segal, supra, 852 F.2d at *1029 pp. 1155-1156.) Consequently, the trial court erred by rejecting Winfred's section 352 objection and by ruling that, as to Winfred's illicit activities, "let's let it all come out." (Cf. State v. Peterson (2006) 179 N.C.App. 437, 442, 461-464 [634 S.E.2d 594, 601, 612-614] [in murder prosecution, where opening statement portrayed defendant's relationship with his murdered wife as happy and loving, trial court properly admitted evidence of defendant's attempts to have extramarital sex].)
Finally, in rejecting Winfred's argument that the evidence was more prejudicial than probative, the trial court stated that the evidence could be "explained." But how could a party "explain" an extramarital affair in a way that rehabilitates his or her credibility? Once the evidence is "out," the harm is done and irreparable. To bring up the subject againin an attempt to somehow "explain" ita party would simply remind the jury of the illicit behavior and probably do more harm than good. For all of these reasons, the evidence of Winfred's private life should not have been received.
B. Credibility
Michelin's primary basis for introducing evidence of Winfred's illicit conduct was to contradict his deposition testimony that he could not recall who Rosalinda and Maria were. But his extramarital affairs were irrelevant to the substantive issue in the case: the cause of the accident. To the extent the evidence was relevant to Winfred's credibility, it was more prejudicial than probative. It follows that the trial court abused its discretion by overruling Winfred's section 352 objection.
(3) In People v. Lavergne (1971) 4 Cal.3d 735 [94 Cal.Rptr. 405, 484 P.2d 77] (Lavergne), the defense asked a prosecution witness and accomplice whether the car used to commit a robbery had been stolen. The witness said it was not. The defense then sought to impeach the witness with testimony from the owner of the vehicle. The prosecution objected, and the trial court sustained the objection. The Supreme Court affirmed, noting: "While collateral matters are admissible for impeachment purposes, the collateral character of the evidence reduces its probative value and increases the possibility that it may prejudice or confuse the jury. The Law Revision Commission notes, in its comment on section 780, that the inflexible rule excluding collateral matters relevant to credibility has been eliminated, but goes on to state that not all evidence of a collateral nature offered to attack the credibility of a witness is thereby made admissible. It refers to the trial court's `substantial discretion' under section 352 to exclude prejudicial and time-consuming evidence. It concludes that the effect of section 780, when read with section *1030 352, is `to change the [then] present somewhat inflexible rule of exclusion to a rule of discretion to be exercised by the trial judge.'[[2]]
"California courts have, in cases similar to this one, held the court's exclusion of collateral facts offered for impeachment purposes to be a proper exercise of the trial judge's discretion. In People v. Atchley [(1959)] 53 Cal.2d 160 [346 P.2d 764][, cert. dism. (1961) 366 U.S. 207 [6 L.Ed.2d 233, 81 S.Ct. 1051], defendant was on trial for the murder of his wife. Defendant attempted to impeach a prosecution witness by showing that she had forged rent receipts for the deceased to deceive the welfare department after she testified on cross-examination that she never forged a rent receipt. That case, like this one, involved an attempted impeachment of a prosecution witness on a collateral matter involving a crime with which the witness was neither charged nor convicted. In that case we held that the trial court had discretion to foreclose further inquiry into the forgery issue, even for purposes of impeachment. . . . That case would seem to govern here.
"Two additional factors tend to support the judge's exercise of discretion in the instant case. A witness may have a strong reason to lie about the collateral fact which reason would furnish no motive to lie in his other testimony. Where such a situation exists, the possible inference that a witness false in part of his testimony is not to be trusted as to other parts is weakened. . . .
"Secondly, it appears that the defendant, on cross-examination, purposely elicited the testimony for the very purpose of impeaching the witness. . . . A party may not cross-examine a witness upon collateral matters for the purpose of eliciting something to be contradicted. . . . This is especially so where the matter the party seeks to elicit would be inadmissible were it not for the fortuitous circumstance that the witness lied in response to the party's questions." (Lavergne, supra, 4 Cal.3d at pp. 742-744, fn. & citations omitted.)
In Mendez v. Superior Court (1988) 206 Cal.App.3d 557 [253 Cal.Rptr. 731] (Mendez), the plaintiff sued her employer, the County of Merced, and Robert Mendez, a fellow employee and deputy in the Merced County Sheriff's Department, alleging that Mendez had sexually assaulted her. The plaintiff's husband brought a claim for loss of consortium but dismissed it during discovery. When the plaintiff was deposed, she was asked if, after her marriage, she had "participated in any sexual relationship with anyone?" *1031 (Id. at p. 562.) She answered, "No." (Ibid.) Defendants had already obtained deposition testimony from others indicating that the plaintiff had engaged in extramarital affairs, including one with a sergeant in the department.
The plaintiff brought an in limine motion to exclude evidence of her sexual conduct with anyone other than Mendez. The defendants countered with a motion to discover additional evidence of the plaintiff's infidelity. The trial court granted the plaintiff's motion and denied the defendants' motion. Defendants filed a petition for a writ of mandate.
The Court of Appeal denied the petition, stating: "[D]efendants maintain plaintiff's sexual history bears upon her credibility. Although finely framed, County's argument appears to assert, and conclude, that sexually-active people may be less credible than more chaste individuals. Taken to its natural conclusion, if such an interpretation has substance, then County's claim of relevance would arguably justify discovery of the sexual practices of all potential witnesses. In order to accept the legitimacy of the deposition inquiries as to [the plaintiff's] other sexual activities on the grounds asserted by County, the basic proposition must be accepted that promiscuity has a bearing on one's veracity.
". . . County furnishes no support for the thinly veiled proposition that promiscuity engenders prevarication other than speculation and innuendo. The argument is predicated upon a perception and stereotype that has neither a basis in experience nor proof. Common perceptions do not rise to the level of truth simply because of repetition or general regard. . . .
"Mendez argues that evidence of plaintiff's alleged extramarital affairs will be potentially admissible to assail her denial under oath, at [her] deposition, of having engaged in extramarital conduct. In addressing this argument, Mendez notes that at the time of the deposition inquiry, plaintiff's husband had alleged a cause of action for loss of consortium. Assuming, arguendo, that the line of inquiry might have had some relevance on that issue, that cause of action was dropped [before] the trial court's order herein. Therefore, any relevancy the information might have had to the cause of action disappeared with the cause of action.
"Mendez asserts that plaintiff's denials coupled with contradictory evidence from other witnesses constitutes specific facts supporting the relevance of the evidence as to plaintiff's credibility. Mendez contends plaintiff was untruthful in her denials and that discovery of impeaching evidence is proper to attack her veracity. Mendez, however, overlooks several issues.
"As the consortium cause of action was dropped, any remaining relevancy must be predicated upon its impact on credibility. . . . [¶] . . . [¶]
*1032 "[And the] probative value of the sought-after information is a substantial consideration. [One authority] provides an excellent yardstick for a determination of the issue of materiality and probative value: `This involves the strength of the relationship between the evidence and inferences derived therefrom and the issue upon which the evidence is offered, and whether such evidence tends to prove a main issue or a collateral matter. If proffered evidence affords strong inferences on a main issue in a case, its probative value is substantial. If the evidence affords only weak inferences of fact on a major issue, its probative value is obviously weak or slight. Also, if such evidence tends to prove some collateral, disputed issue, such as impeachment of a witness on a collateral matter, its probative value is less than that of evidence offering substantial proof of a main issue.' . . .
"As we have noted, proof as to plaintiff's alleged extramarital affairs could not, being irrelevant directly on the issue of credibility, have been independently shown on that issue. However, questions were asked and denials given. Absent the existence of a contradictory statement, . . . the line of inquiry is irrelevant. Thus, the question and the contradictory proof are, at best, collateral. [¶] . . . [¶]
". . . We have already determined that the line of inquiry has become inappropriate. Mendez's and County's position would imply that the existence of an inconsistent statement is admissible to attack credibility. However, there must be a statement to attack. If the statement to be impeached is not admissible then the impeachment of it is not permissible. . . . [And] specific instances of conduct relevant only to prove `a trait of his character [are] inadmissible to attack or support the credibility of a witness.' . . ." (Mendez, supra, 206 Cal.App.3d at pp. 575-577, 1st & 2d italics added, citations omitted.)
Similarly, in Devine v. Devine (1963) 213 Cal.App.2d 549 [29 Cal.Rptr. 132] (Devine), a final decree of divorce gave the father visitation rights and obligated him to make support payments. The father filed an order to show cause seeking greater visitation rights. The mother filed an order to show cause requesting a termination of his visitation rights and an increase in child support. At the hearing, the trial court allowed the father to be questioned about alleged "sexual misconduct" with the mother that supposedly occurred before they separated. The father denied the charges. The trial court permitted this evidence to remain in the record for impeachment purposes, although the court properly ruled that the evidence was immaterial to the substantive issues. The mother testified that the father had engaged in "sexual misconduct." The trial court also ruled that the mother's testimony was not relevant to the substance of the dispute but would be considered for impeachment. Ultimately, the trial court issued an order terminating the father's visitation rights and increasing the amount of child support.
*1033 The Court of Appeal reversed, pointing out that "[i]n the first place, the testimony in question was obviously on a collateral and irrelevant matter. Such testimony may not be used for impeachment. . . . Further, `[a] party cannot cross-examine his adversary's witness upon irrelevant matters, for the purpose of eliciting something to be contradicted.' . . . Third, `". . . if a question is put to a witness on cross-examination which is collateral or irrelevant to the issue, his answer cannot be contradicted by the party who asked him the question . . ." . . . .'" (Devine, supra, 213 Cal.App.2d at p. 554, citations omitted; see also People v. Steele (2002) 27 Cal.4th 1230, 1248 [120 Cal.Rptr.2d 432, 47 P.3d 225] [party should not be allowed to introduce prejudicial evidence in response to obvious mistake by adversary in giving irrelevant testimony]; id. at pp. 1271-1272 (conc. opn. of George, C. J.) [party's failure to object to improper questions asked of adversary does not allow party to elicit immaterial or irrelevant testimony]; 3 Witkin, Cal. Evidence, supra, Presentation at Trial, §§ 341-342, 346, 352, pp. 426-427, 432-433, 439-440 [if party makes mistake of introducing irrelevant evidence that is not prejudicialor, if prejudicial, that may be cured by objection, motion to strike, or admonition to juryadversary should not be permitted to capitalize on mistake by offering impeaching evidence on collateral matter].)
In Devine, the Court of Appeal also concluded that a new trial was required, stating: "In light of the judge's ultimate orders in this case, it seems highly probable that she concluded from this erroneously admitted evidence (which she considered properly before her for impeachment) that [the father] was thoroughly unreliable, and that she was therefore justified in disbelieving, and apparently did disbelieve, his testimony with reference to matters touching upon his right of visitation, and with respect to his income and living expenses and consequent financial ability to pay increased child support. . . . [T]he error in question becomes not only serious but prejudicial for it has the effect of depriving him of a fair trial." (Devine, supra, 213 Cal.App.2d at pp. 554-555.)
Finally, case law indicates that evidence of a plaintiff's infidelity "involves not only [his] right to privacy, but the privacy of uninterested third persons. Insofar as defendants seek to pry into plaintiff's sexual conduct with others, they necessarily seek to pry into the third party's sexual conduct. . . . While theoretically such third parties could seek to appear in this action and oppose defendants' [efforts] . . ., such [privacy protection] under these circumstances is meaningless; first and foremost, what is sought by defendants is the right to ferret out the existence and identity of such third parties." (Mendez, supra, 206 Cal.App.3d at p. 568; citations omitted; accord, Morales v. Superior Court, supra, 99 Cal.App.3d at pp. 291-292 [husband suing for wrongful death of *1034 wife must disclose his extramarital affairs in answering defendants' interrogatories but, to protect third party rights, he is not to provide information identifying women involved].)
We now describe in more detail the nature of the evidence in dispute. Yukevich informed the jury in opening statement, during the presentation of evidence, or in closing argument: (1) while Winfred was married to Celinia, whom he married in 1970, he was also married to Rosalinda from 1984 to 1988; (2) Rosalinda was the wife of Winfred's business partner, Roger, when Winfred began to have an affair with her; (3) Winfred deceived Rosalinda before marrying her, showing her a worthless Mexican divorce decree purporting to dissolve his marriage to Celinia; (4) after Winfred divorced Rosalinda in 1988, he had an extramarital affair with Maria; (5) he and Maria had two sons.
(4) Because this evidence has no tendency to prove or disprove any disputed fact concerning the cause of Winfred's accident, its use is necessarily limited to impeachment. (See Mendez, supra, 206 Cal.App.3d at pp. 575-577.) Just as evidence of a woman's unchaste behavior is no longer admissible on the issue of credibility unless it tends to show biasfor example, if she had an intimate relationship with a party or witness (see United States v. Kasto (8th Cir. 1978) 584 F.2d 268, 271-272 & fns. 2, 3; People v. Sweeney (1960) 55 Cal.2d 27, 33-34, 39-44) [9 Cal.Rptr. 793, 357 P.2d 1049])neither is evidence of a man's sexual conduct (see Devine, supra, 213 Cal.App.2d at pp. 553-554; U.S. v. Eagle (8th Cir. 2007) 498 F.3d 885, 889-890). Further, a "witness may have a strong reason to lie [about illicit, intimate relationships]" (Lavergne, supra, 4 Cal.3d at p. 743), such that he "may not [be] cross-examine [d] . . . upon [that] collateral matter[] for the purpose of eliciting something to be contradicted" (id. at p. 744). Accordingly, Winfred's denial of his extramarital affairs at his deposition may not be contradicted at trial because the denial itself is irrelevant and prejudicial and thus inadmissible. (See Mendez, supra, 206 Cal.App.3d at pp. 575-577; Lavergne, supra, 4 Cal.3d at p. 744.) In short, the existence of irrelevant testimony by a witness does not permit its introduction by an adversary just so the adversary can then offer contradictory evidence to impeach the witness. (See People v. Steele, supra, 27 Cal.4th at p. 1248; id. at pp. 1271-1272 (conc. opn. of George, C. J.); 3 Witkin, Cal. Evidence, supra, Presentation at Trial, §§ 341-342, 346, 352, pp. 426-427, 432-433, 439-440.)
These principles are of particular importance if the proffered evidence involves an issue of sexual conduct, and its admission is highly prejudicial and inflammatory. (See Devine, supra, 213 Cal.App.2d at pp. 554-555; Wood v. State of Alaska, supra, 957 F.2d at pp. 1551-1553; Kvasnikoff v. State *1035 (Alaska Ct.App. 1983) 674 P.2d 302, 305-306; Smith v. Com., supra, 904 S.W.2d at p. 222; Barnett v. Com., supra, 763 S.W.2d at p. 124; Alejo Jimenez v. Heyliger, supra, 792 F.Supp. at pp. 919-920; Barnett v. State, supra, 733 S.W.2d at p. 345.)
(5) In addition, where the irrelevant evidence implicates the privacy concerns and reputations of nonparties, the trial court must consider the effect of admissibility on them. (See Mendez, supra, 206 Cal.App.3d at p. 568; Morales v. Superior Court, supra, 99 Cal.App.3d at pp. 291-292.) Here, the record contains numerous references to the full names of Winfred's second wife and his subsequent mistress, exposing them to possible public ridicule and doubts about their character. Both were deposed by Michelin and questioned about their relationship with Winfred, subjecting them to unnecessary embarrassment. (See B.J.R.L. v. State of Utah (D.Utah 1987) 655 F.Supp. 692, 693-694, 697-699; S.M. v. J.K. (9th Cir. 2001) 262 F.3d 914, 919, amended (9th Cir. 2003) 315 F.3d 1058.) Perhaps more disturbing was Michelin's disclosure of the full names and birthdates of Winfred's two illegitimate childrenwhich were read into the recordas well as the admission into evidence of their birth certificates; the use of this evidence was even more questionable given that Winfred had already testified that he and his mistress had two children. (See B.J.R.L. v. State of Utah, supra, 655 F.Supp. at pp. 693-694, 697-699; Southern Methodist University Ass'n v. Wynne & Jaffe (5th Cir. 1979) 599 F.2d 707, 712-713; Heather K. by Anita K. v. City of Mallard, Iowa (N.D.Iowa 1995) 887 F.Supp. 1249, 1255-1256.)
In sum, the trial court abused its discretion in concluding that the evidence of Winfred's illicit activities was more probative than prejudicial under section 352.
C. Winfred's Brain Injury
Michelin argues that questions about Winfred's private conduct were permitted to prove that his memory was not as poor as he claimed. In other words, Michelin could ask Winfred about the intimate details of his private life, wait for him to claim a lack of recall, and then prove he had engaged in the illicit conduct he said he could not remember. There are several problems with this argument.
First, as stated, our Supreme Court has recognized that witnesses have a "strong reason" to lie about an irrelevant or collateral matter, which suggests that the matter should not be used for impeachment. (See Lavergne, supra, 4 *1036 Cal.3d at p. 743.) And where the irrelevant matter involves the witness's illicit, intimate conduct, there is a greater probability that the witness will lie. Lavergnewhich precluded questions about the theft of a carindicates that Michelin should not have been allowed to inquire into Winfred's private life. "A party may not cross-examine a witness upon collateral matters for the purpose of eliciting something to be contradicted." (Lavergne, at p. 744.) As a result, Michelin could not turn the trial into a game of "gotcha."
(6) Second, in a personal injury case where a plaintiff has a partial loss of memory due to brain damage, the defendant cannot ask the plaintiff what he recalls about illicit aspects of his private life that have no bearing on the cause of the accident or bias and are irrelevant and prejudicial. Here, for example, Yukevich told the jury that Winfred "can't remember things that are harmful [to] him, but he can remember things that are helpful to him." Yet the "harmful things" to which Yukevich referred were the illicit activities in Winfred's private life, not acts, events, or conversations related to the cause of the accident or bias. It is one thing to impeach a witness with respect to mistaken or knowingly false answers that are relevant to substantive issues but something else entirely to "test" the witness's memory on private or intimate subjects. Does Michelin contend that the defense in an auto accident case could ask a brain-damaged plaintiff if he had ever smoked marijuana, beaten his wife, or cheated on a test in college? And if the plaintiff said he could not recall, could the defense offer testimony that the plaintiff had once smoked "pot," introduce photographs taken in a domestic dispute investigation showing the wife's bruised face, or call a college professor to the stand? We think not. Rather, if the defense wants to prove that a brain-damaged plaintiff is being deliberately selective about what he supposedly remembers, the "harmful things" must relate to substantive issues or bias, not irrelevant private matters. Otherwise, the defense could conduct an endless fishing expedition in an attempt to discover the plaintiff's most humiliating and damaging intimate conduct. Nor was bias an issue in this case; Rosalinda and Maria did not testify at trial.
Finally, the issue of Winfred's memory problem is essentially a medical one. In opposing Winfred's in limine motion, Michelin relied in large part on the deposition testimony of Dr. Merikangas that, in his opinion, Winfred had lied when he said he could not remember who Maria was. At trial, Winfred called Dr. Feuerman to explain his cognitive deficits. Michelin did not call Dr. Merikangas or another medical expert nor use a medical expert's deposition concerning Winfred's memory. Such evidence might have been an appropriate way to seek to impeach Winfred when he said he could not remember various facts about the accident.
*1037 We are struck by the somewhat bizarre nature of Winfred's answers to questions about his private conduct. For example, he said he recognized Rosalinda's name but did not recall marrying her. A few seconds later, however, he said his marriage to Rosalinda was terminated by annulment, without any acknowledgment he had just denied knowledge of the marriage. Similarly, he said he did not remember who Maria was but immediately began to describe his professional and personal relationship with her, including the births of their children. Winfred's medical expert testified at trial that Winfred was not faking his memory problems. Michelin offered no evidence to the contrary. Yet the jury was allowed to speculate, in light of the impeachment evidence erroneously admitted, that Winfred was lying about overloading the van.
Thus, evidence of illicit, intimate conduct is not appropriate on the issue of credibilityabsent a connection that shows biasregardless of whether the plaintiff claims to have suffered an injury that affects his memory.
D. Winfred's Motive to Overload the Van
We have saved Michelin's most tenuous contention for last: Winfred's relationship with Maria and their children provided the motive for Winfred to overload the van with produce. This theory was premised on the trial court's conclusion that Winfred "has two families to support."
Where the record in a case refers to the amounts of money spent, evidence that a defendant supported a mistress and frequently gambled may be admissible to prove that his financial condition led him to commit tax fraud (U.S. v. Hart (6th Cir. 1995) 70 F.3d 854, 857, 860-861 & fn. 8) or a robbery (State v. Kim (2006) 153 N.H. 322, 325, 327-328 [897 A.2d 968, 971, 973-974]).
But here the financial evidence was virtually nonexistent. Winfred gave Maria $1,000 to buy the boys a computer, and although Winfred admitted he "always" gave money to the boys, no evidence was offered as to the amount. We do not know anything about the financial condition, income, or expenses of Winfred, Celinia, their sons (the Los Angeles family) or Maria and her sons (the Las Vegas family). At the time of the accident, Winfred's sons by Celinia were adults (one in his late 20's, the other in his early 30's) and could have been financially independent. There is no evidence that Winfred gave any money to Maria as opposed to the boys. Celinia's financial situation is a *1038 complete unknown. Accordingly, there is no proof that Winfred supported one family, much less two and, if so, in what amounts. It follows that Michelin's motive theory had insufficient evidentiary support and did not provide a basis for the admissibility of Winfred's extramarital affair with Maria or the existence of his illegitimate children.
(7) Further, "[w]hile `lack of money is logically connected with [an act] involving financial gain . . . [t]he trouble is that it would prove too much against too many.' . . . `Lack of money gives a person an interest in having more. But so does [the] desire for money, without poverty. A rich man's greed is as much a motive to steal as a poor man's poverty. Proof of either, without more, is likely to amount to a great deal of unfair prejudice with little probative value.'" (People v. Carrillo (2004) 119 Cal.App.4th 94, 102 [13 Cal.Rptr.3d 878], italics added; accord, People v. Cornwell (2005) 37 Cal.4th 50, 96 [33 Cal.Rptr.3d 1, 117 P.3d 622].) And "[o]f course, all of us could use more money . . . ." (Betor v. National Biscuit Co. (1929) 85 Mont. 481, 487 [280 P. 641, 643].)
In conclusion, none of the disputed evidence should have been admitted. In ruling otherwise, the trial court abused its discretion.
E. Prejudicial Effect
"`"[N]o judgment shall be set aside, or new trial granted, in any cause, . . . or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice." "A miscarriage of justice . . . occurs . . . when it appears reasonably probable that were it not for the error a result more favorable to the appellant could have been obtained." . . . "Prejudice is not presumed and the burden is on the appellant to show its existence." . . .'" (Taylor v. Varga (1995) 37 Cal.App.4th 750, 759, fn. 9 [43 Cal.Rptr.2d 904]; see Cal. Const., art. VI, § 13; Code Civ. Proc., § 475; Evid. Code, § 354.)
From start to finish, Michelin painted Winfred as a liar, cheater, womanizer, and a man of low morals based principally, if not solely, on what we have concluded was inadmissible evidence. Yukevich even interjected the credibility issue into his questioning of Winfred's son John. As a consequence of this ongoing effort, the jury likely discredited Winfred's testimony that, in accordance with his 20-year habit and custom, he placed no more than 2,000 pounds of produce in the van on the day of the accident. His testimony in that regard was supported by John, who described his father's pretrip preparations. Anthony Smith testified, similarly to Winfred, that 2,000 pounds of produce would come to within about one foot of the van's ceiling. And *1039 Winfred had little reason to overload his van because Smith was always one day behind, carrying the excess produce in his 18 wheeler. Further, Winfred's tire expert, Osborne, found no indication on the failed tire that the vehicle had been overloaded but did find evidence that the tire was defective.
Michelin contends its evidence was so overwhelmingly convincing that the evidence of Winfred's illicit conduct could not have affected the verdict. We disagree. To take some examples, Michelin cross-examined Smith, getting him to admit he told Winfred that the van's tires looked like they were bulging too much. But on redirect, Smith said Winfred had discussed the issue with Enterprise Rent-A-Car and was "assured" that the tires were sufficiently inflated. And Winfred testified that the tires were so small, they bulged when he carried less than the maximum payload. Second, the witnesses who arrived shortly after the accident agreed that the van was "full" of boxes and produce, but their testimony shed little light on whether the produce weighed more than 2,000 pounds. Winfred's and Smith's testimony was more on point as to the weight. Third, although one of the tow truck operators said that the winch made a straining noise, he admitted that several sources of drag affected the operation of the winch.
As for the experts, Michelin accuses Winfred's tire expert, Osborne, of overlooking a spot of significant damage on the delaminated tire, one which its expert, Bolden, detected. According to Michelin, this "mistake" so undermined Osborne's credibility that any reasonable jury would have disbelieved him. Not so. Although Osborne did not see any melting on the tire in a spot where Bolden found some, Osborne explained that the location of the melting was not relevant to, and did not undermine, his opinion. Similarly, while Caufield testified that the van was overloaded by having 2,560 pounds on the right rear tire, he could not say that the additional weight caused the tire to fail. Caufield also stated that overloading was indicated by the wear and tear on part of the rear suspension system, but Osborne attributed that condition to the rollover of the vehicle. And Michelin's tire expert, Bolden, said the tire failed due to overloading, but he had no opinion as to the weight on the tire when it delaminateddespite test results showing that the same type of tire remained intact until running 303 miles at 70 miles per hour with a load of 4,530 pounds.
(8) As Yukevich stated in closing, Winfred could not recall the facts of his illicit private life, but he said he could remember not to put more than 2,000 pounds of produce in the van. Yukevich argued that, in light of Winfred's failure to recall the name of his mistresswith whom he had two sons and to whom he had recently given $1,000he could not possibly remember the details of how he ran his business. But perhaps the most prejudicial use of the inadmissible evidence was Michelin's motive argument: *1040 Winfred overloaded the van to make enough money to support two families. Where a party admits doing an act, motive is irrelevant, but where he denies the acthere, overloading a vanmotive may prove crucial. (See People v. Demetrulias (2006) 39 Cal.4th 1, 14 [45 Cal.Rptr.3d 407, 137 P.3d 229]; State v. Talbert (Mo.Ct.App. 1975) 524 S.W.2d 58, 60, fn. 1; State v. Knox (1945) 236 Iowa 499, 516-517 [18 N.W.2d 716, 724].) Accordingly, Yukevich's arguments affected the central issue in the case: whether the van was overloaded, on the one hand, or whether the tire was defective on the other.
Michelin contends that the jury verdict establishes a lack of prejudice because it was "not close." (See Krotin v. Porsche Cars North America, Inc. (1995) 38 Cal.App.4th 294 [45 Cal.Rptr.2d 10].) But closeness of the verdict is only one of several factors considered in determining whether an error was prejudicial. (See Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 655-657, 644-665 [11 Cal.Rptr.3d 809]; Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 570-571 [34 Cal.Rptr.2d 608, 882 P.2d 298].) Regardless, the trial court's erroneous evidentiary rulings, which permitted Michelin to parade Winfred's illicit, intimate conduct before the jurysmearing his character and inflaming the jurylikely tainted the entire verdict.
Having reviewed the testimony of the parties' experts and the other witnesses as well as the relevant exhibits, it appears reasonably probable that were it not for the trial court's incorrect evidentiary rulings, a result more favorable to Winfred could have been obtained. (See Taylor v. Varga, supra, 37 Cal.App.4th at p. 759, fn. 9.) Because Michelin's use of the inadmissible evidence caused a miscarriage of justice, the judgment must be reversed, and the case shall be remanded for a new trial.
In closing, we mention that the federal and state Constitutions protect the right of sexual privacy, including evidence of extramarital affairs, in civil litigation. (See Morales v. Superior Court, supra, 99 Cal.App.3d at pp. 289-290; Boler v. Superior Court (1987) 201 Cal.App.3d 467, 473-475 [247 Cal.Rptr. 185]; Hooser v. Superior Court (2000) 84 Cal.App.4th 997, 1003-1004 [101 Cal.Rptr.2d 341].) The party seeking the disclosure of such information must shoulder the "heavy burden" of showing that the evidence serves "a compelling interest in `facilitating the ascertainment of truth in connection with legal proceedings.'" (Morales, at pp. 287, 290, italics added; accord, Boler, at p. 473; Hooser, at p. 1004.) Winfred did not raise this constitutional standard below, so we have not considered it on appeal. (See Gonzalez v. County of Los Angeles (2004) 122 Cal.App.4th 1124, 1131 [19 Cal.Rptr.3d 381].)
*1041 III
DISPOSITION
The judgment is reversed, and the case is remanded for a new trial. Plaintiff is entitled to costs on appeal.
Rothschild, J., and Neidorf, J.,[*] concurred.
NOTES
[1] For ease of reading and to protect the privacy of plaintiff and certain others, we do not disclose their last names.
[2] Section 780 states that the jury may consider any matter bearing on the truthfulness of a witness's testimony, including "[h]is demeanor while testifying . . ."; "[t]he extent of his capacity to perceive, to recollect, or to communicate . . ."; "[h]is character for honesty or veracity or their opposites"; and "[a] statement made by him that is inconsistent with any part of his testimony at the hearing." (Id., subds. (a), (c), (e), (h).)
[*] Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266629/ | 165 Cal.App.4th 1 (2008)
RICHARD LOPEZ et al., Plaintiffs and Appellants,
v.
IMPERIAL COUNTY SHERIFF'S OFFICE et al., Defendants and Respondents.
No. D051410.
Court of Appeals of California, Fourth District, Division One.
July 22, 2008.
*3 Jackson, DeMarco, Tidus, Petersen, Peckenpaugh and Robert William Krause for Plaintiffs and Appellants.
Liebert Cassidy Whitmore, J. Scott Tiedemann and Jeffery E. Stockley for Defendants and Respondents.
OPINION
O'ROURKE, J.
In separate proceedings, the Imperial County Employment Appeals Board (the Board) affirmed the Imperial County Sheriff's Office's (respondent) terminations of Richard Lopez and Rosario Lopez[1] (appellants) by tie votes. We hold that the Board's tie votes were the equivalent of a failure to act, and the trial court did not err in remanding the matters for the Board to conduct another vote. Affirmed.
FACTUAL AND PROCEDURAL SUMMARY
The respondent terminated appellants from their jobs as correctional sergeants after finding that they violated county ordinances and the department policies by their "immoral or unprofessional conduct"; "deliberate or repeated absence from duty without authorization"; and "neglect of duty."
Appellants separately appealed to the Board. In each case, the five-member Board voted as follows: the same two members voted to sustain the terminations; the same two members voted to reverse the terminations, and the fifth member abstained. The Board's decisions quote the abstaining member's findings as follows: "The evidence here, although presented in mind-numbing detail, is far from sufficient to support a decision. The deference due to the D[epartment] in making decisions involving employees with such significant-responsibilities is at war with the excellent record of the A[ppellants], and the somewhat minor level of the admitted transgressions. Because of this I abstain." The Board denied the appeals because it concluded, "there [was] no majority decision."
Appellants filed a joint petition for writ of mandate, arguing the Board's decisions should be vacated, and, the proper way to interpret the Board's tie *4 votes was as a reversal of appellants' terminations and, therefore, their reinstatement to their jobs. The trial court granted the writ petition in part by ordering the Board to "vacate its December 29, 2006 decision upholding the terminations," but it required the Board to "conduct another vote . . . [which] shall be determined by a majority vote of those members present." Appellants contend the trial court erred in remanding the matters to the Board.
DISCUSSION
(1) The Board is a quasi-independent administrative tribunal established by county ordinance and charged with adjudicating certain disputes between the county and county employees. (Gov. Code, § 3304, subd. (b); Howitt v. Superior Court (1992) 3 Cal.App.4th 1575, 1578 [5 Cal.Rptr.2d 196] (Howitt).) In disciplinary administrative proceedings, the burden of proving the charges rests upon the party making the charges. (Caloca v. County of San Diego (2002) 102 Cal.App.4th 433 [126 Cal.Rptr.2d 3] (Caloca).) We review de novo the legal question presented. (Breslin v. City and County of San Francisco (2007) 146 Cal.App.4th 1064, 1077 [55 Cal.Rptr.3d 14].)
(2) The trial court correctly noted at the hearing on the writ petition that the Imperial County ordinance governing the Board's actions is silent regarding the effect of a tie vote.[2] However, "`[A]s a general rule an even division among members of an administrative agency results in no action.'" (Clarke v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1176 [56 Cal.Rptr.2d 223] (Clarke), and cases cited therein. In Clarke, the plaintiffs owned a duplex and applied to the Hermosa Beach Planning Commission for permits to demolish it and replace it with a two-unit condominium. The commission approved the project. The city council overruled the commission by a three-to-two vote. Plaintiffs filed a writ petition. The trial court granted it and ordered the city council to reinstate the commission's decision. The Court of Appeal affirmed the grant of the writ, but ruled the plaintiffs were denied a fair trial before the city council. (Id. at p. 1159.) For example, one council member who voted with the majority had a conflict of interest because if the city council had approved the project, that member's own residence would have been directly impacted. Accordingly, the Court of Appeal ruled the trial court should have remanded the matter for a rehearing before the city council. (Id. at pp. 1172-1173.)
*5 (3) Applying Caloca, supra, 102 Cal.App.4th 433, and Clarke, supra, 48 Cal.App.4th 1152, we conclude respondent did not meet its burden of proving its charges to the satisfaction of a majority of the Board. Imperial County Ordinance section 3.64.090 requires the Board, within five working days after its informal review or formal hearing, to file with the director of human resources its findings as to each cause and factual allegation "and its decision affirming, revoking or modifying the action of the department head." No Imperial County Ordinance provision permits us to deem reversed respondent's decision in the event of a tie vote by the commission. We hold that the tie votes resulted in a failure to act. Contrary to appellants' claim, the Board's inaction did not require a reversal of the respondent's rulings. Rather, appellants were returned to the status quo ante, and the respondent's terminations remain in effect until the Board conducts another vote.
(4) We also apply Clarke's rule regarding tie votes because the abstaining board member erroneously deferred to respondent's findings, even as he stated that the deference "[was] at war with the excellent record of the appellant[s], and the somewhat minor level of the admitted transgressions."[3] This court has stated, "The civil service commission in San Diego County performs a function analogous to the [Board]." (Howitt, supra, 3 Cal.App.4th at p. 1578.) It follows that the Board must "independently review the facts and law"; moreover, "the Sheriff's findings and final disciplinary order are not due substantial deference." (Kolender v. San Diego County Civil Service Com. (2005) 132 Cal.App.4th 1150, 1157 [34 Cal.Rptr.3d 209].)
Appellants contend that Clarke should be narrowly applied to instances involving irregularities in the administrative proceedings.[4] We see no reason to accept such a narrow interpretation. The Clarke court did not qualify the general rule regarding tie votes in such a manner, and we do not interpret Clarke to imply such a restriction. We note that the Board was established with an odd number of members to foster decisions by majority votes and to avoid tie votes, and our interpretation of Clarke advances this public policy.
*6 DISPOSITION
The judgment is affirmed. Each party is to bear its own costs on appeal.
McDonald, Acting P. J., and Irion, J., concurred.
NOTES
[1] Appellants state in their opening brief, "The parties have the same last name, but are not related."
[2] The applicable Imperial County Ordinances are section 3.64.080, subdivision (D), which deals with "hearing procedures," and section 3.64.090, which deals with "decisions of board."
[3] We reject respondent's claim that the abstaining Board member's findings are irrelevant. We accept as a general proposition that "the previous declarations of the nonvoting members and their subsequent protest avail nothing. The test is not what was said before or after, but what was done at the time of the voting." (Martin v. Ballenger (1938) 25 Cal.App.2d 435, 439 [77 P.2d 888].) Nonetheless, the difference here is that the abstaining member's findings were incorporated in the Board's written decision; therefore, we give them more weight.
[4] We note that the Clarke court also remanded the case for another vote because the municipal code required three affirmative votes for the city council's actions on conditional use permits. (Clarke, supra, 48 Cal.App.4th at p. 1177.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266639/ | 440 Pa. 236 (1970)
Commonwealth ex rel. Austin, Appellant,
v.
Hendrick.
Supreme Court of Pennsylvania.
Argued May 7, 1970.
October 9, 1970.
Before BELL, C.J., COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Bernard L. Segal, with him John H. Lewis, Jr., for appellant.
*237 James D. Crawford, Deputy District Attorney, with him Arlen Specter, District Attorney, for appellee.
OPINION BY MR. CHIEF JUSTICE BELL, October 9, 1970:
Relator-appellant Austin was charged with murder. At the preliminary hearing, his counsel cross-examined the Commonwealth's only witness and elicited the information that the witness had given written statements to the Commonwealth. Defense counsel requested the production of these statements and the hearing Judge so ordered. However, the Assistant District Attorney refused to produce the statements, and thereafter the hearing Judge, without enforcing his aforesaid Order, held relator for action of the Grand Jury.
A petition for a writ of habeas corpus was filed in the Trial Division of the Court of Common Pleas of Philadelphia, seeking to compel the production of the written statements of the witness. The hearing Judge, in deliberating upon the merits of the petition, considered the apparent conflict between Rule 119(b) and Rule 310 of the Rules of Criminal Procedure, and wisely concluded that Rule 310 was applicable to the instant facts. Rule 119(b) (now Rule 120(b)) reads in pertinent part as follows: "The defendant shall be present at a preliminary hearing, except as provided in these rules, and may, if he desires . . . [c]ross-examine witnesses and inspect physical evidence offered against him[*] . . . ." Rule 310, which governs pretrial discovery and inspection, closes with the following sentence: "In no event, however, shall the court order pretrial discovery or inspection of written statements of witnesses in the possession of the Commonwealth."
The Judge entered an Order denying the petition for a writ of habeas corpus. From this Order the relator *238 took this appeal, whereupon the Commonwealth filed a petition to quash the appeal.
This Court in numerous cases has ruled on the right of appeal from the denial of a pretrial habeas corpus petition. In the recent case of Commonwealth ex rel. Riggins v. Supt. of Phila. Prisons, 438 Pa. 160, 263 A. 2d 754, the Court said (pages 164-165): "In Commonwealth ex rel. Boatwright v. Hendrick, 436 Pa. 336, 260 A. 2d 763, we recently considered the right of appeal from the denial of a pretrial habeas corpus petition, and there laid down the following principles (pages 338-339): `In cases involving criminal proceedings, an Order by a Judge of the Court of Common Pleas, denying, before indictment,[*] a writ of habeas corpus where the ground of appeal is the lack of adequate evidence to establish a prima facie case of crime by the accused, is interlocutory and unappealable and must be quashed: Commonwealth ex rel. Gordy v. Lyons, 434 Pa. 165, 252 A. 2d 197; Commonwealth ex rel. Bittner v. Price, 428 Pa. 5, 235 A. 2d 357; Commonwealth ex rel. Fisher v. Stitzel, 418 Pa. 356, 211 A. 2d 457; in the absence of exceptional circumstances (as, for example, cases involving great public interest or the safeguarding of basic human rights, Commonwealth v. Kilgallen, 379 Pa. 315, 108 A. 2d 780; Commonwealth v. Byrd, 421 Pa. 513, 219 A. 2d 293, cert. denied, 385 U.S. 886); or, unless expressly made so by statute, Commonwealth v. Pollick, 420 Pa. 61, 215 A. 2d 904; Commonwealth v. Wright, 383 Pa. 532, 119 A. 2d 492; or a challenge to appellant's custody on grounds of lack of jurisdiction, Commonwealth ex rel. DiDio v. Baldi, 176 Pa. Superior Ct. 119, 106 A. 2d 910; Commonwealth ex rel. Nichols v. Hendrick, 197 Pa. Superior Ct. 646, 180 A. 2d 88.'"
*239 We believe (1) that the aforesaid cases in principle rule the instant case, and (2) that there are no "exceptional circumstances" here present which would justify this Court in hearing an appeal on the issue at this time.
The Order of the Court below is interlocutory, and the appeal is therefore quashed.
Mr. Justice ROBERTS concurs in the result.
Mr. Justice JONES took no part in the consideration or decision of this case.
NOTES
[*] Italics throughout ours, unless otherwise noted.
[*] Italics in Commonwealth ex rel. Riggins v. Supt. of Phila. Prisons. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266663/ | 440 Pa. 97 (1970)
Commonwealth
v.
Jaynes, Appellant.
Supreme Court of Pennsylvania.
Submitted September 29, 1969.
October 9, 1970.
*98 Before BELL, C.J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Eugene J. Brew, for appellant.
James R. Dailey, Assistant District Attorney, and William E. Pfadt, District Attorney, for Commonwealth, appellee.
OPINION BY MR. CHIEF JUSTICE BELL, October 9, 1970:
On November 10, 1965, Boyd Franklin Jaynes, who had been charged with the murder of Myrtle Ball, pleaded guilty to voluntary manslaughter while represented by two Court-appointed counsel. He was fined $250 and sentenced to undergo imprisonment for from six to twelve years, the maximum term for the crime. Defendant filed no motion for a new trial and took no appeal.
*99 Jaynes, who was an indigent, subsequently[*] filed a petition under the Post Conviction Hearing Act, seeking a new trial. The lower Court refused defendant's request that counsel be appointed to represent him in the post-conviction proceedings, and denied his prayer for relief. An appeal was erroneously taken to the Superior Court, which certified the matter to this Court for disposition. In Commonwealth v. Jaynes, 427 Pa. 398, 235 A. 2d 149, we vacated the Order of the lower Court which denied Jaynes's petition, and ordered the record remanded, with instructions to appoint counsel to represent Jaynes in said post-conviction proceedings. Counsel was appointed and a hearing was held on June 11, 1968. On January 24, 1969, the hearing Judge filed an Opinion and an Order dismissing the defendant's petition for relief. This appeal followed.
Jaynes filed a brief in this Court in which he makes a number of contentions dealing, inter alia, with issues such as arrest without a warrant, illegal search and seizure, and improper "in-custody" procedure. None of these contentions is supported by the record, nor were any raised by his attorney in his brief. The sole contention which was made in his attorney's brief was that defendant did not make his guilty plea "knowingly, voluntarily and intelligently" because he was not properly advised by his counsel that the credible evidence of the Commonwealth was not sufficient to convict him of murder.
Defendant urges that his trial attorneys were not interested in his case and, because of this, were anxious to have him plead guilty regardless of the weakness of the Commonwealth's case or the insufficiency of its evidence. On the day following defendant's arrest, the trial Court appointed an attorney to represent the defendant, *100 and a few days later appointed co-counsel. The chief attorney for defendant had wide experience in the trial of criminal cases and had served as Assistant District Attorney and District Attorney in Erie County. The record indicates that the representation by these attorneys was vigorous and able. In addition to their participation at defendant's preliminary hearing, which covered four separate sessions before the defendant was bound over, they petitioned the Court for a writ of habeas corpus in an effort to test the strength of the Commonwealth's evidence. After the writ of habeas corpus was denied, defendant's attorneys then instituted intensive discovery proceedings in defendant's behalf.
In Commonwealth v. Hill, 427 Pa. 614, 235 A. 2d 347, the Court said (pages 616, 617): "On the issue of Hill's guilty plea, we start with the well established doctrine set forth in Commonwealth ex rel. Crosby v. Rundle, 415 Pa. 81, 85, 202 A. 2d 299, 302 (1964), cert. denied, 379 U.S. 976, 85 S. Ct. 677 (1965). As the Court there noted: `When an accused pleads guilty to an indictment, it is presumed that he is aware of what he is doing: [citing cases]. Hence, the burden of proving otherwise is upon him.' . . .
"As this Court has said on numerous occasions: `A plea of guilty, knowingly made, constitutes an admission of guilt and is a waiver of all nonjurisdictional defects and defenses.' Commonwealth v. Garrett, 425 Pa. 594, 597, 229 A. 2d 922, 924 (1967); Commonwealth ex rel. Foeman v. Maroney, 420 Pa. 486, 218 A. 2d 230 (1966); Commonwealth ex rel. Walls v. Rundle, 414 Pa. 53, 198 A. 2d 528 (1964)." Accord: Commonwealth v. McBride, 440 Pa. 81, 269 A. 2d 737.
Defendant has utterly failed to meet this burden. Defendant testified at the post-conviction hearing that he knew he was pleading guilty to voluntary manslaughter and that his attorney told him, prior to his *101 plea, what the crime was and that the maximum sentence was six to twelve years, although his attorney said he would ask the Court for a lighter sentence. His counsel testified (1) that he also explained to defendant murder and the degrees of murder, and (2) even more importantly, that "defendant's plea of guilty was voluntary," although he thought that defendant would receive a sentence of less than the maximum. Defendant testified that, although he received no assurance of a lighter sentence, he thought he would receive a lighter sentence, and that was one of the main reasons he pleaded guilty. As Jaynes admitted at the hearing, "One second after my sentence, I wasn't satisfied." It is clear that the real reason for his present post-conviction hearing petition is that he was dissatisfied because the Court gave him the maximum sentence.
In Commonwealth v. Kirkland, 413 Pa. 48, 195 A. 2d 338, the Court said (page 56): "The fact that in the finding of the Court as to the degree of defendant's guilt and the sentence imposed, the expectations or hopes of appellant and her counsel were not realized is not the kind of `mistake or misapprehension' which in the interest of Justice, justifies the withdrawal of a plea of guilty."[*] See also, Commonwealth v. Green, 396 Pa. 137, 151 A. 2d 241.
There is absolutely no merit in any of defendant's contentions.
Order affirmed.
NOTES
[*] No date appears in the record; the Court of Erie County should enter the date whenever such petitions are filed.
[*] Italics in Commonwealth v. Kirkland. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1377080/ | 184 Kan. 59 (1959)
334 P.2d 334
THE S.J. SAFFORD & SON LUMBER COMPANY, INC., a corporation, Appellant,
v.
MARLIN KERLEY and MARY E. KERLEY, Appellees; WILLIAM WHITESIDE, ROBERT NELSON, CUSTOM HOMES, INC., a Kansas Corporation, FIRST KANSAS LIFE INSURANCE COMPANY, a Kansas Corporation, Defendants.
No. 41,138
Supreme Court of Kansas.
Opinion filed January 24, 1959.
R.A. Munroe, of Augusta, argued the cause and was on the briefs for the appellant.
Alvin D. Herrington, of Wichita, argued the cause, and Getto McDonald, William Tinker, Arthur W. Skaer, Hugh P. Quinn, William Porter and John E. Lancelot, all of Wichita, were with him on the brief for the appellees.
The opinion of the court was delivered by
WERTZ, J.:
This was an action by the S.J. Safford & Son Lumber Company, Inc. (hereinafter referred to as plaintiff), a subcontractor, to reinstate, reform and foreclose a materialman's lien. The trial court sustained defendants' demurrer to the petition on the ground that it failed to state a cause of action, and plaintiff appeals.
Plaintiff (appellant) alleged that defendants (appellees) Marlin Kerley and Mary E. Kerley were owners of two tracts of land in *60 Sedgwick county, which for convenience will be referred to as tract No. 1 and tract No. 2. The Kerleys contracted with defendant William Whiteside for the construction of buildings and other improvements on tract No. 2, which contract was subsequently assigned to defendant Custom Homes, Inc. Under contract with Custom Homes, Inc., plaintiff furnished materials for the construction on tract No. 2. The last of such materials was furnished on March 7, 1957.
As a result of other negotiations defendant Robert Nelson, as agent for the Kerleys, was in possession of $2,500, which he was instructed to pay plaintiff in full discharge of the Kerleys' indebtedness for materials furnished. On April 10, 1957, Nelson admitted to plaintiff that he had converted the $2,500 to his own use. He refused thereafter to make payment to the plaintiff or the Kerleys.
On May 1, 1957, the Kerleys conveyed tract No. 1 to Glen D. Cox and Velda J. Cox. The deed for the property was filed with the Sedgwick county register of deeds on May 2, 1957.
On May 4, 1957, plaintiff's office manager was contacted by Mary Kerley, at which time she was advised plaintiff was filing a materialman's lien to secure the payment of the balance of $2,500 due, and she was asked to furnish a legal description of the premises. By mistake, Mary Kerley furnished a description of tract No. 1, rather than tract No. 2. On May 6, 1957, relying on this representation, plaintiff filed a materialman's lien on tract No. 1.
In addition to other requirements of the applicable statutes, plaintiff set forth in its lien statement that it had furnished materials for the erection of buildings and other improvements on specifically described real property, the legal description of which conformed to the legal description of tract No. 1. Plaintiff then claimed a first and prior lien for materials furnished to the mentioned premises.
In July, 1957, plaintiff discovered its lien was filed by mistake against tract No. 1. Upon demand by William Whiteside, who was then constructing a residence on tract No. 1 for the owners thereof, plaintiff, on July 13, 1957, released of record its lien insofar as it pertained to tract No. 1. On October 1, 1957, plaintiff filed this action to reinstate, reform and restore the lien to tract No. 2, and foreclose the lien.
Plaintiff claims that its lien was filed on the wrong property by reason of a mutual mistake of fact, and that it released the lien *61 insofar as it pertained to tract No. 1, which was the only property described in the lien, but that it made no overt act toward releasing the lien insofar as it pertained to tract No. 2. Plaintiff maintains it is entitled to amend its lien statement to correctly describe the property by reason of G.S. 1949, 60-1405 and a long line of Kansas decisions permitting amendment of descriptions under this statutory provision. In the alternative, plaintiff claims it has a common law right to reformation of its lien statement because the error in description resulted from a mutual mistake of fact.
We cannot accept plaintiff's contentions. At the outset, it is not necessary for us to discuss whether a misdescription of property to which a lien attaches may be corrected by amendment, or whether the misdescription renders the lien statement fatally defective and hence not susceptible of amendment. G.S. 1949, 60-1403 provides for the filing of mechanics' or materialmen's liens by subcontractors within sixty days after the date upon which material was last furnished or labor last performed. Plaintiff's lien statement on tract No. 1 was filed May 6, 1957, within the statutory period. Subsequently and on demand of the contractor for the owners of tract No. 1, plaintiff released its lien on July 13, 1957. Although there is no copy of the release in the record and plaintiff maintains its lien was released only as it pertained to tract No. 1, it is clear to us that at the time of release the only lien in effect was the lien on tract No. 1. Having released the only lien it had filed, there is no lien in existence in favor of the plaintiff and therefore none susceptible of amendment or reformation.
In In re Cohen, 204 N.Y.S. 200, 122 Misc. Rep. 451, a mechanic's lien filed against an owner was discharged for failure to prosecute. Later, the claimant filed another notice of lien, which the owner sought to discharge on the theory that whatever rights the lienor had were lost by the discharge of the original notice. The court held that when the second lien was filed the prior lien had ceased to exist. Although there might be a right to file corrected or amended notices of lien, such corrections or amendments would be allowed only while the first lien was in existence. (The right to amend under G.S. 1949, 60-1405 contemplates that there is a lien on file.) Since the lien was no longer in existence, the claimant's remedy against the property had therefore disappeared.
In the instant case no lien statement was ever filed against tract No. 2 or any part thereof. The release of July 13, 1957, extinguished *62 all lien rights claimed by plaintiff. To permit "amendment" or "reformation" would place the court in the position of creating a lien, where none was in effect, long after the expiration of the statutory period for obtaining liens. It follows that the judgment of the trial court is affirmed.
It is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1377103/ | 215 Or. 320 (1959)
334 P.2d 490
JONES
v.
KUBALEK
Supreme Court of Oregon.
Argued December 4, 1958.
Affirmed January 7, 1959.
Petition for rehearing denied January 27, 1959.
*321 Leo Levenson, Portland, argued the cause for appellant. With him on the brief was O.H. Bengtson, Medford.
Hugh B. Collins, Medford, argued the cause and filed a brief for respondent.
Before PERRY[*], Chief Justice, and ROSSMAN, WARNER and O'CONNELL, Justices.
AFFIRMED.
ROSSMAN, J.
This is an appeal by the defendant, a practicing dentist, from a judgment which the circuit court entered in favor of the plaintiff, a member of the Bar, after it had directed the jury to return a verdict in *322 his favor in the amount of $1,333.33. The defendant, in appealing, submits only one assignment of error. It charges that error was committed when a verdict was directed for the plaintiff.
The complaint, which was filed March 27, 1956, alleges (1) March 16, 1953, one Christine Clarke negligently drove her automobile into collision with the defendant, Dr. Kubalek, and thereby injured him; (2) "the defendant employed plaintiff as defendant's attorney at law in the recovery of defendant's damages resulting from said collision. The plaintiff agreed and undertook to so represent the defendant and the defendant agreed to pay to the plaintiff as compensation for such services one third of any amount received by the defendant as damages on account of said collision if received after the commencement of an action to recover the same." Further, the complaint alleges that later the defendant discharged the plaintiff and, after employing another attorney, commenced an action against Christine Clarke which was compromised by the payment to the defendant of $4,000 as damages. A copy of the written agreement, which the plaintiff and the defendant signed, was attached to and made a part of the complaint. The prayer demanded judgment for $1,333.33.
April 30, 1956, the answer was filed. It alleges that plaintiff "requested this defendant to undertake a course of conduct which was not in keeping with ethical standards of lawyers and by reason thereof defendant discharged plaintiff from his employment." The answer did not disclose the nature of the alleged unethical conduct. It alleges that the defendant had offered the plaintiff $300 in payment of the services which the plaintiff rendered prior to his discharge. The reply put at issue the new matter.
*323 May 8, 1956, trial of the action commenced. At the close of the evidence submitted by the plaintiff, his counsel demurred to the new matter in the answer which charged unethical conduct on the ground that it "does not state facts sufficient to constitute a defense." The demurrer was sustained and defendant was given until the following day to file an amended answer. May 9, being the following day, the defendant filed an amended answer which differed from the original only in the detail that it set forth the particulars of the alleged unethical conduct. According to the amended answer, plaintiff's improper conduct consisted of the following: (1) notwithstanding the fact that the injury was sustained in Jackson county, Oregon, and that both the defendant and the purported tort feasor lived in Oregon, the plaintiff suggested that the damage action be filed in California; (2) that the defendant's wife should take the purported tort feasor, Mrs. Clarke, upon a pleasure trip to California where she could be served with process; (3) that defendant's wife should provide the plaintiff with an opportunity for him to interview Mrs. Clarke; and (4) that defendant's wife should ascertain from Mrs. Clarke the amount of insurance which covered her automobile. The amended answer, like the original, averred that the defendant offered the plaintiff $300 as payment for services which he had performed for the plaintiff prior to his discharge. We see from the new matter alleged that the plaintiff's employment and discharge by the defendant were admitted. The fact that the defendant offered the plaintiff $300 in satisfaction of services performed prior to the discharge indicates that the plaintiff had undertaken his duties prior to their termination by the defendant.
After the amended answer had been filed and before *324 presentation of the evidence was resumed, defendant moved for permission to strike from his pleading the averment that $300 was tendered to the plaintiff in payment of services which were performed prior to the discharge. The motion was allowed. Then plaintiff's counsel, in a series of motions, moved to strike from the amended answer the charges of unethical conduct. Some of the motions were allowed with leave to renew the others at the close of the defendant's testimony. Thereupon the defendant presented his evidence.
Evidence presented by the defendant showed that before he discharged the plaintiff, the latter had prepared the required complaint to commence the defendant's personal injury action and had handed it to him for his approval. The complaint was prepared for filing in the circuit court of the state of Oregon for Jackson county. When the complaint was presented to the defendant he signed it and made his oath before a notary public. The date inserted in the jurat is June 15, 1953; however, the defendant thought that he may have signed the pleading "the latter part of June or early July." The signing occurred in the late afternoon and the plaintiff intended to file the complaint the following morning, but before he could do so the defendant requested that he defer the commencement of the action until the defendant telephoned again. The agreement which authorized the plaintiff to represent the defendant, and to which the defendant referred as "the retainer," bears date of June 15, 1953, the same as that of the complaint. The defendant thought that he signed the retainer "the middle of June or the latter part of June." The plaintiff swore that the two papers [complaint and agreement] were signed upon the same day and in the *325 course of the same conference. The agreement, dated June 15, was preceded by another which was effected when plaintiff and defendant did not anticipate that it would be necessary to resort to the courts.
The defendant claimed that the suggestions concerning filing the action in California were made by the plaintiff after "the retainer" agreement was signed but before the complaint was prepared. It will be recalled that the complaint, which the plaintiff prepared, contemplated its filing in the circuit court of this state for Jackson county, that being the county in which the accident occurred and in which the parties resided.
The defendant testified that after he had discharged the plaintiff he had several meetings with the adjuster who represented the insurance company which had issued the policy of liability insurance to Mrs. Clarke. He conceded that in the course of the negotiations the amount which he sought as damages was discussed and that he mentioned something "around eight or nine thousand dollars." Evidently the negotiations failed to yield a satisfactory result and thereupon the defendant employed another attorney. The one then employed was a patient of the defendant. That individual prepared for the defendant's signature a letter which discharged the plaintiff. The letter, dated July 11, 1953, said nothing about unethical conduct. When the plaintiff received it he called upon the defendant for an explanation but was told nothing about ethics and was not accused of having suggested anything unseemly. The defendant's version of that conference, as expressed by him in reply to a question put to him by his own attorney, was this: "he demanded to know why he had been discharged, and I said I had to give no reason."
*326 It will be recalled that the defendant swore that after the retainer agreement was effected, but before the defendant signed the complaint, the plaintiff made his suggestions concerning institution of the case in California. The accident happened in the city of Medford, Jackson county, some miles north of the California line. According to the defendant, the plaintiff thought that a larger settlement could possibly be effected if the action were filed in California. The defendant's wife testified in similar vein and added that the plaintiff said "it would be better off for my husband's profession if the case were not tried in Medford, inasmuch as it was a small town and it would be better if we tried it outside the city of Medford." It appeared that the defendant had only recently established himself in Medford and that the claimed injury was to his back. A few years previously he had sustained a like injury in Chicago and had there brought an action for that injury. The defendant's evidence also disclosed that the plaintiff told him and his wife that it would be necessary to serve Mrs. Clarke with complaint and summons in California if the action were filed there. He asked the defendant whether his wife could induce Mrs. Clarke, who was a friend of hers, to accompany her upon a pleasure trip to California so that service could be made there. Although a part of the new matter alleges that the plaintiff requested the defendant to arrange a meeting between the plaintiff and Mrs. Clarke, the evidence revealed that such a conference actually occurred in the defendant's home. Mrs. Clarke at that time had no attorney and what, if any, information was obtained from her was not mentioned at the trial.
After the defendant had rested, plaintiff renewed his motions to strike, one by one, the averments which *327 charged unethical conduct, and they were sustained. He likewise objected to the introduction of any testimony on the subject of unethical conduct.
We see from the foregoing that before the defendant presented his evidence he voluntarily withdrew the new matter set forth in the amended answer, which alleged tender to the plaintiff of $300 as satisfaction for services performed by the plaintiff before his discharge. We also see that after the plaintiff had presented his evidence, the court, upon the plaintiff's motions, struck all other affirmative defenses from the amended answer; that is, all averments which alleged unethical conduct. After the rulings just mentioned were made, there remained in the defendant's pleading nothing but denials.
After the affirmative defenses had been stricken, the plaintiff moved that the court direct the jury to return its verdict in his favor. By that time evidence presented by the defendant, as well as that of the plaintiff, showed that the latter (1) had investigated the facts bearing upon the liability of Mrs. Clarke to the defendant; and (2) with the aid of physicians, had determined that defendant's collision with Mrs. Clarke's automobile had caused him an injury. The plaintiff had also, as we have seen, prepared for filing a complaint in the contemplated personal injury action which the defendant had signed. The agreement, dated June 15, 1953, entitled the plaintiff to receive 33 1/3 per cent of any amount paid to the defendant "after suit or action has been filed." After the plaintiff's discharge and the appointment by the defendant of another attorney, an action was instituted and thereupon the defendant was paid $4,000 as satisfaction of his claim.
*328 As we have said, the defendant submits only one assignment of error. It states:
"The Court erred in granting respondent's motion for a directed verdict."
The orders which struck from the defendant's pleading the averments of suggested unethical conduct are not challenged by any assignment of error or by any other means.
Rule 50 of this court [203 Or 734] provides that in actions at law "no alleged error of the circuit court will be considered by this court unless regularly assigned as error in the appellant's opening brief, except that * * *." Lawrence Warehouse, Inc. v Best Lumber Co., Inc., 202 Or 77, 271 P2d 661, 273 P2d 993, is a good illustration of the application of that rule under facts similar to those presented by this case. See, also, Buell v. Mathes, 186 Or 160, 197 P2d 687, 205 P2d 551.
The agreement dated June 15, 1953, upon which this action is predicated, was a lawful one and required of neither the plaintiff nor the defendant the performance of any illegal or unethical act. When the plaintiff gave his testimony, the record contained no showing that he wished or proposed to engage in any course of unethical conduct. Efforts to elicit proof of that kind met with objections, and, as we have seen, the defendant's affirmative defenses which alleged unethical conduct met with motions to strike.
1. In Buchtel v. Evans, 21 Or 309, 28 P. 67, Justice ROBERT BEAN expressed a rule of procedure which has gained wide acceptance. The opinion in that case written by him states:
"* * * the illegality of a contract alleged as the ground of the action, in order to be available as a defense, must either appear from plaintiff's *329 own pleadings or proof, or be affirmatively pleaded by defendants."
The rule has been employed so frequently that we will not cite the succeeding applications of it.
2. Since the averments of the answer which sought to attribute to the plaintiff proposals for unethical conduct were stricken, and since evidence which sought to show unethical overtures met with objection, the defense of illegality cannot be considered. As we have said, none of the rulings which the circuit court made upon the subject is challenged by assignment of error. The defendant's discharge of the plaintiff must therefore be regarded as having been done without cause.
3. The defendant made in this court a belated attack upon the sufficiency of the complaint as the statement of a cause of action. In the circuit court no demurrer was filed, and in this court no assignment of error attacks the complaint. We have considered the latter and are satisfied that it states a cause of action.
4. There remains for consideration only whether the trial court employed the correct measure of recovery when it instructed the jury to return its verdict in the sum of $1,333.33. It will be observed that the plaintiff was ready to proceed with the filing of the complaint when he was halted by the defendant and shortly discharged. We believe that the correct measure of award was employed. Dolph v. Speckart, 94 Or 550, 179 P. 657, 186 P. 32, and Snow v. Beard, 82 Or 518, 162 P. 258. See, also, Berry v. Nichols, 227 Ark 297, 298 S.W.2d 40; 7 CJS, Attorney and Client, p 1027, § 169a (2). It is our belief that the defendant's assignment of error discloses no infirmity in the challenged judgment.
In having set forth the record in the above manner, *330 we have intended no reflection upon the plaintiff. When the challenged judgment was entered, he had not had an opportunity of presenting his testimony upon the subject of the attributed unethical conduct.
We have found no error. The judgment entered by the circuit court is affirmed.
NOTES
[*] Chief Justice when this cause was argued. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1377102/ | 103 Ga. App. 18 (1961)
118 S.E.2d 293
STATE HIGHWAY DEPARTMENT
v.
SINCLAIR REFINING COMPANY.
38532.
Court of Appeals of Georgia.
Decided January 6, 1961.
*19 Eugene Cook, Attorney-General, Paul Miller, Assistant Attorney-General, Payne & Heard, E. Freeman Leverett, Woodrow Lavender, for plaintiff in error.
Williford & Grant, contra.
NICHOLS, Judge.
1. Special grounds 4, 5 and 6 of the condemnor's amended motion for new trial in this case are controlled adversely to the condemnor by the decision in division 2 of the opinion in State Highway Dept. v. Robinson, ante.
2. Special ground 7 complains that the trial court erred in charging the jury with reference to consequential damages because there was no evidence sufficiently definite and competent to support a verdict for consequential damages.
The gist of this complaint is not that the charge given was contrary to law, but merely that there was no competent evidence adduced on the trial of the case to authorize such charge. Among others, Mr. W. H. Hoover, a witness for the condemnor, testified as to the consequential damages to the condemnee's property. Mr. Hoover was qualified as an expert by the condemnor, and while this witness did not testify as to the market value of the whole property owned by the condemnee before the taking, the value of the remainder after the taking and the difference in such values, since the condemnor had qualified this witness as an expert, the evidence of his opinion, under Code § 38-1710, was admissible and authorized the charge complained of. See also Minsk v. Fulton County, 83 Ga. App. 520 (64 S.E.2d 336). The trial court did not err in giving the charge complained of.
3. Special ground 8 complains that the trial court erred in failing to charge that, in the event the jury awarded the condemnee consequential damages, the total award could not be in excess of the total value of the whole property before the taking. The court instructed the jury: "The method of determining the consequential damages, if any, would be the market value *20 of the land not taken immediately before the taking of the land by the State Highway Department and the market value of the land not taken immediately after the taking of the land by the State Highway Department. The difference in those two values, if any, would be the measure of consequential damages." The jury was elsewhere instructed as to the value of the land taken. When such charge is considered in its entirety it is evident that the jury could not, under the instructions given, have awarded the condemnee compensation in excess of the total value of the complete tract of land before the taking. If additional instructions had been desired they should have been the subject of a timely written request.
4. Special ground 9 is controlled adversely to the condemnor by the ruling in division 3 of the opinion of this court in the case of State Highway Dept. v. Robinson, ante.
5. Special ground 10 was expressly abandoned by the plaintiff in error in its brief and will therefore not be considered.
6. Special ground 11 complains that the trial court erred in refusing to grant its motion for mistrial made after the condemnee made a motion, in the presence of the jury, that the jury be allowed to view the premises affected by the condemnation action. Special ground 12 complains that the trial court erred in permitting the jury, over objection, to view the premises affected by the condemnation. These special grounds will be considered together inasmuch as they deal with the same subject matter.
In Shahan v. American Tel. & Tel. Co., 72 Ga. App. 749 (35 S.E.2d 5), it was held that, while it was improper to make a motion in the presence of the jury, that the jury be allowed to view premises involved in the litigation, it was not harmful error where the trial court promptly excluded the jury, thereby enabling counsel to make any objection to the motion which he saw fit out of the presence of the jury. Special ground 12 shows that the jury was excluded while objections were made, and special ground 11 does not show that the jury was present when the motion for mistrial was made. "`The trial judge in passing upon a motion for mistrial on account of alleged improper argument or remarks (by counsel) to the jury is vested with a broad *21 and sound discretion, and his ruling will not be controlled by this court unless manifestly abused.' [Smith v. State, 204 Ga. 184, 188, 48 S.E.2d 860]." J. W. Starr & Sons Lmbr. Co. v. York, 89 Ga. App. 22 (3) (78 S.E.2d 429). In Shahan v. American Tel. & Tel. Co., 72 Ga. App. 749, 752, supra, a motion was made in the presence of the jury that the jury be allowed to visit and inspect the property involved, and this court, in dealing with such assignment of error stated: "It appears . . . that immediately after the motion was made the court ordered the retirement of the jury and that counsel for the plaintiff then had an opportunity to object to the motion out of the presence of the jury. It also appears that no motion for mistrial was made by counsel for the plaintiff. Although we think it was clearly improper practice to make the motion to allow the view by the jury in their presence, the court removed the wrong as soon as possible by excluding the jury, and in the absence of a motion for a mistrial at the time this complaint shows no reversible error." In that case the question of whether a mistrial would be demanded, if asked for, was not presented. It appears from the record in the present case that the jury, as in the Shahan case, was immediately retired upon counsel for the condemnee making the motion that the jury be allowed to view the premises. In the case of National Box Co. v. Bradley, 171 Miss. 15, 31 (157 So. 91, 95 A. L. R. 1500), it was said, with reference to a request that the jury be allowed to view the premises involved in the litigation: "When, without first having the jury retired, such a request is made and in the presence of the jury the judge may and generally should overrule it because thus improperly made and without waiting for an objection from the other side, unless of course the other side immediately join in the request. And when such a request is made improperly in the presence of the jury, and the court does not then and there at once overrule it, because thus improperly made, and the other party does not immediately announce anything as to whether he will or will not join in the request, the judge should, of his own motion, retire the jury, and if he do not, the opposite party must request the retirement, and if upon that request the court still fails to retire the jury and the party then makes his objection *22 to the view, the failure to retire the jury will constitute reversible error, if the evidence be strongly conflicting, whether the order for a view is made or is not made this because the judge has compelled the party to make his objection in the presence of the jury to his injury as aforementioned. But in order to constitute reversible error, as regards the matter of procedure, the objecting party must (1) make the request for the retirement of the jury, and (2) he must object to the view. The controlling point is that the party must have been obliged, in order to make his objection at all, to make it in the presence of the jury. Until the objecting party has requested the retirement of the jury, any previous failures to conform to the rules of practice above stated will be considered as breaches of propriety but not as reversible error." Since the jury was immediately retired and the condemnor made its objections in the absence of the jury no reversible error is shown by the judgment refusing to grant the motion for mistrial.
The judgment of the trial court permitting the jury to view the premises fails to show reversible error, for as was said in Shahan v. American Tel. & Tel. Co., 72 Ga. App. 749, 753 supra. "Whether the court permitted the view by the jury was wholly within the sound discretion of the trial judge, and no abuse of that discretion is shown in this complaint." No abuse of discretion was shown.
7. Special ground 13 complains that the trial court erred in excluding certain evidence adduced by the condemnor on cross-examination of a witness for the condemnee. It was sought to be shown by this evidence that the condemnee had intentionally violated rules and regulations of the State Highway Department by constructing a "pump island" closer to the road than such rules and regulations permitted, and that as a result of such violation the condemnee was not entitled to compensation for having to remove such "pump island" from the property condemned. The evidence adduced, and ruled out on motion of the condemnee, dealt with certain rules and regulations of the State Highway Department. The court in ruling out such evidence stated: "The State Highway Department has condemned this tract of land, has acquired title to it by judgment of condemnation signed *23 by this court, of which this pump island is a part; and the State Highway Department says that it is stands ready to pay just and adequate compensation for said right-of-way, so I will rule out all evidence with reference to these Highway Regulations." The regulations under discussion were revised in 1958. This ruling did not rule out any regulations which might be shown to have been in effect when the pump islands were constructed. Regulations of the State Highway Department dealing with the location of "pump islands" for service stations located adjacent to State highways, would have no reference to "pump islands" installed prior to the adoption of such regulations. In the absence of a showing that such regulations were in existence at the time the "pump islands" were installed no error is shown by this ground of the motion for new trial.
8. Special ground 14 complains that the trial court erred in refusing to permit the condemnor to ask a witness for the condemnee, on cross-examination, the following question which had reference to the gasoline pumps which were located on the property condemned by the State Highway Department: "Did you or did you not know that your pumps and your competitor's pumps were holding up the building and construction of the new highway?" In the case of Herrington & Co. v. Shumate Razor Co., 6 Ga. App. 861, 864 (65 S.E. 1064), it was held that conclusions of witnesses are of no probative value unless the facts on which the opinions are based sustained the opinions rendered. See also Gordy Tire Co. v. Bulman, 98 Ga. App. 563, 564 (106 S.E.2d 332), where it was said: "While many times witnesses may state as facts that which are really conclusions on their part, in the absence of evidence to show that such statements are conclusions they must be taken as a statement of fact (See Malleable Iron Range Co. v. Caffey, 64 Ga. App. 497 [13 S.E.2d 722]), but where the other testimony shows the `opinions' stated to be merely conclusions not supported by the facts to which the witnesses testified the conclusions are without any probative value." The question in the present case shows that any answer that might have been given by the witness would have been a conclusion. The witness may have concluded that the pumps were holding up work on the new highway, but he, *24 an employee or agent of the condemnee, could not have knowledge of why the highway was not being constructed by the condemnor. Moreover, the condemnor had had fee simple title to the property with the right to enter adjacent land owned by the condemnee for the purpose of removing such pumps if it desired to do so. No harmful error is shown by this ground of the motion for new trial.
9. Special ground 15 of the amended motion for new trial complains that the trial court erred in refusing to permit a witness for the condemnor to answer the following question: "In dealing with Sinclair Oil Company, or Sinclair Refining Company, do you consider that they treated you fairly?" After counsel for the condemnee objected to such question, counsel for the condemnor stated that by such question he was attempting to impeach the witnesses for the condemnee, a corporation, by showing that the witness, who had dealt with the condemnee over a period of years, would not believe its officers, agents and employees under oath.
The Code provides for the impeachment of witnesses when the jury determines that the witness is unworthy of belief. However, where a party does not testify, what is there to be impeached? A corporation may act only through its officers, agents etc., and its witnesses in the trial of a case may be impeached, but where a witness, who is not himself a party, is impeached this does not impeach every witness that testifies for the party to the case on trial. However, an examination of the question asked the witness, if answered, would not have had the effect of impeaching the "corporation" but rather would have tended to weaken the testimony of the condemnor's witness. The witness was asked if he felt that the corporation had treated him fairly. According to the statement of counsel for the condemnor, of what he expected to prove by this witness, the witness would have testified that he did not think the corporation had treated him fairly. This testimony, if given, would have tended to show that the witness harbored ill will toward the corporation. In the case of Skipper v. State, 59 Ga. 63, 66 (2), Judge Bleckley, speaking for the Supreme Court, said: "The law brands no witness as impeached just because he is not at peace with the *25 scoundrel against whom he testifies. It recognizes the possibility of bias in his evidence, but it does not go further, and convert the possibility into a certainty. It leaves that for the jury to do, in the event they shall believe, on their oaths, that it ought to be done, under all the circumstances of the particular case." The testimony objected to by the condemnee would have been hurtful only to the condemnor if admitted, and its exclusion, if error, was certainly not harmful.
10. Special ground 16 insists that a new trial should be granted because of certain newly discovered evidence. Affidavits and counter-affidavits, are attached to the motion for new trial. At the hearing of the amended motion for new trial the condemnor made certain objections to excerpts from the counter-affidavits, which were overruled by the trial court, and error is assigned on such objections in the bill of exceptions. Without considering the objections to the affidavits of the condemnee, inasmuch as such a consideration is not necessary for a decision of the case, the affidavits of the condemnor and parts of the affidavits of the condemnee to which no objection is taken, show that the newly discovered evidence is merely cumulative or impeaching in character. Therefore, the trial court did not abuse its discretion in refusing the condemnor's motion for new trial on this ground.
11. The amount of the verdict for the condemnee was authorized by the evidence.
Judgment affirmed. Felton, C. J., and Bell, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1377109/ | 118 S.E.2d 766 (1961)
254 N.C. 297
STATE
v.
Levi ALDRIDGE.
No. 77.
Supreme Court of North Carolina.
March 22, 1961.
T. W. Bruton, Atty. Gen., and A. G. Jones, Jr., Asst. Atty. Gen., for the State.
Charles L. Abernethy, Jr., New Bern, for defendant, appellant.
BOBBITT, Justice.
The evidence, when considered in the light most favorable to the State, was sufficient to warrant submission to the jury and to support the verdict and judgment. Hence, assignments of error directed to the court's refusal to allow defendant's motions for judgment as in case of nonsuit (G.S. § 15-173) are overruled. In this *767 connection, see State v. Bowman, 231 N.C. 51, 55 S.E.2d 789, and cases cited.
The prosecutrix was, and for some years had been, married to one Joseph Larosa Williams.
On direct examination, the prosecutrix, the State's first witness, in response to a question asked by the court, stated that she was married. Thereupon, in response to further questions by the court, the prosecutrix testified that the child was born in April, 1960, that she did not know where her husband lived, and that she had not seen her husband for over two years. In a discussion, in the presence of the jury, as to the competency of the prosecutrix's said testimony, the court said: "She said she had no access to her husband in over two years." At the conclusion of said discussion, the court instructed the jury to "disregard" the prosecutrix's testimony "about her non-access to her husband."
No testimony as to non-access was elicited during the further direct examination of the prosecutrix. However, during crossexamination, the prosecutrix testified that she had not had sexual relations with her husband and had not seen him for over two years.
The prosecutrix's testimony as to the nonaccess of her husband was incompetent. State v. Bowman, 230 N.C. 203, 52 S.E.2d 345, and cases cited; Biggs v. Biggs, 253 N.C. 10, 14, 116 S.E.2d 178, and cases cited. In State v. Bowman, supra, 230 N.C. 203, 52 S.E.2d 345, a criminal prosecution for violation of G.S. § 49-2, a new trial was awarded for error in admitting testimony of the prosecutrix as to non-access similar to that elicited from the prosecutrix herein.
In State v. Strickland, 229 N.C. 201, 207, 49 S.E.2d 469, 473, Seawell, J., said: "In appraising the effect of incompetent evidence once admitted and afterwards withdrawn, the Court will look to the nature of the evidence and its probable influence upon the minds of the jury in reaching a verdict. In some instances because of the serious character and gravity of the incompetent evidence and the obvious difficulty in erasing it from the mind, the court has held to the opinion that a subsequent withdrawal did not cure the error. But in other cases the trial courts have freely exercised the privilege, which is not only a matter of custom but almost a matter of necessity in the supervision of a lengthy trial. Ordinarily where the evidence is withdrawn no error is committed. (Citations)" This statement is quoted with approval in State v. Green, 251 N.C. 40, 46, 110 S.E.2d 609.
While the State offered the testimony of other witnesses relevant to nonaccess, obviously such testimony had much less probative force than the testimony of the prosecutrix. In our opinion, notwithstanding the court's instruction, it was virtually impossible for the jurors to erase from their minds the impact of said incompetent testimony of the prosecutrix.
The more difficult question is whether defendant lost the benefit of his exception when the prosecutrix, in answering questions asked on cross-examination, gave testimony of like import.
The testimony of the prosecutrix, if accepted by the jury, was sufficient to establish that defendant was the father of her child. This, as indicated by the charge, was the controverted issue.
The evidence before us is in narrative form. However, it seems clear that the questions asked on cross-examination were not general questions for the purpose of eliciting information but for the sole purpose of impeaching the prosecutrix's testimony as to nonaccess. In short, the cross-examiner proceeded on the theory that the prosecutrix's incompetent testimony, notwithstanding the court's instruction, was in fact imbedded in the minds of the jurors. Hence, he undertook, with indifferent *768 success, to impeach her testimony as to nonaccess.
In Hamilton v. Hines Bros. Lumber Co., 160 N.C. 47, 48, 75 S.E. 1087, it was held, as stated in the second headnote, that "(t)he erroneous admission of evidence on direct examination is held not to be prejudicial when it appears that on cross-examination the witness was asked substantially the same question and gave substantially the same answer." This general statement is quoted with approval in Ledford v. Valley River Lumber Co., 183 N.C. 614, 616, 112 S.E. 421; Cook v. Mebane, 191 N.C. 1, 7, 131 S.E. 407; Hanes v. Southern Public Utilities Co., 191 N.C. 13, 19, 131 S.E. 402; and Tyler v. Howell, 192 N.C. 433, 437, 135 S.E. 133. The rule indicated by this general statement has been applied in the cited cases and others in relation to diverse factual situations. Whether the erroneous admission of incompetent evidence on direct examination should be deemed cured and held nonprejudicial under such circumstances would seem to depend largely upon the nature of the evidence and the circumstances of the particular case.
In Shelton v. Southern R. R., 193 N.C. 670, 674, 139 S.E. 232, 235, Brogden, J., after quoting, with apparent approval, the general rule stated in Hamilton v. Hines Bros. Lumber Co., supra, continued: "but when a trial judge admits evidence over objection, it thereupon becomes proper evidence to be considered by the jury so far as the particular trial in the Superior Court is concerned, and the rule does not mean that the adverse party may not, on crossexamination, explain the evidence or destroy its probative value, or even contradict it with other evidence, upon peril of losing the benefit of his exception." In this connection, see State v. Godwin, 224 N.C. 846, 32 S.E.2d 609; State v. Tew, 234 N.C. 612, 68 S.E.2d 291; Jones v. Bailey, 246 N.C. 599, 99 S.E.2d 768.
In Shelton v. Southern R. R., supra, the specific holding was that the defendant did not by cross-examination waive the benefit of his exception to incompetent evidence elicited on direct examination and erroneously admitted. Brogden, J., quotes from Marsh v. Snyder, 14 Neb. 237, 15 N.W. 341, the following: "Where an exception is duly taken to the admission of illegal testimony, it is not waived by mere cross-examination of the witness respecting it." The opinion cites numerous cases from other jurisdictions to like effect. In this connection, see Stansbury, North Carolina Evidence, § 30; 3 Am.Jur., Appeal and Error § 277, p. 53; 5A C.J.S. Appeal & Error § 1735(c) (1), p. 1034.
Whether the rule enunciated and applied in Hamilton v. Hines Bros. Lumber Co., supra, and the rule enunciated and applied in Shelton v. Southern R. R., supra, are in irreconcilable conflict or may be harmonized, is not presently determined. The precise question is not presented by this appeal.
Here, the prosecutrix's testimony as to non-access was erroneously elicited by the court and thereafter the jury was instructed to "disregard" it. Defendant's counsel was confronted by the fact that the prosecutrix's incompetent testimony as to non-access was in the minds of the jurors and that an unfavorable verdict was probable unless her testimony was impeached. We are constrained to hold that defendant did not lose the benefit of his exception to the eliciting of the prosecutrix's incompetent testimony on account of his counsel's attempt to impeach the credibility of the prosecutrix in respect of such incompetent testimony. It seems probable that the jury's verdict was based in substantial part on incompetent evidence bearing directly on the crucial issue notwithstanding the court instructed the jury to "disregard" it. Hence, a new trial is awarded.
New trial. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1726517/ | 735 N.W.2d 192 (2007)
2007 WI App 162
BOSSMANN
v.
ESTATE OF SCHWERTFEGER.[1]
No. 2006AP246.
Court of Appeals of Wisconsin.
May 24, 2007.
Unpublished opinion. Affirmed.
NOTES
[1] Petition for Review Filed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379453/ | 541 S.E.2d 699 (2000)
246 Ga. App. 729
KWICKIE/FLASH FOODS, INC.
v.
LAKESIDE PETROLEUM, INC.
No. A00A2451.
Court of Appeals of Georgia.
November 8, 2000.
Gibson & Spivey, Douglas L. Gibson, Waycross, for appellant.
Robert D. Schoen, for appellee.
ELDRIDGE, Judge.
Appellee-plaintiff Lakeside Petroleum, Inc. ("Lakeside") brought the instant action for breach of contract[1] or, in the alternative, for quantum meruit or unjust enrichment against appellant-defendant Kwickie/Flash Foods, Inc. ("Flash Foods"). Lakeside sought damages in the amount of $21,297.42, the balance owing for gasoline and diesel fuel it delivered to a Milledgeville Flash Foods store. Flash Foods timely filed its answer denying the material allegations of the complaint and admitting its receipt of such fuel in the alleged amount under a contract between the parties. Thereafter, Lakeside filed its motion for judgment on the pleadings, arguing that Flash Foods had otherwise admitted liability for the value of the fuel on quantum meruit or an unjust enrichment theory, Counts 2 and 3 of the complaint, respectively. Flash Foods now appeals from the superior court's order granting Lakeside judgment on the pleadings in the sum of $21,297.42, as well as its costs of litigation and interest. Held:
*700 "The grant of a motion for judgment on the pleadings under OCGA § 9-11-12(c) is proper only where there is a complete failure to state a cause of action or defense. Pressley v. Maxwell, 242 Ga. 360, 249 S.E.2d 49 [(1978)]" Maxwell v. Cronan, 241 Ga.App. 491, 493(1), 527 S.E.2d 1 (1999). "`For the purposes of the motion, all well-pleaded material allegations of the opposing party's pleading are to be taken as true, and all [well-pleaded] allegations of the moving party which have been denied are taken as false.' [Cits.]" Pressley v. Maxwell, supra at 360, 249 S.E.2d 49.
Recovery in quantum meruit is not authorized when, as here, the claim is based on an express contract,[2]Stowers v. Hall, 159 Ga.App. 501(1), 283 S.E.2d 714 (1981); Brumby v. Smith & Plaster Co., 123 Ga.App. 443, 181 S.E.2d 303 (1971); see also Millican Elec. Co. v. Fisher, 102 Ga.App. 309, 310(1), 116 S.E.2d 311 (1960) ("The averment of an express contract within the allegations of a single count predicated on the theory of quantum meruit is sufficient to subject the count to demurrer[.] [Cit.]"). Neither does an unjust enrichment theory lie where there is an express contract. Cochran v. Ogletree, 244 Ga.App. 537, 538(1), 536 S.E.2d 194 (2000); Zampatti v. Tradebank Intl. Franchising Corp., 235 Ga.App. 333, 340(5), 508 S.E.2d 750 (1998).
While Lakeside argues that Flash Foods otherwise admitted liability on quantum meruit and unjust enrichment theory by its answer, the record shows that Lakeside pled its entitlement to recovery on these theories on the basis of the contract between the parties alone. Pretermitting whether Flash Foods answered, in part, by admitting the elements of an action in quantum meruit or unjust enrichment, Flash Foods nevertheless denied liability for damages under either theory. Doing so sufficiently stated a defense to each claim, i.e., neither Count 2 (quantum meruit) nor Count 3 (unjust enrichment) alleged a cause of action as based on the contract between the parties. Stowers v. Hall, supra; Brumby v. Smith & Plaster Co., supra; Millican Elec. Co. v. Fisher, supra; Cochran v. Ogletree, supra; Zampatti v. Tradebank Intl. Franchising Corp., supra. As a consequence, the superior court erred in granting Lakeside's motion for judgment on the pleadings as to Counts 2 and 3 of the complaint. Pressley v. Maxwell, supra. Finally, Flash Foods, having sufficiently stated its defense by general denial as to Count 1 (breach of contract), see Knickerbocker Tax Systems v. Texaco, 130 Ga.App. 383, 385, 203 S.E.2d 290 (1973) (express denial of the allegations of the complaint sufficient to create a triable issue), overruled on other grounds, Eckles v. Atlanta Technology, 267 Ga. 801, 806, 485 S.E.2d 22 (1997), Lakeside would not have been entitled to judgment on the pleadings on this basis even had such relief been sought. See Pressley v. Maxwell, supra at 360, 249 S.E.2d 49; Maxwell v. Cronan, supra at 493(1), 527 S.E.2d 1. For the foregoing reasons we must reverse.
Judgment reversed.
BLACKBURN, P.J., and BARNES, J., concur.
NOTES
[1] The complaint does not specify whether the contract was oral or written.
[2] However, the contrary is true in the absence of such a contract or in circumstances where the contract has been repudiated by the parties. Brumby v. Smith & Plaster Co., 123 Ga.App. 443, 444(1), 181 S.E.2d 303 (1971). If "there is no specific contract or the contract agreed to is repudiated by both parties, an action sounding in quantum meruit will lie for whatever work was done and accepted." Stowers v. Hall, 159 Ga. App. 501, 502(3), 283 S.E.2d 714 (1981). Recovery in quantum meruit also lies in the event a written employment contract is breached by the employer. OCGA § 10-6-37; Gilbert v. Powell, 165 Ga.App. 504, 508(2), 301 S.E.2d 683 (1983); Redman Dev. Corp. v. Pollard, 131 Ga.App. 708, 710, 206 S.E.2d 605 (1974). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379452/ | 799 F. Supp. 26 (1992)
MAIN ROAD BAKERY, INC., trading as Upper Krust Bakery, Plaintiff,
v.
CONSOLIDATED FREIGHTWAYS, INC., Defendant.
Civ. A. No. 91-1476.
United States District Court, D. New Jersey.
August 12, 1992.
Alan G. Giebner, Buonadonna & Benson, Vineland, N.J., for plaintiff.
William D. Bierman, Westwood, N.J., for defendant.
OPINION
BROTMAN, Senior District Judge.
This action arises out of the shipment of a bake oven by the defendant, Consolidated Freightways, Inc. ("Consolidated") to the plaintiff, Main Road Bakery, Inc. trading as Upper Krust Bakery ("Main Road Bakery") which was completely damaged by Consolidated before delivery. Presently before the court is Consolidated's motion for summary judgment.
I. FACTS AND PROCEDURE
On August 30, 1990, Main Road Bakery, located in Vineland, New Jersey, ordered a Middleby Marshall Direct Gas Fired Revolving Tray Oven ("bake oven") having a capacity of 25 standard size bun pans from Cutler Industries, Inc. ("Cutler"). On September 5, 1990, Cutler delivered the bake oven to Consolidated in Niles, Illinois for transportation and delivery to Main Road Bakery. Also on September 5, 1990, Consolidated issued a bill of lading contract as prescribed and mandated by the Interstate Commerce Commission. The bill of lading stated "Express Delivery" and "Do Not Delay."
On September 7, 1990, Consolidated contacted Terry Cantoni, the President of Main Road Bakery, and informed him that the bake oven was in transit and would be *27 delivered by 9:00 a.m. on September 10, 1990. Cantoni informed Consolidated that on September 9, 1990, Main Road Bakery would disassemble its existing oven in preparation of the delivery of the bake oven. The bake oven arrived at the Consolidated terminal in Vineland on schedule. Upon unloading from the trailer, a fork lift punctured a 55 gallon drum of the chemical vinzyene, a liquid fungicide. The vinzyene saturated various parts of the bake oven completely damaging it and rendering it a total loss.
In March, 1991, Main Road Bakery brought a suit against Consolidated in the Superior Court of New Jersey, Law Division for negligence. On April 5, 1991, Consolidated removed the suit to this court pursuant to 28 U.S.C. § 1441 and 49 U.S.C. § 11707(d)(2)(A)(iii). Subsequently, on April 23, 1991, Consolidated and Cutler entered into a release and settlement agreement by which Consolidated agreed to pay Cutler $17,835.00 for the physical damage to the oven. In return, Cutler agreed to give up any and all claims which it may have had against Consolidated. Main Road Bakery was not a party to the release and settlement agreement.
In its complaint, Main Road Bakery seeks special damages in an unspecified amount resulting from Consolidated's inability to deliver the bake oven on September 10, 1990. Specifically, it seeks special damages for: 1) the costs of paying installment experts on September 10, 1990; 2) the costs of paying for the exclusive use of a trailer for delivering a replacement bake oven directly from the manufacturer; and 3) lost profits for closing the bakery for approximately seven days until a replacement bake oven could be installed.
II. DISCUSSION
The standard for granting summary judgment is a stringent one. A court may grant summary judgment only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir.1986); Lang v. New York Life Ins. Co., 721 F.2d 118, 119 (3d Cir.1983). In deciding whether there is a disputed issue of material fact the court must view all doubt in favor of the nonmoving party. Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n. 2 (3d Cir.1983); Smith v. Pittsburgh Gage & Supply Co., 464 F.2d 870, 874 (3d Cir.1972). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986).
Supreme Court decisions mandate that "a motion for summary judgment must be granted unless the party opposing the motion can produce evidence which, when considered in light of that party's burden of proof at trial, could be the basis for a jury finding in that party's favor." J.E. Mamiye & Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 618 (3d Cir.1987) (Becker, J., concurring) (citing Anderson, 477 U.S. 242, 106 S. Ct. 2505, and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). Moreover, once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "its opponent must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). Thus, if the non-movant's evidence is merely "colorable" or is "not significantly probative," the court may grant summary judgment. Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11.
In its motion for summary judgment, Consolidated argues that the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 11707, formerly 49 U.S.C. § 20(11), ("Carmack Amendment")[1]*28 preempts state common law remedies for negligent damage to goods shipped by a common carrier and that Main Road Bakery's claim for special damages were not foreseeable at the time that the bill of lading contract was made and must be dismissed.
Although the Third Circuit has not considered the issue, the other circuits are in agreement that the Carmack Amendment preempts state common law remedies for negligent damage to goods shipped by a common carrier under a lawful bill of lading. See Underwriters at Lloyds of London v. North American Van Lines, 890 F.2d 1112, 1115-1121 (10th Cir.1989); Intech, Inc. v. Consolidated Freightways, Inc., 836 F.2d 672, 677 (1st Cir.1987); Hughes v. United Van Lines, Inc., 829 F.2d 1407, 1415 (7th Cir.1987); Hopper Furs Inc. v. Emery Air Freight Corp., 749 F.2d 1261, 1264 (8th Cir.1984); Air Products & Chemicals v. Illinois Central Gulf Railroad Co., 721 F.2d 483, 487 (5th Cir. 1983); W.D. Lawson & Co. v. Penn Central Co., 456 F.2d 419, 421 (6th Cir.1972); see also Philips Consumer Electronics v. Arrow Carrier Corp., 785 F. Supp. 436, 440 (S.D.N.Y.1992); Pierre v. United Parcel Service, Inc., 774 F. Supp. 1149, 1150 (N.D.Ill.1991). These cases rely on the Supreme Court's pronouncement in Adams Express Co. v. Croninger, 226 U.S. 491, 33 S. Ct. 148, 57 L. Ed. 314 (1913) that Congress enacted the Carmack Amendment in 1906 to "take possession of the subject [of interstate carriers' liability for property loss], and supersede all state regulation with reference to it...." Id. at 505-506, 33 S.Ct. at 152. Accord New York, New Haven & Hartford Railroad Co. v. Nothnagle, 346 U.S. 128, 131, 73 S. Ct. 986, 988, 97 L. Ed. 1500 (1953); Atchison, Topeka & Santa Fe Railway Co. v. Harold, 241 U.S. 371, 378, 36 S. Ct. 665, 668, 60 L. Ed. 1050 (1916).
Even when the Carmack Amendment preempts state common law remedies, special damages are still recoverable under the Carmack Amendment if the carrier had notice of the special circumstances from which such damages would flow at the time the bill of lading contract was made. Contempo Metal Furniture Co. v. East Texas Motor Freight Lines, Inc., 661 F.2d 761, 765 (9th Cir.1981); Hector Martinez & Co. v. Southern Pacific Transportation, 606 F.2d 106, 109 (5th Cir.1979); Starmakers Publishing Corp. v. Acme Fast Freight, Inc., 646 F. Supp. 780, 782 (S.D.N.Y.1986); Starmakers Publishing Corp. v. Acme Fast Freight, Inc., 615 F. Supp. 787, 791 (S.D.N.Y.1985); see also 3 Farnsworth on Contracts § 12.14. This allowance for special damages is derived from the seminal case of Hadley v. Baxendale, 9 Ex. 341, 156 Eng.Rep. 145 (1854). In Hadley, mill operators shut down their business because the crankshaft of the steam engine was broken. When the carrier was delayed in transporting the broken shaft to a foundry for replacement, the mill operators sued the carrier for lost profits due to the delay. The Hadley court disallowed the claim for loss profits since the carrier was not informed, at the time the contract was made, that the mill operators would have to shut down their business. Id. at 151; see also Turner's Farms, Inc. v. Maine Central Railroad Co., 486 F. Supp. 694, 699 (D.Maine 1980); Restatement (Second) of Contracts § 351; 5 Corbin on Contracts § 1016.
The court holds that the Carmack Amendment preempts Main Road Bakery's common law claim for negligence. The court also holds that Main Road Bakery's claim for special damages must be dismissed because Consolidated did not have notice at the time the bill of lading contract was made, on September 5, 1990, that its *29 inability to deliver the bake oven on September 10, 1990 would result in these special damages. It was not until September 7, 1990, when the bake oven was already in transit, that Cantoni informed Consolidated that Main Road Bakery would disassemble it existing oven on September 9, 1990 in preparation of the delivery of the bake oven. As a result, Consolidated did not have notice, at the time of contracting, that Main Road Bakery would lose profits from its inability to deliver the bake oven on schedule, that the bakery would hire installment experts on September 10, 1990 or that the bakery would have to pay for the exclusive use of a trailer to obtain a replacement bake oven directly from the manufacturer. As the Contempo court held:
The purpose of this rule [of notice of special damages at the time of contracting] is to enable the carrier to protect itself from special damages by negotiating special contractual terms, declining the shipment, or taking special precautions to avoid the loss. [citations omitted]. Because the carrier is taking the risk that events appreciably beyond its control may prevent it from performing the contract, the carrier is entitled to notice of any unforeseeable consequences of nonperformance so that the carrier can protect itself. [citation omitted]. Notice after the contract is made does not afford opportunity for this self-protection.
Contempo at 765.
Moreover, the words "Express Delivery" and "Do Not Delay" on the bill of lading contract did not give Consolidated notice that Main Road Bakery was going to disassemble its existing oven on September 9, 1990. These words also did not notify Consolidated that the bakery was planning on hiring installment experts on the day that the bake oven was scheduled to arrive or that the bakery planned on paying for the exclusive use of a trailer for the delivery of a replacement oven. It would have been reasonable for Consolidated to assume at the time of contracting, without being notified otherwise, that the bakery would not disassemble it existing oven until the new oven was delivered and that the bakery would have a replacement oven shipped in the same manner if it was unable to deliver the bake oven.
III. CONCLUSION
For the foregoing reasons, defendant Consolidated's motion for summary judgment is granted.
NOTES
[1] The Carmack Amendment states in relevant part:
A common carrier providing transportation or service subject to the jurisdiction of the Interstate Commerce Commission ... shall issue a receipt or bill of lading for property it receives for transportation.... That carrier or freight forwarder and any other common carrier that delivers the property and is providing transportation or service subject to the jurisdiction of the Commission ... are liable to the person entitled to recover under the receipt or bill of lading. The liability imposed under this paragraph is for the actual loss or injury to the property....
49 U.S.C. § 11707(a)(1). For purposes of this motion, the court will assume that Main Road Bakery is entitled to recover under the bill of lading. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379451/ | 541 S.E.2d 46 (2000)
246 Ga. App. 357
The STATE
v.
MALLARD.
The State
v.
Longino.
Nos. A00A0940, A00A0941.
Court of Appeals of Georgia.
October 13, 2000.
*48 N. Stanley Gunter, District Attorney, Lynn Akeley-Alderman, Assistant District Attorney, for appellant.
Valpey & Walker, Gregory W. Valpey, Leonard C. Parks, Jr., for appellees.
*47 BLACKBURN, Presiding Judge.
In related cases, the State appeals the trial court's grant of defendants Robert Jacob Mallard's and Anthony Longino's motions to suppress marijuana discovered following the stop of their car shortly after they had left a residence on which a search warrant was about to be executed. We affirm the ruling of the trial court.
The standard of review here is: "On reviewing a trial court's ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court's findings on disputed facts and credibility must be accepted unless clearly erroneous." (Punctuation omitted.) Rider v. State.[1]
Where 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. State v. Becker.[2]
So viewed, the evidence at the motion to suppress hearing showed that the Appalachian Drug Task Force was preparing to execute a search warrant on the residence of Ron Cantrell. Officer Robin McClure, one of the officers executing a search warrant on a different premises from the subject house, testified that she received a call that a maroon Honda, containing two unidentified males, had just left the Cantrell residence, prior to the execution of the search warrant for those premises. She stopped the Honda approximately a half-mile from the Cantrell residence, for the sole purpose of determining if Cantrell, the owner of the premises to be searched, was in the vehicle.
McClure quickly determined that Cantrell was not in the car after checking the occupants' driver's licenses. After concluding the purpose of the stop, Officer McClure asked the occupants if they had any marijuana in the vehicle. McClure testified that the officers had information from a confidential informant that drug transactions had been taking place at the Cantrell home. The purpose of the warrant was to search the Cantrell home for marijuana. It is undisputed that the police had no information which implicated the two defendants in any criminal wrongdoing, or created an articulable suspicion, or probable cause as to them at the time their vehicle was stopped. The officers quickly determined that Cantrell was not in the vehicle. They then proceeded to question the defendants. The defendants were asked if there was any marijuana in the vehicle, and each produced a baggy of marijuana from their pocket.
Mallard and Longino were then arrested and ultimately indicted for possession of marijuana with intent to distribute, under OCGA § 16-13-30(j)(1).[3] As each of their cases arises out of the same facts and presents the same issues of law, they will be consolidated for purposes of appellate review. Each of the defendants entered a plea of not guilty in October 1998, and each filed a motion to suppress in December 1998. The cases were consolidated, and a joint hearing was held on defendants' motions to suppress on April 19, 1999. The trial court's order granting defendants' motions to suppress was filed September 27, 1999. The State's notice of appeal from this ruling was filed October 6, 1999.
The defendants contended that the officers had no authority to stop the vehicle in which they were riding. They further contended that even if the stop was authorized, the police exceeded that authority in further detaining and questioning the defendants after they determined that neither of them was Cantrell. The State relies upon Fritzius v. *49 State,[4] which in turn, relies upon Michigan v. Summers,[5] as authority for the police conduct. In Michigan v. Summers, the U.S. Supreme Court held, inter alia:
If the evidence that a citizen's residence is harboring contraband is sufficient to persuade a judicial officer that an invasion of the citizen's privacy is justified, it is constitutionally reasonable to require that citizen to remain while officers of the law execute a valid warrant to search his home. Thus, for Fourth Amendment purposes, we hold that a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain occupants of the premises while a proper search is conducted.
(Footnotes omitted.) Id. at 704-705, 101 S. Ct. 2587.
Based on the facts in this case, the trial court held, inter alia:
In Fritzius, the police were preparing to execute a search warrant on the home of one Henry Fallow. Prior to the arrival of the officers who were to execute the search, another officer who had been conducting surveillance of the dwelling to be searched saw two people leave the dwelling, get into a vehicle and drive off. The surveillance officer requested another officer (Beveridge) to see if one of the people in the car was Fallow. Beveridge stopped the vehicle approximately two miles from the dwelling.
Beveridge asked the driver for a driver's license and proof of insurance. The driver said that he had lost his wallet and had no license. Upon further questioning, the driver (Fallow) admitted to possessing two marijuana cigarettes. Fritzius was told to get out of the vehicle. He denied possessing any drugs and consented to a search of his person which produced nothing. Fritzius refused Beveridge's request to search the vehicle, so Beveridge brought a drug [dog] out to do an "odor search." The dog alerted to the car door. Methamphetamines was [sic] found under the floor mat where Fritzius had been sitting.
The Fritzius case extends Summer[s] by permitting the stopping of individuals who are not on the premises at the time the search began, but to allow people stopped some distance from the scene. [sic] In Summer[s] the [U.S.] Supreme Court relied upon the fact that a warrant had been issued for the search of the house; that the "(t)ype of detention imposed here (emphasis supplied) is not likely to be exploited by the officer or unduly prolonged in order to gain more information" and that the stigma is reduced as the detention was in the house of that person. The Court found legal justification in the prevention of flight and of minimizing risk to law enforcement officers. The Court reiterated several times the fact that the person detained would remain in his home while it was being searched; thus, the holding that for Fourth Amendment purposes "a warrant to search for contraband... implicitly carries with at [sic] the limited authority to detain the occupants of the premises while a proper search is conducted."
In Fritzius, the Court said that "(i)t would appear reasonable within the meaning of the Fourth and Fourteenth Amendments for a police officer, knowing that certain persons and premises were the subject of the immediate execution of a search warrant, to detain temporarily a vehicle containing occupants who had just departed the premises to be searched in order to identify the occupants and to see if one of them was a person named in the warrant" (emphasis in original). In that case, the person whose property was to be searched was in fact in the car. In this case, the person whose property was to be searched was not in the car. Law enforcement had identified the occupants and had found neither was Ron Cantrell. These facts exceed the long grasp of Fritzius and far exceed the scope of Summers ....
This Court holds that the stop is not authorized under the Fourth Amendment nor Article I, Section I, Paragraph XIII of the Georgia Constitution, or even if authorized, *50 the continued seizure and subsequent search exceeded the scope of the detention exceeded [sic] "its underlying justification" which was to see if either person were Ron Cantrell.
(Citations omitted.) Motion to Suppress Order, filed September 27, 1999.
We note that Fritzius involved the trial court's denial of defendant's motion to suppress, while this case involves the grant of defendants' motions to suppress. Given this Court's standard of review, the evidence in Fritzius was construed in favor of the State, while in this case it is construed in favor of the defendants. "Just as we viewed the evidence in that case[, State v. Crank,][6] to favor [the defendant], in this case we must view it to favor the State." Fritzius, supra at 646, 484 S.E.2d 743. We also note, that in Fritzius, Fallow, the occupant of the residence to be searched, was in fact in the stopped vehicle, while in the present case, Cantrell, the occupant of the residence to be searched, was not in the stopped vehicle. While the police had probable cause to search the residence in each case based upon the search warrants, there was no basis to believe that either Mallard or Longino was involved in criminal activity at the time of the stop.
Michigan v. Summers, supra, the case upon which Fritzius was based, addressed only federal constitutional protections under the Fourth Amendment to the U.S. Constitution. In Summers, police officers were about to execute a search warrant for contraband on Summers' residence when he came out the front door and locked it. The officers required Summers to reenter the residence with them and forced him to remain in the house until the search was completed, and evidence establishing probable cause to arrest him was found. The U.S. Supreme Court held that a warrant to search for contraband founded on probable cause carried with it the limited authority to detain the occupants of the premises while a proper search of the premises was conducted and reversed the holding of the Supreme Court of Michigan.
In Garmon v. State,[7] our Supreme Court affirmed Garmon v. State,[8] a case involving the stop of a vehicle in conjunction with the execution of a warrant to search a dwelling for contraband. This Court relied upon Summers, supra, in upholding the constitutionality of the vehicle stop. On grant of certiorari, our Supreme Court declined to adopt the Summers analysis applied by this Court and instead applied a Terry v. Ohio[9] standard in affirming the case. In Garmon, 271 Ga. 673, 524 S.E.2d 211, the investigative stop was justified under Terry because there were some objective manifestations that the occupant in the vehicle leaving the search location was engaged in criminal activity. The Supreme Court observed that the existence of the search warrant was a factor to consider in analyzing the validity of the stop. The Court noted that the driver and his companion were leaving a residence suspected as a location for dealing in controlled substances and an illegal sports betting operation, which was operating at that time since it was a big football weekend. Thus, "it was reasonable to believe that persons then at the residence might be ... involved in criminal activity." Garmon, 271 Ga. at 677, 524 S.E.2d 211. The Supreme Court further noted that the truck was owned by a known methamphetamine dealer; that the officers had overheard telephone conversations discussing gambling and a drug deal; and that the officers had independent information which supported a reasonable belief that the men in the truck were involved in the operation. This totality of the circumstances provided an articulable suspicion to justify the stop.
In the present case, the officers had no such information. There was no conduct by either Longino or Mallard to connect them to the suspected drug activity. Neither man lived at the residence, and the car was not believed to be owned by Cantrell. In fact, *51 the officers had no specific information about the car or its occupants. The officers had not observed any violations of the law. See, e.g., Smith v. State;[10]Brantley v. State.[11] The sole basis for stopping the car was to see who was inside. That reason, standing alone, cannot justify a Terry stop.
The present case arises out of the execution of a search warrant for contraband at Cantrell's premises, and the detention and arrest of persons in connection therewith. Georgia statutory law controlling the State's conduct in the execution of a search warrant under OCGA § 17-5-28 was not raised in Fritzius or Garmon, 271 Ga. 673, 524 S.E.2d 211 Under Georgia statutory law, the State has a limited authority to act in the execution of a search warrant, as provided in OCGA § 17-5-28, which states:
In the execution of the search warrant the officer executing the same may reasonably detain or search any person in the place at the time: (1) To protect himself from attack; or (2) To prevent the disposal or concealment of any instruments, articles, or things particularly described in the search warrant.
The inclusion of language in the warrant authorizing the search of "any persons present" on the premises does not broaden the powers of the searching authorities beyond the limited terms of this section. State v. Holmes.[12] Searches pursuant to OCGA § 17-5-28 are valid only if the State can articulate particular facts from which the police reasonably inferred that the individual searched was armed and dangerous or was concealing things described in the search warrant. Clark v. State.[13] Where the police had no particular reason to suspect that the defendant was armed or was concealing items described in a search warrant, any search was illegal and the contraband should have been suppressed. Id. OCGA § 17-5-28 narrowly limits the authority of the State to search persons in connection with the execution of a search warrant to those who are on the premises and who meet the criteria described therein, absent facts which would have authorized a warrantless search. Nothing in Fritzius, supra, or Summers, supra, requires any other result. OCGA § 17-5-28 was not raised in Fritzius, and, unlike the present case, both Fritzius and Summers involved the seizure of the named occupant of the premises to be searched.
OCGA § 17-5-30 provides for the suppression of evidence illegally seized under OCGA § 17-5-28 during the execution of a search warrant. In Gary v. State,[14] our Supreme Court addressed for the first time whether the "good faith" exception to the exclusionary rule enunciated in United States v. Leon[15] is applicable as a matter of state law in Georgia. While the exclusionary rule had been applied in federal prosecutions since 1914, under Weeks v. United States,[16] it was not until Mapp v. Ohio,[17] in 1961, that the U.S. Supreme Court determined that the sanction of exclusion was enforceable against the states through the operation of the Fourth and Fourteenth Amendments to the U.S. Constitution.
In Leon, the U.S. Supreme Court modified the judicially created exclusionary rule to permit the introduction of evidence obtained by officers reasonably relying on a warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause. In Gary, supra at 574, 422 S.E.2d 426, our Supreme Court concluded that Georgia law precludes adoption of the "good-faith exception" to the exclusionary rule.
*52 In Gary, supra at 574, 422 S.E.2d 426, our Supreme Court held, inter alia:
"(A) [s]tate is free as a matter of its own law to impose greater restrictions on police activity than those (the Supreme) Court holds to be necessary upon federal constitutional standards." Oregon v. Hass.[18] Thus, "the State (has) power to impose higher standards on searches and seizures than required by the Federal Constitution if it chooses to do so." Cooper v. California.[19] By passage in 1966 of an act "to provide for searches and seizures and for suppression of evidence illegally seized" (Ga.L.1966, p. 567), the State of Georgia has chosen to impose greater requirements upon its law enforcement officers than that required by the United States Constitution, as interpreted by the U.S. Supreme Court.
Our Supreme Court recognized in Gary, supra, that the Leon good faith exception was a modification by the U.S. Supreme Court of a judicially created exclusionary rule, while the Georgia exclusionary rule resulted from the exercise by the Georgia legislature of its authority to legislate under the Georgia Constitution. Our Supreme Court recognized that the legislature enacted OCGA § 17-5-30, to protect against governmental disregard for constitutionally protected rights by requiring the State to respect the probable cause requirements of the Georgia Constitution, Art. I, Sec. I, Par. XIII.
In Gary, our Supreme Court went on to say: "In light of the unequivocal language of OCGA § 17-5-30, infusion of the Leon good-faith exception into the statute would be tantamount to judicial legislation. We decline to enter the realm of the legislature." (Footnote omitted.) Id. at 575, 422 S.E.2d 426.
OCGA § 17-5-30 authorizes a motion to suppress any evidence illegally seized where the State cannot establish that its incriminating evidence is admissible. State v. Johnston.[20] It is clear that under Georgia statutory law, the State has no authority to seize or search a nonoccupant of the premises to be searched, who is not on the premises at the time of the search, absent probable cause for a warrantless search. OCGA § 17-5-28 does not limit the officer's right to search persons as to whom probable cause for a warrantless search exists. See Travis v. State;[21]Wallace v. State.[22]
We now address whether or not the police had probable cause to stop the defendants, pursuant to Terry v. Ohio, supra. The only reason the police gave for stopping the defendants in connection with the execution of a search warrant on the premises of Cantrell was to determine whether or not he was in the defendants' vehicle. Such basis is not one of the two reasons for detention of a nonoccupant of the premises to be searched under OCGA § 17-5-28, absent probable cause. Durden v. State[23] held that, as to arrest warrants, holding dual inquiries under federal and state law serves no useful purpose and only complicates the law in an area that needs to be readily understood by law enforcement. Daniel v. State,[24] following Durden, held that for purposes of searching a vehicle incident to an arrest, the state rule is the same as the federal rule. In neither of these cases was the issue of the statutory protections of OCGA § 17-5-28 or § 17-5-30 involved, raised, or addressed. Each addressed only federal and Georgia constitutional standards, not Georgia statutory law, as addressed by our Supreme Court in Gary, supra, and they do not control the present case.
*53 We will follow our Supreme Court's approach in Garmon, 271 Ga. 673, 524 S.E.2d 211, supra, and apply a Terry analysis. In Garmon, 271 Ga. 673, 524 S.E.2d 211, our Supreme Court held, inter alia:
under the totality of the circumstances, the investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. [Postell v. State],[25] citing United States v. Cortez.[26] Such articulable suspicion that the law has been or is about to be violated is "less than probable cause, but greater than mere caprice." McGaughey v. State.[27] What is necessary is a founded suspicion, some basis from which the court can determine that the detention was not arbitrary or harassing. Johnson v. State.[28] Thus, "in cases where there are some reasonable articulable grounds for suspicion, the state's interest in the maintenance of community peace and security outweigh[s] the momentary inconvenience and indignity of investigatory detention." Brisbane v. State.[29]
Garmon, 271 Ga. at 676, 524 S.E.2d 211.
Here, the police had no specific articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct by these defendants and thus could not meet the requirements of Terry, supra. If one is unlawfully seized, the fact that the discovery of contraband results from such seizure will not render the seizure legal. Willis v. State.[30] Under the facts of this case, we cannot say that the trial court erred in granting defendants' motions to suppress.
Judgments affirmed.
ELDRIDGE and BARNES, JJ., concur.
NOTES
[1] Rider v. State, 222 Ga.App. 602, 475 S.E.2d 655 (1996).
[2] State v. Becker, 240 Ga.App. 267, 523 S.E.2d 98 (1999).
[3] Other misdemeanor charges, not herein relevant, were also filed against the defendants.
[4] Fritzius v. State, 225 Ga.App. 642, 484 S.E.2d 743 (1997).
[5] Michigan v. Summers, 452 U.S. 692, 101 S. Ct. 2587, 69 L. Ed. 2d 340 (1981).
[6] State v. Crank, 212 Ga.App. 246, 441 S.E.2d 531 (1994).
[7] Garmon v. State, 271 Ga. 673, 524 S.E.2d 211 (1999).
[8] Garmon v. State, 235 Ga.App. 671, 510 S.E.2d 350 (1998).
[9] Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
[10] Smith v. State, 240 Ga.App. 150, 522 S.E.2d 744 (1999).
[11] Brantley v. State, 226 Ga.App. 872(1), 487 S.E.2d 412 (1997).
[12] State v. Holmes, 240 Ga.App. 332, 525 S.E.2d 698 (1999).
[13] Clark v. State, 235 Ga.App. 569, 510 S.E.2d 319 (1998).
[14] Gary v. State, 262 Ga. 573, 422 S.E.2d 426 (1992).
[15] United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984).
[16] Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914).
[17] Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961).
[18] Oregon v. Hass, 420 U.S. 714, 719, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975).
[19] Cooper v. California, 386 U.S. 58, 62, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967).
[20] State v. Johnston, 160 Ga.App. 71, 286 S.E.2d 47 (1981).
[21] Travis v. State, 192 Ga.App. 695, 385 S.E.2d 779 (1989).
[22] Wallace v. State, 131 Ga.App. 204, 205 S.E.2d 523 (1974).
[23] Durden v. State, 250 Ga. 325, 327, 297 S.E.2d 237 (1982).
[24] Daniel v. State, 199 Ga.App. 180, 181-182, 404 S.E.2d 466 (1991).
[25] Postell v. State, 264 Ga. 249, 443 S.E.2d 628 (1994).
[26] United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 66 L. Ed. 2d 621 (1981).
[27] McGaughey v. State, 222 Ga.App. 477, 479, 474 S.E.2d 676 (1996).
[28] Johnson v. State, 230 Ga.App. 535, 537(1), 496 S.E.2d 785 (1998).
[29] Brisbane v. State, 233 Ga. 339, 343, 211 S.E.2d 294 (1974).
[30] Willis v. State, 122 Ga.App. 455, 177 S.E.2d 487 (1970). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379589/ | 258 Ga. 382 (1988)
369 S.E.2d 249
THE STATE
v.
SUTTON.
45051.
Supreme Court of Georgia.
Decided June 23, 1988.
Reconsideration Denied July 13, 1988.
Roger G. Queen, District Attorney, Angela Arkin Byne, Assistant District Attorney, for appellant.
George W. Weaver, Brenda S. Weaver, for appellee.
WELTNER, Justice.
Investigating a complaint of shooting deer out of season, a Georgia conservation ranger went to the home of Wallace Sutton and knocked on his front door. There was no answer. When the ranger walked around the side of the house, he saw a deer head hanging in an open area beneath Sutton's back porch. He saw also two headless deer carcasses on the porch. The ranger again knocked on the front door. Sutton came to the door, and the ranger told him that he had seen the deer. Prior to any questioning by the ranger, Sutton said: "Okay, I'm Wallace Sutton and I shot the deer." The ranger arrested Sutton for the game law violations, advised him of his Miranda rights, and asked permission to look in Sutton's smokehouse for the second deer head. Sutton replied: "Sure, go ahead and look in it," and offered to help the ranger load the carcasses onto a truck.
The trial court sustained a motion to suppress the evidence relating to the deer carcasses, on the ground that it was the result of an illegal search and seizure, in that the ranger invaded the curtilage of Sutton's dwelling.
1. The state contends that the ranger's investigation into Sutton's sideyard is permissible under OCGA § 27-1-20 (a) (6), authorizing conservation rangers "[t]o go upon property outside of buildings, posted or otherwise, in the performance of their duties." Statutes of this state cannot diminish rights guaranteed by the United States or Georgia Constitutions. The inquiry, therefore, must be to the Fourth and Fifth Amendment principles.
2. The fruits of a search conducted with consent are admissible. Green v. State, 242 Ga. 261 (249 SE2d 1) (1978). McShan v. State, 150 Ga. App. 232, 233 (257 SE2d 202) (1979). The legality of such a search is not vitiated because, prior to obtaining Sutton's consent (to search the premises for the missing deer head, and to seize the carcasses), the ranger had observed the evidence of the crime. In Atkins v. State, 173 Ga. App. 9, 12 (325 SE2d 388) (1984), the court held:
even the officer's initially unauthorized presence [in the curtilage] does not require suppression of the items discovered, because `the consent given ...is not only a consent to future searches and seizures, but it amounts to a waiver of the warrant requirement with respect to the search previously conducted'.... [Cits.] A voluntary written consent to search having been executed ... the prior warrantless entry into the curtilage, if any, was ratified. *383 See also Thompson v. State, 248 Ga. 343 (285 SE2d 685) (1981).[1] Accordingly, the motion to suppress should have been denied.
Judgment reversed. All the Justices concur, except Smith, Gregory, and Bell, JJ., who dissent. SMITH, Justice, dissenting.
After receiving the complaint, Ranger Yeargen asked an investigator from the sheriff's department, Johnny Russell, to assist him. Russell waited by his vehicle as the ranger knocked on the front door, but no one answered. The ranger asked Russell to walk around the house with him to look for the deer. Russell said that he could not do so without a search warrant. The ranger had been taught that he was authorized pursuant to OCGA § 27-1-20 to go on property, posted or otherwise, in the performance of his duties, and that he did not need a search warrant. After walking to the back of the house, the ranger saw a deer head hanging under the screened porch. Looking through the screen on the porch, he saw two deer carcasses inside the porch. The ranger returned to Russell and asked him to take some pictures. After the ranger told Russell that he had authority to be on the property, Russell responded, "Well, if you have I will accompany you, but I could not do it on my own." Russell walked to the back of the house and took pictures of the deer head under the porch, the carcasses inside the screened porch, blood droppings under the porch, and the blood splattered blade of appellee's tractor. Russell left after taking the pictures.
Ranger Yeargen needed proof that the deer had been recently killed on the property.[*] He walked approximately twenty-five yards behind the house to a field where he found fresh blood. He determined that the deer had been illegally shot at that spot. After completing his investigation, the ranger knocked on the door one last time, and the appellee came to the door. The uniformed ranger did not identify himself. The ranger told the appellee that he was responding to a complaint about a Wallace Sutton shooting and dressing *384 deer. The ranger said he had seen the deer, and he "conducted his investigation." At that point, the appellee said, "Okay, I'm Wallace Sutton and I shot the deer." The ranger advised the appellee of his rights and placed him under arrest.
As they were preparing to leave for the sheriff's department, the ranger asked if he could look in the smokehouse. The smokehouse was a small building approximately twenty-five yards in back of the house. The appellee responded, "Sure, go ahead and look in it." There were no deer in the smokehouse. The appellee was charged with two counts of possession of illegal wildlife OCGA § 27-1-31 and one count of hunting deer out of season OCGA § 27-3-15.
1. The Fourth Amendment of the Constitution of the United States, and Art. I, Sec. I, Par. XIII of the 1983 Georgia Constitution provide: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..." No state statute can grant anyone legal authority to violate either constitution. Neither the ranger, nor sheriff's department investigator Russell had any legal authority to walk into the curtilage of the appellee's home without a warrant to begin the investigation. The fact that the ranger wrongly entered the curtilage was compounded by Russell's illegal entry to photograph the deer in an attempt to build a case against the appellee.
2. The "fruits" of a search conducted with consent are admissible, however, the search of the smokehouse did not contain any "fruits." The ranger asked for permission to search the smokehouse. The appellee gave permission to search the smokehouse. Nothing was found in the smokehouse.
There are at least two major differences in this case and the cases cited by the majority. First, the appellee gave his limited consent to search inside his smokehouse after the ranger had "conducted" his "investigation." The appellee did not give his unlimited consent to a search of the premises.
Second, the trial court did not rule on whether the appellee's consent, to search inside a building twenty-five yards in back of his dwelling, acted as a consent to the earlier illegal search of the curtilage of his dwelling. After hearing all the evidence, the trial judge held that the search into the curtilage was unconstitutional and that the evidence from the illegal search must be suppressed.
The cases relied upon by the majority are not applicable to this case. The Court of Appeals in Atkins v. State, 173 Ga. App. 9, 12 (325 SE2d 388) (1984), affirmed the trial court's ruling that certain evidence was admissible after the police had obtained a "written consent to...conduct a complete search of the premises." (Emphasis supplied.) Id. at p. 12. The person giving consent had orally agreed to the search "immediately before the officer in backyard found the items." *385 Id. The two Louisiana cases cited by the Court of Appeals in Atkins, supra, involved factual situations in which the trial courts denied motions to suppress. The appellate courts found that the records supported the trial court's decisions that the written consents to search "his house and car[,]" State v. Williams 353 SE2d 1299, 1303 (La. 1977), and "his trailer[,]" State v. Cormier, 438 SE2d 1269, 1274 (La. 1983) were freely and voluntarily made. There is no such lower court ruling in this case.
The trial court's decision on questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous. White v. State, 255 Ga. 210, 212 (336 SE2d 777) (1985). The trial court in this case did not consider nor decide whether the limited consent to search the smokehouse, after the ranger and Russell had "conducted [the] investigation," transformed the illegal curtilage search into a legal search. The majority raised the issue of consent for the first time in its opinion. The consent issue was never, argued before the trial court, ruled upon by the trial court, enumerated as an error, briefed nor argued by either party before this court.
The Supreme Court is "a court of review." 1983 Georgia Constitution, Art. VI, Sec. VI, Par. II. Our jurisdiction allows us to correct errors made in the lower courts. We do not have jurisdiction to rule upon issues that have not been decided by the trial court.
We can always affirm a trial court's decision if it is "right for any reason." We are not authorized to reverse a trial court's decision based on an issue that was not ruled upon by the trial court nor enumerated as error merely because a majority of this court decides that it may be "wrong for any reason."
I am authorized to state that Justice Gregory and Justice Bell join in this dissent.
NOTES
[1] On June 27, 1988, four days after the initial issuance of our opinion in this case, the United States Supreme Court decided Murray v. United States. No. 86-995, and Carter v. United States, No. 86-1016, ___U. S.___ (____SC____, ____LE2d____) (1988). There, federal agents made an unlawful search of a warehouse. They then obtained a warrant to search the warehouse without revealing to the issuing magistrate that the unlawful search had been made. The trial court's denial of motions to suppress was upheld by the court of appeals. The United States Supreme Court held: "Knowledge that the marijuana was in the warehouse was assuredly acquired at the time of the unlawful entry. But it was also acquired at the time of entry pursuant to the warrant, and if that later acquisition was not the result of the earlier entry there is no reason why the independent source doctrine should not apply. Invoking the exclusionary rule would put the police (and society) not in the same position they would have occupied if no violation occurred, but in a worse one. See Nix v. Williams, 467 U. S., at 443."
[*] Deer season closed two days before the complaint was received. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379594/ | 369 S.E.2d 720 (1988)
McJUNKIN CORPORATION
v.
WEST VIRGINIA HUMAN RIGHTS COMMISSION; Russell Van Cleve, Chairman; and Perry Sumner.
No. 17932.
Supreme Court of Appeals of West Virginia.
April 22, 1988.
*721 Charles G. Brown, Atty. Gen., Sharon Mullens, Asst. Atty. Gen., Charleston, for WVHRC, Russell Vancleve, Perry Sumner.
Ricklin Brown, Charleston, for McJunkin Corp.
McHUGH, Chief Justice:
This case is before this Court upon appeal pursuant to W.Va.Code, 29A-6-1 [1964], part of the State Administrative Procedures Act. It arises from a final order of the Circuit Court of Kanawha County wherein the trial court reversed the findings of the West Virginia Human Rights Commission (hereinafter "the Commission"), which had determined that the appellee was guilty of an unlawful discriminatory practice under the West Virginia Human Rights Act, specifically, W.Va. Code, 5-11-9 [1981].
The appellants are the West Virginia Human Rights Commission and Perry Sumner. The Commission is the state administrative agency charged with enforcement of the West Virginia Human Rights Act. Mr. Sumner is the aggrieved former employee of McJunkin Corporation.
The appellee, McJunkin Corporation, is a West Virginia corporation with its principal corporate offices located in Charleston, West Virginia, and with operations in eighteen states.
I
The appellant, Perry Sumner, began working for the appellee in August of 1978. He was hired to drive trucks, principally tractor trailers, based in Princeton, West Virginia. Mr. Sumner was laid off on May 6, 1983, and it is undisputed by the parties that the appellant's layoff was a result of serious economic difficulties encountered by the appellee. The appellant was 45 years old at the time of his termination.
On July 5, 1983, the appellant filed two complaints with the Commission alleging that his termination from his truck driving position constituted an illegal discriminatory practice based upon age and upon a physical handicap. The Commission subsequently conducted an investigation of these complaints and determined that probable cause existed for substantiating the allegations of the complaint, pursuant to W.Va. Code, 5-11-10 [1987].[1] A hearing on the complaints was held before one of the Commission's hearing examiners.
Subsequent to the filing of the complaints in this proceeding, the appellee rehired at least two employees who had been laid off. Although evidence was introduced at the appellant's hearing regarding at least one of the rehires, the appellant had at no time from the date of filing the original age discrimination complaint on *722 July 5, 1983, alleged, pleaded or amended his original complaint to include an unlawful discrimination allegation based upon the appellee's failure to rehire him. Nevertheless, the hearing examiner filed his recommended decision on March 5, 1985, in which he determined that the appellant had not met the requisite burden of proof to show age discrimination in the layoff which occurred in the spring of 1983, but that he had demonstrated that he was the victim of illegal age discrimination when the appellee failed to rehire him later that year.
The Commission entered its final order which adopted "the Findings of Fact and Conclusions of Law [of the Hearing Examiner] as its own."[2] The appellee then filed a petition for an administrative appeal in the Circuit Court of Kanawha County, pursuant to W.Va.Code, 29A-5-4(b) [1964]. The circuit court reversed the Commission's order, holding that the decision was not supported by substantial evidence on the whole record presented to the court.
II
The narrow issue before this Court is whether the illegal layoff charge maintained in the appellant's complaint to the Commission encompassed an allegation of an illegal failure to rehire where no additional complaint relating to rehire and no amendments to the original complaint relating to such were filed within 180 days after the alleged discriminatory failure to rehire.[3]
The appellant contends that although the allegation of an illegal failure to rehire was not specifically charged in the complaint, it was heard by the express or implied consent of the parties and should thus be treated as if it had been raised in the pleadings.[4]
On the other hand, the appellee maintains that the appellant, from the date of filing the complaint on July 5, 1983, through and including the date of the hearing examiner's decision, never alleged or otherwise argued that he had been discriminated against because of the appellee's failure to rehire him to his job as a tractor-trailer driver. The appellee emphasizes that the appellant did not amend the complaint and that the appellee was not given notice that the rehire issue was to be an issue in the discrimination complaint or at the hearing.
The requisite notice provision for complaints filed in human rights proceedings in *723 West Virginia is found in W.Va.Code, 5-11-10 [1987], which provides in pertinent part:
Any individual claiming to be aggrieved by an alleged unlawful discriminatory practice shall make, sign and file with the commission a verified complaint, which shall state the name and address of the person, employer, labor organization, employment agency, owner, real estate broker, real estate salesman or financial institution alleged to have committed the unlawful discriminatory practice complained of, and which shall set forth the particulars thereof and contain such other information as may be required by the commission's rules and regulations.... Any complaint filed pursuant to this article must be filed within one hundred eighty days after the alleged act of discrimination.[5]
In addition, the Commission has promulgated rules and regulations regarding practice and procedure before it which are helpful in the resolution of this case. Rule 3.6(a) is particularly instructive and states:
(a) The Commission or the complainant may amend a complaint or any part thereof to cure technical defects or omissions,... to clarify and amplify allegations made therein, when such amendments relate back to the original filing date; Provided, however, That an amendment alleging additional acts constituting unlawful discriminatory practices not related [to] or growing out of the subject matter of the original complaint will be permitted only where at the date of the amendment the allegations could have been timely filed as a separate charge.
(emphasis in original)
This rule envisions that a complaint can be amended when necessary by either a complainant or the Commission to amplify or clarify allegations made in the original complaint which relate back to the original filing date. However, amendments alleging additional subsequent discriminatory practices which are not related to or do not grow out of the allegations in the original complaint are permitted only if, at the date of the amendment, those allegations could be timely brought as a separate charge.
It is fundamental that "[d]ue process of law, within the meaning of the State and Federal constitutional provisions, extends to actions of administrative officers and tribunals, as well as to the judicial branches of the governments."[6] Syl. pt. 2, State ex rel. Ellis v. Kelly, 145 W.Va. 70, 112 S.E.2d 641 (1960); accord, Allen v. State Human Rights Commission, ___ W.Va. ___, ___, 324 S.E.2d 99, 117 (1984); syl. pt. 5, State ex rel. Bowen v. Flowers, 155 W.Va. 389, 184 S.E.2d 611 (1971); syl. pt. 2, State ex rel. Gooden v. Bonar, 155 W.Va. 202, 183 S.E.2d 697 (1971).
The right to be heard in an adjudicatory proceeding before an administrative agency has no meaning unless notice is afforded. A. Neely, Administrative Law in West Virginia § 5.11, at 274 (1982). Clearly, notice is an issue of crucial importance throughout the adjudication of a contested case. Failure to provide adequate and timely notice in a contested case is significant if the parties are to have the opportunity to prepare a defense and cross-examine witnesses. Id.
The purpose of notice requirements is to make certain that the prospective party in a contested case is aware of the impending proceeding and its substance with sufficient certainty to be in a position to answer and participate. See, e.g., Waite v. Civil Service Commission, 161 W.Va. 154, 164-65, 241 S.E.2d 164, 170 (1977); Weirton Ice & Coal Supply Co. v. Public Service Commission, 161 W.Va. 141, 148, 240 S.E.2d 686, 690 (1977). As this Court has observed when considering the constitutionality *724 of a particular statutory notice provision, "[n]otice contemplates meaningful notice which affords an opportunity to prepare a defense and to be heard upon the merits." State ex rel. Hawks v. Lazaro, 157 W.Va. 417, 440, 202 S.E.2d 109, 124 (1974).
Generally, a complaint before an administrative agency is not required to meet the standards applicable in a judicial proceeding. See Board of Dental Examiners v. Hedrick, 116 W.Va. 222, 224, 179 S.E. 809, 810 (1935); 2 Am.Jur.2d Administrative Law § 371 (1962); 73A C.J.S. Public Administrative Law and Procedure § 122 (1983). However, the complaint must set out facts sufficient to establish all the essential elements of a particular charge or charges, with the key being to provide the adversarial party with notice and an adequate opportunity to prepare. See Consolidated Gas Supply Corp. v. Federal Energy Regulatory Commission, 611 F.2d 951, 959 n. 7 (4th Cir.1979); 2 Am.Jur.2d Administrative Law § 371 (1962); 73A C.J.S. Public Administrative Law and Procedure § 122 (1983). In an administrative adjudication before the West Virginia Human Rights Commission, a complaint alleging a violation or violations of the West Virginia Human Rights Act, W.Va.Code, 5-11-1 to 5-11-19, as amended, must be sufficient to advise the adversarial party of the matters charged, and the charges must be adequately clear and specific to allow preparation of a defense.
The United States Court of Appeals for the Fourth Circuit has spoken to the precise issue facing us today, in Lawson v. Burlington Industries, Inc., 683 F.2d 862 (4th Cir.), cert. denied, 459 U.S. 944, 103 S.Ct. 257, 74 L.Ed.2d 201 (1982). In Lawson, the plaintiff was laid off from his job on June 30, 1979, and on February 5, 1980, filed a charge with the Equal Employment Opportunity Commission (the EEOC), alleging unlawful discrimination based upon his age. The EEOC charge dealt exclusively with Burlington's decision to lay off the plaintiff while transferring a younger employee. Before Lawson filed discrimination charges, Burlington had offered him a clerical job at another location, but he refused the position because of the inadequate salary. The plaintiff then filed suit in district court in June, 1980, claiming that age discrimination was the motive behind both the layoff and the offer of a clerical position, which the plaintiff construed as a refusal to rehire him.
In affirming the district court's award of summary judgment, the Court of Appeals held that the charge filed with the EEOC only alleged discriminatory layoff and that the illegal layoff charge did not encompass the latter allegation of an illegal failure to rehire.[7] In so holding, the court found it well-established that a layoff from employment constitutes a completed act at the time it occurs[8] and that an employer's failure to recall or rehire does not constitute a continuing violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1982).[9] The court concluded that, regardless of the sufficiency of the original charge as to the claim of unlawful layoff, the notice did not satisfy the statutory requirement as to the claim of discriminatory recall. See also Herman v. National Broadcasting Co., 744 F.2d 604, 606 (7th Cir.1984), cert. denied, 470 U.S. 1028, 105 S.Ct. 1393, 84 L.Ed.2d 782 (1985); Nogar *725 v. Henry F. Teichmann, Inc., 640 F.Supp. 365, 369 (W.D.Pa.1985), aff'd without opinion, 800 F.2d 1137 (1986).
In the case now before us, the appellant's complaint alleged age discrimination based only upon his layoff which occurred on May 6, 1983. The complaint was filed on July 5, 1983, and none of the employees were recalled to any position until October, 1983. The appellant filed no amendments to the complaint to allege the additional charge of discriminatory failure to rehire, pursuant to the Commission's Rule 3.6(a), discussed supra in the body of this opinion. Moreover, an allegation of discriminatory rehire does not relate back to the original layoff allegation or the original filing date. Pursuant to W.Va.Code, 5-11-10 [1987], such amendment would had to have been filed within 180 days of the date of rehire of the other employees. Principles of fundamental fairness and due process require adequate notice of the issues to be litigated before an administrative agency so that the adversarial party may have an opportunity to defend and be afforded a full and fair hearing.
Based upon the foregoing, we conclude that an allegation of an illegal layoff contained in a complaint to the West Virginia Human Rights Commission does not encompass an allegation of an illegal failure to rehire where no allegation relating to such failure to rehire is filed or where no amendment regarding such failure is made to the complaint within 180 days after the failure to rehire. W.Va.Code, 5-11-10 [1987].[10]
Because the appellant failed to charge the appellee with discrimination based upon failure to rehire and thereafter failed to amend his complaint regarding the additional allegation within the statutory period following the rehire of another employee, the appellant was barred from raising that issue before the Commission. See Lawson, supra. Similarly, the hearing examiner erred in ruling on an issue that the appellant had not raised. Accordingly, where an issue is not raised by the complainant in a complaint to the West Virginia Human Rights Commission, the Commission's hearing examiner is precluded from independently raising the issue and deciding it on the merits where the respondent has not received adequate notice of the issue in the form of a complaint or an amendment thereto nor had an opportunity to defend his or her position, provided that the issue not raised in the complaint or an amendment thereto is not heard by the express or implied consent of the parties. Cf. Greyhound Lines-East v. Geiger, 366 S.E.2d 135, 143 (W.Va.1988) (West Virginia Human Rights Commission's granting of class relief reversed where record failed to disclose that Commission was seeking relief for other employees situated similarly to the complainant and where as a result, the company had no notice that the Commission was seeking such relief).
As noted supra in section I of this opinion, the Commission ultimately found that the appellee had committed a discriminatory practice in failing to rehire the appellant, notwithstanding the fact that that specific allegation was not alleged in a separate complaint or in an amendment to the complaint. The circuit court, however, reversed the Commission's decision on the ground that it was unsupported by the substantial evidence on the whole record.
Syllabus point 2 of Shepherdstown Volunteer Fire Dept. v. State ex rel. State Human Rights Commission, ___ W.Va. ___, 309 S.E.2d 342 (1983), concisely charts the process of judicial review to which the circuit court in such cases must adhere:
Upon judicial review of a contested case under the West Virginia Administrative Procedure Act, Chapter 29A, Article 5, Section 4(g), the circuit court may affirm *726 the order or decision of the agency or remand the case for further proceedings. The circuit court shall reverse, vacate or modify the order or decision of the agency if the substantial rights of the petitioner or petitioners have been prejudiced because the administrative findings, inferences, conclusions, decisions, or order are: `(1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedures; or (4) Affected by other error of law; or (5) Clearly wrong in view of the reliable probative and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.'
See also syl. pt. 3, Montgomery General Hospital v. West Virginia Human Rights Commission, ___ W.Va. ___, 346 S.E.2d 557 (1986); Frank's Shoe Store v. West Virginia Human Rights Commission, 365 S.E.2d 251, ___ - ___ (W.Va.1986); syl. pt. 3, State ex rel. State Human Rights Commission v. Logan-Mingo Area Mental Health Agency, Inc., 285 W.Va. 53, 329 S.E.2d 77 (1985).
Based upon our earlier discussion in this opinion, we conclude that the Commission's ruling, which was based entirely on the hearing examiner's findings, was made in violation of constitutional due process principles and in violation of the statutory notice provisions embodied in W.Va.Code, 5-11-10 [1987] because the hearing examiner concluded that the appellee was guilty of an unlawful discriminatory act which had never been complained of by the appellant. See W.Va.Code, 29A-5-4(g)(1) [1964].
Although the circuit court's ruling in this matter was based on the insufficiency of the evidence on the record, this Court may uphold the circuit court's ruling on the ground we have cited above. As this Court held in syllabus point 3 of Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965): "This Court may, on appeal, affirm the judgment of the lower court when it appears that such judgment is correct on any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as the basis for its judgment." See also Chambers v. Sovereign Coal Corp., ___ W.Va. ___, ___, 295 S.E.2d 28, 30 (1982); syl. pt. 2, Environmental Products Co. v. Duncan, 168 W.Va. 349, 285 S.E.2d 889 (1981).
For the foregoing reasons, the judgment of the Circuit Court of Kanawha County is affirmed.
Affirmed.
NEELY, J., deeming himself disqualified, did not participate in the consideration or decision of this case.
NOTES
[1] Despite the Commission's probable cause determination, the appellant never presented a case regarding discrimination based upon handicap. Subsequently, the appellant waived any claim of handicap discrimination, and the Commission ultimately concluded that the appellant had not met his burden of proof regarding this particular contention.
[2] Order of the West Virginia Human Rights Commission, p. 1 at para. 1.
[3] Because of the decision we reach regarding this particular issue, we need not address the additional issues addressed by the parties.
[4] In this regard, the appellants cite Rule 7.21 of the rules and regulations pertaining to practice and procedure before the Commission. That rule states:
7.21. Issues not in the pleadings.When issues not raised in the complaint, as amended[,] or answer, as amended, are heard by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendments of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after final order; but failure to so amend shall not affect the adjudication of the hearing of these issues.
Contrary to the appellant's assertions, a review of the record reveals that the issue concerning the appellee's failure to rehire the appellant after his layoff was not heard by the express or implied consent of the parties.
A reading of the transcript of the appellant's hearing as well as the proposed findings of fact and conclusions of law submitted by the parties at the hearing examiner's request reveals that evidence concerning the rehire of a younger employee was introduced to demonstrate that the appellant was replaced by a person outside the protected age group, thereby establishing one of the requisite criteria for a complainant to prove a prima facie case of age discrimination. See Price v. Maryland Casualty Co., 561 F.2d 609, 612 (5th Cir.1977); see also Appellant's Post-Hearing Brief in Support of His Contention of Age Discrimination at 4, 6-7.
The issue relating to the failure to rehire the appellant was specifically raised for the first time by the hearing examiner in his proposed order and decision which was ultimately adopted verbatim by the Commission. Thus the appellee first addressed the egregiousness of the hearing examiner's error in the exception and memorandum of law filed with the Commission after the hearing examiner issued his proposed order and decision. Based upon the foregoing, the appellee cannot be said to have expressly or impliedly allowed the issue to be heard.
[5] Prior to the amendment of W.Va.Code, 5-11-10 in 1987, the requisite statutory period for the filing of a complaint with the Commission was within ninety days after the alleged act of discrimination.
[6] The due process clause is found in the fifth amendment to the United States Constitution and provides in pertinent part: "No person shall... be deprived of life, liberty, or property without due process of law[.]" Parallel language is contained in article III, section 10 of our State Constitution.
[7] 29 U.S.C. § 626(d)(1) (1982) provides: "No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission. Such a charge shall be filed(1) within 180 days after the alleged unlawful practice occurred; ..." The comparable state statutory provision in West Virginia is found in W.Va. Code, 5-11-10 [1987], cited supra in the body of this opinion.
[8] See Griffin v. Pacific Maritime Association, 478 F.2d 1118 (9th Cir.), cert. denied, 414 U.S. 859, 94 S.Ct. 69, 38 L.Ed.2d 109 (1973); Morris v. Frank IX & Sons, Inc., 486 F.Supp. 728 (W.D.Va. 1980); Mobley v. Acme Markets, Inc., 473 F.Supp. 851 (D.Md.1979).
[9] In granting summary judgment for the defendant, the district court concluded that with respect to the plaintiff's layoff on June 30, 1979, his charge of discrimination was filed more than 180 days after such layoff, and with respect to the failure-to-recall allegation, no charge of discrimination had been filed and more than 180 days had since passed.
[10] The alleged act of discrimination in the case before us occurred in 1983, and the subsequent 1987 amendment to an 180-day filing requirement would ordinarily be inapplicable. However, this differentiation is unimportant in the case before us because the appellant never filed an additional complaint regarding the appellee's discriminatory failure to rehire and similarly never introduced amendments to the initial complaint. Thus, the appellant failed to adhere to the prescribed statutory time limitations found in W.Va.Code, 5-11-10 [1971], as well as its amended version in 1987 which extended the filing period to 180 days. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379596/ | 369 S.E.2d 822 (1988)
STATE of North Carolina
v.
Charlie James JONES.
No. 113A87.
Supreme Court of North Carolina.
June 30, 1988.
Lacy H. Thornburg, Atty. Gen. by Martha K. Walston, Associate Atty. Gen., Raleigh, for the State.
Lawrence D. Graham, Taylorsville, for defendant-appellant.
FRYE, Justice.
We find one issue dispositive in this case. Defendant argues that the admission into evidence of past acts of sexual misconduct by defendant, though arguably similar to those of the case sub judice, was improper under the North Carolina Rules of Evidence because the prior acts were so remote in time that their probative effect was outweighed by the prejudice visited upon him. We agree and accordingly order a new trial.
An exhaustive recitation of the circumstances surrounding this appeal is unnecessary to its disposition. In short, defendant was indicted and convicted of two counts of first degree rape and three counts of taking indecent liberties with a child. The State's evidence tended to show that the crimes occurred over a period of time commencing December, 1982 through October, 1985. The victim in each of the assaults was defendant's step-daughter who was twelve years old when the assaultive episodes began. The evidence tended to show that defendant assaulted the child while she was left in his custody and while the child's mother was out of the home working. At times, the sexual assaults were perpetrated by the defendant after threatening the young victim with a gun.
During the State's presentation of evidence, Ms. Verona Ellis testified, over the objection of defendant, that she was sexually assaulted by defendant on numerous occasions some seven years before in much the same manner as the victim in the case sub judice. Subsequent voir dire examination disclosed that the alleged prior offenses *823 began in 1970, when Ellis was eleven years old and living with her adult sister. Defendant apparently lived in the same household. Ellis further testified that at age fourteen she bore defendant's child.
Based upon this evidence the trial court made the following findings of fact:
1. That the State has introduced evidence tending to show that the defendant, Charlie James Jones, was living in the same home as [the victim] during the relevant periods.... That the defendant during previous periods lived in the home with Verona Ellis.
2. That while the defendant was living in the home with [the victim] she was 12, 13 and 14-years-old. While he lived in the home with Verona Ellis she was 11, 12, and 13-years-old.
3. That in both homes the defendant was an adult male in a position of authority when the girls ... were 11, 12, and 13.
4. That the defendant had vaginal intercourse with both [the victim] and Verona Ellis in the afternoons and at night.
5. That in both instances the defendant was throughout those periods having normal sexual relations with adult womenduring the episode with [the victim], with his wife, Brenda; and during the episode with Verona Ellis, with her sister....
6. That in both cases the defendant used hand guns to physically threaten the girls to force submission to his sexual advances.
The trial court concluded "that the evidence of sexual relations with Verona Ellis tended to establish a state of mind or intent, a common scheme or plan, [and] a desire on the part of the defendant for vaginal intercourse with young girls and an unnatural lust on his part." The trial judge therefore found the evidence admissible. His decision apparently was premised upon Rule 404(b) of the North Carolina Rules of Evidence. The trial judge made no findings concerning the seven year lapse of time between the prior assault against Ms. Ellis and the assault on the victim.
Defendant argues that the testimony of Verona Ellis concerning prior sexual assaults upon her by defendant was improperly admitted by the trial judge because the prior episode occurred some seven years before the assault for which defendant is now charged. Because of this lapse in time, defendant contends that the prior acts are so remote in time that the probative nature of the evidence is outweighed by its likely prejudicial effect. We find this contention meritorious.
Rule 404(b) provides:
(b) Other crimes, wrongs, or actsEvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show he acted in conformity therewith. It may however be admissible for other purposes such as: proof of motive, opportunity, intent, preparation, identity or absence of mistake, entrapment or accident.
N.C.G.S. § 8C-1, Rule 404(b) (1986).
Accordingly, this Court has held that evidence of prior sex acts may have some relevance to the question of a defendant's guilt of the crime charged if it tends to show a relevant state of mind such as intent, motive, plan, or opportunity. See State v. Boyd, 321 N.C. 574, 364 S.E.2d 118 (1988); State v. Gordon, 316 N.C. 497, 342 S.E.2d 509 (1986); State v. DeLeonardo, 315 N.C. 762, 340 S.E.2d 350 (1986). Such evidence is not offensive to the general prohibition against character evidence because it is admitted not to prove defendant acted in conformity with conduct on another occasion but rather as circumstantial proof of defendant's state of mind. See State v. Weaver, 318 N.C. 400, 348 S.E.2d 791 (1986). Indeed, in interpreting Rule 404(b), we have stated that "evidence of other offenses is admissible so long as it is relevant to any fact or issue other than the character of the accused." Id. at 403, 348 S.E.2d at 793, quoting 1 Brandis on North Carolina Evidence § 91 (1982).
The trial judge concluded that the Ellis testimony was admissible to show a "common plan or scheme." See State v. McClain, 240 N.C. 171, 81 S.E.2d 364 *824 (1954); N.C.G.S. § 8C-1, Rule 404(b) (1986). This exception to the general rule rests on the proposition that there may be some logical connection between two acts from which it can be said that proof of the one tends to establish the other. State v. McClain, 240 N.C. 171, 81 S.E.2d 364. Nonetheless, the admissibility of evidence of a prior crime must be closely scrutinized since this type of evidence may put before the jury crimes or bad acts allegedly committed by the defendant for which he has neither been indicted nor convicted.
In assessing this particular type of evidence, this Court has noted:
[p]roof that a defendant has been guilty of another crime equally heinous prompts to a ready acceptance of and belief in the prosecution's theory that he is guilty of the crime charged. Its effect is to predispose the mind of the juror to believe the prisoner is guilty, and thus effectually to strip him of the presumption of innocence.
Id. at 174, 81 S.E.2d at 366. Moreover, evidence of other crimes may distract the fact finders and confuse their consideration of the issues at trial. Id. With these considerations bearing great weight, this Court has required that evidence of prior bad acts, admitted to show a common plan under Rule 404(b), be "sufficiently similar and not so remote in time" before they can be admitted against a defendant. State v. Boyd, 321 N.C. at 577, 364 S.E.2d at 119.
The State's own evidence tended to show that the alleged assaults against Ellis occurred between the years 1970 and 1975. The crimes for which defendant was indicted occurred between the years 1982 and 1985. Thus, there was a twelve year lapse of time between the start of the alleged assaultive conduct against Ellis by defendant and the start of assaultive behavior against the victim in this case. Furthermore, the time differential between the commencement of the assault against the prosecutrix was seven years after the last of the alleged assaultive episodes against Verona Ellis. Such an extreme time lapse raises serious concerns about the probative nature of such evidence.
In State v. Shane, 304 N.C. 643, 285 S.E.2d 813 (1982), this Court held it was error for the trial court to permit a witness to testify to evidence of prior crimes committed by the defendant because the period of time separating the crimes, a period of seven months, lessened the probative force of that evidence.[1] The Court in Shane stated that "it is evident that the period of time elapsing between the separate sexual events plays an important part in the balancing process, especially when the State offers the evidence of like misconduct to show the existence of a common plan or design for defendant's perpetration of this sort of crime." Id. at 654, 285 S.E.2d at 820.
Similarly, the time period between the alleged prior acts of defendant and the acts upon which this appeal is based is of such a span that any similarity between the two acts is severely attenuated. The period of seven years "substantially negate[s] the plausibility of the existence of an ongoing and continuous plan to engage persistently in such deviant activities." Id. at 656, 285 S.E.2d at 821. As such, the reasoning that gave birth to Rule 404(b) exceptions is lost. See State v. Scott, 318 N.C. 237, 347 S.E.2d 414 (1986) (nine year period held to be too remote to be probative or relevant).
Evidence of other crimes must be connected by point of time and circumstance. Through this commonality, proof of one act may reasonably prove a second. However, the passage of time between the commission of the two acts slowly erodes the commonality between them. The probability of an ongoing plan or scheme then becomes tenuous. Admission of other crimes at that point allows the jury to convict defendant because of the kind of person he is, rather than because the evidence discloses, beyond a reasonable doubt, that he committed the offense charged.
*825 The State argues that remoteness of time should go to the weight and credibility to be given this type of evidence and not to its admissibility. The State directs this Court to Cooper v. State, 173 Ga.App. 254, 325 S.E.2d 877 (1985), where a Georgia court held that the lapse of time between prior occurrences and the offenses charged goes only to the weight and credibility of such testimony and would not prevent its admissibility. Our cases, however, are to the contrary, and we support their reasoned conclusion that the passage of time must play an integral part in the balancing process to determine admissibility of such evidence. See State v. Boyd, 321 N.C. 574, 364 S.E.2d 118; State v. Cotton, 318 N.C. 663, 351 S.E.2d 277 (1987); State v. Weaver, 318 N.C. 400, 348 S.E.2d 791 (1986).
It seems incongruous that such testimony should be allowed into evidence when its probative impact has been so attenuated by time that it has become little more than character evidence illustrating the predisposition of the accused. Such is proscribed by Rules 403 and 404 of our rules of evidence. We think that a process that allows for the passage of time to be weighed in a court's initial decision to admit such evidence is the better reasoned approach and one that ensures that an accused is tried only for the acts for which he has been indicted. We therefore decline to follow Cooper v. State, 173 Ga.App. 254, 325 S.E.2d 877.
We hold that the admission of the testimony relating to the alleged assaultive conduct against Verona Ellis was prejudicial to the defendant's fundamental right to a fair trial on the charges for which he was indicted because the prior acts were too remote in time. Accordingly, defendant is entitled to a
NEW TRIAL.
NOTES
[1] This Court held the passage of time sufficient for preclusion when viewed against other dissimilarities between the criminal act charged and the prior act. Cf. State v. Boyd, 321 N.C. 574, 364 S.E.2d 118 (prior sexual acts occurring within a twelve month period found not to be too remote where the crime charged showed striking similarities with the prior crime). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1744105/ | 507 S.W.2d 153 (1974)
Terry Lee EVISTON, Appellant,
v.
David Michael EVISTON, Appellee.
Court of Appeals of Kentucky.
March 15, 1974.
Charles J. Schear, Newport, for appellant.
Bernard J. Blau, Newport, for appellee.
STEINFELD, Justice.
After a lengthy hearing the trial court adjudged that the custody of Thomas David Eviston, who was born on May 26, 1968, be awarded to his father, appellee David Michael Eviston. The marriage of David and appellant Terry Lee Eviston was dissolved and their property rights were adjudged. On this appeal Terry attacks only that part of the judgment which gave custody of Thomas to David. We affirm.
The trial judge was confronted with the general rule that normally the mother "* * * is better equipped to nurture and care for small children," (Parker v. Parker, Ky., 467 S.W.2d 595 (1971)), which is a consideration in determining "best interest" under KRS 403.270. It is apparent from our opinions and from that statute that the overriding issue is what is for the best interest of the child. Mandelstam v. Mandelstam, Ky., 458 S.W.2d 786 (1970); Hinton v. Byerly, Ky., 483 S.W.2d 138 (1972). The arrangement finally fashioned for the care of Thomas permitted the child to live with his father and paternal grandparents in the same home he had always occupied. We have noted that Terry's mother had proposed what might be considered as a comparable arrangement, however we find no convincing evidence that the disposition made by the chancellor was not in the best interest of the child.
In reviewing the decision, the test is not whether we would have decided differently but whether the findings of the trial judge were clearly erroneous or he abused his discretion. Hamilton v. Hamilton, Ky., 458 S.W.2d 451 (1970). We are unwilling to say that either of these occurred.
We think it appropriate to observe that the custody of this child is subject to review and change as provided in KRS 403.340. In the event appropriate proceedings reveal to the court that a modification *154 should be made, we are confident that proper action will be taken.
The judgment is affirmed.
OSBORNE, C.J., and JONES, MILLIKEN, PALMORE, REED, STEINFELD and STEPHENSON, JJ., sitting.
All concur except OSBORNE, C. J., who concurs in result only. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1378177/ | 639 P.2d 1239 (1982)
Hannibal K. SHADID and Joyce Shadid, d/b/a Poncho's Liquortown, Appellees,
v.
The OKLAHOMA ALCOHOLIC BEVERAGE CONTROL BOARD and Ernest J. Istook, as Director, Appellants.
No. 54778.
Supreme Court of Oklahoma.
January 12, 1982.
Jan Eric Cartwright, Atty. Gen., and Duane N. Rasmussen, Asst. Atty. Gen., Oklahoma City, for appellants.
Phil Lambert, Oklahoma City, for appellees.
*1241 HODGES, Justice.
The questions presented are whether: 1) a retail liquor store owner is permitted by the Okla.Const. art. 27 § 4,[1] and 37 O.S. 1971 § 537(c)(6),[2] to cash a check which exceeds the purchase price of alcoholic beverages, and return the change to the customer; and 2) may the Oklahoma Alcoholic Beverage Control Board [ABC Board] and its director be enjoined from enforcing an Attorney General Opinion as a consequence of a declaratory judgment action.
Hannibal K. and Joyce Shadid, appellees, operate a family owned and operated liquor store, d/b/a Poncho's Liquortown. In the regular course of business they maintain their building; furnish a parking lot, sacks, bags, boxes, carry-out services, and push carts; accept checks in payment, make change; and provide displays, price cards and box boys.
In 1977, the Attorney General issued Op. No. 77-264 which determined that retail package store licensees may not accept customer checks for amounts in excess of the purchase price. The rationale was that to do so constituted a check cashing service prohibited by the Okla.Const. art. 27 § 4, or an inducement to purchase forbidden by 37 O.S. 1971 § 537(c)(6). The Shadids filed a petition seeking a declaratory judgment and an injunction to prohibit enforcement of a portion of Op. No. 77-264[3] by the ABC Board and Ernest J. Istook, Director, appellants, pending a determination of the issues in the action. A similar case was filed by David Samples, a retailer, and The Oklahoma Retail Liquor Association, concerning the same issues, which sought a permanent injunction. The two cases were consolidated. The trial court denied the ABC Board's motion for summary judgment and entered summary judgment in favor of the appellees. The trial court declared that the actions of the Shadids did not violate the statutory restriction against offering inducements, nor did it constitute a constitutionally prohibited rendering of services. A permanent injunction was issued in the companion case.
I
The appellants contend that because the word "service" is defined as a benefit or anything supplied for accommodation, the accepting a check for an amount in excess of the purchase is the furnishing of a service. We believe this definition is too restrictive in this instance. If this definition is carried to fruition, retail liquor store owners would be precluded from providing shopping carts, free packing, sacks, boxes, security guards and box boy services, or accepting a check for the exact amount, and ultimately, the customer could be forced to tender only exact cash payment.
We must agree with the trial court that the cashing of a check and return of change is an act in the normal course of business. Check cashing is not an inducement like "any prize, premium, gift or other similar inducement" to advertise or promote liquor sales, nor are special services being rendered. The constitutional and statutory restrictions were imposed to prevent open saloons and the sale of other goods in retail liquor package stores. Normal retail conveniences are not prohibited either by the Constitution or the statute.
II
The appellants argue that a licensee of the ABC Board cannot enjoin Board enforcement of constitutional and statutory provisions when no provision for injunctive relief is statutorily provided or any irreparable injury can be shown. The Board contends neither is present. The Shadids sought relief, alleging that the Board threatened action against them if they continued the check cashing policy they had maintained in the ordinary course of business. It was asserted that action by the ABC Board would result in irreparable harm and damage.
*1242 As a general rule, public officials will not be enjoined in the exercise of discretionary power. However, an injunction may be issued in a case of gross abuse of discretion if it appears that the action was taken for untenable reasons or to a clearly unreasonable extent.[4] A complainant must show that the illegal acts complained of will result in irreparable injury to himself before he can maintain an action to restrain a public officer or board.[5] The prevention by injunction of impending injury by unlawful official action is proper.[6]
The Declaratory Judgment Act, 12 O.S. 1971 § 1655, provides that further relief may be granted whenever such relief becomes essential and proper after the determination of rights, status or legal relationship has been made. If consequential or incidental relief is properly alleged and sought, the court may, in a proper case, accord both declaratory, executory or coercive relief whenever the relief becomes necessary to effectuate the declaratory judgment.[7] We find that injunctive relief was proper consequential relief emanating from the declaratory judgment.
AFFIRMED.
IRWIN, C.J., BARNES, V.C.J., and LAVENDER, HARGRAVE and OPALA, JJ., concur.
SIMMS, J., dissents.
NOTES
[1] The Okla.Const. art. 27 § 4 provides in pertinent part:
"... No goods, wares or merchandise shall be sold and no services shall be rendered on the same premises on which alcoholic beverages are sold."
[2] Title 37 O.S. 1971 § 537(c)(6) states:
No person holding a package store license under this Act shall ... offer to furnish any prize, premium, gift or other similar inducement to a consumer in connection with the sale of alcoholic beverage.
[3] The portion of Atty.Gen.Op.No. 77-264 sought to be enjoined provides:
"... retail package store licensees ... may not accept customer checks for amounts exceeding the amount of purchase, as the same are prohibited services within the purview of Article XXVII, Section 4 of the Oklahoma Constitution and 37 O.S. 1971 § 537(c)(6)."
[4] Hines v. Ind. Sch. Dist. No. 50 Grant County, 380 P.2d 943, 946 (Okl. 1963).
[5] Brick v. City of Wichita, 195 Kan. 206, 403 P.2d 964 (1965).
[6] Work v. State of Louisiana, 269 U.S. 250, 46 S.Ct. 92, 70 L.Ed. 259 (1925).
[7] Peters v. Hobby, 349 U.S. 331, 75 S.Ct. 790, 99 L.Ed. 1129 (1955); Oklahoma Alcoholic Beverage Control Board v. Central Liquor Co., 421 P.2d 244, 247 (Okl. 1966). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1378115/ | 594 F.3d 589 (2010)
UNITED STATES of America, Appellee,
v.
Michael B. GUIHEEN, Appellant.
No. 09-1652.
United States Court of Appeals, Eighth Circuit.
Submitted: November 18, 2009.
Filed: February 5, 2010.
*590 Ian A. Lewis, Asst. Fed. Public Defender, Springfield, MO, argued (Raymond C. Conrad, Jr., Fed. Public Defender, Kansas City, MO, on the brief), for appellant.
Elizabeth A. Murray, Spec. Asst. U.S. Atty., Springfield, MO, argued (Matt J. Whitworth, Acting U.S. Atty., Kansas City, MO, on the brief), for appellee.
Before MELLOY, BEAM and GRUENDER, Circuit Judges.
GRUENDER, Circuit Judge.
Michael Guiheen pled guilty to being a felon and an unlawful user of a controlled substance in possession of ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 922(g)(3) and 924(a)(2). Before sentencing, Guiheen objected to a proposed four-level increase in his base offense level for possession of a firearm in connection with another felony offense under United States Sentencing Guidelines § 2K2.1(b)(6). Over Guiheen's objection, the district court[1] applied the four-level enhancement. Guiheen appeals. For the following reasons, we affirm.
I. BACKGROUND
On the night of January 14, 2008, Corporal Daryl Adkins and Sergeant David Johnson of the Greene County, Missouri Sheriff's Department went to Guiheen's house to serve an order of protection on him. As they approached the house, Sergeant Johnson heard the chain link fence in the back of the house rattle. The lights were on inside the house and a security light was shining on the back of the residence. Sergeant Johnson knocked on the front door, but no one answered. The officers went to the back of the house. The top of the chain link fence was bent down, and it looked as though someone had crossed over it into the large open field behind the residence. Sergeant Johnson walked into the field and found Guiheen lying down in a row of trees and overgrown brush.
Sergeant Johnson ordered Guiheen to put his hands up, but he did not comply. Instead, Guiheen got into a kneeling position and drew a billy club from his waistband. The billy club was fourteen to sixteen inches long and made of heavy material with a rubber grip. Guiheen raised the billy club in a threatening manner. Sergeant Johnson ordered Guiheen to drop the weapon, and Guiheen threw the billy club behind him.
After Sergeant Johnson placed Guiheen in custody, he noticed a black coat on the ground where Guiheen had been lying. The coat contained an envelope addressed to Guiheen. Under the coat Corporal Adkins found a .22 caliber rifle. The rifle was loaded with a round in the chamber, and the safety was off. Upon searching Guiheen, the officers found .22 caliber ammunition in the pocket of his pants that was identical to the ammunition in the rifle. The officers also found two marijuana pipes in Guiheen's pocket.
Guiheen admitted that he fled to the field after he saw the officers walking toward his house. When asked what his intentions were with the rifle and billy club, Guiheen claimed that the rifle belonged *591 to someone else and that it was lying in the brush when he got there. However, the rifle did not have any rust or moisture on it. When asked if he was going to shoot the officers, Guiheen responded, "[i]f I wanted to shoot you I would have."
A federal grand jury subsequently charged Guiheen with being a felon and an unlawful user of a controlled substance in possession of a weapon and ammunition. Guiheen pled guilty to being a felon and an unlawful user of a controlled substance in possession of ammunition.
At sentencing, Guiheen objected to a proposed four-level increase in his base offense level under U.S.S.G. § 2K2.1(b)(6), which provides for a four-level increase if the defendant "used or possessed any firearm or ammunition in connection with another felony offense." Guiheen argued that he did not possess the rifle in connection with another felony offense. While just one other offense was required, the district court relied on four separate possible felony offenses to support the enhancement: two acts of unlawful use of a weapon, for Guiheen's use of the rifle and the billy club, Mo.Rev.Stat. § 571.030; armed criminal action, Mo.Rev.Stat. § 571.015; and resisting arrest, Mo.Rev.Stat. § 575.150. The district court overruled Guiheen's objection and sentenced him to 70 months' imprisonment, the low end of his advisory sentencing guidelines range.
II. DISCUSSION
"We review de novo the district court's application of the [Sentencing] Guidelines, and we review for clear error the district court's factual findings." United States v. Betts, 509 F.3d 441, 445 (8th Cir.2007). "The district court's determination that the defendant possessed the firearm[ ] in connection with another felony is a factual finding that we review for clear error." United States v. Bates, 561 F.3d 754, 758 (8th Cir.2009) (alteration in original) (quoting United States v. Smith, 535 F.3d 883, 885 (8th Cir.2008)). A finding is clearly erroneous "only if we have a definite and firm conviction that a mistake has been made." United States v. Byas, 581 F.3d 723, 725 (8th Cir.2009) (citing United States v. Garcia, 512 F.3d 1004, 1006 (8th Cir.2008)).
Section 2K2.1 (b)(6) requires a four-level enhancement "[i]f the defendant used or possessed any firearm or ammunition in connection with another felony offense." Application note fourteen of U.S.S.G. § 2K2.1(b)(6) provides that "another felony offense" means "any Federal, state, or local offense ... punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or conviction obtained." U.S.S.G. § 2K2.1(b)(6) cmt. n. 14(C). "`In connection with' means that, at a minimum, the firearm had a `purpose or effect with respect to' the other felony offense because its presence facilitated or had the potential to facilitate the offense, as opposed to being the result of mere accident or coincidence." United States v. Harper, 466 F.3d 634, 650 (8th Cir.2006) (quoting United States v. Regans, 125 F.3d 685, 686 (8th Cir.1997)). Keeping a firearm "at an easily accessible location" while committing another felony "permits the inference that the firearm emboldened the defendant" to engage in the illegal act. United States v. Mack, 343 F.3d 929, 936 (8th Cir.2003); see also United States v. Kanatzar, 370 F.3d 810, 816 (8th Cir.2004), vacated on other grounds, 543 U.S. 1107, 125 S.Ct. 1010, 160 L.Ed.2d 1029 (2005). "This connection is sufficient to satisfy *592 U.S.S.G. § 2K2.1(b)[6]."[2]Mack, 343 F.3d at 936.
A person commits the Missouri offense of felony unlawful use of a weapon if he "[e]xhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner." Mo.Rev.Stat. § 571.030.1(4). Guiheen makes no argument that § 571.030.1(4) does not apply to his display of the billy club to threaten Sergeant Johnson. Rather, Guiheen argues that possessing a rifle could not possibly facilitate his unlawful use of the billy club. We disagree.
Relying on Mack, the district court found that Guiheen's access to the rifle emboldened him to raise the billy club in a threatening manner and thus satisfied U.S.S.G. § 2K2.1(b)(6). This finding was not clearly erroneous. It is undisputed that Guiheen ran away from his house when he saw the officers approaching and hid in a row of trees and brush. A loaded.22 caliber rifle with a round chambered and the safety off was hidden under a coat where Guiheen was lying. Guiheen claimed that the rifle was not his and that he did not bring it with him when he hid. However, the rifle did not have any rust or moisture on it and Guiheen had the same type of ammunition in his pocket as was found inside the rifle. It was quite reasonable for the district court to conclude that the presence of the rifle was no accident and that Guiheen brought it with him as he fled the officers. Guiheen kept the rifle in "an easily accessible location" underneath the coat where he was lying as he brandished the billy club in a threatening manner. See Mack, 343 F.3d at 936. Under these circumstances, it is certainly reasonable to conclude that Guiheen's "maintenance of a firearm at an easily accessible location ... emboldened" him to raise the billy club in a manner threatening to Sergeant Johnson. See id. Accordingly, the district court did not clearly err in finding that Guiheen possessed the rifle in connection with another felony offense, unlawful use of a weapon, and that the enhancement under U.S.S.G. § 2K2.1(b)(6) was appropriate.[3]
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
NOTES
[1] The Honorable Richard E. Dorr, United States District Judge for the Western District of Missouri.
[2] When Mack was decided, the "in connection with another felony offense" enhancement was found at U.S.S.G. § 2K2.1 (b)(5). The enhancement has since been moved from § 2K2.1(b)(5) to § 2K2.1(b)(6) without substantive changes. United States v. Littrell, 557 F.3d 616, 617 n. 2 (8th Cir.2009).
[3] Because we conclude that the enhancement is warranted based on the unlawful use of the billy club, we need not determine whether the possession of the rifle also facilitated any of the other possible felony offenses identified by the district court. See Harper, 466 F.3d at 651. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1378135/ | 639 P.2d 726 (1981)
John Joseph MADSEN, Plaintiff and Appellant,
v.
Darrell L. CLEGG, Defendant and Respondent.
No. 16887.
Supreme Court of Utah.
December 22, 1981.
*727 Clair M. Aldrich, Provo, for plaintiff and appellant.
Frank W. Ballard, Provo, for defendant and respondent.
HALL, Chief Justice:
Plaintiff appeals from a judgment quieting title in defendant to disputed real property under the doctrine of boundary by acquiescence.
The dispositive facts of this case are essentially uncontroverted. The parties' predecessors in interest acquired adjoining tracts of land from a common grantor on the same day in 1904. The metes and bounds descriptions of their respective deeds of conveyance are compatible and form a boundary between the tracts which takes a substantial jog of 1.85 chains to the north before continuing east. This jog enclosed a shed and corral area as a part of the conveyance to plaintiff's father. The corral was fenced with barbed wire, and a similar fence extended to the west along the boundary line as described by the deeds.
Shortly after acquiring the property, plaintiff's father constructed the fence in question. It was located approximately 25 feet south of the boundary line, and ran the full length of the property in a generally straight east-west direction in stark contrast to the jogged true boundary line. The following sketch is representative of the on-site appearance of the two tracts of land:
*728
Plaintiff testified that his father used the strip of land between the two east-west fences as a cattle lane to drive his cattle from the corral west to an adjoining tract of land which he also owned. In 1936, when the ground became muddy due to improper drainage, plaintiff's father moved the cattle and planted the area north of the fence with beets. The area was farmed for an unknown number of years until this became inconvenient because of its size and shape. It was subsequently rented, along with the remainder of the tract, to various tenants until plaintiff purchased the land in 1942.
At some time between 1936 and 1942, the corral, the shed and the original northerly fence were torn down and defendant's father, who then owned the tract to the north, began to farm this section. When plaintiff purchased his land, he became concerned about this use of the land by defendant's father; and from 1942 to 1979, he took pains to pay taxes on the land every year as soon as they were assessed, believing that this action would protect him against any adverse claim to the property. He did not use the land in question during those years except occasionally to trap muskrats.
In 1957, plaintiff conveyed to Orem City a strip of land approximately 25 feet wide, running along the south side of the 1904 fence. According to plaintiff, this strip was selected in preference to the strip north of the fence in order to leave to the north an area large enough that it could be developed as commercial or residential property. Plaintiff also testified that the city did not want to use the northern strip.
In 1979, plaintiff put a new fence along the boundary line which had been established by the 1904 deeds. Defendant removed the fence, whereupon plaintiff filed the present action to quiet title.
The trial court found that defendant and his predecessors had farmed the land in question since 1930 without obtaining plaintiff's permission and that plaintiff had failed to notify defendant of his claim upon the land until 1979. From these facts, the court concluded that the 1904 fence line had been established by mutual acquiescence as the boundary between the two properties.
The doctrine of boundary by acquiescence has long been recognized, and when the location of the true boundary between adjoining tracts of land is unknown, uncertain or in dispute, the owners thereof may, by parol agreement, establish the boundary line and thereby irrevocably bind themselves and their grantees.[1] However, when the true boundary is known, any parol *729 agreement of the owners establishing the boundary elsewhere is void and unenforceable by virtue of the statute of frauds, which requires a conveyance of real property to be in writing.[2]
This Court has determined that in the absence of an express agreement as to the location of the boundary between adjoining owners, the law will imply an agreement fixing the boundary as located, if it can do so consistently with the facts appearing.[3] However, when the evidence fails to support any implication that a fence has been erected by adjoining owners pursuant to an agreement between them as to the location of the boundary, the doctrine of boundary by acquiescence has no application.[4] In an earlier case, this Court cautioned:
We do not wish to be understood as holding that the parties may not claim to the true boundary, where an assumed or agreed boundary is located through mistake or inadvertence, or where it is clear that the line as located was not intended as a boundary, and where a boundary so located has not been acquiesced in for a long term of years by the parties in interest. [Emphasis added.][5]
In the instant case, plaintiff showed that no uncertainty or dispute existed concerning the location of the boundary line at the time the 1904 fence was constructed. The 1904 deeds to plaintiff's and defendant's predecessors unmistakably define a boundary which takes a substantial jog northward at its eastern end. Defendant has raised no question concerning the validity of these deeds; nor has he shown any subsequent conveyance by plaintiff or his father which might cast doubt on plaintiff's present title. The trial court did not include in its findings any indication that the boundary was disputed when plaintiff's father built the fence or that the fence was intended originally as a boundary line. In the absence of any initial uncertainty concerning the ownership of the property in question, the doctrine of boundary by acquiescence has no application.
Even if the trial court had found that uncertainty existed concerning the correct boundary line, it could not have resolved such uncertainty on the basis of defendant's acquiescence theory, because the evidence simply fails to support any finding of an agreement between the parties. Plaintiff testified that his father and defendant's father had never agreed upon the 1904 fence line as a boundary line and that he himself had never regarded the fence line as a boundary line. He testified that he promptly paid taxes every year in order to preserve his claim to the entire property, and the tax records introduced into evidence confirm this testimony.
Defendant, in contrast, did not pay taxes on the corral area until his tax description was changed in 1973 to include that area. Defendant introduced no evidence to show why his tax description was altered in this manner. From 1973 to 1978, he paid taxes on the disputed property, but only after plaintiff had already paid them.
Plaintiff introduced into evidence an application made by his wife in 1955 for a permit to drill an artesian well on the former corral area. This application supports plaintiff's testimony that he regarded that area as his own although he was not making use of it at that time. Plaintiff testified that he had plans to build seven homes on his property, including one on the northern portion, and that the well had been drilled and "proved up" for this purpose. The planned development was prevented only by a change in zoning laws.
Plaintiff's testimony, his payment of taxes on the disputed property, his use of the *730 property to trap muskrats and his drilling of a well on the property all show that he did not acquiesce in defendant's claim of ownership. Defendant's own testimony confirms the fact that the parties never agreed upon the fence line as a boundary. Nor does the fact that plaintiff allowed defendant to share with him the use of the land give rise to any implication that the fence was erected pursuant to an agreement to establish a boundary.[6] The evidence utterly fails to support the conclusion of the trial court that a boundary was established by mutual acquiescence.
Defendant, in his counterclaim, also asserted a right to the disputed property under the doctrine of adverse possession. Defendant did not argue this theory on appeal, nor did he support his claim by showing payment of taxes on the property for the requisite seven years. Moreover, defendant failed to clearly establish the extent of the property claimed under this theory: testimony by his expert showed that the description of the property on which defendant paid taxes from 1973 to 1978 differs from that of the property which he now claims. Thus, defendant has established no right to the property through adverse possession.
We hold that under the doctrines both of boundary by acquiescence and of adverse possession, defendant's claim to the property described in plaintiff's complaint fails, and that title thereto should be quieted in plaintiff.
Reversed and remanded for disposition consistent with this opinion. Costs to plaintiff.
STEWART and OAKS, JJ., and DEAN E. CONDER, District Judge, concur.
HOWE, J., concurs in the result.
NOTES
[1] Brown v. Milliner, 120 Utah 16, 232 P.2d 202 (1951), citing Rydalch v. Anderson, 37 Utah 99, 107 P. 25 (1910) and Tripp v. Bagley, 74 Utah 57, 276 P. 912 (1928).
[2] Tripp v. Bagley, supra, note 1.
[3] Holmes v. Judge, 31 Utah 269, 87 P. 1009 (1906).
[4] Peterson v. Johnson, 84 Utah 89, 34 P.2d 697 (1934); Home Owners' Loan Corporation v. Dudley, 105 Utah 208, 141 P.2d 160 (1943); Glenn v. Whitney, 116 Utah 267, 209 P.2d 257 (1949).
[5] Holmes v. Judge, supra, note 3.
[6] Brown v. Milliner, supra, note 1. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1378344/ | 30 F. Supp. 671 (1939)
SEABOARD TERMINALS CORPORATION et al.
v.
STANDARD OIL CO. OF NEW JERSEY et al.
District Court, S. D. New York.
November 13, 1939.
O'Connor & Farber, of New York City (Arnold T. Koch and Henry K. Urion, both of New York City, of counsel), for plaintiffs.
Louis Mead Treadwell, of New York City (Henry B. Potter and Stafford Smith, both of New York City, of counsel), for defendant Socony-Vacuum Oil Co., Inc.
MANDELBAUM, District Judge.
The plaintiffs move for a separate trial of certain issues contained in the separate defenses of the defendant, Socony Vacuum Oil Company, Inc.
The action was brought under Section 4 of the Clayton Act, 15 U.S.C.A. § 15, for treble damages for injuries suffered by the *672 plaintiffs resulting from an alleged conspiracy entered into by the defendants in violation of the Sherman Anti-Trust Act 15 U.S. C.A. § 1 et seq., to destroy the businesses of the plaintiffs.
It is the law of the case, as determined by a decision of Judge Patterson (D.C. 24 F. Supp. 1018) and affirmed by the Circuit Court of Appeals (2 Cir., 104 F.2d 659), that the cause of action set forth in the amended complaint arose in Maryland and the three year statute of limitations of Maryland, Code Pub.Gen.Laws 1924, art. 57, § 1, is applicable thereto by virtue of Section 13 of the New York Civil Practice Act. The plaintiffs seek a separate trial against the remaining defendant, Socony Vacuum Oil Company, Inc., as to the defense of statute of limitations, conceding that if this issue is determined adversely to the plaintiffs, it will be a final and complete disposition of the matter. Both under the old equity rules as well as under the new Federal Rules of Civil Procedure, Rule 42(b), 28 U.S.C.A. following section 723c, the court may order such separate trial in furtherance of convenience.
While it is true that ordinarily it is the defendant who seeks a separate trial, I see nothing in the rules which precludes the plaintiffs from making such application. In Moore's Federal Practice, Volume 3, at page 3051, it is said: "It may also be desirable in many situations to hold a hearing in advance of the main trial on certain defenses, especially those going to jurisdiction and venue * * *. The same would often be true as to defenses of the statute of limitations or the statute of frauds which might be tried advantageously before the balance of the case".
An anti-trust suit, such as the one at bar, is usually complicated and protracted. So, considering the time and expense that may be consumed at an actual trial, and since a determination of this one issue may end the entire litigation, the court is inclined to exercise its discretion in favor of a separate trial of the issues of statute of limitations. This is not inconsistent with my decision in Madigan v. Socony Vacuum Oil Company, Inc.,[1] L-59, p. 375, decided October 27th, 1936. There, the complaint was in negligence and the answer pleaded a general release as a bar to the action. The court refused to grant a separate trial of the issue of release prior to the negligence suit itself. There was nothing difficult nor unusual and there was no reason why all the issues should not expeditiously be tried at one time. In addition thereto, the court was guided by several decisions of this court which have refused to grant separate trials on the issue of release in negligence cases.
The court has not overlooked the defendant's claim of laches as a bar to this action. The court, however, feels that the equities preponderate in favor of the plaintiff on this application. (See Todd v. Russell, D.C., 20 F. Supp. 930, at page 934 where Judge Coxe, on December 11th, 1933 directed a separate trial of the issues of laches and statute of limitations).
The motion is granted and a separate trial directed of the issues raised by the 3rd, 5th and 7th defenses as set forth in Paragraphs numbered 25th, 27th and 29th to 33rd inclusive of the answer of the defendant, Socony-Vacuum Oil Co., Inc.
The trial of the remaining issues will be postponed until the final determination of the trial of the separate issues.
Settle order on two days' notice.
NOTES
[1] No opinion for publication. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1378530/ | 476 F.Supp. 335 (1979)
Kyriaki Cleo KYRIAZI, Plaintiff,
v.
WESTERN ELECTRIC CO. et al., Defendants.
Civ. A. No. 475-73.
United States District Court, D. New Jersey.
September 13, 1979.
Vladeck, Elias, Vladeck & Englehard by Judith P. Vladeck, Margaret M. Young, New York City, for plaintiff.
Pitney, Hardin & Kipp by Edward P. Lynch, S. Joseph Fortunato, Claire B. Dubin, Morristown, N. J., for defendants.
OPINION
STERN, District Judge.
This Court has held, in Kyriazi v. Western Electric, 461 F.Supp. 894 (D.N.J.1978), *336 that the defendant Western Electric discriminated against the named plaintiff in this class action, Kyriaki Cleo Kyriazi, and against women as a class,[1] in violation of Title VII. In addition, it found that the individual defendants, several of Kyriazi's co-workers, were liable to her under federal and state law.[2] The Court must now determine Kyriazi's remedy.
The facts of Kyriazi's individual case, as found by this Court, together with the facts found in the class case, are set forth in Kyriazi v. Western Electric, supra. Briefly, as they pertain to the individual claim, they may be summarized as follows.
Kyriazi, a native of Greece, received a B.S. in Economics from the School of Economics in Athens, Greece in 1952. She emigrated to the United States in 1958. In 1961 she received a Master of Business Administration from Columbia University and in 1965 she received a Master of Industrial Engineering Degree, also from Columbia. She was hired by Western in 1965 as an engineer in the Information Systems field at Western's headquarters in New York, and was transferred to the Industrial Engineering organization of Western's Kearny plant in February, 1966. In May, 1967, she was promoted to the position of Industrial Engineer and in February, 1969, she was transferred to the Information Systems organization at Kearny, where she held the position of Information Systems Staff member. She remained in that capacity until she was fired on November 19, 1971.
As this Court observed of Western's treatment of Kyriazi in connection with the liability stage of Kyriazi's individual case:
From the very first, Kyriazi's experience with Western was fraught with difficulties. . . . [T]he Court finds that upon her transfer to the Kearny plant, Kyriazi encountered the top-to-bottom discriminatory sex policies of Western; that she refused to function within the sex segregated role expected of an employee at Western; that she actively protested and rebelled against what she perceived to be the unfair treatment of women at Western; and that in return she was denied promotion, discriminated against by her superiors, unfairly denied salary increases, subjected to odious personal harassment by fellow workers and, finally, fired when, instead of complying with her employer's ultimatum that she seek psychiatric help, she formally complained of sex discrimination.
461 F.Supp. at 924-26. Accordingly, after resolving much of the conflicting evidence in Kyriazi's favor, the Court found that Kyriazi was underpaid, that she was harassed by her co-workers, that she was denied promotionsall on account of her sexand that she was ultimately terminated by Western both on account of her sex and in retaliation for having lodged a formal complaint of sex discrimination. In addition, the Court found that the individual defendants, Kyriazi's supervisors and co-workers during the period in question, were liable to her under state law for tortious interference with her contract of employment based upon the odious personal harassment they inflicted on her during her tenure at the Information Systems organization at Kearny.[3]
*337 This Court has already found that Kyriazi is entitled to back pay from Western and to reinstatement at the level where she would have been had she not been the victim of discrimination. In order to determine the back pay due plaintiff, we must determine the course of her employment had Western not improperly fired her on November 19, 1971, and discriminated against her before that. As the Court found in connection with the liability stage of Kyriazi's case, Western computes salary on the basis of age, rank, and rating. This Court has previously addressed the manner in which damages are to be computed. The work record of each woman is to be evaluated. Each promotional opportunity which was or should have been available to her is to be considered where appropriate. Each woman is to be compared to the male employee most like her with respect to age, education and experience, in order to determine a suitable rating from which to compute seniority and salary. She will be awarded the difference between her actual salary and what a comparable male would have received. Kyriazi v. Western Electric, 465 F.Supp. 1141, 1145-47 (D.N.J.1979).
The Court has determined on the basis of evidence adduced at both stages of Kyriazi's individual case that the male most comparable to Kyriazi is her former co-worker in Information Systems, Shen T. Liu.[4] Both individuals emigrated to the United States as adults, and English is a native language to neither. Both received their bachelor's degrees from foreign universities, and their Master's degrees in this country (Kyriazi from Columbia; Liu from Rutgers). Both entered Information Systems organization at approximately the *338 same time: Liu in 1968, Kyriazi in 1969; by May 1969, both were Staff members. Finally, both worked on the same project in Information Systems. Adjustments must be made to reflect that Kyriazi is approximately ten years older than Liu, and that she had been at Western for an additional three years. A comparison of the salaries of Liu and Kyriazi when both were employed at Kearny makes clear that Kyriazi's age and experience were not given proper consideration.[5] Although Kyriazi was rated lower than Liu, this Court has already held that such ratings must be disregarded where they are tainted with unlawful considerations:
Where the evidence indicates that supervisors are conscientiously and fairly attempting such evaluations, their conclusions are entitled to great weight. Subjective perceptions will vary. A perfect evaluation is not required, even if it were attainable.
But when, as here, an employee has demonstrated that her supervisors were unlawfully discriminating against her, then their ratings and rankings are no longer presumptively valid. It falls upon them, in such circumstances, and upon their employer, to demonstrate the bona fides of low rankings awarded by supervisors . . . No satisfactory evidence in support of the . . . evaluations of Kyriazi was offered to the Court by Western.
461 F.Supp. at 943.
Kyriazi's damages, therefore, will be determined as follows. During the period prior to Kyriazi's termination, she will be ranked the same as Liu except, of course, in those periods in which she received a higher rating.[6] The salary which Kyriazi should have received is that which Liu received, adjusted to reflect that Kyriazi was 9½ years older than Liu and three years senior in service, and at times had a higher rating. Her award for the period prior to her termination is the difference between the aggregate wages she would have received using this computation and her actual wages.
The Court notes, however, that while Liu is the most similar to Kyriazi within the small universe of males with whom Kyriazi worked while she was at Western, a continued comparison of the two after she left Western would be most unfair to Kyriazi. After Kyriazi's departure from Western in November of 1971, Liu's ratings dropped to "C". Apparently because of this decline in ratings, Liu was not promoted to Senior. *339 For the period following her termination, Kyriazi should not be shackled with Liu's descending career. Kyriazi's ratings and ranking from 1971 on will be fixed at what we have determined they should have been upon her termination in computing back pay. She will continue with that rating thereafter. Western has offered us nothing to indicate that her performance would have dropped off after 1971.
It is also clear that an employee with Kyriazi's experience and proper rating would, if she maintained them, have been promoted. Liu, as we have noted, would have been promoted if he had maintained his job performance. Kyriazi entered the Information Systems organization as a Staff member in 1969. After considering the employment histories of her male co-workers, it is impossible to assess the exact time when she should have been promoted. It is clear, however, that while average waiting periods for promotion varied it should not have taken longer than 3 years at the very most for a "B" rated Information Systems organization Staff member to be promoted to "Senior" during the relevant period of our inquiry. Kyriazi first entered Information Systems organization as a Staff member. As of February, 1969, she held the rank that Liu did not achieve until May of that year. Indeed, since her transfer was lateral, from Industrial Engineer in another department to Staff member, she had effectively held the same rank since May 1, 1967. Thus, at the time of her discharge in November of 1971 she had been a Staff member for two and one-half years in Information Systems organization, and held an equivalent rank elsewhere in Western for approximately two and one-half years before that, for a total of five years. Recognizing that it may not be realistic to credit all of her prior service rendered at an equivalent rank in another department, it is nonetheless apparent that she should have been promoted to Senior member within two years after her transfer into Information Systems organization.
We find that plaintiff should have been designated as a Senior not later than March 1, 1971.
Accordingly, she will be reinstated at the level of Senior. She will, of course, receive all retroactive benefits, including seniority and pension benefits. To the extent that any such benefits are computed on the basis of salary or rating, they must be based upon the salary and rating as found by the Court. Counsel will compute Kyriazi's salary as if she had been promoted to Senior as of March 1, 1971; and that thereafter, for the period from November, 1971, until reinstatement her salary will be computed at the average ranking and rating ordered for her during the earlier period. From this, counsel will deduct the salary Kyriazi actually received as well as the following further deductions. First, the sum of $1,175 must be deducted from Kyriazi's back pay award to reflect the severance pay Kyriazi received from Western. Second, her unemployment insurance payments in the amount of $5,681 must also be deducted. Finally, counsel will add interest at the rate of 8%.[7]
The question of the deductibility of unemployment benefits from Title VII back pay awards merits some discussion. Plaintiff relies on the Supreme Court's decision in National Labor Relations Board v. Gullett Gin Co., 340 U.S. 361, 71 S.Ct. 337, 95 L.Ed. 337 (1951), which involved a back pay award in the analogous area of unfair labor practices. There, the Court approved the N.L.R.B.'s refusal to deduct unemployment benefits from the back pay award:
Such action may reasonably be considered to effectuate the policies of the Act. To decline to deduct state unemployment compensation benefits in computing back pay is not to make the employees more than whole . . . Payments of unemployment compensation were not made to the employees by respondent but by the state out of state funds derived from *340 taxation. . . . We think these facts plainly show the benefits to be collateral. It is thus apparent from what we have already said that failure to take them into account in ordering back pay does not make the employees more than "whole" as that phrase has been understood and applied.
Id., at 364-5, 71 S.Ct., at 340 (footnote omitted). However, as defendant points out, the circuit courts have not extended this rationale to Title VII. Thus, in Equal Employment Opportunity Commission v. Enterprise Association Steamfitters Local No. 638, 542 F.2d 579 (2nd Cir. 1976), the Second Circuit upheld the district court's deduction of unemployment benefits from a back pay award:
We see no compelling reason for providing the injured party with double recovery for his lost employment; no compelling reason of deterrence or retribution against the responsible party in this case; and we are not in the business of redistributing the wealth beyond the goal of making the victim of discrimination whole.
542 F.2d at 592. See also Satty v. Nashville Gas Co., 522 F.2d 850 (6th Cir. 1975), vacated and remanded on other grounds, 434 U.S. 136, 98 S.Ct. 347, 54 L.Ed.2d 356 (1977); Bowe v. Colgate Palmolive Co., 416 F.2d 711, 721 (7th Cir. 1969); Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 401 (3rd Cir. 1976), cert. denied, 429 U.S. 1041, 97 S.Ct. 741, 50 L.Ed.2d 753 (1977) (affirming without discussion the district court's calculation of back pay award which had deducted unemployment insurance). In light of this authority, the Court is bound to reduce Kyriazi's back pay award by the amount of the unemployment benefits she received following her termination by Western.[8]
All that now remains is the question of damages against the individuals under state law.[9] Insofar as Kyriazi has already been fully compensated under Title VII, only punitive damages will be assessed against these individuals.[10] Under New Jersey tort law:
Punitive or exemplary damages . . . are [appropriate] when the wrong-doer's conduct is especially egregious. They are awarded upon a theory of punishment to the offender for aggravated misconduct and to deter such conduct in the future.
Leimgruber v. Claridge Associates, Ltd., 73 N.J. 450, 375 A.2d 652 (1977).
While it is hardly this Court's role to penalize mere rudeness, when a party's deliberate conduct is so extreme that it intentionally interferes with another's ability to practice a profession or earn a livelihood, the wrongdoer must be punished and deterred. It is clear from the conduct of the individual defendants, Snyder, Armstrong and Liu, that they made Kyriazi's work environment intolerable. They shot rubber bands at her. They engaged in boisterous *341 speculations about her virginity. They circulated an obscene cartoon depiction of her. Kyriazi's supervisors, Wilser and Boyd, aware of this conduct, chose simply to ignore it, thereby acquiescing in it. Indeed, when forced to confront her complaints, they swept them aside. Her reaction to this conduct provoked, in large part, her ultimate termination from Western.
The Court, in the exercise of its discretion, will assess punitive damages against each of the individual defendants in the amount of $1,500. This sum is hardly onerous. It represents the least amount that the Court finds adequate to punish these individuals for their egregious treatment of Kyriazi.[11]
Western has taken the position that it may indemnify these employees. It is not prepared to indicate even yet whether it will or will not. The Court will order that Western may not indemnify these individuals.[12] Any other result would permit Western to entirely circumvent the purpose of the punitive damages which have been awarded, and to pass on to its shareholders or to the consuming public the consequences of the wrongdoings of its employeeswhich the Court has determined should be borne by them personally.
Accordingly, counsel are directed to formulate the precise amount of back pay due Kyriazi and to submit a final order, in accordance with this opinion, which will dispose of Kyriazi's individual case.
NOTES
[1] The class as certified consists of all women who now or at any time since June 9, 1971, have been employed by Western's plant in Kearny, New Jersey, or who sought employment with Western's Kearny plant during the pendency of the action. Following a trial on liability alone, the Court found that Western discriminated against the class in such diverse areas as hiring, promotion, salary, participation in training programs and layoffs. The damage phase of the class action is presently pending before Special Masters appointed by this Court. See Kyriazi v. Western Electric, 461 F.Supp. 894 (D.N.J.1978); Kyriazi v. Western Electric, 465 F.Supp. 1141 (D.N.J.1979).
[2] See note 3 and accompanying text, infra.
[3] The individual defendants are Fred Wilser and Ralph Boyd, Kyriazi's supervisors in Information Systems; and James Snyder, Robert Armstrong and Shen T. Liu, her co-workers in Information Systems. The details of their behavior are set forth in 461 F.Supp. at 924-45, and are also discussed infra, in connection with her claim for damages under state law. The conduct of these individuals, together with Western's failure to take action against them, also served as a basis for liability under 42 U.S.C. § 1985(3) as that statute was then interpreted by the Court of Appeals for the Third Circuit in Novotny v. Great American Federal Savings & Loan Association, 584 F.2d 1235 (3rd Cir. 1978) (en banc). However, the Supreme Court has recently vacated that decision and held that 42 U.S.C. § 1985(3) may not be invoked to redress violations of Title VII. Great American Federal Savings & Loan Association, et al. v. Novotny, ___ U.S. ___, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979). Accordingly, an order will enter vacating the liability of Western and the individual defendants under 42 U.S.C. § 1985(3).
The elimination of the federal claim against the individual defendants, however, does not deprive this Court of subject matter jurisdiction over the state law claims against them. Although the Supreme Court in Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976), held that there must exist an independent basis of subject matter jurisdiction as to each party, it carved out a possible exception in cases where one defendant must be sued in federal court:
When the grant of jurisdiction to the federal court is exclusive . . . the argument of judicial economy and convenience can be coupled with the additional argument that only in federal court may all of the claims be tried together.
Id., at 18, 96 S.Ct. at 2422. At least four Courts of Appeals have held, on the basis of this language in Aldinger, that there is pendent party jurisdiction over non-federal parties where one party is sued under an exclusive grant of federal jurisdiction. See, Ortiz v. United States, 595 F.2d 65 (1st Cir. 1979); Dick Meyers Towing Service, Inc. v. United States, 577 F.2d 1023 (5th Cir. 1978) (per curiam); Morrissey v. Curran, 567 F.2d 546 (2nd Cir. 1977); Transok Pipeline v. Darks, 565 F.2d 1150 (10th Cir. 1977). At least two circuits have gone the other way. See Kack v. United States, 570 F.2d 754 (8th Cir. 1978); Ayala v. United States, 550 F.2d 1196 (9th Cir.), cert. granted, 434 U.S. 814, 98 S.Ct. 50, 54 L.Ed.2d 70 (1977), cert. dismissed, 435 U.S. 982, 98 S.Ct. 1635, 56 L.Ed.2d 76 (1978). The Court of Appeals for the Third Circuit has not yet spoken on this issue.
This Court believes that the better view is that espoused by the majority of circuits thus far, that pendent party jurisdiction may be exercised, in appropriate circumstances, where the claim against one party is predicated upon an exclusive grant of federal subject matter jurisdiction. Any other course of action would seem to this Court a waste of judicial resources and a hardship upon the litigants. Accordingly, since the grant of subject matter jurisdiction here is exclusive as to Western, see 42 U.S.C. § 2000e (1976), and since the claims arise out of a "common nucleus of operative fact", the Court will exercise pendent party jurisdiction over the state claims against the individual defendants.
[4] Thus, the Court adopts in substance Western's proposed finding # 13. We reject Kyriazi's proposed findings #'s 5-12 in which she urges comparison respectively to James Snyder, J. Meudt, R. Lear, H. Kardash and L. Gruber.
[5] RANK ORDERINGS
YEARS WITH MONTHLY
DATE AGE RANK RATING WESTERN SALARY
12/1/69 Liu 30 20th N 1 $1045
Kyriazi 39 29th B 4 1095
6/1/70 Liu 30 22nd B 1 1045
Kyriazi 40 30th C 5 1095
12/1/70 Liu 31 20th B 2 1045
Kyriazi 40 18th B 5 1095
12/1/71 Liu 33 28th B 3 1160
Kyriazi 42 33rd B 7 1175
(Exh. P-154)
[6] Of course, in the "real" worldas opposed to the world of damagesKyriazi and Liu could not receive the same ranking; there can, for example, only be one 20th best employee. But discrimination has distorted the merit system, making it impossible for us, years later, to determine what is based on merit, and what is not. We cannot fix exactly where she should have been. We only know that she should not have been any lower than Liu. The Court has previously held, in connection with the class case, that where more than one class member claims entitlement to the same promotion all must be deemed to be entitled to it for remedial purposes, unless Western can prove which one would have received it. The same reasoning applies here.
[7] The 8% interest, of course, will not be awarded on the entire back pay award, but will be keyed to each year's differential. Thus, for example, interest on the 1975 differential will accrue as of 1975, and so forth.
[8] The Court rejects defendant's proposed finding # 11, in which it argues that Kyriazi's back pay award should be further reduced because she failed to mitigate damages between January 1, 1979 and April 30, 1979. We find no credible evidence of such a failure.
[9] The individual defendantsWilser, Boyd, Armstrong, Snyder and Liuwere held liable under state law for having maliciously interferred with Kyriazi's employment with Western. See, Kyriazi v. Western Electric, 461 F.Supp. at 949-50. This Court's subject matter jurisdiction over the state law claims against them is addressed at note 3, supra.
[10] New Jersey law recognizes the "collateral source rule" whereby a tort victim may recover more than once for the same injury provided each recovery comes from a different source. See Hedgebeth v. Medford, 74 N.J. 360, 378 A.2d 226 (1977).
However, under Title VII law, collateral recoveries are not permitted. See discussion supra in connection with the deductibility of unemployment benefits. Therefore, Kyriazi may not recover under state law the same damages she recovers under Title VII. She will receive no recovery from the individual defendants for "damage to her reputation" and "damage to her professional advancement" because she is adequately compensated for such injuries by back pay and reinstatement. In any event, if she seeks damages other than back pay on her claims for "damage to reputation" and "damage to her professional advancement", she has offered no evidence of such additional damage. Therefore, it is apparent to the Court that her claims for damages under state law are identical with her claim for back pay under Title VII.
[11] The Court, based on its study of the salary structure at Western, is in an excellent position to make this assessment.
[12] There appears to be no case law on whether an employer can be prohibited from indemnifying an employee for punitive damages. An analogous line of cases holds that, for public policy reasons, an insurer may not indemnify an insured for punitive damages. See W. Prosser, Torts 12-13 (4th Ed. 1971). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1378558/ | 135 Ga. App. 647 (1975)
218 S.E.2d 658
LAMBERSON
v.
NORRIS.
50742.
Court of Appeals of Georgia.
Submitted May 28, 1975.
Decided September 3, 1975.
Van Gerpen & Bovis, Steven J. Kyle, for appellant.
Moulton, Carriere, Cavan & Maloof, J. W. Moulton, for appellee.
CLARK, Judge.
Once again this court is called upon to decide if liability can be imposed upon a home owner by a visitor who sustains injuries from a fall resulting from a failure to observe the existence of a minor difference in floor levels. In this instance the appeal via certificate is by defendant home owner from denial of his motion for summary judgment.
As in all slip-and-fall cases the facts determine if the particular situation[1] comes within those controlling precedents which have ruled for plaintiff or defendant or held the question to be for determination by the jury.
Accordingly, we briefly detail the facts preceding plaintiff's fall. Plaintiff's husband and defendant were members of the same church bible class. On the day in question, at the invitation of defendant, class members and their families assembled at defendant's domicile for a Christmas get-together at which refreshments were to be served and gifts to be exchanged. Arriving at defendant's home at about 7:00 in the evening, plaintiff and her husband observed that defendant and his guests were in another part of the house. Neither plaintiff nor her husband had previously visited defendant's home. As plaintiff, accompanied by her husband, entered the foyer, she noticed a Christmas tree on the far side of the living room to her right. Inasmuch as she had brought two Christmas gifts to the party, plaintiff decided to place them under the tree. But plaintiff was unaware of a step-down between the foyer and "sunken" living room, and as she stepped off the foyer plaintiff fell to the living room floor, suffering severe injuries.
*648 1. In cases of this type the appellant and appellee advocates argue initially the legal status of plaintiff. Because Judge Arthur G. Powell[2] expressed the applicable law so well in one of our court's earliest decisions, his opinion in Mandeville Mills v. Dale, 2 Ga. App. 607 (58 SE 1060) is generally cited for the seminal statements on this proposition. The first headnote reads: "The elements of legal liability of the owner or proprietor of premises for injuries occasioned to persons thereon, vary according to whether the person injured was, at the time of the injury, a trespasser, a licensee, a visitor under invitation, express or implied, or a person standing in some special relation recognized by law." At page 611 Judge Powell adopted with approval the language of a Rhode Island case: "There is a clear distinction between a `license' and an `invitation' to enter premises, and an equally clear distinction as to the duty of an owner in the two cases. An owner owes to a licensee no duty as to the condition of premises, unless imposed by statute, save that he should not knowingly let him run upon a hidden peril, or wilfully cause him harm; while to one invited he is under obligation for reasonable security for the purposes of the invitation."
2. Pretermitting the question discussed by both parties of whether plaintiff was a licensee or an invitee, we conclude defendant has carried the burden of showing the absence of legal liability and the non-existence of a genuine issue of material fact. For, even if judged by the higher standard of care owed to an invitee, defendant cannot be said to have breached the obligation owed to plaintiff.
In Wardlaw v. Executive Committee, 47 Ga. App. 595 (170 SE 830), revd. 180 Ga. 148 (178 SE 55), plaintiff sought to recover damages for injuries which she sustained as an invitee upon defendant's hospital *649 premises. In her petition, plaintiff alleged her injury occurred when she fell down a five-inch step which led from a hallway to a room. In a per curiam opinion, this court ruled the petition was not subject to general demurrer on the ground that no cause of action had been asserted. In his dissenting opinion in the Wardlaw case supra, which foreshadowed the Supreme Court's reversal, Presiding Judge (later Justice) Jenkins stated: "The mere fact that there is a slight difference between floor levels in different parts of a business building `which the public are invited to enter does not in itself constitute negligence.' 45 C. J. 866. Such a variation of level in buildings, amounting to only a few inches (4 to 6 as shown in adjudicated cases), constitutes a common method of construction, and does not of itself render it defective or negligent... Thus, the mere averment that the plaintiff fell would not aid the petition. There is no allegation that the place where the injury occurred was improperly lighted so that the 5-inch step would not have been plainly visible to the plaintiff or others who merely looked at the floor; that the construction of such a level in the building was different from common practice; that any other unusual situation in the environment of the injury existed; that the plaintiff was suffering from bad eyesight or other infirmity known to the defendant or its agent (see Rollestone v. Cassirer, 3 Ga. App. 161 (59 SE 442)); that anything occurred to throw the plaintiff off her guard; or that other facts existed which would render the defendant liable." This dissent was referred to approvingly in Vaissiere v. J. B. Pound Hotel Co., 184 Ga. 72 (190 SE 354) and followed in a number of cases hereafter cited.
In the case at bar therefore the mere difference between the level of the foyer and that of the living room (approximately six to eight inches) does not ipso facto constitute negligence. Executive Committee v. Wardlaw, 180 Ga. 148, supra. See also, Mitchell Motors, Inc. v. Tatum, 120 Ga. App. 689 (172 SE2d 187).
Nor do other facts appear which would render the defendant liable. The record reflects that the immediate surroundings were adequately lighted. Compare Tybee Amusement Co. v. Odum, 51 Ga. App. 1 (179 SE 415). And while neither the foyer nor the living room was carpeted, *650 the mere failure to provide carpeting does not constitute negligence. See Veterans Organization v. Potter, 111 Ga. App. 201 (141 SE2d 230).
Moreover, defendant was under no duty to warn plaintiff of the step-down. "Warnings of a condition which are or should be obvious are not required." Herschel McDaniel Funeral Home v. Hines, 124 Ga. App. 47, 49 (183 SE2d 7); Beaubien v. Bogle, 126 Ga. App. 406 (190 SE2d 830).
In sum, "No negligence on the part of the defendant, either in the construction or in the maintenance of the floor or of the carpet appears, and plaintiff is not entitled to recover. Her misfortune flows from an accident, for which nobody is at fault and for which nobody can be held." Herschel McDaniel Funeral Home v. Hines, 124 Ga. App. 47, 50, supra.
For similar holdings on summary judgments, see Beaubien v. Bogle, 126 Ga. App. 406, supra, where the step-down was three inches or more from a level walkway on to a sloping driveway; Cash & Save Drugs v. Drew, 124 Ga. App. 721 (185 SE2d 786) involving a slab 2 1/2 inches above sidewalk under covered entryway; Mitchell Motors v. Tatum, 120 Ga. App. 689, supra, dealing with one-step situation; Family Dollar Stores v. Brown, 123 Ga. App. 359 (181 SE2d 100) where the fall occurred because of unevenness in concrete walkway; Houser v. Walter Ballard Optical Co., 108 Ga. App. 559 (133 SE2d 924) where there was a step-down of nine inches; Martin v. Sears Roebuck & Co., 120 Ga. App. 66 (169 SE2d 718). In Stephens v. Dover Elevator Co., 109 Ga. App. 112 (135 SE2d 593) where an elevator was 4 to 6 inches above floor level, a general demurrer was sustained, and in Roberts v. Wicker, 213 Ga. 352 (99 SE2d 84), where a ridge existed in a door-threshold strip, the grant of a nonsuit was affirmed. And in Pilgreen v. Hanson, 89 Ga. App. 703, 707 (81 SE2d 18) and Stowe v. Gallant-Belk Co., 107 Ga. App. 80 (3) (129 SE2d 196) our court ruled that a slight difference between floor levels is not usually in and of itself negligent construction.
3. Plaintiff contends the trial court properly denied defendant's motion for summary judgment since it is questionable as to whether defendant knew that another *651 person had stumbled previously upon the step-down. We disagree. "The fact that someone had previously fallen on the steps would not create a negligent condition where none had existed before." Sanford v. Howe, 129 Ga. App. 641, 643 (200 SE2d 508).
Judgment reversed. Pannell, P. J., and Quillian, J., concur.
NOTES
[1] "[E]ach case virtually must stand or fall upon its own peculiar facts, and any attempt to draw fine distinctions based on supposed factual differences must almost inevitably fail. In the final analysis, therefore, resort must be had to fundamental principles..." Rockmart Bank v. Hall, 114 Ga. App. 284, 286 (151 SE2d 232).
[2] Lawyers outside Georgia have now discovered the greatness of our Powell and the legendary Logan Bleckley: "Powell is always interesting, and Bleckley is a real find." So says a book reviewer in 61 Am. Bar Assn. Jour. 804 (July 1975). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1378560/ | 639 P.2d 593 (1982)
STATE of New Mexico, Plaintiff-Appellee,
v.
Bryan McCRARY and Bart Dewayne Burdick, Defendants-Appellants.
No. 5347.
Court of Appeals of New Mexico.
January 7, 1982.
*594 W. Gilbert Bryan, Bryan & Francoeur, Hobbs, for defendant-appellant McCrary.
M.J. Collopy, Hobbs, for defendant-appellant Burdick.
Jeff Bingaman, Atty. Gen., Barbara F. Green, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.
OPINION
WOOD, Judge.
Is a prosecutor (in this case, an assistant district attorney), authorized to charge first degree murder in an information based on a magistrate's bind-over order for trial on second degree murder? No. We discuss (1) the applicability of State v. Melendrez, 49 N.M. 181, 159 P.2d 768 (1945); and (2) authority to charge.
The criminal complaint against each defendant charged murder in violation of § 30-2-1, N.M.S.A. 1978. After a preliminary examination was held, the magistrate bound over each defendant for trial in the district court on the charge of "2nd Degree Murder or lesser Offense". The prosecutor filed informations charging each defendant with murder in the first degree. Each defendant moved that the first degree murder charge be stricken from the information or, in the alternative, that the information be dismissed. After the cases were consolidated, the motions were denied. We granted an interlocutory appeal.
State v. Melendrez
In Melendrez, the criminal complaint charged "`Assault With Intent to Kill'". After the preliminary examination, the justice of the peace issued a commitment (bind-over order) holding Melendrez on a charge of "`Assault With Intent to Murder and/or Maim'". The district attorney filed an information in two counts. Count I charged "`Assault With Intent to Murder'"; Count II charged "`Assault With Intent to Maim.'" Melendrez was convicted of Count I. On appeal, he contended that under N.M.Const., art. II, § 14 and New Mexico statutes,
the information filed by the district attorney must substantially charge the crime stated in the complaint filed with the justice of the peace ... or one which is included or embraced within it, and further contends that in case the crime charged in the information is not the one stated in the complaint ... or one included therein, the district court cannot over the objection of the defendant, legally proceed to try him for the offense charged in the information[.]
* * * * * *
It appears that there are three views, influenced no doubt by the statutes of the various jurisdictions.
1. The information must conform to the preliminary proceedings and charge an offense which is substantially the same as, or which is included in, that disclosed by the preliminary examination. [Hereinafter View No. 1.]
2. On the other hand, some authorities require the information to conform with the complaint filed in the magistrate's court. [Hereinafter View No. 2.]
3. Still other authorities require the information to conform with the commitment or order holding the accused to answer. [Hereinafter View No. 3.]
* * * * * *
[W]e think the ... view numbered 3, supra, is the more reasonable and acceptable view under our statutes, and without expressing an opinion as to whether some *595 other degree of conformity between the preliminary proceedings and the information will suffice, we hold that on the present record, where the crime charged in the complaint in the magistrate's court is kindred to that to which the accused is held to answer in a preliminary examination otherwise sufficient, and the information is in substantial accord with the magistrate's commitment, the district court committed no reversible error in overruling the legal exceptions to the proceedings mentioned in the early part of this opinion.
Defendants rely on the statement in Melendrez that View No. 3 is the "more reasonable and acceptable view under our statutes".
The State points out that defendants overlook another statement in Melendrez:
Whether it could be reasonably contended that the district attorney ... might file an information charging an offense not named in the commitment [bind-over order] but supported by the evidence thus appearing to have been adduced at the preliminary examination is a question we do not decide.
Our view of Melendrez is:
1. The question to be decided was whether the preliminary examination was "sufficient to afford due process of law as a condition preliminary to the exercise of the power vested in the district attorney" to file an information. Considering the kindred relationship between the complaint, the bind-over order and the information, there was no violation of due process.
2. View No. 2 was rejected. "[W]e do not think the decision of the prosecuting officers in the matter of the charge to be stated in information filed by them is limited by the single factor of the charge set forth in the complaint filed in the preliminary proceedings."
3. Although View No. 3 was "more reasonable and acceptable", the validity of View No. 1 was not decided.
Melendrez considered the relationship between the complaint, the bind-over order and the information in deciding a due process issue. This case does not involve the relationship of the complaint either to the bind-over order or to the information; this case involves the relationship of the bind-over order to the information. This case does not present a due process issue; the issue is the prosecutor's authority to file an information charging first degree murder when the bind-over order was for second degree murder. Melendrez does not answer that issue; Melendrez will be referred to subsequently because it provides guidance in deciding the issue presented.
Authority to Charge
The district attorney has no common law powers; "The constitution and statutes clearly prescribe and delimit his authority." State v. Reese, 78 N.M. 241, 430 P.2d 399 (1967); see Candelaria v. Robinson, 93 N.M. 786, 606 P.2d 196 (Ct.App. 1980).
Wisconsin, without reference to any constitutional limitation, has held that the charge in the information is not limited by the bind-over order. Hobbins v. State, 214 Wis. 496, 253 N.W. 570 (1934), states:
Section 355.17, Stats., provides that the district attorney may file any information "setting forth the crime committed, according to the facts ascertained on such (preliminary) examination and from the written testimony taken thereon, whether it be the offense charged in the complaint * * * or not."
Section 361.18, Stats., provides that the magistrate shall commit or bind the defendant for trial "if it shall appear that an offense has been committed and that there is probable cause to believe the prisoner guilty."
These statutes refute the contention of defendant upon this assignment of error. The district attorney in filing his information is not limited by the complaint. [Citations omitted.] Nor is he limited by the opinion of the magistrate as to the offense committed. Section 361.18, Stats., states the power of the magistrate and impliedly the limitation of his power. If it appears that any offense has been committed and that the defendant is *596 probably guilty of any offense, he must hold the defendant for trial. That is all he is authorized to do. He is not authorized to restrict the action of the district attorney in filing an information or to limit the power of the circuit court in determining for what offense or upon what specific charges the defendant shall be tried. Cases from other jurisdictions having no such statutes as above cited are entirely pointless. The plea in abatement was rightly overruled.
New Mexico does not have a statute similar to quoted Wisconsin statute § 355.17. Historically, New Mexico has never had a similar statute. Compare N.M.Code 1915, §§ 1857-1876; N.M.S.A. 1929, §§ 35-4401 through 35-4428 and 105-2201 through 105-2235; N.M.S.A. 1941, §§ 42-301 through 42-316 and 42-6-1 through 42-652; N.M.S.A. 1953 (2d Repl. Vol. 6), §§ 41-3-1 through 41-3-14 and 41-6-1 through 41-6-52. New Mexico Const., art. II, § 14, authorizes the district attorney to file an information, but there is neither statute nor rule prescribing or delimiting the district attorney's authority in filing an information.
New Mexico has, and has had, provisions similar to quoted Wisconsin statute § 361.18. See the statutes discussed in Melendrez. Current R.Crim.Proc., Magis. Cts., 15(c) states: "If the court finds that there is probable cause to believe that the defendant committed an offense not within magistrate court trial jurisdiction, it shall bind the defendant over for trial." Compare R.Crim.Proc. 20(c). Melendrez points out that "an offense" does not mean the offense charged in the complaint but "the offense found by the magistrate as a result of the preliminary examination to have been committed by the prisoner." We agree with Hobbins v. State, supra, when it states the magistrate is not authorized to restrict the action of a district attorney in filing an information; that, however, is not the question. The question is the district attorney's authority, not a restriction on that authority by a magistrate.
California, on the basis of a constitutional provision and a statute, has held, with certain restrictions, that the charge in the information is not limited by the bind-over order. Jones v. Superior Court of San Bernardino County, 4 Cal.3d 660, 94 Cal. Rptr. 289, 483 P.2d 1241 (1971). The State suggests we adopt the California view. We cannot do so for two reasons. First, we do not have a similar statute. Second, our constitutional provision differs from the wording of the California constitutional provision. Compare N.M.Const., art. II, § 14 with the California provision quoted in Jones, supra. The California provision "is not expressed in the negative or prohibitive form." See State v. McGreevey, 17 Idaho 453, 105 P. 1047 (1909). New Mexico's provision, quoted hereinafter, is expressed in the negative or prohibitive form.
The district attorney's authority in filing an information is the authority conferred by N.M.Const., art. II, § 14. The State suggests that authority includes filing an information on the basis of the evidence at the preliminary examination. Thus the State asks us to adopt View No. 1, stated in Melendrez. The Melendrez court characterized View No. 3, rather than View No. 1, as the more reasonable and acceptable view. View No. 1 raises problems from the point of view of good judicial administration because there would be factual problems as to whether the charge in the information did have support in the evidence at the preliminary examination. Compare Jones v. Superior Court of San Bernardino County, supra. An evidentiary hearing in the district court as to the factual validity of the charge in the information is not an attractive concept. Our answer, however, is not based on judicial administration concepts, but on the meaning of N.M.Const., art. II, § 14.
A person may not be punished for a crime without a formal and sufficient accusation. State v. Chacon, 62 N.M. 291, 309 P.2d 230 (1957). Prior to the amendment of N.M. Const., art. II, § 14, effective January 1, 1925, the pertinent portion of that provision read:
*597 No person shall be held to answer for a capital, felonious or infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the militia when in actual service in time of war or public danger.
The permissible use of an information was stated in N.M.Const., art. XX § 20, which read:
Any person held by a committing magistrate to await the action of the grand jury on a charge of felony or other infamous crime, may in open court with the consent of the court and the district attorney, to be entered upon the record, waive indictment and plead to an information in the form of an indictment filed by the district attorney, and further proceedings shall then be had upon said information with like force and effect as though it were an indictment duly returned by the grand jury.
State v. Chacon, supra, states:
It is worthy of note that when we reached the point in this state of readiness to supply as an aid to greater convenience in prosecuting crimes the use of informations, our legislature deemed it desirable if, indeed, not necessary, to do so by submitting a constitutional amendment.
After the amendment, effective January 1, 1925, the pertinent portion of N.M.Const., art. II, § 14, read:
No person shall be held to answer for a capital, felonious or infamous crime unless on a presentment or indictment of a grand jury or information filed by a district attorney or attorney general or their deputies, except in cases arising in the militia when in actual service in time of war or public danger. No person shall be so held on information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination. [The emphasized language was added by the amendment.]
Melendrez states:
It must be assumed that when the constitutional amendment was proposed in 1923 and adopted at the election held November 4, 1924, providing that punishment of capital, felonious or infamous crimes might be presented by information filed by the district attorney or the attorney general or their deputies, provided the person informed against had previously had a preliminary examination before an examining magistrate, the preliminary examination and the relation of the state's attorneys thereto were understood to be such as were then in vogue under existing laws of the state. See Chase v. Lujan, 48 N.M. 261, 149 P.2d 1003.
The state of the law at the time of adoption of the amendment was that the district attorney could not prosecute a felony charge by information except as provided by N.M.Const., art. XX, § 20.
The issue is the extent of the authority conferred upon the district attorney, by the amendment to N.M.Const., art. II, § 14, to prosecute by information.
Considering a constitutional provision similar to the New Mexico amendment, Arizona held "that the information filed by the prosecuting officer can charge only the offense for which a defendant is held to answer in the order of commitment." State v. Branham, 4 Ariz. App. 185, 418 P.2d 615 (1966); see Fertig v. State, 14 Ariz. 540, 133 P. 99 (1913).
State v. McGreevey, supra, states:
After an examination of the various constitutional and statutory provisions of the different states on this subject, and the constructions placed upon them by the highest courts of the states, we conclude that the general and prevailing opinion is to the effect that where the statute or Constitution says that "no information shall be filed against any person until such person shall have had a preliminary examination," or until "after a commitment by a magistrate," such provision has the effect of prohibiting the filing of an information for any other offense than that for which the accused was held by the committing magistrate. *598 Such is clearly and unmistakably the meaning and intent of our constitutional provision. It was undoubtedly the intention of the constitutional convention, when inserting the clause "after a commitment by a magistrate," in section 8 of the Bill of Rights, to prohibit the trial of any person for a felony or other offense, not cognizable by a probate or justice court, until after he had been accorded a preliminary examination and been committed to answer therefor by the committing magistrate. It was intended by this prohibition to accord every accused person a hearing before a committing magistrate on the particular offense for which he was subsequently to be tried on information of the public prosecutor. It was likewise intended that the "probable cause" for informing against the defendant and putting him on trial in the district court should first be found by the magistrate. The act of preparing the information was left to the prosecutor, and is a ministerial act the same as if he were preparing an indictment or presentment for the grand jury... .
The authorities all agree that no formal or detailed charge or description of the offense is necessary in the complaint before the magistrate, and that all that is required is a general description or designation of the offense, so that the defendant may be given a fair opportunity to know, by a proffered preliminary examination, the general character and outline of the offense for which he is to have an examination. [Citations omitted.] It is also true that a preliminary examination on the charge of murder necessarily includes all the degrees of murder and manslaughter as well. An examination for the greater offense would include the lesser offenses which are necessarily and as a matter of law included within the offense named and charged. So in this case the examination on the charge of murder included the charge of manslaughter, and it was within the power of the magistrate to hold the defendant for manslaughter; but it was not within the power or authority of the prosecutor to file an information under that commitment for a higher or different offense than that for which he was committed.
California, with a differently worded constitutional provision, has taken several positions on the issue. Jones v. Superior Court of San Bernardino County, supra, is the current position. The changes in position appear in law review comments cited in Melendrez; those comments are at 18 Cal. L.Rev. 324 (1929-30) and 19 Cal.L.Rev. 330, 645 (1930-31).
18 Cal.L.Rev. 324, 326, states:
The notion has been prevalent in the cases that the constitutional or statutory guaranty of a preliminary examination and commitment before informations for felony may be filed was intended as a limitation on the prosecutor; that it was intended to take the place and perform the function of presentment by a grand jury; that therefore the magistrate has exclusive power to designate the offense for which the accused is to be tried. Thus ... the prosecutor could not go outside the committing order in designating the offense in the information. [Citations omitted.] ... it should be observed that there are cases ... which use language to the effect that it is permissible for the prosecutor to charge the offense "according to the evidence disclosed at the preliminary examination." [Citations omitted.] This has been thought by some to allow the prosecutor to charge an entirely distinct offense from that charge by the magistrate. 1 CODE OF CRIMINAL PROCEDURE (Am.L.Inst. 1928) 359. But the cases using such language are always careful to limit or qualify it with the statement that the prosecutor cannot charge an entirely distinct offense. The cases will thus allow the prosecutor some leeway in filing his information. He will not be held rigidly to the exact language used by the magistrate, but may alter the time, means, circumstances or the persons or things injured, as long as he charges substantially the same offense as that charged by the magistrate. Thus the prosecutor may charge *599 robbery of A, although the magistrate charged robbery of B. But the prosecutor cannot charge rape when the committing order charges murder. This qualification allows the prosecutor to vary the charge in minor details to meet all possible evidence that may be adduced at the trial. For a very clear statement of the distinction see Payne v. State (1924) 30 Okl.Cr. 218, 235 Pac. 558, 559.
The above discussion points out that View No. 1 in Melendrez is a limited one; that the evidence at the preliminary examination may be utilized by the prosecutor to make changes in detail, but the evidence may not be utilized to charge an offense different from that designated in the bind-over order; the information must charge substantially the same offense as that charged by the magistrate.
View No. 3 in Melendrez is that the information must conform with the order holding the accused to answer. Not only is this view "the more reasonable and acceptable", Melendrez, supra, N.M.Const., art. II, § 14, limits the authority of the district attorney, in charging a felony by information, to this view.
Because the informations were based on a preliminary examination resulting in a bind-over order for second degree murder, the assistant district attorney lacked authority to file an information charging first degree murder.
The order denying defendants' motions is reversed; the cause is remanded with instructions to strike the first degree murder charge from the informations.
IT IS SO ORDERED.
HENDLEY and LOPEZ, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1378700/ | 476 F.Supp. 729 (1979)
E. C. ERNST, INC., Plaintiff,
v.
KOPPERS COMPANY, INC., Defendant.
Civ. A. No. 77-1045.
United States District Court, W. D. Pennsylvania.
August 13, 1979.
*730 *731 *732 *733 Friedman & Gass, P. C., New York City, Baskin & Sears, Pittsburgh, Pa., for plaintiff.
Rose, Schmidt, Dixon, Hasley & Whyte, Pittsburgh, Pa., for defendant.
OPINION
SNYDER, District Judge.
This contract action between E. C. Ernst, Inc. (hereinafter "Ernst"), an electrical subcontractor, and Koppers Company, Inc. (hereinafter "Koppers"), the general contractor, arises out of a sophisticated multimillion dollar construction project (hereinafter "the Project") at the Aliquippa Works of the Jones & Laughlin Steel Corporation (hereinafter "J&L"). The matter was heard non-jury and requires interpretation and application of the Purchase Order (hereinafter "P.O.") awarded by Koppers to Ernst for the electrical work at the J&L coke oven battery A-5 being constructed to provide a unique method for preheating and delivering coal to furnaces for the production of steel. Many difficulties were encountered, ranging from the necessity of not interfering with J&L's plant operations, to the removal of price controls which delayed procurement of supplies, and involving numerous change orders during the entire construction period. At the same time, consideration had to be given by Koppers to the successes and failures being experienced at a "model" project being built almost simultaneously at Inland Steel, and being incorporated at Aliquippa.
As might be expected, each party blames the other for delays, for engineering failures, for lack of participation in necessary scheduling and coordination, and for inadequate personnel and supervision, particularly in light of the importance of prompt completion of the work. Ernst, having been paid the major portion of its contract, now claims $2,325,705 in Count I of its Complaint for additional expenses by reason of the voluminous changes in the scope of the work; $1,484,000 in Count II for extra labor resulting from the many drawing revisions; $9,581.64 in Count III for certain additional work performed at Koppers' *734 direction; plus $60,430 admittedly retained by Koppers. Koppers counterclaims for $1,730,886 for support personnel it provided to complete the job on time, premium time paid to Ernst to prevent delays in the completion date (which it claims were due to Ernst's inefficiency), premium time paid for early check-out which had been delayed by Ernst, and an inefficiency charge for its employees who worked premium time.
I. FINDINGS OF FACT
COUNT I
1. Ernst is a District of Columbia corporation with its principal place of business located in Washington, D.C., and is qualified to do business in Pennsylvania. Ernst is engaged in industrial and commercial electrical construction work throughout the United States, with branch offices here involved in Pittsburgh and Ambridge, Pennsylvania.
2. Koppers is a Delaware corporation with its principal place of business in Pittsburgh, Pennsylvania, and is engaged, inter alia, in the business of concept and design engineering, and in general contracting services for heavy industrial organizations, such as the basic steel industry.
3. The amount in controversy here exceeds sums in excess of $10,000, exclusive of interest and costs.
4. In June of 1973, Koppers entered into an agreement with J&L to design, engineer, and construct on a "turn-key" basis an A-5 coke oven battery and related facilities at Aliquippa, Pennsylvania, to produce coke for use in the steel making process at a cost of $46,587,650, to be functional by June 17, 1975.
5. At the time of the J&L-Koppers Agreement, Koppers was constructing a coke oven battery of similar concept for Inland Steel in Indiana, and Koppers' specifications for the Project developed in April and May of 1973 were based on Koppers' own expertise, J&L input, the know-how developed from handling problems as they arose at the Inland site, and from experience gained from an experimental plant operating at Ironton, Ohio. The Inland design, and thus the J&L design, was unique in its method of preheating coal and charging the furnaces. It was Koppers' intention to utilize the Inland engineering as much as possible, and, indeed, much of the process engineering at the Project was taken from Inland. The J&L-Koppers Agreement, dated June 12, 1973, stated that Koppers would duplicate the work done by it at the Inland site. However, all parties contemplated changes for adaptation to the Project.
6. The coke battery at the Project differed from the conventional facilities by incorporating novel techniques. The ovens are similar to conventional facilities. The principal differences are the method of charging the ovens with coal and the preheating of the coal prior to charging. The process involved a structure known as a preheat facility. Crushed coal is taken from barges, on a conveyor and fed into coal storage bins located in the preheat structure. From there it is processed through a pulverizer which reduces the coal to dust size particles. The pulverized coal is then heated by blowing heated air through it to raise the temperature to approximately 500° F. The preheated coal is then fed into charging bins. In conjunction with the heating process, recovery techniques and equipment are used to remove coal dust from the heated air which is then recycled. This coal dust is added to the charging bins. The bins are then pressurized using steam, and the preheated coal is blown by steam through a pipe known as the charging pipe into the ovens. No leveling is required because of the fluid nature of the preheated coal. The remainder of the coking process is similar to the conventional method, with the exception that an advantage is realized from the preheated coal in that coking time is reduced.
7. Inland became operational in August of 1974, but changes continued to be made through August of 1975 in order to overcome experienced difficulties, all of which, to some extent, were reflected in changes at the Project.
*735 8. The Project was not completed on the scheduled date of June 17, 1975, and the charge date of the battery occurred on January 1, 1976.
9. After entering into the Agreement with J&L, Koppers immediately undertook the initial steps for demolition of existing facilities and relocation of utility lines. Concurrently, Koppers' engineers commenced the design and engineering for the Project, while its Procurement Department began ordering equipment and materials as they were identified by the Engineering Department. This technique is known in the construction industry as the "fast track" method, its purpose being to reduce the time between conception and operation. Both Ernst and Koppers were familiar with, and had previously used, the fast track method.
10. Koppers' Engineering Department developed plans and specifications for the work to be subcontracted, including the installation of the electrical materials. On January 11, 1974, an electrical bid package containing specifications, drawings, equipment lists, arrangement and single line drawings, flow diagrams, instructions to bidders, and other materials was issued to prospective bidders.
11. Koppers separated the electrical work into various work areas, such as wet coal handling, preheat, and the like. When the initial package was issued, drawings and other information were not yet available for all work areas, and the bidders were asked to submit quotes on each of the areas as completed.
A. The Purchase Order
12. On April 25, 1974, Ernst made a bid on the electrical work of $3,356,800. The resultant subcontract was based on a Purchase Order issued by Koppers to Ernst on June 4, 1974, Purchase Order No. 2463-2-002.
13. A variety of reasons, which will be described later in greater detail, contributed to an increase in the cost of the Project and an extension of Ernst's performance date beyond the targeted charge date of June 17, 1975. Essentially, it was changes dictated by the experience at the Inland site, requests from J&L, and coordination and engineering failures on Koppers' part that eventually increased the estimated man hours by more than 100%.
14. The price of materials and fabrication rose dramatically during the construction period, when nationally fixed price controls were lifted, increasing the final costs.
15. As a result of the lifting of price controls, delays were encountered in obtaining materials, primarily structural steel, and many suppliers and fabricators were unable or unwilling to meet delivery dates and prices which had been agreed upon earlier. We find, however, that the lifting of Federal price controls did not create an unforeseeable major difficulty which would excuse Koppers' late performance in the procurement of machinery and equipment.
B. Trade Interferences
16. In order to qualify for an investment tax credit, J&L demanded that the facility be operative by January 1, 1976. To meet this deadline, Koppers and its subcontractors were required to complete a project which had been expanded 70% in scope, in a time framework expanded only 27%; a "crash program" was created to complete the job.
17. The Engineering Department of Koppers was 15.7 weeks late in developing final drawings, causing further time constraints.
18. As a result of the crash program, 654,000 hours of direct labor were added by the Koppers' forces, originally projected at 928,000 (including 110,000 man hours anticipated for electrical work); this work was performed by over 450 men of various trades. More than two-thirds of this was committed in the last six months of the Project; half of Ernst's work was performed in the last six months.
19. This crash program resulted in delays to Ernst caused by trade interferences, both from other trades, the so-called "stacking *736 of trades", and from being forced to work in a "stop and go" fashion on work beyond the scope of the P.O.
C. The Critical Path Method
20. The initial bid package included a current computer printout of the electrical activities, so that the electrical contract bidders could plan their volume, distribution, and peaks. This is known as the Critical Path Method (hereinafter "CPM"); it divides a project into separate work activities which, when shown in diagram form ("networks"), direct the sequence of job progression and reflect the interrelationship and dependency among the activities. This arrangement is referred to as the "network logic". Each activity is assigned a duration, from which expected and required starting and completion dates are calculated for each activity in relationship to all activity durations and network logics, in order to meet the charge date. As the work progresses, the CPM is updated and revised through computer adjustment, normally on a monthly basis.
21. Koppers developed the CPM schedule for the Project to coordinate the engineering, procurement, construction and final checkout phases. There were more than 100 CPM network logic diagrams on the Project, containing approximately 10,000 activities, some 340 of which were electrical.
22. As has been noted, the target date for charging the Project's battery ovens was initially June 17, 1975, and the CPM was adjusted forward and backward from that date, "the forward and backward pass".
23. As part of the electrical bid package, as noted above, Ernst received the then current CPM drawings and computer printouts listing the electrical activities; on May 30, 1974, the CPM showed the Project to be approximately six weeks behind schedule.
24. In August of 1974, Ernst submitted man power schedules which included the estimated man power requirements based on Ernst's analysis of the current CPM schedule.
25. The P.O. provided as to the CPM: "Seller agrees to follow the plan as currently shown and to perform the work in the allotted time designated as activity duration. Seller agrees to suggest revisions to the network plan that in his judgment would be mutually beneficial; time being of the essence."
26. The original CPM schedules provided for major construction activity to commence in the early fall of 1974, and Ernst, being a "follow on" contractor who must of necessity follow other contractors, was dependent upon the availability of work areas. On August 22, 1974, Koppers' CPM analysis showed that of 339 "total activities" for the electrical contractor, 332 were not available. As of October 17, 1974, 329 activities could not start, on November 14, 1974, 317 could not start, and by January 9, 1975, 282 activities could not be started, far less than the original CPM schedule contemplated.
27. The P.O. required that a qualified person be assigned by Ernst to work with the CPM because special training and knowledge are required to properly maintain and utilize the CPM as a planning and scheduling tool.
28. Ernst did not fully participate in the CPM, particularly toward the end when it became apparent that Koppers was no longer using the CPM as a control method. But, in any event, Koppers had resident engineers whose direct function was updating the CPM, and Ernst's failure to do so had no effect in causing delays in the performance of its contract. Koppers' engineers were at all times familiar with the exact progress of the electrical subcontract and were, in fact, updating that progress on the networks.
29. After September 18, 1975, the CPM was replaced, as requested by J&L, with a more detailed construction and operating check-out schedule in bar chart form. Ernst was provided with copies of these bar charts, to which no input from Ernst was required.
30. We find no evidence on the record that Ernst failed to perform adequate forward planning and scheduling with regard *737 to work availability in sequence, material procurement, and man power requirements.
D. The Seasonal and Premium Time Claim
31. Ernst was required to work well into the winter of 1975 because of the massive changes in the scope of the work not contemplated by the P.O.; this second winter was not anticipated.
32. As a result of changes in the scope of the work beyond the P.O., and because of the overriding desire of Koppers and J&L to complete the Project, Ernst was required to put in premium time work.
E. The Supervision Problem
33. Ernst's top field supervisor on the Project was Howard Miller, who was also in charge of Ernst's work for other contractors in other areas at the Aliquippa Works.
34. While Howard Miller was absent from the Project job site during the summer of 1975, due to the terminal illness of his wife, there is no proof that Miller's absence caused inefficiency or failure to perform by Ernst.
35. As soon as Koppers complained about the situation (Miller's absence), Ernst's Ambridge Branch Manager, Wallace McCracken, was sent to supervise the Project, and he immediately brought about substantial gains in the use of personnel. No provable delay to the Project resulted from lack of supervision by Ernst.
F. Supporting Personnel
36. Under the supplemental instructions to bidders, Koppers indicated they would not supply any supporting personnel (electrical engineers, materials supervisors, construction or electrical superintendents, etc.) "to the field installation". It was the bidder's responsibility to provide whatever type of personnel required to complete the contract. Koppers did furnish supporting personnel who primarily interpreted Koppers' engineering drawings and the many change orders issued in light of the Inland experiences. It is the wages paid to these persons which forms the basis of Koppers' counterclaim against Ernst, and is part of their defense as to Ernst's performance.
37. Throughout, Ernst manned the Project with sufficient personnel, although the Project was greatly accelerated in order to meet the January 1, 1976 final deadline.
38. The wages paid to these men have nothing to do with the construction of the electrical facilities, but, to the contrary, were required through no fault of Ernst's failure to perform.
G. Ernst Delays and Failure to Complain
39. The CPM analysis letters showed electrical activities prominently on the top critical path, and the general comments to those letters indicated that Ernst had undermanned the job; we find, however, that this matter was taken up at job conferences and Ernst, in fact, procured additional manpower without delay to remedy the situation.
40. Koppers' CPM expert, David Lee, contended that Ernst failed to perform activities as they became available. We find, however, that Lee failed to review a history of the constraints on a particular activity, and that this was a necessary part of a CPM review. We find that Ernst performed the work as expected by the CPM schedules. We further find that the causes of delay were late engineering, extended durations, additions in design, and procurement problems.
41. Koppers contends that Ernst caused its own delays for a variety of other reasons: that they were working on another unrelated job for J&L at the Project site; in some instances the electrical work was incorrect; that they obstructed the single access road at one point; that they delayed in procuring certain equipment which they were responsible for ordering. However, we find the Defendant has not proved with any certainty that the effect of these actually delayed the project; the Plaintiff has proved the contrary.
42. Koppers emphasizes that the minutes of meetings do not show complaints by Ernst as to the problems of delay and interference to Ernst by other trades. We find that the problems were discussed and worked out.
*738 43. In the minutes of the meeting of August 22, 1974, the following appears: "For efficiency, E. C. Ernst will work in areas that are open and materials on hand." This was a recognition of the problem of delays and inefficiencies.
44. In the minutes of the meeting of January 16, 1975, the following appears: "The purpose of the meeting was to review any outstanding problem that was preventing E. C. Ernst from completing his work as scheduled." Ernst stated it was "concerned of material shortages (exampleinsulators)", and needed Koppers' engineers "to assist Ernst in the exact location of instruments and controls which are not located on Koppers drawings, Ernst was unable to keep the work area warm." Problems were thus being raised by Ernst.
45. The effectiveness of the job site meetings is shown by a letter of T. B. Myers of Koppers to James K. Shannon of Ernst, which stated: "We intend to continue to expedite this project . . . and the details of the common coordination problems should be worked out in the scheduled field meetings."
46. In the minutes of the meeting of January 30, 1975, this appears: "Mr. Adams [of Koppers] stated that Koppers was not getting the Quench Track as originally promised and the delays in obtaining same daily was seriously interfering with progress." Also, "E. C. Ernst stated they were concerned about steam from the Quench Cars forming ice on the Shed Steel causing hazardous working conditions." Also, E. C. Ernst demanded the check-out list as soon as possible to make certain they were "installing equipment, etc. in the sequence required". E. C. Ernst "stated they were encountering many delays due to both structural and mechanical interferences."
H. The 30 Day Clause
47. The P.O. contains a provision that claims for extra work, where such work was not the result of "deviations" between J&L and Koppers, would be submitted to Koppers within 30 days of Ernst's receipt of the request for extra work.
48. Shannon wrote Koppers' Beale on May 30, 1975 and asked Koppers to waive the clause. Beale did not respond to that letter. Beale's testimony was contradictory as to whether he spoke with Shannon about the May request. On July 2, 1975, Shannon again wrote to Beale stating that since there had been no response to his first letter, Ernst assumed that Koppers deemed the clause waived. Again, there was no written response, although Beale circulated the letter among several of Koppers' Departments.
49. Koppers' Moran claims to have told Shannon, prior to the May 30th letter, that the clause would not be waived. No memorandum was made of this alleged conversation, despite the practice of both Moran and Beale to record even the most trivial of telephone conversations. Beale, who testified of being told of the alleged conversation, did nothing to remind Shannon of it upon receipt of Shannon's letters.
50. When Beale received the drawing revision claim, he promptly advised Moran, who told him to circulate it and the supporting price sheets to the various Koppers' Departments. Neither man told Ernst that the clause precluded consideration of the claim. If Jones, Moran and Bealeand Koppersconsidered the clause a bar to any part of the claim, such views were not communicated to Ernst.
51. The Ernst claim was the subject of extensive negotiations between Ernst and Koppers. At no time after the presentation of the claim, during the negotiations or prior to this suit, did Koppers assert that the claim or any portion of it could not be advanced by reason of the so-called "30 day clause". Koppers did not even discuss the clause internally after July of 1975.
52. We find that the conduct of Koppers in failing to insist on the 30 day notice provision in light of their "approved for construction" orders to proceed and their failure to reply to Shannon's letters, prevents Koppers from now using this clause as a bar to Ernst's actions.
*739 I. Damages
53. Koppers alleges that they inquired whether the $1,484,000 claim for drawing revisions constituted Ernst's entire claim on the Project, and Ernst did not indicate that it had any other claims. Koppers avers it was completely surprised by the additional claims which were made. We find that Koppers was not surprised by the claims because Koppers' personnel stated they realized the extent of the many claims Ernst could make. We find that Ernst is not estopped from asserting these additional claims.
54. In its Count I damage calculations, Ernst has employed what is known as the "total cost" method. Aside from the fact that the $2,325,705 claimed seems to have nothing to do with Ernst's "total cost," we find the approach itself is invalid. Ernst fails to prove specific amounts of delay and damages allegedly attributable to specific acts or failures by Koppers.
55. The figure of 82,980 hours, which Ernst uses as its original estimate of hours to complete the work, has no basis in fact. The figure is an average, calculated in 1977 by Ernst's claims expert, R. P. Anthony, of three different man power estimates prepared by Ernst in or about August of 1974.
56. Ernst's hypothetical allocation of unpaid journeyman hours, on the basis of the number of drawing revisions received per year, is invalid. Not all drawing revisions required work by Ernst, and not all revisions caused an equal amount of work. This artificial method of allocation is not a proper substitute for specific proof.
57. Ernst's calculation of its Count I damage is based, as noted above, on the total cost approach. This calculation includes approximately 10,000 hours expended by Ernst on the temporary light and power contract, which was not part of the P.O., not in suit here, and paid in full under the temporary contract.
58. This finding makes the Ernst calculation of the Count I claim invalid as there is no method of calculating any figure for the remaining Count I claim.
59. While premium time inefficiency is recoverable, Ernst has failed to prove any amount of damages attributable to such inefficiency.
60. While labor escalation is recoverable, Ernst has failed to prove any amount of damages attributable to escalation of cost.
COUNT II
A. Drawing Revisions
61. In 1973, when the Koppers bid was accepted by J&L, both parties contemplated duplicating, with very little re-engineering, the coke battery of unique design being constructed by Koppers for Inland Steel Company. Even the CPM method of scheduling for the J&L Project was based upon scheduling done for the Inland job. The 23½ month estimate was agreed to because Koppers thought much of the Inland engineering could be followed, and the Agreement between J&L and Koppers stated that Koppers' work would duplicate that being done at Inland; when bids were received from electrical subcontractors, they were reviewed by Koppers in light of its Inland experience.
62. When the Inland plant attempted to "push coke" in August 1974 (several months after the effective date of the subcontract between Ernst and Koppers for the J&L coke oven), serious and extensive problems were experienced: motors burned out, dust conditions caused explosions and fires, and mechanical difficulties plagued the plant's operations. In addition, there was a time overrun of nearly one year on the Inland job. Because of the Inland problems, Koppers formed a committee to analyze the difficulties, and the work of this committee resulted in engineering revisions at the J&L Project, which continued throughout the performance of Ernst's work, almost until the completion of the Project in January 1976.
63. In addition to changes demanded by J&L, the ongoing changes at Inland resulted in numerous drawing revisions throughout the Project. Ernst received 289 drawings *740 in its original bid package and received over 1300 additional drawings by way of revisions, 20% arriving after the originally scheduled completion date for Ernst's work. Many drawings were revisions of revisions, and some were revised as many as seven times. These revisions were exceptional and excessive in number; the extra work performed pursuant to them has not been paid for.
64. The drawing revisions affected Ernst's ability to perform its work in a normal and efficient manner, and some of the revisions were issued by Koppers after Ernst had completed the work shown, requiring Ernst to rip out and replace work already done. This had a detrimental effect on other work in progress on the Project.
65. While the drawings as issued were not and were never intended to be complete, it is clear that the additions and revisions contemplated by the parties did not include the massive changes brought about in the scope of the work by Koppers.
66. The instructions to bidders stated that the drawings would be issued for construction as engineering progressed and could be revised. But the revisions made here are found not to have been within the original scope of the work, and thus not covered by the instructions to bidders.
67. No request for quotation was made to Ernst for the revisions, nor was any written authorization given to proceed with specific work; rather, plans were marked "approved for construction".
68. Because of the frequency of drawing revisions, the time involved in comparing bid drawings with revisions and in pricing extra materials that such revisions might require, and the paramount desire of Koppers and J&L, communicated daily to Ernst, to complete the Project, Ernst generally proceeded with the work required rather than making drawing price proposals to Koppers. We find Koppers acquiesced in this procedure knowing that revision claims would be made.
69. James Johns, Claims Manager for Ernst, examined the drawings as they came in; after construction began most revised drawings were stamped "approved for construction". These were distinguishable from bid drawings, which were stamped "for bidding purposes". Late in May, 1975, Johns and four other Ernst estimators began comparing the latest drawing revisions with the original bid drawings, and lists were made showing the materials which had been added to or deleted from the bid drawings. Where there was no comparable bid drawing with which to make comparison, lists were compiled showing the new materials required.
70. These lists or pricing sheets were turned over to a single Ernst estimator, Shadler, who reviewed the sheets to eliminate duplications, and then priced the materials using either recent invoices Ernst had paid for such materials or the catalogues of trade suppliers. Credit was given to Koppers by Ernst for materials deleted at the same price as similar materials were added, except in the case of wire and cable where nominal or no credit was given for deletions, since such material could not be returned by Ernst to the supplier. A similar credit policy was used for other equipment which had been purchased by Ernst and which could neither be returned nor readily used elsewhere. We find this accounting procedure to have been proper under all the circumstances. If material was supplied by Koppers, no price was noted by Ernst on its pricing sheets either as a charge or credit, and the prices charged by Ernst for materials it provided were the fair market prices then in effect for such material.
71. Shadler then computed the hours of journeyman electrician labor necessary to install such material based on Ernst's experience and the estimator's judgment of the Project conditions and difficulties (such as the height and location of the work site).
72. The hours of additional labor were priced by using the journeyman electrician rate then charged by Ernst, $20.77 per hour, and adding thereto a $5.60 factor representing the cost to Ernst, not otherwise reflected *741 in the journeyman labor rate, of comparing revisions with the bid prices and pricing the additions and deletions. There were 36,049 journeyman hours devoted to additional work pursuant to the drawing revisions. Conversely, the hours for labor associated with deleted work were credited to Koppers at $15.80 per hour, the journeyman rate less Ernst's overhead and profit.
73. The Ernst pricing sheets involved some 144 drawings and were submitted to Koppers, along with a claim for $1,544,307, on December 9, 1975. An adjustment was made on December 12, 1975, correcting additions and deletions, for a total of $1,515,222, which was again adjusted the same date to deduct a field authorization in the amount of $20,369, leaving the total net increase as claimed for drawing revisions at $1,494,853. This was further adjusted to $1,484,000. We find all of these items to be properly chargeable as "extras".
74. Following the December 1975 letters, and at Koppers' request, Ernst delivered its pricing sheets in support of its $1.4 million bill for work on revised drawings. These pricing sheets were duplicated by Koppers and disbursed among the various departments responsible for the A-5 job, with the request that each department comment upon the details.
75. The Engineering Department made several analyses of the Ernst claim and accepted many parts of the claim entirely. The appraisal by the head of Koppers' Engineering Department, Kunkel, was characterized by Robert Moran as solid and competent, although Moran noted one Koppers engineer, Huitema, vacillated concerning his "No" position.
76. The Estimating Department assigned the task to Vaneski, whose first review yielded $825,570 in Ernst's favor. This review took a year and a half and did not begin to change significantly until the spring of 1978 when the review became "step 1", "step 2" being a reduced version prepared with the assistance of counsel. As part of his initial review, Vaneski credited Ernst with 75% of the value of certain work for which he could find no Ernst pricing sheets. The important point with respect to the various Koppers' analyses, and we so find, is that the method of pricing used by Shadler was found not objectionable.
77. Negotiations proceeded in 1976, but Ernst ceased participating when it appeared Koppers would not honor a substantial portion of the claim.
78. Koppers valued the claim internally at $500,000; this is the amount they submitted to J&L as the Ernst claim. None of the money from the J&L settlement has been given to Ernst, nor any of the $60,430 retained by Koppers.
79. The Plaintiff's calculation of revision claims failed to deduct $500 as required by Paragraph 6 of the P.O., which states:
"A drawing revision that constitutes an addition or deletion due to changes in motors which cause an increase or decrease in conduit and wire size, addition or deletion of lighting, addition of drives, starters, etc. not shown in the Bid drawings or not contained in the intent of specifications furnished. A claim for the above will be reviewed on the strict basis that the initial cost (Labor and/or materials) of 500.00 is to the account of the seller."
80. Applying the $500 provision to each of the claims made by Ernst in the December 12, 1975 claim results in a total deductible amount of $62,080.[1]
81. Recovery in this lawsuit by Ernst of more than the approximately $1.2 million loss certified by its accountants would not constitute a windfall for Ernst. Mr. Soreff, Ernst's former accountant, testified that *742 Ernst carried $1,894,933.50 on its books as a receivable, which represented Ernst's actual loss on the A-5 Project plus a $600,000 (approximately 33 1/3 %) profit.
82. Whatever the accounting practices of Ernst may have been, it goes only to the weight to be given Ernst's claims for inefficiencies. The figure of $1,894,933.50 was in fact reduced to $1,294,933 by the elimination of the $600,000 profit figure, to represent the cost receivable.
83. There is no basis in Ernst's accounting practices for refusing to allow the Count II claim in full.
84. Thus, we find the Plaintiff on Count Two to be entitled to $1,421,920 ($1,484,000 less $62,080 under the $500 deductible), with interest from December 12, 1975-$1,732,794.60.
COUNT III
85. During the course of the Project, Ernst performed work pursuant to field authorizations and directives issued by Koppers. Field authorizations were issued to accomplish work not shown, or to correct work shown on construction drawings which involved field interferences. Ernst performed the work and thereafter calculated the journeyman hours and materials required to perform such work. The calculation was set forth and priced on an Ernst "work order" form which was submitted to Koppers as a bill. The labor was priced at the journeyman rate then in effect, and six such orders are the subject of Count Three, for an aggregate of $9,581.64, which amount has not been paid.
86. We find that the work with respect to such orders was performed by Ernst at Koppers' request, and the price fixed by Ernst for such work was reasonably and correctly computed. Plaintiff is entitled to recover for these work orders in the amount of $9,581.64, with interest from October 15, 1975-$11,775.66.
THE COUNTERCLAIM
87. Koppers had a large field force to assist in the Project, and the services of these forces were considered part of the original J&L contract. They were later billed to J&L under deviations which followed J&L authorizations or extra work orders, and, in some instances, they were attempted to be billed or back charged to Ernst. These form the basis of the Defendant's counterclaim and there is no contractual basis for charging these amounts to Ernst. We find there is no proof for this aspect or the other aspects of the counterclaim.
SUMMARY
88. We find the contract retention of $60,430 by Koppers to have been unjustified and award this sum to Ernst, together with interest thereon at 6% per annum from December 12, 1975 (the date of demand for payment)$73,691.48.
89. We award to Ernst on its Count II claim, the sum of $1,421,920, with interest at 6% per annum from December 12, 1975 $1,732,794.60.
90. We award to Ernst on its Count III claim, the sum of $9,581.64, with interest at 6% per annum from October 15, 1975$11,775.66.
91. All other claims made by Ernst are denied, as well as the counterclaims of Koppers.
II. DISCUSSION
A. COUNT I
1. The Delays and Their Impact
Count I of the Complaint seeks damages arising from delays imposed upon Ernst during the course of its work as electrical subcontractor to Koppers on the construction of an A-5 coke oven battery and related facilities for J&L.
The record in this case is replete with evidence of Koppers' numerous changes in the drawings, to the point where a demand was made for a cut-off date so that the Project could finally be completed. Many interferences resulted to the work of subcontractors, both from revisions and changes in the scope of the work. Koppers *743 had substantial difficulties in procurement of supplies and equipment which caused costly delay to Ernst.
As a general proposition, the law imposes liability upon a general contractor for additional costs for delays caused by him. Thus, in Johnson v. Fenestra, Incorporated (Erection Division), 305 F.2d 179, 181 (3rd Cir. 1962), it is stated:
"Because the contract was to be performed in Pennsylvania and had most of its other contacts with that state, Pennsylvania contract law determines whether the prime contractor's conduct in connection with the agreed supplying of materials constituted a compensable breach.
It is a familiar rule of contract law, adopted and applied by the courts of Pennsylvania, that a party breaches a bilateral contract when he does improperly or fails to do something which he has expressly or impliedly undertaken to do to facilitate the performance of the other party. Just Mfg. Co. v. Falck, 1946, 354 Pa. 421, 47 A.2d 659; Bodman v. Nathaniel Fisher & Co., 1920, 268 Pa. 535, 112 A. 99; see Sheehan v. Pittsburgh, 1905, 213 Pa. 133, 62 A. 642. Actually, this rule is but an application of the more general principle that a contract is to be enforced so as to give effect to the reasonable expectations created by the parties in entering into the bargain. See In re Kellett Aircraft Corp., 3d Cir. 1951, 191 F.2d 231; Restatement of Contracts § 315; 5 Williston, Contracts, rev. ed. 1937, § 1293A.
Within this framework, the question here is whether the furnishing of defective panels and the ensuing delay in supplying serviceable panels constituted a breach of contractual obligation. The contract expressly required the prime contractor to supply the panels which the subcontractor had agreed to install. The contract also required that performance begin within 7 days after its execution. On July 14th, promptly after the arrival of the panels which later proved defective, the subcontractor put an adequate crew to work upon the installation. In addition, the court below expressly found that in the contract negotiation `the understanding was that the installation had to be completed before cold weather, so that * * * workers could pursue other construction tasks inside with the benefit of heat'. However, the court regarded this understanding as unimportant because the enclosure of the structure was something upon which the prime contractor insisted in the interest of its remaining work. But regardless of the reason for reaching an agreement on this point, we think the conclusion is inescapable that the bargain as made necessarily implied and gave the subcontractor assurance that the prime contractor would perform his obligation to supply panels at times and in quantities consistent with the understanding of the parties as to the prompt beginning and early completion of this installation. To rule otherwise would be to defeat the reasonable expectations created by the conduct of the parties."
But we cannot stop here, for the Johnson court went on to say:
"Fenestra urges that Carroll Elec. Co. v. Irwin & Leighton, 1923, 80 Pa.Super. 428, supports its claim that damages caused by such delay as we have here is not compensable. But in the Carroll case the Superior Court relied upon the fact that the contract included an express provision for extension of time on account of delays experienced by the subcontractor by reason of conduct of the contractor or any other subcontractor. The contract also stipulated that it contained the entire agreement of the parties. The court reasoned that in such an integrated contract the express provision for a particular remedy in the event of the delay must be construed as affording the sole remedy for such an occurrence. Of course, parties may validly contract that an extension of time shall be the only remedy for circumstances or contract causing delay. Henry Shenk Co. v. Erie County, 1935, 319 Pa. 100, 178 A. 662. The bargain in the Carroll case was construed as being such a contract.
*744 It is equally clear that Fenestra is not aided by cases that treat delay as compensable because the occurrences which caused the delay were themselves within the contemplation of the parties at the time they entered their contract. Acchione v. Commonwealth, 1943, 347 Pa. 562, 32 A.2d 764; Frederick Snare Corp. v. Philadelphia, 1937, 325 Pa. 460, 190 A. 889.
None of these cases are in derogation of the general rule stated in the Shenk case that `where the execution of * * [a construction] contract is dependent upon something essential, which has to be performed by the * * * [other party], the default of * * * [that party] for an unreasonable time, resulting in damages to the contractor, may render the * * * [other party] liable for such damages'. 319 Pa. at 105, 178 A. at 664. This rule applies here." Id. at 182.
See Precision Steel Decking & Erection Co. v. American Steel Building Co., 347 F.Supp. 431 (E.D.Pa.1972), remanded 487 F.2d 1395 (3rd Cir. 1973).
Since Koppers was responsible for numerous delays, it is patently unreasonable to deny payment for the impact of such delays unless Carroll Electric Co. v. Irwin & Leighton, supra, applies. The rules were applied in Lichter v. Mellon-Stuart Co., 305 F.2d 216, 218 (3rd Cir. 1962), as follows:
"Certainly a contract may validly provide that a contractor shall be entitled to no relief except an extension of the time of performance if circumstances beyond his control shall delay his performance, even though such delay does in fact increase his costs. We have today so ruled in Johnson v. Fenestra, Inc., 3 Cir., 305 F.2d 179, relying upon Henry Shenk Co. v. Erie County, 1935, 319 Pa. 100, 178 A. 662. Such a clause might preclude damages here if it were the subcontractor's essential complaint that his performance had been made more costly because he was required to postpone his operations."
However, in Peter Kiewit Sons' Co. v. Summitt Construction Co., 422 F.2d 242 (8th Cir. 1969), the Eighth Circuit explained that Lichter was limited to those situations where there was no change in the scope of the work and refused to apply a no damage provision where there was a substantial change in the scope of the contract.
We must now look to the conduct of the parties and the terms of the Koppers-Ernst subcontract to discern the reasonable expectations of the parties.
2. Trade Interferences
The P.O. provided (Special Conditions, ¶ 7):
"It is seller's direct responsibility to work in conjunction with other trades with relation to the installation of his material and equipment to ensure that no conflict arises necessitating removal of any of his work. Any removal or reinstallation required will be for the account of the sub-contractor responsible."
The claim of Ernst results, substantially, from inefficiencies caused by "stacking of trades". We find that this concentration of work within a short period produced many inefficiencies, including the necessity of removing some of the electrical work. The provision quoted does not apply to stacking, but relates only to removal costs arising from conflict of work, and we construe this limitation to apply only within the general scope of the work called for by the contract. Since we find the scope of the work to be vastly expanded, and that this expansion within a compressed period was responsible for the removal, the P.O. does not limit Ernst's claim in this respect.
Ernst has also claimed that delay was partially caused by "stop and go" work, whereby they were forced to work on an area, leave it unfinished, and return to it later. The instructions to bidders provided:
"Bidder is required to proceed with installation and later come back to same area to make the additions without increase in contract price."
An ordinary stop and go claim would be barred by these instructions, but again, this limitation only applies to the scope of the work contemplated by the contract. It does not bar Ernst's claim for stop and go delays outside the scope of the work.
*745 3. The PERT/CPM Networks
The P.O. provided (PERT/CPM Requirement Section):
"Seller acknowledges that Koppers is planning and scheduling this work by the PERT/CPM Method.
Seller is cognizant of this PERT/CPM requirement to provide qualified personnel to maintain correct networks for his portion of the work and to report progress monthly/bi-monthly, by submitting a `marked-up' copy of the electrical construction network.
Seller agrees to follow the plan as currently shown and to perform the work in the allotted time designated as activity duration. Seller agrees to suggest revisions to the network plan that in his judgment would be mutually beneficial; time being of the essence."
Koppers cites Ernst's admission that it failed in large measure to have input to the CPM by reporting monthly, or at any time, or by submitting a "marked-up" copy of the networks. We note that Benjamin Wilkinson, Koppers' resident engineer in charge of scheduling the work of subcontractors and the use of the CPM, credibly testified as follows (Tr. pp. 2330-1):
"Q All right. Now, would you explain, if you would please for the record and for Judge Snyder, what the CPM or C.P.M. PERT system is that was used on the J & L A-5 coke oven battery job?
A Well, the C.P.M. network is a management tool. It is a guide on how to build your job. Basically what you do to make a C.P.M. network is you start off by finding out from the contract specs exactly what is in the contract, what you have to install, with that combination, with the experience from past jobs and you physically sit down and build the job on paper the way you are going to build it out in the field.
Q Does the term activities have any meaning with respect to C.P.M.?
A An activity is a certain piece of work in that network. For example, if you are going to put in a foundation, a group of activities would be first you have to excavate the hole. The second activity would be to install the form work. The third activity would be to install the rebar. These are all work
Q When you say rebar, what does that mean?
A Reinforcing bar for the concrete. Then you would pour the concrete. Every one of those, we refer to them as activities.
Q Now, you say that you have to put those activities or something like that on paper? How is that done?
A By physically sitting down and putting them in a graphic form with awith a graphic type system of just a straight line with the title of that activity, whatever it is, excavating the foundation, on the top line, tying that in with another line following it with the next activity."
Mr. Wilkinson further testified (Tr. pp. 2440-1):
"Q You said something about periodic updates of the CPM. Would you state whether the CPM is a static thing or an ongoing thing?
A When we are in the field and we are physically working on the job, the J & L network, we updated every three weeks. What I mean by `update' is that the network, it is just a guide, it is just a management tool to help us build that job. It is flexible, it can be changed. When I update it, all the activities that I have started to work on I put an actual date on that activity. I put if we complete an activity on such and such a date, I complete that activity. Duration changes, and if it is taking us longer to do a job than I originally anticipated, I extend that duration to show it is going to take a little while longer.
*746 I change the logic sometimes if something pops up to where it is a piece of material a manufacturer originally said was going to take ten weeks and it is now going to take him 20 weeks to fabricate and we get into a negative critical path that is really running bad and I can't get that piece of equipment there any sooner, I then go back and I take a look at my logic. Maybe I can go ahead and work on the work I said would follow that. I might have to break that tie and put it downstream of the activities a little.
When all that information is put down on the paper, I again send it into our planning and scheduling experts. Engineering and procurement does the same thing with theirs every three weeks, so we get all the current information, they assemble it, run through the computer and we get a new printout.
Q And where does the information come from that goes into the computer?
A It comes from three sections. Construction updates their network to what is happening. The engineering people do the same. The procurement people update theirs to where they are at with ordering machines and equipment and so forth, and all that information is then assembled in the scheduling and planning section of our company, and then they tie it altogether."
We know that the Engineering Department took 36 weeks to develop the final drawings, originally estimated to take 21 weeks (Tr. p. 2536), and was thus 15.7 weeks late from the original planning. We also know that Wilkinson was on the job to make whatever changes were necessary to the computer run-offs. Thus, no delay was in any way caused on the Project by reason of Ernst's non-cooperation with the CPM Program. This is particularly true in light of the substantial engineering field forces (20 to 30) that Koppers maintained (Tr. p. 2579) and a total of over 450 men at the site (covering trades, such as laborers, carpenters, millwrights, boilermakers, and pipefitters). When 70% of the work was compressed within 27% of the construction time (Tr. p. 739), by reason of Koppers' failure properly to plan, coordinate, and procure for the Project, delay damage to Ernst was foreseeable and inevitable.
4. The Seasonal Claim
Ernst claims extra expense for work required to be done in the second winter by delays caused by Koppers. As to this, the P.O. provided (General, ¶ 3):
"Work performed during a season of the year not originally anticipated, unless specifically mentioned herein, does not constitute a basis for additional charges."
Again, had the work under the contract brought about seasonable extra costs, the P.O. would control. Where, however, the delays, as here, carried over into the second winter through changes in the scope of the work, this provision has no application. The claim by Ernst for inefficiencies caused by the second seasonal delay is not controlled by that provision.
5. The Premium Time Claim
Ernst makes claim for inefficiencies caused by premium time work. The P.O. provided (Seller Agrees to Comply With, ¶ 8):
"Price is based on an eight (8) hour day, five (5) day week, Monday through Friday, inclusive.
The following will apply to field overtime, both on the base contract work and any temporary or extra work assigned: Increases to cover field overtime authorized by Koppers' authorized representative shall be limited to actual premium time paid to hourly or building trade union type of employees plus associated taxes; insurance and welfare benefits which the seller is legally required to pay, but excluding overhead and profit. Seller's invoices for overtime costs shall be rendered separately each month and shall indicate the straight time wage rate and the premium hours paid by crafts for *747 each payroll period. Seller shall furnish Koppers' field offices daily with force reports for the period for which premium time has been authorized. The daily force reports must indicate the employees' names and badge numbers, crafts and hours worked."
Here again, inefficiencies caused with the scope of the contracted work would be limited to premium time less overhead and profit, and would prevent further claims for inefficiencies. Ernst's claim, however, is for inefficiencies beyond the scope of the contract and is not barred by this clause.
6. The Firm Price to July 31, 1975
Ernst claims delay damages and Koppers says only field costs may be in order. The P.O. provided (Sheet 1-W):
"PRICEBASED ON QUOTATIONS DATED $3,356,800.00
FEBRUARY 11, 1974, APRIL 10, 25 & LOT
26, 1974
Price is Firm through July 31, 1975. If
job duration exceeds July 31, 1975 through
no fault of seller, negotiations for additional
field costs may be in order. Price
does not include check-out or standby
time.
In the event of authorized additional
and/or extra work, the following composite
rate will apply per journeyman
hour. This rate includes all supervision,
fringes, insurance, overhead, profit, etc.,
and is Firm until December 31, 1974 19.30/HR"
There is no direct statement, nor do we believe any implication can be drawn from this language, that no damages will be paid for extra costs for extension of the contract time. In fact, prior to the P.O., and omitted therefrom as an agreed item, was Ernst's estimate that the field costs alone would be in the amount of $80,000 per month (as shown by an invoice prepared by Ernst of $400,000, but which was never sent to Koppers). Ernst's work was not completed by July 31, 1975 and no successful negotiations were completed.
Furthermore, the instructions to bidders provided (¶ 1.6):
"For any extra electrical work that Koppers Company may propose, the successful bidder shall furnish to Koppers Company an estimate of the cost (material, labor, insurance cost, plus percent for overhead and profit) of such work. The electrical contractor shall proceed only after receiving a written order from Koppers Company establishing the agreed price and describing the work to be done."
Under these circumstances, we find that delay damages may be claimed on those items in excess of the scope of the work contemplated, where Koppers ordered work done without estimate or written order but which was necessary to complete added work.
B. KOPPERS' DEFENSES
1. Ernst's Delays Caused Its Own Inefficiencies
Koppers contends that Ernst did not start its work promptly as it became available and that this delay was the cause of the flurry of work in the last six months of the Project.
Koppers has reviewed at some length the Sovjak analysis letters of the PERT/CPM updates. The letter of the May 30, 1974 update indicated the Project was already late prior to the Ernst P.O. The letter for the October 17, 1974 update set forth in part, "Electrical activities are showing up prominently on the top negative paths, viz. -13.9, -12.5, -11.1, etc. The subcontractor should review his activity duration times, as well as the logic, to see that these are correct, to the best of his knowledge". Similar letters for the updates of November 14, 1974, December 12, 1974, January 9, 1975, and March 6, 1975 were issued. The letter for the update of April 3, 1975 indicated, "The Electrical Work along with several `key' material deliveries, is now the critical area."
In the letter on the May 29, 1975 update, under the heading "General Comments", for the first time there is the statement:
"It appears, if the networks were and are correct and we must assume they are since we have received no changes from the sub, that the job has been under-manned from as early as Nov. 74."
*748 While this matter of manning had been taken up preliminarily at a job conference on August 22, 1974 to coordinate the activities, it was at the job conference of January 16, 1975 that Ernst was requested to procure additional journeymen, and did so. Except for the testimony of A. E. Jones, retired Koppers' Vice President, that Ernst had been told of Koppers' dissatisfaction with their performance, no substantial undermanning has been proven. While Benjamin Wilkinson, Koppers' Assistant Resident Superintendent, testified that he believed, "Ernst created the problem themselves by not doing them months ahead of time when the areas were open to them", he did not testify that Ernst did not perform the work as scheduled in the CPM, and this is important. We have thus found that the weight of the evidence on the issue of Ernst's fault must rest with the finding that Ernst was not at fault.
The testimony offered by Koppers' expert, David Lee, compared the CPM update of May 30, 1974 with the update of September 18, 1975, the last CPM run. According to Lee, Ernst delayed Koppers activity through Ernst's failure to commence activities when they were available. The Court asked how the witness could say what constituted the period of delay without knowing the duration requirements from each CPM update, and without knowing the history of the constraints on that particular activity throughout the updates. The witness gave no real explanation, except to say that in his opinion it was not necessary.
On the contrary, Ernst's expert, William C. Wagner, reviewed the Lee analysis of Ernst's electrical work and of the various restraints involved, noting that the original restraints and durations as assigned by Koppers were, in many cases, changed by Koppers at Ernst's suggestion. Thus, any comparison of the May 30, 1974 CPM run and the update of September 18, 1975 was not valid for this purpose. In 95% of the cases examined by Wagner, the updates had been changed (Tr. p. 3670). For example, where Mr. Lee had indicated that a certain activity was available on December 30, 1974, in fact, it was not released until February 5, 1975 (Tr. p. 3672A). Even so, Ernst began work on that activity on January 29, 1975, a week ahead of what could have been expected, even though Koppers' expert tried to make it appear as if Ernst was responsible for delay. The same can be said about the duration of that activity, originally listed as one week; Koppers had agreed to extend it to nine weeks, and it was carried out within the scheduled time (Tr. p. 3675). From Wagner's analysis, Ernst had done all that could have been expected under the situation as shown by the CPM schedules. We find the Wagner testimony to carry more weight than the testimony of Koppers' expert, who had not reviewed the CPM updates.
Mr. Wagner went further to say that review of the CPM updates was required to determine whether or not Ernst was responsible for any delay in Koppers' work, and he found after such review that Ernst was not responsible. In his overall analysis, the original CPM showed 50% of all electrical work should have been able to start by the middle of December 1974, when, in fact, 50% of the activities were not available to start until after the original Project completion date of June 17, 1975 (Tr. p. 3585). Thus, there was almost a five month slippage period from the diagrams that Ernst first bid on versus what was available to start under the Lee analysis. Lee's opinion, given credence by the Court, was that Koppers' Engineering, Design, and Procurement Departments were responsible for the delay. Thus, the credible evidence convinces us that Ernst was not responsible for the delays but, rather, that the late engineering, the extended durations and additions in design, and then the slippage in Koppers' procurement of materials, were the significant causes of the late completion in the Project (Tr. 3701).
2. The Thirty Day Clause
Koppers also defends on the basis of a provision in the P.O. which states (Seller Agrees to Comply With, ¶ 6):
*749 "It is the responsibility of the seller to register a claim for additional monies within thirty (30) days of receipt of revised drawing. Any request received at a later date will not be honored. Seller cannot proceed with any work for which he will claim an extra without the written authorization of Koppers Company, Inc.
Not included in this category are those changes which are created by deviation to Contract between Jones & Laughlin Steel Corporation and Koppers Co., Inc. In those instances, seller will be requested to furnish a quotation."
Koppers undoubtedly can conceptualize, engineer, and construct a complex industrial component for a giant steel mill, such as the preheat unit for the coke oven battery A-5 at J&L's Aliquippa Works. They met artificial charge dates set by their customer and worked in areas constrained by ongoing production all around them. They accomplished this while they were coordinating design engineering with field construction, increasing the difficulty of the task. In addition, Koppers incorporated, almost as they occurred, changes in the J&L Project dictated by the failures of their earlier duplicate "unique" plant at Inland, and accomplished it all within six months of the target date. One must have an immense admiration for such construction genius. Furthermore, this construction occurred during a period when Federal price controls were lifted, with the inevitable problems of procurement thereby engendered, and during a period of labor cost escalation, when stable prices on anything were hard to come by and were guaranteed for very short periods of time. It is no wonder that the $46,000,000 project cost J&L, in the end, over $61,000,000.
We are here, however, considering the claim of the subcontractor that Koppers caused it extra work and, thus, expense. Koppers replies, "You didn't present your claim within 30 days as required by your contract", and therefore alleges it is free of any and all liability to Ernst for work performed by Ernst beyond its contract. To this Ernst replies that this provision of the contract, in light of the actions of the parties, was waived and thus cannot shield Koppers from liability.
We first note that Ernst, although not strongly stressing the point, argued that inasmuch as the Court had denied a Motion for Summary Judgment on this very issue, the doctrine of the law of the case should apply. We, however, agree with Koppers in this regard that when the Motion for Summary Judgment was denied, as the record will show, it was denied because a genuine issue of material fact was found to exist, which necessitated resolution by the trier of fact. Switzerland Cheese Association, Inc. v. E. Horne's Market, Inc., 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966); Benson Hotel Corp. v. Woods, 168 F.2d 694, 697 (8th Cir. 1948).
Further, Ernst contended that Koppers should have affirmatively pleaded the "delay clause", citing Rule 8(c) of the Federal Rules of Civil Procedure, which provides in relevant part:
"In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense."
It is true that if an affirmative defense is not pleaded, it is waived at the expense of the party who should have pleaded the affirmative defense. That party may not introduce evidence in support thereof unless the adverse party makes no objection, in which case the issues are enlarged, or unless an amendment to set forth the affirmative defense is properly made. 2A Moore's Federal Practice ¶ 8.27[3]. But as succinctly stated by the court in United States v. F. D. Rich Co., 525 F.2d 760, 767 (7th Cir. 1975):
"Appellants argue that Rich [the contractor] is foreclosed from relying on Article *750 XXVII [of the contract] because it was not pleaded by Rich as an affirmative defense under Fed.R.Civ.P. 8(c). This argument is without merit. The issue is a matter of interpreting the contract between [the contractor and the subcontractor]. The contract must be read as a whole. Article XXVII is not a separate agreement reached by the parties after breach."
It was not surprise in this situation, and we do not rule out the defense on that basis.
The evidence strongly indicated, and we have so found, that in the first part of 1975 and throughout the summer, there was a rash of drawing revisions issued without written authorizations or requests to furnish quotations, but, rather, on plans marked "approved for construction".
On May 30, 1975, James Shannon of Ernst wrote to Koppers stating:
"We have decided to stay with the project and to make every effort to meet the end date of August 30, 1975. However, we must request that the 30-day clause be waived, and an opportunity be given us to recover the monies for any additional construction work at a later date.
We have proceeded with all good intentions and trust we will receive your consideration of this matter. A prompt reply would be appreciated."
Koppers' Robert Beale received this letter, as well as a letter written by Shannon under date of July 2, 1975, in which Shannon stated:
"Having not received an answer in the last 30 days, we feel you are in agreement to waive the 30 day clause for submitting extras. These items will be resolved at a later date, in order that the engineering personnel on the project can proceed and perform the necessary functions to see its completion."
Robert Beale testified that he did not consider these letters worthy of response since his immediate superior, Robert Moran, had told Shannon that no waiver would be given. Beale later contradicted himself by saying he had told Shannon later on that he had no authority to grant such a waiver, even though on cross-examination he had said he had made no reply of any kind, in any form, at any time, to this correspondence. He claimed, in a most unbelievable fashion, that they were working on the Ernst claim on a purely "commercial" basis, which did not involve in any way a consideration of the legal position of Koppers on the non-waiver of the 30 day provision. Instead, Beale said, Koppers commenced an item-by-item analysis and embarked upon a series of negotiations which would have been a massive effort in frivolity, and a waste of time, unless Koppers either never intended to enforce the 30 day clause or knew they had waived its provisions.
We must then determine whether the conduct of the parties affects Koppers' right to insist upon the 30 day clause. Burger King Corp. v. Family Dining, Inc., 426 F.Supp. 485, 493 (E.D.Pa.1977), aff'd without opinion 566 F.2d 1168 (3rd Cir. 1977); Shapiro v. Royal Indemnity Co., 129 F.Supp. 54, 62 (W.D.Pa.1954), aff'd 224 F.2d 89 (3rd Cir. 1955); United States v. Klefstad Engineering Co., 324 F.Supp. 972, 975 (W.D.Pa.1971).
In the instant case, whether we link the testimony here with the doctrine of waiver, not requiring consideration or a new contract, see 3A Corbin on Contracts § 756, or with estoppel, where additional consideration or reliance is necessary to support a contractual modification, Barnhart v. Dollar Rent A Car Systems, Inc., 595 F.2d 914 (3rd Cir. 1979), justice requires a finding here that the 30 day provision cannot be enforced.
As to waiver, after receiving Shannon's letters (and we place no credence in the testimony that Moran had been in touch with Shannon), Koppers should have spoken out and made its position clear. Ernst, by its continued performance under the contract (by relying on Koppers' silence and proceeding with its work), gave up its ability to comply with the 30 day clause on a major portion of the work.
*751 The elements of estoppel are defined in GAF Corp. v. Amchem Products, Inc., 399 F.Supp. 647, 657 (E.D.Pa.1975), rev'd on other grounds 570 F.2d 457 (3rd Cir. 1978), as follows:
"(1) that the one party by `acts, representations, or admissions, or by his silence when he ought to speak out,' induces another to believe certain facts exist;
(2) that the party making the representations expects them to be acted upon by the other party; and
(3) that the party making the representation possessed actual or constructive knowledge, or was culpably negligent in failing to discover the true facts." (Citations omitted)
See also Goodwin v. Hartford Life Insurance Co., 491 F.2d 332 (3rd Cir. 1974). All are present here.
We thus hold that the 30 day limitation period of the contract had been waived and it is necessary that we discuss the substance of the claims made by the Plaintiff.
3. Commercial Impracticability and Forseeability
We have not overlooked Defendant's contention that the doctrine of "commercial impracticability" would, in any event, have barred Plaintiff's Count I claim. The doctrine does not apply in this case.
It is true that the essential element of Ernst's claim is based on delays and inefficiencies resulting, it says, from J&L's insistence on changes and on failures to enable the work to proceed in a certain fashion, and also on Koppers' inability to have certain materials delivered on schedule. It is apparent from the evidence that Koppers' material problem arose from the lifting of price controls in April 1974. However, this is not the type of impracticability embraced within the doctrine.
We are aware that absolute liability existed initially but was modified within the Restatement of Contracts in 1932, as follows (§ 454):
"In the Restatement on this Subject impossibility means not only strict impossibility but impracticability because of extreme and unreasonable difficulty, expense, injury or loss involved."
As Williston emphasized in his 1938 Treatise on Contracts, it is a question of what the parties reasonably contemplated that performance would entail. 18 Williston on Contracts §§ 1931-79 (Jaeger rev. ed.). See also West v. Peoples First National Bank & Trust Co., 378 Pa. 275, 106 A.2d 427 (1954); Transatlantic Financing Corp. v. United States, 124 U.S.App.D.C. 183, 363 F.2d 312 (D.C.Cir. 1966).
In the Restatement of Contracts, Second, it was stated (Introductory Notes to § 281, at p. 42):
"The rationale behind the doctrines of impracticability and frustration is sometimes said to be that there is an `implied term' of the contract that such extraordinary circumstances will not occur."
Suffice it to say at this point that the lifting of price controls was certainly not such an event to be so extraordinary as to relieve Koppers of its duty to make payment for delays caused by its failure in procurement. We do not in this sense see that justice requires that Koppers' performance should be excused at a cost to Ernst.
In an ordinary construction contract some delays are foreseeable, though not within the control of the parties, and do not provide a basis for recovery. Union Paving Co. v. City of Philadelphia, 95 Pa. Super. 342 (1929) (third party's performance was a necessary predicate for a construction project, but third party's failure to perform, thus preventing plaintiff from performing, was not a basis for recovery). Here, where the delays were tight against a completion date being insisted upon by Koppers, the subcontractor, in justice, cannot be held to foresee such delays and prevented from recovering additional expense incurred by reason thereof.
C. DAMAGES
Under the foregoing discussion, we have concluded that there is liability by Koppers to Ernst on Ernst's Count I claim. Ernst presented this claim for the first time *752 on May 31, 1977, even though Ernst had been presenting claims to Koppers for drawing revisions during discussions as early as 1975 and throughout 1976, and even though Ernst had previously indicated, at Koppers' request, that it had no claim beyond the drawing revision claim. We find that Koppers was aware of these additional claims, thus was not surprised. Furthermore, Ernst is not estopped from asserting these claims now because there is no evidence that Koppers detrimentally relied on Ernst's failure to bring these claims forward during the negotiations for the drawing revision claims.
We find that Ernst was on the job four extra months through no fault of its own. The question is whether Ernst has proven damages to which it may have been entitled for the impact of work beyond the scope of the original contract.
We previously noted that the P.O. set forth:
"Price is firm through July 31, 1975. If job duration exceeds July 31, 1975 through no fault of seller, negotiations for additional field costs may be in order."
The P.O. also provided: "This order constitutes the entire agreement," and as such of course is controlling. See Lichter v. Mellon-Stuart Co., supra. See also, Annot., Validity, Construction and Application of "No Damage" Clause with Respect to Delay in Construction Contract, 10 A.L.R.2d 801 (1950).
We thus find that the P.O. is an integrated writing and includes the agreement of the parties on delay damages, so that Ernst's sole and exclusive remedy for delay within the scope of the P.O. is as set forth therein, both as to entitlement and damages. Accordingly, Ernst may seek damages for delay only if such delay is attributable to Koppers and may recover only "additional field costs". The burden of proof is on Ernst to establish the duration of delay, the fact that such delay was through no fault of Ernst (and we have so found), and the causal relationship between such delay and the necessary and reasonable additional field costs. Joseph Pickard's Sons Co. v. United States, 532 F.2d 739 (Cust. & Pat. App.1976); Boyajian v. United States, 423 F.2d 1231, 141 Ct.Cl. 233 (1970); J. D. Hedin Construction Co. v. United States, 347 F.2d 235, 171 Ct.Cl. 70 (1965).
In its Count I damage calculations, Ernst employed a variation of the "total cost" method. Normally, under this method, a contractor or subcontractor uses the difference between the total actual cost of performance and the amount of the contract price, as increased by change orders. Here, Ernst began with the number of productive electrical journeyman hours (82,980 hours), an average of three different manpower estimates prepared by Ernst. It claims that because of extensive changes in the scope of the work and because of the delays and interferences with Ernst's work for which Koppers was responsible, Ernst was compelled to spend a total of 289,426 productive journeyman hours for the completion of its work. Some of the time is attributable to agreed upon change orders and some to the work Ernst performed with respect to drawing revisions, which is not applicable here. By subtracting the number of hours required by the P.O. and other hours not applicable to drawing revisions, Ernst calculates that 114,500 of the 289,426 productive journeyman hours were incurred as a direct, sole, and natural consequence of Koppers' acts and failures to act which delayed or interfered with Ernst's performance of its work. These hours, Ernst says, are the "impact" of the changes, delays, and interferences incurred by Ernst. Using the arrival dates of drawing revisions as a guide, Ernst allocated them to the various years, that is, 44,540 hours allocated to 1974, 65,494 hours allocated to 1975, and 4,465 hours to 1976. The hourly "straight time" labor rates properly chargeable to Koppers during these years, Ernst claims, were $19.30, $20.77, and $22.98 respectively. Ernst claims that the method used by it to estimate its escalation damages, if anything, favors Koppers by allocating the 44,540 hours to 1974, when, in reality, the consequences of the Koppers-imposed crash program *753 happened in 1975, when labor rates were higher.
Koppers replies that the figure of 82,980 hours, which Ernst now uses as its original estimate of hours required to complete the work, has no basis in fact since it is only an average of manpower estimates prepared by Ernst on or about August 1974.
Assuming for a moment the validity of the "total cost" approach, the manpower charts showed 96,000 journeyman hours, and Ernst's letter of April 10, 1974 to Koppers stated that Ernst's estimate of journeyman hours for the job was 100,470; this is the figure we believe should be used if there is any validity to the "total cost" approach. In addition, Ernst's calculation of its Count I damages fails to exclude approximately 10,000 hours expended by Ernst on the temporary light and power contract for which it has already been paid in full. It is obvious to the Court that Ernst's hypothetical allocation of unpaid journeyman hours on the basis of the number of drawing revisions received per year is invalid. Not all drawing revisions required work by Ernst, and all revisions requiring work would not cause an equal amount of work. Thus, a calculation based on an artificial method of allocation is not a proper substitute for a calculation based on historical expenditure of labor.
There is, however, a more fundamental defect in Ernst's approach to its damage under Count I. Ernst has applied the total cost concept not to its cost in dollars to perform the work, but to the alleged number of man hours expended on the job. There was no showing that the man hours of the Count I calculation related to Ernst's actual cost of performance. The Court thus rejects the Plaintiff's calculation as given. For comparable rejections, see Seger v. United States, 469 F.2d 292, 199 Ct.Cl. 766 (1972); F. H. McGraw & Co. v. United States, 130 F.Supp. 394, 400, 131 Ct.Cl. 501 (1955) (portion of plaintiff's claim disallowed because damages were based upon plaintiff's assumption that plaintiff's costs were reasonable and that plaintiff's bid was accurately computed, "which is not always the case by any means").
The plaintiff in G.C.S., Inc. v. Foster Wheeler Corp., 437 F.Supp. 757 (W.D.Pa. 1975) and 437 F.Supp. 764 (W.D.Pa.1977), aff'd 578 F.2d 1374 (3rd Cir. 1978), admitted, as Ernst does here, that it could not offer evidence of the precise number of days of delay or dollars of harm caused with respect to the numerous change orders, drawing revisions, and so forth. There, the court stated:
"GCS admits that it cannot support its claim for damages for delay on any particular item, or on any total of particular items, but rather relies upon the cumulative effect of the various late drawings which `caused a loss of momentum and interference with its work plan or sequence which substantially expanded the time within which GCS could be reasonably expect to complete its work.'
Nowhere in the supplemental answers to the interrogatories does GCS set forth the causal relation between the delayed receipt of drawings and the fact of damages; it is not shown in any specific instance that men, machinery, or equipment were made idle, at GCS's cost, pending the receipt of any delayed drawings."
437 F.Supp. at 760.
On GCS's motion for new trial, the court denied the motion and reaffirmed its prior judgment ruling, saying:
"G.C.S. admitted that it could not offer evidence of the specific time or money loss caused by any particular act of Foster Wheeler, but attempted to rely on a cumulative effect theory. G.C.S. was unable to segregate delays attributable to Foster Wheeler, from those delays of its own causing, or delays to which it was subject by the provisions of the contract."
437 F.Supp. 770.
We do not doubt that Ernst encountered delays and difficulties, as we so found, but Ernst has attempted to prove only the total amount of costs and the total delay experienced on the Project. As in Wunderlich Contracting Co. v. United States, 351 F.2d 956 (Ct.Cl.1965), unsatisfactory *754 evidence has been presented to differentiate between reasonable and unreasonable delays, or between delays unavoidably caused by extraneous circumstances. It is incumbent on the Plaintiff to show the nature and extent of the various delays for which damages are claimed and to connect them to some act of commission or omission on the defendant's part. Some basis for allocation must be present in the evidence of the case, see Lichter v. Mellon-Stuart Co., supra, and where a plaintiff is unable to segregate delays and damages caused by the defendant from delays and damages attributable to other factors, no damages may be awarded. S. J. Groves & Sons Co. v. Warner Co., 576 F.2d 524 (3rd Cir. 1978); Fruin-Colnon International S.A. v. Concreto S.A., 231 F.Supp. 14 (D.Canal Zone 1964). Finding no basis for segregation in this case, we are unable to award damages to Ernst on the Count I claim.
D. COUNT II
1. The Burden of Proof on Extras
It is an elementary principle of contract law that in order to recover for "extras", Ernst must show that they are in fact extras. As stated in Beaty v. Brock & Blevins Co., 319 F.2d 43, 44 (6th Cir. 1963), "`Extra work' or `additional work' in this sense means work other than that contemplated in the original specifications and addenda." All of the initial related documents must be read to determine what work is contemplated. Dunlap v. Warmack-Fitts Steel Co., 370 F.2d 876 (8th Cir. 1967). As stated in Leo A. Daly Co. v. Ray Smith Industries, Inc., 387 F.2d 899, 900 (5th Cir. 1968), where extras claimed for were not included in the final plans and specifications, but had been included in tentative bidding drawings and bidder's instructions:
"It is self-evident from the nature of the final plans and specifications that they are but an architectural skeleton, though naturally a complex one, whose flesh is to be supplied by other sources, especially P.O.D. 39 [`Construction Requirements for Leased Postal FacilitiesBidders Instructions'], to which a multitude of reference directives are given in the final plans and specifications themselves."
Thus, the court in the Leo Daly Co. case examined each claimed extra on an item-by-item basis to determine whether the same was barred by the bidder's instructions, tentative drawings, or final plans. See E. C. Ernst, Inc. v. Manhattan Construction Co., 387 F.Supp. 1001 (S.D.Ala. 1974), aff'd in part and vacated in part 551 F.2d 1026 (5th Cir. 1977), cert. denied 434 U.S. 1067, 98 S.Ct. 1246, 55 L.Ed.2d 769 (1978).
We have examined, on a claim-by-claim basis, the items which make up Count II of the Complaint. We note that by the summer of 1975, more than 1,000 drawing revisions had been delivered to Ernst. Some were revisions of revisions, and many arrived on or after the original charge date. All revisions called upon Ernst to provide extra work, work in addition to the work defined by the original contract, or to revise the work defined in the original contract. Ernst performed the work called for by the drawing revisions, and, while some revisions were incorporated into Koppers' extra work orders, most revisions were not. The extra work performed has not been paid for as yet.
2. The Drawing Revision Claim
It is apparent that for tax reasons, J&L demanded the coke oven battery be operative by January 1, 1976. To achieve this goal, Koppers and its subcontractors were required to complete tasks which had not only been delayed but had also been expanded by 70% in scope in a time framework that had been expanded by only 27%. There was a crash program to complete the Project; Ernst, as well as other subcontractors, was required to perform more work than had been originally contemplated in a shorter time frame.
When Koppers sold the Project to J&L in June 1973, it anticipated 928,000 hours of direct labor, including 110,000 man hours for electrical work. As a result of the crash program, the total commitment added 654,000 *755 hours of direct labor. Of all labor committed to the Project, more than two-thirds was committed in the last six months of what became a 30 month job, and 50% of Ernst's work was done in the final six months.
Obviously to accomplish this job, many drawing revisions were required. Because of the number and frequency of drawing revisions, the time involved in comparing bid drawings to revisions and pricing the extra work such revisions might require, and the necessity of proceeding promptly on plans "approved for construction", Koppers did not require price proposals.
Koppers defends against this drawing revision claim on the basis that Ernst did not submit its claim within 30 days, as required by the P.O. We have already determined that the 30 day provision did not operate as a bar to the Count I claim, and likewise hold that it does not bar Ernst's Count II claim.
By early October 1975, Robert Beale warned Koppers' various managers as follows:
"Subject subcontractor [Ernst] has expended through the latest billing date of September 30, 1975 a total of 159,170 productive man hours. This compared to a 100,000 man hours in Ernst's original bid represents an over-run of 59,170 man hours to date. . . . [S]trict attention should be directed to the overall estimated total man hours of 264,556 [which would be required to finally finish the project] which includes productive, nonproductive, and supervisory labor.
* * * * * *
Drawing revisionsto date, this department has transmitted drawings covered by Engineering work letters on 172 [transmittal letters]. While most of these drawings do not cover revisions or additional work, many do represent changes. This will represent additional costs which will have to be negotiated on the basis of dollar value for a particular change."
By the time of the Beale memorandum, Ernst had received sufficient drawings to allow it to attempt an accurate analysis of the changes in the contract, and their estimators began comparing the latest drawing revisions with the original bid drawings. These pricing lists were then turned over to a single estimator, Shadler, who reviewed the estimates in order to eliminate duplications, adding and subtracting costs as indicated by the revisions. Shadler not only used the price of materials, but also computed the hours of journeyman-level electrical labor necessary to install the materials. These hours of labor units reflected Ernst's experience and the estimator's judgment of the Project's conditions and difficulties. The hours of additional labor were priced at $20.77 per hour, using the journeyman electrician rate then charged by Ernst; a $5.60 factor was added thereto, representing the "hidden [engineering] costs" to Ernst, not otherwise reflected in the journeyman labor rate. The hours of labor associated with deleted work were credited to Koppers at $15.80 per hour, the journeyman rate less Ernst's overhead and profit.
Shadler determined the aggregate pricing for performing the work required by the revised drawings to be $1,544,307, and on December 9, 1975, sent a letter to Koppers, in effect a bill, requesting payment of this amount. Shadler's bill was revised on December 12, 1975 to give effect to a certain field authorization and to addition and deletion corrections; the second bill (again in the form of a letter) requested payment in the amount of $1,494,853. The amount was further reduced to $1,484,000. After detailed examination of the testimony presented here, we find that all of these items are properly chargeable as "extras" which were not part of the scope of the original contract, and that Ernst's method of calculation was reasonable.
Many of the parts of the claim for the drawing revisions were accepted entirely by several Koppers' analysts. For example: the claim for drawing 6A24 of $26,585 was accepted in full by Koppers' Purchasing and Engineering reviewers. Similarly, claims were accepted in full for drawings 6A74 *756 ($25,092); 6A122 ($10,810); 6A144 ($34,710); 6A208 ($19,729); 6A388-89 ($23,000); 6A410-14 ($20,369); 6A549 ($64,993); and 6A552-53 ($27,754). Koppers therefore embraced Ernst's method of pricing labor at $26.30 per hour for additions and materials added, and a lesser price for deletions. In other instances, one analyst would accept the entire claim for a particular revision, while other analysts would accept only part (6A120, $55,000).
We note that the consensus among Koppers' personnel, after reviewing Ernst's claim for "extras", was that the claim was worth no more than $500,000, and this is the amount at which Koppers valued the Ernst claim internally. Numerous negotiations were carried out throughout 1976, and Koppers requested that the claim be presented in the format desired by them. Ernst resubmitted a portion of its claim under the Koppers' format, but another portion of the claim was never resubmitted when Ernst became convinced that Koppers did not intend to honor a substantial portion of its claim.
It is interesting to note at this point that when Koppers advanced its own claim against J&L, included in the amounts being sought was $500,000, representing Koppers' appraisal of what Ernst might accept with respect to its drawing revision claim. No part of the $4,000,000 settlement between J&L and Koppers was ever forwarded to Ernst, not even for those extra work claims considered by Ernst as "accepted" by Koppers, field work performed by Ernst pursuant to written Koppers' "authorization" forms, or any part of the admittedly due contract retention of $60,430.
Koppers argues that it has shown that the number of revisions on this job was not greater than on other jobs of comparable complexity on which Koppers had worked. We see this as no answer to the claim for extras when work was required to be done beyond the scope of the Project as originally planned, particularly in light of Koppers' undertaking to conceptualize and construct the Project. Whether or not on-the-spot pricing of the revisions was "impossible", as Ernst asserts and Koppers denies, is not relevant to the question of whether or not they were "extras" which Koppers knew very well were not being priced or given authorization, even though this was required by the P.O.
There was no showing whatsoever here that Koppers admitted liability to Ernst when it negotiated a settlement with J&L. Furthermore, it may be true that changes in sequence of work frequently occur in major construction contracts, and that this Project was no different. But these are not bases for a denial of claims for extras.
While we grant Plaintiff damages on Count II, the contract contemplated that a claim for revised drawings would be "reviewed on the basis that $500 be to the account of the Seller [Ernst]." Johns of Ernst did not apply this provision when he prepared that portion of the drawing revision claim. We believe that $500 must be deducted from each claim over $500 and all claims under $500 must be dropped, for a total of $62,080, leaving a balance of $1,421,920 owing to Ernst on Count II.
E. COUNT III
The six Ernst work orders that comprise Count III are for work performed pursuant to field authorizations and directives issued by Koppers. These directives were issued, either orally or in writing, in order to expedite a solution to problems in the field without recourse to the drawing board. These were, in effect, an order from Koppers to proceed with such work. Ernst performed the work and calculated the hours and materials required to perform the work; then labor was priced at the journeyman rate then in effect.
The six work orders amount to a claim of $9,581.64. Since we have determined the Ernst computation to be reasonable, Plaintiff is entitled to recover the full amount.
F. THE COUNTERCLAIM
Koppers customarily provided field engineers to assist subcontractors and the J&L Project was no exception. In fact, Koppers *757 had made a commitment to J&L to provide such engineers. The services of these engineers were in the first instance considered part of the bill to J&L under the 1973 contract, but were later billed again to J&L under deviations which followed J&L authorizations or extra work orders. In some instances, their services were further billed to and paid for by Ernst. There was no proof offered with respect to the other aspects of the counterclaim.
We are fully aware that Koppers would not supply "supporting personnel" under the P.O. But the supplying of personnel to explain its incomplete drawings is not with "supporting personnel", and gives no right to Koppers to recover as a counterclaim the sum of $105,875.
Further, the Koppers' claim of $274,000 in premium time payments cannot be justified on the basis that the delay in performance was the fault of Ernst. We do not so find and there is no basis for this claim.
Koppers claims $869,871 as a result of overtime payments necessary to speed up final check-out required, it says, when Ernst delayed energizing the 460 volt preheat substation. We have found that delay was not the fault of Ernst and there is no proof of this or $481,140 in inefficiency claims on overtime paid by Koppers. It does, of course, indicate the validity of overtime inefficiency claims, but we have found insufficient evidence to allow Ernst or Koppers to recover for this.
III. CONCLUSIONS OF LAW
1. The Court has jurisdiction over the parties and subject matter of this litigation under the statutes of the United States by reason of diversity of citizenship among the parties and the amount in controversy exceeding $10,000.
2. This action arises out of an integrated flat sum contract between the parties evidenced by Koppers' Purchase Order XXXX-X-XXX, dated June 4, 1974, and documents incorporated therein.
3. The law to be applied is the law of Pennsylvania by reason of the fact that the contract between the parties was executed and performed in Pennsylvania.
4. In the Purchase Order, the parties provided: "Price is firm through July 31, 1975. If job duration exceeds July 31, 1975 through no fault of seller, negotiations for additional field costs may be in order." It was also provided therein that: "This order constitutes the entire agreement". This provision limited damages for delay only within the scope of the work contemplated by the contract. Such a paragraph does not constitute a "no damage" provision and is not controlling in this action where the scope of the work was vastly increased by Koppers.
5. While the provision above limits damages for delay when such delay is "through no fault of seller [Ernst]", the delays in this case, having not been found to be the fault of Ernst, are the proper basis for the recovery of additional costs by Ernst.
6. The method used by Ernst to establish and calculate its damages for delays is a variation of what is called the "total cost" method. There has been no showing in the case that the number of man hours under the delay calculations was related to Ernst's cost of performance of the work beyond the scope contemplated by the Purchase Order, and cannot form the basis of a damage award.
7. Ernst is entitled to recover from Koppers the sum of $1,484,000, the reasonable value of the additional labor and materials expended pursuant to drawing revisions or additions, less $62,080, as provided for under the $500 deductible provision, or the sum of $1,421,920, with interest thereon from December 12, 1975.
8. Ernst is entitled to the retainage of $60,430, with interest thereon from December 12, 1975.
9. Ernst is entitled to $9,581.64, the reasonable value of work performed pursuant to Koppers' field authorization, with interest thereon from October 15, 1975.
10. Although Ernst did not make its full claim on Koppers prior to Koppers' negotiations *758 with J&L, Ernst's conduct did not amount to a modification or waiver of any provision of the Purchase Order.
11. Ernst therefore is not estopped from recovery from Koppers on the basis that it either acquiesced in or participated in the delays.
12. Koppers, by its conduct, is not entitled in defense to enforce the provision of the Purchase Order which provides that Ernst's claims for additional work should be submitted to Koppers within 30 days of the receipt of the revised drawings as Koppers willingly accepted Ernst's performance without requiring prior authorizations or bids, or prompt settlement therefor.
13. Koppers' counterclaim for additional costs for delay is dismissed for failure of proof that any act or failure to act attributable to Ernst delayed completion of the Project.
14. Ernst is entitled to recover costs. Judgment shall issue accordingly.
NOTES
[1] This figure is derived by deducting $500 for each revision over $500 and excepting the face amount of each claim under $500. In the case where drawings were aggregated for a lump sum claim, $500 was deducted for each revision, except drawing 6A214 (which was not a revision); for drawings 6A221-223 the face amount of $1178 was deducted. The $500 deductible provision was not applied to the following two claims which did not constitute drawing revisions: "conduit & wire on pusher machines" and "conduit & wire on door machines". | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1378709/ | 234 Ga. 816 (1975)
218 S.E.2d 599
SHY
v.
THE STATE.
29891.
Supreme Court of Georgia.
Submitted April 24, 1975.
Decided September 2, 1975.
*827 Joe Salem, for appellant.
Lewis R. Slaton, District Attorney, Carole E. Wall, Assistant District Attorney, Arthur K. Bolton, Attorney General, John W. Dunsmore, Jr., Assistant Attorney General, for appellee.
INGRAM, Justice.
Appellant Thomas A. Shy was convicted, after a jury trial in Fulton County Superior Court, of the murder of his wife, Catherine Shy, and of the aggravated assault of Anthony Coley. Appellant was sentenced to life imprisonment for the murder and also received a concurrent 10-year sentence for the aggravated assault. This appeal was filed after appellant's motion for a new trial was denied in the trial court. We find no reversible error for any reason enumerated in this appeal.
Appellant's wife and Anthony Coley were seated in the latter's automobile in a parking lot at the corner of Bankhead and Law Streets in the City of Atlanta. They had been talking for a short time when the appellant, Thomas Shy, drove up to the location. According to Coley's testimony, appellant pulled out a gun and after a short discussion fired some shots in their direction. He then reached into his wife's jacket and took her gun. He kept both guns pointed at Coley and his wife while they discussed the situation for about an hour.
A police officer drove up around 1:50 a. m. to investigate the parked cars and saw appellant kneeling or squatting beside the passenger side of the car where his wife was seated. Mrs. Shy told the officer that nothing was wrong and he left. Coley contends that he and Mrs. Shy both were frightened and that they lied to the officer.
The witness Coley further testified that approximately *817 45 minutes later he noticed that he had been shot from the earlier fracas and Mrs. Shy began scuffling with her husband. Appellant fired both guns into the car whereupon Coley opened the car door on his side and rolled underneath the car. Appellant then walked around to the driver's side and fired several more shots. At this same time, another officer of the Atlanta Police Department was on patrol and he noticed the cars in the parking lot. The officer heard what he thought was gunfire and he saw appellant standing beside Coley's car and saw appellant fire into the car.
The officer drove his car closer, got out of it, drew his revolver and ordered appellant to drop his gun. Appellant, after a pause, laid it down and the officer ordered him to spread-eagle himself on the ground. While on the ground the officer straddled appellant and began to frisk him but did not state that appellant was under arrest. The officer asked what was going on and appellant said, "I caught my wife and that son of a bitch and I shot him."
About this time, the officer noticed some movement under Coley's car and ordered whoever was under there to come out or to be shot. Coley replied that he had been shot. Another officer then arrived and appellant was handcuffed and taken to the patrol car. Coley was helped from under his car and an ambulance was called. Coley refused to make any statements before consulting with his attorney. Only then did the officer go to Coley's car and discover appellant's wife, Mrs. Shy, who had been fatally wounded. After appellant had been taken to the patrol car, he was advised of his Miranda rights. Appellant's version of the incident differs from that of the witness Coley. Appellant claims that he had only one gun which he drew and fired only in self-defense after Coley fired a gun at him and appellant's wife.
During the closing argument of the defense, Mrs. Shy's sister became visibly upset. Again during the state's closing argument, the victim's mother cried out that appellant had "killed her for what she had" and the sister fell to the floor. The defense moved for a mistrial and it was denied. The trial judge instructed the jury to disregard the outburst and to eradicate it from their minds.
*818 During the state's closing argument the prosecutor made two additional statements which defendant contends were prejudicial to him and require a new trial. These statements are: (1) "Now it's all right for Mr. Shy to exercise his constitutional rights to talk to an attorney but not for Mr. Coley. What about that? You heard Detective Scappaticcio testify that after Shy was taken down and booked, advised of his constitutional rights, he asked for his attorney. No we shouldn't discuss that." (2) "Now, if the defendant is telling the truth how is it that Coley had her pistol, because you see Shy said that as Catherine started back to the car and opened the door, Coley just started shooting. What was he doing with her pistol? You don't believe that for a minute. You are reasonable. That's an out and out lie, I submit to you from the evidence of the other witnesses."
Appellant urges three grounds as error requiring a new trial. The first is that the trial court erred in allowing into evidence the alleged admission of appellant to the police officer because it was taken in violation of appellant's right to be advised of his right to remain silent and his right to counsel under Miranda v. Arizona, 384 U.S. 436.
Secondly, appellant contends the trial court failed to eradicate the prejudice to appellant that arose from the outbursts of the victim's relatives and that defendant was thereby denied a fair and impartial by jury.
Finally, appellant contends the remarks made in closing argument by the prosecutor were prejudicial to the appellant and were in violation of the Fifth and Fourteenth Amendments to the U. S. Constitution. We deal with each of these three contentions seriatim in this opinion.
I.
Appellant's Statement to the Police Officer.
The police officer who first came upon the scene was called to testify by the state. The trial court held a Jackson-Denno hearing (Jackson v. Denno, 378 U.S. 368) to determine whether or not the statement made by the defendant was admissible under Miranda, supra.
The trial judge ruled that appellant's statement was admissible as part of the on-the-scene investigation which *819 was reasonable in order to protect the officer. The defense takes the position that the officer had witnessed the offense of discharging a firearm occur and therefore had sufficient information to arrest the defendant at that point. For this reason, the defense contends that Miranda warnings were immediately required and that it was error not to give them.
The issue to be decided is whether or not the appellant was "in custody or otherwise deprived of his freedom of action in any significant way" in order to trigger the requirement that Miranda warnings be given. Some restraint on individual freedom is clearly permissible without the warnings. In the context of Miranda, custody is not defined as "any" deprivation of freedom, but rather as a "significant" deprivation of freedom. See Smith, The Threshold Question in Applying Miranda: What Constitutes Custodial Interrogation. 25 S. C. L. Rev. 699, 706 (1974).
However, the Miranda requirement for warnings is not limited to station-house interrogation. Orozco v. Texas, 394 U.S. 324 (1969). The defendant in Orozco, when interrogated by the police, was not "free to go where he pleased but was under arrest." Is the test of "Custody" that triggers the Miranda admonitions simply that the defendant is not "free to go" or is more required to make the warnings necessary?
Some courts have defined custody in terms of whether the defendant was deprived of his freedom of action. See People v. Arnold, 66 Cal. 2d 438 (426 P2d 515). We think a more reasonable test recognizes this as a factor to be considered, but also recognizes the possibility of a more limited type of detention in which the defendant is not "free to go" but the Miranda warnings are not required at the initial contact. See United States v. Coates, 495 F2d 160 (D.C. Cir. 1974).
Illustrative of this limited detention situation are the Terry-type investigative detentions, which are not equivalent to "custody," and also the on-the-scene investigations in which a police officer prevents anyone present from leaving before a preliminary investigation is made. Both are recognized, at least implicitly, in Miranda and, of course, in Terry v. Ohio, 392 U.S. 1.
*820 The Supreme Court has not clearly defined the bounds of constitutionally permissible police investigative techniques. Miranda, by its own terms, does not apply to "general on-the-scene investigation." The police on the scene of a crime are likely to detain temporarily anyone who tries to leave before a preliminary investigation. See, Allen v. United States, 390 F2d 476 (D.C. Cir. 1968); see, also, Arnold v. United States, 382 F2d 4 (9th Cir. 1967).
Because of the diversity of street encounters between police and citizens, the courts are left with a case-by-case determination of whether constitutional rights have been violated by police activity. In Terry investigative detentions, the citizen is detained, but Miranda does not always attach to these circumstances. In Terry, there is an indication that some inquiry is permissible. The court's holding recognizes that a police officer in the course of investigating unusual behavior can make reasonable inquiries to dispel his reasonable fears for his own safety and that of others. 392 U.S. 30. In Sibron v. New York, 392 U.S. 40 (1968), and its companion case, Peters was asked what he was doing in an apartment building. When the answer given was not satisfactory to the officer, a pat-down was begun that led to the discovery of burglary tools. As a noted writer points out, in the street encounter the suspect either gives an explanation that satisfies the officer or adds to the officer's suspicion and leads to the suspect's arrest. See W. LaFave, Street Encounters and the Constitution: Terry, Sibron, Peters and Beyond, 67 Mich. L. Rev. 40 (1968).
In Georgia, both the Terry-type detention and the general on-the-scene investigation have been recognized. Appellant relies heavily on Conoly v. Imperial Tobacco Co., 63 Ga. App. 880, 885 (12 SE2d 398) (1940), a false imprisonment case in which arrest is defined as "the taking, seizing, or detaining of the person of another, either by touching or putting hands on him, or by any act indicating an intention to take such person into custody, and which subjects such person to the actual control and will of the person making the arrest." This definition is implicitly approved in Davidson v. State, 125 Ga. App. 502, 504 (188 SE2d 124) (1972).
*821 However, this court subsequently, in Brisbane v. State, 233 Ga. 339, 343 (211 SE2d 294), recognized the possibility of a Terry-type search in Georgia where there are some "reasonable articulable grounds for suspicion." See also, State v. Swift, 232 Ga. 535 (207 SE2d 459) (1974). In Brisbane, a limited investigative inquiry was found to be justified. In Terry custody cases, the individual becomes subjected to a limited investigative detention caused by the officer's reasonably founded suspicion of the individual's activities. The earlier Conoly decision, defining arrest in a damage suit, had no occasion to consider these factors and is not controlling here.
In Wilburn v. State, 230 Ga. 675 (198 SE2d 857) (1973), the defendant was convicted of murder in the shooting death of his wife. Police officers were summoned to the defendant's home and they found the defendant sleeping in the front seat of his car. There were bloodstains on the dashboard of the car. The defendant stated to the officers he did not know where the bloodstains had come from and that he did not know where his wife was. Later, defendant spontaneously remarked that "he blew her brains out." The court in Wilburn relied on the fact that Miranda applies only to custodial interrogations and concluded there was no error in the admission of the defendant's statements in that case. See also, Britton v. State, 44 Wis. 2d 109 (170 NW2d 785) (1969). Similarly, where a non-suspect who was not free to leave answered "threshold inquiries" made by police executing a search warrant, the answers were found to be admissible. Jones v. State, 127 Ga. App. 137 (193 SE2d 38) (1972).
In making the distinction between custodial and noncustodial interrogation the U. S. Court of Appeals, 5th Circuit, has outlined several criteria: "these include probable cause to arrest, subjective intent of the police, subjective belief of the defendant, and focus of the investigation." Brown v. Beto, 468 F2d 1284, 1286 (5th Cir. 1972). These all point to attempts by the police to gather incriminating information. See, United States v. Mandujano, 496 F2d 1050 (5th Cir. 1974). All of these factors are significant elements to be weighed in determining the "custody" issue. Of course, the police may *822 not delay the arrest of a suspect or use a Terry rationale as a subterfuge to coerce the suspect into incriminating himself without the benefit of Miranda warnings. See Windsor v. United States, 389 F2d 530 (5th Cir. 1968).
Under the facts of the present case, it appears that, for all practical purposes, the appellant was in custody from the moment he was ordered by the officer to spread-eagle himself upon the ground and the officer began to search him for weapons. However, in our opinion, the single threshold inquiry of the officer as to what was happening was not an impermissible "interrogation" under Miranda.
The Court of Appeals, in Jenkins v. State, 123 Ga. App. 822 (182 SE2d 542) (1971, cert. den.) dealt with the definition of interrogation in connection with background and descriptive information obtained in the booking process. There the defendant, not in response to any particular question during the booking process, blurted out an admission. The court relied on Professor Kasimar's definition: "Although the question is not entirely free from doubt, it seems that ... routine police `questioning' not related to the investigation of the case nor designed, expected, or likely to elicit information relevant to guilt may not amount to `custodial interrogation' within the meaning of Miranda ..." Kasimar, Custodial Interrogation Within the Meaning of Miranda, in Criminal Law and the Constitution, pp. 358, 360 (1968) (Inst. of Continuing Legal Education).
In Owens v. United States, decided by the D. C. Court of Appeals on July 7, 1975, 17 Cr. L. 2317, it was held that an officer's question, "What are you doing here?" asked of a suspect who was apprehended at gunpoint on the roof of a store about 2:00 a. m. was not an interrogation that first required Miranda warnings. As noted by that court: "Interrogation forbidden by Miranda is not a single question at the threshold of the encounter arguably aimed at determining the nature of the situation confronting the police." We think this statement fairly characterizes the circumstances of the present case.
In another case similar to the present case, the Illinois Appellate Court found in dicta that statements made to a police officer were voluntary as opposed to being *823 the result of interrogation. People v. Jenkins, 13 Ill. App. 49 (268 NE2d 198) (1971). In Jenkins, an off-duty police officer saw the defendant drag the victim from a tavern. A few moments later he was told the victim had been stabbed, so he followed defendant and demanded that he stop. The officer asked where the knife was and put defendant under arrest. He then stated, "Don't you know you just killed a woman back there?" Defendant replied, "The bitch needed killing." Although the statements were admitted at the trial without objection, the court stated that the whole exchange was admissible as voluntary and spontaneous. The court noted there that what the police officer said was not interrogation but was an explanation of why he was arresting the defendant.
In summary, we believe that in the present case the police officer was not interrogating appellant for the purpose of obtaining evidence to establish appellant's guilt of a crime. In the state of confusion that apparently existed at the scene of this incident, we believe the officer was seeking to determine the nature of the situation confronting him. The single threshold inquiry he made to appellant, which evoked the statement by appellant, could easily have been directed towards ascertaining if there were any current danger to the officer or to others present at the scene. Therefore, we hold this statement by appellant was admissible in evidence despite the absence of Miranda warnings to appellant before he made the statement.
II.
Outbursts During Closing Argument.
Apparently, there were two outbursts during the closing arguments at trial. The first outburst is unrecorded but is acknowledged by the district attorney. The defense made no objection to it at trial and may not rely on it as a basis for reversal on appeal. See Patton v. State, 117 Ga. 230 (43 S.E. 533) (1902).
The second outburst was recorded at defense counsel's request and a motion for mistrial was made. The trial judge overruled the motion but promptly instructed the jury to disregard the outburst and to eradicate it from their minds. The defendant has a right to a fair trial free from outside demonstration and suggestions. If no *824 instruction is given to the jury to disregard prejudicial remarks by a person in the courtroom after the defense asks for a mistrial it is reversible error. Glenn v. State, 205 Ga. 32 (52 SE2d 319) (1949). However, the trial judge has discretion whether to grant the mistrial in order to preserve the defendant's right to a fair trial provided the instruction to the jury will preserve this right. See Holland v. State, 113 Ga. App. 843 (149 SE2d 919) (1966), and Avery v. State, 209 Ga. 116 (70 SE2d 716) (1952); Hendrix v. State, 173 Ga. 419 (160 S.E. 614) (1931). We find no abuse of the trial judge's discretion in this case as we conclude the timely corrective action taken was sufficient.
III.
Statements of the District Attorney.
We reach first the district attorney's argument to the effect that appellant lied in his testimony at the trial. Did the prosecutor exceed permissible bounds in making this argument? We think not under the facts of this case. That appellant may not have told the truth was a permissible inference from the evidence. If the jury believed the state's witnesses, they could disbelieve the defendant's testimony. Such an inference could be drawn from the evidence and did not amount to a personal opinion by the prosecutor in his jury argument. See, Moore v. State, 222 Ga. 748 (152 SE2d 570) (1966); Manning v. State, 123 Ga. App. 844 (182 SE2d 690). See, also Broznack v. State, 109 Ga. 514 (35 S.E. 123) (1899). What the law condemns is "the injection into the argument of extrinsic and prejudicial matters which have no basis in the evidence." Floyd v. State, 143 Ga. 286 (84 S.E. 971) (1915). See also Walker v. State, 232 Ga. 33 (205 SE2d 260) (1974). This claim of error is without merit.
The second alleged error is the reference by the prosecutor in his argument to the testimony in evidence that appellant upon being taken downtown, booked, and advised of his constitutional rights asked for an attorney. No objection was made to the introduction of this evidence at the trial. The prosecutor argued this fact to the jury in closing argument after the defense in argument first made a point of the fact that the prosecution's witness, Coley, had refused to talk to the police until he had talked *825 to an attorney. Defendant moved for a mistrial when the prosecutor made this argument. Appellant contends that while the testimony of the state's witness, Coley, may be impeached because of his assertion of his constitutional rights, the same rule does not apply to a defendant on trial because he is clothed with greater constitutional protection than a witness. The argument is that commenting on the defendant's insistence on his constitutional right to remain silent or to have an attorney upon being placed in custody creates an inference of the defendant's guilt in the minds of the jury.
The Supreme Court of the United States has not given definitive guidance on this precise question or the closely related constitutional issue of the use of prior silence as an inconsistency to impeach the testimony of a defendant. That court has held that a defendant who takes the stand is subject to impeachment. Raffel v. United States, 271 U.S. 494. In Harris v. New York, 401 U.S. 222 (1971) the prosecution was permitted to use an otherwise inadmissible statement to impeach the defendant's credibility. In Grunewald v. United States, 353 U.S. 391 (1957), the court found on the facts in that case that invocation of the Fifth Amendment during grand jury testimony was not probative of guilt and was not inconsistent with defendant's testimony at trial.
Relying on Grunewald and the "basic rule of evidence" that statements must be inconsistent before they can be used to impeach a witness' credibility, the court found, in United States v. Hale, ___ U. S. ___ (95 SC 2183, 45 LE2d 99), that the government failed to show any probative value in silence at the police station as impeaching later testimony at trial. However, the court declined to reach the constitutional issue. Compare an earlier Fifth Circuit case which permitted impeachment by silence up until trial where the defendant claimed a coercion defense at trial. United States v. Ramirez, 441 F2d 950 (5th Cir., 1971).
This problem most often can arise in a factual situation in which the defendant takes the stand as a witness to present either an alibi or an explanation of self-defense which he has never mentioned to the police. *826 The prosecutor then comments on that fact with the implication that the story was recently fabricated by the defendant. If the comments are intended to be probative of guilt, they are clearly impermissible. Gillison v. United States, 399 F2d 586 (D.C. Cir., 1968); People v. Wright, 182 Col. 87 (511 P2d 460) (1973); Commonwealth v. Stafford, 450 Pa. 252 (299 A2d 590) (1973).
Since the Supreme Court chose to base Hale on its supervisory power over lower federal courts, it is unclear how state courts that have decided the question would now decide the same issue. In Kansas, it is permissible to impeach defendant if his silence on arrest is inconsistent with his trial testimony. State v. Bly, 215 Kan. 168 (523 P2d 397) (1974). In Virginia, however, it is error for the prosecutor to use the assertion of the privilege against self-incrimination either "to discredit or convict the person who asserted it." Reid v. Commonwealth, 213 Va. 790 (195 SE2d 866) (1973). The Michigan Supreme Court would only allow the use of silence upon arrest as impeachment of defendant's direct assertion that he did make a statement on arrest. See People v. Bobo, 390 Mich. 355 (212 NW2d 190) (1973).
We have found no case in Georgia dealing with the specific issue presented for decision here. In the present case, the defense made no objection to the evidence later argued by the prosecutor at trial and the defense repeatedly referred to the fact that the state's witness, Coley, refused to talk to anyone until he had spoken to his attorney. Under these circumstances, in our opinion, there was no inference of guilt to be drawn by the jury from defendant's earlier insistence upon an attorney. Instead, the logical inference would be that since the witness, Coley, did the same thing, it was unimportant and irrelevant to the testimony given by them at the trial. While such an argument in other circumstances by a prosecutor might cause problems of constitutional dimensions, we do not believe the facts of the present case bring it to this level of concern. Therefore, we conclude that, even if the argument objected to was erroneously permitted, it must be considered harmless under the facts of this case.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1378723/ | 234 Ga. 859 (1975)
218 S.E.2d 573
WILSON
v.
HOPPER.
30048.
Supreme Court of Georgia.
Submitted June 17, 1975.
Decided September 2, 1975.
Melvin Wilson, Jr., pro se.
Arthur K. Bolton, Attorney General, B Dean Grindle, Jr., Assistant Attorney General, for appellee.
INGRAM, Justice.
Melvin Wilson, Jr. appeals from an order of the Superior Court of Tattnall County denying habeas corpus relief to him. Appellant was tried in the Superior Court of Richmond County in March, 1971, for the possession of heroin and for the sale of heroin. The jury returned a verdict of guilty on both offenses and appellant was sentenced to three years imprisonment for possession of heroin and 10 years imprisonment for the sale of heroin with the sentences to run consecutively. On direct appeal, the convictions and sentences were affirmed. Wilson v. State, 126 Ga. App. 145 (190 SE2d 128) (1972).
Appellant filed the habeas corpus action, from which this appeal is taken, in 1974. In his petition, appellant alleged (1) that he was denied a preliminary hearing; (2) that he was denied the right to be confronted by the witnesses used against him, i.e., the informer, Willie Davis, to whom appellant was accused of selling the heroin; (3) that he was convicted of included offenses; (4) that his appellate rights were abridged because he was never advised of his right to appeal and because his conviction was appealed without his knowledge; (5) that he was denied the effective assistance of counsel because his trial counsel failed to file a timely motion to suppress the heroin seized by the police at the apartment where appellant was arrested; and (6) that the trial court erred in charging an incorrect definition of sale to the jury. Appellant enumerates as error the habeas court's rulings adverse to him on each of the allegations of his petition. We have examined each of these contentions and find them to be without merit.
The transcript of appellant's trial, which was introduced into evidence at the habeas hearing, was relied upon by the trial court in resolving several of the issues raised by appellant in his petition. The evidence adduced at appellant's criminal trial discloses that for about three weeks prior to appellant's arrest the apartment where he resided was under surveillance by the police. During this period the police observed that the apartment was frequented by persons known to the police *860 as users of narcotics. On December 8, 1970, the police sent an informer to the apartment instructing him to attempt to purchase narcotics there. The informer complied with his instructions and returned to the police with two "decks" of heroin which he stated he had obtained from appellant. On the basis of this purchase, the police obtained a search warrant for the apartment.
On December 12th and 13th the police utilized the services of another informer, identified at trial as Willie Lee Davis, a soldier at Fort Jackson, in order to effect another purchase at appellant's apartment. Davis was not called as a witness at the trial. Instead, police officers testified that immediately preceding Davis' entry into the apartment he was given approximately $75 in marked currency and was searched in order to verify that he did not have any drugs on his person. The officers observed Davis from the time he left the unmarked police car until he was admitted to the apartment, where appellant was residing at the time. A short time later, Davis emerged from the apartment and walked to the nearby police car where he delivered to the officers 15 "decks" of heroin.
The police then went to the apartment and executed the search warrant. Inside the apartment the officers found appellant and two women. Appellant was searched and he was found to have on his person $67 of the marked currency. The officers also discovered in one of the bedrooms 95 "decks" of heroin taped to the back of record album covers.
At appellant's subsequent trial, defense counsel did not interpose any objection to the testimony about the heroin found in the apartment or the circumstantial evidence of the heroin purchase. Neither did counsel file a pre-trial motion to suppress the evidence. However, when the state offered the heroin in evidence at the close of its case, defense counsel objected on the grounds that "no search warrant [has] been offered in evidence to justify the search." The court overruled the objection, stating, "[w]ell, he said he had a search warrant, I'll leave it in."
On appeal from the convictions, the Court of Appeals affirmed the above ruling by the trial court and held that,
*861 "[w]hether we regard the facts here as being a waiver under the rulings of the Lane, Gilmore and Bissel cases or a matter for the court's discretion, the trial judge did not err in declining to require the State to submit the original search warrant which served as the basis for the raid when this point was delayed until the State had completed its case." Wilson v. State, supra, at 147. The search warrant was not introduced into evidence at the trial, and it was not introduced into evidence at the habeas corpus hearing.
I.
Preliminary Hearing.
Appellant contends that he was denied a preliminary hearing. The majority decisions of this court hold that such a claim is not a valid ground for a petition for writ of habeas corpus. Allen v. Caldwell, 231 Ga. 442 (1) (202 SE2d 35) (1973); Phillips v. Stynchcombe, 231 Ga. 430, 432 (202 SE2d 26) (1973); see, also, State v. Houston, 234 Ga. 721. Additionally, there is no evidence in this case that indicates appellant ever requested, and was actually denied, a commitment hearing. We find no error here.
II.
Confrontation.
Appellant contends that he was denied the right to confront his accuser, Willie Davis. It is apparent from the transcript of the criminal trial that the evidence did not present a confrontation issue. Davis was not called as a witness during the trial, and the trial court sustained defense counsel's objections in every instance where they were interposed to prevent police officers from testifying about statements made by Davis. The state relied upon circumstantial evidence to establish the offense of the sale of heroin by appellant to Davis.
Davis, however, was a "decoy," as that term is defined in Georgia cases, because, as the purchaser in an illegal sale of contraband, he was a material witness to the offense and his testimony would have been pertinent to appellant's defense of entrapment. Smallwood v. State, 95 Ga. App. 766 (1) (98 SE2d 602) (1957); Roddenberry v. State, 90 Ga. App. 66 (82 SE2d 40) (1954); Crosby v. State, 90 Ga. App. 63 (82 SE2d 38) (1954); By disclosing Davis' identify to appellant, the state fulfilled its obligation in *862 such circumstances. Roviaro v. United States, 353 U.S. 53 (1957); Smallwood v. State, supra; Roddenberry v. State, supra; and, Crosby v. State, supra. Consequently, this enumeration of error is without merit.
III.
Included Offenses.
Appellant argues that the offense of possession of heroin is included in the offense of the sale of heroin, and therefore his conviction of possession violates the Double Jeopardy Clauses of the United States and Georgia Constitutions as well as Code Ann. §§ 26-505 and 26-506. This contention is without merit. As a matter of law, the crime of illegal possession of heroin is not included in the crime of illegal sale of heroin. See State v. Estevez, 232 Ga. 316, 320 (206 SE2d 475) (1974). In contrast to the evidence in State v. Estevez, supra, the evidence relied upon by the state in this case to prove possession, to wit, the heroin found taped to the record album covers, was not the same evidence (heroin) used to prove the illegal sale. Consequently, the crime of illegal possession was not included in the crime of illegal sale as a matter of fact. See Code Ann. § 26-505.
IV.
Charge to the Jury.
Count 2 of the indictment charged appellant with the sale of heroin. Appellant now contends that it was error for the trial court to charge the jury that, "sale under this Code section includes barter, exchange, gift or offer therefor . . ." At appellant's trial there was not a fatal variance between the allegations in the indictment and the proof adduced by the state. The state's evidence could be interpreted only as a sale by appellant to the "decoy" Davis. Thus, any error which the trial court may have committed in charging the language of the statute irrelevant to the facts of appellant's case was harmless.
V.
Effectiveness of Counsel.
Appellant contends that he was denied the effective assistance of trial counsel because his counsel failed to file a timely motion to suppress the fruits of the search of the apartment where appellant resided. The basis of this contention is appellant's assertion that the search was *863 conducted without a warrant and in violation of his Fourth Amendment rights.
Ironically, appellant also argues in his brief that he was not the lessee of the apartment and had "no control" or possessory power over the narcotics seized by the officers in the apartment. Thus, he raises the question whether he actually has standing to complain of an alleged warrantless search. However, we will examine this enumeration of error on its merits since evidence at appellant's trial indicates the apartment was his residence.
If appellant were aggrieved by an unconstitutional search and seizure, he is entitled to habeas relief on that basis alone (see, Morgan v. Kiff, 230 Ga. 277 (196 SE2d 445) (1973)), and the effectiveness of his trial counsel would be questionable. See Pitts v. Glass, 231 Ga. 638 (203 SE2d 515) (1974). But, the burden was on appellant in this habeas proceeding to prove that this alleged violation of his constitutional rights did, in fact, occur. Jones v. Leverette, 230 Ga. 310, 311 (196 SE2d 885) (1973); Sims v. Smith, 228 Ga. 136, 137 (184 SE2d 347) (1971).
Appellant testified at the habeas hearing that the search was conducted without a warrant. The police officers testified at appellant's earlier trial that they did have a search warrant. Furthermore, the evidence indicated that the search warrant was based upon probable cause and that it was executed within the time prescribed by Code Ann. § 27-306. The habeas court was authorized to give greater credence to the transcript of evidence at appellant's trial than to his testimony at the subsequent habeas hearing in resolving disputed issues of fact. See, Anglin v. Caldwell, 227 Ga. 584 (182 SE2d 120) (1971).
Since there is evidence to support the finding of the habeas court that the police searched the apartment pursuant to a valid search warrant, that finding will not be disturbed on appeal. Williams v. Caldwell, 229 Ga. 453 (1) (192 SE2d 378) (1972). Appellant has not shown that he was aggrieved by an illegal search and seizure. Thus he has not carried the burden of proving that he did not receive the reasonably effective assistance of counsel at his trial. This enumeration of error is without merit.
*864 VI.
Abridgment of Appellant's Rights.
Appellant's last enumeration of error is that he was denied the right to appeal his convictions. This alleged error involves appellant's allegation and testimony that he was never made aware of his right to appeal and that the appeal taken from his convictions was done without his knowledge. The only prejudice appellant claims to have suffered from this allegedly unauthorized appeal is that the errors enumerated in the appeal did not include the contentions which he now urges on habeas corpus.
Since each of appellant's contentions in his application for a writ of habeas corpus has been found to be without merit, it follows that appellant has not suffered any prejudice from the failure to assert these alleged errors in the direct appeal from his convictions. The judgment of the trial court denying habeas corpus relief to appellant and remanding him to custody will be affirmed.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1378725/ | 476 F. Supp. 252 (1979)
TOWN OF EAST TROY, Plaintiff,
v.
SOO LINE RAILROAD COMPANY, Defendant.
No. 75-C-122.
United States District Court, E. D. Wisconsin.
September 5, 1979.
*253 John P. Graves, Jr., Rockford, Ill., for plaintiff.
Reginald W. Nelson, Whyte & Hirschboeck, Milwaukee, Wis., for defendant.
DECISION and ORDER
MYRON L. GORDON, District Judge.
This action is before me on the alternative post-trial motions of the defendant Soo Line Railroad for judgment notwithstanding the verdict, for an alteration in the judgment, and for a new trial. All of these motions will be denied.
This action arose out of the derailment of one of the railroad's trains in the town of East Troy in July, 1974. The plaintiffs alleged that the derailment caused carbolic acid manufactured by Georgia Pacific to leak from Soo Line's railway tanker car, resulting in the contamination of the water wells and septic systems of many individuals residing in the Lake Beulah area of the town.
Prior to trial, the individual plaintiffs settled their claims and the defendant Georgia Pacific was dismissed from the suit, leaving the town and the railroad as the only parties at trial. The town's allegations included a claim that the railroad was negligent in several respects. Such negligence allegedly produced a public nuisance in the form of water pollution and septic system contamination to the prejudice of the "health, comfort, safety and property of certain of the residents, school children, property owners, taxpayers, tourists and guests of the plaintiff town . . .." Subsequent to the derailment and consequent contamination, the town undertook the function of furnishing water to residents of the Lake Beulah area who had previously obtained water from private wells. In this suit the town sought in excess of 1 million dollars in damages for the cost of the new water system and for other miscellaneous expenses it incurred as a result of the acid spill.
Following nine days of trial, the jury found that the railroad was negligent with regard to the operation of the train and the maintenance of the tracks in question and that this negligence was a proximate cause of a public nuisance. The jury also found that $500,000 would reasonably compensate the town for "any damages it reasonably incurred as a result of the derailment and phenol acid spill." Judgment in that amount was entered in favor of the plaintiff on June 14, 1979.
I. MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT
The defendant's motion for judgment notwithstanding the verdict is based on two contentions: (1) that any expenses incurred by the plaintiff do not constitute injuries peculiar to the town of East Troy within the meaning of § 823.01, Wis.Stats., and (2) that the entire amount of expenses incurred by the town was covered by a grant made to the town by the United States Department of Housing and Urban Development. In connection with the railroad's pretrial motions, I considered and rejected these *254 arguments in a written decision and order dated April 5, 1979. Since I find no reason to change the conclusion reached in that decision, the railroad's motion for judgment notwithstanding the verdict will be denied.
I note that subsequent to my decision of April 5, 1979, a decision has been rendered which supports my conclusion that the collateral source doctrine applies to funds given to a plaintiff by a government agency. In Roundhouse v. Owens-Illinois, Inc., 604 F.2d 990 (6th Cir. 1979), the plaintiff fish farmers were forced to destroy sick fish sold to them by the defendant. The court held that compensation received by the plaintiffs from the state of Michigan did not justify reducing the plaintiffs' recovery from the defendant, since under the collateral source doctrine, money received from an independent source will not diminish recovery from a wrongdoer.
II. MOTION TO ALTER JUDGMENT
The defendant railroad has moved the court to change the answer to question 6 of the special verdict by striking the answer $500,000 and inserting instead an amount not in excess of $125,000. The railroad contends that the plaintiff failed to introduce sufficient evidence to justify greater damages and that as a result, the jury's answer was based on speculation and conjecture. I disagree.
The spilling of a dangerous acid which contaminated the water table in East Troy required that the town take difficult remedial action. In the course of taking such action, the town retained the services of a myriad of professionals: engineers, planners, excavators, chemists, attorneys, geologists, plumbers and hydrogeologists, among others.
With regard to the compensation of these people as well as other expenses incurred by the town, the plaintiff introduced a substantial quantum of evidence at trial. The plaintiff introduced bills, cancelled checks demonstrating the payment of those bills, and itemized statements indicating the type of work done by different people, the amount of time spent on such work, and the rate of compensation charged for the work. One of the engineers who spent time working for the town testified as to the reasonableness of the fees he charged, which were the highest of any charged by engineers working on the acid spill. Finally, several witnesses testified as to the remedial steps that were taken by the town. The railroad did not introduce any evidence indicating that the professional fees in this case were unreasonable. In my opinion, this evidence was sufficient to allow the jury to make a rational judgment as to the reasonableness of the expenses incurred by the town. Moreover, I find that the figure of $500,000 arrived at by the jury was adequately supported by the evidence.
The defendants rely on two arguments in challenging the jury's findings as to damages. They briefly argue that at least one of the engineering firms retained by the town made recommendations of action which either were not followed or were ultimately abandoned. On this basis, the defendant suggests that some of the expenses incurred by the plaintiff were "unnecessary." The damage to East Troy's water supply which the jury found resulted from the railroad's negligence required remedial action, the course of which was not clear even to experts. The town was entitled to compensation for expenses incurred as a result of reasonable remedial steps, even if by hind-sight some of those steps may have been missteps. Since the railroad has not demonstrated that any of the approaches taken by the town or its experts were unreasonable, the town is entitled to the compensation it received from the jury.
The railroad also argues that Wisconsin law requires that the reasonableness of the fees charged by professionals retained by the town could not be established except by expert testimony as to that subject. The railroad's position is supported by neither law nor logic. None of the cases relied on by the defendant overturned a jury's finding as to damages which was based on reasonable evidence. In two of the cases, the Wisconsin supreme court overturned *255 jury verdicts in which the jury had apparently ignored the uncontradicted testimony of experts regarding the value of professional services. Estate of Watzek, 211 Wis. 50, 247 N.W. 330 (1933); Brust v. First National Bank, 184 Wis. 15, 198 N.W. 749 (1924). In the third case, a finding by the trial judge of the value of professional services was overturned by the supreme court when it found no evidence in the record to support the trial judge's finding. Tullgren v. Karger, 173 Wis. 288, 181 N.W. 232 (1921).
None of the foregoing cases requires the conclusion that a jury finding regarding the value of professional services, which is in fact supported by substantial evidence, must be overturned simply because an expert has not testified regarding the reasonableness of the fees charged by each professional. Moreover, the defendant's contention regarding Wisconsin law is refuted by the case of Gerbing v. McDonald, 201 Wis. 214, 229 N.W. 860 (1930), in which the court stated:
"Error is claimed because the court permitted the jury to assess doctor's bills as an element of plaintiff's damages in the absence of evidence of the reasonable value or necessity of the services charged for. The weight of authority seems to be that where the character of the injury and of the treatment and the services of the physician and the amount paid for the service are fully proved, this constitutes evidence from which the jury may allow damages although there is no proof of either necessity or the reasonable value of the services. (Citations omitted). Mere proof of injury and employment of and treatment by a physician entitles the jury to make an award for the service, in the absence of evidence of necessity for or the value of the service. (Citations omitted)." Id. at 218-19, 229 N.W. at 862.
While the fees in the instant case are significantly higher than those in Gerbing, they are substantiated by the record and "do not appear beyond the bounds of reason." Id.
III. MOTION FOR A NEW TRIAL
The railroad has moved for a new trial on a number of grounds with which I will deal separately.
A. Damages
The railroad urges that a new trial be granted because the damages found by the jury are allegedly "excessive, unsupported by requisite evidence, and contrary to the weight of the evidence." For the reasons stated above, I find that the jury's finding as to damages was reasonable in light of the evidence, and thus a new trial is not justified on this ground.
B. Jury Instructions
The railroad also claims that its motion for a new trial should be granted because of errors in the jury instructions. The first such instruction dealt with the doctrine of res ipsa loquitur. The railroad, while admitting that the doctrine is generally applicable to derailment cases, maintains that the court erred in giving an instruction based on that doctrine, because there was direct evidence of the railroad's negligence in the record. In Utica Mutual Insurance Co. v. Ripon Cooperative, 50 Wis. 2d 431, 439, 184 N.W.2d 65, (1971), the court discussed the factual context in which giving an instruction on res ipsa loquitur is proper:
"When both parties have rested and the case is ready for the jury, either of two conditions may exist which would render it error to give the res ipsa loquitur instruction. The plaintiff may have proved too little or he may have proved too much. For example, if, on the one hand, there has been no evidence which would remove the causation question from the realm of conjecture and place it within the realm of reasonable inferences, then the plaintiff has proved too little, and the doctrine of res ipsa loquitur is of no avail, and the case must be dismissed.
"On the other hand, it is possible that the plaintiff's evidence of negligence in a given case has been so substantial that it provides a full and complete explanation of the event, if the jury chooses to accept *256 it. In that case, causation is no longer a mystery, and the res ipsa loquitur instruction would be superfluous and erroneous. Fehrman v. Smirl, (1964), 25 Wis. 2d 645, 131 N.W.2d 314; Puls v. St. Vincent Hospital (1967), 36 Wis. 2d 679, 154 N.W.2d 308; and Knief v. Sargent, supra, [40 Wis. 2d 4, 6, 161 N.W.2d 232].
"There is, of course, a middle ground between these two extremes where the giving of the instruction would be proper. Prosser describes that situation as follows:
`. . . the introduction of some evidence which tends to show specific acts of negligence on the part of the defendant, but which does not purport to furnish a full and complete explanation of the occurrence does not destroy the inferences which are consistent with the evidence, and so does not deprive the plaintiff of the benefit of res ipsa loquitur.' Prosser, Law of Torts (Hornbook Series) (3d ed.), ch. 6, p. 236, sec. 40."
In my opinion, the evidence introduced by the plaintiff at trial fell into the "middle ground" discussed above, thereby entitling the town to the res ipsa loquitur instruction. The plaintiff's expert, Paul Jones, testified as to a number of acts done by the railroad which could have been fairly construed by the jury to have been negligent or even wilful. However, Mr. Jones' testimony neither established which of those acts, if any, actually led to the derailment of the train in question nor precluded the possibility that other acts on the part of the railroad might have caused the derailment. Thus, while I found that the plaintiff had submitted sufficient evidence to remove the question of causal negligence from the "realm of conjecture," since that evidence did not completely explain the reason for the derailment, the instruction on res ipsa loquitur was appropriate. Lee v. Milwaukee Gas Light Co., 20 Wis. 2d 333, 122 N.W.2d 374 (1963).
The railroad also challenges instructions given regarding the definition of public nuisance, the police power of a town board, the right of a town to recover damages from nuisance, and the duty of the town to take steps to obviate injury. I considered these issues both at trial and before trial on the railroad's motion for summary judgment, and I find no reason now to change my conclusion regarding them.
C. Evidentiary Rulings
The railroad argues that various types of evidence were improperly excluded at trial. As to the testimony of experts, my decision and order of March 23, 1979, explains my rationale for barring the testimony of experts whose identities as experts were not revealed until after the discovery deadline had passed. The court's requirement regarding the disclosure of experts was applied to both parties; one of the plaintiff's experts as well as several of the railroad's experts were barred from testifying as a result of the court's order of March 23, 1979. I find no merit in the railroad's other contentions regarding the admissibility of evidence at trial.
D. Sufficiency of the Evidence With Regard to Public Nuisance
The jury was instructed that for a public nuisance to exist a large number of people must be affected. State v. Michels Pipeline Construction Co., 63 Wis. 2d 278, 217 N.W.2d 339 (1974). The evidence indicates that hundreds of people were threatened by the spilling of the phenol acid that resulted from the train derailment, and thus the jury's finding of a public nuisance is supported by the evidence.
F. Depositions
The railroad maintains that the plaintiff read portions of certain depositions out of context and thereby prejudicially distorted the testimony contained therein. Since the railroad's attorneys had in each instance the opportunity to read to the jury those portions of the depositions in question which they felt were pertinent, I do not believe that the plaintiff's use of those depositions resulted in any unfairness to the railroad.
*257 IV. CONCLUSION
Therefore, IT IS ORDERED that the alternative motions of the Soo Line Railroad Company for judgment notwithstanding the verdict, an order altering the judgment or for a new trial be and hereby are denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1378784/ | 135 Ga. App. 584 (1975)
218 S.E.2d 297
DAVIS
v.
THE STATE.
50741.
Court of Appeals of Georgia.
Submitted June 2, 1975.
Decided September 2, 1975.
Cathey & Strain, Edward E. Strain, III, Andrew J. Hill, Jr., for appellant.
Clete D. Johnson, District Attorney, for appellee.
MARSHALL, Judge.
Appellant Davis was tried and convicted upon an indictment alleging an aggravated assault in that Davis attacked one Edwards with a certain pistol, a deadly weapon, about the head causing injury. Following conviction, the trial court sentenced Davis to serve three years in the penitentiary. From the judgment and conviction, Davis appeals, enumerating some eight errors. Held:
1. The first three enumerations are on the general grounds and since appellant has not pursued these three enumerations in his brief and argument in support thereof, these first three enumerations have been waived and abandoned. Rules of the Court of Appeals of the State of Georgia, Rule 18 (c) (2); Manning v. State, 123 Ga. App. 844 (182 SE2d 690).
2. The fourth enumeration complains that the trial court erred in allowing into evidence testimony concerning other crimes allegedly committed by appellant and comments on such other crimes. This situation arose as follows: When the trial court asked the district attorney to call the next case, the appellant's case was called. Before the jury had been selected but apparently while they were in the courtroom the trial court reminded the appellant the case had been put off before in order to enable him to obtain the services of an attorney. Though appellant apparently wished to proceed pro se, the court arranged to have an attorney assist him strike a jury. At this point the appellant, before conferring with an attorney, stated: "Your honor, I don't have my witnesses here on this particular case. I have them ready on some of the other cases." The district attorney added this comment for the court: "Your honor, he has several cases but I would prefer to try this case first." Thereafter, the court directed the case to proceed with this comment. "Well we can't keep putting these cases off forever. I will ask Mr. Harper to help you strike the jury." The appellant conferred with the attorney in the courtroom and that attorney, Mr. Harper, represented appellant throughout the remainder of the trial, commencing with the striking *585 of the jury. Subsequently, upon cross examination of the alleged victim's wife, Mrs. Edwards, counsel for appellant asked Mrs. Edwards: "Has he [the victim, Edwards] ever gone to Federal court and pled guilty to knocking down poles on Highway 29?" The witness' answer to that question was: "Yes, and Mr. Davis was out there being tried when he was." No objection was entered to the unresponsive portion of the answer.
Appellant contends the evidence of other crimes brought to the jury's attention both before and during appellant's trial falls squarely within the long-standing prohibition against the introduction of such evidence. Bacon v. State, 209 Ga. 261 (71 SE2d 615); Hodges v. State, 85 Ga. App. 617, 619, 623-626 (70 SE2d 48).
Appellant misconceives the purpose of the rule invoked. The reference to "other cases" was first interjected into the case by appellant as an unsolicited statement. Thereafter responses to appellant's initial comment were made by the district attorney and the court. Furthermore, these comments were made prior to the selection of the jury that ultimately returned findings of guilty. The rule invoked by appellant generally states that on a prosecution for a particular crime, evidence which shows or tends to show that the accused has committed another crime wholly distinct, independent and separate from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible, unless there be shown some logical connection between the two from which it can be said that proof of the one tends to establish the other. Bacon v. State, supra. The fallacy in appellant's position is that the comments by appellant, the district attorney and the court prior to trial and by Mrs. Edwards during the trial at no time mentioned another "crime." They mentioned other "cases." Whether these were offenses to be tried or in which acquittals occurred or might occur, whether these "cases" were wholly distinct, independent or separate from the case upon trial, was never even intimated much less proven. We conceive the first comments before trial to be no more than a colloquy between appellant, counsel and the court. The court's comment was addressed to appellant and the comments of appellant and the district *586 attorney were addressed to the court. Obviously no affirmative effort was made to influence the jurors. The comments made by the parties were all pertinent to the orderly processing of the case, and we find that no reversible error appears. Hodges v. State, supra. Moreover, if appellant or his counsel thought such comments could prejudice the potential members of the jury, appellant had the opportunity of identifying such veniremen and removing them by challenge. Since no error is raised as to the jury selected, we can and will assume appellant was satisfied that the jury had not been prejudiced. Manning v. State, supra; Cochran v. State, 113 Ga. 736 (39 SE 337). The unresponsive answer uttered by Mrs. Edwards, in addition to not identifying a specific crime, was not objected to; no motion to strike was made nor was any further reference made as to that answer. "A party can not during the trial ignore what he thinks to be an injustice, take his chance on a favorable verdict, and complain later." Joyner v. State, 208 Ga. 435, 438 (67 SE2d 221); Moore v. State, 222 Ga. 748, 755 (152 SE2d 570); Foster v. State, 230 Ga. 186 (1) (195 SE2d 902). Accordingly, we find the fourth enumeration of error to be without merit.
3. Appellant's fifth enumeration alleges he was never identified in open court as being the perpetrator of the alleged crime. Contrary to his assertion, all the prosecution witnesses stated the appellant was the owner of the Davis Trailer Court, lived in a house at the entry road to the area and on the evening in question was involved in an encounter with Edwards. Appellant identified himself as C. E. Davis who rented house trailers; he lived in a house on the entry road to the area wherein the rental trailers were located; and that he had an encounter with Edwards on the same evening in question. There can be no question that the totality of the evidence fully identified appellant as the alleged perpetrator of an aggravated assault upon Edwards. There is no merit in enumeration of error number 5. Moughon v. State, 57 Ga. 102, 104-105; Johnson v. State, 73 Ga. 107.
4. The sixth enumeration alleges an error in the trial court's refusal to grant a continuance to obtain a *587 witness. Appellant, during his testimony in chief asserted that one Bowen was seated in appellant's automobile and was an eyewitness to the entire incident. On the first day of trial, appellant's counsel asked the court for a delay in order to secure the presence and testimony of this witness. The court recessed until the next day in order to obtain Bowen's presence, who was locally available. It developed that Bowen was injured in a fight that night and was physically unable to attend the trial the next day, the second day of trial. Counsel for appellant then moved for a continuance until the witness was able to attend. At no time did counsel indicate when the witness would be available or the nature of the witness' testimony or that it was indispensable to the defense. The evidence developed at trial indicated on behalf of the prosecution an unprovoked pistol whipping. Davis' version was that the witness injured himself while attempting to attack appellant. At no time did appellant's counsel indicate which version of the incident Bowen would support.
There are eight statutory requirements each of which must be met before an appellate court may review a trial judge's discretion in denying a motion for a continuance based upon the absence of a witness. Ga. L. 1959, p. 342 (Code Ann. § 81-1410); Beasley v. State, 115 Ga. App. 827 (156 SE2d 128). Appellant's motion for a continuance failed to indicate the materiality of the absent witness' testimony; that the absent witness' testimony could be procured at the next term of court or at any other time certain, that the continuance was not for purposes of delay but to obtain the essential testimony; and the facts expected to be proved. There was no abuse of discretion here where half of the statutory requirements were not met. Carroll v. Crawford, 218 Ga. 635 (129 SE2d 865); Wallace v. State, 134 Ga. App. 708 (215 SE2d 703).
5. In his seventh enumeration of error, appellant complains that his rights against self-incrimination were violated. The transcript disclosed a deputy sheriff received a call from the sheriff's office that there had been some trouble at Davis' Trailer Court. The deputy proceeded to the trailer court and determined that appellant had phoned the sheriff to report some trouble. When the deputy arrived he was not aware of what had *588 happened. He asked the appellant: "What is going on down here?" Appellant allegedly then said: "Marty Edwards came in awhile ago. Me and him got into it." The deputy asked what had happened. Appellant then allegedly answered: "I took a wrench and beat the hell out of him."
Appellant now contends, as he did at trial, that the deputy was under an obligation to advise him of his rights against self-incrimination. Since admittedly the deputy did not advise appellant of those rights, appellant asserts the trial court committed prejudicial error in overruling his objection and allowing the testimony. Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694).
Again appellant misconceives the application of the constitutional protection. The deputy was making an on-the-scene investigation. He had no suspects and was merely trying to ascertain what had happened. Appellant was not in custody nor was he "interrogated." Under these facts appellant made a non-custodial, voluntary statement which is and always has been admissible against the maker. Carnes v. State, 115 Ga. App. 387, 391 (154 SE2d 781).
6. In the eighth and last enumeration of error, appellant complains the trial court erred in refusing to instruct upon the lesser offense of simple battery. During his testimony appellant maintained that the victim, Edwards, had initiated an assault upon Davis. After Edwards had allegedly twice struck his head on hard objects while trying to grapple with Davis, and was in almost a comatose condition, Davis asserted that only at that point did he grab Edwards by the legs to stop further assaults. Davis further denied using any force to defend himself or to have been possessed of any kind of weapon during these acts by Edwards. The theory of the prosecution was that Davis struck Edwards repeatedly about the head with a pistol and that the assault was over when Edwards was knocked to the ground and was lying prostrate in an unconscious or semi-comatose condition. Its theory never embraced any subsequent action by Davis. On the other hand, Davis denied the aggravated assault but admitted he had taken Edwards by the legs after Edwards was on the ground. Under these facts, as *589 stated by the trial judge and a position with which we agree, the appellant was either guilty as charged or not guilty. The lesser offense of simple battery was not in issue so as to require instructions. There was no error in refusing to instruct on the lesser offense of simple battery, that offense not being reasonably raised by the evidence. Jenkins v. State, 153 Ga. 305 (111 SE 915); Patterson v. State, 199 Ga. 773 (35 SE2d 504).
Judgment affirmed. Bell, C. J., and Webb, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1378789/ | 235 Ga. 95 (1975)
218 S.E.2d 835
BUTLER
v.
THE STATE. ROBINSON
v.
THE STATE.
30163, 30165.
Supreme Court of Georgia.
Submitted July 22, 1975.
Decided September 11, 1975.
Marion L. Bridges, for appellants.
W. J. Forehand, District Attorney, Arthur K. Bolton, Attorney General, G. Stephen Parker, Assistant Attorney General, Lois F. Oakley, Staff Assistant Attorney General, *100 for appellee.
UNDERCOFLER, Presiding Justice.
Calvin Butler, William "Billy" Mitchell, and James Alexander Robinson were indicted for the armed robbery of Mrs. James Carr. Butler and Robinson were separately tried, convicted and sentenced to life imprisonment. William "Billy" Mitchell also was indicted for the murder of Christopher Carr which occurred during the armed robbery. Mitchell pled guilty and was sentenced to death. His sentence was upheld by this court. Mitchell v. State, 234 Ga. 160 (214 SE2d 900). These appeals are from the armed robbery convictions of Butler and Robinson.
*96 The evidence shows that Mitchell had met Butler and Robinson soon after his completion of a five-year sentence in Florida for attempted robbery about three months prior to the robbery. The day before the robbery and murder the three of them decided to leave Jacksonville, Florida, and go to Los Angeles, California. They left Jacksonville in Mitchell's car. Butler testified that he did not have over $25 at the time. Robinson did not have any money but Butler owed him $10. Mitchell planned to get some money from relatives at Folkston, Georgia, en route but was unsuccessful. They drove on to Albany, Georgia, and went to the bus station to wash. Mitchell left the trio and returned a short time later and Butler testified that he said, "I got four dollars." At Robinson's trial, Robinson testified that when Mitchell rejoined them at the bus station he heard him tell Butler that "he had knocked some bitch in the mouth and got four dollars." Butler at that time had only about $3 left of his money and he suggested that they return to Jacksonville. Robinson told the officers that he knew that they did not have any money and were "busted." On their return to Jacksonville they stopped at a truck stop in Sylvester and spent the night in the car. The next morning Butler drove into the City of Sylvester. Mitchell was in the passenger side of the front seat and Robinson was in the back seat asleep. As they passed an IGA convenience store, Mitchell directed Butler to turn around at the next block, drive to the side of the store, and stop in the traffic lane facing the main road on the side of the building where there were no windows. Butler and Robinson both knew that Mitchell had a pistol in his pocket when he went into the store. Butler and Robinson both testified that Mitchell told them he was going into the store to get something to eat and they did not know that he had any intention of committing any crime. However, in his prior statement to the police officers, Butler did not tell them that Mitchell went into the store to get something to eat. Mitchell testified at both trials that neither Butler nor Robinson knew he planned to commit any crimes while in the store. Butler did not have a driver's license and he insisted that Robinson drive the vehicle in Sylvester which he did. Robinson took the driver's seat while the car was parked *97 at the store.
On Sunday morning, August 11, 1974, at 7:00, Mrs. James Carr and her fourteen-year-old son, Christopher Carr, had opened the IGA convenience grocery store for business in Sylvester, Worth County, Georgia. Mitchell walked into the store, pulled a pistol and pointed it at the Carrs, robbed Mrs. Carr of $15 from her purse, took $150 from the cash register, and forced them into the cooler at the back of the store. He threatened to rape Mrs. Carr, forced them to sit down in the cooler, shot the boy in the chest, shot Mrs. Carr in the back of her head and left the cooler to search for valuables. Seconds later Mitchell returned to the cooler and again shot both victims. Mrs. Carr was shot four times but managed to struggle to an adjoining room and telephone for assistance when Mitchell left the cooler.
William Monroe and his seventeen-year-old cousin, Derry Monroe, meanwhile parked their car in front of the store and entered it. William noticed the gold car in which Butler and Robinson were seated near the store. When the boys entered the store, Mitchell was leaning on the counter at the cash register. When the boys passed by Mitchell on their way to the meat counter, Mitchell came up behind them and forced them at gunpoint into the cooler. He robbed William of $6 but Derry told him he did not have any money. The boys saw Mrs. Carr bleeding and crying near the cooler with the telephone in her hand. Mrs. Carr and the boys were forced into the cooler with her son. Mitchell had a gun in each hand at that time. He had found one of the guns while searching the store after the victims were shot. Mitchell fired his gun at the Monroe boys but it misfired and he left the cooler. The victims remained in the cooler for about five minutes until the police arrived.
At 7:20 a. m. the radio dispatcher at the Sylvester Police Department received a call from the telephone operator advising him of Mrs. Carr's report of the robbery and shooting. Within two minutes of the receipt of the call Officer Gordon Young arrived at the store. Officer Young saw the gold car near the store and observed that it bore a Florida license plate, the front passenger side door was open, a young black man (later identified as Butler) was *98 standing beside it, and another heavily bearded black man (later identified as Robinson) was under the wheel. They both looked at him intently as he stopped the patrol car to enter the store, he saw the man who had been standing get into the car and he saw the car speed away heading north. The officer immediately entered the store, not seeing nor hearing anyone inside, but observing a bank bag on the floor, the drawer to the cash register open and a lady's purse open on the checkout counter, he immediately left the store and radioed a message from his patrol car for a lookout for the two men and the gold car with the Florida tag and told the dispatcher what he had discovered at the store. When he returned to the store he found Mrs. Carr and the two Monroe boys emerging from the cooler and saw Christopher Carr lying on the floor of the cooler. Christopher died later that day.
Larry McDonald, a former patrolman with the police department, heard the lookout message on his radio police scanner at his home and proceeded by car to the highway to watch for such a vehicle. The car came by at a speed of forty miles per hour going north and McDonald followed it, taking down its tag number, and observed that the two occupants met the broadcast description. He returned to his home and telephoned the information to the police dispatcher in Sylvester. At 7:25 a. m. the two occupants of the car, Butler and Robinson, were arrested at Ashburn, Georgia. Robinson was driving the vehicle at the time of apprehension. The officer who drove the gold vehicle back to Sylvester testified that it would run "hot and cut out" on him when it was driven about sixty miles per hour and he had to drive about forty to forty five miles per hour to Sylvester.
Butler and Robinson testified that the car belonged to Mitchell and that Mitchell had entered the store to get something to eat, had done the actual shooting, and that they were only waiting on him to return to his car. They said when they heard the shots inside the store Butler said, "That crazy fool has probably killed somebody," and they then left the scene because they did not want to be involved. They testified that they drove Mitchell's car about two blocks and turned around and came back to the scene to see what had happened. They saw Mitchell with a *99 brown paper bag in his hand walking along the sidewalk but Robinson testified that he motioned for them to leave him. This testimony of both appellants conflicts with that of William Monroe and Officer Young who testified that the car in which they were apprehended was stopped in the road by the store when they arrived at the scene.
Mitchell was captured by officers later that morning in Sylvester several blocks from the scene. He had the money he had stolen with him and had Mrs. Carr's black pistol which he found in the store. The murder weapon was found later where Mitchell had thrown it. Held:
1. The appellants contend that the general grounds of the motions for new trial are meritorious. We do not agree. While the recitation of the facts might appear to raise some question as to whether there was proof beyond a reasonable doubt of their participation in the robbery, yet, "the jury is the exclusive arbiter of the weight and credibility to be given the testimony of witnesses and, even in criminal cases, this court may only ascertain whether there is any evidence to support the verdict." Hogan v. State, 221 Ga. 9 (2) (142 SE2d 778); Strong v. State, 232 Ga. 294, 298 (206 SE2d 461). The general grounds of the motions for new trial are without merit.
2. The appellant Robinson contends that the trial court erred in allowing in evidence over his objection a color picture of the murder victim because it would inflame the jury. We do not agree.
The photograph was admissible in evidence. Dixon v. State, 231 Ga. 33 (2) (200 SE2d 138); Hill v. State, 211 Ga. 683 (88 SE2d 145); Thompkins v. State, 222 Ga. 420 (5) (151 SE2d 153); Johnson v. State, 226 Ga. 511 (175 SE2d 840).
Judgments affirmed. All the Justices concur, except Gunter and Hill, JJ., who dissent.
HILL, Justice, dissenting.
This is an armed robbery case.
In Division 2, the court approves the admission into evidence of a photograph (in color) of the victim of a murder. None of the decisions cited by the court holds that in an armed robbery case, photographs of a murder victim are admissible in evidence.
In Thompkins v. State, 222 Ga. 420 (5) (151 SE2d 153), it was held that a photo of the dead victim was admissible in a case of robbery by force and intimidation. However, in that case the victim "went limp" while being held by the defendant. There the court conceded that the photographs of the deceased, taken a week after the crime, were highly prejudicial but relevant to show the location and conditions under which the robbery took place.
Here it is not contended that these defendants ever went into the store or ever saw the deceased. Here there were other photographs of the store, inside and outside.
The other decisions relied on as authority were photos of murder victims in murder cases, photos of robbery victims in robbery cases, or photos of rape victims in rape cases.
It might be argued that these defendants could have been charged with felony murder and thus the photograph of the victim would have been admissible. They were not so charged. Why we do not know, but will presume that the district attorney and grand jury acted properly in not indicting these defendants for felony murder. We should not approve the admission into evidence of this photograph on the basis that if they had been indicted for felony murder, the photo would have been admissible.
I must respectfully dissent. I am authorized to state that Justice Gunter joins in this dissent. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1378792/ | 218 S.E.2d 876 (1975)
27 N.C. App. 254
Richard G. PRUITT, Employee-Plaintiff,
v.
KNIGHT PUBLISHING COMPANY, Employer-Defendant, and
Travelers Insurance Company, Carrier-Defendant.
No. 7526IC405.
Court of Appeals of North Carolina.
October 15, 1975.
*878 Palmer, McMullen, Griffin & Pittman, P. A. by Richard L. Griffin, Charlotte, for plaintiff-appellant.
Spears, Spears, Barnes, Baker & Boles by Alexander H. Barnes, Durham, for defendants-appellees.
BRITT, Judge.
In their brief, defendants contend that prior to his request to the Industrial Commission for a hearing, plaintiff entered into a written settlement agreement with defendants which has not been set aside in the manner authorized by G.S. § 97-17. They further contend that plaintiff did not give notice of appeal from the hearing commissioner to the full commission within the time prescribed by G.S. § 97-85. We do not think the questions raised by these contentions are before us in view of the following stipulation entered into before the hearing commissioner: "The sole question for determination in this case is whether allocation of the disability to plaintiff's back as rated by Dr. Goldner should be prorated, or whether the defendants should bear the entire responsibility for the disability".
It is settled that stipulations duly made constitute judicial admissions binding upon the parties and a party may not thereafter take a position inconsistent therewith. 7 Strong, N.C. Index 2d, Trial, § 6, pp. 262-63. See also Austin v. Hopkins, 227 N.C. 638, 43 S.E.2d 849 (1947), where the court held that the parties having stipulated that the only question involved was the location of the true dividing line between the respective lands, neither party could thereafter raise the question of title. Thus we find no merit in the contentions.
We then come to the real question presented by this appeal: Did the Industrial Commission err in concluding that plaintiff's compensation should be based on the percentage of disability attributable to the injury sustained on 30 November 1972? We answer in the affirmative.
In cases covered by our Workmen's Compensation Act, disability is not a term of art but a creature of statute. G.S. § 97-2(9) provides: "The term `disability' means incapacity because of injury to earn the wages which the employee was receiving at *879 the time of injury in the same or any other employment." Thus we see that disability is defined in terms of a diminution in earning power. It is more than mere physical injury and is markedly different from technical or functional disability. Anderson v. Northwestern Motor Co., 233 N.C. 372, 64 S.E.2d 265 (1951). Our Supreme Court has described disability as the event of being incapacitated from the performance of normal labor. Watkins v. Central Motor Lines, 279 N.C. 132, 181 S.E.2d 588 (1971); Hall v. Chevrolet, Inc., 263 N.C. 569, 139 S.E.2d 857 (1965).
An employer takes his employees as he finds them. Mabe v. North Carolina Granite Corp., 15 N.C.App. 253, 189 S.E.2d 804 (1972). See e. g., Edwards v. Publishing Co., 227 N.C. 184, 191, 41 S.E.2d 592, 594 (1947) (Concurring opinion of Seawell, J.). Each employee brings to the job his own particular set of strengths and weaknesses. That one employee is peculiarly disposed to injury because of an infirmity or disease incurred prior to his employment affords no sound basis for a reduction in the employer's liability. The fact that a person of normal faculties working under the same conditions might not have sustained the same injury to the same degree is immaterial. Plaintiff was putting forth a full day's work for a full day's pay. There is no evidence that plaintiff's capacity to earn in the course of employment at defendant's printing plant was at all impaired by after-effects of the 1961 automobile accident.
The record reveals the 1972 injury as the causal force which transformed latent infirmity into disability within the contemplation of the Workmen's Compensation Act. The force of the earlier injury was spent; the after-effects, both long and short term, had abated to the extent that plaintiff regularly performed heavy manual laborlifting lead platesat defendant employer's printing plant. The vulnerative force of the 1972 accident acted directly upon the situs of the earlier injury and surgery, causing, "... the impingement of the old fusion on L3 spinous process". By invading theretofore unoffending aspects of the earlier injury the accident at defendant's printing plant became the prime cause of plaintiff's disability. Starr v. Charlotte Paper Co., 8 N.C.App. 604, 175 S.E.2d 342 (1970), cert. denied, 277 N.C. 112 (1970). See generally the following related medico-legal articles: Grave, Compensation Aggravation and Acceleration of Pre-Existing Infirmities Under Workmen's Compensation Acts, 22 Ky.L.J. 582 (1934); Flaxman, Pre-Existing Spondylolisthesis, Aggravation Of, 1956 Med.Trial Tech.Q. 127.
In 2 A. Larson, Workmen's Compensation Law, § 59.20, pp. XX-XXX-XXX (1972), we find:
"Apart from special statute, apportionable `disability' does not include a prior nondisabling defect or disease that contributes to the end result. Nothing is better established in compensation law than the rule that, when industrial injury precipitates disability from a latent prior condition, such as heart disease, cancer, back weakness and the like, the entire disability is compensable, and, except in states having special statutes on aggravation of disease, no attempt is made to weigh the relative contribution of the accident and the preexisting condition to the final disability or death..."
Our act contains no special statute which would authorize apportionment in the instant case.
There is a distinction between a preexisting impairment independently producing all or part of a final disability, and a preexisting condition acted upon by a subsequent aggravating injury which precipitates disability. Plaintiff's claim falls in the latter category.
Our decision is in accord with the majority, and we think the better, view of those jurisdictions which have spoken on the subject of preexisting infirmities aggravated by subsequent industrial injury. 2 A. Larson, Workmen's Compensation Law, Supra; 11 W. Schneider's Workmen's Compensation, *880 § 2303 (perm.ed.1957); Kendis and Kendis, Aggravation Under Workmen's Compensation, 17 Clev-Mar.L.Rev. 93 (1968); Comment, Successive Insurers and the Accident which Aggravates a Preexisting Condition, 1956 Wis.L.Rev. 331. See e. g., Anderson v. Northwestern Motor Co., supra. It is an established precept that employers take their employees as they find them. Branconnier's Case, 223 Mass. 273, 111 N.E. 792 (1916); Belth v. Anthony Ferrante & Son, Inc., 47 N.J. 38, 219 A.2d 168 (1966), aff'd, 88 N.J.Super. 9, 210 A.2d 430 (1965); Roberson v. Liberty Mutual Insurance Co., 316 So.2d 22 (La.App.1975). So long as an individual is capable of doing that for which he was hired, then the employer's liability for injury due to industrial accident ought not be reduced due to the existence of a nonincapacitating infirmity. Knudsen v. McNeely, 159 Neb. 227, 66 N.W.2d 412 (1954); Gordon v. E. I. DuPont De Nemours & Co., 228 S.C. 67, 88 S.E.2d 844 (1955); Shainberg v. Dacus, 233 Ark. 622, 346 S.W.2d 462 (1961). While a distinction can be found in the cases, depending on whether the infirmity which is aggravated by subsequent industrial injury is traceable to disease or a previous injury, that point is not presently before us.
There are limited provisions for apportionment of disability under our Workmen's Compensation Law. Pursuant to G.S. § 97-33 disability may be apportioned between injuries connected with military service and those sustained in the course of other employment. The Supreme Court has held the policy evinced by this statute is designed to thwart double recoveries. Schrum v. Upholstering Co., 214 N.C. 353, 355, 199 S.E. 385, 387 (1938). G.S. § 97-35 also has limited provision for apportionment. Its application is restricted to successive injuries arising out of the same employment, and certain other cases. Neither of these statutes is applicable to the facts of this case where plaintiff received no compensation for his earlier back injury which arose out of a noncompensable automobile accident separate and apart from any employment.
For the reasons stated, we vacate the 25 February 1975 order of the Industrial Commission and remand the cause for further proceedings not inconsistent with this opinion.
Reversed and remanded.
PARKER, J., concurs.
CLARK, J., dissents.
CLARK, Judge (dissenting):
I cannot accept this proposition that where an employee suffers a job related injury the employer is liable for all disability, including a prior noncompensable injury outside and having no causal connection with his present employment.
The purpose of the Workmen's Compensation Act is to provide compensation for industrial injuries. It was not intended to provide compensation for injuries sustained outside of and unrelated to employment. And construing pari materia the apportionment provisions in G.S. § 97-33 and G.S. § 97-35, it is my opinion that they are not, and were not intended to be, in derogation of the common law rules of proximate cause and damages. Nor do the Mabe and Schrum cases, relied on by plaintiff and cited by the majority, support the proposition.
The majority nonapportionment rule would result in the discharge of handicapped workers and impair the employment opportunities of the handicapped.
I agree with the ruling of the Industrial Commission that plaintiff recover only for the disability incurred by his employment-related injury. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1378796/ | 235 Ga. 116 (1975)
218 S.E.2d 848
DAVENPORT
v.
PETROLEUM DELIVERY SERVICE OF GEORGIA, INC. et al.
30068.
Supreme Court of Georgia.
Argued July 9, 1975.
Decided September 12, 1975.
Spence & Knighton, Virgil C. Spence, for appellant.
Hurt, Richardson, Garner & Todd, Paul M. Talmadge, Jr., for appellees.
JORDAN, Justice.
This court granted certiorari in the present case (Davenport v. Petroleum Delivery Service, 134 Ga. App. 418 (214 SE2d 692)) to determine whether there is a conflict between the decision of the Court of Appeals therein and the decision of this court in Hallmark Properties v. Slater, 229 Ga. 432 (192 SE2d 157).
The question at issue in the present case is the venue of a tort action against Petroleum Delivery Service of Georgia, Inc. The corporate defendant was incorporated in Fulton County in 1971. It designated an office and agent in Fulton County. Its registered agent resigned in December, 1973, and no agent had been registered at the time the tort action was filed in May, 1974. The action was filed in Forsyth County, where the corporation conducted *117 its only place of business. The alleged tort occurred in DeKalb County.
The Court of Appeals affirmed the judgment of the trial court dismissing the action in Forsyth County for improper venue, holding that the statutory residence of the corporation was Fulton County, the county of its registered office and agent, although such agent had resigned.
The 1968 Georgia Business Corporation Code (Ga. L. 1968, p. 565 et seq.), effective April 1, 1969, repealed the existing corporation law and created a new corporation code.
Under the prior corporation law, persons desiring a charter for a business corporation were required to state in their application for charter the county in which the "principal office" of the corporation was to be located. Ga. L. 1937-38, Ex. Sess., p. 215, § 1.
The 1968 corporation code does not require that the articles of incorporation state a principal office, but, instead, required the address of the corporation's initial "registered office" and initial "registered agent or agents at such address." Ga. L. 1968, pp. 565, 647; 1969, pp. 152, 203 (Code Ann. § 22-802).
The general provisions on venue in the 1968 corporation code are as follows:
"(a) Venue in proceedings against a corporation shall be determined in accordance with the pertinent constitutional and statutory provisions of this State now or hereafter in effect.
"(b) For the purpose of determining venue each domestic corporation and each foreign corporation authorized to transact business in this State shall be deemed to reside in the county where its registered office is maintained. If any such corporation fails to maintain a registered office it shall be deemed to reside in the county in this State where its last-named registered office or principal office, as shown by the records of the Secretary of State, was maintained. The residence established by this subsection shall be in addition to, and not in limitation of, any other residences that any domestic or foreign corporation may have by reason of other laws.
"(c) [not applicable in this case].
*118 "(d) Whenever this Code either requires or permits an action or proceeding against a corporation to be brought in the county where the registered office of the corporation is maintained, if the action or proceeding is against a corporation having a principal office as required under the prior general corporation law, such action or proceeding may be brought in the county where such principal office is located." Ga. L. 1968, pp. 565, 584 (Code Ann. § 22-404).
Special provisions for venue and service are provided in actions on contract, suits for damages because of torts, and garnishment proceedings. Ga. L. 1968, pp. 565, 820 (Code Ann. §§ 22-5301, 22-5302). The special provision for tort actions is not applicable in the present case because the corporation had no agent or place of business in the county where the alleged tort occurred.
The corporate defendant maintains only one place of business, and it is natural to think of it as its "principal" office. However, the language of Code Ann. § 22-404 (d) does not mean a principal office in a factual sense, but means the principal office which was designated by the corporation under the prior corporation law. The references in § 22-404 (d) to "principal office" can thus apply only to corporations incorporated prior to the effective date of the 1968 corporation code. This is the construction given to this language by Kaplan's Nadler Ga. Corp. Law (1971), § 3-39.
A corporation incorporated under the present law does not have a "principal office as required under the prior general corporation law." Code Ann. § 22-404 (d). It only has a "registered office." Ga. L. 1968, pp. 565, 581; 1969, pp. 152, 159 (Code Ann. § 22-401). Petroleum Delivery Service of Georgia, Inc., was incorporated in 1971, after the effective date of the 1968 corporation code.
As held by the Court of Appeals, the General Assembly has the right to fix the residence of a corporation for the purpose of venue. The registered office of the corporate defendant was Fulton County, and Fulton County must be deemed to be its residence for the determination of venue in the tort action.
The facts in Hallmark Properties v. Slater, 229 Ga. 432, supra, make that case distinguishable from the *119 present case. In the Hallmark case we held that, for the determination of venue, Hallmark was deemed to reside in the county where it maintained its registered office, or, as an alternative, an action might be brought against it in a county where it maintained its principal office under the prior general corporation law. Hallmark was incorporated in 1964 under the old corporation law and had filed a statement designating its principal office. The language in Code Ann. § 22-404 (d) pertaining to a principal office as required under the prior corporation law was therefore applicable in the Hallmark case. The statement in the Hallmark case in regard to the alternate venue of the county of the corporation's principal office would not require a reversal of the judgment of the Court of Appeals in the present case.
Judgment affirmed. All the Justices concur, except Ingram, J., who dissents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1378797/ | 216 Va. 341 (1975)
JAMES TOLLEY
v.
COMMONWEALTH OF VIRGINIA.
Record No. 750381.
Supreme Court of Virginia.
October 10, 1975.
Present, All the Justices.
1. Trial court sustained motion to strike Commonwealth's evidence as to murder charge on grounds of venue but overruled motion as to abduction charge. Defendant waived right to rely on motion to strike as to abduction by introducing evidence on his own behalf. Sufficiency of evidence is to be determined from entire record.
2. Evidence was ample that victim was trying to avoid gang and was afraid of them. Evidence was further sufficient to show abduction against victim's will and for pecuniary benefit.
3. While evidence does not show defendant was present at first abduction or when victim was murdered, it does show that he was an accessory before the fact and one who incited, advised and abetted others in the commission of the crime. While another was the principal planner of the crimes, defendant aided and abetted planner, and those who carried out the plans.
Error to a judgment of the Circuit Court of Southampton County. Hon. James C. Godwin, judge presiding.
Mercer Theodore Kissinger, Jr., for plaintiff in error.
Alan Katz, Assistant Attorney General (Andrew P. Miller, Attorney General, on brief), for defendant in error.
COCHRAN
COCHRAN, J., delivered the opinion of the court. *342
On June 4, 1974, James Tolley was tried by the court, sitting without a jury, on two indictments charging him with the abduction [1] and murder of Sandra Harrell Jones. At the conclusion of the Commonwealth's evidence the trial court overruled Tolley's motion to strike the evidence as to abduction but sustained the motion as to murder on the ground that the Commonwealth had failed to prove that the murder had been committed in Southampton County. At the conclusion of all the evidence the trial court found Tolley guilty of abduction as charged. Tolley has appealed the judgment order entered on January 21, 1975, sentencing him to confinement in the State penitentiary for 20 years.
"Abduction with the intent to extort money, or pecuniary benefit . . . shall be punished with death, or by confinement in the penitentiary for life or any term not less than three years."
Abduction without the intent specified in Code | 18.1-38 was subject to less severe punishment under the provisions of Code | 18.1-37 (Repl. Vol. 1960).
The questions for our determination are whether the evidence was sufficient to prove an abduction under Code | 18.1-38, and, if so, whether the evidence was sufficient to prove that Tolley was an accessory before the fact.
The evidence, which we will consider in the light most favorable to the Commonwealth, is somewhat similar to, but by no means identical with, the evidence that we considered in Turnbull Commonwealth, 216 Va. 328, 218 S.E.2d 541, this day decided. The present case was tried before Turnbull, although on appeal Turnbull was argued first. In the trial court some of the same witnesses testified in both cases.
The badly beaten body of Sandra ("Sandy") Harrell Jones was found beside a farm road in Southampton County on May 25, 1973, at about 8:00 a.m. The medical examiner testified that in his opinion Sandra's death was caused by strangulation and that she died between 5:00 p.m. May 24 and 5:00 a.m. May 25.
Mrs. Judy Edwards testified that in May, 1973, Sandra came to work at the Jolly Roger, a restaurant and night club in the Ocean View section of Norfolk, where the witness was employed. Shortly before her death Sandra told Mrs. Edwards that "Mongoose", one of the Pagans, a motorcycle gang, was trying to get her money, but that she was not going to give him the money. If Mongoose came to look for her, Sandra asked Mrs. Edwards to tell him that she had left. Mrs. Edwards further testified that Sandra expressed fear of *343 Mongoose two or three days before her death, and evaded him by leaving the Jolly Roger by a back door as Mongoose entered through another door.
Sergeant Sidney E. Cherry, of the Norfolk Police Department, testified that he knew Sandra and talked to her at the Jolly Roger on May 21, 1973, at approximately 2:00 a.m.; that Sandra told him that she was afraid of Mongoose and his motorcycle gang, the Pagans; that, at her request, he arranged for another police officer to drive her home; that he talked with her early the next morning; and that Sandra told him that she thought that Mongoose or his gang were going to kill her because "she would not work any more so they could get her money from her".
Officer William L. Ross, of the Norfolk Police Department, testified that on May 21, 1973, at approximately 2:00 a.m., at Sergeant Cherry's request, he drove Sandra home from the Jolly Roger; that she expressed fear that Mongoose was "putting the heat on her for her money that she was making working at the Jolly Roger, and she was trying to stay away from him"; and that she told Ross that she was going to move to another location to stay with friends.
William Gibbs and George Edwards described the circumstances under which they assisted three girls by pulling their 1967 maroon Mustang out of a mud hole in a farm road in Southampton County on May 24, 1973, between 11:00 p.m. and midnight.
Gibbs asserted that the girls "acted scared" when they came to him for help; that he and Edwards became suspicious and wrote down the license number of the Mustang; that inside the car was a black purse; and that two of the girls were barefooted, one had on shoes, and all of them were wet and muddy.
Edwards, who substantiated Gibb's testimony, identified the girls as Linda Grant, Pam Blair and June Reed. He testified that they paid him $30, which he divided with Gibbs, for pulling the car from the mud hole; and that, the following morning, accompanied by another friend, he drove back down the farm road to the mud hole where the Mustang had been stuck, and found four jackets and a blue towel in the mud hole. He then followed car tracks down the road for approximately 400 yards and found the body of Sandra Harrell Jones.
W. P. Twine, an investigator for the State Police, identified photographs that he had taken of the scene before Sandra's body had been removed. He testified that one photograph showed about three *344 tablespoons of blood on the ground immediately below the girl's mouth. He observed that Sandra was barefooted, that her clothes and hair were wet, that sand and mud were in her hair and between her toes, and that there were bruises on the upper part of her back.
James Thorpe, operator of a service station in Hampton, testified that on May 24, 1973, between 6:00 and 8:30 p.m. four girls in an old reddish Mustang came to his station for gasoline. Three of the girls, one of whom he identified as Pam Blair, were on the front seat, and one was lying under cover on the back seat. The driver, who remained in the car while the other two girls on the front seat went to the restroom, asked Thorpe how to get to South Carolina. He thought, although he could not be certain, that the girl on the back seat asked why they did not go on to Florida.
Dr. Charles Springate, the medical examiner, described the multiple contusions and lacerations found on Sandra's body. He acknowledged that bleeding from the laceration inside her mouth could have continued for an indeterminate length of time after her death.
The principal witness for the Commonwealth was William Woods, [2] a convicted felon. Wood had formerly been President of the Portsmouth Chapter of the Pagans, of which he said Tolley was also a member. Wood testified that John Turnbull, known as "Mongoose", was in charge of the Norfolk-Portsmouth-Virginia Beach Chapters of the Pagans and made all final decisions; that there were 35 or 40 members in the Chapters; that strict discipline was maintained; and that Tolley was a Sergeant at Arms whose duties were to maintain order and carry out the instructions of his superiors. Wood testified that girls could not become members of the gang; that the Pagans treated their girls, whom they called their "old ladies", as "property"; and that the girls "do exactly what they tell them to do", and make no decisions for themselves. Tolley's "old lady" was Pam Blair, Joseph Green's was Linda ("Crazy Linda") Grant, and Turnbull's was Sandra Jones. Tolley worked "at times" but most of the time only his "old ladies" worked.
Wood testified that in May, 1973, he was working as an unpaid informer for the State Police and for the State Arson Investigator's office. On May 24, at approximately 5:30 p.m., Turnbull, Green and Tolley came to Wood's apartment, and Turnbull advised him to have an "airtight" alibi for that night and suggested that if anyone asked Wood about Sandra, he should say that she had left town *345 that week with another girl "supposedly hitchhiking to Georgia to get a job dancing down there". Turnbull explained that they were going to "do away with Sandy and that she had caused enough problems" for them. Wood asked Tolley "what they planned on doing, and he stated to me at this time that they were going to get rid of Sandy . . .." Wood communicated this information to Jim Smith, un undercover agent of the State Police Narcotics section, and he and Smith notified other officers and looked for Sandra until about 1:00 a.m. the next morning. Later that morning Wood saw Sandra's I.D. card in a pocketbook which Tolley burned behind the service station at Ocean View where Tolley worked. Wood asked Tolley if they had "killed Sandy over $60.00 that Mongoose supposedly thought she owed him", and Tolley replied that he had not killed her but that the "'old ladies' had taken care of it".
Trooper James Smith, of the State Police, confirmed that Wood had reported to him the threat against Sandra on May 24, that he had enlisted the assistance of other law enforcement agents, and that he and Wood had looked for Sandra throughout the entire night and into the morning.
After the trial court overruled his motion to strike the evidence as to the abduction charge, Tolley proceeded to introduce evidence on his behalf.
Linda Grant, who had been convicted of Sandra's abduction and murder, testified that Tolley did not tell her to take the girl away or do anything with her. Linda described Turnbull as the "main man" and testified that, upon her return from the trip to Southampton County, Turnbull ordered her to give Sandra's pocketbook to Tolley to destroy. On cross-examination Linda admitted that this was the fifth different statement that she had given, that she was a drug addict and was emotionally upset during the day and night when Sandra was murdered, and that she could not remember "a lot of things". She testified that she, Pam Blair, June Reed and Turnbull took Sandra to Linda's house, but maintained that she did not know what happened to Sandra at that time, and that she did not kill her. Linda said that Turnbull had threatened her and that she had lied to save her life when she had previously admitting killing Sandra.
Linda's testimony is riddled with inconsistent and unintelligible statements. Nevertheless, the trial court could have believed that Linda was telling the truth when she said that when see saw Sandra lying in the back of the car at Ocean View she asked if the girl was *346 dead and was told by Turnbull, "Don't worry about nothing, Dingbat, she ain't dead and she ain't going to die, and she will be all right. She is just out . . .." The witness subsequently testified that when they stopped the car in Southampton County Sandra could not walk, was lying in the car "like she was dead or out", and was taken from the car and dropped by the side of the road.
The trial court also could have believed this testimony of Linda's:
{"Q. Who all was present when the order was said, get her out and get her down to Georgia and get rid of her?"
{"A. Mongoose said that."
{"Q. Was Jim Tolley there?"
{"A. See he took us over to the side and talked to us, and we were all there, but see like he worked at the gas station, and like Mongoose had us over to the side and Josie was beside me. See Jim was working at the gas station."
* * *
{"Q. So you all had a meeting on the outside of the gas station, and Jim, Skip, Mongoose and Joe Green and you and Pam and June and everybody was outside and you were told that the girl had been beaten?"
{"A. Yes, sir."
* * *
{"Q. After they brought her back their plans were made, and all these people were participating and they were all there at the time?"
{"A. No, they just talked together. They all agreed and everybody leaves it up to Mongoose."
{"Q. Everybody agreed to what?"
{"A. To carry her to Georgia."
{"Q. And do what?"
{"A. And burn her if she hadn't died." (Emphasis supplied.) *347
June Reed, who had pleaded guilty in the trial court to Sandra's murder in Southampton County and was serving a 20-year sentence in prison for that crime, testified that Tolley tried to stop Mongoose when they were leaving the service station, and that Sandra "was already dead then". On cross-examination the witness admitted that she had been reading law books in prison and that she would like to establish that the murder occurred in Norfolk rather than Southampton County in order to get a new trial. She testified that she carried Sandra by the feet when the body was removed from the car in Southampton County, and she could not account for the mud that was found between Sandra's toes. The witness admitted having made a statement to an investigating officer that Sandra must have been killed where the body was found, but said that she made the statement because Mongoose had threatened to kill her.
The trial court could have concluded that, based on all the credible evidence, Sandra Jones died in Southampton County, notwithstanding the earlier ruling of the court that the Commonwealth's evidence was insufficient to prove that the murder was committed there. The trial court had also ruled at the same time that the Commonwealth had made out a prima facie case of abduction. Tolley waived his right to rely on his motion to strike the evidence as to this charge at the conclusion of the Commonwealth's evidence by proceeding to introduce evidence on his behalf, and the sufficiency of the evidence is to be determined from the entire record. Orange Commonwealth, 191 Va. 423, 428, 61 S.E.2d 267, 269 (1950).
Tolley contends that no reasonable inference may be drawn from the evidence that Sandra Jones was taken against her will, a prerequisite to abduction. We disagree. There was ample evidence that Sandra was trying to avoid Mongoose and the Pagans because she was not willing to turn over her earnings to Mongoose; that Mongoose was searching for her; and that the girl was afraid of Mongoose and his gang. It is a reasonable inference, therefore, that Sandra did not voluntarily go with Mongoose and the three "old ladies" to the place where she was beaten. Moreover, it is a reasonable inference that the beating was administered to force Sandra to pay money to Mongoose. This evidence is sufficient to show abduction for pecuniary benefit, under the provisions of Code | 18.1-38, which continued until Sandra's death in Southampton County.
Tolley argues, however, that there is no evidence of his criminal agency. Again we disagree. His "old lady", Pam Blair, who was expected, under Pagan discipline, to do precisely what he ordered *348 her to do and nothing more or less, participated in picking up Sandra and taking her to the place where she was beaten. Tolley and Pam thereafter were present at the service station in Ocean View where Tolley worked and among those who discussed the matter and agreed that Sandra should be transported to Georgia and there burned if she had not previously died. Around 5:30 p.m. on that day, Tolley and Mongoose visited Wood and told him that they were going to get rid of Sandy, and that Wood should have an alibi for that night. The next day Tolley burned Sandra's pocketbook and, when asked if she had been killed because of the money which Mongoose had wanted to get from her, denied that he had killed her and said that the "old ladies" had "taken care of it".
The evidence, of course, does not show that Tolley was present when Sandra was first abducted or when she was murdered. The evidence is sufficient, however, to show that he was an accessory before the fact, one who, though not present, incited, advised, or abetted others in the commission of the crime. An accessory has been defined as "one not present at the commission of the offense, but who is in some way concerned therein, either before or after, as contriver, instigator or advisor, or as a receiver or protector of the perpetrator . . .." Foster Commonwealth, 179 Va. 96, 99, 18 S.E.2d 314, 315 (1942); Hitt Commonwealth, 131 Va. 752, 759, 109 S.E. 597, 600 (1921). See Turnbull Commonwealth, supra.
Although the evidence points to Turnbull as the principal planner of the crimes, it is sufficient to show that Tolley aided and abetted the planner and those who carried out the plans. The evidence is sufficient to show that Tolley agreed to the continuation of the abduction from the service station in Ocean View, that he and Turnbull arranged to get rid of Sandra, and that Tolley encouraged the active participation in the crime of his dutiful follower, Pam Blair. Under the provisions of Code | 18.1-11 (Repl. Vol. 1960), an accessory before the fact "may be indicted, tried and convicted and punished in all respects as if a principal in the first degree . . .."
When the sufficiency of the evidence is challenged, the judgment of the trial court sitting without a jury is entitled to the same weight as a jury verdict and will not be disturbed by us unless it is plainly wrong or without evidence to support it. Evans Commonwealth, 215 Va. 609, 613, 212 S.E.2d 268, 271 (1975).
We cannot say that the judgment order in this case is plainly wrong or without evidence to support it and it is, therefore,
Affirmed.
NOTES
[1] Tolley was indicted for abduction under Code | 18.1-38 (Repl. Vol. 1960) which provided:
[2] The record in Turnbull Commonwealth, supra, shows the witness to be William Woods. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1378996/ | 541 S.E.2d 41 (2000)
246 Ga. App. 367
WATTS
v.
The STATE.
No. A00A1084.
Court of Appeals of Georgia.
October 13, 2000.
*43 King & King, David H. Jones, Atlanta, for appellant.
Peter J. Skandalakis, District Attorney, Kevin W. Drummond, Assistant District Attorney, for appellee.
*42 RUFFIN, Judge.
Zane Phillip Watts was convicted of rape and incest. On appeal, he challenges the sufficiency of the evidence, and also contends that the trial court erred in denying his motions to suppress, permitting hearsay testimony, and giving an erroneous charge. For reasons discussed below, we affirm.
1. Count 1 of the indictment charged Watts with forcibly raping K.T., his girlfriend's daughter, between September 1, 1996 and November 23, 1997. Watts contends that the trial court erred in denying his motion for directed verdict on this count, arguing that the State presented no evidence that force was involved. This contention is without merit.
A motion for a directed verdict should be granted "only when there is no conflict in the evidence and the evidence with all reasonable deductions and inferences therefrom demands a verdict of acquittal as a matter of law."[1] On appeal, we consider all the evidence in the case, and view the evidence in the light most favorable to the verdict.[2]
K.T. testified that in September 1996, when she was 11 years old, Watts came into her bedroom, pulled down her pants, and stuck his penis in her vagina. She said that, "[w]hen I started screaming he told me to stop." She testified that Watts repeatedly molested her on numerous occasions afterward. On November 23, 1997, while at K.T.'s grandfather's house, Watts told her they needed to look for light bulbs in a toolshed. When they got inside the shed, Watts told K.T. that "[w]e're gonna do something first." K.T. tried to walk out of the shed, but the doors were closed. K.T. testified that Watts then pushed her down, pulled down both of their pants, placed a condom on his penis, and placed his penis in her vagina. She testified that "I told him I had a tampon in so he couldn't put it in me, but he did anyway."
Watts concedes in his appellate brief that K.T. testified that the September incident involved the use of force. However, he argues that this testimony was not credible because it was inconsistent with her prior accounts of the incident. He claims that it was therefore "unlikely" that the jury convicted him based on the September incident, and that there was no evidence of the use of force in the November 1997 incident. In considering the denial of a motion for directed verdict, however, we consider only whether the evidence, viewed in the light most favorable to the verdict, demanded a verdict of acquittal. Because the credibility of witnesses is a matter for the jury,[3] the jury could have believed K.T.'s testimony that the *44 September incident involved the use of force. Accordingly, regardless of whether the November incident involved force, the evidence did not demand a verdict of acquittal, and the trial court did not err in denying Watts' motion for directed verdict.[4]
2. The trial court instructed the jury that
a person commits rape when he has carnal knowledge of a female forcibly and against her will.... You may find that the element of force is present if the victim's lack of resistance was induced by fear. Lack of resistance induced by fear is not consent but constitutes force.
Watts argues that this charge blurs the distinction between the issues of force and consent, suggesting that the element of force is satisfied by proof of lack of consent. We do not agree. The court clearly charged the jury that the defendant's actions must be both forcible and against the victim's will. The instruction that a lack of resistance induced by fear does not constitute consent, but does constitute force, is a correct statement of law.[5]
3. Watts contends that the trial court erred in allowing testimony from two witnesses concerning statements made by K.T., arguing that there were not "sufficient indicia of reliability" to support admission under the Child Hearsay Statute, OCGA § 24-3-16. We disagree.
(a) Cindy Merritt, a neighbor of K.T.'s, testified that she spoke with K.T. on November 23, 1997, and that K.T. told her Watts had been molesting her. Watts contends that this statement was inadmissible under the Child Hearsay Statute because there were insufficient indicia of reliability. However, he did not raise this specific objection at trial, but simply stated that he "would object to hearsay statements." After the prosecutor responded that the testimony was being offered under the Child Hearsay Statute, the trial court overruled the objection, and Watts never asserted that there were insufficient indicia of reliability. Accordingly, he has failed to preserve this issue for appeal.[6]
After giving this testimony, Merritt said that K.T. gave her further information in "bits and pieces" over the following three days. Watts' attorney then objected that statements made over the three-day period would not exhibit sufficient spontaneity to be admissible under the Child Hearsay Statute. The trial court overruled this objection. Immediately thereafter, the prosecutor asked Merritt about K.T.'s mother's appearance on November 23, and Merritt testified that she was "very distraught." The prosecutor then asked about K.T.'s statements, and Merritt testified that K.T. "said that she had taken her mother to a condom that [Watts] had thrown out the window of the vehicle that they were returning home in, and that she had remembered the place where he had thrown it out and had taken her mother back to the scene."
On appeal, Watts asserts that the "statements that were received over a period of time in late November of 1997" were inadmissible under the Child Hearsay Statute due to a lack of spontaneity, although he does not cite the record to specify exactly which statements to which he is referring. Assuming that Watts is referring to the above testimony, it is not clear that he preserved his objection for appeal. At the time Watts made his objection, Merritt had not described the statements made by K.T., so there was no way of judging whether such statements would be objectionable. When *45 Merritt described the statements several questions later, Watts did not raise any objection.[7]
Even assuming that Watts' objection was sufficient to preserve the issue for appeal, the statement was not inadmissible for the reasons stated in the objection. The Child Hearsay Statute applies only to a statement by a child "describing any act of sexual contact or physical abuse."[8] The statement at issue did not describe an act of sexual contact or physical abuse, but described K.T.'s own actions in retrieving the condom that Watts threw from his vehicle. Regardless of whether such statement would be inadmissible for any other reason, it was not inadmissible for the reason asserted by Watts.[9]
(b) Watts also contends that the trial court erred in allowing testimony from another witness, Amanda Hunter. The prosecutor asked Hunter if she remembered K.T. "ever telling you anything about [Watts] touching her in ways that he shouldn't?" When Hunter began to describe what K.T. had said, Watts' attorney objected on the grounds that "we don't have any idea when this occurred, so we have no way of judging whether it happened before the alleged incident or after, and that deals with the issue of the reliability of it." The prosecutor stated that he would "lay some more foundation," and asked Hunter when K.T. made the statements. Hunter stated that she believed K.T. made the statements before Hunter's birthday on November 7. The prosecutor then asked what K.T. had told her, and Hunter said that "[s]he said [Watts] was ... forcing her to have sex with him." Watts did not raise any objection to this testimony.
"It is the duty of counsel to obtain a ruling on his motions or objections, and the failure to do so will ordinarily result in a waiver."[10] By failing to obtain a ruling on his objection, or to renew his objection after the prosecutor elicited further testimony in response to the objection, Watts waived this issue for appellate review.[11]
4. Prior to trial, Watts filed a motion to suppress certain videotapes found during a search of his residence, asserting that the warrantless search "was conducted without any consent on the part of the Defendant." The trial court considered this motion just before the start of trial. Defense counsel stated that the police had obtained consent for the search from Anita Tetterton, who the State contended was Watts' common-law wife. The prosecutor stated that Watts and Tetterton had lived together for a number of years and shared a common bedroom. Defense counsel did not contradict this representation of the facts. During the trial, Tetterton confirmed that she lived with Watts from 1988 to 1997, and the investigating officer testified that Tetterton gave him permission to search the residence.
On appeal, Watts does not contest Tetterton's authority to give consent, but asserts that the trial court erred in denying the motion to suppress because the State introduced no evidence at the suppression hearing. This contention is without merit. First, Watts' own attorney represented at the hearing that Tetterton gave consent to the search, and did not object when the prosecutor represented that Tetterton had lived in the house with Watts for several years as his common-law wife. In the absence of an objection, statements by counsel serve the same function as evidence.[12] Furthermore, in considering the denial of a motion *46 to suppress, we consider all the evidence of record, including evidence introduced at trial.[13] As discussed above, the trial testimony showed that Tetterton did in fact live with Watts in the residence and gave consent for the search.
5. Before trial, blood and hair samples were obtained from Watts pursuant to a warrant. Watts filed a motion to suppress, asserting that the affidavit used to obtain the warrant "contains material omissions that undermine the validity of the warrant." The motion did not, however, specify what material facts were omitted, nor did it allege that the facts were omitted in order to mislead the magistrate. At the motion to suppress hearing, Watts' attorney asserted that the affidavit failed to state that (1) an examination of the victim showed "no evidence of rape or intercourse," and (2) the victim had made prior false accusations against Watts. He contended that, if the affidavit had contained such facts, the magistrate "might not have issued the warrant." The trial court denied the motion to suppress.
On appeal, Watts contends that the trial court erred in denying the motion because the State presented no evidence at the suppression hearing. However, it is well settled that, where a defendant challenges a warrant based on the alleged omission of material information, the defendant bears "the burden of showing not only that the false and omitted information was material to the determination of probable cause, but that any false information given or material information omitted was done so for the purpose of misleading the magistrate."[14] In order to force an evidentiary hearing on the accuracy of the affidavit, a defendant must
present more than mere conclusions. There must be allegations of deliberate falsehood or reckless disregard for the truth, and these allegations must be accompanied by evidence or an offer of proof of such evidence. Mere allegations of negligence or mistake of fact are not sufficient.[15]
In this case, Watts did not even allege that any facts were intentionally omitted for the purpose of misleading the magistrate, much less present evidence or an offer of proof on this issue. Accordingly, he failed to satisfy his burden of proof, and the trial court thus did not err in denying the motion to suppress.[16]
Judgment affirmed.
ANDREWS, P.J., and ELLINGTON, J., concur.
NOTES
[1] Black v. State, 242 Ga.App. 271-272(1), 529 S.E.2d 410 (2000).
[2] Id. at 272, 529 S.E.2d 410.
[3] See Jackson v. State, 236 Ga.App. 260, 261, 511 S.E.2d 615 (1999) ("Conflicts in the testimony of the witnesses, including the State's witnesses, are a matter of credibility for the jury to resolve") (punctuation omitted).
[4] Watts does not contend that the indictment was defective for failing to specify with greater precision the date of the offense.
[5] See Curtis v. State, 236 Ga. 362, 363(1), 223 S.E.2d 721 (1976) ("lack of resistance, induced by fear, is not legally cognizable consent but is force"); Long v. State, 241 Ga.App. 370, 371(2), 526 S.E.2d 875 (1999) ("Lack of resistance, induced by fear, is not legally cognizable consent but is force").
[6] See Ramsey v. State, 214 Ga.App. 743, 744(1), 448 S.E.2d 790 (1994); Patterson v. State, 237 Ga.App. 80(1), 514 S.E.2d 873 (1999). See also Horan v. Pirkle, 197 Ga.App. 151-152(1), 397 S.E.2d 734 (1990) (mere "hearsay" objection insufficient to preserve claim that statement was inadmissible under OCGA § 24-3-8, where, after trial court indicated that statement was admissible as declaration against interest, counsel failed to raise specific grounds that statement did not qualify as declaration against interest).
[7] See Martinez v. State, 241 Ga.App. 863(1), 528 S.E.2d 294 (2000) ("anticipatory" objection does not suffice to preserve issue).
[8] OCGA § 24-3-16.
[9] See Norman v. State, 197 Ga.App. 333, 334(2), 398 S.E.2d 395 (1990) (objection on specific ground waives any objection on other grounds).
[10] (Punctuation omitted.) Harris v. State, 190 Ga.App. 343, 348(4)(b), 378 S.E.2d 912 (1989).
[11] See Morris v. State, 212 Ga.App. 42, 43-44(2), 441 S.E.2d 273 (1994) (defendant failed to renew objection to expert's qualifications after further foundation laid); Ford Motor Co. v. Tippins, 225 Ga.App. 128, 129-130(1), 483 S.E.2d 121 (1997).
[12] Burgess v. State, 207 Ga.App. 286, 427 S.E.2d 614 (1993).
[13] Jackson v. State, 230 Ga.App. 292, 296(6), 496 S.E.2d 315 (1998).
[14] Houston v. State, 242 Ga.App. 114, 115-116(1), 527 S.E.2d 619 (2000). See also Bickley v. State, 227 Ga.App. 413, 414(1)(a), 489 S.E.2d 167 (1997).
[15] (Citations and punctuation omitted.) Ferrell v. State, 198 Ga.App. 270-271(1), 401 S.E.2d 301 (1991).
[16] See id.; Houston, supra; Bickley, supra. Contrary to Watts' contention, the fact that the affidavit was not introduced into evidence at the suppression hearing is immaterial, since Watts did not contend that the facts contained in the affidavit were insufficient to support the issuance of a warrant. Compare Liskey v. State, 156 Ga. App. 45-46(1), 274 S.E.2d 89 (1980); Bartlett v. State, 165 Ga.App. 18-19(1), 299 S.E.2d 68 (1983). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379001/ | 541 S.E.2d 435 (2000)
246 Ga. App. 626
CHOATE CONSTRUCTION COMPANY, INC.
v.
IDEAL ELECTRICAL CONTRACTORS, INC.
No. A00A1307.
Court of Appeals of Georgia.
November 2, 2000.
*436 Smith, Curry & Hancock, Philip E. Beck, Atlanta, Mark V. Hanrahan, for appellant.
Daniel W. Lee, LaGrange, for appellee.
SMITH, Presiding Judge.
Choate Construction Company, Inc., the general contractor for the construction of a medical facility in LaGrange, appeals from the trial court's entry of judgment on a jury verdict in favor of Ideal Electrical Contractors, Inc., a subcontractor on the project, in Ideal's action against Choate for breach of contract and in quantum meruit for extra work performed. Choate contends the trial court erred in the following: in denying its motion to dismiss or, in the alternative, to compel arbitration; in denying its motions for directed verdict, judgment notwithstanding the verdict, and for a new trial; and in failing to require Ideal to elect its remedy, permitting it to recover both in contract and quantum meruit. The trial court denied Choate's motion to dismiss or, in the alternative, to compel arbitration because it found that the subcontract did not include a mandatory arbitration clause and that it included a condition precedent to arbitration which was not fulfilled. The trial court also denied the motions for directed verdict, judgment n.o.v., and new trial on Ideal's claims for recovery in quantum meruit. The motions were made on the ground that the contract itself addressed payment for changes in the work and extra work and that Ideal therefore was precluded from seeking payment under a theory of quantum meruit. Because we disagree with these findings, we conclude that the trial court erred in denying Choate's motions.
1. We first note that although the denial of a motion to compel arbitration is subject to interlocutory appeal under OCGA § 5-6-34(b), the denial may also be appealed after final judgment. Bishop Contracting Co. v. Center Bros., Inc., 213 Ga.App. 804, 805-806(1), 445 S.E.2d 780 (1994).
2. In Choate's motion to dismiss or, in the alternative, to compel arbitration, it *437 sought to enforce certain provisions in the subcontract requiring dissatisfied subcontractors to submit their disputes to binding arbitration.
Article IX, Paragraph 23 of the subcontract provides in Section A that all subcontractors are bound to Choate to the "same extent that [Choate] is bound to" the owner under the contract between Choate and the owner and that subcontractors must go through the contractor before initiating actions against the owner.
Section B of Paragraph 23 provides that subcontractors will be bound by any arbitration between Choate and the owner on matters involving the subcontractor's rights.
Section C of Paragraph 23 provides:
If at any time any controversy should arise between contractor and subcontractor, which controversy is not controlled or determined by sections (a) or (b) above or other provisions of this subcontract, then the decision of contractor shall be followed by subcontractor, and said controversy shall be decided as follows:
(i) Subcontractor shall conclusively be bound by and abide by contractor's decision, unless subcontractor shall commence arbitration proceedings.
(ii) If subcontractor decides to appeal the decision of contractor, then the controversy shall be decided by arbitration in accordance with the construction industry rules of the American Arbitration Association and the arbitration decision shall be final and binding both parties to resolve the controversy; provided, however, that arbitration proceedings shall be commenced by subcontractor not later than 30 days following receipt of notice of contractor's decision.
Section E of Paragraph 23 provides:
Should either party to this agreement institute a lawsuit, or demand arbitration to enforce any of the provisions hereof, to protect its interest in any matter arising under the subcontract, or to collect damages for the breach of the subcontract..., the prevailing party shall be entitled to recover and the losing party agrees to pay all reasonable attorney's fees, costs, charges, and expenses expended or incurred therein.
The trial court concluded that Section C "did not provide that arbitration was a mandatory substitute for litigation" but merely provided the option of arbitrating. Choate contends this conclusion is erroneous, and we agree.
OCGA § 13-2-3 commands us, in construing a contract, to "ascertain the intention of the parties." A contract must be enforced if "that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention." Id. The subcontract in issue reflects clearly the intention of the parties to resolve all disputes by arbitration. It is apparent both in the "flow down" provision in Section A[1] and in the mandatory language regarding arbitration used in Section C.
The trial court construed Section E as creating an ambiguity because it intimates that instituting a lawsuit is an alternative to demanding arbitration. But the language in Section E does not authorize instituting a lawsuit; it simply provides for payment of costs and attorney fees in the event that one or the other party does, in fact, institute a lawsuit, whether forbidden by the contract or not. With respect to any matter arising under the subcontract, if either party institutes a lawsuit or demands arbitration and loses, Section E requires it to bear all costs and expenses, including attorney fees.
3. The trial court also concluded that a "`final decision'" on the part of Choate was required "for purposes of submitting the matter to arbitration." The trial court found, with regard to Ideal's claims, that Choate had not rendered such a decision, nor had it rendered a decision that would conclusively bind Ideal without Ideal having chosen to arbitrate. We agree with Choate that these conclusions were error as well.
Section C of Paragraph 23 places the burden on Ideal to arbitrate any decision *438 made by Choate or be bound by it. It does not, however, use any language modifying the word "decision." Conditions precedent, which are not favored in interpreting contracts, are created by language such as "on condition that," "if," and "provided," or by explicit statements that certain events are to be construed as conditions precedent. Fulton County v. Collum Properties, 193 Ga. App. 774, 775, 388 S.E.2d 916 (1989). If the contract's terms are clear and unambiguous and do not clearly establish a condition precedent, we cannot construe the contract to create one. Id. at 775-776(1)(b), 388 S.E.2d 916. Yet here, that is what the trial court did.
On November 6, 1995, Ideal's counsel sent a letter to Choate listing its claims for additional compensation. Choate rendered its decision, responding to each of Ideal's claims by letter dated November 30, 1995. Under the subcontract provisions, if Ideal was not satisfied with Choate's decision on its claims, it was required to demand arbitration within 30 days of Choate's response to its claims. Because Ideal did not demand arbitration after receiving the November 30 letter, under the contract provisions it became bound by Choate's decision.
Ideal correctly describes a 1960 decision of this court. In it, this court held that an early Supreme Court of Georgia case established that
an agreement to refer matters in dispute, to arbitration, is not sufficient to oust the Courts of Law or Equity of their jurisdiction. Unless the agreement provides that the parties shall arbitrate their differences as a condition precedent to a right to sue, a party may resort to the courts to settle a dispute.
(Citations and punctuation omitted.) Millican Elec. Co. v. Fisher, 102 Ga.App. 309, 311(3), 116 S.E.2d 311 (1960). But the Georgia Arbitration Code for Construction Contracts, OCGA §§ 9-9-80 through 9-9-97, was enacted after Fisher was decided. The Supreme Court of Georgia later noted that in construction contracts, but not in other contracts, the parties may agree, under the authority of the Georgia Arbitration Code for Construction Contracts, to a "contractual imposition of the duty to arbitrate as an exclusive and binding remedy for disputes which arise in the future." Ga. Kraft Co. v. Rhodes, 257 Ga. 469, 472, 360 S.E.2d 595 (1987); see also Rhodes v. Inland-Rome, Inc., 195 Ga.App. 39, 41(3), 392 S.E.2d 270 (1990) (pre 1988 revision contracts). In 1988, the General Assembly revised the Georgia Arbitration Code extensively, renumbering the statute, deleting the phrase "for Construction Contracts" from its title, and extending the enforcement of arbitration provisions to "all contracts in which the parties have agreed to arbitration in writing. Ga. L.1988, p. 903 et seq." Weyant v. MacIntyre, 211 Ga.App. 281, 282(1), 438 S.E.2d 640 (1993). See OCGA §§ 9-9-1 through 9-9-84. Since the subcontract was executed in 1995, it was entirely permissible for the parties to contract for binding arbitration. The trial court erred in construing the contract otherwise.
4. Ideal claimed it was owed compensation for extra work it alleged was performed outside the contract. Choate contends that its motions for directed verdict and judgment n.o.v. as to these claims should have been granted because Ideal admitted the validity of the subcontract, which itself precluded Ideal from seeking payment for any changes or extra work not approved in writing. We agree.
Ideal's vice president admitted that Ideal entered into the subcontract, that the subcontract encompassed the rights and obligations of both parties, and that it formed the basis of this lawsuit. Article IV of the subcontract provided, in pertinent part: "Contractor agrees to pay subcontractor for the performance of its work the sum set forth as the subcontract amount subject to additions and deductions for changes as may be agreed upon in writing." Paragraph 7 of Article IV provided, in part: "There will be no payment for extra work unless authorized in writing by contractor prior to the beginning of the actual work."[2] Further, Article X of the subcontract provided that it could be amended only by a signed writing.
It has long been the law in Georgia that although a party may plead in alternative *439 counts, no recovery may be had in quantum meruit when a contract governs all claimed rights and responsibilities of the parties. Gilbert v. Powell, 165 Ga.App. 504, 507-509(2), 301 S.E.2d 683 (1983). See Lord Jeff Knitting Co. v. Lacy, 195 Ga.App. 287, 288(2), 393 S.E.2d 55 (1990). The contract in Gilbert, like the contract in this case, included provisions under which all changes and extra work were addressed. This court held in Gilbert that because the entire agreement was covered in the written contract, no evidence could be offered that would support a theory of recovery under quantum meruit. Id. at 508, 301 S.E.2d 683.
The same is true here. It is plain from the language of the subcontract that it contemplated changes and modifications to the original subcontract and provided a method for carrying out such changes and modifications. It provided unambiguously that any work done without conforming to the process set forth in the contract for approving that work would not be compensated. It would be unfair, under these circumstances, to allow a subcontractor to circumvent the explicit terms of the subcontract it had admittedly agreed to by seeking payment outside the subcontract for work that was contemplated and provided for under the subcontract. Because Ideal admitted the subcontract but did not follow the procedure it prescribed for changes in work or extra work, it cannot recover for such work under a theory of quantum meruit. The trial court erred in denying Choate's motions for directed verdict and judgment n.o.v. and in allowing the jury to award payment to Ideal under a theory of quantum meruit. Lord Jeff Knitting Co., supra.
5. Our holding in Division 3 renders it unnecessary that we consider Choate's contention that the trial court erred in failing to require Ideal to elect between recovery under the contract and recovery in quantum meruit.
Judgment reversed.
JOHNSON, C.J., and PHIPPS, J., concur.
NOTES
[1] The contract between the owner and Choate requires arbitration of disputes, and subcontract Art. IX, Par. 23, Sec. A requires subcontractors to be bound by this contract when their rights and responsibilities are concerned.
[2] Indeed, two written change orders were executed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379003/ | 541 S.E.2d 474 (2000)
STATE of North Carolina
v.
Eric Earl GUICE.
No. COA99-1261.
Court of Appeals of North Carolina.
December 29, 2000.
*477 Attorney General Michael F. Easley, by Special Deputy Attorney General James P. Longest, Jr., for the State.
Rudolf Maher Widenhouse & Fialko, by Christopher C. Fialko, Charlotte, for the defendant-appellant.
WYNN, Judge.
Following his trial, a jury convicted the defendant of various offenses stemming from events which occurred on 19 July 1998. He appeals from his conviction and sentence.
In the summer of 1997, the defendant met and befriended Kris Wall. Around November of that year, Ms. Wall separated from her husband. The nature of the relationship between the defendant and Ms. Wall is controverted; but, the record on appeal shows that Ms. Wall made attempts to end their relationship sometime during the late spring or early summer of 1998. In May 1998, Ms. Wall gave birth to a son.
On 19 July 1998, the defendant called Ms. Wall around 5 a.m. and again around 10:30 a.m. Shortly thereafter, the defendant arrived at Ms. Wall's house, entering unannounced and uninvited, and confronted her. The two argued and Ms. Wall fled from her house, with the defendant in pursuit. Clothed only in a t-shirt, Ms. Wall ran into the home of Michael Lawing, whose front door was open, and the defendant followed her inside. While pointing a gun at Mr. Lawing, the defendant ordered Mr. Lawing to lie face down on the floor. After Mr. Lawing complied with this order, the defendant and Ms. Wall continued to argue in Mr. Lawing's house.
The defendant then dragged Ms. Wall outside. After Ms. Wall refused to leave with the defendant, he retrieved his keys from Ms. Wall's house and departed. Shortly thereafter, John Ruisi, a police officer employed with the Charlotte Mecklenburg Police Department, arrived and spoke with Ms. Wall. The defendant called Ms. Wall and spoke with Officer Ruisi. Officer Ruisi later took Ms. Wall to the hospital, where he prepared a written statement for her which she signed. The defendant turned himself in later that day.
In August 1998, the defendant was indicted for multiple offenses, including assault by pointing a gun, communicating threats, assault on a female, damage to personal property, and possession of a firearm by a felon. In June 1999, the defendant was indicted for second-degree kidnaping under a superceding indictment arising out of the same events. At the close of the State's evidence, the trial court dismissed the damage to personal property charge but denied the defendant's motion to dismiss the charge of second-degree kidnaping. On 22 June 1999, the jury returned verdicts of guilty on the remaining charges and the trial court entered judgment accordingly. After consolidating the cases under the second-degree kidnaping charge for sentencing purposes, the trial court enhanced the defendant's sentence for the kidnaping conviction under the firearm enhancement statute, N.C.Gen.Stat. § 15A-1340.16A (Supp.1996).
The defendant appealed, asserting as assignments of error that the trial court erred in: (1) denying his motion to dismiss the charge of second-degree kidnaping; (2) enhancing his sentence on the count of second-degree kidnaping under the firearm enhancement provision found in N.C.Gen.Stat. § 15A-1340.16A; (3) allowing into evidence alleged hearsay statements of Ms. Wall; and (4) refusing to permit him to introduce evidence of a specific prior bad act of Ms. Wall. The defendant has also filed a motion for appropriate relief in light of the United States Supreme Court's recent decisions in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999). We find no error in the trial, but remand for resentencing.
First, the defendant argues that the State failed to prove the specific intent necessary to support a conviction for second-degree kidnaping; specifically, that he unlawfully confined, restrained or removed Ms. Wall for the purpose of terrorizing her. We disagree.
As kidnaping is a specific intent crime, the State bears the burden of proving that the defendant "unlawfully confined, restrained, *478 or removed the [victim] for one of the eight purposes set out in the statute." State v. Moore, 315 N.C. 738, 743, 340 S.E.2d 401, 404 (1986); see N.C.Gen.Stat. § 14-39 (Supp.1996). "The indictment in a kidnaping case must allege the purpose or purposes upon which the State intends to rely, and the State is restricted at trial to proving the purposes alleged in the indictment." Moore, 315 N.C. at 743, 340 S.E.2d at 404.
N.C.Gen.Stat. § 14-39 provides in relevant part that:
(a) Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over without the consent of such person,... shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of: ...
(3) [T]errorizing the person so confined, restrained or removed ...;
(b) There shall be two degrees of kidnapping as defined by subsection (a).... If the person kidnapped was released in a safe place by the defendant and had not been seriously injured or sexually assaulted, the offense is kidnapping in the second degree and is punishable as a Class E felony.
N.C.Gen.Stat. § 14-39. The superceding indictment for second-degree kidnaping in the present case stated the following:
The jurors for the State upon their oath present that on or about the 19th day of July, 1998, in Mecklenburg County, Eric Earl Guice did unlawfully, wilfully and feloniously kidnap Kris Lavanta Wall, a person who had attained the age of sixteen (16) years, by unlawfully confining, restraining and removing her from one place to another, without her consent, and for the purpose of terrorizing.
The State was therefore limited at trial to proving that the defendant acted with the specific purpose of terrorizing Ms. Wall, and the jury was only allowed to convict the defendant on that theory. See Moore, 315 N.C. at 743, 340 S.E.2d at 404; see also State v. Taylor, 304 N.C. 249, 283 S.E.2d 761 (1981), cert. denied, 463 U.S. 1213, 103 S.Ct. 3552, 77 L.Ed.2d 1398, reh'g denied, 463 U.S. 1249, 104 S.Ct. 37, 77 L.Ed.2d 1456 (1983).
In reviewing the trial court's denial of the defendant's motion to dismiss for insufficiency of the evidence to sustain a conviction, "we must examine the evidence adduced at trial in the light most favorable to the State to determine if there is substantial evidence of every essential element of the crime." State v. McKinnon, 306 N.C. 288, 298, 293 S.E.2d 118, 125 (1982). Substantial evidence is that which a reasonable person would consider adequate to support the conclusion that each essential element exists. Id. Ill short, we must determine "whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Barnette, 304 N.C. 447, 458, 284 S.E.2d 298, 305 (1981) (citations omitted).
In determining whether there was sufficient evidence to support the jury's conclusion that the defendant sought to terrorize Ms. Wall, "the test is not whether subjectively [Ms. Wall] was in fact terrorized, but whether the evidence supports a finding that the defendant's purpose was to terrorize her." Moore, 315 N.C. at 745, 340 S.E.2d at 405. Terrorizing requires more than just putting Ms. Wall in a state of fear; it requires "putting [her] in some high degree of fear, a state of intense fright or apprehension." Id. (citing State v. Jones, 36 N.C.App. 447, 244 S.E.2d 709 (1978)). The defendant's intent or purpose to terrorize Ms. Wall, or the absence of such intent or purpose, may be inferred from the circumstances surrounding the alleged crime. State v. White, 307 N.C. 42, 48, 296 S.E.2d 267, 271 (1982).
When viewed in the light most favorable to the State, the evidence presented at trial showed that the defendant called Ms. Wall twice and entered her home uninvited and unannounced despite her threats to call the police. Ms. Wall testified that the defendant punched her repeatedly in the face and pointed a gun in her face, and demanded that she give him the gun she kept in her house. After she complied with this demand, Ms. Wallclothed only in a t-shirtfled to Mr. Lawing's house, where she was pursued and tracked down by the defendant. The defendant entered Mr. Lawing's house in pursuit *479 of Ms. Wall, pointed a gun at hima total strangerand forced him to lie down on the floor. The defendant struggled further with Ms. Wall, pushed a table against her, choked her, and dragged her outside. After Ms. Wall again implored the defendant to leave, the defendant finally departed. During the course of the struggle with the defendant, Ms. Wall suffered multiple bumps on her head, bruises on her arms, and fractured ribs. We conclude that the State presented substantial evidence from which a rational trier of fact could have found beyond a reasonable doubt that the defendant acted with the purpose of terrorizing Ms. Wall.
The defendant next contends that the trial court erred by enhancing his sentence for the second-degree kidnaping conviction as a result of his use of a firearm during the crime. Upon the jury returning guilty verdicts on all charges, the trial court held a sentencing hearing and consolidated all charges under the second-degree kidnaping charge for sentencing purposes. The trial court sentenced the defendant to a minimum term of 29 months imprisonment for the kidnaping conviction, and enhanced the sentence, citing N.C.Gen.Stat. § 15A-1340.16A, by 60 additional months for a minimum of 89 months imprisonment.
N.C.Gen.Stat. § 15A-1340.16A provides in part that:
(a) If a person is convicted of a Class ... E felony and the court finds that the person used, displayed, or threatened to use or display a firearm at the time of the felony, the court shall increase the minimum term of imprisonment to which the person is sentenced by 60 months.
Second-degree kidnaping constitutes a Class E felony. See N.C.Gen.Stat. § 14-39. Subsection (b) of N.C.Gen.Stat. § 15A-1340.16A provides:
Subsection (a) of this section does not apply in any of the following circumstances:
...
(2) The evidence of the use, display, or threatened use or display of a firearm is needed to prove an element of the underlying... felony.
The defendant argues that the trial court's enhancement of the defendant's sentence for second-degree kidnaping under N.C.Gen. Stat. § 15A-1340.16A was improper as the use of the gun by the defendant was necessary for the State to prove the essential element of terrorizing to support the kidnaping charge. Alternatively, the defendant argues that the trial court improperly enhanced the sentence on the second-degree kidnaping charge for using a firearm when he was contemporaneously convicted on charges of possession of a firearm by a convicted felon and assault by pointing a gun. As to both theories, we disagree.
As to the defendant's first theory, we note that the use of a firearm is not an essential element of the crime of second-degree kidnaping, regardless of the purpose alleged. See N.C.Gen.Stat. § 14-39. Therefore, the State need not have shown that the defendant used, displayed, or threatened to use or display a firearm to prove that he intended to terrorize Ms. Wall. As our Supreme Court has stated, "[b]ecause the use or display of a firearm is not an essential element of second-degree kidnapping, the trial court was not precluded from relying on evidence of defendant's use of the firearm and enhancing defendant's term of imprisonment pursuant to the firearm enhancement section." State v. Ruff, 349 N.C. 213, 216-17, 505 S.E.2d 579, 581 (1998).
As for the defendant's alternative argument that his "contemporaneous convictions" on firearm-related charges prevents the use of the firearm as a sentence-enhancement factor, we again disagree. First, we note that the defendant's convictions were consolidated by the trial court under the second-degree kidnaping charge, for which conviction he was sentenced. The defendant cites State v. Lattimore, 310 N.C. 295, 311 S.E.2d 876 (1984) for the proposition that a defendant's sentence cannot be enhanced by factors that are based on joined offenses of which the defendant has been contemporaneously convicted. However, as was noted in Ruff, the Lattimore case was,
decided under the former Fair Sentencing Act, N.C.G.S. ch. 15A, art. 81A (1988). However, our legislature has since repealed *480 the Fair Sentencing Act. Act of July 24, 1993, ch. 538, sec. 14, 1993 N.C.Sess.Laws 2298, 2318. Since defendant was found guilty and sentenced for crimes occurring after 1 October 1994, the Structured Sentencing Act, N.C.G.S. ch. 15A, art. 81B (1997), provides the controlling law. N.C.G.S. § 15A-1340.10 (1997).
Ruff, 349 N.C. at 216, 505 S.E.2d at 580. Similarly, in the instant case the defendant was convicted and sentenced for crimes occurring after 1 October 1994, so the Structured Sentencing Act controls. As was noted in Ruff, N.C.Gen.Stat. § 15A-1340.16A(a) does not apply where "[t]he evidence of the use, display, or threatened use or display of a firearm is needed to prove an element of the underlying ... felony." See id. (quoting N.C.Gen.Stat. § 15A-1340.16A(b)(2)). The underlying felony in the instant case, as in Ruff, is second-degree kidnaping, of which the use or display of a firearm is not an essential element. See Ruff, 349 N.C. at 216-17, 505 S.E.2d at 581. The trial court therefore committed no error in using the firearm enhancement provision to enhance the defendant's sentence on the charge of second-degree kidnaping. See id.
The defendant also challenges the constitutionality of the firearm enhancement provision in his motion for appropriate relief. According to the defendant, the recent holdings by the United States Supreme Court in Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), render N.C.Gen.Stat. § 15A-1340.16A unconstitutional on its face, and additionally argues that the statute was unconstitutionally applied to the defendant in the instant case. In support of his argument, the defendant also cites the Fifth, Sixth and Fourteenth Amendments to the United States Constitution, and Article I, Sections 19 and 23 of the North Carolina Constitution. We agree that the firearm enhancement statute is facially unconstitutional pursuant to the Supreme Court's holding in Apprendi, under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.
We first point out that the defendant's motion for appropriate relief is properly before this Court. N.C.Gen.Stat. § 15A-1418(a) (1999); State v. Brock, 46 N.C.App. 120, 264 S.E.2d 390 (1980); N.C.Gen.Stat. § 15A-1415 (1999). He asserts in his motion that the Apprendi decision is a Constitutional ruling and, as such, represents "a significant change in law" that was applied by the trial court in sentencing him, such that "retroactive application of the changed legal standard is required." N.C.Gen.Stat. § 15A-1415(b)(7) (1999). The defendant further asserts that he was "sentenced under a statute that was in violation of the Constitution of the United States or the Constitution of North Carolina." N.C.Gen.Stat. § 15A-1415(b)(4) (1999). Accepting the defendant's assertions as true, arguendo, we consider the defendant's motion for appropriate relief. We also note that Apprendi was decided on 26 June 2000, while this case was on direct review; as such, Apprendi applies here. See Teague v. Lane, 489 U.S. 288, 302-03, 109 S.Ct. 1060, 1071, 103 L.Ed.2d 334, 350-51 (1989) ("new rules should always be applied retroactively to cases on direct review, but... generally they should not be applied retroactively to cases on collateral review"); State v. Green, 350 N.C. 400, 405, 514 S.E.2d 724, 727 (1999).
Article I, Section 19 of the North Carolina Constitution provides the basis for due process in North Carolina:
No person shall be taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty, or property, but by the law of the land. No person shall be denied the equal protection of the laws; nor shall any person be subjected to discrimination by the State because of race, color, religion, or national origin.
N.C. Const. art I, § 19. Our courts have long held that "[t]he `law of the land' clause has the same meaning as `due process of law' under the Federal Constitution." Summey Outdoor Advertising, Inc. v. County of Henderson, 96 N.C.App. 533, 541, 386 S.E.2d 439, 444 (1989), disc. review denied, 326 N.C. 486, 392 S.E.2d 101 (1990); see also State v. *481 Jones, 305 N.C. 520, 290 S.E.2d 675 (1982); State v. Smith, 90 N.C.App. 161, 368 S.E.2d 33 (1988), aff'd, 323 N.C. 703, 374 S.E.2d 866, cert. denied, 490 U.S. 1100, 109 S.Ct. 2453, 104 L.Ed.2d 1007 (1989) (the term "law of the land" in art. I, § 19 of the North Carolina Constitution is synonymous with "due process of law" as that term is used in the Fourteenth Amendment of the United States Constitution). Nonetheless, federal court interpretations (including those of the United States Supreme Court) of due process under the Fourteenth Amendment of the United States Constitution, while highly persuasive, are not binding in construing the "law of the land" clause under N.C. Const. art I, § 19. Armstrong v. Armstrong, 85 N.C.App. 93, 97, 354 S.E.2d 350, 353 (1987), rev'd on other grounds, 322 N.C. 396, 368 S.E.2d 595 (1988); see also Smith, 90 N.C.App. at 163, 368 S.E.2d at 35; Bentley v. North Carolina Ins. Guar. Ass'n, 107 N.C.App. 1, 9, 418 S.E.2d 705, 709 (1992); Lorbacher v. Housing Auth. of City of Raleigh, 127 N.C.App. 663, 674-75, 493 S.E.2d 74, 81 (1997). It is axiomatic that our "State constitutional due process requirements may be more expansive than the minimal due process requirements of the United States Constitution," Wake County ex rel. Carrington v. Townes, 53 N.C.App. 649, 650 n. 1, 281 S.E.2d 765, 766-67 n. 1 (1981), but that our state due process requirements under N.C. Const. art. I, § 19 must equal or surpass those imposed under U.S. Const. amend. XIV. Therefore, to comport with our state due process requirements, a statute must, at the least, meet the due process requirements under U.S. Const. amend. XIV. We therefore begin our analysis with a review of Fourteenth Amendment due process requirements.
The term "due process" has a dual significance, insofar as it "provides two types of protection for individuals against improper governmental action." State v. Thompson, 349 N.C. 483, 491, 508 S.E.2d 277, 282 (1998); see also State v. Smith, 265 N.C. 173, 180, 143 S.E.2d 293, 299 (1965); In re Moore, 289 N.C. 95, 101, 221 S.E.2d 307, 311 (1976). First,
"Substantive due process" protection prevents the government from engaging in conduct that "shocks the conscience," ... or interferes with rights "implicit in the concept of ordered liberty."
Thompson, 349 N.C. at 491, 508 S.E.2d at 282 (citations omitted); see also Smith, 265 N.C. at 180, 143 S.E.2d at 299; Moore, 289 N.C. at 101, 221 S.E.2d at 311. Second,
"Procedural due process" protection ensures that when government action depriving a person of life, liberty, or property survives substantive due process review, that action is implemented in a fair manner.
Id. (citations omitted).
An individual's liberty interest is substantial, and due process must be afforded when a state seeks to deprive an individual of that liberty interest. See Townes, 53 N.C.App. at 650, 281 S.E.2d at 767. Substantive due process "may be characterized as a standard of reasonableness, and as such it is a limitation upon the exercise of the police power." Smith, 265 N.C. at 180, 143 S.E.2d at 299 (citations omitted). "The traditional substantive due process test has been that a statute must have a rational relation to a valid state objective." Moore, 289 N.C. at 101, 221 S.E.2d at 311. Substantive due process, therefore, provides "a guaranty against arbitrary legislation, demanding that the law be substantially related to the valid object sought to be obtained." Lowe v. Tarble, 313 N.C. 460, 461, 329 S.E.2d 648, 650 (1985) (citing State v. Joyner, 286 N.C. 366, 211 S.E.2d 320 (1975)); see State v. Killian, 37 N.C.App. 234, 245 S.E.2d 812 (1978). Thus, we may not invoke Fourteenth Amendment substantive due process to overturn N.C.Gen.Stat. § 15A-1340.16A if there is some rational basis for the enactment of the statute. Tarble, 313 N.C. at 462, 329 S.E.2d at 650.
The defendant in this case does not contestand indeed we holdthat the General Assembly had a reasonable basis for enacting N.C.Gen.Stat. § 15A-1340.16A. "[T]he governmental objectives of the statute are legitimate and permissible. The legislation is not arbitrary and is substantially related to the legislative goals." Id.; see Apprendi, 530 U.S. at 474, 120 S.Ct. at 2354, 147 L.Ed.2d at 446 ("The strength of the *482 state interests that are served by the ... legislation has no more bearing on this procedural question than the strength of the interests served by other provisions of the criminal code.").
As the substantive basis for the firearm enhancement statute is not at issue, we consider whether the statute comports with Fourteenth Amendment procedural due process requirements. See Townes, 53 N.C.App. at 651, 281 S.E.2d at 767 ("the touchstone of due process is the presence of fundamental fairness in any judicial proceeding adversely affecting the interests of an individual"). The United States Supreme Court's decisions in Jones and Apprendi are particularly instructive in analyzing this aspect of the North Carolina firearm enhancement statute, and we consider each decision in detail.
At issue in Jones was the federal carjacking statute, 18 U.S.C. § 2119 (1988 ed., Supp. V), and in particular certain provisions of the statute that established higher penalties to be imposed when the proscribed conduct resulted in serious bodily injury or death. The United States Supreme Court considered whether the fact of resulting serious bodily injury or death was a mere sentencing factor, or rather an additional element of the offense that must be charged in the indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict. 526 U.S. at 232, 119 S.Ct. at 1218, 143 L.Ed.2d at 319 ("Much turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt.") In a footnote, the United States Supreme Court stated the principle underlying its view, "that the carjacking statute, as construed by the Government, may violate the Constitution," id. at 243, 119 S.Ct. at 1224, 143 L.Ed.2d at 326, as follows:
[U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. Because our prior cases suggest rather than establish this principle, our concern about the Government's reading of the statute rises only to the level of doubt, not certainty.
Id. at 243 n. 6, 119 S.Ct. at 1224 n. 6, 143 L.Ed.2d at 326 n. 6. Early in its opinion, the United States Supreme Court expressed skepticism toward the government's reading of the statute, stating that "[i]t is at best questionable whether the specification of facts sufficient to increase a penalty range... was meant to carry none of the process safeguards that elements of an offense bring with them for a defendant's benefit." Id. at 233, 119 S.Ct. at 1219, 143 L.Ed.2d at 319-20.
However, the United States Supreme Court recognized the possibility of two differing views of the carjacking statute: The construction advocated by the government, urging that the fact of "serious bodily harm" or death under the statute is a mere sentencing factor, and the opposing view treating the fact of such harm or death as an element of an offense. With these differing views in mind, the United States Supreme Court noted the rule that" `where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter.'" Id. at 239, 119 S.Ct. at 1222, 143 L.Ed.2d at 324 (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 468, 29 S.Ct. 527, 536, 53 L.Ed. 836, 849 (1909)).
As the construction advocated by the government would "open [the statute] to constitutional doubt in light of a series of cases over the past quarter century, dealing with due process and the guarantee of trial by jury," id. at 240, 119 S.Ct. at 1222, 143 L.Ed.2d at 324, the United States Supreme Court instead adopted what it deemed the "fairest reading" of the statute, id. at 239, 119 S.Ct. at 1222, 143 L.Ed.2d at 324, construing "serious bodily harm" as a distinct element of a separate offense from the carjacking offense, "which must be charged by indictment, proven beyond a reasonable doubt, and submitted to a jury for its verdict." *483 Id. at 251-52, 119 S.Ct. at 1228, 143 L.Ed.2d at 331. The United States Supreme Court thereby avoided ruling on the constitutionality of the carjacking statute, instead remanding the case for further consistent proceedings. Id. ("Any doubt on the issue of statutory construction is hence to be resolved in favor of avoiding [the serious constitutional] questions" raised by the government's view).
In Apprendi, the United States Supreme Court considered a challenge to New Jersey's hate-crime statute, which provided for sentence enhancement if the trial judge found, by a preponderance of the evidence, that the defendant acted to intimidate on the basis of "race, color, gender, handicap, religion, sexual orientation or ethnicity." 530 U.S. at 469, 120 S.Ct. at 2351, 147 L.Ed.2d at 442 (citing N.J.Stat.Ann. § 2C:44-3(e) (West Supp.2000)). At the outset, the United States Supreme Court in Apprendi noted that "constitutional protections of surpassing importance" were at stake therein, including the Fourteenth Amendment "proscription of any deprivation of liberty without `due process of law,'" as well as the Sixth Amendment guarantee to an accused in a criminal prosecution of "`the right to a speedy and public trial, by an impartial jury.'" Id. at 476, 120 S.Ct. at 2355, 147 L.Ed.2d at 447. "Taken together, these rights indisputably entitle a criminal defendant to `a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.'" Id. at 477, 120 S.Ct. at 2355-56, 147 L.Ed.2d at 447 (quoting United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 2313, 132 L.Ed.2d 444, 449 (1995)). The question before the United States Supreme Court was to what extent the same procedural protections should extend to facts which, while not formally defined by the legislature as "elements" of an offense, nonetheless increase the maximum statutory penalty to which a defendant may be subjected.
The United States Supreme Court elevated the above-quoted language in Jones from dicta to the status of constitutional law with respect to state prosecutions of state offenses, finding that New Jersey's hate-crime statute violated due process. In so doing, it held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 524, 120 S.Ct. at 2363-63, 147 L.Ed.2d at 455. Following its discussion of the historical underpinnings of the constitutional guarantees of due process and trial by jury, the United States Supreme Court stated:
We should be clear that nothing in this history suggests that it is impermissible for judges to exercise discretiontaking into consideration various factors relating both to offense and offenderin imposing a judgment within the range prescribed by statute. We have often noted that judges in this country have long exercised discretion of this nature in imposing sentence within statutory limits in the individual case.
530 U.S. at 481, 120 S.Ct. at 2358, 147 L.Ed.2d at 449 (emphasis added in part). Thus, the rule set forth in Apprendi is not violated unless the trial court, following its discretionary consideration of factors relating to both the offense and the offender, imposes a penalty that exceeds the maximum the defendant could receive, by statute, for the particular underlying offense. The United States Supreme Court stated the relevant inquiry as so: "[D]oes the required finding expose the defendant to a greater punishment than that authorized by the jury's guilty verdict?" Id. at 494, 120 S.Ct. at 2365, 147 L.Ed.2d at 457.
The defendant in this case first argues in his motion that the enhancement of his sentence under the firearm enhancement statute should be vacated, as the elements required for the enhancement, i.e., that the defendant "used, displayed, or threatened to use or display a firearm at the time of the felony," N.C.Gen.Stat. § 15A-1340.16A, were not alleged in the second-degree kidnaping indictment. According to the defendant, the omission of such facts rendered the indictment deficient, and the trial court therefore lacked the jurisdiction to impose the firearm enhancement.
*484 The State does not contest that these facts were not alleged in the indictment, but argues that the Apprendi decision does not require such facts to be alleged in the indictment in state cases. Notably, it is the Jones decision, concerning the prosecution of a federal crime in federal court, that includes language (quoted, supra) requiring such facts to be charged in the indictment. 526 U.S. at 243 n. 3, 119 S.Ct. at 1224 n. 3, 143 L.Ed.2d at 326 n. 3. The Apprendi Court, concerning a state prosecution of a state offense in state court, declared only that such facts "must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 491, 120 S.Ct. at 2363, 147 L.Ed.2d at 455. The issue of whether the fact in question had to be charged in the indictment was not argued to the United States Supreme Court in Apprendi, wherein that Court stated in a footnote:
Apprendi has not here asserted a constitutional claim based on the omission of any reference to sentence enhancement or racial bias in the indictment. He relies entirely on the fact that the "due process of law" that the Fourteenth Amendment requires the States to provide to persons accused of crimes encompasses the right to a trial by jury, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), and the right to have every element of the offense proved beyond a reasonable doubt, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). That Amendment has not, however, been construed to include the Fifth Amendment right to "presentment or indictment of a Grand Jury" that was implicated in our recent decision in Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). We thus do not address the indictment question separately today.
Id. at 476-77 n. 3, 120 S.Ct. at 2355 n. 3, 147 L.Ed.2d at 447 n. 3 (emphasis added).
Thus, the Apprendi decision does not support the defendant's assertion that "[t]he Trial Court did not have jurisdiction to impose the 60 month firearm enhancement" on the grounds that "the facts underlying their imposition were not alleged in the indictments." Indeed, we are unaware of any United States Supreme Court case which has applied the Due Process Clause of the Fourteenth Amendment in a manner which requires that a state indictment for a state offense must contain each element and fact which might increase the maximum punishment for the crime charged. See State v. Wallace, 351 N.C. 481, 508, 528 S.E.2d 326, 343 (2000) (upholding the constitutionality of North Carolina's short-form indictment despite a challenge in light of Jones). We are similarly unaware of any binding case law from any other federal courts, or from our own state courts, commanding such an outcome under either the United States Constitution or the North Carolina Constitution. The defendant's argument that the trial court was without jurisdiction to impose the 60 month firearm enhancement as the facts underlying the enhancement were not alleged in the indictment for second-degree kidnaping is therefore without merit. See Wallace, 351 N.C. at 508, 528 S.E.2d at 343.
The defendant next asserts that, in light of the Apprendi decision, the firearm enhancement statute is unconstitutional on its face, and as applied to him in this case, as it permits the trial court to make the requisite factual findings, instead of requiring that such factual determinations be submitted to the jury and proved beyond a reasonable doubt.
The defendant contends in his motion that, in determining the maximum penalty authorized by statute, one must consider the particular defendant's prior record level, as well as the existence or absence of aggravating or mitigating factors, as found by the trial court. Given the defendant's prior record level in the instant case of Level II and the absence of any finding of aggravating or mitigating factors, the defendant was subject to the presumptive range of minimum durations of punishment (23-29 months) for the offense of second-degree kidnaping, a Class E felony. See N.C.Gen.Stat. § 15A-1340.17 (Supp.1996); N.C.Gen.Stat. § 14-39. The trial court imposed a minimum sentence of 29 months, which corresponds to a maximum term of imprisonment of 44 months. See N.C.Gen.Stat. § 15A-1340.17(e). The trial *485 court then imposed the firearm enhancement, increasing the defendant's minimum term of imprisonment by 60 months to 89 months, which corresponds to a maximum term of imprisonment of 116 months. See N.C.Gen. Stat. § 15A-1340.16A(a); N.C.Gen.Stat. § 15A-1340.17(e). The defendant contends that his resulting sentence of 89 to 116 months was unconstitutional, as it far exceeded the "prescribed statutory maximum" for second-degree kidnaping, which, according to the defendant, was only 44 months.
The State counters that "the prescribed statutory maximum for an offense is the ultimate maximum possible provided by statute," such that the defendant's prior record level, and the absence or existence of aggravating or mitigating factors, is irrelevant in determining the maximum statutory punishment, and we need only look at the maximum punishment possible for the class of felony for which the defendant was convicted. Thus, by virtue of a jury's guilty verdict for a particular class of felony, the defendant would be subjected to the maximum punishment theoretically available to an offender committing that class of felony, assuming the highest prior record level (Level VI) and a finding of aggravating circumstances.[1]
Regardless of the manner in which the "prescribed statutory maximum" punishment is calculated, the State acknowledges that the firearm enhancement provision is unconstitutional as it was applied to the defendant in the instant case. Even assuming the State's asserted calculation of the "prescribed statutory maximum" punishment is correct, N.C.Gen.Stat. § 15A-1340.17(c) provides that for a defendant with prior record Level VI, and upon a finding of aggravating factors, the range of minimum durations of imprisonment for a Class E felony is 59-74 months. A minimum sentence of 74 months imprisonment (the absolute uppermost minimum term for a Class E felony) would correspond to a maximum term of 98 months. N.C.Gen.Stat. § 15A-1340.17(e). While the defendant contends the prescribed statutory maximum in this instance is 44 months, the State would apparently argue that the maximum penalty is 98 months. As the imposed sentence of 89 months minimum and 116 months maximum exceeded even the absolute uppermost statutory minimum of 74 months and maximum of 98 months, as calculated, the State concedes that the 60 month firearm enhancement was unconstitutionally applied in this instance. We agree.
Nonetheless, the State argues that the defendant has failed to establish that the statute is facially unconstitutional. Our Supreme Court has recently considered the requisite burden of proof in establishing the facial unconstitutionality of a statute, stating:
"A facial challenge to a legislative [a]ct is, of course, the most difficult challenge to mount successfully." United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697, 707 (1987). "The presumption is that any act passed by the legislature is constitutional, and the court will not strike it down if [it] can be upheld on any reasonable ground." Ramsey v. N.C. Veterans Comm'n, 261 N.C. 645, 647, 135 S.E.2d 659, 661 (1964). An individual challenging the facial constitutionality of a legislative act "must establish that no set *486 of circumstances exists under which the [a]ct would be valid." Salerno, 481 U.S. at 745, 107 S.Ct. at 2100, 95 L.Ed.2d at 707. The fact that a statute "might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid." Id.
Thompson, 349 N.C. at 491, 508 S.E.2d at 281-82. According to the State, Thompson states the inquiry as whether there exists any circumstances under which the firearm enhancement statute could be valid. As the defendant has failed to establish that there exist no circumstances under which the firearm enhancement could be constitutionally applied, the State contends that the firearm enhancement statute therefore is not facially unconstitutional as the defendant argues. See id.
Even assuming the defendant's more conservative method of calculating the prescribed statutory maximum punishment by considering the defendant's prior record level, the State argues that there are instances in which the 60 month firearm enhancement will not necessarily result in the imposition of a sentence exceeding the "statutory maximum." For example, a prior record Level II defendant convicted of a Class C felony may be subjected to a minimum term of 60 months (the lowermost term in the mitigated range) up to a minimum term of 125 months (the uppermost term in the aggravated range). If a defendant were sentenced in the mitigated range to a minimum of 60 months, even the imposition of the 60 month firearm enhancement would not exceed the uppermost statutory minimum in the aggravated range of 125 months. Again this ignores, in calculating the prescribed statutory maximum, any determination by the trial court of the absence or existence of mitigating or aggravating circumstances, such that the prescribed statutory maximum in every instance would be calculated based upon the highest statutory minimum in the aggravated range for a given class of felony and a given prior record level. The defendant argues that it is improper to ignore the trial court's finding of aggravating or mitigating circumstances in this manner.
While we perceive inequity in attributing theoretical characteristics to a defendant in this manner in order to determine the "prescribed statutory maximum" punishment available for an offense, we need not decide this question to resolve the issue currently before us, i.e., whether the firearm enhancement statute can be applied in a manner that would not offend the United States Supreme Court's decision in Apprendi.
In United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)relied upon by our Supreme Court in Thompson the United States Supreme Court upheld the federal Bail Reform Act against a facial constitutionality challenge on the basis of substantive and procedural due process. As to the procedural due process challenge, the United States Supreme Court analyzed whether the procedures of the Bail Reform Act were sufficient to permit, pursuant thereto, the pretrial detention of some persons charged with crimes. Salerno, 481 U.S. at 751, 107 S.Ct. at 2103, 95 L.Ed.2d at 711.
The United States Supreme Court noted that the Bail Reform Act limited the possibility of pretrial detention to only the most serious crimes, id. at 747, 107 S.Ct. at 2101, 95 L.Ed.2d at 709, and concluded that "the pretrial detention contemplated by the Bail Reform Act is regulatory in nature, and does not constitute punishment before trial in violation of the Due Process Clause." Id. at 748, 107 S.Ct. at 2102, 95 L.Ed.2d at 709. The United States Supreme Court declined to "intimate [a] view as to the point at which detention in a particular case might become excessively prolonged, and therefore punitive, in relation to Congress' regulatory goal." Id. at 747 n. 4, 107 S.Ct. at 2102 n. 4, 95 L.Ed.2d at 709 n. 4. In rejecting the facial constitutionality challenge, the United States Supreme Court relied upon the legitimate and compelling regulatory purpose of the Act, as well as its finding that there were extensive procedural safeguards to protect the rights of pretrial detainees under the Act. Id. at 752, 107 S.Ct. at 2104, 95 L.Ed.2d at 711-12.
In Thompson, our Supreme Court addressed the constitutionality of N.C.Gen.Stat. § 15A-534.1, authorizing the temporary pretrial *487 detention, in limited circumstances, of certain persons charged with certain crimes of domestic violence. N.C.Gen.Stat. § 15A-534.1 (Supp.1996). As in Salerno, the statute in Thompson involved a discretionary imposition of pretrial detention for a limited time (a maximum of 48 hours without a determination being made by a judge or magistrate), with attendant procedural safeguards for the protection of the detainees' rights. The pretrial detention statute survived the facial constitutional challenge on the basis that the application of the procedural safeguards built into the statute served to protect the rights of defendants detained thereunder. While certain defendants (including Thompson) may, despite those safeguards, have their due process rights unconstitutionally denied as a result of an improper application of the statute, the General Assembly, in enacting the statute, included such safeguards to make such unconstitutional applications an anomaly, rather than the norm.
In contrast to the statutes at issue in Salerno and Thompson, the North Carolina firearm enhancement statute offers no such procedural safeguards, but instead removes from the jury the determination of facts that, if found, automatically deprive defendants of their liberty for a period of 60 months above and beyond that which the trial court could otherwise impose based upon the jury's guilty verdict on the underlying felony. The statute thus deprives defendants of their liberty while categorically denying them the attendant historical procedural safeguards: The right to have facts subjecting them to an increased penalty submitted to an impartial jury, and proved beyond a reasonable doubt.
The Bail Reform Act in Salerno presented federal prosecutors with a framework within which to seek pretrial detention in limited circumstances (yielding to trial courts the discretion to impose such detention), and established numerous procedural safeguards for the protection of the rights of persons so detained. The question of the constitutionality of the Act therefore became a matter of degree in its application, rather than constitutionality on its face. We find the facts of Salerno and its consideration of the federal Bail Reform Act to be inapposite to our present consideration of our state firearm enhancement statute. Likewise, insofar as Thompson, 349 N.C. 483, 508 S.E.2d 277, relies upon Salerno, we find Thompson to be inapposite, as it, too, dealt with a regulatory scheme rather than a punitive measure, and afforded discretion to trial judges, together with safeguards for defendants. It is precisely the lack of such discretion and procedural safeguards in the firearm enhancement statute which the defendant here contests.
Without endorsing the State's preferred method of calculating the "prescribed statutory maximum," we recognize the view that there may be circumstances (albeit rare) wherein the 60 month enhancement may be applied without exceeding the "prescribed statutory maximum" punishment. Nonetheless, the United States Supreme Court's decision in Apprendi commands that we find the firearm enhancement statute unconstitutional. The Apprendi Court expressly endorsed:
the statement of the rule set forth in the concurring opinions in [Jones]: "[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt." 526 U.S. at 252-53, 119 S.Ct. [at 1228-29, 143 L.Ed.2d at 332] (opinion of Stevens, J.); see also id., at 253, 119 S.Ct. [at 1229, 143 L.Ed.2d at 332] (opinion of Scalia, J.).
Apprendi, 530 U.S. at 490, 120 S.Ct. at 2363, 147 L.Ed.2d at 455. The North Carolina firearm enhancement statute mandates that "the court shall increase the minimum term of imprisonment to which the [defendant] is sentenced by 60 months" if the court "finds that the [defendant] used, displayed, or threatened to use or display a firearm at the time of the felony," thereby explicitly removing from the jury the requisite factual determination. N.C.Gen.Stat. § 15A-1340.16A(a). Here, as in Apprendi, the statute in question removes any judicial discretion and requires an automatic enhancement of the sentence if the trial court makes a certain factual determination. See N.J.Stat.Ann. § 2C:44-3 (West Supp.2000) (requiring the trial court to *488 sentence the defendant "to an extended term if it finds, by a preponderance of the evidence," that the defendant "acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity"). Such a scheme directly contravenes the rule established in Apprendi.
Contrary to the State's assertions, the United States Supreme Court's holding in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), does not lend support to its argument. In McMillan, the United States Supreme Court considered a challenge to Pennsylvania's Mandatory Minimum Sentencing Act, 42 Pa. Cons.Stat. § 9712 (1982), which subjected defendants convicted of certain felonies to a mandatory minimum sentence of five years' imprisonment if the sentencing judge found, by a preponderance of the evidence, that the defendant "visibly possessed a firearm" during the commission of the underlying felony. A separate sentencing statute mandated that the court "shall impose a minimum sentence of confinement which shall not exceed one-half of the maximum sentence imposed." 42 Pa. Cons.Stat. § 9756(b) (1982).
Construing § 9712 and § 9756(b) together, the shortest maximum term permissible under the Mandatory Minimum Sentencing Act would be 10 years. The enumerated felonies listed in the Act consisted of felonies of the first degree, carrying a maximum penalty of 20 years' imprisonment, and of the second degree, carrying a maximum penalty of 10 years' imprisonment. McMillan, 477 U.S. at 87, 106 S.Ct. at 2416, 91 L.Ed.2d at 77; see 42 Pa. Cons.Stat. §§ 9712, 9756(b). The statute thus operated "to divest the judge of discretion to impose any sentence of less than five years for the underlying felony," but did not "authorize a sentence in excess of that otherwise allowed for that offense." Id. at 81-82, 106 S.Ct. at 2413-14, 91 L.Ed.2d at 73.
That is, the Act "ups the ante" for defendants, id. at 88, 106 S.Ct. at 2417, 91 L.Ed.2d at 77, by increasing the minimum sentence to 5 years, and incidentally (pursuant to § 9756(b)) placing a lower limit of 10 years on the maximum term. Given that the maximum term of imprisonment (ignoring the 5 year minimum imposed by the Act) for the commission of the underlying felonies carries a maximum term of at least 10 years (and up to 20 years), the Act itself, when enforced according to its terms, does not expose defendants to greater or additional punishment. The same cannot be said of the North Carolina firearm enhancement statute, which, as demonstrated in the present case, "expose[s] the defendant to a greater punishment than that authorized by the jury's guilty verdict." Apprendi, 530 U.S. at 494, 120 S.Ct. at 2365, 147 L.Ed.2d at 457.
As we find that the firearm enhancement statute at issue here, when enforced according to its terms, "remove[s] from the jury the assessment of facts that increase the prescribed range of penalties to which [the] criminal defendant is exposed," id. at 490, 120 S.Ct. at 2363, 147 L.Ed.2d at 455, we must, pursuant to Apprendi, declare the statute facially unconstitutional as violative of due process. See id. at 496, 120 S.Ct. at 2366, 147 L.Ed.2d at 459 (finding that the procedures in New Jersey's challenged hate-crime statute represent "an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system.") See also U.S. Const. amend. V, VI, XIV. As a result, the defendant's "as applied" constitutionality argument is moot; similarly, we need not consider the defendant's arguments under the North Carolina Constitution. The defendant's motion for appropriate relief is therefore (1) denied in part insofar as it requests the right to a full briefing on all issues raised therein, and (2) granted in part insofar as it requests a determination that N.C.Gen.Stat. § 15A-1340.16A is facially unconstitutional, and requests that the defendant's 60 month firearm sentence enhancement be vacated. See N.C.Gen.Stat. § 15A-1415(b)(7).
In the defendant's third assignment of error, he argues that the trial court erred on three separate occasions in allowing the State to present alleged hearsay statements made by Ms. Wall. First, the defendant contends that the trial court erred in allowing Officer Ruisi to testify concerning oral statements *489 made to him by Ms. Wall after he first found her in Mr. Lawing's back yard. Second, the defendant contends the trial court erred in allowing into evidence Ms. Wall's written statement which was taken by Officer Ruisi approximately two hours and forty-five minutes after the argument with the defendant. Third, the defendant argues that the trial court erred in allowing Officer Ruisi to read Ms. Wall's written statement aloud to the jury. We find no error.
Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.C.R. Evid. 801(c) (1992). Statements which constitute hearsay are "inadmissible except as provided by statute or the rules of evidence." State v. Rogers, 109 N.C.App. 491, 498, 428 S.E.2d 220, 224, disc. review denied, 334 N.C. 625, 435 S.E.2d 348 (1993), cert. denied, 511 U.S. 1008, 114 S.Ct. 1378, 128 L.Ed.2d 54, reh'g denied, 511 U.S. 1102, 114 S.Ct. 1875, 128 L.Ed.2d 495 (1994); see also N.C.R.Evid. 802 (1992).
An exception to the general rule of inadmissibility of hearsay is acknowledged for excited utterances. "[T]estimony of a witness as to a statement made by a declarant relating to a startling event and made while the declarant was under the stress of that event is not excludable under the hearsay rule." State v. Sneed, 327 N.C. 266, 272, 393 S.E.2d 531, 534 (1990); see also State v. Littlejohn, 340 N.C. 750, 459 S.E.2d 629 (1995); N.C.R.Evid. 803(2) (1992). Rule 803(2) provides that "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" should not be excluded by the hearsay rule, even though the declarant is available to testify. N.C.R.Evid. 803(2). The rationale underlying the admissibility of an excited utterance is its inherent trustworthiness. State v. Wingard, 317 N.C. 590, 598, 346 S.E.2d 638, 644 (1986). In order for a statement to fall within the parameters of the excited utterance exception of Rule 803(2), "`there must be (1) a sufficiently startling experience suspending reflective thought and (2) a spontaneous reaction, not one resulting from reflection or fabrication.'" State v. Pickens, 346 N.C. 628, 644, 488 S.E.2d 162, 171 (1997) (quoting State v. Smith, 315 N.C. 76, 86, 337 S.E.2d 833, 841 (1985)).
The evidence presented at trial showed that Ms. Wall made an oral statement to Officer Ruisi when he first arrived at Mr. Lawing's house and found her in Mr. Lawing's back yard. This oral statement was made to Officer Ruisi within several minutes of the defendant dragging Ms. Wall out of Mr. Lawing's house. Officer Ruisi testified that Ms. Wall was crying when he first found her and was so terrified she was having difficulty breathing. The trial court permitted Officer Ruisi to testify as to Ms. Wall's oral statement to him on the basis that her statement constituted an excited utterance under Rule 803(2). Based on the circumstances surrounding the statement, we find no error in the trial court's determination that this oral statement was an excited utterance, and its admission via Officer Ruisi's testimony was not improper.
The defendant's argument that Ms. Wall's written statement was inadmissible hearsay is likewise without merit. The trial court admitted the written statement not as substantive evidence, but for the limited purpose of corroborative evidence only, which does not constitute hearsay. See State v. Ford, 136 N.C.App. 634, 640 n. 2, 525 S.E.2d 218, 222 n. 2 (2000); State v. Marine, 135 N.C.App. 279, 287, 520 S.E.2d 65, 69 (1999). Our courts have long held that a witness's prior consistent statements may be admissible to corroborate the witness's in-court testimony. See State v. Gell, 351 N.C. 192, 524 S.E.2d 332 (2000); State v. Coffey, 345 N.C. 389, 480 S.E.2d 664 (1997). In order to be admissible as corroborative evidence, "the prior statement of the witness need not merely relate to specific facts brought out in the witness's testimony at trial, so long as the prior statement in fact tends to add weight or credibility to such testimony." State v. Ramey, 318 N.C. 457, 469, 349 S.E.2d 566, 573 (1986). Nonetheless, while "[t]he trial court has wide latitude in deciding when a prior consistent statement can be admitted for corroborative, nonhearsay *490 purposes," State v. Call, 349 N.C. 382, 410, 508 S.E.2d 496, 513 (1998) (citing State v. Levan, 326 N.C. 155, 388 S.E.2d 429 (1990)), the State may not introduce as corroborative evidence prior statements of a witness that directly contradict the witness's trial testimony. See Gell, 351 N.C. at 204, 524 S.E.2d at 340.
We find that the written statement given by Ms. Wall to Officer Ruisi at the hospital was a prior consistent statement that the trial court properly admitted for the limited purpose of corroborating Ms. Wall's in-court testimony. While Ms. Wall's written statement was not identical to her in-court testimony, it nonetheless was generally consistent with and tended to add weight or credibility to her sworn testimony. See Ramey, 318 N.C. at 468, 349 S.E.2d at 573; see also State v. Locklear, 320 N.C. 754, 762, 360 S.E.2d 682, 686 (1987). Furthermore, the trial court allowed defense counsel to redact certain portions of the statement, and instructed the jury to consider the statement for corroborative purposes only. We further conclude that it was not improper for the trial court to permit Officer Ruisi to read aloud the written statement (with appropriate portions redacted as requested by defense counsel) to the jury. We are aware of no authority holding that the declarant is the only party entitled to read aloud a prior consistent statement that corroborates their in-court testimony, and we decline to so hold. The defendant's third assignment of error is therefore overruled.
The defendant's final assignment of error asserts that the trial court erred in preventing the defendant from introducing evidence of a prior bad act performed by Ms. Wall. In an effort to impeach Ms. Wall's credibility, the defendant sought to introduce extrinsic evidence showing that in February 1998, Ms. Wall let the air out of the tires of the defendant's vehicle. The defendant sought to elicit testimony to this effect on direct examination from the sister of the defendant, who was testifying as a defense witness. At no time did the defendant question Ms. Wall concerning this incident on cross-examination. The trial court held a voir dire hearing and declined to admit this evidence. We note that N.C.R.Evid. 608(b) prohibits such use of evidence of specific instances of conduct. See N.C.R.Evid. 608(b) (1992). We conclude that the trial court did not commit reversible or plain error by excluding this evidence.
Based upon our finding that the firearm enhancement statute, N.C.Gen.Stat. § 15A-1340.16A, is unconstitutional pursuant to the United States Supreme Court's decision in Apprendi, we vacate the defendant's sentence and remand in part to the trial court for resentencing.
No error in part, vacated and remanded in part for resentencing.
LEWIS and HUNTER, JJ., concur.
NOTES
[1] We note that the United States Court of Appeals, Fourth Circuit, recently construed North Carolina's structured sentencing scheme in order to determine what constitutes a previous conviction for "a crime punishable by imprisonment for a term exceeding one year" for purposes of applying 18 U.S.C. § 922(g)(1). United States v. Jones, 195 F.3d 205, 206 (4th Cir. 1999). The defendant had a prior felon-in-possession conviction in North Carolina under N.C.Gen.Stat. § 14-415.1, a Class H felony. The defendant, with a prior record level II, argued that the maximum he could have received was 12 months, assuming the presence of aggravating factors (corresponding to a 10 month minimum, the uppermost available in the Class H Level II cell in the structured sentencing grid, N.C.Gen. Stat. § 15A-1340.17(c), (e)). Id. at 206-07. The Fourth Circuit disagreed, opting to view the "offense statutory maximum as the statutory maximum for the crime, regardless of the prior criminal record status of the defendant." Id. at 207. Nonetheless, we must only accord decisions of the Fourth Circuit such persuasiveness as they might reasonably command. See Milligan v. State, 135 N.C.App. 781, 783 n. 2, 522 S.E.2d 330, 332 n. 2 (1999); State v. Adams, 132 N.C.App. 819, 820, 513 S.E.2d 588, 589 (1999) (holding that federal circuit court decisions "are not binding upon either the appellate or trial courts of this State"). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2447818/ | 282 S.W.2d 90 (1955)
Mrs. Elta G. BROWN, Appellant,
v.
Marion M. BROWN, II, et al., Appellees.
No. 3283.
Court of Civil Appeals of Texas, Waco.
July 25, 1955.
Rehearing Denied September 15, 1955.
Jones, Phillips & Watkins, Dallas, for appellant.
Bradley & Geren, Groesbeck, Richey, Sheehy & Teeling, Waco, for appellees.
HALE, Justice.
Appellant, Mrs. Elta G. Brown, a widow, and Mrs. Marjorie Brown DeGuire, joined by her husband, brought this action against appellees, Marion M. Brown II, Mrs. Dorothy Brown Mitchell and husband, and *91 Gaudy Jones, Drs. W. L. Carrington, G. Con Smith and Charles H. Brewster. The suit involves conflicting claims relating to the estate of Dr. Marion G. Brown, who died testate on April 20, 1949. The will of Dr. Brown was admitted to probate in Limestone County on May 9, 1949. Appellant is the surviving widow of Dr. Brown, she being his second wife and the mother of Dr. Brown's youngest child, Mrs. DeGuire. Marion M. Brown II and his sister, Mrs. Mitchell, are the son and daughter, respectively, of Dr. Brown by his first wife. Gaudy Jones, a colored man, was a long-time employee of Dr. Brown as a janitor at the Hospital with which Dr. Brown was connected. Doctors Carrington and Smith were associated with Dr. Brown in the practice of medicine and surgery at Mexia and, with Dr. Brewster, were intested after the death of Dr. Brown in the operation of the Hospital and the Clinic which the latter had established in his lifetime.
The objects of the suit were in general as follows: as against Marion M. Brown II, sued individually and as independent executor of the estate of Dr. Brown, and Mrs. Dorothy Brown Mitchell, appellant and her daughter, Mrs. DeGuire, sought an accounting and partition of the estate of Dr. Brown; as against Gaudy Jones, appellant and Mrs. DeGuire sought to cancel a certain deed from Dr. Brown to Jones upon allegations that (a) the deed was not delivered to Jones during the lifetime of Dr. Brown and (b) the property therein described constituted a part of the homestead of Dr. Brown and appellant and the latter did not join in the execution of the deed; and as against Drs. Carrington, Smith and Brewster, appellant sought to recover one-half of the rentals accruing under a lease agreement dated November 1, 1950 on the Brown Hospital and equipment.
The case was tried before the court below without a jury and resulted in judgment which decreed, in part, that appellant take nothing against Marion M. Brown II and Mrs. Dorothy Mitchell relating (a) to the proceeds paid to them from three policies of insurance on the life of Dr. Brown, or (b) to the property known as the Brown Hospital, and the fixtures and equipment used in connection therewith, or (c) to a diamond ring which Dr. Brown was wearing at the time of his death and had worn for many years prior thereto. The judgment also denied appellant any recovery against Gaudy Jones or against Drs. Carrington, Smith and Brewster. Appellant has appealed only from those portions of the judgment to which we have here referred. Mrs. DeGuire did not file any appeal bond.
In relation to the proceeds paid to the beneficiaries in the three policies of insurance on the life of Dr. Brown, the evidence shows and the trial court found substantially as follows: on June 15, 1927, Dr. Brown was issued an endowment policy of life insurance by Aetna Life Insurance Company which provided, among other things, that it would mature in 19 years, with an optional cash value of $24,260 at maturity; on April 27, 1936, Dr. Brown made a change of beneficiaries under the Aetna policy so that the proceeds to be derived from the same should be payable in equal shares to his wife, Elta G. Brown, and to each of his three children; on June 26, 1946, after the maturity of the foregoing policy, Dr. Brown entered into a supplementary contract with the Aetna Life Insurance Company by the terms of which the company agreed to retain the sum of $24,260 then payable under the original policy, to pay interest annually thereon to Dr. Brown at his option so long as he might live, and upon his death to pay the amount due thereunder, equally, to Elta G. Brown, wife, Marion M. Brown II, son, Marjorie E. Brown (now Mrs. DeGuire), daughter, and the children of his daughter, Mrs. Dorothy Brown Mitchell; the amount due under the Aetna policy at the death of Dr. Brown was $25,144.48 which was paid to the beneficiaries named therein, appellant receiving her one-fourth of the same; in addition to the Aetna policies, Dr. Brown, had a $10,000 United States Government life insurance policy, in which Marion M. Brown II was named as beneficiary and a *92 Karem Temple benefit policy in the sum of $1,000 payable one-third to each of his three children.
The court also found that Dr. Brown left community property belonging to himself and his wife, Mrs. Elta G. Brown, of not less than $250,000 in value, that Dr. Brown was amply provided for from her share of the community estate, and that Dr. Brown did not name any of his children or grandchildren as beneficiaries under any of the policies of insurance on his life for the purpose of defrauding Mrs. Brown of any portion of their community property, but that he named his children and grandchildren as beneficiaries to make reasonable provision for them which, in view of the size of his estate and all of the circumstances, was reasonable and proper. In our opinion, these findings of fact were amply supported by the evidence in the case.
Art. 4619, § 1, of Vernon's Ann.Tex.Civ. Stats., provides in part as follows: "During coverture the common property of the husband and wife may be disposed of by the husband only". In construing and applying this statutory provision, our courts have held that the right of the husband to dispose of community property is an absolute right, so long as it is not exercised for the purpose of defrauding the wife. Moody v. Smoot, 78 Tex. 119, 14 S.W. 285; Rowlett v. Mitchell, 52 Tex.Civ.App., 589, 114 S.W. 845; Dunn v. Vinyard, Tex.Civ.App., 234 S.W. 99. In Moody v. Smoot, supra [78 Tex. 119, 14 S.W. 286], the Supreme Court said with reference to the husband's power over the community property of himself and his wife: "His control of it during her life is absolute. Barring any disposition made with intent to defraud her, he may sell, barter, or give it away."
Dr. Brown, as manager of the community property belonging to himself and his wife, Mrs. Elta G. Brown, undoubtedly had the right to make reasonable gifts to his children and grandchildren from the community property belonging to himself and his wife, so long as he acted in good faith with respect to the property rights of his wife. Although the evidence does not show the exact age of appellant, or her life expectancy, she was married to Dr. Brown in 1924, and in all reasonable probability her one-half of the community estate will be more than sufficient in value to take care of her throughout the remainder of her natural life, as expressly found by the trial court. We see no indication from the evidence of any fraud, actual or constructive, on the part of Dr. Brown as to the manner in which he handled the policies of insurance on his life. In addition to the Karem Temple benefit policy in the sum of $1,000, payable equally to his three children, he also had a Karem Temple benefit policy in the sum of $500 payable to appellant. Since the gifts from Dr. Brown to his children and grandchildren, as evidenced by the policies of insurance on his life, were not excessive, fraudulent or capricious, we hold that appellant was not entitled to any recovery against Marion M. Brown II or Mrs. Dorothy Mitchell by reason thereof Martin v. McAllister, 94 Tex. 567, 63 S.W. 624, 625, 56 L.R.A. 585; Volunteer State Life Ins. Co. v. Hardin, 145 Tex. 245, 197 S.W.2d 105, 168 A.L.R. 337; Kemp v. Metropolitan Life Ins. Co., 5 Cir., 205 F.2d 857.
Dr. Brown stated in his will which was duly admitted to probate on May 9, 1949, that the Brown Hospital and the furniture and equipment used in connection therewith, as well as his diamond ring, was his "separate and individual property" and that all of his remaining assets constituted community property of himself and his wife, Elta G. Brown. By the terms of his will, he gave his diamond right to his son, Marion, with the proviso "that my son shall not encumber nor dispose of said ring, and, at his death, it shall pass to his son, or in case he should not have a son, then to my grandson, Martin Mitchell." He also gave and bequeathed the Brown Hospital and its fixtures and equipment to his three children, share and share alike.
Shortly after the will of Dr. Brown had been admitted to probate, Mrs. Elta *93 Brown entered into negotiations with the three children of Dr. Brown for a partial settlement and distribution of the estate. She was represented in the negotiations by an attorney of her selection, and the three children were jointly represented in such negotiations by an attorney of their selection. As a result of these negotiations, it was finally agreed by the four parties that the three Brown children should receive the Brown Hospital with all of its fixtures and equipment; that Mrs. Elta G. Brown should receive the home in which she and Dr. Brown had lived, together with all furniture and personal property situated therein, that Mrs. Brown should receive the family automobile, and that in addition thereto, the three children should pay her the sum of $4,500. The trial court found that this partial settlement and distribution was agreed upon and approved by all of the parties and that it had been fully carried out and performed. This express finding is amply supported by the evidence which shows, among other things, that on July 11, 1949, Mrs. Elta G. Brown executed a deed conveying to the three Brown children all of her interest in the Brown Hospital, together with the personal property therein, and on the same date the Brown children executed a deed conveying to Mrs. Brown the Brown home, together with the furniture and personal property situated therein, and they also paid to her on that date the agreed sum of $4,500. The trial court concluded that since appellant had made a full and complete settlement as to any interest she had in the Brown Hospital and equipment, she was not entitled to recover anything further in this connection, and we think such conclusion was correct.
Although appellant asserts on this appeal that the diamond ring which Dr. Brown bequeathed to his son was community property and that she is entitled to one-half of its value, we find no pleading or proof in the case to the effect that the diamond ring was the community property of Dr. Brown and his surviving widow. We find no evidence as to when or how Dr. Brown acquired this ring, and we agree with the conclusion of the trial court to the effect that since there was neither pleading nor proof that the ring was not the separate property of Dr. Brown, as recited in his will, appellant was not entitled to recover any interest in the same.
The trial court found that the deed to Gaudy Jones was delivered to him by Dr. Brown and that the property described in the deed did not constitute any part of the homestead of Dr. Brown and appellant. These findings were supported by ample evidence. Gaudy Jones testified that Dr. Brown delivered the deed to him, that he took it home and showed it to his wife, kept it about one week and took it back to one of Dr. Brown's office helpers at the Clinic, to whom it was delivered with the request that it be placed in the Clinic vault for safekeeping. His testimony was corroborated by that of his wife and by Miss Agnes Robinson who took the acknowledgment of Dr. Brown to the deed. Gaudy and his wife also testified that the little house situated on the property described in the deed, where they had lived for 21 years, was a block from the home of Dr. and Mrs. Brown, was across the street from the Brown home, that Gaudy worked at the Hospital and neither he nor his wife had ever worked in the Brown home as a domestic servant.
The only cause of action which appellant asserted in her trial petition against Drs. Carrington, Smith and Brewster was her claim that the Brown Hospital constituted the community property of herself and Dr. Brown at the time of the latter's death, and that, as the owner of an undivided one-half interest in the same, she was entitled to one-half of the rentals accruing under the lease contract covering the Hospital which was executed on November 1, 1950 by Dr. Brown's children as lessors, and by Drs. Carrington, Smith and Brewster as lessees. But appellant did not have any right, title or interest in or to the Brown Hospital after July 11, 1949, regardless of whether the Hospital was the separate property of Dr. Brown or the community property of appellant and Dr. Brown, because on July 11, 1949, appellant *94 conveyed to the three children of Dr. Brown all of her interest in the Hospital.
In our opinion, the evidence in this case did not conclusively establish the essential facts necessary to entitle appellant to any recovery against any of the appellees herein with reference to the several matters adjudicated in the portions of the judgment of which appellant complains on this appeal, and since the trial court found the controlling fact issues against the contentions of appellant, we cannot disturb any portion of the judgment.
Therefore, all of appellant's points of error are overruled, and the judgment of the court below is in all things affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379045/ | 541 S.E.2d 733 (2001)
FILMAR RACING, INC., Plaintiff,
v.
Donald W. STEWART, Stewart & Smith, P.C., and Gilford H. Martin, II, Defendants.
No. COA99-1507.
Court of Appeals of North Carolina.
January 2, 2001.
*735 Cozen and O'Connor, by Paul A. Reichs, Hunter Quick and Anna Daly, Charlotte, for plaintiff-appellant.
Hartsell, Hartsell & White, P.A., by Fletcher L. Hartsell, Jr. and Kimberly A. Lyda, Concord, for defendant-appellees.
EAGLES, Chief Judge.
On 28 January 1999, Filmar Racing, Inc. (Filmar) brought an action against Donald W. Stewart (Stewart), Stewart & Smith, P.C. (Stewart & Smith) and Gilford H. Martin II (Martin) alleging tortious interference with a contract. On 30 March 1999 a motion to dismiss was filed by Stewart, Stewart & Smith and Martin. On 20 September 1999, Judge William Freeman dismissed all claims as to all defendants. Filmar appeals.
Filmar is a Tennessee corporation which until about 11 January 1999 maintained a place of business in Concord, North Carolina. Martin is a North Carolina resident and minority shareholder in Filmar. Stewart is a resident of Alabama licensed to practice law in that state. He is a principal in Stewart & Smith, P.C., a law firm organized as a professional corporation for the practice of law in Alabama.
This appeal arises from a Tennessee lawsuit instituted by Martin against Filmar. The Tennessee litigation was pending at all times relevant to this appeal. According to the appellees' brief, in the Tennessee litigation, Martin, represented by Stewart, sued Filmar Racing, Inc. as a minority shareholder, a creditor and an employee of Filmar.
Prior to 11 January 1999, Filmar entered into a contract with Pinnacle Motorsports Group (Pinnacle) of Concord, North Carolina. According to the terms of the contract Filmar agreed to sell substantially all of its corporate assets to Pinnacle for approximately $1,350,000.00. Shortly thereafter, Stewart, on behalf of Martin, filed a request for injunctive relief asking the Tennessee court to sequester any funds received by Filmar from the sale of assets to Pinnacle pending the outcome of the Tennessee litigation. The Tennessee court denied the request following a hearing on 15 January 1999. On 20 January 1999, Stewart, on behalf of Martin, then moved the court for reconsideration of its order.
On 25 January 1999, before the Tennessee court ruled on Stewart's motion to reconsider, Stewart mailed a letter from Alabama to Pinnacle in Concord, North Carolina. In the letter Stewart informed Pinnacle about the status of the Tennessee litigation, including the pendency of the motion to reconsider. The letter also provided in pertinent part that
upon a sale of the corporate assets and distribution of the sale proceeds, Mr. Martin will hold Pinnacle Motorsports Group liable for his lawful share of the corporate *736 assets. If [the majority shareholder in Filmar] distributes the sale proceeds to creditors ... then Mr. Martin will be forced to seek recourse against Pinnacle Motorsports Group ... We suggest that Pinnacle not transfer any funds to [the majority shareholder] or Filmar Racing, Inc. until the Motion to Reconsider is heard and decided....
After receiving this letter, Pinnacle refused to go forward with the assets sale pursuant to their contract with Filmar. As a result, on 28 January 1999, Filmar filed this lawsuit in Cabarrus County Superior Court alleging tortious inference with a contract. On 30 March 1999, Stewart, Stewart & Smith and Martin filed a motion to dismiss under the provisions of Rule 12(b) of the North Carolina Rules of Civil Procedure. On 20 September 1999, Judge William Freeman granted the motion to dismiss as to defendants Stewart and Stewart & Smith pursuant to Rules 12(b)(2)(4) and (5), and as to defendants Stewart, Stewart & Smith and Martin pursuant to Rule 12(b)(6). From this order and judgment of dismissal, Filmar appeals.
By their first assignment of error, Filmar contends that the trial court erred in granting Stewart and Stewart & Smith's motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Rules of Civil Procedure. Filmar argues that the exercise of personal jurisdiction here is statutorily and constitutionally permissible. We disagree.
The determination of whether the trial court can properly exercise personal jurisdiction over a non-resident defendant is a two-part inquiry. Godwin v. Walls, 118 N.C.App. 341, 345, 455 S.E.2d 473, 478 (1995); Murphy v. Glafenhein, 110 N.C.App. 830, 833, 431 S.E.2d 241, 243 (1993); Cherry Bekaert & Holland v. Brown, 99 N.C.App. 626, 629, 394 S.E.2d 651, 654 (1990). First, the North Carolina long-arm statute must permit the exercise of personal jurisdiction. Godwin, 118 N.C.App. at 345, 455 S.E.2d at 478. Second, the exercise of personal jurisdiction must comport with the due process clause of the Fourteenth Amendment of the United States Constitution. Id. However, "[w]hen personal jurisdiction is alleged to exist pursuant to the long-arm statute, the question of statutory authority collapses into one inquirywhether defendant has the minimum contacts necessary to meet the requirements of due process." Hiwassee Stables, Inc. v. Cunningham, 135 N.C.App. 24, 27, 519 S.E.2d 317, 320 (1999). The burden is on the plaintiff to prove by a preponderance of the evidence that grounds exist for the exercise of personal jurisdiction over a defendant. Murphy, 110 N.C.App. at 834, 431 S.E.2d at 243.
Filmar argues that the North Carolina long-arm statute, G.S. § 1-75.4, confers jurisdiction over Stewart and Stewart & Smith. The statute provides in pertinent part that jurisdiction is proper "[i]n any action claiming injury to person or property or for wrongful death within or without this State arising out of an act or omission within this State by the defendant." G.S. § 1-75.4(3) (1999). Assuming arguendo that Stewart and Stewart & Smith were subject to the long-arm statute, the exercise of personal jurisdiction over them by the North Carolina courts would violate due process.
The Due Process Clause of the Fourteenth Amendment operates as a limitation on the power of a state to exercise in personam jurisdiction over a non-resident defendant. Hiwassee, 135 N.C.App. at 28, 519 S.E.2d at 320. In determining whether the exercise of personal jurisdiction comports with due process, the crucial inquiry is whether the defendant has "certain minimum contacts with [the forum state] such that the maintenance of the suit does not offend `traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95, 102 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S. Ct. 339, 343, 85 L. Ed. 278, 283 (1940)). To generate minimum contacts, the defendant must have acted in such a way so as to purposefully avail itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of the laws of North Carolina. Id. at 319, 66 S.Ct. at 159, 90 L.Ed. at 104; United Buying Group, Inc. v. Coleman, 296 N.C. 510, 515, 251 S.E.2d 610, 614 (1979); Hiwassee, 135 N.C.App. at 28, *737 519 S.E.2d at 320-21; Godwin, 118 N.C.App. at 353, 455 S.E.2d at 482. Moreover, the relationship between the defendant and the state must be such that the defendant should "reasonably anticipate being haled into" a North Carolina court. Cherry Bekaert, 99 N.C.App. at 632, 394 S.E.2d at 656. Whether a defendant's activities satisfy due process depends upon the facts of each case. Perkins v. Benguet Consol. Min. Co., 342 U.S. 437, 445, 72 S. Ct. 413, 418, 96 L. Ed. 485, 492 (1952).
Our courts have developed a list of factors helpful to determining the existence of minimum contacts. Such factors include, "(1) the quantity of the contacts, (2) nature and quality of the contacts, (3) the source and connection of the cause of action to the contacts, (4) the interest of the forum state, and (5) convenience of the parties." Cherry Bekaert, 99 N.C.App. at 632, 394 S.E.2d at 655 (quoting New Bern Pool & Supply Co. v. Graubart, 94 N.C.App. 619, 624, 381 S.E.2d 156, 159, aff'd per curium, 326 N.C. 480, 390 S.E.2d 137 (1990)); Tutterrow v. Leach, 107 N.C.App. 703, 708, 421 S.E.2d 816, 819 (1992). The Court must also weigh and consider the interests of and fairness to the parties involved in the litigation. Tutterrow, 107 N.C.App. at 708, 421 S.E.2d at 819.
Absent a request by a party, a trial court is not required to make findings of fact when ruling on a motion. Cameron-Brown Co. v. Daves, 83 N.C.App. 281, 285, 350 S.E.2d 111, 114 (1986). Rather, on appeal it is presumed that the trial court found facts sufficient to support its ruling. Id. If these presumed factual findings are supported by competent evidence, they are conclusive on appeal. Id. Here, Filmar did not request the trial court to make findings of fact. Accordingly, the dispositive issue before us is the sufficiency of the evidence to support a determination that personal jurisdiction did not exist.
When we apply the factors articulated in our case law for determining whether the necessary minimum contacts exist to the facts presented here, we conclude they do not. First, the only contact demonstrated by Filmar between Stewart and Stewart & Smith and North Carolina is the mailing of a single letter from Alabama to Pinnacle in North Carolina written by Stewart on Stewart & Smith letterhead on behalf of their client Martin. In addition, North Carolina's interest in adjudicating this matter is insignificant. Plaintiff Filmar is not a North Carolina corporation. Defendants Stewart and Stewart & Smith are not residents of North Carolina, though defendant Martin does reside in North Carolina. Moreover, litigation giving rise to this cause of action has been pending in a state court in Tennessee at all relevant times. Finally, permitting this lawsuit to proceed in North Carolina would not be convenient for the parties, nor would it be in the "interests of and fairness to" Stewart and Stewart & Smith.
This conclusion is consistent with Tutterrow v. Leach, 107 N.C.App. 703, 421 S.E.2d 816 (1992). In Tutterrow, we reversed the trial court's denial of a motion to dismiss pursuant to Rule 12(b)(2) for lack of personal jurisdiction over a non-resident defendant. In Tutterrow, the defendant, a Rhode Island resident, and the plaintiff, a North Carolina resident, entered into an oral contract over the telephone. This oral contract was later memorialized by letter. Thus, the only contacts between the defendant and the state of North Carolina were telephone conversations and a "handful of letters." Id. at 709, 421 S.E.2d at 820. All acts to be performed under the contract were to occur outside North Carolina. Moreover, any services actually rendered by the defendant were discharged outside North Carolina. We held that these contacts were insufficient to satisfy due process. Id.
Here, as in Tutterrow, to exercise personal jurisdiction over these non-residents would violate due process of law. By the single act of mailing a letter from Alabama to North Carolina on behalf of their client, Stewart and Stewart & Smith did not purposefully avail themselves of the privilege of conducting activities within North Carolina. As such, they did not invoke the benefits and protections of our laws. Moreover, by this one act, Stewart and Stewart & Smith could not have reasonably anticipated being haled into court in this state. Although we are *738 cognizant of the liberal trend toward exercising personal jurisdiction over non-resident defendants, the minimum contacts which are "absolutely necessary" between the defendant and our state for North Carolina to invoke jurisdiction are missing here. Tutterrow, 107 N.C.App. at 708, 421 S.E.2d at 819. Accordingly, this assignment of error fails.
Filmar next argues that the trial court erred in dismissing the claims against all defendants pursuant to Rule 12(b)(6) of the Rules of Civil Procedure. Filmar contends that because the complaint stated a claim for tortious interference with a contract, the motion to dismiss under Rule 12(b)(6) should have been denied. We disagree.
Under Rule 12(b)(6) of the Rules of Civil Procedure, a cause of action should be dismissed if it fails "to state a claim upon which relief can be granted." G.S. § 1A-1, Rule 12(b)(6) (1999). A Rule 12(b)(6) motion tests the legal sufficiency of a complaint. Hudson-Cole Dev. Corp. v. Beemer, 132 N.C.App. 341, 345, 511 S.E.2d 309, 312 (1999); Derwort v. Polk County, 129 N.C.App. 789, 791, 501 S.E.2d 379, 380-81 (1998); Harris v. NCNB, 85 N.C.App. 669, 670, 355 S.E.2d 838, 840 (1987). When ruling on a Rule 12(b)(6) motion, the trial court must accept as true the allegations contained in the complaint. Hudson-Cole, 132 N.C.App. at 345, 511 S.E.2d at 312. "[W]hen the complaint on its face reveals the absence of fact sufficient to make a good claim," dismissal of the claim pursuant to Rule 12(b)(6) is properly granted. Jackson v. Bumgardner, 318 N.C. 172, 175, 347 S.E.2d 743, 745 (1986); Hudson-Cole, 132 N.C.App. at 345-46, 511 S.E.2d at 312; Harris, 85 N.C.App. at 670-71, 355 S.E.2d at 840-41.
Here, Filmar's complaint alleges that Stewart, Stewart & Smith and Martin tortiously interfered with their contractual relationship with Pinnacle. The essential elements of tortious interference with a contract are:
(1) a valid contract between the plaintiff and a third person which confers upon the plaintiff a contractual right against a third person; (2) defendant knows of the contract; (3) the defendant intentionally induces the third person not to perform the contract; (4) and in doing so acts without justification; (5) resulting in actual damage to the plaintiff.
Embree Construction Group v. Rafcor, Inc., 330 N.C. 487, 498, 411 S.E.2d 916, 924 (1992) (quoting United Laboratories, Inc. v. Kuykendall, 322 N.C. 643, 661, 370 S.E.2d 375, 387 (1988)); Lexington Homes, Inc. v. W.E. Tyson Builders, Inc., 75 N.C.App. 404, 410-11, 331 S.E.2d 318, 321 (1985). "The interference is `without justification' if the defendants' motives for procuring termination of the employment contract were `not reasonably related to the protection of a legitimate business interest' of the defendant." Privette v. University of North Carolina, 96 N.C.App. 124, 134, 385 S.E.2d 185, 190 (1989) (quoting Smith v. Ford Motor Co., 289 N.C. 71, 94, 221 S.E.2d 282, 292 (1976)). Accordingly, we have held that the complaint must admit of no motive for interference other than malice. Id. at 134-35, 385 S.E.2d at 191; Sides v. Duke University, 74 N.C.App. 331, 346, 328 S.E.2d 818, 829 (1985), rev'd on other grounds, Kurtzman v. Applied Analytical Industries, Inc., 347 N.C. 329, 493 S.E.2d 420 (1997).
Filmar's complaint alleges that Stewart, Stewart & Smith and Martin "lacked justification" for their acts in mailing the 25 January 1999 letter to Pinnacle. However, the complaint also describes the litigation pending in Tennessee. Thus, on the face of the complaint Filmar alleges that defendants have a legitimate business interest both in Filmar's contract with Pinnacle, as well as for mailing the 25 January letter. Because the face of the complaint admits of "motive for interference other than malice," the trial court did not err in granting the Rule 12(b)(6) motion to dismiss.
Finally, Filmar argues on appeal that the trial court erred in granting Stewart and Stewart & Smith's motion to dismiss pursuant to Rules 12(b)(4) and (5). We conclude that Filmar complied with the provisions of these rules, and therefore the trial court improperly granted Stewart and Stewart & Smith's motion to dismiss under Rules 12(b)(4) and (5). However, such error was *739 harmless as the trial court properly granted the motion to dismiss pursuant to Rules 12(b)(2) and (6). HAJMM Co. v. House of Raeford Farms, 328 N.C. 578, 589, 403 S.E.2d 483, 490 (1991).
For the foregoing reasons, the order and judgment of dismissal of 20 September 1999 is affirmed.
Affirmed.
WALKER and HUNTER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379179/ | 799 F.Supp. 187 (1992)
David H. FLECK, et al., Plaintiffs,
v.
CABLEVISION VII, INC., et al., Defendants.
Civ. No. 90-1041 SSH.
United States District Court, District of Columbia.
August 25, 1992.
*188 *189 Douglas V. Rigler, Whitman & Ransom, Herbert Esar Milstein, Cohen, Milstein, Hausfeld & Toll, Washington, D.C., for plaintiffs.
Mark Daniel Hopson, Sidley & Austin, Washington, D.C., for defendants.
OPINION
STANLEY S. HARRIS, District Judge.
Before the Court are two motions, plaintiffs' motion to amend the complaint a third time and defendants' motion for leave to amend their answer. Plaintiffs seek to add Catherine Warburton as a plaintiff. Defendants seek to add the statute of limitations as a defense to the second amended complaint. For the reasons stated below, the Court grants the plaintiffs' motion and denies defendants' motion.
BACKGROUND
Plaintiffs David H. Fleck and Carol L. Couchenour were limited partners in Cablevision Associates VII (the Partnership), an Iowa limited partnership that acquired and operated cable television systems. They jointly owned five partnership interests that they inherited from their father, Harold J. Fleck, who purchased them during the initial limited partnership offering in 1983. Defendant Cablevision VII, Inc. (general partner), a wholly-owned subsidiary of defendant Heritage Communications, was the general partner of the partnership. In 1987, Heritage merged with defendant Tele-Communications, Inc., and became its wholly-owned subsidiary. Heritage then began efforts to increase its direct ownership interest in cable systems owned by various subsidiary limited partnerships, including Cablevision. It decided in the case of the Cablevision partnership to purchase the limited partners' interests.
The general partner mailed a consent statement to all limited partners on November 21, 1988. The statement informed them of a special meeting to be held on December 12, 1988, and proposed amending the partnership agreement to permit the general partner to purchase the limited partners' interests.[1] Upon approval of the amendment, the limited partners would vote on the terms of the sale. The meeting was held on December 12, 1988. Approximately 97% of the limited partners' interests that voted, including proposed plaintiff Warburton, approved both the amendment and the transaction. Plaintiffs Fleck and Couchenour did not vote. The general partner paid the limited partners $4,232.47 per interest, a return in excess of 400% in five years on their original investment of $1,000.00 per interest.
Plaintiffs Fleck and Couchenour filed this suit, framed as a class action, against Cablevision, Heritage, and Tele-Communications, Inc., on May 3, 1990. Plaintiffs allege that defendants violated Sections 10(b), 14(a), 14(e), and 20(a) of the Securities Exchange Act of 1934 (Exchange Act), 15 U.S.C. § 78j(b), § 78n(a, e) and § 78t(a), and Rules 10b-5 and 14a-9 promulgated by the Securities and Exchange Commission *190 (SEC). Plaintiffs also allege pendent state law claims for breach of fiduciary duty.
On April 10, 1991, this Court denied plaintiffs' motion for class certification on the grounds that the claims of plaintiffs Fleck and Couchenour were not typical of the claims of the class 763 F.Supp. 622. On July 5, 1991, plaintiffs filed a motion for leave to amend the complaint to add Warburton as a plaintiff. On July 23, 1991, they filed a renewed motion for class certification, based on the addition of Warburton. Defendants were granted leave to respond to the renewed motion for class certification after resolution of the motion to amend.
DISCUSSION
Plaintiffs' Motion To Amend the Complaint
Plaintiffs Fleck and Couchenour seek to add Warburton, another limited partner in Cablevision Associates VII, as a plaintiff in this action. Under Federal Rule of Civil Procedure 15(a), leave to amend "shall be freely granted when justice so requires." District courts are to allow an amendment unless there is a "clear and solid justification for denying it." Monroe v. Williams, 705 F.Supp. 621, 623 (D.D.C.1988). Defendants oppose the motion on grounds that the amendment would prove futile and it would be prejudicial. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 229, 9 L.Ed.2d 222 (1962). The Court concludes the amendment is neither futile nor prejudicial.
Futility of Amendment
An amendment is futile if the complaint as amended would not survive a motion to dismiss. See Monroe, 705 F.Supp. at 623. Defendants contend that the amendment would be futile because the statute of limitations precludes Warburton's claim. The limitation period for claims brought before June 19, 1991, under § 10(b) of the Exchange Act, is the local jurisdiction's statute of limitations for securities claims as of that date.[2] On June 19, 1991, a two-year statute of limitations was in effect in the District of Columbia for securities claims. See D.C.Code § 2-2613(e); Forrestal Village, Inc. v. Graham, 551 F.2d 411, 413 (D.C.Cir.1977); Fishman v. Estrin, 501 F.Supp. 208, 210 (D.D.C.1980). Thus, a two-year statute of limitations applies to plaintiffs' claims under § 10(b).
The statute of limitations begins to run when a plaintiff discovers or should have discovered through the exercise of reasonable diligence, the fraudulent activity in question. See, e.g., Wachovia Bank and Trust v. National Student Marketing Corp., 650 F.2d 342, 349 (D.C.Cir.1980), cert. den., 452 U.S. 954, 101 S.Ct. 3098, 69 L.Ed.2d 965 (1981); Cross v. Price Waterhouse & Co., Fed.Sec.L.Rep. (CCH) (¶ 99,153, at 95,568) (D.D.C.1983). Knowledge of the fraudulent activity occurs when a plaintiff has knowledge of the facts that constitute the cause of action, not when he attains knowledge of the legal significance of those facts. See Bergen v. Rothschild, 648 F.Supp. 582, 585 (D.D.C.1986) (noting that knowledge of any fact that should cause suspicion is equivalent to actual knowledge of a claim); Bender v. Rocky Mountain Drilling Assoc., 648 F.Supp. 330, 334 (D.D.C.1986) (finding that statute of limitations began to run for plaintiffs upon receipt of memorandum which they allege contained material omissions). However, the statute may be tolled if a plaintiff was unable to discover the fraud due to the defendant's concealment of the facts. See Hobson v. Wilson, 737 F.2d 1, 34 (D.C.Cir. 1984).
The consent statement was mailed to the limited partners on November 21, 1988. Plaintiffs do not state the date that they received the consent statement, but it is not contested that they received the statement and its attachments before December 12, 1988, the day of the partnership meeting. Plaintiffs Fleck and Couchenour contend that they had no knowledge of the *191 material omissions in the consent statement until July, 1989. (Affidavit of David Fleck, ¶ 8, Affidavit of Carol Couchenour, ¶ 6.) Proposed plaintiff Warburton contends she was unaware of the omissions until April 1991. (Affidavit of Catherine Warburton, ¶ 7.) However, plaintiffs' receipt of the consent statement was sufficient to put them on notice of the alleged fraud.
This is not a case of fraudulent concealment which warrants tolling of the limitations period in order to allow plaintiffs time to uncover the deception. Cf. Hobson, 737 F.2d at 34 (permitting statute to be tolled where case involved a "self-concealing wrong"). Plaintiffs contend that defendants failed to include in the consent statement material facts such as the value of benefits inuring to defendants as a result of the sale. (Third Amended Complaint, ¶ 29(a)-(g).) Plaintiff Fleck states that he became aware of the material omissions and recognized the basis for a fraud claim only after his attorneys investigated the transaction. (Fleck Affidavit, ¶¶ 7-8.) Plaintiff Couchenour and proposed plaintiff Warburton state that they learned of the omissions after speaking to Fleck. (Couchenour Affidavit, ¶ 6, Warburton Affidavit, ¶ 7.) Those assertions are insufficient to warrant tolling the statute of limitations. The consent statement speaks for itself. Plaintiffs had in their possession the facts underlying their cause of action when they received the consent statement sometime before December 12, 1988. The plaintiffs' cause of action accrued, at the earliest on November 21, 1988, when the general partner mailed the consent statement. Therefore, the claim would have expired two years later, on November 21, 1991.
Plaintiffs Fleck and Couchenour filed their first complaint on May 4, 1990, within the two-year time limit.[3] The motion to amend the complaint to add Warburton's claim was not filed until July 5, 1991, but because Warburton seeks participation in the suit through an amended pleading, her claim relates back to the date of the original complaint.
An amendment relates back to the date of the original pleading when "the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Fed. R.Civ.P. 15(c)(2). Both the original complaint and the amended complaint allege fraud arising from the purchase of the limited partners' interests and focus on material omissions in the consent statement. Warburton's claim is identical in nature to the claim asserted by Fleck and Couchenour and arises out of the same transaction as the original complaint. Although the text of Rule 15(c) refers only to amendments that change the party against whom a claim is asserted, "it is clear that the rule is applicable to amendments substituting or changing plaintiffs as well." Stoppelman v. Owens, 580 F.Supp. 944, 946 (D.D.C. 1983). Courts have permitted such amendments because prejudice to the other party is less likely to result from the addition of a plaintiff than from an amendment changing or adding defendants or claims. See Advisory Committee Note to Rule 15(c) (1966).
The critical question is whether the party opposing the amendment had notice of the additional plaintiff and her claim. See Leachman v. Beech Aircraft Corp., 694 F.2d 1301, 1308 (D.C.Cir.1982). A defendant has notice of the claims of an additional plaintiff if it is aware of the existence of the new plaintiff's claims and of the involvement of the new plaintiff in the original action. Id. at 1309. The filing of the original complaint was sufficient to provide defendants with notice of Warburton's potential claim. The original complaint alleges a harm to the partnership. The subject of plaintiffs' challenge is the consent *192 statement which was mailed to all the limited partners and was used in the purchase of the limited partners' interests. See Stoppelman, 580 F.Supp. at 946 (permitting claims of additional plaintiffs to relate back where new plaintiffs were limited partners asserting same claims as original plaintiffs). Therefore, defendants had notice of Warburton's potential claim.
Defendants also had notice of Warburton's potential involvement in the litigation because the original complaint was instituted as a purported class action. The filing of the original complaint provided defendants with notice of the "the number and generic identities of the potential plaintiffs." Haas v. Pittsburgh National Bank, 526 F.2d 1083, 1097 (3d Cir.1975) (permitting claim of additional plaintiff to relate back to filing of original complaint when new plaintiff had been putative member of class denied certification). Since Fleck, Couchenour, and Warburton were all limited partners in Cablevision Associates, they share an adequate identity of interest to support a finding of notice. Cf. Page v. Pension Benefit Guaranty Corp., 130 F.R.D. 510, 513 (D.D.C.1990) (failing to find an identity of interest between plaintiff and class members she sought to add through amendment where plaintiff's only connection with new claimants was coverage by the same federal statute). Therefore, Warburton's claim relates back to the filing of the original complaint and is not barred by the statute of limitations.
Prejudice
Defendants contend the addition of Warburton as a plaintiff at this stage of the lawsuit is prejudicial to them.[4] However, Warburton's claim does not differ substantively from the claims asserted in the original complaint. The addition of a claim "is not significant when the amendment in `no way alters the known facts and issues on which the action is based.'" Stoppelman, 580 F.Supp. at 946 (quoting Staren v. American National Bank & Trust Company of Chicago, 529 F.2d 1257, 1263 (7th Cir.1976)). "As long as defendant is fully apprised of a claim arising from specified conduct and has prepared to defend the action, his ability to protect himself will not be prejudicially affected if a new plaintiff is added and he should not be able to invoke a limitations defense." 6A Wright, Miller & Kane § 1501.
The addition of Warburton as a plaintiff may well entail some additional time and labor for defendants, but that does not constitute prejudice. See Cross v. Price Waterhouse & Co., Fed.Sec.L.Rep. (CCH) (¶ 99,153, at 95,567) (D.D.C.1983). Because Warburton challenges the same transaction as the original plaintiffs, her addition as a plaintiff will not require extensive additional discovery. Cf. Williamsburg Wax Museum, Inc. v. Historic Figures, Inc., 810 F.2d 243 (D.C.Cir.1987) (affirming district court's refusal to allow amendment where plaintiff was attempting to raise entirely new issue six years after original complaint and after parties had conducted extensive discovery); Doe v. McMillan, 566 F.2d 713, 720 (D.C.Cir.1977) (affirming denial of leave to amend where party sought to change theory of case 38 months after suit filed).
Warburton's claim is not time-barred; therefore, plaintiffs' proposed amendment is not futile. Furthermore, the amendment will not prejudice defendants. Accordingly, the motion to amend is granted.
Defendants' Motion for Leave To Amend
Defendants have requested leave to amend their answer to the second amended complaint to include the statute of limitations as an affirmative defense. The Court denies this motion because the amendment would prove futile. Defendants indicate that they are asserting the statute of limitations defense against plaintiffs Fleck and Couchenour based on Lampf, Pleva, Lipkind, *193 Prupis & Petigrow v. Gilbertson, ___ U.S. ___, ___, 111 S.Ct. 2773, 2782, 115 L.Ed.2d 321 (1991). Lampf established a one-year discovery/three-year transaction statute of limitations for federal securities claims. However, as defendants indicated in their motion to withdraw their motion for partial summary judgment, the Lampf decision was obviated by the passage of the Comprehensive Deposit Insurance Act. Defendants' amendment asserting the statute of limitations defense would prove futile, and thus is denied. See Monroe, 705 F.Supp. at 623.
CONCLUSION
For the reasons stated, the Court finds the addition of a third plaintiff to this suit would not be futile nor prejudicial to the defendants and accordingly grants plaintiffs leave to file their amended complaint. The Court denies defendants' request for leave to amend their answer to include a statute of limitations defense because the amendment would prove futile.
NOTES
[1] The consent statement included 11 attachments, including the partnership agreement, an appraisal of the value of the systems by Malarkey-Taylor Associates, a fairness opinion letter from Shearson Lehman Hutton, Inc., opinions of legal counsel, and the partnership's most recent annual and quarterly reports. The cable systems were estimated to be worth $61,244,200.00, and the proposal deducted from that amount the partnership's debts, adjustments to working capital, and the expenses of the sale, to reach the proposed price for the limited partners' interests. The consent statement also contained disclosure provisions regarding the general partner's fiduciary duties to the limited partners, the conflicts of interest in the sale and the consequences of the sale to both the limited partners and the general partner. The general partner specifically disclosed that it had not solicited offers to purchase the systems and that structuring the sale as a tender offer might have produced a higher sale price for the limited partners.
[2] See Comprehensive Deposit Insurance Reform and Taxpayer Protection Act of 1991, § 476, sec. 27A(a) (passed during pendency of motions). That statute of limitations applies to implied private causes of action under the Exchange Act.
[3] Defendants' argument that the claims of plaintiffs' Fleck and Couchenour are untimely is based on the Supreme Court's decision in Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, ___ U.S. ___, ___, 111 S.Ct. 2773, 2782, 115 L.Ed.2d 321 (1991), which established a one year from discovery, three years from date of transaction statute of limitations for federal securities violation claims. The Comprehensive Deposit and Insurance Reform Act, signed in December, 1991, supersedes the holding in Lampf.
[4] Defendants contend that because plaintiffs offer no explanation for the delay in naming Warburton as a plaintiff, the amendment should be denied. But delay alone is not a basis for denying leave to amend, unless the defendant is prejudiced by the delay. See Securities and Exchange Commission v. National Student Marketing Corp., 73 F.R.D. 444, 447 (D.D.C.1977) (allowing amendment although plaintiffs had known of new facts for approximately four years because the material in the amendment was not surprising to defendants). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379180/ | 953 P.2d 888 (1998)
STATE of Alaska, DEPARTMENT OF MILITARY AND VETERANS AFFAIRS, Alaska National Guard, Appellant and Cross-Appellee,
v.
Gary W. BOWEN, Appellee and Cross-Appellant.
Nos. S-6842, S-6822.
Supreme Court of Alaska.
February 13, 1998.
*890 Patrick J. Gullufsen, Assistant Attorney General, and Bruce M. Botelho, Attorney General, Juneau, for Appellant and Cross-Appellee.
Milford H. Knutson, Bledsoe & Knutson, Anchorage, for Appellee and Cross-Appellant.
Before COMPTON, C.J., and RABINOWITZ, MATTHEWS and EASTAUGH, JJ., and CARPENETI, J. Pro Tem.[*]
*889 OPINION
CARPENETI, Justice Pro Tem.
I. INTRODUCTION
Gary Bowen, who had served for nine years in the active state service of the state organized militia, was involuntarily terminated from his employment in May 1993. He appealed his termination to the superior court, arguing principally that the State Department of Military and Veterans Affairs, Alaska National Guard (State) had failed to follow the provisions of the Alaska Personnel Act and had deprived him of due process of law in the procedures that it employed in terminating his employment. The State contended that Bowen was a federal employee and that state courts had no jurisdiction over the matter; that, regardless of the jurisdiction of the state courts, federal law governed the right and nature of any hearing to which Bowen was entitled; that even if he were a state employee the state personnel act did not apply to him; and that the termination procedures employed did not violate his due process rights under the Alaska Constitution.
Superior Court Judge Karen Hunt concluded that Alaska courts had jurisdiction over this dispute, that Bowen was a state employee, that the Alaska Personnel Act did not apply to him, and that his protected property interest in full severance pay was affected without due process under the Alaska Constitution. Judge Hunt found that Bowen had no protected property interest in continued employment and no protected liberty interest in his reputation and his ability to gain future employment. The court remanded the matter to the State for a hearing to remedy the violation concerning severance pay. Both parties have appealed.
The State appeals the superior court's decision in several respects. The State submits that while federal law and regulations "arguably" have completely occupied the field of National Guard employment so that the states are pre-empted from legislating or regulating in this field, states are, in any case, pre-empted from legislating or regulating in a manner which conflicts with federal law, and that applying "state due process law and procedures" in this case conflicts with the federal procedures regulating removal of employees and therefore may not control this case. In addition, the State argues that National *891 Guard separation and separation pay issues are not reviewable; that Bowen failed to exhaust his administrative remedies; and that Bowen lacks a property interest in full separation pay which is protected by due process. Assuming Bowen's property interest in full separation pay is protected by due process, the State further contends that the requirements of due process were satisfied by the remedies available to Bowen. Finally, the State maintains that the superior court erred in determining that the federal regulation governing the procedure to be employed in connection with the discharge of a National Guard employee was unconstitutional as applied under the state constitution.
Bowen cross-appeals, arguing that the superior court erred in failing to find he was entitled to: (1) the protections of the State of Alaska Personnel Act (AS 39.25.010 et seq.), and (2) a pretermination hearing under article I, section 7 of the Alaska Constitution. Bowen argues that he was deprived of a liberty interest without due process of law as guaranteed under article I, section 7, and the Fourteenth Amendment of the United States Constitution, by being denied a pretermination administrative hearing prior to the decision of the DMVA to terminate his employment. Finally, Bowen argues that the superior court erred in failing to order a trial de novo as the method of conducting the pretermination administrative hearing ordered by the court, or, in the alternative, in failing to mandate some method insuring an impartial hearing.
We conclude that the courts of the State of Alaska have jurisdiction over this case, that Bowen was a state employee, that the State Personnel Act did not apply to him, and that his property interest in full severance pay entitled him to a hearing before his severance pay could be reduced. We affirm the superior court in all of these respects. We further conclude that Bowen has a protected liberty interest in his reputation under the Alaska Constitution, and therefore reverse that portion of the superior court's decision that held to the contrary. In all other respects, we affirm the superior court's order reversing the Department of Military and Veterans Affairs' (DMVA) decision terminating Bowen without first giving him an adversarial pretermination hearing.
II. FACTS AND PROCEEDINGS
In April 1983 Gary Bowen was appointed as an officer in the state organized militia, as defined in AS 26.05.010(b)(1), for purposes of periodic training and drill as a Judge Advocate. This is the familiar part-time duty of the National Guard. Approximately one year later, in June 1984, pursuant to 32 U.S.C. § 502(f) and Air National Guard Regulation (ANGR) 35-03, Bowen was ordered to active service in the Active Guard/Reserve (AGR). He was ordered to full-time duty with the Alaska Adjutant General under the Alaska Department of Military and Veterans Affairs to serve as the Staff Judge Advocate, Attorney Advisor, at the headquarters of the Alaska National Guard. Bowen was periodically reappointed to this position by orders issued in April 1985, June 1988, and April 1991. Each order identified 32 U.S.C. § 502(f) and ANGR 35-03 as the authorities for the appointments; each order also stated that the duration of the appointment was as indicated "unless sooner relieved by competent authority."
In 1992 Bowen was directed to work on the implementation of the Alaska State Military Justice System. Bowen's immediate supervisor on this project was Alaska Air National Guard Colonel Jerry W. Gillean; Bowen's supervising project officer was Alaska Air National Guard Brigadier General Dan Dennis. In February 1993 Colonel Gillean notified Bowen that he had recommended to the commander of the Alaska National Guard, Adjutant General, Major General Hugh L. Cox III, that Bowen be involuntarily terminated from full-time AGR duty. Colonel Gillean cited the following reasons for this recommendation:
a. You failed to timely and properly respond to allegations of personal financial irregularities which were discovered during a security reinvestigation. As a result of these allegations your access to classified information was withdrawn on 6 November 1992. Although you knew that your supervisors considered this situation serious, you took no action to respond to *892 their concerns until you were directed to do so on 4 Dec 92. Your response failed to produce any documentation that would have cleared up this concern. The dilatoriness of your response and the inadequacy of your answers have resulted in a breach of trust between the leadership of the Alaska National Guard and you as our full time staff judge advocate.
b. On 19 Nov 92 you had General Cox sign a leave slip for yourself which you then failed to properly process. When you returned to work on 4 January 1993, you did not file your leave completion until I inquired into this matter with you on 21 January 93. I also requested an explanation of your failure to obtain a leave authorization number and an explanation of why you delayed in closing out the leave transaction. You have not provided me with such an explanation. You have been given a letter of reprimand for your actions in this leave incident. This misconduct has further eroded the relationship that should exist between your employer and yourself.
This notice advised Bowen that his recommended termination from full-time AGR duty would be in accordance with paragraph 6-5c of ANGR 35-03 and that under these regulations he had five work days in which to file a written response. Bowen requested and received counsel and was also given additional time to submit his response. Bowen then filed detailed written rebuttals to the above charges.
In March 1993 Bowen, through private counsel, requested a pretermination hearing to challenge the allegations. This request was promptly denied by Colonel Gillean. Gillean stated that Bowen was "not entitled to a pretermination hearing because he [had] failed to assert a protected interest," and that the procedures set out in ANGR 35-03 provided "sufficient administrative due process safeguards" for Bowen.
In early April 1993, after reviewing the responses submitted by Bowen, Colonel Gillean formally recommended Bowen's termination from his Active Guard and Reserve tour. This recommendation was forwarded with the case file to Brigadier General Kenneth M. Taylor, Jr., for review.
On April 5, 1993, General Taylor notified Bowen that he also recommended Bowen's involuntary termination from full-time AGR duty. Taylor restated Gillean's reasons for the recommended action and added a further charge:
On 13 May 92, you were tasked by Maj Gen Cox, Adjutant General Alaska National Guard, to work on the implementation of a military justice system for the state of Alaska. Through your personal dereliction and lack of initiative, a plan for a military justice system was inexcusably delayed. Your failure to perform this task, despite extensive supervision, has left the commanders assigned to the Alaska National Guard no vehicle in which to enforce discipline for an extended period of time.
In documentation running over 300 pages in length, Bowen denied all of the allegations with detailed answers and rebuttals. Bowen also denied that any of the charges against him amounted to "misconduct" or wrongdoing in any other respect.[1]
General Taylor's recommendation and Bowen's responses were sent to Brigadier General Dan E. Dennis for review. General Dennis concurred in the recommendation to terminate Bowen from AGR duty, which he then formally made to Adjutant General Cox.
On May 2, 1993, Adjutant General Cox denied Bowen's request for a pre-termination hearing, stating he had "reviewed AGR 35-03 and [found] this type of hearing [was] not required under that regulation." On May 3, 1993, Adjutant General Cox issued his decision on the recommendations for separation from AGR status he had received from the aforementioned subordinate officers:
1. I have carefully reviewed the Notification of Action of Involuntary Separation, dated 16 April 1993, with attachments and your response to this action.
2. I believe the preponderance of the evidence clearly supports the termination of your full-time Air National Guard duty *893 (AGR) tour from the Alaska National Guard under paragraphs 6-5(c)(1), acts of misconduct, and 6-5(c)(2), professional dereliction, of ANGR 35-03.
Bowen requested reconsideration which Adjutant General Cox denied.
On May 14, 1993, Bowen submitted a letter to the Alaska Personnel Board requesting a hearing under AS 39.25.170. This request was denied.
On May 20, 1993, the DMVA issued Special Order AGR-092 terminating Bowen's employment by order of Alaska Governor Walter J. Hickel. Bowen was then issued a Certificate of Release or Discharge from Active Duty (a Department of Defense Form 214). Bowen was sent two copies of the DD Form 214, one containing no indication of the underlying reasons for his discharge and the other specifying an honorable discharge with reason stated as "misconduct."
Bowen appealed the termination of his AGR status to the superior court, arguing that he was entitled to a pre-termination hearing pursuant to the State Personnel Act, AS 39.25.170, and article I, section 7 of the Alaska Constitution. Bowen also argued that the denial of a pre-termination hearing deprived him of liberty and property without due process of law in violation of both the federal and state constitutions.
The superior court concluded that Bowen was deprived of a vested property interest in full severance pay and was thus entitled to a full adversarial hearing consistent with this court's holdings in City of Homer v. State, Dep't of Nat. Resources, 566 P.2d 1314, 1319-20 (Alaska 1977), and Nichols v. Eckert, 504 P.2d 1359, 1365 (Alaska 1973).[2] The superior court, however, rejected Bowen's argument that his involuntary discharge for misconduct implicates a protected liberty interest both in his reputation and his ability to gain future employment. The superior court then reversed the action of the DMVA and remanded the matter back to the DMVA for a pre-termination hearing.
Bowen requested reconsideration of the portion of the superior court's ruling that the matter be remanded to the DMVA, arguing that the DMVA had demonstrated a bias and predisposition to resolve the matter adversely to Bowen. The DMVA requested clarification of the court's order.[3] The superior court denied both motions on November 28, 1994.
This appeal and cross-appeal followed.
III. DISCUSSION
A. Standard of Review
This court exercises its independent judgment concerning questions of law raised by an administrative agency decision where there is no special agency expertise. Phillips v. Houston Contracting, Inc., 732 P.2d 544, 546 (Alaska 1987); North Slope Borough v. LeResche, 581 P.2d 1112, 1115 (Alaska 1978).
B. Reviewability of Allegations of Deprivation of Constitutional Rights by the Military
The State argues that civilian courts should not review Bowen's allegation that he was deprived of his constitutional rights by the military because (1) the courts of Alaska do not have jurisdiction over this matter, (2) state law is pre-empted by federal law in this area, (3) such claims are nonjusticiable, and (4) Bowen did not exhaust his administrative remedies. We reject each of these arguments.
1. Jurisdiction
The State argues that the superior court acted beyond the jurisdiction of a state appellate court in ruling that the process mandated by federal regulation for separation of members from the AGR program and *894 for determining eligibility for separation pay violates the due process requisites of the state constitution. The State further argues that this court would also exceed its jurisdiction if it were to uphold the decision of the superior court.[4]
The State's argument regarding jurisdiction[5] misperceives what occurred below. The superior court was not asked to rule on the constitutionality of any federal statute or of ANGR 35-03. Furthermore, the superior court did not rule that any federal statute or regulation violates the state constitution. The superior court held that, pursuant to federal law, the state constitution's due process clause must be followed before separation pay may be withheld or reduced. The court also determined that Bowen, as a member of the state National Guard, is a state employee. State courts have jurisdiction to decide cases regarding the discharge of members of the National Guard who are state employees. E.g., Sorrentino v. Ohio Nat'l Guard, 53 Ohio St.3d 214, 560 N.E.2d 186, 190-91 (1990) (recognizing court's jurisdiction to decide cases regarding discharge of state National Guard members not in active federal service under modern militia system). The superior court was correct in both regards. We hold that Alaska has jurisdiction in this case.
2. Pre-emption
The State argues that Congress and the Secretary of the Air Force have acted to regulate comprehensively the administration of the AGR program in the Alaska Air National Guard, including the procedures to be followed in the case of separation, and that the states are pre-empted from applying additional and different procedures.[6] The State further argues that even where federal law or regulation does not comprehensively occupy the field, state law cannot stand if it conflicts with federal regulation.[7]
While the federal government might have acted to regulate comprehensively the administration of the AGR program in the Alaska Air National Guard, it has not done so. Examination of two federal laws shows this. First, 32 U.S.C. § 324(b) allows termination of a National Guard officer "as provided by *895 the laws of the State."[8] Congress has chosen to affirm, rather than abridge, the states' role in terminating officers of their National Guards. This is clear recognition that state law may provide additional termination requirements.
Second, analysis of ANGR 35-03 shows that the regulation was drafted with the applicability of state laws in mind. Chapter 6, section 6-5(a) of the regulation provides in relevant part that
personnel will be involuntarily removed from full-time National Guard duty only IAW [in accordance with] procedures prescribed herein and only after the state Adjutant General determines that all applicable laws and regulations have been complied with.
(Emphasis added.) Given that termination of a National Guard officer may only be "as provided by the laws of the State" under 32 U.S.C. § 324(b), and given that the Adjutant General must determine that all applicable laws have been complied with, it is clear that applicable state constitutional provisions must be enforced in the termination process.[9] Nothing in the federal statute or regulations appears to disallow the application of state constitutional requirements in addition to the procedures set out in ANGR 35-03; indeed, the statute and regulations invite state law participation in the termination process. We therefore conclude that Congress has neither expressly nor impliedly pre-empted state law in this field.
Only one termination procedure exists, which eliminates the possibility of conflicting decisions. Given the language in ANGR 35-03 and 32 U.S.C. § 324, there is no inherent conflict between the termination procedures set forth in ANGR 35-03 and additional state constitutional procedural safeguards. In short, there is no conflict with federal law. Therefore, we conclude there is no federal pre-emption and affirm the ruling of the superior court.
3. Justiciability
The State argues that AGR separation and separation pay issues are nonjusticiable.[10] The State cites a test adopted in *896 Christoffersen v. Washington State Air Nat'l Guard, 855 F.2d 1437, 1442 (9th Cir.1988).[11] We decline to apply the Christoffersen test because Bowen is a state employee, not a federal employee. Furthermore, the question whether deprivation of property rights by an Alaska administrative agency is sufficient to invoke constitutional due process is not one of military expertise or one which causes interference with the military mission.[12]
This court is not being called upon to intrude into any issues of military doctrine or other matters committed to the expertise of military commanders. Rather, we are asked to review the decision of the superior court that analyzed the actions of the DMVA and determined that it transgressed the constitutional rights of one of its employees. We therefore hold the issues on appeal in this case are justiciable.
4. Exhaustion of Administrative Remedies
The State argues that in concluding that Bowen was entitled to an adversarial hearing under state law before his separation pay could be reduced, the superior court overlooked Bowen's failure to exhaust his intraservice administrative remedies in this regard. The State contends that Bowen could have sought relief from the Air Force Board for Correction of Military Records (AFBCMR) under 10 U.S.C. § 1552 and 32 C.F.R. § 865.1 et seq. The State asserts that the AFBCMR is available, upon application by a member of the National Guard, to review a nonretention decision on a claim that it was the result of error or injustice and to correct the member's records and reinstate pay and other federal compensation or benefits that were lost.
This issue not having been properly raised before the superior court, we will not consider it on appeal.[13] We have previously held:
Waiver in superior court may occur either in a suit initiated there, or when the superior court is reviewing agency action. In agency review, an issue may be abandoned on appeal to the superior court, either by failing to include it in the points on appeal or by inadequate briefing.
Nenana City Sch. Dist. v. Coghill, 898 P.2d 929, 934 (Alaska 1995) (citation omitted). See also Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985) ("As a general rule, a party may not present new issues or advance new theories to secure a reversal of a lower court decision.") (citing O'Neill Investigations, Inc. v. Illinois Employers Ins. of Wausau, 636 P.2d 1170, 1175 n. 7 (Alaska 1981)); Williams v. Alyeska Pipeline Serv. Co., 650 P.2d 343, 351 (Alaska 1982) (holding argument not raised before *897 superior court will not be considered on appeal).
The State concedes that it did not raise this issue specifically before the superior court, but contends that its arguments before the court specifically and impliedly urged deference to the existing military administrative process and avoidance of judicial interference. The State asserts that this is a central theme of the exhaustion principle. Citing this court's adoption of a "liberal approach" in determining whether an issue was raised in the superior court,[14] the State submits that the exhaustion issue should not be deemed waived.
In its brief before the superior court the State argued the following:
A. Major Bowen Was Not a State Employee.
B. If Major Bowen Is Not a State Employee, Then His Employment Is a Federal Matter and Beyond the Jurisdiction of This Court.
C. Regardless of Who the Employer Was, the Employment Contract Made Federal Regulations Applicable to Major Bowen's Employment.
D. Federal Law Governs the Right to and Nature of Any Hearing.
E. The Procedures in ANGR 35-03 Satisfy the Requirements of Due Process.
Obviously, none of these arguments included a claim that Bowen failed to exhaust his administrative remedies. Additionally, we have reviewed the entire text of each argument set out under each of these headings. None raises the issue of exhaustion of administrative remedies. Even when viewing the State's pleadings before the superior court liberally, there is no allegation whatsoever of the issue now argued before this court. Therefore, we hold that this issue was waived because the State failed to include it in its brief to the superior court. Nenana City Sch. Dist., 898 P.2d at 934.
C. Separation Pay
1. Whether Bowen has a property interest in full separation pay
As a State employee under the National Guard AGR program, Bowen's pay was federally funded under 32 U.S.C. § 502(f). Upon his termination he was entitled to severance pay under Department of Defense Pay Manual (DoDPM), Chapter 4, Section B, 40411a. Once DMVA determined that Bowen was guilty of "misconduct," however, his severance pay was reduced by one-half and he lost severance pay in the approximate amount of $37,030. DoDPM, Chapter 4, Section B, 40411b.
The superior court found that property interests protected under Alaska's due process clause are defined by existing state laws, rules, or customs. The superior court relied on Breeden v. City of Nome, 628 P.2d 924, 926 (Alaska 1981) (quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972)), in which this court stated:
Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.[15]
The superior court found that where pay manuals define the amount of separation pay due an employee upon involuntary discharge, the employee has a legitimate expectation of a certain amount of such pay upon involuntary termination. The court concluded that Bowen established a protected property interest in such pay.
The State contends that Bowen does not have a property interest in full separation pay. The State maintains that separation *898 pay for an AGR member is only payable upon the member being involuntarily released before the scheduled end of a tour, and then it is only available to those who meet the eligibility requirements outlined in DoDPM. The State argues that a member with AGR status cannot place any reasonable reliance upon a benefit that becomes available only in the event that the member is ordered out of the program before his or her tour comes to an end.
The State also points to DoDPM Chapter 4, Section B, 40412, entitled "Limitations of Eligibility":
Service members separated under the following circumstances are not eligible for separation pay:
....
1. A determination is made by the secretary concerned in an extraordinary case that the conditions under which the member is separated do not warrant separation payment. This authority is not to be delegated. It is intended that this discretionary authority to deny payment will be used sparingly.
The State then argues that nothing in the DMVA's regulatory scheme vests Bowen with a right to separation pay.
Bowen maintains that DMVA's determination that he committed acts of misconduct without affording him the opportunity to challenge that accusation, resulting in a loss of $37,030 in separation pay, was a deprivation of a property interest without due process of law.
In our view the fact that separation pay is payable only upon involuntary separation and that there are certain defined situations, such as Bowen's, where it can be reduced or in an "extraordinary" case eliminated does not diminish an employee's legitimate expectation of separation pay upon involuntary termination. Separation pay is a concept defined in DoDPM, Chapter 4, Section B, and the DoDPM rules define the amount of separation pay due an employee. Simply because some involuntarily separated employees may receive less than full separation pay based on a specific finding by the DMVA warranting the decrease under the DoDPM rules, it does not follow that such employees did not have a legitimate expectation of a certain amount of separation pay upon involuntary termination. Nor does it support the conclusion that the pay may be diminished or eliminated in an unfair manner.
As to the process which was provided to Bowen, his request for a pre-termination hearing was denied, as was his request for reconsideration. Thus, Bowen was provided no opportunity for a hearing before his separation pay was reduced.
We conclude, as the superior court did, that Bowen was deprived of a vested property interest in full severance pay and was entitled to a full adversarial hearing consistent with this court's holdings in City of Homer, 566 P.2d at 1319-20 and Nichols, 504 P.2d at 1365. Bowen was not afforded such a hearing before the deprivation of his severance pay, and thus Bowen was not provided due process under the Alaska Constitution.
We therefore affirm this legal conclusion of the superior court and hold that Bowen has a property interest in full separation pay entitled to due process protection.
2. Whether sufficient due process to protect Bowen's property interest is provided in the intraservice remedies available to him
The State argues that even if full separation pay is a benefit entitled to due process protection, Bowen's ability to pursue his eligibility for full separation pay through either the AFBCMR or the Air Force Discharge Review Board is a remedy sufficient to satisfy due process in these circumstances. The State failed to make this argument before the superior court.[16] On this basis alone, we reject this argument. See supra pp. 896-897. Moreover, courts have questioned the appropriateness of leaving to administrative *899 agencies the resolution of constitutional claims. See supra n. 13.
D. Whether Bowen Is a State Employee and Whether He Is Entitled to the Protections of the Alaska Personnel Act
Bowen, a staff judge advocate serving in the AGR program, was a state employee and a member of the Alaska National Guard subject to state National Guard statutes and regulations. See U.S. ex rel. Karr v. Castle, 746 F. Supp. 1231, 1237 (D.Del. 1990), withdrawn in part, 768 F. Supp. 1087 (D.Del. 1991), aff'd sub nom. U.S. v. Carper, 22 F.3d 303 (3d Cir.1994) ("The intent of Congress was, and is, that National Guard personnel serving in the `Full-Time Manning Program' now included in a DOD program called Active Guard and Reserve (AGR) serve under 32 U.S.C. § 502(f) in conventional National Guard status, i.e., under State control as opposed to service in the active military service of the United States in Reserves of the Army or Reserves of the Air Force status.") (quoting H.R.Rep. No. 943, 97th Cong., 2d Sess. 31 (1982)). As the Supreme Court observed in Maryland v. United States, 381 U.S. 41, 48, 85 S.Ct. 1293, 1298, 14 L.Ed.2d 205 (1965), remanded on other grounds, 382 U.S. 159, 86 S.Ct. 305, 15 L.Ed.2d 227 (1965):
It is not argued here that military members of the Guard are federal employees, even though they are paid with federal funds and must conform to strict federal requirements in order to satisfy training and promotion standards. Their appointment by state authorities and the immediate control exercised over them by the States make it apparent that military members of the Guard are employees of the States, and so the courts of appeals have uniformly held.
(Emphasis added.)
The determination that Bowen is a state employee does not end the inquiry, however. Alaska Statute 26.05.060 specifies what statutes and regulations apply to members of the Alaska National Guard:
The governor as ex officio commander of the militia of the state has command of the Alaska National Guard and the Alaska Naval Militia while they are not in active federal service. The governor may adopt necessary regulations for them not inconsistent with 48 U.S.C. § 473-479. Except as otherwise prescribed by those sections, the Alaska National Guard and the Alaska Naval Militia and their members are subject to all federal laws and regulations relating to the National Guard and Naval Militia of the several states and the territories and of the United States.
See also AS 26.05.340.[17] Although it has had the power to do so, Alaska has not adopted any regulations concerning the organization, administration or management of state National Guard personnel.
Air National Guard Regulation 35-03 "prescribes policy and procedures for administering and managing full-time National Guard personnel serving in the full-time military duty program under 32 U.S.C. § 502(f)" that were in effect during Bowen's tour of duty.[18] ANGR 35-03, Chap. 1, sec. 1-1. Chapter 6, section 6-5d of ANGR 35-03 sets forth the procedure for involuntary termination. That section contains no provision for a pretermination hearing.
Alaska Statutes 26.05.060 and 26.05.340 specifically provide that Alaska National Guard personnel are subject to the federal laws and regulations relating to the National Guard and any supplemental regulations adopted by the Alaska Adjutant General and approved by the Governor. No such regulations have been adopted. Because no statute *900 or regulation has been adopted which applies the Alaska Personnel Act to termination of a member of the state National Guard, the hearing protections set forth in the Alaska Personnel Act do not apply to Alaska National Guard personnel.
We further hold that ANGR 35-03, Chapter 6, Paragraph 6-5a, does not mandate that Bowen's involuntary separation comport with all aspects of Alaska state law. The regulation states only that "the state Adjutant General [must] determine[] that all applicable laws and regulations have been complied with." (Emphasis added.) By virtue of the failure of the state to adopt regulations which would apply the Alaska Personnel Act to military personnel, as it might have done under AS 26.05.060 and AS 26.05.340 but did not do, we conclude that the personnel act is not applicable to Bowen.
Finally, we disagree with Bowen's contention that the failure to list military employees in AS 39.25.110's list of state employees who are exempt from the personnel act means that the act applies to Bowen. The statute is not an exhaustive list of exempt employees. The statute provides in relevant part:
Unless otherwise provided by law, the following positions in the state service constitute the exempt service and are exempt from the provisions of this chapter and the rules adopted under it....
Thus, exempt status may be derived from provisions of law other than AS 39.25.110. Because the Alaska legislature adopted federal personnel rules and regulations regarding promotion and separation in the Alaska National Guard, it "otherwise provided by law" that Alaska National Guard members were exempt, and thus excluded from the provisions of the Alaska Personnel Act.
We conclude that in the absence of any supplementary regulation pursuant to AS 26.05.060 or AS 26.05.340, the state has adopted federal law and regulation, specifically ANGR 35-03, as setting forth the policies to be followed for administering and managing full-time National Guard personnel. Therefore, we hold that the language of ANGR 35-03, Chapter 6, Paragraph 6-5a, does not cause the Alaska Personnel Act to be applicable to National Guard personnel.
We therefore affirm the holding of the superior court that Bowen is not entitled to the protections of the Alaska Personnel Act.
E. Whether Bowen Has a Due Process Right to a Hearing under Article I, Section 7 of the Alaska Constitution
Article I, section 7 of the Alaska Constitution provides in part:
No person shall be deprived of life, liberty or property without due process of law....
This court held in Nichols, 504 P.2d at 1362, that for the right to due process to attach, there must be a "state action and deprivation of an individual interest of sufficient weight to warrant constitutional protection." Accordingly, the question in this case is whether Bowen was deprived of a protected liberty interest without due process of law by being denied a pre-termination administrative hearing.
Bowen asserts that he was so deprived. He argues that "[t]he liberty interest requiring a pretermination due process hearing applies any time the government takes action against a public employee by leveling serious charges causing a stigma or other disability to arise against the employee thus foreclosing the employee's freedom to take advantage of other employment opportunities."
Bowen maintains that every time he seeks future employment or attempts to pursue his chosen profession, the practice of law, he may be obliged to explain why a previous termination of employment was for acts of "misconduct." This argument has merit. Although Bowen was provided with two copies of his DD Form 214, one which contained no information concerning his discharge and one which stated that he had been honorably discharged for "misconduct," Bowen could still be asked the reasons for his discharge. Furthermore, the "sanitized" copy of his DD Form 214 does not list any information whatsoever concerning Bowen's discharge, which would very likely prompt questions on the subject during future employment interviews.
Additionally, in today's sophisticated market place, it is reasonable to conclude that *901 prospective employers understand the language and importance of a DD Form 214. See Casey v. United States, 8 Cl. Ct. 234, 242-43 (1985) (prospective employers know and understand the coded designators used on DD-214's and routinely ask discharged servicemen for the forms, "[t]hus, stigmatizing and derogatory information must only be given to servicemen who have been afforded elementary due process rights").
The cited reason for Bowen's discharge, "misconduct," is sufficiently stigmatizing to implicate a liberty interest triggering due process protection in these circumstances. General allegations of misconduct are sufficiently damaging to the reputation of a military employee and an attorney to implicate that employee's liberty interest. We therefore hold that Bowen is entitled to a pretermination administrative hearing under article I, section 7 of the Alaska Constitution, as to his reputation interest in addition to his interest in full severance pay.[19]
F. Whether Bowen Is Entitled to a Trial De Novo or a Hearing outside the Auspices of the DMVA
The superior court held that given Bowen's protected property interest in full severance pay, he was entitled to a pretermination adversarial hearing under City of Homer, 566 P.2d at 1319-20, and Nichols, 504 P.2d at 1365.
Bowen requested reconsideration of the portion of the superior court's order remanding the case to the DMVA for hearing, arguing that "[t]he undeniable fact is that Bowen cannot receive anything resembling a fair and impartial hearing from any organization, group, board or panel appointed under the control and auspices of the Department of Military and Veteran's Affairs or Alaska National Guard." Bowen appeals from the superior court's denial of reconsideration.
Bowen's charge of bias on the part of the DMVA and the Alaska National Guard is not established by the record. Consequently, there is no basis for his claim of entitlement to a trial de novo. We therefore affirm the order of the superior court and deny Bowen's request for a trial de novo. Bowen may, however, make interim application to the superior court for further relief, once the procedure for his hearing is set by the DMVA, upon a showing that the procedures established by the DMVA are unfair.
IV. CONCLUSION
For the reasons set out above, we AFFIRM the superior court's determinations that Alaska courts have jurisdiction of this dispute, that Bowen was a state employee, that the Alaska Personnel Act did not apply to him, and that his protected property interest in full severance pay was violated without due process under the Alaska Constitution. We therefore AFFIRM the superior court's order reversing the DMVA's decision to terminate Bowen's employment without first giving him a pretermination hearing, and we AFFIRM the superior court's determination that a trial de novo is not required. Having concluded that Bowen had a liberty interest in his reputation under the Alaska Constitution, we REVERSE that portion of the superior court's opinion which held to the contrary. We REMAND the matter to the superior court for remand to the DMVA for a pretermination hearing.
MOORE, J., not participating.
NOTES
[*] Sitting by assignment made pursuant to article IV, section 16 of the Alaska Constitution.
[1] Bowen maintains that the regulation relied upon by the State, ANGR 35-03, fails to define "misconduct" and therefore provides no basis for termination.
[2] The superior court reasoned that Bowen had a vested property interest in full severance pay, and because a discharge for misconduct or professional dereliction would result in the reduction of the amount of severance pay to which Bowen was otherwise entitled by almost one-half, Bowen must receive a full, adversarial hearing as delineated under the state constitution before this interest could be reduced.
[3] The State asked the court to clarify whether payment to Bowen of his full severance pay would, under the court's decision and order, render a hearing unnecessary.
[4] The State cites Kansas City Power & Light Co. v. State Corp. Comm'n, 238 Kan. 842, 715 P.2d 19, 22 (1986) (holding that if a federal statute does not violate the Constitution of the United States, it cannot be held unconstitutional on the grounds that it violates a state constitution). Kansas City Power & Light does not apply to this case because we are not addressing the constitutionality of ANGR 35-03.
[5] While denominated by the State as an argument going to jurisdiction, this is really a supremacy clause argument. For the reasons noted below, there is no supremacy clause violation here.
[6] We set out the tests for federal pre-emption in Totemoff v. State, 905 P.2d 954 (Alaska 1995):
Federal law can preempt state law in three ways. First, Congress may expressly declare that state law is preempted. Second, state law is preempted if Congress intends the federal government to occupy a field exclusively. Third, federal law preempts state law if the two actually conflict. See, e.g., Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 604-05, 111 S.Ct. 2476, 2481-82, 115 L.Ed.2d 532 (1991); English v. General Elec. Co., 496 U.S. 72,, 78-79, 110 S.Ct. 2270, 2274-75, 110 L.Ed.2d 65 (1990).
Id. at 958. The State relies on only the second and third preemption tests set out in Totemoff. For more recent discussions of the pre-emption doctrine, see State v. Arnariak, 941 P.2d 154 (Alaska 1997).
[7] In response, Bowen maintains that the doctrine of "federal pre-emption" only applies where federal courts are granted exclusive jurisdiction over a federal cause of action to the exclusion of any state court. Bowen argues that the general rule is that state courts are considered presumptively competent to adjudicate issues and claims arising under federal law, citing Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 823, 110 S.Ct. 1566, 1568, 108 L.Ed.2d 834 (1990).
Bowen's argument is not responsive to the State's argument. The State's argument goes to the power of the State to legislate or pass regulations either at all or in conflict with the federal laws and regulations. Bowen's response concerns the jurisdiction of state courts, another aspect of pre-emption and one which the State does not argue here.
In summary, there are some areas of federal law in which the states may not legislate or regulate but state courts may adjudicate the disputes which arise under federal law. The State takes the position that this case fits in this category. There are other areas of federal law where the states not only may not legislate or regulate, the state courts may not adjudicate. Bowen argues that the State claims that this is such an area. The State has not made that argument.
[8] The statute provides in relevant part that
the appointment of an officer of the National Guard may be terminated or vacated as provided by the laws of the State or Territory of whose National Guard he is a member. ...
(Emphasis added.) Emphasizing the role of the states in procedures involving termination of National Guard officers, 32 U.S.C. app. § 1101.5 (National Guard Regulations) provides in part:
Termination of appointments and withdrawal of Federal recognition (a) Authority
The termination of the appointment of a commissioned officer of the National Guard is a function of the State authorities.
[9] It should also be noted that ANGR 35-03, Chapter 1, section 1-4 allows the state Adjutant General to supplement the regulation "provided the specific requirements herein are not abridged." The addition of a requirement of a hearing does not in any way abridge any of the specific requirements of ANGR 35-03, section 6-5 (Separation for Cause and Procedure). Rather, it supplements them. The state Adjutant General, who under ANGR 35-03, section 1-4, "is authorized to issue supplements" to the regulation, is not prohibited by the regulation from following state constitutional requirements as well as the regulation.
[10] Nonjusticiability claims are most often raised in the context of "political questions," about which we have said: "[t]here are certain questions involving coordinate branches of the government, sometimes unhelpfully called political questions, that the judiciary will decline to adjudicate." Abood v. Gorsuch, 703 P.2d 1158, 1160 (Alaska 1985). As we noted in Abood v. League of Women Voters, 743 P.2d 333 (Alaska 1987), "[i]t is not possible to draw the exact boundary separating justiciable and nonjusticiable questions." Id. at 336. This conclusion rested on Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961). In his plurality opinion, Justice Frankfurter wrote:
Justiciability is of course not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the resultant of many subtle pressures, including the appropriateness of the issues for decision ... and the actual hardship to the litigants of denying them the relief sought.
Id. at 508-09, 81 S.Ct. at 1759. The United States Supreme Court has identified a number of elements, one or more of which is "[p]rominent on the surface of any case held to involve a political question." Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962). Of the elements identified by the Supreme Court, the only one even arguably present in this case is "the impossibility of a court's undertaking independent resolution [of the case] without expressing lack of the respect due coordinate branches of government." Id. For the reasons set out in the text, we conclude that this element is not in fact present here.
[11] Under this test, review of internal military decisions requires, first, an allegation that a recognized constitutional right has been violated and a showing that all intraservice remedies have been exhausted. If these prerequisites are met, four additional factors must be weighed. Then, only if the balance favors court interference, will review be undertaken. Christoffersen, 855 F.2d at 1442.
[12] It is within the province of this court to determine constitutional issues and deprivation of constitutional rights. See Kiester v. Humana Hosp. Alaska, Inc., 843 P.2d 1219, 1223 (Alaska 1992) (holding court would determine whether the procedures employed by hospital conformed to Alaska Constitution and were in accordance with basic principles of fairness and due process of law); see also Emory v. Secretary of Navy, 819 F.2d 291, 294 (D.C. Cir.1987) ("The military has not been exempted from constitutional provisions that protect the rights of individuals.... It is precisely the role of the courts to determine whether those rights have been violated."); Dillard v. Brown, 652 F.2d 316, 319-20 (3d Cir.1981) (upholding justiciability of sex discrimination and constitutional privacy claims brought by female enlistee who was discharged from New Jersey National Guard because constitution does not prevent a federal court from entertaining an appropriate constitutional claim brought against the military).
[13] Bowen also argues that Boards for Correction of Military Records of the various armed services are inappropriate to determine constitutional claims. See Glines v. Wade, 586 F.2d 675, 678 (9th Cir.1978), rev'd on other grounds, 444 U.S. 348, 100 S.Ct. 594, 62 L.Ed.2d 540 (1980) ("Resolving a claim founded solely upon a constitutional right is singularly suited to a judicial forum and clearly inappropriate to an administrative board.") (quoting Downen v. Warner, 481 F.2d 642, 643 (9th Cir.1973)); but see Guerra v. Scruggs, 942 F.2d 270, 273 (4th Cir.1991) ("The ABCMR has authority to consider claims of constitutional ... violations.").
[14] The State cites to Zeman, 699 P.2d at 1280, where this court stated that if
arguments (1) are not dependent on new facts, (2) are closely related to [the party's] trial pleadings and (3) could have been gleaned from the pleadings ... [t]he appellant need not have expressly presented every theory supporting an argument before the trial court, but can expand or refine details of an argument otherwise preserved on appeal.
[15] In Breeden, this court held that a city employee's contractual right to a thirty-day notice of termination created a protected property interest. Id. at 926.
[16] Although the State argued before the superior court that the requirements of due process had been satisfied, this argument referred only to the procedures in ANGR 35-03. The State did not argue due process was satisfied by virtue of the existence of the AFBCMR or the Air Force Discharge Review Board.
[17] Alaska Statute 26.05.340(d) provides:
All matters relating to the organization, discipline and government of the National Guard or Naval Militia, not otherwise provided for by the laws of the United States, this chapter, or regulations adopted by the president shall be governed by regulations adopted by the adjutant general and approved by the governor, and the regulations when adopted, have the same force and effect as though enacted in this chapter.
[18] ANGR 35-03 was superseded by Air National Guard Instruction (ANGI) 36-101, effective December 29, 1993. Bowen's involuntary separation occurred in May 1993, while ANGR 35-03 was still in effect, and it is that regulation that applies to this case.
[19] The superior court concluded that Bowen did not have a property interest in continued employment, and Bowen attacks this determination on appeal. We decline to review this question, because our decision that he was deprived of a protected liberty interest in his reputation and must be afforded a hearing on that issue makes this issue moot. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379186/ | 799 F.Supp. 828 (1992)
Robert D. HAMILTON, Plaintiff,
v.
CONNECTICUT GENERAL LIFE INSURANCE COMPANY, Defendant.
No. C-1-91-001.
United States District Court, S.D. Ohio, W.D.
September 4, 1992.
*829 Walter Jacob Wolske, Jr., Wolske & Blue, Columbus, Ohio, for plaintiff.
Lawrence Edward Barbiere, Bradford Scott Boster, Rendigs, Fry, Kiely & Dennis, Cincinnati, Ohio, for defendant.
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
SPIEGEL, District Judge.
This matter is before the Court on the Defendant's Motion for Summary Judgment (doc. 19), the Plaintiff's Response (doc. 21), and the Defendant's reply (doc. 22).
The questions presented by this motion are 1) whether this suit is time barred by the three year statute of limitations provided by 29 U.S.C. § 1113(2); and 2) whether there was sufficient contradictory evidence in the administrator's record to render summary judgment inappropriate.
The Court concludes that the suit is not time barred, and that there is sufficient contradictory evidence to render summary judgment inappropriate.
BACKGROUND
Plaintiff Robert D. Hamilton, now deceased, was employed in the late 1970's by Data Trol, Inc., as a field service engineer. Data Trol had established an employee welfare benefits plan pursuant to the Employee Retirement Income Security Act ("ERISA"). The plan was funded by purchases of insurance from Connecticut General Life Insurance Company ("CIGNA") which provided disability benefits to participants. In the middle of 1978, Hamilton applied for long term disability benefits. In December of 1978, Hamilton was diagnosed as having chronic hepatitis, a physical disability. Accordingly, Hamilton's claim for long term disability benefits was thereafter approved by CIGNA.
Under the terms of the Data Trol disability plan, CIGNA has the right to review a person's disability status. Pursuant to this provision, CIGNA appointed Dr. Peggy McDonald to examine Hamilton on behalf of the insurance company. The sole purpose of this examination, which took place on August 8, 1986, was to determine whether Hamilton continued to be physically disabled. On September 8, 1986, Dr. Peggy McDonald issued her evaluation of Hamilton. Her conclusion was that Hamilton's *830 disability was the result of no "obvious organic cause" which was "perhaps related to depression" and that mental disability "may be" responsible for his illness. Defendants's Motion for Summary Judgment, Doc. 19, Exhibit "A", at 3. Because of a two year limitation period on disability benefits based on mental illness, Hamilton was informed that his disability benefits would be terminated on August 7, 1988.
The Defendant's Motion for Summary Judgment is based on two arguments: 1) that the Plaintiff's action is barred by the three-year statute of limitations found in the ERISA 29 U.S.C. § 1113(2); and 2) that because there is nothing in CIGNA's files contradicting Dr. McDonald's conclusion, the plan administrator's decision to terminate the benefits must stand.
STANDARD OF REVIEW
The narrow question that we must decide on a motion for summary judgment is whether there exists a "... genuine issue as to any material fact and [whether] the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court cannot try issues of fact on a Rule 56 motion, but is empowered to determine only whether issues exist that should be tried. In re Atlas Concrete Pipe, Inc., 668 F.2d 905, 908 (6th Cir.1982).
The moving party "has the burden of showing conclusively that there exists no genuine issues as to a material fact and the evidence together with all inferences to be drawn therefrom must be read in the light most favorable to the party opposing the motion." Smith v. Hudson, 600 F.2d 60, 63 (6th Cir.) (emphasis in original), cert. denied, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979). Moreover, "while the movant's papers are to be closely scrutinized, those of the opponent are to be viewed indulgently." Id. at 63. "[T]he District Court [is] obligated to consider not only the materials specifically offered in support of the motion, but also all `pleadings, depositions, answers to interrogatories, and admissions' properly on file and thus properly before [the] court." Id. (quoting Rule 56(c), Fed.R.Civ.P.).
Summary judgment "must be used only with extreme caution for it operates to deny a litigant his day in court." Id. The Supreme Court elaborated upon this standard, in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), as follows:
[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial....
Id. at 322, 106 S.Ct. at 2552. Summary judgment is not appropriate if a dispute about a material fact is "genuine," that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Nevertheless, conclusory allegations are not sufficient to defeat a motion for summary judgment. McDonald v. Union Camp Corp., 898 F.2d 1155, 1162 (6th Cir.1990).
DISCUSSION
a) PLAINTIFF'S CLAIM IS TIMELY UNDER THE APPLICABLE STATUTE OF LIMITATIONS
The Defendant claims that this suit is barred by the three year statute of limitations provided by 29 U.S.C. § 1113(2). The § 1113(2) statute of limitations, however, applies only to claims arising under ERISA concerning a breach of a fiduciary's duties. The claim in the instant case is not one arising out of the breach of a fiduciary duty, but rather one more closely analogous to a claim arising out of a breach of contract.
A person is a fiduciary for the purposes of ERISA to the extent that he or she exercises discretion over the management of plan assets, renders investment advice for a fee, or exercises discretionary control over the administration of a plan. 29 U.S.C. § 1002(21)(A); Baxter v. C.A. Muer Corp., 941 F.2d 451, 454 (6th Cir. *831 1991). The instant claim does not involve the management of plan assets or any investment. Furthermore, as the defendant readily admits, "Data Trol, Inc.'s disability plan does not give [the administrator] discretionary authority regarding eligibility for disability benefits." Defendant's Motion for Summary Judgment, Doc. 19, at 7. A claim arising out of the non-discretionary application of plan eligibility rules does not involve the breach of a fiduciary duty. See Baxter, 941 F.2d at 455. Moreover, the Tenth Circuit in Wright v. Southwestern Bell Telephone Co., 925 F.2d 1288 (10th Cir.1991), has held that a claim arising out of a denial of long term disability benefits under ERISA does not involve the breach of a fiduciary's duties. Id. at 1290.
Additionally, the Supreme Court has observed that the primary concern of § 1109 is not the rights of the individual beneficiary; rather, it is to prevent a fiduciary's misuse of plan assets and to protect the plan as a whole. Massachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. 134, 142, 105 S.Ct. 3085, 3090, 87 L.Ed.2d 96 (1985). As the plaintiff in this case is suing in his individual capacity, and not on behalf of the plan as a whole, his suit is not a case grounded in a breach of the fiduciary's duties. See Petrilli v. Drechsel, 910 F.2d 1441, 1448 (7th Cir.1990); Carr v. Malcolm & Riley, P.C., Pension Trust, 1991 WL 67749, 1991 U.S.Dist. LEXIS # 5683 (E.D.Pa.1991). The statute 29 U.S.C. § 1113 applies only to actions involving a breach of a fiduciary's duties under ERISA. The § 1113 statute of limitations, therefore, does not apply to this suit.
Because no other part of ERISA contains a limitation on actions provision, we must apply the most analogous state statute of limitation. See Johnson v. State Mutual Life Assur. of America, 942 F.2d 1260, 1262 (8th Cir.1991); Cowden v. Montgomery Co. Soc. For Cancer Control, 591 F.Supp. 740, 754 (S.D. Ohio 1984). In Johnson, a suit to recover denied ERISA insurance benefits, the eighth Circuit held "that a suit for ERISA benefits under § 1132(a)(1)(B) should be characterizes as a contract action for statute of limitations purposes...." 942 F.2d at 1263. In Wright v. Southwestern Bell, the court held that a claim for long term disability benefits under ERISA was most analogous to a breach of contract. 925 F.2d at 1291. Similarly, in Cowden v. Montgomery Co. Soc. for Cancer Control, 591 F.Supp. 740 (S.D. Ohio 1984), the Plaintiff alleged that a plan administrator failed to comply with the terms of the pension plan. This, according to the court, was a case which "sound[ed] in contract." 591 F.Supp. at 755. The applicable statute of limitations for such claims, the court continued, was Ohio Rev.Code § 2305.06 which provides that an action on a written contract may be brought within 15 years of the accrual of the cause of action.
In this case, the Plaintiff claims that the Defendant unjustifiably terminated his insurance benefits in violation of the terms of his plan. As discussed above, this does not involve the breach of a fiduciary duty. Rather, like in Cowden and Johnson, it is most closely analogous to a breach of contract. In applying the most analogous state statute of limitations, Ohio Rev.Code § 2305.06, this case is clearly timely.
b) SUMMARY JUDGMENT IS INAPPROPRIATE DUE TO THE EXISTENCE OF SUFFICIENT CONTRADICTORY EVIDENCE IN THE ADMINISTRATOR'S CLAIM FILE
The Supreme Court has held that courts shall apply a de novo standard where a plaintiff challenges a denial of benefits under § 1132(a)(1)(B) where, as here, the plan administrator has no discretionary authority over eligibility benefits, or to construe the terms of the plan. Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 956, 103 L.Ed.2d 80 (1989). In Perry v. Simplicity Engineering, 900 F.2d 963 (6th Cir.1990), the Sixth Circuit construed de novo to mean that the district court will review the case "without deference to the decision or any presumption of correctness, based on the record before the administrator." Id. at 966.
*832 The Defendant claims that because there was no evidence in the administrator's claim file to contradict its finding that plaintiff's disability was mental and not physical, this Court should grant its motion for summary judgment. Although this Court agrees with the Defendant's underlying premise, we disagree with its ultimate conclusion regarding the existence of contradictory evidence. For example, the Plaintiff has annexed as an exhibit a letter from Dr. Ali G. Arani, dated April 2, 1984. On page three of his report, Dr. Arani states that plaintiff's illness is a "progressive disabling disease which in my opinion has made him totally disabled for all gainful employment." Dr. Arani continues that the Plaintiff's condition is "bound to worsen in the future" and that the "outcome of his illness is ... progressive. I do not see him to return to work either full time or part time in the future."
This diagnosis clearly contradicts Dr. Peggy McDonald's September 8, 1986 conclusion (annexed to Defendant's Motion for Summary Judgment, Doc. 19) that plaintiff's illness was of no "obvious" organic cause and that it "may be" the result of severe depression and mental disability. Furthermore, we are aware of no case that even remotely suggests that contradictory evidence must be presented subsequent to the administrator's determination. The only requirement is that the reviewing court limit its evaluation to the evidence presented to the plan administrator. See, e.g., Perry v. Simplicity Engineering, 900 F.2d 963, 966-67 (6th Cir.1990). Plaintiff claims that Dr. Arani's letter, along with other documents in the administrator's claim file, presents a triable issue of fact. Dr. Arani's report however, standing alone, offers enough contradictory evidence, even under the narrow de novo standard enunciated in Perry, to create a genuine issue of material fact regarding the administrator's decision.
CONCLUSION
The Plaintiff's claim has been timely commenced under the applicable fifteen year statute of limitations of Ohio Rev. Code § 2305.06. Furthermore, sufficient contradictory evidence existed in the plan administrator's claim file at the time of its determination, to raise a genuine issue of material fact as to the propriety of the decision, even under the narrow de novo standard of review.
Accordingly, Defendant's Motion for Summary Judgment is denied.
SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379191/ | 953 P.2d 33 (1997)
124 N.M. 498
1998-NMCA-012
Caye C. BUCKINGHAM, Plaintiff-Appellant,
v.
James RYAN, Defendant-Appellee.
Nos. 17829, 17998.
Court of Appeals of New Mexico.
December 17, 1997.
*35 Maria Garcia Geer, Geer, Wissel & Levy, P.A., Albuquerque, for plaintiff-appellant.
Michael E. Knight, Knight & Nagel, P.A., Albuquerque, for defendant-appellee.
OPINION
PICKARD, Judge.
¶ 1 This case requires us to consider the appropriate relief when a seller wishes to declare forfeiture of a large down payment upon default of a real estate contract. Caye Buckingham (Buyer) sued James Ryan (Seller) for damages resulting from the default and forfeiture of her interest in a real estate contract. Seller counterclaimed seeking attorney fees and damages for breach of contract. Judgment was entered in favor of Seller. On appeal, Buyer presents five issues: (1) whether retention of the down payment under these circumstances is unconscionable; (2) whether allowing Seller to terminate her rights to the property as well as awarding Seller contract damages is double recovery; (3) whether substantial evidence supported the trial court's award of damages to Seller; (4) whether Seller mitigated his damages; and (5) whether the award of attorney fees must be reduced because Buyer withdrew a claim pertaining to the Unfair Practices Act prior to trial. We affirm on issues one and five and reverse on issue two. Because we reverse on issue two, it is unnecessary to reach the remaining issues.
BACKGROUND
¶ 2 In September 1993, Buyer entered into a real estate contract with Seller to purchase a six-unit apartment complex in Albuquerque. Buyer bought the complex for $107,000 and made a $25,000 down payment at the time of closing. The contract called for Buyer to make $700 monthly payments due on the first of each month to pay off the balance of the purchase price. Payments were to be made to an escrow agent. At the time of the sale, Buyer arranged to make three payments in advance.
¶ 3 In January 1994, Buyer was experiencing financial difficulty and was unable to timely pay the January 1st payment. Buyer called Seller to inform him about her situation. Seller was disturbed to discover that Buyer would not make the payment and informed Buyer that he needed it and that he relied upon the payments to support himself. Buyer responded that she would make the payments when she could. Upon Seller's insistence that she pay, Buyer promised to make the January payment on the 15th; Buyer did not make the payment on that date. Thereafter, Buyer paid the January and February payments on February 1st. On March 1st, only one month later, Buyer's agent was late in making the payment. Seller had his attorney mail Buyer a notice of default on March 7th.
¶ 4 The contract in this case permitted Buyer to cure the default by tendering the monthly payment along with $81.65 for attorney fees within thirty days after the date notice of default was mailed. On March 15th, Buyer's agent mailed a $700 check to the escrow agent. The escrow agent refused to accept the check because it was only made *36 out for $700 and not $781.65the total amount due. The check was returned to Buyer. By this time, Buyer had received the notice of default which informed her that $781.65 was due by April 6th. Buyer thereafter tendered a check for $700 along with a new check for $81.65. However, these checks were not sent until April 8th, two days after the date of default.
¶ 5 Upon default, Seller elected to terminate Buyer's rights in the property and to retain the $25,000 down payment as liquidated damages for use of the property. Three days after terminating the real estate contract, Seller sold the property for $85,000.
¶ 6 Buyer filed suit in district court alleging unjust enrichment, unconscionable trade practices, breach of warranty, and negligent misrepresentation. Seller filed a counterclaim for breach of contract and for attorney fees under the Unfair Practices Act. Seller was awarded $18,704 in damages for the breach of contract counterclaim and $494 for attorney fees, and Seller was also allowed to keep $28,500 consisting of the down payment plus $3,500 in monthly payments.
DISCUSSION
I. The Forfeiture
¶ 7 The real estate contract between Buyer and Seller allowed Seller, upon default, to terminate the contract, regain possession of the property and retain all payments made prior to default as liquidated damages. Forfeiture provisions of this type are generally enforceable in New Mexico. Russell v. Richards, 103 N.M. 48, 50, 702 P.2d 993, 995 (1985). The literal terms of this type of forfeiture provision, however, will not be enforced when to do so would result in an unwarranted forfeiture or in unfairness which would shock the conscience of the court. Id.; see also Manzano Indus., Inc. v. Mathis, 101 N.M. 104, 105, 678 P.2d 1179, 1180 (1984); Huckins v. Ritter, 99 N.M. 560, 562, 661 P.2d 52, 54 (1983); Eiferle v. Toppino, 90 N.M. 469, 470, 565 P.2d 340, 341 (1977). Our Supreme Court has previously held that not every case of default presents circumstances which shock the court's conscience. Russell, 103 N.M. at 50, 702 P.2d at 995. To determine whether a forfeiture shocks the conscience the following equitable factors are considered: the amount of money already paid by the buyer to the seller; the period of possession of the real property by the buyer; the market value of the real property at the time of default compared to the original sale price; and the rental potential and value of the real property. Id.
¶ 8 Buyer contends that the facts surrounding forfeiture in this case result in an unfairness which should render the forfeiture provisions of the contract unenforceable. We disagree. The "[d]etermination of whether a forfeiture provision of a real estate contract should be enforced is a matter within the sound discretion of the trial court." Albuquerque Nat'l Bank v. Albuquerque Ranch Estates, Inc., 99 N.M. 95, 102, 654 P.2d 548, 555 (1982). Discretion was not abused in this case because there was substantial evidence to support the trial court's decision to enforce the forfeiture provision of the contract.
¶ 9 In this case, Buyer was in possession of the property for seven months and paid a total of $28,500 to the Seller over that perioda $25,000 down payment and $3,500 in monthly payments. Buyer argues that the large down payment in this case should render forfeiture unconscionable. We refuse to hold that the forfeiture of a large down payment will shock the conscience of the court in every case. Manzano Indus., Inc., 101 N.M. at 105, 678 P.2d at 1180. The amount of the forfeited down payment is only one factor to be considered by the trial court. Id.
¶ 10 Additionally, during Buyer's period of possession, she had the opportunity to collect $13,680 in rent. Seller testified that while he possessed the premises, there were not more than two vacancies. Furthermore, Seller was able to fill the vacancies within a day of advertising. Also, at the time Buyer bought the apartments, it appeared that tenants occupied many of the units. We are aware that there is a conflict in the testimony whether or not the units were habitable and capable of being rented out. However, when there is a conflict in the testimony, we defer to the trier of fact. See State v. Roybal, 115 N.M. 27, 30, 846 P.2d 333, 336 (Ct.App.1992) ("It was for the trial *37 court as fact-finder to resolve any conflict in the testimony of the witnesses and to determine where the weight and credibility lay."); Sanchez v. Homestake Mining Co., 102 N.M. 473, 476, 697 P.2d 156, 159 (Ct.App.1985) ("It is for the trier of fact to weigh the testimony, determine the credibility of the witnesses, reconcile inconsistent statements of the witnesses, and determine where the truth lies.").
¶ 11 Moreover, another equitable factor that weighs in favor of affirming the forfeiture is that the value of the premises decreased significantly while Buyer was in possession. Upon taking repossession, Seller testified that he found the property littered with trash and covered with overgrown weeds, graffiti on the building, asphalt missing from the parking lot, doors that were off their hinges, a broken fence, and hypodermic needles and broken beer bottles on the ground. As to the interior of the building, Seller found trash on the floors, carpeting badly soiled, a refrigerator reeking of spoiled food, strong terrible odors emanating from some of the sinks, and two units occupied by non-paying tenants. Seller testified that he had no choice but to seek a lower price upon resale because of the condition of the property.
¶ 12 Furthermore, Buyer was aware of the contract's default provisions which required her to tender a payment of $781.65 upon receiving notice of default and the consequences if she failed to timely make payment. Buyer also received a copy of the default notice which reiterated the amount due and the consequences of default. Nevertheless, Buyer urges us to conclude that the escrow agent's rejection of the initial $700 payment because $81.65 for attorney fees had not also been submitted renders forfeiture unfair. Buyer ignores the contractual provision that she agreed to which provides that "[t]he Escrow Agent is instructed that after each and every written demand is mailed to the [Buyer] . . . not to accept less than the full amount of the sum state[d] as due in the written demand, plus the additional $81.65, unless otherwise stated, for . . . attorney[ ] fees." The default notice also stated that the escrow agent was instructed not to accept less than $781.65. We conclude that Buyer was aware that nothing less than full payment, including attorney fees, would be accepted by the escrow agent. See Russell, 103 N.M. at 50, 702 P.2d at 995 ("parties to a real estate contract . . . agree to be bound by its terms and provisions, and to accept the burdens of the contract together with its benefits.").
¶ 13 Finally, Buyer refers to Eiferle, 90 N.M. at 470, 565 P.2d at 341, and Huckins, 99 N.M. at 562, 661 P.2d at 54, for the proposition that retention of a large down payment following failure to cure a default is unconscionable. Both Eiferle and Huckins are distinguishable. In Eiferle, buyers were given until March 31st to tender full payment and cure the default. Id. at 470, 565 P.2d at 341. Nevertheless, on March 28th the seller's attorney wrote the buyers a letter demanding payment. Id. Thereafter, the escrow agent refused the buyers' payment because they did not include $25.00 to cover attorney fees for writing the demand letter. Id. The Supreme Court held that the seller's mailing of a demand letter was premature and of no effect because the buyers had additional time in which to cure default. Id. This is not the case here. Seller's default notice was not premature and was effective as Seller was within his rights to demand payment.
¶ 14 Buyer's reliance on Huckins is similarly misplaced. In Huckins, the Court found that retention of a down payment which was almost one-third the amount of purchase price, along with the buyer's short period of possession, constituted an unwarranted forfeiture. Id. at 562, 661 P.2d at 54. Although this case is similar to Huckins in that Buyer also paid a large down payment and was in possession of the property for a short period of time, we conclude that reliance on Huckins is unwarranted. Unlike Huckins, the property in this case decreased in its market value during Buyer's possession. See id. Furthermore, Buyer was twice late in making payments within a very short period of time.
¶ 15 In January 1993, when Buyer's first regular payment was due, she informed Seller that she was experiencing financial difficulties. Buyer claims she told Seller that *38 her financial problems would not interfere in her ability to meet her obligations. However, Buyer then contradicted herself by stating that she was unable to timely make the January payment. When Seller protested that Buyer's behavior was unprofessional and unfair, Buyer relented and promised to make the payment on January 15th. When Seller contacted the escrow company on the 15th to find out whether Buyer had made the payment, he was informed that she had come in and paid on another account, but had not paid Seller's account. Buyer's casual attitude about meeting her obligations could hardly have inspired Seller's confidence in Buyer. Substantial evidence therefore supports the notions that Seller was justified in sending notice of default to Buyer based upon her continued delinquency in making payments, and that Seller was justified in electing to forfeit the contract.
¶ 16 We affirm the trial court's decision that forfeiture was not unconscionable, and we also hold that the trial court did not abuse its discretion in denying equitable relief to Buyer.
II. Election of Remedies
¶ 17 The real estate contract allowed Seller, upon default, to either declare the remaining balance due, thus accelerating payment, or to terminate Buyer's interests in the property and retain all payments made up to that date as liquidated damages. Seller elected to terminate Buyer's interest and retain the $25,000 down payment plus $3,500 in monthly payments. At trial, Seller counterclaimed against Buyer for breach of contract and was awarded $18,704 in damages. Buyer argues that it was improper for the court to award damages because Seller, having elected to repossess the property and retain amounts previously paid, was not entitled to the additional remedy of damages. We agree.
¶ 18 At common law, when a buyer defaults on a contract for the sale of land, and the seller repossesses the property, this "constitutes an election of remedies and amounts to a rescission of the contract, precluding further recovery from the buyer." Graham v. Stoneham, 73 N.M. 382, 385, 388 P.2d 389, 391 (1963); see also Armstrong v. Csurilla, 112 N.M. 579, 586, 817 P.2d 1221, 1228 (1991) (agreeing that upon default in a contract for the sale of land, the seller may not accelerate the balance due on the contract and sue for payment as well as repossessing the property and retaining amounts previously paid as liquidated damages); Davies v. Boyd, 73 N.M. 85, 88-89, 385 P.2d 950, 952 (1963) (stating that upon default, sellers may not recover for an unpaid part of the purchase price where they have previously declared forfeiture and elected to rescind the contract).
¶ 19 Once he chose forfeiture, Seller elected his remedy and he may not also recover on a breach of contract action that would give him the benefit of the bargain or his expectancy. See Abodeely v. Cavras, 221 N.W.2d 494, 498 (Iowa 1974) (after forfeiture "the vendor cannot ... thereafter change his position and . . . proceed on a theory based on affirmance by suing for damages for breach of the contract or for specific performance since one is precluded from pursuing inconsistent remedies"); Rowland v. Finkel, 33 Ohio App.3d 77, 514 N.E.2d 949, 951 (1987) ("There is simply no basis in law or fact for this judgment which both allows a recovery for the purchase price and at the same time returns title to the vendor.").
¶ 20 Seller concedes that he could either accelerate the contract or terminate the contract and retain all amounts previously paid as liquidated damages for use of the property. Seller contends that the word "use" should not be broadly interpreted to encompass abuse, waste, and damage to the property. Thus, Seller concludes, the trial court did not award him expectancy damages, but rather the trial court awarded him damages for waste to the property. There are many flaws in Seller's reasoning.
¶ 21 First, even if "use" is defined as Seller suggests, the contract provides that Seller can only retain amounts previously paid; he cannot sue for additional recovery. Moreover, in his closing argument, Seller stated that he was "entitled to the benefit of his bargain with [Buyer]." Seller explained that he anticipated earning approximately $141,000 on the contract with Buyer. After Buyer's default and the subsequent sale of *39 the property for a lesser amount, Seller claimed that he experienced losses totaling $18,704the amount awarded by the trial court. Clearly, Seller was seeking damages to compensate him for his lost profitshis expectancy interest under the contract. Indeed, the damages awarded to Seller, as explained by the trial court in its conclusions of law, were to allow Seller to "recover those amounts he would reasonably have gained absent a breach."
¶ 22 Because as a matter of law Seller is prohibited from recovering both the land and his expectancy damages, we reverse the trial court. See Ledbetter v. Webb, 103 N.M. 597, 602-03, 711 P.2d 874, 879-80 (1985) (an appellate court is not bound by a trial court's erroneous conclusion of law). Since we conclude that the trial court erred in awarding Seller damages and allowing him to repossess the property, it is unnecessary to reach issues three and four.
III. Attorney Fees
¶ 23 The trial court awarded Seller his attorney fees in the amount of $494, which relates to the amount of time that Seller's attorney spent defending him against Buyer's claim brought under the Unfair Practices Act (UPA). NMSA 1978, §§ 57-12-1 to -22 (1967, as amended trough 1995). Buyer argues that the trial court abused its discretion in awarding this amount. Lenz v. Chalamidas, 113 N.M. 17, 18, 821 P.2d 355, 356 (1991) ("Award of attorney fees rests in the discretion of the trial court and this court will not alter the fee award absent an abuse of discretion."); In re Estate of Gardner, 114 N.M. 793, 804, 845 P.2d 1247, 1258 (Ct.App. 1992) (stating that the award of attorney fees is reviewed for abuse of discretion).
¶ 24 The UPA, Section 57-12-10(C), allows a defending party to recover its attorney fees if the party complaining of an unfair trade practice has brought a meritless claim. Buyer, however, claims that she withdrew the UPA claim prior to trial and therefore is not liable for the 1.6 hours of work which were provided by Seller's attorney after the claim was withdrawn. Seller responds that Buyer's withdrawal was ineffective to dismiss the claim. See Rule 1-041, NMRA 1997.
¶ 25 There was quite a bit of confusion about whether Buyer's withdrawal was an effective dismissal of the claim. Buyer's failure to use appropriate language to dismiss the claim confused both counsel and the trial court. The trial court was unsure what Buyer accomplished by seeking a "withdrawal." Furthermore, Seller's counsel was under the impression that the claim had not been dismissed with prejudice and proceeded to defend Seller against that claim. Therefore, we conclude that Buyer is liable for the 1.6 hours of work Seller's counsel put in to defend against the UPA claim. We also hold that the amount of work, 1.6 hours, is not an unreasonable amount of time and that the trial court did not abuse its discretion in awarding this fee.
¶ 26 As to Seller's request that he be awarded attorney fees on appeal we note that "absent statutory or other authority, litigants are responsible for their own attorney[ ] fees." Montoya v. Villa Linda Mall, Ltd., 110 N.M. 128, 129, 793 P.2d 258, 259 (1990). Since there is no statute permitting the award of attorney fees applicable to this appeal, we look to the parties' contract to determine whether Seller is entitled to his fees. The contract provides that if Seller elects to accelerate payment of the contract he may recover "the entire remaining balance, plus any accrued interest, together with reasonable attorney[ ] fees, or he may terminate [Buyer's] rights to the Property and retain all sums paid as liquidated damages to that date for the use of the Property." (Emphasis added.) Because Seller elected forfeiture, this remedy does not entitle him to recover his attorney fees. Thus, we hold that the parties are responsible for their own attorney fees on appeal.
CONCLUSION
¶ 27 We affirm the trial court as to the forfeiture and the award of attorney fees under the UPA. We reverse the trial court as to the recovery of contract damages, and we deny Seller's request for attorney fees on appeal.
¶ 28 IT IS SO ORDERED.
APODACA and ARMIJO, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379630/ | 806 P.2d 1048 (1991)
111 N.M. 458
WESTERN BANK, SANTA FE, Plaintiff-Appellee,
v.
FLUID ASSETS DEVELOPMENT CORPORATION, Defendant,
v.
PHC INDUSTRIAL SUPPLY CO., INC., Defendant-Appellant.
No. 17767.
Supreme Court of New Mexico.
February 28, 1991.
Thomas F. McKenna, Albuquerque, for defendant-appellant.
Sommer, Udall & Hardwick, P.A., Jack N. Hardwick, Santa Fe, for plaintiff-appellee.
OPINION
BACA, Justice.
On motion for rehearing, the opinion previously filed is hereby withdrawn and the *1049 opinion filed this date is substituted therefor.
In this appeal we consider whether a mortgagee first lienholder can use the judicial system to enforce its rights in a foreclosure proceeding after deliberately failing to serve notice upon junior lienholders of record of its intention to hold the foreclosure sale, even though the junior lienholders were parties to a lawsuit brought by the mortgagee and were entitled to actual notice of the sale. We hold such deliberate abuse of judicial procedure constitutes inequitable behavior and the trial court abused its discretion by granting the first lienholder foreclosure against a secondary lienholder, whom it deliberately denied a chance to participate in the foreclosure sale.
FACTS AND PROCEDURAL HISTORY
In May of 1986, plaintiff-appellee Western Bank, which held a first mortgage on a condominium property of four units owned by the mortgage debtor, Fluid Assets Development Corporation (Fluid Assets), filed a complaint seeking to collect on a promissory note and to foreclose. Western Bank named Fluid Assets and seventeen other parties, including defendant-appellant PHC Industrial Supply Company (PHC), a junior lienholder. On June 6, 1986, PHC appeared generally in the action, answered Western Bank's complaint and cross-claimed against Fluid Assets.
On November 6, 1986, Western Bank filed a motion for default judgment against Fluid Assets and six other defendants. Partial default was entered against Fluid Assets and three other defendants on November 24, 1986. On November 25, 1986, the court entered a partial default and final judgment on the complaint, an order of foreclosure, and an order requiring appointment of a special master. Western Bank did not notify PHC of the order of foreclosure before or after its entry.
Western Bank published a notice of sale stating that the sale would be held in accordance with its judgment against Fluid Assets and three other defaulted defendants, but the notice said nothing about PHC and the remaining defendants, nor was PHC served with a copy of the notice. The foreclosure sale was held on January 6, 1987, with Western Bank bidding its judgment plus the costs of the sale for a total of $244,283.94. Western Bank was the only bidder and the only party at the sale. The special master's sale was confirmed by an order entered January 7, 1987, again without any indication that notice was given to PHC of the special master's report or of Western Bank's request that it be confirmed.
On June 22, 1987, Western Bank requested a trial on the merits to foreclose on the remaining defendants. The trial was held on July 24, 1987, and the trial court issued a letter opinion on August 7, 1987. On August 20th, the court entered its findings and conclusions. The court found Western Bank entitled to foreclosure and gave all subsequent lienholders ten months in which to exercise their rights of redemption. Thereafter, on motion of PHC, the trial court set aside its judgment with respect to PHC only and re-entered judgment against PHC on April 13, 1988.
On appeal PHC maintains that the trial court's letter opinion recited findings in PHC's favor, but that the court granted an incorrect remedy. An extended period for redemption would not compensate PHC for being shut out of the foreclosure sale. Instead, PHC argues Western Bank's interest as mortgagee should have merged with its interest as owner when it purchased the Fluid Assets property at the foreclosure sale. PHC should now hold a first lien on the property. Western Bank responds first that the court rejected PHC's requested finding on the issue of notice, and second, that PHC suffered no loss.
NOTICE
This case forces us as a threshold matter to confront a procedural conundrum: whether, in the absence of an express finding of fact by the district court, when it is apparent that the court intended to find a certain fact, and, in fact, the evidence would not allow a contrary finding, this court, in the interest of judicial economy, can adopt the finding of fact. *1050 We rule that, under certain circumstances, we can.
The trial court did not make an official finding of fact regarding the notice issue. It did, however, in its letter opinion to the parties dated August 7, 1987, indicate that it believed that Western Bank had intentionally failed to give PHC notice. Apparently, the failure to make the requested finding of fact was inadvertent.
The rules of civil procedure for the district courts are clear that the trial court's formal findings represent the court's official decision. SCRA 1986, 1-052(B)(1)(g); see Ulibarri v. Gee, 106 N.M. 637, 748 P.2d 10 (1987). Those are the findings and conclusions to which our review is to be directed. Springer Corp. v. Kirkeby-Natus, 80 N.M. 206, 208, 453 P.2d 376, 378 (1969). Accordingly, any conflict between the trial court's letter of August 7, 1987, and its findings, conclusions, and judgment of August 20 must be resolved in favor of the latter. Moreover, it is a well-settled principle of appellate procedure that an appellate court will not reweigh evidence or determine facts anew, Duke City Lumber Co. v. Terrel, 88 N.M. 299, 540 P.2d 229 (1975); Watson Land Co. v. Lucero, 85 N.M. 776, 517 P.2d 1302 (1974), although, under certain circumstances, an appellate court may be in a position to evaluate the weight of the evidence. See Corley v. Corley, 92 N.M. 716, 594 P.2d 1172 (1979) (evidence on disputed issue in form of uncontradicted figures).[1]
Our review of the record compels us to hold that the district court erred when it failed to adopt PHC's requested finding that it had no notice of the foreclosure sale. The documents in the court file and Western Bank's own testimony at the June 24th hearing amply support the conclusion that the bank intentionally failed to serve notice of the foreclosure action. When asked why the bank failed to give PHC notice, Western Bank's officer responded that it may have been trying to foreclose hastily because a principal shareholder of Fluid Assets had recently declared bankruptcy, and the bank was concerned that Fluid. Assets might also seek similar protection. This appears to be an admission of deliberate behavior. Furthermore, at the hearing the bank presented no evidence of mistake or clerical error. Instead, there is only the evidence that Western Bank formally notified some defendants and not others of the foreclosure hearing. Finally, when Western Bank published notice of the foreclosure sale to fulfill the constructive notice requirements of NMSA 1978, Section 39-5-1, it again evidenced its intention to foreclose only upon selected defendants. In reciting the rights affected, Western made no mention of a number of defendant lienholders, including PHC. The district court erred when it failed to find that Western Bank deliberately failed to serve notice on PHC of an impending foreclosure sale. As in Corley, error is predicated on failure to make a requested "finding of fact which is abundantly supported by uncontradicted testimony." 92 N.M. at 720, 594 P.2d at 1176. In the interests of judicial economy, we find on appeal that Western Bank failed to serve PHC with the appropriate notice and that this omission was deliberate.[2]
*1051 Relying on Production Credit Association v. Williamson, 107 N.M. 212, 755 P.2d 56 (1988), Western Bank intimates that even if it failed to serve notice on PHC, the notice by publication satisfies the statutory scheme. In Williamson, this court found a mortgagee's failure to serve notice on a mortgagor of the date of a foreclosure sale was not improper, although it did violate Supreme Court Rule 1-005 that requires all motions be served on parties to a lawsuit. The court determined there had been correct notice by publication according to NMSA 1978, Section 39-5-1, and the specific statute for notice of a foreclosure sale must prevail over the more general requirements of procedural notice in a lawsuit. Williamson, 107 N.M. at 213, 755 P.2d at 57. In Williamson, however, the mortgagor had approved the trial court's judgment and decree of foreclosure. In this case, PHC was served notice of neither the actual sale nor the order of foreclosure. While Williamson endorses notice by publication of the actual sale, it does not address the issue here a separate and prior violation of Rule 1-005 for failure to serve notice of the judgment and order for foreclosure. The consequences of a failure to abide by Rule 1-005's requirement that motions be served on all parties to a lawsuit depend upon the nature of the paper involved. 4A C. Wright & A. Miller, Federal Practice and Procedure 2d § 1143 (1987). Courts have considered whether a failure to serve a particular motion is material in affecting the unnoticed party's rights. See Securities & Exchange Comm'n v. Arkansas Loan & Thrift Corp., 297 F.Supp: 73, 77 (W.D.Ark.1969), aff'd on other grounds, 427 F.2d 1171 (8th Cir.1970). Here, Western Bank's failure to serve PHC its motion for default and foreclosure within a lawsuit to which PHC was a party caused PHC to lose the opportunity to attend or prepare for the foreclosure sale. See Quinn Plumbing Co. v. New Miami Shores Corp., 100 Fla. 413, 419, 129 So. 690, 693 (1930) (distinguishing the opportunity to bid as one of several rights which, while not absolute, are nevertheless recognized in the junior lienholder and are necessarily lost when the lienholder is excluded from a foreclosure sale); see also Motor Equip. Co. v. Winters, 146 Kan. 127, 131, 69 P.2d 23, 27 (1937) (court not concerned with mere right to bid, but rather right to bid under circumstances that would protect a valid lien).
RIGHTS OF JUNIOR LIENHOLDERS AFTER A DEFECTIVE FORECLOSURE
It is a black letter proposition that a foreclosure sale is effective only against those lienholders who are given notice. Springer, 80 N.M. at 208, 453 P.2d at 378. In Springer, the junior lienholder, who held a mortgage on only a part of the total land on which the senior lienholder held a mortgage, wanted to redeem pro tanto, paying only a proportion of the senior lienholder's mortgage. This court held that the junior must pay the entire first mortgage, because its rights were neither "enlarged nor dimished by [a] defective foreclosure." Id. at 210, 453 P.2d at 380.
Western Bank cites Springer as authority for its argument that regardless of the notice issue, PHC's only right as a junior lienholder was redemption. Springer, however, contemplated additional rights: "Thus, the failure to join Springer as a junior lien holder, left its rights, including its equity of redemption, unaffected and unimpaired." Id. at 208, 453 P.2d at 378 (emphasis added). In addition, in Springer the failure to notice the junior lienholder was unintentional a result of a third party's error. Were we to extend Springer's holding to the circumstance of intentional failure to notify a junior lienholder, then we would endorse Western Bank's behavior as the norm. Whenever a bank might wish for a speedy foreclosure, it could target some parties for the sale and leave the rest for a later action. Surely the effects of such a holding would be highly prejudicial when the junior lienholders together might hold more equity than the senior, or when the property's value might be at issue.
*1052 In Moulton v. Cornish, 138 N.Y. 133, 33 N.E. 842 (1893), a New York court faced with the problem of deliberate exclusion of a junior lienholder first discussed the history of a mortgagee's right to foreclosure. The right stemmed from contract and was immediate and absolute upon default. To mitigate the harshness of these legal procedures, equity gave the debtor a right to redeem his property by discharging the debt. Since this right to redemption clouded the now-in-possession mortgagee's right to sell the property, equity would allow an action by the mortgagee to compel the debtor to exercise his right or forever be barred. In Moulton, the court concluded that the first lienholder could not compel redemption in strict foreclosure, but must instead go through a second foreclosure sale.
Other courts, faced with the problem of an un intentionally excluded second lienholder, have discussed the problem of intentional exclusion. See McGraw v. Premium Fin. Co. of Missouri, 7 Kan. App. 2d 32, 37, 637 P.2d 472, 476 (1981) (remedy of strict foreclosure not available when junior encumbrancer was omitted intentionally); Chandler v. Orgain, 302 S.W.2d 953, 956 (Tex.Civ.App.1957) (when obligor has duty to notify junior lienholder and fails to do so, obligor may become personally liable).
Courts have also viewed the problem of a request for reforeclosure against an omitted junior lienholder as a request to the court to exercise its equitable discretion to relieve the purchaser at a defective foreclosure. See Deming Nat'l Bank v. Walraven, 133 Ariz. 378, 379, 651 P.2d 1203, 1204 (Ct.App.1982) (court speaks of "allowing a subsequent reforeclosure"). Finally, courts have held that the mortgagee, in exercising a power of sale by foreclosure, must act in good faith, not only for the benefit of the mortgagor, but also for the subsequent lienholders. Seppala & Aho Constr. Co. v. Petersen, 373 Mass. 316, 321, 367 N.E.2d 613, 616 (1977).
Taking these principles together, we first suggest what our approach would be to an unintentional failure to include a junior lienholder, and then we apply these principles to the facts here of an intentional omission. Our reasons for this are twofold: the usual case in this area addresses unintentional omission, and many fact patterns will fall beneath that rubric; and the remedy for unintentional omission establishes the baseline of a junior lienholder's rights and puts the remedy for an intentional omission in the correct perspective.
When the mortgagee inadvertently fails to notify a junior lienholder, the mortgagee's equitable rights are not diminished and he or she may reforeclose on the junior. By "reforeclose" we mean that, in the trial court's discretion, the judgment may operate to extinguish the junior lien, with only the right to redeem remaining in the junior lienor, or in a proper case, the senior lienor may be required to conduct a new foreclosure sale at which any junior lienors will be entitled to bid. The omitted junior lienholder, however, should suffer no burden that did not exist at the time of the foreclosure sale to which he or she was entitled notice. The remedy for an inadvertent mistake is the fixing in time of all parties' rights. If Western Bank had not given notice through inadvertence or third-party error, the bank would have been entitled to require PHC to redeem or be foreclosed, but the junior lienholder could not be compelled to pay the costs or expenses of the defective foreclosure. The amount to be paid would have been determined by the mortgage debt, Quinn, 129 So. 690, 693, fixed at the time of the foreclosure sale, when the mortgagee would have gained the benefits of occupation. No mortgage or statutory interest could be added to the cost of the redemption from that date.
In this case, however, Western Bank intentionally failed to notify a number of junior lienholders. In this regard we find compelling the Arizona Court of Appeals' logic in Deming, 133 Ariz. at 379, 651 P.2d at 1204, and hold that Western Bank's request that PHC's lien be declared foreclosed by the previously entered judgment was equitable in nature. Here, Western Bank made no showing of excuse or inadvertence; its behavior was inequitable. Western Bank may not, therefore, have the *1053 advantage of the court's equitable powers. We remand to the district court to reinstate PHC's judgment lien that was unaffected by the defective foreclosure and unaffected by Western Bank's subsequent attempt to have PHC's lien declared foreclosed by virtue of the previous foreclosure decree and sale.
IT IS SO ORDERED.
SOSA, C.J., and MONTGOMERY and FRANCHINI, JJ., concur.
RANSOM, J., dissents and files opinion.
RANSOM, Justice (dissenting).
I respectfully dissent. This Court today holds when a senior mortgagee obtains a default judgment of foreclosure against the mortgagor and bids in the property at foreclosure sale for the amount of indebtedness, all without actual notice to a junior lienholder who is a party to the collection and foreclosure action, the mortgagee is not entitled to a subsequent foreclosure of the junior lien if the failure to give actual notice of the foreclosure judgment and sale was deliberate and intentional. By "deliberate and intentional," I understand the Court to mean deliberate behavior in bad faith. I likely could affirm such a remedy if fashioned by the trial court in equity based upon the premise of bad faith. In fact, the mortgagee here agrees. However, I do not believe we reach that question. The premise of bad faith has not been established.
The majority holds that, "in the absence of an express finding of fact by the district court, when it is apparent that the court intended to find a certain fact, and, in fact, the evidence would not allow a contrary finding, this court, in the interest of judicial economy, can adopt the finding of fact." Then, "In the interests of judicial economy, [the majority finds] on appeal that Western Bank failed to serve PHC with the appropriate notice and that this omission was deliberate."
I do not believe it apparent that the trial court intended to find bad faith. The court commented from the bench, seemingly to correct a statement to the contrary, "that there was an omission, that is clear and I don't think on this record we can say that we have plumbed the depths of the intent." What the court actually said in its letter of August 7, 1987, is: "Whether or not failure to give such notice renders the foreclosure `defective' I do not pass on .... [T]he failure to give such notice denies [junior lienholders] the opportunity to participate in the bidding process.... It is true that deliberate conduct so calculated carries with it certain possible recourse. No malintention is attributed * * * *"
The court specifically refused a finding requested by PHC that the failure to give notice "was deliberately and intentionally done by [the bank]," Clearly, failure of the trial court to find as requested is treated as a finding against the party asserting the affirmative. Landskroner v. McClure, 107 N.M. 773, 775, 765 P.2d 189, 191 (1988) (citing Gallegos v. Wilkerson, 79 N.M. 549, 445 P.2d 970 (1968)). Landskroner is the most recent in a long line of cases on this issue. E.g., Gallegos v. Wilkerson, 79 N.M. 549, 551, 445 P.2d 970, 972 (1968) (refusal to make a requested finding on a material issue is a finding against the party having the burden of proof); J.A. Silversmith, Inc. v. Marchiondo, 75 N.M. 290, 294, 404 P.2d 122, 124 (1965) ("Failure to find specifically upon a material point in issue must be regarded as finding such material fact against the party having the burden of proof."). The significance of this rule is to satisfy the requirement that the court must make findings on ultimate facts. See NMSA 1986, 1-052(B)(1)(b). Refusal to find the deliberate failure to give notice is simply a finding that PHC, the party asserting the affirmative, did not prove that assertion.
Finally, I disagree that the evidence would not allow a finding contrary to the fact of bad faith. The bank's vice-president was the only witness to testify at trial and, when asked why the bank proceeded with the judicial sale without first obtaining a judgment of foreclosure against junior lienholders, the witness responded that the principal individual involved in the mortgagor corporation had recently filed bankruptcy and it was thought the mortgagor might seek bankruptcy, resulting in prolonged foreclosure litigation. PHC's attorney *1054 specifically asked the vice-president if he knew whether notice had been sent, to which the vice-president replied, "To my best information and belief, that particular issue was handled by our attorneys." The bank's attorney informed the court that he did not know whether notice had been sent because his partner who handled the proceedings earlier was out of the country. The attorney did inform the trial court that he had discussed the notice issue with several of the other attorneys involved in the case and that at least some, had received notice. The notice of sale in the court file had no certificate of service..
In a brief filed by the bank, it agrees that, if it or its attorneys deliberately failed to send notice of the foreclosure sale to PHC, then the bank should not be allowed to foreclose PHC's lien interests. The bank's attorneys, including the one handling the earlier proceedings who had been out of the country at the time of trial, as officers of this Court, specifically represent by their signatures to their brief that "there was no deliberate or intentional failure to give notice of the judicial sale."
Given the above, I would conclude that this Court cannot find, or imply, as the basic premise for its rationale and opinion today, that the bank acted with deliberateness or bad faith.
NOTES
[1] In Corley, we found that when a finding is requested, the trial court has committed error when it has refused "to make a finding of fact which is abundantly supported by uncontradicted testimony." 92 N.M. at 720, 594 P.2d at 1176.
[2] In Ulibarri, 106 N.M. at 640-41, 748 P.2d at 13-14, we faced a similar procedural problem. In that case, the trial court made no express findings of fact on an issue, yet made comments from the bench that demonstrated its views. We stated:
In no event * * * may court comments from the bench be substituted for material facts appearing as findings in the decision. It is in this sense that SCRA 1986, 1-052(B)(1)(g) provides that findings and conclusions appearing outside the single document decision will be disregarded. Such comments may be utilized only as an aid in understanding a decision of the court which is ambiguous.
Although we recognize that, without reference to the bench remarks of the trial court, the findings of fact and conclusions of law are in conflict, we are persuaded that [the disputed fact as found in the bench remarks] is well within the bounds of testimony * * * * The bench remarks make clear why the court concluded the adjustments were required. We do not believe a remand for correction of the findings would result in a different award. Judicial economy must be considered when we contemplate remand for a merely ministerial or pro forma act. Id. (citations omitted). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379922/ | 594 F.3d 562 (2010)
UNITED STATES of America, Plaintiff-Appellee,
v.
Adam R. RESNICK, Defendant, and
Domenic Poeta, Third-Party Respondent-Appellant.
No. 08-4039.
United States Court of Appeals, Seventh Circuit.
February 2, 2010.
*564 Joseph A. Stewart (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.
Eric S. Palles (argued), Ravitz & Palles, Chicago, IL, for Third-Party Respondent-Appellant.
Leslie Ann Gerardo, Office of the United States Attorney, Washington, DC, for Defendant.
Before POSNER, MANION, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge.
This case presents issues arising from the government's efforts to collect a criminal's financial obligations to the government from a third who received money from the in solvent Adam Resnick pled guilty to one count of wire fraud under 18 U.S.C. § 1343 for his role in a check-kiting *565 scheme that caused the failure of Universal Federal Savings Bank. Under the plea agreement, Resnick would serve prison time and owe approximately $9.75 million in restitution to Universal's insurer, the Federal Deposit Insurance Corporation ("FDIC"). Resnick was insolvent, so the government invoked the supplemental procedures authorized by 18 U.S.C. § 3613 to collect some of the money from Domenic Poeta.[1] Poeta was a bookie to whom Resnick paid significant sums of money to satisfy illegal gambling debts. After a bench trial in which Resnick testified and Poeta did not, the district court entered judgment for the government for $848,197.63 ($647,211.00 in check transactions from Resnick to Poeta, plus prejudgment interest of $200,986.63) under theories of fraudulent transfer under the Federal Debt Collection Procedure Act ("FDCPA") and common-law unjust enrichment. Poeta has appealed, and we affirm.
I. The Facts
Adam Resnick carried out a check-kiting scheme that led to the collapse of Universal Federal Savings Bank. With the help of two co-Antonette and Terrence Navarro, Resnick obtained signatory rights to a checking account at Universal, circumvented Universal's regulations, and gained access to millions of dollars. By the time the bank finally failed, Resnick had stolen approximately $10.5 million. The FDIC stepped in to protect depositors by paying approximately $9.75 million to cover the losses.
In the criminal prosecution against Resnick and the Navarros, Resnick reached a plea agreement with the government. Under the agreement, the district court sentenced Resnick to 42 months in federal prison and ordered him to pay $10,457,825.60 in total restitution, including $9,750,545.60 to the FDIC.
The government has been able to recover only a fraction of the restitution judgment against Resnick. Throughout his check-kiting scheme, Resnick held few assets and was insolvent. With each illicit withdrawal from Universal, Resnick became indebted to Universal for the amount of fraud proceeds he obtained. Accordingly, the government has sought to trace the proceeds of the scheme to recover the restitution owed by Resnick.
A significant portion of the funds that Resnick stole from Universal went toward feeding his remarkable gambling habit, including money that Resnick paid to appellant Domenic Poeta to satisfy illegal gambling debts. The government presented to the district court 16 checks totaling $647,211. All were drawn by Resnick on his Universal bank account and were made payable either to Poeta himself or to "cash" and were negotiated by Poeta.
Based on the criminal judgment against Resnick, the government initiated third-party proceedings against Poeta under the original criminal caption. Federal law allows the government to collect financial obligations under criminal judgments by using federal and state procedures for collecting civil judgments. 18 U.S.C. § 3613(a). On April 9, 2007, the government served a citation to discover assets directed to Poeta pursuant to Federal Rule of Civil Procedure 69 and 735 Ill. Comp. Stat. 5/2-1402. Pursuant to the citation, Poeta appeared in person with counsel on August 23, 2007 to be examined under oath as to Resnick's assets. When questioned *566 about his gambling operations and his association with Resnick, Poeta repeatedly invoked his Fifth Amendment privilege against self-incrimination.
The government then filed a petition for relief against Poeta, alleging that Resnick had defrauded Universal of approximately $10.5 million and had used some of that money to pay Poeta for illegal gambling debts. The petition alleged that the transfers from Resnick to Poeta were fraudulent because they were not supported by consideration (an illegal gambling contract provides no value), and that Resnick was insolvent and indebted to his victim Universal at the times of the transfers. The government alleged both intentional fraudulent transfer and constructive fraudulent transfer under 28 U.S.C. §§ 3304(b)(1)(A) and (B)(ii), respectively. The government later added a third theory of unjust enrichment. As a remedy, the government sought $647,211, plus prejudgment interest.
Poeta's answer to the government's petition failed to deny any facts relevant to the government's theories of recovery. Poeta either admitted the allegations, claimed insufficient information to admit or deny them, or invoked his Fifth Amendment privilege against self-incrimination.
Given the perceived lack of factual dispute, the government filed a motion for judgment on its petition. Poeta responded by filing a motion to strike the government's motion. Poeta argued that Resnick never rightfully owned the money that he transferred to Poeta, from which Poeta concluded that the money was not properly the subject of a fraudulent transfer claim. Poeta also argued that he had not received sufficient discovery from the government to defend the claims against him.
On June 6, 2008, the district court held a trial to resolve the pending matters. The government offered the testimony of Adam Resnick and six exhibits. Poeta called three witnesses but did not testify himself. The district judge heard oral argument on June 30 and July 2, 2008. On July 23, 2008, the district judge orally announced that he was finding for the government for the full amount sought, $647,211 plus prejudgment interest of $200,986.63, for a total of $848,197.63. The district court entered this judgment in writing on July 31, 2008, but then vacated that judgment on August 6, 2008. See R. 142, 143, 144. The district court asked the government to submit draft findings of fact and conclusions of law, and the government did so. Poeta filed objections and submitted an alternative set of findings and conclusions, seeking setoff from the final judgment for money he had paid to Resnick in gambling winnings. Poeta later filed supplemental proposed conclusions of law in which he advanced for the first time the affirmative defenses of contributory negligence and failure to mitigate damages.
On September 24, 2008, the district court issued its Findings of Fact and Conclusions of Law. The district court found that the government had established Poeta's liability on the alternative theories of constructive fraudulent transfer and unjust enrichment. The court declined to decide whether Resnick was ever the "lawful owner" of the funds he transferred to Poeta. If he was the owner, the district court reasoned, the government could recover for fraudulent transfer, and if he was not, the government could recover for unjust enrichment. Also on September 24, 2008, the district court entered a new judgment against Poeta for the total sum of $848,197.63. See R. 155, 156, 157.
Poeta moved to alter or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e). His motion reargued the issues of ownership, mitigation of damages, and contributory negligence. The *567 motion also asserted for the first time that the post-judgment supplementary proceedings were not the appropriate vehicle for adjudicating the government's claims and had denied him due process of law. The district court denied this motion, and Poeta has appealed.
II. Ownership and Fraudulent Transfer Under the FDCPA
To establish Poeta's liability for constructive fraudulent transfer under the FDCPA, the government was required to show that the judgment debtor Resnick:
ma[de] the transfer ... without receiving a reasonably equivalent value in exchange for the transfer or obligation; [and]
intended to incur, or believed or reasonably should have believed that he would incur, debts beyond his ability to pay as they became due.
28 U.S.C. § 3304(b)(1)(B)(ii).
Resnick's payments to Poeta satisfied the first element because an illegal gambling obligation has no legal value. Under Illinois law, all obligations incurred through illegal gambling are null and void, and any such obligation may be set aside and vacated. Illinois Loss Recovery Act, 720 Ill. Comp. Stat. 5/28-1, 28-7. The second element was also satisfied because Resnick certainly should have believed that he was incurring debts beyond his ability to pay when he defrauded Universal of millions of dollars, in large part to feed his gambling habit. Poeta does not dispute these two elements, but he argues that Resnick made no "transfer" to him within the meaning of the FDCPA because Resnick never legally owned the (stolen) money he paid to Poeta.
The FDCPA specifies that a "transfer is not made until the debtor has acquired rights in the asset transferred." 28 U.S.C. § 3305(4). Poeta argues that since Resnick acquired the money through fraud, he was never the legal "owner" of any funds that he transferred from the Universal account. Therefore, the argument goes, section 3305(4) places Resnick's payments to Poeta outside the scope of the FDCPA, so that Poeta cannot be found liable on a fraudulent transfer theory.[2]
The FDCPA's fraudulent transfer provisions are not written in terms of legal and rightful ownership. The key statutory inquiry here is whether Resnick had "rights in the asset transferred." There is no doubt that Resnick fraudulently obtained the money he transferred to Poeta. His fraud does not mean that he lacked any "rights" in the money, including the power to transfer it. As a practical matter, he had full power to draw on the Universal account and to transfer the money to others. Resnick used this power to defraud the bank, but this power was obtained by observing the legal formalities. Poeta's assertion that Resnick was not a legal signatory is incorrectwhile Resnick skirted Universal's private rules for obtaining drawing authority, nothing in the record indicates that his drawing authority itself was illegal. It was his use of that authority that was criminal.
We find that the requirement of "rights in the asset transferred" was satisfied here because Resnick had possession of the money he delivered to Poeta. The fact *568 that the victims of the fraud had greater rights in the assets that were transferred does not work to shield Poeta from this collection effort. It would be odd to interpret the statute, enacted to provide a remedy for the benefit of one of those victims, to give greater rights to someone in Poeta's positiona bookie receiving stolen money from a criminalthan to others who receive money without giving adequate consideration in more innocuous circumstances.
Although Resnick was not the legal and rightful owner of the funds transferred in the course of his fraudulent scheme, he had the legal right to draw on the account at Universal and the power to transfer the funds at issue, subject to the rights of victims to pursue remedies later. Resnick's transfers of money to Poeta fall within the scope of the FDCPA, and Poeta is liable to the government for the constructively fraudulent transfers. This court need not reach the district court's alternative theory of unjust enrichment.
III. Use of Supplementary Proceedings
Poeta argues that supplementary proceedings are inappropriate for both a fraudulent transfer claim and an unjust enrichment claim, and that he should have been able to defend the government's claim in a separate civil action with the full panoply of pretrial and trial procedural rights. Poeta first advanced this argument in his motion to alter or amend judgment, after the district court had already ruled against him on the merits. Poeta's failure to raise his procedural objections earlier, when any problem could have been remedied by the district court, amounts to a waiver and precludes this challenge on appeal.
A motion to alter or amend judgment under Federal Rule of Civil Procedure 59(e) may be used to draw the district court's attention to a manifest error of law or fact or to newly discovered evidence. E.g., Bordelon v. Chicago School Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir.2000). A Rule 59(e) motion "does not provide a vehicle for a party to undo its own procedural failures, and it certainly does not allow a party to introduce new evidence or advance arguments that could and should have been presented to the district court prior to the judgment." Id. We use a deferential standard when reviewing denials of Rule 59(e) motions and will reverse only if the district court abused its discretion. LB Credit Corp. v. Resolution Trust Corp., 49 F.3d 1263, 1267 (7th Cir.1995) (affirming denial of Rule 59(e) motion that had first presented argument after district court had ruled against appellant on the merits; new argument had been waived).
Poeta failed to make any argument challenging the appropriateness of supplemental proceedings until after the district court had conducted a trial and entered final judgment against him. A Rule 59(e) motion does not provide Poeta an opportunity to remedy this procedural failure. See Bordelon, 233 F.3d at 529 (affirming denial of Rule 59(e) motion attempting to correct procedural omissions). Apart from genuinely jurisdictional issues, a party may not litigate a controversy to completion and then challenge the forum or its procedures only after he has received an unfavorable final judgment. The district court did not abuse its discretion when it denied Poeta's Rule 59(e) motion.[3]
*569 Even if Poeta's challenge to the supplemental proceedings had been timely, he has not shown how the proceedings violated his due process rights. Poeta had ample notice and an opportunity to be heard. He presented evidence and argument on his own behalf, but the government's evidence was stronger. Poeta also claims that his inability to implead Terrence Navarro and Larry Elisco, the other two individuals with access to Resnick's account at Universal, violated his due process rights. These two individuals have nothing to do with the money at issue in this case. The money in question consists only of payments made directly from Resnick to Poeta. Even if Navarro and Elisco shared criminal or civil responsibility for Resnick's fraud, the facts show that Resnick himself delivered hundreds of thousands of dollars to Poeta to pay illegal gambling debts. Those were fraudulent transfers, and the government was entitled to seek relief from Poeta alone.
Poeta also complains of his inability to discover certain "critical elements of the case," such as Resnick's financial condition and his initial statement to the FBI, which Poeta suggests could have been used to impeach Resnick. These "critical elements" are in fact irrelevant given the lack of factual dispute in this case regarding Resnick's payment of illegal gambling proceeds to Poeta. Poeta has never denied, much less proffered evidence to controvert, the fact that Resnick paid him $647,211 in illegal gambling losses. Nor is there any doubt about Resnick's insolvency as he accumulated massive debts to the bank he was looting.
Finally, Poeta claims that he was denied the right to trial by jury. He never asked for a jury. If Poeta thought he had a right to trial by jury, Federal Rule of Civil Procedure 38(b) required him to serve the government with a written demand for trial by jury within 10 days (at that time) of filing his response to the government's petition for relief. His failure to do so waived his right to trial by jury. See Fed.R.Civ.P. 38(d); Members v. Paige, 140 F.3d 699, 701 (7th Cir.1998). "[F]ailure to object to a non-jury factfinding proceeding waives a valid jury demand as to any claims decided in that proceeding, at least where it was clear that the court intended to make fact determinations." Lovelace v. Dall, 820 F.2d 223, 227 (7th Cir.1987). Poeta did not state his desire for trial by jury until after the court had entered judgment against him, and it was always clear that the district court intended to make fact determinations. Poeta waived any arguable right to trial by jury in this action.
IV. Affirmative Defenses
Poeta also argues that the district court erred by rejecting his affirmative defenses of contributory negligence and failure to mitigate damages. Poeta first raised these affirmative defenses after the district court had stated its intent to rule against him on the merits, when Poeta submitted supplemental proposed conclusions of law. This was too late to raise new affirmative defenses as a matter of right. The district court did not abuse its discretion by rejecting these defenses raised for the first time after the trial had concluded and after the court had stated its intention to rule against Poeta.
Poeta also asserts that the money judgment against him should be subject to setoff by subtracting three payments that he says he made to Resnick on winning bets from the amount that Resnick paid *570 him on losing bets.[4] The problem for Poeta is that neither federal nor Illinois law supports a subtraction of offsetting payments on other illegal gambling debts from the judgment against Poeta. Poeta argues that he should receive "equitable consideration" for the payments made to Resnick, despite the illegal nature of their gambling arrangement. To support this contention, Poeta points to United States v. Santos, 553 U.S. ___, 128 S. Ct. 2020, 170 L. Ed. 2d 912 (2008), a Supreme Court decision interpreting the word "proceeds" in the federal money laundering statute, 18 U.S.C. § 1956(a), to mean "profits," and not gross "receipts" when there is no legislative history to the contrary. Id. at 2031.[5] Poeta concludes that he should be liable only for the net profit he received from Resnick.
Unlike Santos, this case does not require interpretation of an ambiguous statutory term. See Santos, 128 S.Ct. at 2024. No ambiguity of terms exists here, and Poeta does not argue otherwise. The Santos Court's decision to construe "proceeds" to mean profits and not gross receipts rested entirely on the rule of lenity. See id. at 2025-34. The Santos Court summarized the function of the rule of lenity:
The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them. This venerable rule ... vindicates the fundamental principle that no citizen should be held accountable for a violation of a statute whose commands are uncertain, or subjected to punishment that is not clearly prescribed.
Id. at 2026 (citations omitted). The present case deals with section 3304(b) of the FDCPA, a law that suffers from no ambiguity here: it applies to transfers from a debtor to a third party, not those going in the other direction. Nor does section 3306(a) (providing the remedies available to the judgment creditor) impose criminal liability or punishment on the transferee. It simply allows the court to order that the transfer be unwound. See 18 U.S.C. §§ 3304(b), 3306(a).
In its effort to collect from Poeta, the government may rely on both federal and state law. See 18 U.S.C. § 3613. The Illinois Loss Recovery Act applies here, and it deems void all of the illegal gambling transfers at issue, in either direction. 720 Ill. Comp. Stat. 5/28-7. Section 28-8 of the Act provides a cause of action by which anyone may sue on behalf of an illegal gambling loser to recover from the winner the total amount lost:
*571 (a) Any person who by gambling shall lose to any other person, any sum of money or thing of value, amounting to the sum of $50 or more and shall pay or deliver the same or any part thereof, may sue for and recover the money or other thing of value....
(b) If within 6 months, such person ... does not in fact pursue his remedy, any person may initiate a civil action against the winner.
Id. at 28-8. The statute provides for recovery of all that is lost, not the net of the gambling exchanges. The Illinois Supreme Court long ago explicitly rejected an attempt to use winning payments as a setoff, reading a prior version of the statute to refer to recovery of every instance of loss and not to the net loss over some extended period of time. Johnson v. McGregor, 157 Ill. 350, 352-53, 41 N.E. 558, 559 (Ill.1895). The purpose of the statute is not simply to undo illegal gambling transactions but "to deter illegal gambling by using its recovery provisions as a powerful enforcement mechanism." Vinson v. Casino Queen, Inc., 123 F.3d 655, 657 (7th Cir.1997). Accordingly, Illinois law voids all of Resnick's illegal gambling payments to Poeta and bars Poeta's belated setoff defense.
The judgment of the district court is AFFIRMED.
NOTES
[1] Poeta's first name is spelled in different ways in the record. We use his attorney's spelling, "Domenic."
[2] Poeta points to two excerptsone from the district court's oral decision and one from its final written opinionto show that the district court explicitly found that Resnick did not own the money he transferred from his Universal account. In both passages, the district court was merely summarizing Poeta's position, not adopting it. The district court specifically declined to adopt Poeta's argument that Resnick did not own the money he transferred to Poeta. See R. 155, ¶¶ 17, 37.
[3] Poeta contends that he raised the issue in closing arguments. Even if that were timely, which it was not, the quoted portion of closing arguments addressed the substantive ownership issue discussed above, not the procedures used to resolve the issue. The closing argument transcript reveals no challenge to the supplemental proceedings. Such a challenge was also absent from Poeta's written filings submitted before final judgment.
[4] The three payments were supposedly in the amounts of $50,000, $70,000, and $2.2 million. Resnick testified to the $50,000 payment, and a letter from the FDIC shows the $70,000 payment. To prove the $2.2 million payment, however, Poeta provides only excerpts from Resnick's fictionalized book describing his struggle with gambling addiction. These colorful book excerpts were certainly hearsay, and even if they were taken at face value, they would not support a finding that Poeta paid $2.2 million of his own money to Resnick. According to the fictional text provided to the court, any payment of this amount would have come from an offshore operation (the book refers to "the guys in Antigua"), not from Poeta's account. The fictionalized excerpts also fail to indicate that the payment was made at all. They indicate only that the sum was owed to Resnick. See App. F. If we were to consider any offset, it would be in the amount of $120,000, the total of the two smaller payments.
[5] Poeta actually focuses on the earlier Santos opinion by this court, 461 F.3d 886 (7th Cir. 2006), and a prior Seventh Circuit case, United States v. Scialabba, 282 F.3d 475 (7th Cir. 2002). The Supreme Court's analysis was substantially similar to this court's, and the Supreme Court's Santos opinion is the most recent and most authoritative word on the matter. We restrict our analysis to the Supreme Court's Santos decision. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379951/ | 594 F.3d 1149 (2010)
NORTH COUNTY COMMUNICATIONS CORP., Plaintiff-Appellant,
v.
CALIFORNIA CATALOG & TECHNOLOGY, d/b/a CTT Telecomms (OCN 573B), Defendant,
TGEC Communications Co. LLC, CA (OCN 5969); United States Cellular Corp-California, (OCN 6261); GTE Mobilnet of Tampa, Inc., (OCN 6339); Arch Wireless Holdings, Inc., (OCN 6630); El Dorado Cellular, d/b/a Mountain Cellular (OCN 6980); Brooks Fiber Properties, Inc., (OCN 7219); The Other Phone Company, Inc., (OCN 7452); Charter Fiberlink CA-CCO LC, (OCN 776C); FirstWorld So. CA, (OCN 7839); A+ Wireless Inc., d/b/a Advantage Wireless-CA (OCN 822A); MPower Communications Corp-CA, (OCN 8322); Choice Telecomm, LLC-CA (OCN 885B); Trans National Communications Intl, Inc.-CA 2419 (OCN 864C); Commpartners, LLC-CA (OCN 869C); Allegiance Telecom, Inc.-CA (OCN 8782); OneStar Communications, LLC-MD (OCN 9992); Integrated Communications Consultants, Inc.-CA (OCN 9397); NTCH-California, Inc. (OCN 9607); Telemex International-CA (OCN 998B); Bay Area Cellular Telephone; Pacific Centrex Services, Inc.-CA (OCN 3662); Bullseye Telecom, Inc.-CA (OCN 069A); Comm South Companies, Inc.-CA (OCN 400A); Arrival Communications, Inc.-CA (4553); Blue Casa Communications LLC-CA (OCN 111B); Comcast Phone of California LLC-CA (OCN 7610); Communications Express Inc., d/b/a Com Express; ECI Comms Inc., d/b/a ITS Network Services-CA (OCN 3630); Ernest Communications, Inc.-CA (OCN 4961); Excel Telecommunications, Inc.-CA (OCN 243A); Express Telephone Services, Inc.-CA (OCN 093A); Global Naps California, Inc.-CA (OCN 5300); In Touch Communications, Inc.-CA (OCN 047B); 2420 Lightyear Network Solutions, LLC-CA (OCN 5370); McGraw Communications, Inc. (OCN 5597); Metropolitan Telecomms California, d/b/a Mettel-CA (OCN 180A); PNG Telecomms d/b/a Powernet Global Comms CA (OCN 240B); Pointe Communications Corp-CA (OCN 2595); Preferred Carrier Services, Inc., d/b/a Phones For All (OCN 5428); Telephone Service Incorporated, d/b/a Friendlylec CA (OCN 2015); VCOM Solutions, Inc.-CA *1150 (OCN 334B); Wholesale Air-Time, Inc.-CA (OCN 199B); Leap Wireless Intl, Inc. d/b/a Cricket Comm, Inc. (OCN 0822); Blue Licenses Holding LLC, (OCN 6010); Pacific Bell Mobile Services, (OCN 6672), Defendants, and
Cellco Partnership, d/b/a Verizon Wireless-CA (OCN 6006); Cellco Partnership, d/b/a Verizon Wireless-NM (OCN 6573); T-Mobile USA, Inc., (OCN 6529); Cal-One Cellular LP, (OCN 6604); PhoneCo, L.P.-CA, (OCN 542B); Cingular Wireless; Cricket Communications, Inc., Defendants-Appellees.
No. 08-55048.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 17, 2009.
Filed February 10, 2010.
*1151 Joseph G. Dicks (argued) and Christopher J. Reichman, Dicks & Workman, San Diego, CA, for Appellant North County Communications.
John Hueston and Laura W. Brill (argued), Irell & Manella, Los Angeles, CA, for Appellee Cal-One Cellular L.P. and Cellco Partnership.
Martin L. Fineman, Suzanne K. Toller, and Gregory J. Kopta (argued), Davis Wright Tremaine LLP, San Francisco, CA, for Appellees T-Mobile USA, Cingular Wireless, and Cricket Communications, Inc.
Alan E. Greenberg and Kelly A. Van Nort, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, San Diego, CA, for Appellee PhoneCo, L.P.
Before: JOHNNIE B. RAWLINSON and N. RANDY SMITH, Circuit Judges, and CLAUDIA WILKEN,[*] District Judge.
RAWLINSON, Circuit Judge:
The dispute in this telecommunications case stems from Appellant North County Communication's (North County) contention that it has a private right of action to enforce various compensation arrangements pursuant to the Federal Communications Act. In its complaint, North County, a competitive local exchange carrier (CLEC), alleged that Appellees, as commercial mobile radio service (CMRS) providers, failed to properly compensate North County for terminating their calls on North County's network.
North County challenges the district court's dismissal of its declaratory judgment claims for lack of subject matter jurisdiction. Specifically, the district court held that North County had no private right of action to enforce the compensation *1152 arrangements in federal court. On appeal, North County asserts that 47 U.S.C. §§ 251(b)(5), 201(b), 206 and 207, and the implementing Federal Communications Commission (Commission or FCC) regulation, 47 C.F.R. § 20.11, provide the requisite private right of action. We disagree, and affirm the district court's judgment.
I. BACKGROUND
A. Statutory and Regulatory Background
Prior to enactment of the 1996 Telecommunications Act, the Commission established rules governing connections between Local Exchange Carriers (LECs) and CMRS providers. These rules required "mutual compensation for the exchange of traffic between LECs and CMRS providers." In The Matter of Developing a Unified Intercarrier Compensation Regime (T-Mobile Decision), 20 F.C.C.R. 4855, 4856, ¶ 2, 2005 WL 433200 (2005) (footnote reference omitted). "In particular, the rules required the originating carrier, whether LEC or CMRS provider, to pay reasonable compensation to the terminating carrier in connection with traffic that terminates on the latter's network facilities." Id. at 4856, ¶ 2 (footnote reference omitted).
The Commission eventually determined that 47 U.S.C. § 251(b)(5) "obligates LECs to establish reciprocal compensation arrangements for the exchange of intraMTA [Major Trading Area] traffic between LECs and CMRS providers." Id. at 4856, ¶ 3 (footnote reference omitted). For traffic originating and terminating within the same MTA, reciprocal compensation obligations under § 251(b)(5), rather than interstate or intrastate access charges, applied. See id. at 4856-57, ¶ 3 (footnote references omitted).
"Although section 251(b)(5) and the Commission's reciprocal compensation rules reference an arrangement between LECs and other telecommunications carriers, including CMRS providers, they do not explicitly address the type of arrangement necessary to trigger the payment of reciprocal compensation or the applicable compensation regime, if any, when carriers exchange traffic without making prior arrangements with each other." Id. at 4857, ¶ 4 (footnote reference and internal quotation marks omitted). This lack of guidance generated a legion of disputes among the carriers, see id. at 4858, ¶ 6, and prompted clarification from the Commission.
As the existing rules did not expressly preclude the filing of tariffs to set compensation, the Commission clarified that the reciprocal compensation rules did not, at that time, prohibit incumbent LECs from filing state termination tariffs, which CMRS providers were obligated to accept. See id. at 4860, ¶ 9. "Because the existing compensation rules [were] silent as to the type of arrangement necessary to trigger payment obligations, [the Commission found] that it would not have been unlawful for incumbent LECs to assess transport and termination charges based upon a state tariff." Id. at 4860, ¶ 10 (footnote reference omitted). However, the Commission also "amend[ed][its] rules to make clear [its] preference for contractual arrangements by prohibiting LECs from imposing compensation obligations for non-access CMRS traffic pursuant to tariff." Id. at ¶ 9 (footnote reference omitted).[1]
*1153 Upon the effective date of the Commission's amendments, any "existing wireless termination tariffs [would] no longer apply." Id. at 4863, ¶ 14.
B. The District Court's Dismissal of North County's Third Amended Complaint
According to its third amended complaint, North County "is a CLEC that provides switched and non-switched local exchange, exchange access, and other telecommunication services to end users in California." North County alleged that the defendant-appellees "are CMRS and CLEC providers that offer calling plans allowing calls to areas serviced by [North County]."
North County asserts that it "incurs costs in terminating calls sent to [its] end users by the Defendants' end users." North County alleged that defendant-appellees "knowingly send traffic to [North County] in the absence of an interconnection agreement or a reciprocal compensation agreement[[2]] for [North County] to terminate to its end users customers. As a common carrier, [North County] is obligated to terminate calls received from other carriers to [North County's] end users."
North County alleged that it "began sending monthly bills to the Defendants for traffic termination in January, 2003," and that it "billed the Defendants $0.004 per minute and $0.007 per call set-up, before increasing its rate to the prevailing market rate of $0.011 per minute." According to North County, the defendants refused to pay the bills or enter into a compensation arrangement.
Relying on the T-Mobile Decision, North County contended that "it is proper for a LEC, like [North County], to be compensated for traffic sent to its end-users that originates with CMRS providers pursuant to its tariff on file." North County acknowledged that the Commission "limited the scope of this finding to time periods preceding April 29, 2005, the effective date of the amendments to 47 C.F.R. section 20.11 promulgated by the T-Mobile Decision." According to North County, "CMRS providers still remained obligated to comply with the principles of mutual compensation and to pay reasonable compensation to the LEC for the termination of traffic that originates with the CMRS provider."
In its first cause of action, North County sought declaratory judgment, alleging that "it is entitled to be compensated for the termination of traffic which the Defendants sent and continue to send to [North County's] end users . . ." North County recognized that "while determining the precise rate of compensation for termination of traffic, including call set-up and minutes of use, under these circumstances may be a matter beyond the expertise of this court and within the expertise of the appropriate regulatory body, the FCC has also indicated that `collection actions' do not state a cause of action under its rules." North County requested that the district court determine:
(1) the number of calls and the number of minutes originating on the Defendants' networks and terminated on [North County's] network from April 29, 2005 up through the time of trial, (2) that [North County] is entitled to receive mutual compensation for the termination of calls to [North County's] end-users which originate on the Defendants' networks, and (3) that the Defendants are required to commit to compensate [North County] at a rate to be *1154 determined by the appropriate regulatory body, or else refrain from sending any traffic to [North County's] end-users and refrain from taxing [North County's] limited resources, (4) that the Defendants' conduct amounts to an unjust and unreasonable practice in violation of section 201 and 202 of the Federal Communications Act (47 U.S.C. §§ 201, 202) which has damaged [North County] (47 U.S.C. §§ 206, 207).
North County's second cause of action was premised on quantum meruit recovery. North County alleged that "Defendants knowingly accepted, used, enjoyed and benefitted from the services provided by [North County]." According to North County, "[i]t would be unjust to allow the Defendants to have the benefit of [North County's] services without paying reasonable compensation for these benefits and the Defendants should be so ordered to pay." North County sought damages "covering the period beginning April 29, 2005 and continuing up through the time of trial."
In its third cause of action, North County asserted damages pursuant to the applicable state tariff "covering the period beginning 3 years before the filing of this complaint and continuing up to and including April 28, 2005."
The district court granted defendant-appellees' motion to dismiss, holding that it lacked subject matter jurisdiction, because North County failed to properly allege a federal claim. The district court also concluded that declaratory judgment "would not achieve the objectives of granting such relief." North County filed a timely notice of appeal.
II. STANDARDS OF REVIEW
"We review de novo dismissals under Rules 12(b)(1) and 12(b)(6)." Rhoades v. Avon Prods., Inc., 504 F.3d 1151, 1156 (9th Cir.2007) (citing Holcombe v. Hosmer, 477 F.3d 1094, 1097 (9th Cir.2007)). "For the purposes of reviewing such dismissals, and where, as here, no evidentiary hearing has been held, all facts alleged in the complaint are presumed to be true." Id. (quoting Wilton v. Seven Falls Co., 515 U.S. 277, 289-90, 115 S. Ct. 2137, 132 L. Ed. 2d 214 (1995)) (alterations and internal quotation marks omitted).
"District court decisions about the propriety of hearing declaratory relief actions are reviewed for abuse of discretion." Id. (quoting Wilton, 515 U.S. at 289-90, 115 S. Ct. 2137) (alterations and internal quotation marks omitted).
"Although we review the ultimate decision to decline to exercise jurisdiction for abuse of discretion, we conduct de novo review of the court's application of the primary jurisdiction doctrine[.]" Id. at 1162 n. 11 (citations omitted).
III. DISCUSSION
A. North County's Declaratory Judgment Act Claims
North County's claims are hampered by the very relief it seeksa declaratory judgment. "[T]he Declaratory Judgment Act does not by itself confer federal subject-matter jurisdiction[.]" Nationwide Mut. Ins. Co. v. Liberatore, 408 F.3d 1158, 1161 (9th Cir.2005). "As required by Article III, courts may adjudicate only actual cases or controversies." Rhoades, 504 F.3d at 1157 (citation omitted). "The disagreement underlying the declaratory relief action must not be nebulous or contingent but must have taken on a fixed and final shape so that a court can see what legal issues it is deciding, what effect its decision will have on the adversaries, and some useful purpose to be achieved in deciding them." Id. (quoting Pub. Serv. Comm'n v. Wycoff Co. Inc., 344 U.S. 237, 244, 73 S. Ct. 236, 97 L. Ed. 291 (1952)) (alteration omitted).
*1155 North County contends that the district court has subject matter jurisdiction under the Declaratory Judgment Act because the Federal Communications Act creates a private right of action for violations of its compensation requirements. "Where a federal statute does not explicitly create a private right of action, a plaintiff can maintain a suit only if Congress intended to provide the plaintiff with an implied private right of action." In re Digimarc Corp. Derivative Litig., 549 F.3d 1223, 1230 (9th Cir.2008) (quoting First Pac. Bancorp, Inc. v. Helfer, 224 F.3d 1117, 1121 (9th Cir.2000)) (alteration and internal quotation marks omitted). "Accordingly, the judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy." Id. at 1231 (quoting Alexander v. Sandoval, 532 U.S. 275, 286, 121 S. Ct. 1511, 149 L. Ed. 2d 517 (2001)) (alteration and internal quotation marks omitted).
Thus, it is not enough for North County to broadly proclaim that it is entitled to compensation under the Federal Communications Act. Instead, North County "must demonstrate that a federal statute vests [North County] with such a right." Rouse v. United States Dep't of State, 567 F.3d 408, 418 (9th Cir.2009), as amended (citation omitted) (emphasis in the original). "Language in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not." Id. (quoting Alexander, 532 U.S. at 291, 121 S. Ct. 1511) (parentheses and footnote reference omitted).
A broad assertion of a private right of action is not easily maintained under the Federal Communications Act, as our statutory analysis is intertwined with the requisite deference to the Commission's interpretation of the Federal Communications Act. This is so because "the FCC is the agency that is primarily responsible for the interpretation and implementation of the Telecommunications Act and of its own regulations." Greene v. Sprint Commc'ns Co., 340 F.3d 1047, 1052 (9th Cir.2003) (citation omitted); see also Howard v. AOL, 208 F.3d 741, 752 (9th Cir.2000) ("Congress created the FCC to enforce the Communications Act. The Supreme Court's opinions have repeatedly emphasized that the FCC's judgment regarding how the public interest is best served is entitled to substantial judicial deference.") (quoting FCC v. WNCN Listeners Guild, 450 U.S. 582, 596, 101 S. Ct. 1266, 67 L. Ed. 2d 521 (1981)) (alteration and internal quotation marks omitted). Absent a supporting Commission determination, and with no showing of Congressional intent to create a private right of action, North County cannot assert a viable claim for relief. See Greene, 340 F.3d at 1050-51.
In support of its contention that it has a private right of action to seek compensation from the CMRS providers in federal court, North County relies on 47 C.F.R. § 20.11(b); 47 U.S.C. § 251(b)(5); 47 U.S.C. § 201(b); 47 U.S.C. § 206; and 47 U.S.C. § 207. We examine each of these cited sources to determine if the referenced statutory or regulatory language provides for a private right of action or for a private remedy. We simultaneously consider any relevant determinations from the Commission. Applying this two-fold analysis and deferring to the Commission's primary jurisdiction, we conclude that 47 U.S.C. § 251(b) and 47 C.F.R. § 20.11(b) cannot support North County's claims for declaratory relief. "The primary jurisdiction doctrine is a doctrine specifically applicable to claims properly cognizable in court that contain some issue within the special competence of an administrative agency." W. Radio Servs. Co. v. Qwest Corp., 530 F.3d 1186, *1156 1200 (9th Cir.2008) (citation and internal quotation marks omitted). "[T]he primary jurisdiction doctrine is designed to protect agencies possessing quasi-legislative powers and that are actively involved in the administration of regulatory statutes." Clark v. Time Warner Cable, 523 F.3d 1110, 1115 (9th Cir.2008) (citation and internal quotation marks omitted). "Charged with the administration of the Telecommunications and Federal Communications Acts, the FCC is such an agency." Id. (citation omitted). Under the primary jurisdiction doctrine, courts may decline to decide issues that are "within the special competence of an administrative agency." Id. at 1114. Specifically, the Commission's determinations that 47 U.S.C. § 251(b) is inapplicable to CMRS providers, and that the Commission is the appropriate forum for pursuing compensation under 47 C.F.R. § 20.11(b) are fatal to North County's contention. We also conclude that North County's declaratory judgment claims premised on 47 U.S.C. § 201(b) are fatally flawed because the Commission has not determined that the CMRS providers' lack of compensation to CLECs violates § 201(b). Finally, we hold that, because North County cannot establish an independent right to compensation, 47 U.S.C. § 206 and § 207 are not viable vehicles for it to seek relief.
1. 47 C.F.R. § 20.11(b) and 47 U.S.C. § 251(b)(5)
47 C.F.R. § 20.11(b) provides:
Local exchange carriers and commercial mobile radio service providers shall comply with principles of mutual compensation. (1) A local exchange carrier shall pay reasonable compensation to a commercial mobile radio service provider in connection with terminating traffic that originates on facilities of the local exchange carrier. (2) A commercial mobile radio service provider shall pay reasonable compensation to a local exchange carrier in connection with terminating traffic that originates on the facilities of the commercial mobile radio service provider.
Pursuant to 47 U.S.C. § 251(b)(5), "[e]ach local exchange carrier has the following duties: . . . The duty to establish reciprocal compensation arrangements for the transport and termination of telecommunications."
According to North County, a violation of 47 C.F.R. § 20.11(b)'s compensation requirements is the equivalent of a violation of 47 U.S.C. § 251(b)(5) for which it has a federal remedy. However, nothing in the plain language of § 251(b)(5) provides for a right to compensation. Rather, § 251(b)(5) provides for the duties of local exchange carriers, not even mentioning CMRS providers. See 47 U.S.C. § 251(b)(5).
Our reading of § 251(b)(5)'s plain language is bolstered by the Commission's determination that § 251(b) is inapplicable to CMRS providers. In North County Commc'ns Corp. v. MetroPCS California, LLC, 24 F.C.C.R. 3807, 2009 WL 818927 (2009), North County alleged that MetroPCS, a CMRS provider, failed to compensate North County for traffic terminated on North County's network. See id. at 3807-08, ¶¶ 1, 4. Rejecting North County's claims made pursuant to § 251, the Commission held:
Section 251(b)(5) imposes a duty to establish reciprocal compensation only upon LECs. Moreover, the Commission has stated unequivocally that CMRS providers will not be classified as LECs and are not subject to the obligations of section 251(b). Therefore, as a CMRS provider, MetroPCS is not subject to the obligations arising directly from section 251(b) itself . . .
MetroPCS, 24 F.C.C.R. at 3814-15, ¶ 16 (footnote references and internal quotation marks omitted).
*1157 The Commission also delineated the procedures that a private party must undertake in pursuit of reasonable compensation under 47 C.F.R. § 20.11(b). The Commission "decline[d] to determine, in the first instance, what constitutes reasonable compensation" under 47 C.F.R. § 20.11(b). Id. at 3810, ¶ 9 (footnote reference and internal quotation marks omitted). The Commission expounded that "the more appropriate venue for determining what constitutes reasonable compensation for North County's termination of intrastate traffic originated by MetroPCS is not this Commission, but rather the California PUC, via whatever procedural mechanism it deems appropriate under state law (e.g., complaint proceeding, declaratory ruling proceeding, generic cost or rulemaking proceeding)." Id. (internal quotation marks omitted).[3], [4] The Commission explained that it would consider North County's claims once a determination of the rate of reasonable compensation was made by the appropriate state commission. Id. The Commission's ruling demonstrates that it is the proper forum for North County's claims premised on 47 C.F.R. § 20.11(b), once North County has met the predicate procedural requirements.[5]
We readily defer to the Commission's resolution of North County's claims asserted pursuant to 47 U.S.C. § 251, and its determination of the procedures applicable to claims made under 47 C.F.R. § 20.11(b). See Fones4All Corp. v. F.C.C., 550 F.3d 811, 820 (9th Cir.2008) ("[W]e are interpreting the FCC's regulations, and courts should give substantial deference to an agency's interpretation of its own regulations.") (citation and internal quotation marks omitted).[6], [7]
*1158 2. 47 U.S.C. § 201(b)
Section 201(b) provides in relevant part:
All charges, practices, classifications, and regulations for and in connection with such communication service, shall be just and reasonable, and any such charge, practice, classification, or regulation that is unjust or unreasonable is declared to be unlawful[.]
It is arguable that the plain language of § 201(b) contains an implication that private parties may pursue remedies for violations of the statute. However, given the broad language of the statute, a more reasonable interpretation is that it is within the Commission's purview to determine whether a particular practice constitutes a violation for which there is a private right to compensation. See In re Long Distance Telecomm. Litig., 831 F.2d 627, 631 (6th Cir.1987), as amended ("This [charge of unreasonable practices] is a determination that Congress has placed squarely in the hands of the FCC.") (quoting Consol. Rail Corp. v. Nat'l Ass'n of Recycling Indus., Inc., 449 U.S. 609, 612, 101 S. Ct. 775, 66 L. Ed. 2d 776 (1981)) (alteration and internal quotation marks omitted); see also Greene, 340 F.3d at 1049-50. However, the Commission has not determined that the CMRS providers' lack of payment to CLECs like North County violates § 201(b).[8] North County essentially requests that the federal courts fill in the analytical gap stemming from the absence of a Commission determination regarding § 201(b). This we decline to do. The district court properly dismissed North County's declaratory judgment claim premised on § 201(b), because entry of a declaratory judgment "would . . . put interpretation of a finely-tuned regulatory scheme squarely in the hands of private parties and some 700 federal district judges, instead of in the hands of the Commission." Greene, 340 F.3d at 1053 (quoting Conboy v. AT&T Corp., 241 F.3d 242, 253 (2d Cir.2001)) (alteration and internal quotation marks omitted); see also In re Long Distance Telecommunications Litig., 831 F.2d at 631.[9]
Our conclusion, that an FCC determination is integral to claims involving § 201(b), is bolstered by the Supreme Court's recent decision in Global Crossing *1159 Telecommuns., Inc. v. Metrophones Telecommuns., Inc., 550 U.S. 45, 127 S. Ct. 1513, 167 L. Ed. 2d 422 (2007). In Global Crossing, the Supreme Court considered whether § 207 of the Telecommunications Act authorized a payphone operator to bring a federal claim against carriers who refused to pay compensation ordered by the FCC. 550 U.S. at 47, 127 S. Ct. 1513. The FCC determined "that a carrier's refusal to pay the compensation ordered amounts to an unreasonable practice within the terms of § 201(b)." Id. at 52, 127 S. Ct. 1513 (citation and internal quotation marks omitted). "That determination, it believed, would permit a payphone operator to bring a federal-court lawsuit under § 207, to collect the compensation owed." Id. (citation omitted). The Supreme Court opined that § 207's language "makes clear that the lawsuit is proper if the Commission could properly hold that a carrier's failure to pay compensation is an unreasonable practice deemed unlawful under § 201(b)." Id. at 52-53, 127 S. Ct. 1513 (internal quotation marks omitted) (emphasis in the original).
In reviewing § 207, the Supreme Court noted the linkage between the statute's purpose and the FCC's regulations. "[T]he purpose of § 207 is to allow persons injured by § 201(b) violations to bring federal-court damages actions." Id. at 53, 127 S. Ct. 1513 (citations omitted). "History also makes clear that the FCC has long implemented § 201(b) through the issuance of rules and regulations. This is obviously so when the rules take the form of FCC approval or prescription for the future of rates that exclusively are reasonable." Id. (citations omitted). "It is also so when the FCC has set forth rules that, for example, require certain accounting methods or insist upon certain carrier practices, while (as here) prohibiting others as unjust or unreasonable under § 201(b)." Id. (citations omitted). "Insofar as the statute's language is concerned, to violate a regulation that lawfully implements § 201(b)'s requirements is to violate the statute." Id. at 54, 127 S. Ct. 1513 (citation omitted) (emphasis in the original).
Given these statutory and regulatory considerations, the Supreme Court framed the issue as "whether the particular FCC regulation . . . lawfully implements § 201(b)'s unreasonable practice prohibition." Id. at 55, 127 S. Ct. 1513. The Supreme Court opined that "[t]he carrier's refusal to divide the revenues it receives from the caller with its collaborator, the payphone operator, despite the FCC's regulation requiring it to do so, can reasonably be called a `practice' `in connection with' the provision of that service that is `unreasonable.'" Id. (citation omitted).
However, the Supreme Court limited its holding, as it did "not suggest that the FCC is required to find carriers' failures to divide revenues to be § 201(b) violations in every instance." Id. at 56, 127 S. Ct. 1513 (citation omitted). "Nor [did it] suggest that every violation of FCC regulations is an unjust and unreasonable practice. Here there is an explicit statutory scheme, and compensation of payphone operators is necessary to the proper implementation of that scheme. Under these circumstances, the FCC's finding that the failure to follow the order is an unreasonable practice is well within its authority." Id. "[T]he FCC properly implements § 201(b) when it reasonably finds that the failure to follow a Commission, e.g., rate or rate-division determination made under a different statutory provision is unjust or unreasonable under § 201(b)." Id. at 60, 127 S. Ct. 1513 (citations and emphasis omitted). "Moreover, in resting [its] conclusion upon the analogy with rate setting and rate divisions, the traditional, historical subject matter of § 201(b), [the Supreme Court] avoid[ed] authorizing the FCC to turn §§ 201(b) and 207 into a *1160 back-door remedy for violation of FCC regulations." Id.[10]
In contrast to the facts in Global Crossing, the Commission has not made any findings that CMRS providers' failure to compensate CLECs constitutes an unreasonable practice in violation of § 201(b). Because North County cannot demonstrate a violation of § 201(b) in the absence of an FCC determination, the district court properly dismissed North County's claims. See Greene, 340 F.3d at 1052-53.
Unable to demonstrate any statutory or regulatory violations for which there is a private right to compensation, North County fares no better in seeking declaratory judgment under 47 U.S.C. § 206 and § 207.
3. 47 U.S.C. § 206 and § 207
47 U.S.C. § 206 provides in pertinent part:
In case any common carrier shall do, or cause or permit to be done, any act, matter, or thing in this chapter prohibited or declared to be unlawful, or shall omit to do any act, matter, or thing in this chapter required to be done, such common carrier shall be liable to the person or persons injured thereby for the full amount of damages sustained in consequence of any such violation of the provisions of this chapter . . .
47 U.S.C. § 207 provides:
Any person claiming to be damaged by any common carrier subject to the provisions of this chapter may either make complaint to the Commission as hereinafter provided for, or may bring suit for the recovery of the damages for which such common carrier may be liable under the provisions of this chapter, in any district court of the United States of competent jurisdiction; but such person shall not have the right to pursue both such remedies.
The plain language of §§ 206 and 207 establishes procedures for private parties to pursue claims in federal court, but does not establish an independent private right of action for compensation. In Greene, we clarified that there must be an independent right to compensation for a private right of action to lie under §§ 206 and 207. Greene, 340 F.3d at 1050-51 ("Because the private right of action created by §§ 206 and 207 extends only to violations of this chapter, and § 276 does not require IXCs to compensate PSPs, there is no violation of § 276 for which a private action explicitly lies for payphone compensation.") (internal quotation marks omitted). Similarly, because North County has failed to establish a right to specific compensation pursuant to any statute or regulation, §§ 206 and 207 cannot form the basis for its compensation claims. See id.
We have also held that claims pursuant to § 207, like those premised on § 201(b), are particularly amenable to resolution by the FCC. In W. Radio Servs. Co., we considered whether the district court had subject matter jurisdiction over claims that an ILEC failed to negotiate an interconnection agreement in good faith. 530 *1161 F.3d at 1189. We observed that "issues regarding the applicability of § 207 are complex and should not be decided without the participation of the FCC, the agency principally responsible for the enforcement of the Telecommunications Act." Id. at 1204. "Whether § 207 provides a cause of action may, in fact, have an impact on FCC regulation in other contexts. For example, determining whether § 207 provides a private right of action ... may involve interpreting the relationship between the terms common carrier, local exchange carrier, and telecommunications carrier. Section 207 refers to damages caused by a common carrier." Id. (internal quotation marks omitted). "On the one hand, the statutory definitions and the use of the terms in other provisions of the Acts suggest that local exchange carriers are not necessarily a subset of common carriers." Id. (citations omitted). "On the other hand, the statutory definition of telecommunications carriera term which is used along with local exchange carrier in § 252as well as FCC guidance on the relationship between common carriers and telecommunications carriers, suggests that local exchange carriers may be common carriers for purposes of § 207." Id. (citations and internal quotation marks omitted). "As all three terms are frequently used throughout the telecommunications acts, interpreting them may have consequences in areas of telecommunications law other than the reach of § 207." Id. at 1205. We opined:
In addition, interpretation of § 207 potentially implicates the jurisdiction of the F.C.C. Section 207 offers aggrieved individuals a choice of remedies for alleged violations of the Telecommunications Act: they may go to the F.C.C., presumably by bringing a complaint under § 208which provides a mechanism for filing complaints before the F.C.C. or to a district court. Given that the statute provides a choice between these two remedies, it may be logical to expect that if a claim can be brought in district court under § 207, it also may be brought to the F.C.C. under § 208. On the other hand, the F.C.C. has never directly decided whether it has jurisdiction over good faith claims ...
Id. Because of this complexity, § 207 does not lend itself to declaratory relief.[11]
We, therefore, conclude that the district court properly dismissed North County's declaratory judgment claims, as North County cannot demonstrate a right to compensation under any statute or regulation that is enforceable pursuant to a federal private right of action.[12]
B. North County's State Law Claims
North County's second cause of action was for quantum meruit and its third cause of action sought compensation pursuant to a state tariff. Because the district *1162 court dismissed North County's federal claims for lack of subject matter jurisdiction, the district court lacked jurisdiction over North County's state claims. See Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 806 (9th Cir.2001) ("If the District Court had original jurisdiction, but dismissed for nonjurisdictional reasons, then it could maintain supplemental jurisdiction at its discretion. If it dismissed the underlying claim on jurisdictional grounds, then it could not exercise supplemental jurisdiction.") (quoting Saksenasingh v. Sec'y of Educ., 126 F.3d 347, 351 (D.C.Cir.1997)).
C. The District Court's Dismissal Of North County's Claims With Prejudice[13]
"The primary jurisdiction doctrine allows courts to stay proceedings or to dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency." Clark, 523 F.3d at 1114. Given the Commission's consideration of North County's compensation claims in MetroPCS and the absence of a Commission determination regarding whether the CMRS providers' failure to compensate North County violates § 201(b), we conclude that "the initial decisionmaking responsibility should be performed by the relevant agency rather than the courts." Syntek Semiconductor, 307 F.3d at 778. As a result, the dismissal of North County's claims should have been without prejudice to allow filing of the claim in the proper forum. See Syntek Semiconductor, 307 F.3d at 782; see also Clark, 523 F.3d at 1115.
IV. CONCLUSION
We hold that the district court did not abuse its discretion when it dismissed North County's declaratory judgment claims, because North County is unable to assert a federal claim. The district court lacked subject matter jurisdiction pursuant to the Declaratory Judgment Act, as North County cannot establish a private right to compensation under the provisions of the Federal Communications Act. The Commission has not determined that the CMRS providers' failure to pay compensation violates the Federal Communications Act. Because we are ill equipped to properly resolve North County's claim in the absence of a predicate determination from the Commission, we vacate the judgment and remand this case so that North County's claims can be dismissed without prejudice.
VACATED and REMANDED for dismissal without prejudice.
NOTES
[*] The Honorable Claudia Wilken, United States District Judge for the Northern District of California, sitting by designation.
[1] "[T]he term `non-access traffic' refers to traffic not subject to the interstate or intrastate access charge regimes, including traffic subject to section 251(b)(5) of the Act [reciprocal compensation arrangements] and ISP-bound traffic." T-Mobile Decision, 20 F.C.C.R. at n. 6 (internal quotation marks omitted).
[2] North County defined reciprocal compensation as "the payment arrangement that recovers the costs incurred for the transport and termination of local telecommunication traffic originating on one party's network and terminating on the other party's network."
[3] The full FCC upheld the enforcement bureau's determination that "the California PUC is the more appropriate forum for determining the reasonable compensation rate for North County's termination of intrastate, intraMTA traffic originated by MetroPCS." North County Commc'ns Corp. v. MetroPCS California, LLC, No. EB-06-MD-007, FCC 09-100, 2009 WL 4005067, at *3, ¶ 12 (F.C.C. Nov. 19, 2009). The full FCC also denied "the parties' Applications for Review regarding the forum issue primarily by affirming and incorporating by reference the reasoning and holdings of the Bureau Merits Order." Id. (footnote reference omitted).
[4] The Commission observed that its T-Mobile Decision was consistent with the conclusion that state commissions should initially determine the reasonable rate of compensation. See MetroPCS, 24 F.C.C.R. at 3812-13, ¶ 12; see also North County Commc'ns Corp. v. MetroPCS California, LLC, 2009 WL 4005067, at *4, ¶¶ 13-14.
[5] North County's assertion that the Commission equated a violation of 47 C.F.R. § 20.11 with a violation of the Federal Communications Act is unfounded. The Commission did not make such a determination. Rather, it "assume[d], without deciding, that a violation of rule 20.11 would be a violation of the Act cognizable under section 208 of the Act." MetroPCS, 24 F.C.C.R. at n. 30 (citations omitted) (emphasis added). In any event, the Commission's determination demonstrates that the Commission, not the federal courts, should make this decision.
[6] North County maintains that CMRS providers are subject to the same regulations as common carriers under 47 U.S.C. § 332(c)(1)(A) and 47 C.F.R. § 20.15(a). However, these broad statutory and regulatory provisions appear to be limited to CMRS providers' general obligations under the Federal Communications Act. See 47 C.F.R. § 20.15(a) ("Commercial mobile radio services providers, to the extent applicable, must comply with sections 201, 202, 206, 207, 208, 209, 216, 217, 223, 225, 226, 227, and 228 of the Communications Act"); see also 47 U.S.C. § 332(c)(1)(A) (deferring expressly to regulations promulgated by the Commission). The Commissions's recent decision regarding CMRS providers supports this conclusion. See MetroPCS, 24 F.C.C.R. at 3812, ¶ 11 (noting that § 332 does not apply to "intercarrier rates").
[7] North County's reliance on the T-Mobile Decision to establish a private right to compensation is also misplaced. In T-Mobile, the Commission considered a petition seeking "to reaffirm that wireless termination tariffs are not a proper mechanism for establishing reciprocal compensation arrangements for the transport and termination of traffic." 20 F.C.C.R. at 4855, ¶ 1 (footnote reference omitted). The Commission never addressed violations of 47 C.F.R. § 20.11, nor the remedies for such violations.
[8] North County argues that the Commission concluded in MetroPCS that the CMRS providers' failure to pay reasonable compensation violated § 201(b). However, in MetroPCS, the Commission merely "[f]or purposes of [that] Order only, . . . assume[d], without deciding, that a CMRS carrier's failure to enter in good faith into an agreement with a CLEC regarding the termination of intrastate traffic, and a failure to pay a CLEC for such termination, could constitute a violation of section 201(b) of the Act." MetroPCS, 24 F.C.C.R. at n. 72 (citation omitted). The Commission simply did not make the determination that North County imputes to it.
[9] North County fails to provide any supporting authority evidencing Congressional intent to create a private right to compensation pursuant to § 201(b). See In re Digimarc Corp. Derivative Litig., 549 F.3d at 1230-31 ("In the absence of clear evidence of congressional intent, we may not usurp the legislative power by unilaterally creating a cause of action. Touche Ross [& Co. v. Redington], 442 U.S. [560,] 578, 99 S. Ct. 2479, 61 L. Ed. 2d 82 [1979]. The ultimate question is one of congressional intent, not one of whether this Court thinks that it can improve upon the statutory scheme that Congress enacted into law.") Id. (parenthesis omitted).
[10] North County cites APCC Servs., Inc. v. Sprint Commc'ns Co., 489 F.3d 1249 (D.C.Cir. 2007). However, in that case, the D.C. Circuit considered whether violations of § 201(b) provide a private right of action for payphone service providers. See id. at 1250. The D.C. Circuit held that, in accordance with Global Crossing, "a violation of the regulation at issue is a violation of § 201(b) of the Act, for which a private right of action is authorized by § 207 of the Act, in effect creating a right of action to remedy a violation of the regulation itself." Id. (citation omitted). The D.C. Circuit's holding was based on the reasoning of Global Crossing and its reference to the predicate determination by the Commission of a regulatory violation, facts not present here.
[11] North County also posits, without legal support, that the CMRS providers' payment to other LECs, and not North County, constitutes a discriminatory practice prohibited by 47 U.S.C. § 202(a). North County has waived this argument. See Maldonado v. Morales, 556 F.3d 1037, 1048 n. 4 (9th Cir. 2009) ("Arguments made in passing and inadequately briefed are waived.") (citation omitted). In any event, the Commission has rejected North County's claims under § 202(a) against CMRS providers. MetroPCS, 24 F.C.C.R., at 3817, ¶ 22.
[12] North County also contends that the federal courts are the proper forum for resolving its claims because the Commission does not decide collection actions. However, the Commission has ruled that once North County seeks a rate of reasonable compensation from the relevant state commission, the Commission would be able to resolve North County's "collection" claims. See MetroPCS, 24 F.C.C.R. at 3810-11, ¶ 9.
[13] It does not appear that the district court relied on the primary jurisdiction doctrine in dismissing North County's declaratory judgment claims, nor did North County request a stay of the proceedings. However, we may apply the doctrine sua sponte. See Syntek Semiconductor Co., Ltd. v. Microchip Tech. Inc., 307 F.3d 775, 780 n. 2 (9th Cir.2002), as amended. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379725/ | 187 Ga. App. 134 (1988)
369 S.E.2d 511
FUSSELL
v.
THE STATE.
76149.
Court of Appeals of Georgia.
Decided May 12, 1988.
Rebecca L. Sims, Earl McRae, Jr., for appellant.
Harry D. Dixon, Jr., District Attorney, Albert H. Tester, Assistant District Attorney, for appellee.
BEASLEY, Judge.
Defendant appeals the order overruling her motion for new trial after her conviction of two counts of aggravated assault, OCGA § 16-5-21. Error is assigned on the trial court's failure to 1) re-charge the jury on accident, 2) charge simple assault as a lesser included offense of aggravated assault, and 3) instruct the jury that defendant's statement was admissible solely to impeach him. Defendant also contends that the evidence was insufficient to convict.
1. While recognizing the trial court's duty to respond to the jury's request for further instructions, Freeman v. State, 142 Ga. App. 293, 294 (4) (235 SE2d 560) (1977), on a re-charge it is not necessary to cover the subject in toto. Creamer v. State, 229 Ga. 704, 708 (4) (194 SE2d 73) (1972). This well established principle found early expression in Hatcher v. State, 18 Ga. 460 (5) (1855), which observed that where "the jury, after consulting, return for further instructions upon some particular point, the Court is not bound to repeat all the law favorable to the accused." The trial court re-charged on the issues of law requested and answered an individual juror's question about accident versus intention to her satisfaction, again instructing the *135 jury that it should acquit if it found accident and reminding the jury that a charge defining accident had been given. There was no abuse of the court's discretion in this regard. Brownlee v. State, 155 Ga. App. 875, 876 (3) (273 SE2d 636) (1980); Evans v. State, 138 Ga. App. 460 (2) (226 SE2d 303) (1976).
2. Assuming as does defendant that simple assault was a lesser included offense in this case, in the absence of a written request it was not error to fail to charge on that issue. State v. Stonaker, 236 Ga. 1, 2 (222 SE2d 354) (1976).
3. The next question is whether, as to portions of a voluntary custodial statement which are not introduced in the State's case-in-chief but are used in rebuttal to impeach defendant's trial testimony, the trial court must give a limiting instruction absent defendant's request.
Defendant testified that the gun fell out of her purse, she and the victim tussled, and she did not know who pulled the trigger. According to a signed statement to the police several hours after the incident, defendant took the gun from her purse and she pulled the trigger as they were scuffling. When the State tried to impeach defendant with these recitations through police testimony on rebuttal per OCGA § 24-9-83, defendant objected and the court conducted a Jackson v. Denno[1] hearing and determined that the in-custody statement was voluntary and met Miranda v. Arizona[2] Fifth Amendment requirements. The evidence was then allowed, no instruction limiting its use to impeachment was requested or given, and in the jury charge the court instructed that evidence could be considered for any purpose once the jury found the statement to be voluntary.
Defendant did not object but on appeal claimed it was reversible error not to confine the jury's use of the statement to impeachment and to allow it instead to constitute evidence of guilt as well. She cites no authority.
In State v. Byrd, 255 Ga. 665 (341 SE2d 455) (1986), the Supreme Court discussed, as a subject related to the one at issue, the use of prior inconsistent statements to impeach trial statements. It recognized that this court in Colbert v. State, 124, Ga. App. 283 (183 SE2d 476) (1971), held that a limiting instruction is required even absent a request. In dicta it approved that approach, because the significance of not so limiting the jury's consideration would be to allow a Miranda-violating statement to be used as substantive evidence. This would contravene the Fifth and Fourteenth Amendments.
Here, however, the statement was found by the trial court not to *136 have been obtained in violation of defendant's rights against self-incrimination. This has not been challenged. Thus the statement was not constitutionally inadmissible in the case-in-chief; it simply was not offered because, as the State saw it, it did not of itself tend to establish guilt. Since the statement was not required by the Constitution to be narrowed in use, the trial court was not required to volunteer a circumscription as it would be if the statement was otherwise inadmissible. Harris v. New York, 401 U.S. 222 (91 SC 643, 28 LE2d 1) (1971); Wilson v. State, 254 Ga. 679, 681 (2) (333 SE2d 589) (1985); Walton v. State, 159 Ga. App. 331 (1) (283 SE2d 366) (1981).
Even if defendant may have been entitled to ask for a limitation as a matter of proper trial procedure, due to the fact it was offered during rebuttal and so should be confined to its rebuttal purpose, her failure to instruct the jury as to the limited purpose for which the evidence was offered was not error in the absence of a request. Jones v. State, 242 Ga. 893, 896 (5) (252 SE2d 394) (1979); Lynch v. State, 164 Ga. App. 317, 320 (4) (296 SE2d 179) (1982); Fletcher v. State, 159 Ga. App. 789, 790 (2) (285 SE2d 762) (1981).
4. Defendant contends that her conviction was unauthorized because the evidence failed to show an essential element of the offense, namely, that she intentionally fired the shots which injured the two victims, citing Bowers v. State, 177 Ga. 36, 37 (1) (338 SE2d 457) (1985).
The following legal principles apply. "Every crime consists in the union or joint operation of act and intention. Sometimes the intention can be proved, sometimes it can only be inferred or presumed;[3] and the general rule laid down by our Code is, that the intention will be manifested by the circumstances connected with perpetration of the offense." Patterson v. State, 1 Ga. App. 782, 784 (58 S.E. 284) (1907). Accord Mallette v. State, 119 Ga. App. 24, 27 (165 SE2d 870) (1969). "Intent is a question for the jury." Cade v. State, 180 Ga. App. 314, 316 (3) (348 SE2d 769) (1986). When an unintended victim is struck down as a result of an unlawful act actually directed against someone else, the law prevents the actor from taking advantage of his own wrong and transfers the original intent from the one against whom it was directed to the one who actually suffered from it. "In legal contemplation, the intent follows the act through to its legitimate results." Cook v. State, 255 Ga. 565, 566 (1) (340 SE2d 891) (1986).
After an altercation with the first victim at a check-out counter in a grocery store, defendant returned with a pistol which she drew from her pocketbook and attempted to strike the first victim in the *137 head with it. The victim tried to take the pistol from defendant and they fought for possession of the weapon, rolling on the floor. During the course of the struggle the first victim was shot, as was the store manager who rushed to the scene to stop the fight. Defendant's denial of knowledge as to the cause of the weapon's discharge was contradicted by her prior statement to the police that she pulled the trigger.
Construing the evidence in favor of the verdict, the jury was authorized to find that defendant intended to assault the first victim with a deadly weapon and that in the course of that assault the second victim was injured. Similarly, the jury was also authorized to find the original intent was transferred in law to the second victim as well. Cook, supra. The evidence was sufficient for a rational trier of fact to find defendant guilty beyond a reasonable doubt of the two charged crimes. Daughtry v. State, 180 Ga. App. 711 (1) (350 SE2d 53) (1986); Delano v. State, 158 Ga. App. 296, 297 (279 SE2d 743) (1981).
Judgment affirmed. Birdsong, C. J., and Banke, P. J., concur.
NOTES
[1] 378 U.S. 368 (84 SC 1774, 12 LE2d 908) (1964).
[2] 384 U.S. 436 (86 SC 1602, 16 LE2d 694) (1966).
[3] The word "presumed" is now forbidden. See Francis v. Franklin, 471 U.S. 307 (105 SC 1965, 85 LE2d 344) (1985). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379752/ | 187 Ga. App. 86 (1988)
369 S.E.2d 346
SMITH et al.
v.
FELICIANO et al.
75867.
Court of Appeals of Georgia.
Decided May 6, 1988.
Bobby D. Simmons, for appellants.
Dennis A. Elisco, Hunter S. Allen, Jr., for appellees.
CARLEY, Judge.
Appellant-plaintiffs Victor Paul Smith and Elma Smith brought this tort action against appellee-defendant physicians. The complaint averred that appellees had negligently misdiagnosed and treated appellant Victor Paul Smith's shoulder, as a result of which professional negligence, Mr. Smith allegedly sustained injuries for which he sought to recover damages from defendants. Elma Smith sought to recover damages for loss of consortium. Appellees answered, denying the material allegations of the complaint.
Both appellees subsequently filed a motion for summary judgment. The motions were supported by appellees' own affidavits, wherein they swore that, in treating and caring for appellant Mr. Smith, they had utilized the proper standard of care and skill employed by the medical profession generally under similar conditions and like surroundings. In opposition to appellees' motions, appellants submitted the affidavit of another physician. According to appellants' expert, the opinion that he expressed in his affidavit was based upon his review of certain medical records and x-rays and upon his experience as an orthopedic surgeon. The ultimate opinion of appellants' expert was that "[a]ccording to the standard of care in Georgia the treatment of [appellant] Mr. Smith by [appellees] was not in fact proper." The trial court granted appellees' motions for summary judgment, and it is from that order that appellants bring this appeal.
1. The grant of summary judgment is enumerated as being erroneous on the basis that the affidavits of appellees failed to pierce the pleadings of appellants' complaint. "The [appellee] doctors' affidavits stated their individual medical credentials, their expertise in their specific field of medicine, and their expert opinion that ... their treatment [and care] of [appellant Mr. Smith] was in accordance with that degree of care and skill customarily and ordinarily employed by physicians generally [under the same conditions and like-surrounding circumstances].... The law presumes that medical and surgical services were performed in an ordinarily skillful manner and the burden is on the one receiving the services to show a want of due care, skill, and diligence. [Cit.] A defendant-doctor is competent to give his opinion as an expert in a medical malpractice action against him. [Cit] Such expert testimony, the same as any other expert testimony on the same issue, can be sufficient to pierce the pleadings of the plaintiff-patient. [Cit.]" Landers v. Ga. Baptist Med. Center, 175 Ga. App. *87 500, 501 (1) (333 SE2d 884) (1985). See also Loving v. Nash, 182 Ga. App. 253, 255 (1) (355 SE2d 448) (1987). The trial court correctly found that appellees' own affidavits were sufficient to pierce the allegations contained in appellants' complaint as to medical negligence.
2. Appellants also contend that it was error to grant appellees' motion for summary judgment in that the affidavit of the expert which appellants offered in opposition to appellees' motion was sufficient to create a genuine issue of material fact as to appellees' medical negligence.
The opinion of appellants' expert as to appellees' negligence purports to be based upon his consideration of certain material which is not in the record. Not all of those medical records and x-rays of appellant Mr. Smith, upon which the expert witness states that he based his opinion, are included in the record. "Our review of the affidavit reveals that the portions of [the affidavit] that could be said to raise a genuine issue of material fact [as to whether appellees were negligent in their diagnosis and treatment of appellant Mr. Smith] and thus preclude the trial court's grant of appellees' summary judgment motion were based on the missing records [and the x-rays]. Since the affidavit does not set forth admissible facts, it must be disregarded. [Cit.]" Mingledolph v. Univ. Emergency Physicians, 174 Ga. App. 75, 76 (329 SE2d 222) (1985). It follows that, for this reason, the trial court correctly ruled that the affidavit of appellants' expert filed in opposition to appellees' motion for summary judgment was insufficient to show the existence of a genuine issue of material fact as to appellees' medical negligence.
3. Our holding in Division 2 renders moot any consideration of whether the opinion of appellants' expert was based upon the standard of care applicable in a medical malpractice case. See Kellos v. Sawilowsky, 254 Ga. 4 (325 SE2d 757) (1985) (legal malpractice).
4. As discussed in Division 1, appellees' own affidavits submitted in support of their motions were sufficient to pierce the allegations of appellants' complaint. As discussed in Division 2, appellants failed to meet the evidentiary burden which was shifted to them to show the existence of an issue of fact for jury resolution. It follows that the trial court correctly granted summary judgment in favor of appellees.
Judgment affirmed. Deen, P. J., and Sognier, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2446492/ | 791 S.W.2d 160 (1990)
Anita FLORES, Appellant,
v.
H.E. BUTT STORES, INC., Appellee.
No. 13-89-384-CV.
Court of Appeals of Texas, Corpus Christi.
April 12, 1990.
Rehearing Overruled June 22, 1990.
*161 David Garcia, Edinburg, for appellant.
Rudy Gonzales, Jr., Clay R. Hoblit, Chavez, Gonzales & Rodriguez, Corpus Christi, for appellee.
Before BENAVIDES, UTTER and SEERDEN, JJ.
OPINION
BENAVIDES, Justice.
Anita Flores sued H.E. Butt Stores, Inc. (H.E.B.), for injuries received when she slipped and fell in an H.E.B. grocery store. By two points of error, Flores appeals a summary judgment in favor of H.E.B. which was based on deemed admissions. We affirm the judgment of the trial court.
Flores filed suit in Hidalgo County against H.E.B. on October 5, 1982, alleging that, on October 6, 1980, she slipped as a result of a wet or slippery substance on the wet floor in an H.E.B. store and fell, injuring herself. She claimed that her fall was caused by H.E.B.'s negligence.
The suit was transferred to Nueces County on a plea of privilege in 1983. In December, 1987, H.E.B. served requests for admissions on Flores. Flores filed responses to these admissions, objecting to eleven of the requests specifically because the term "foreign substance" was vague and ambiguous. On January 28, 1988, H.E.B. served Flores with a second set of requests for admissions which included a clarification of the term "foreign substance" defining the term as the "substance" (e.g. water, grape, wax, etc.), if any, that allegedly caused the Plaintiff to fall. Flores did not file answers or objections to this second set of clarified requests for admissions.
In March, 1989, H.E.B. filed a motion for summary judgment, alleging that Flores' failure to respond to the requests for admissions resulted in deemed admissions which defeated her cause of action. Additionally, H.E.B.'s motion cited specific deposition testimony by Flores which also would preclude recovery. H.E.B. attached the requests for admissions and a verified copy of excerpts from Flores' deposition as exhibits to its motion for summary judgment.
Flores filed a response to H.E.B.'s motion. Attached to her response were unverified excerpts from Flores' deposition. Flores claimed that summary judgment was precluded because issues of material fact were raised.
On May 17, 1989, after considering the matter submitted by the parties, the trial court granted H.E.B.'s motion for summary judgment on all grounds. Subsequently, Flores' motion for a new trial was overruled.
In order for Flores to recover from H.E.B., she had the burden of proving (1) that H.E.B. had actual or constructive knowledge of some conditions on the premises; (2) that the condition posed an unreasonable risk of harm to her; (3) that H.E.B. did not exercise reasonable care to reduce or eliminate their risk; and (4) that H.E. B.'s failure to use such care proximately caused her injuries. See Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983); H.E. Butt Grocery Company v. Godawa, 763 S.W.2d 27, 29 (Tex.App.Corpus Christi 1988, no writ); see also Adam Dante Corp. v. Sharpe, 483 S.W.2d 452, 454-55 (Tex.1972); H.E.B. Food Stores, Inc. v. Flores, 661 S.W.2d 297, 299 (Tex. App.Corpus Christi 1983, writ dism'd).
By two points of error, Flores contends that the trial court erred in entering summary judgment in favor of H.E.B. By her first point, Flores claims that genuine issues *162 of material fact had been raised and that those issues had not been established as a matter of law. By her second point of error, Flores contends that the law cited by H.E.B. in support for its motion for summary judgment and which was relied upon by the trial court was distinguishable from the case at bar. H.E.B. counters that the trial court correctly entered the summary judgment because no issue of material fact existed and the case law cited did provide authority in support of summary judgment.
The purpose of a summary judgment is to eliminate patently unmeritorious claims or untenable defenses. Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex.1972); Barrow v. Jack's Catfish Inn, 641 S.W.2d 624, 625 (Tex.App.Corpus Christi 1982, writ ref'd n.r.e.). Thus, a summary judgment should be granted only if evidence establishes that no genuine issue of material fact exists and that the movant is entitled to summary judgment as a matter of law on all issues presented to the trial court. Continental Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499, 501 (Tex.1988); Torres v. Laredo Nat. Bank, 716 S.W.2d 667, 668-69 (Tex.App.Corpus Christi 1986, no writ); Barrow, 641 S.W.2d at 625; Tex.R.Civ.P. 166a(c).
This standard is not the directed verdict standard urged by H.E.B., that it was entitled to judgment because Flores had no evidence. To the extent H.E.B.'s motion sought judgment on the directed verdict standard it was incorrect. Notwithstanding H.E.B.'s invitation to use the wrong standard, we will apply the correct standard, and assume the trial court also used the correct standard.
The party seeking summary judgment has the burden of proof and all doubts regarding the existence of a genuine issue of fact are to be resolved against him; in order to prevail on a summary judgment motion, the defendant must show by summary judgment evidence that at least one of the elements of the plaintiff's cause of action has been conclusively established against the plaintiff. McCurry v. Aetna Casualty and Sur. Co., 742 S.W.2d 863, 866 (Tex.App.Corpus Christi 1987, writ denied). Thus, all evidence favorable to the non-movant is taken as true, and every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in the non-movant's favor. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985).
It is a well-settled rule of law that pleadings, such as a motion for summary judgment, are not evidence. Americana Motel, Inc. v. Johnson, 610 S.W.2d 143 (Tex.1980); Barrow, 641 S.W.2d at 625. Similarly, a response to a motion for summary judgment is a pleading and, thus, is not evidence which a trial court can consider in ruling on a motion for summary judgment. See Nicholson v. Memorial Hosp. Sys., 722 S.W.2d 746, 749 (Tex.App.Houston [14th Dist.] 1986, writ ref'd n.r.e.). Deemed admissions are competent summary judgment evidence. Culp v. Hawkins, 711 S.W.2d 726, 727 (Tex.App.Corpus Christi 1986, writ ref'd n.r.e.); see also Velchoff v. Campbell, 710 S.W.2d 613, 614 (Tex.App.Dallas 1986, no writ).
The admissions offered as summary judgment included the following admission:
(5) Flores did not slip on a foreign substance;
This admission conclusively established that the alleged unreasonable risk of harm or alleged dangerous condition did not cause appellant's injuries and precluded appellant's recovery as a matter of law. Flores' two points of error are overruled. The judgment of the trial court is AFFIRMED.
UTTER, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/839513/ | 748 N.W.2d 826 (2008)
Tameka BRANCHE, Personal Representative of the Estate of Tommie Charles Tyson, Deceased, Plaintiff-Appellee,
v.
SINAI-GRACE HOSPITAL, a/k/a Sinai Hospital of Greater Detroit, Defendant-Appellant, and
Daniel J. Walz, M.D., Defendant.
Docket No. 130957. COA No. 266255.
Supreme Court of Michigan.
May 27, 2008.
By order of October 17, 2007, the application for leave to appeal the March 9, 2006 order of the Court of Appeals was held in abeyance pending the decision in Braverman v. Garden City Hospital (Docket Nos. 134445-6). On order of the Court, the case having been decided on April 9, 2008, 480 Mich. 1159, 746 N.W.2d 612 (2008), the application is again considered, and it is DENIED, because we are *827 not persuaded that the questions presented should be reviewed by this Court. | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/357073/ | 577 F.2d 1313
UNITED STATES of America, Plaintiff-Appellee,v.James C. BEIL and Daniel Michael Bonnetts, Defendants-Appellants.
No. 77-5629.
United States Court of Appeals,Fifth Circuit.
Aug. 11, 1978.
Edward M. Genson, Jeffrey B. Steinback, Chicago, Ill., for Beil.
John C. Swearingen, Jr., Ben B. Philips, Columbus, Ga., for Bonnetts.
D. L. Rampey, Jr., U. S. Atty., Richard E. Nettum, Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.
Appeals from the United States District Court for the Middle District of Georgia.
Before COLEMAN, AINSWORTH and VANCE, Circuit Judges.
AINSWORTH, Circuit Judge:
1
Defendants James C. Beil and Daniel Michael Bonnetts were convicted following a bench trial of conspiring under 18 U.S.C. § 371 to violate the Dyer Act, 18 U.S.C. §§ 2312, 2313.1 The district court sentenced each to three years' imprisonment. In this appeal the defendants challenge the validity of their convictions on two grounds, neither of which we find meritorious. Accordingly, we affirm the convictions.
2
The facts in this case are stipulated and fully set forth as Appendix A. These facts demonstrate that between September 26, 1973 and July 19, 1975, defendant Beil stole two automobiles in Illinois and sold them in Illinois to Charles Raymond Jordan, who then transported them to Columbus, Georgia, and sold at least one of them to Leon Brooks Murdock. Between July 9, 1974 and February 17, 1975, defendant Bonnetts stole three automobiles in Illinois and sold them in Illinois to Charles Raymond Jordan, who then transported at least two of them to Columbus, Georgia and thereafter back to Chicago, Illinois, where he sold them to Nicholas Katinas.
3
Beil and Bonnetts contend first that the district court erred in not granting their motion for judgment of acquittal, because even though the automobiles they admittedly stole did move in interstate commerce after the theft, the Government failed to prove that the defendants actually knew the automobiles would move in interstate commerce when they sold the cars to Jordan. According to Beil and Bonnetts, such knowledge is an essential element of the offense of conspiring to violate the Dyer Act. We disagree.
4
By the language itself of the Dyer Act, set forth in footnote 1, the only knowledge required by the statute is that the property was stolen. Knowledge that the property has moved or will move in interstate commerce is not an element of the offense. See, e. g., Overton v. United States, 5 Cir., 1968, 405 F.2d 168; Bibbins v. United States, 9 Cir., 1968, 400 F.2d 544. Cf. United States v. Doolittle, 5 Cir., 507 F.2d 1368, 1372, aff'd en banc, 5 Cir., 518 F.2d 500, cert. denied, 423 U.S. 1008, 96 S.Ct. 439, 46 L.Ed.2d 380 (1975) (18 U.S.C. § 1952). Beil and Bonnetts were not charged with violating the Dyer Act itself, however, but with conspiring to violate it under the general conspiracy statute, 18 U.S.C. § 371. It is clarion clear that "in order to sustain a judgment of conviction on a charge of conspiracy to violate a federal statute, the Government must prove at least the degree of criminal intent necessary for the substantive offense itself." United States v. Feola, 420 U.S. 671, 686, 95 S.Ct. 1255, 1265, 43 L.Ed.2d 541 (1975). In this respect the Government's task was not difficult; both defendants knew that the automobiles sold to Jordan were stolen because they themselves were the admitted thieves. The only remaining question, therefore, is whether conspiracy to violate the Dyer Act requires more in this case that the defendants knew that the cars would move in interstate commerce.
5
In United States v. Feola, supra, the Supreme Court held that knowledge that the intended victim is a federal officer is not a requisite for the crime of conspiracy under 18 U.S.C. § 371 to violate 18 U.S.C. § 111, which prohibits an assault upon a federal officer while he is engaged in the performance of his official duties. The Court found first that in order to incur criminal liability under 18 U.S.C. § 111, an assailant need not be aware that his victim is a federal officer. 420 U.S. at 684, 95 S.Ct. at 1264. The Court then rejected the defendant's argument that conviction of conspiracy under 18 U.S.C. § 371 to violate Section 111 requires such an awareness, because, found the Court, the two values underlying the law of conspiracy would not be served thereby. The first of these values is the protection of society from the dangers of concerted criminal conduct. The Court stated "(t)hat individuals know that their planned joint venture violates federal as well as state law seems totally irrelevant to that purpose of conspiracy law which seeks to protect society from the dangers of concerted criminal activity." 420 U.S. at 693, 95 S.Ct. at 1268. The second value underlying the law of conspiracy pertains to the fact that conspiracy is an inchoate crime. At some point between preparation and consummation of a crime, the likelihood that the crime will be committed is sufficiently great and the criminal intent is sufficiently formed to justify intervention of the criminal law. The law of conspiracy protects society by defining this point of intervention.2 In this regard the Court stated:
6
Again, we do not see how imposition of a strict "anti-federal" scienter requirement would relate to this purpose of conspiracy law. Given the level of intent needed to carry out the substantive offense, we fail to see how the agreement is any less blameworthy or constitutes less of a danger to society solely because the participants are unaware which body of law they intend to violate. Therefore, we again conclude that imposition of a requirement of knowledge of those facts that serve only to establish federal jurisdiction would render it more difficult to serve the policy behind the law of conspiracy without serving any other apparent social policy.
7
420 U.S. at 694, 95 S.Ct. at 1268-69.
8
Following the Supreme Court's lead in Feola, we find with respect to the Dyer Act that the two values underlying the law of conspiracy would not be served by requiring that those who conspire to violate the Act know that stolen vehicles will move or have moved in interstate commerce in order to incur criminal liability. This result is consistent with our holding in United States v. Muncy, 5 Cir., 1976, 526 F.2d 1261. There the trial court instructed the jury that knowledge that the stolen property had moved in interstate commerce was not an essential element of the offense of conspiring to violate 18 U.S.C. § 2315, which provides in pertinent part:
9
Whoever receives, conceals, stores, barters, sells, or disposes of any goods, wares, or merchandise, securities, or money of the value of $5,000 or more, or pledges or accepts as security for a loan any goods, wares, or merchandise, or securities, of the value of $500 or more, moving as, or which are a part of, or which constitute interstate or foreign commerce, knowing the same to have been stolen, unlawfully converted, or taken . . . (s)hall be fined not more than $10,000 or imprisoned not more than ten years, or both.
10
We found no error in the district court's instruction because "knowledge of jurisdictional facts is not required in determining guilt of either the substantive offense or the conspiracy offense." 526 F.2d at 1264.3 Moreover, in United States v. Kelly, 5 Cir., 1978, 569 F.2d 928, 934, this Court held that "(k)nowledge or foreseeability of a victim's travel in interstate commerce" need not be proven when the defendant was charged with causing and conspiring to cause a person to travel in interstate commerce in execution of a scheme to defraud in violation of 18 U.S.C. §§ 2, 371, and 2314. See United States v. Greer, 7 Cir., 1972, 467 F.2d 1064, 1071-72, cert. denied, 410 U.S. 929, 93 S.Ct. 1364, 35 L.Ed.2d 590 (1973); Gurleski v. United States, 5 Cir., 1968, 405 F.2d 253, 268-69, cert. denied, 395 U.S. 981, 89 S.Ct. 2140, 23 L.Ed.2d 769 (1969). The defendants' contention is therefore without merit.
11
Beil and Bonnetts next contend that there was insufficient evidence to convict them of a conspiracy. Beil contends that the Government failed to show that he had any agreement with Jordan, and Beil and Bonnetts together contend that the Government failed to show that they had any agreement with each other, that they had knowledge of each other's dealings with Jordan, or that they had knowledge of Jordan's later dealings in interstate commerce with Murdock and Katinas.
12
In considering claims of insufficient evidence, this Court must examine the evidence in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Cadillac Overall Supply Co., 5 Cir., 1978, 568 F.2d 1078, 1080, 1084 (bench trial). Beils' contention that he had no agreement with Jordan and both defendants' contention that they had no knowledge of Jordan's later sales in interstate commerce are refuted by the stipulated facts, which provide that both Beil and Bonnetts "understood when they sold the automobiles . . . to Charles Raymond Jordan that Jordan, acting in concert with others, was planning to dispose of the said automobiles either by sale or by selling said automobiles as spare parts."4 Although Beil and Bonnetts do not expressly so state, it appears that their other contentions that they had no agreement with each other and that they had no knowledge of each other's dealings with Jordan amount to the argument that there was no single conspiracy. Thus, according to the defendants, although the Government proved individual conspiracies between Beil and Jordan and Bonnetts and Jordan, the Government allegedly did not prove a single conspiracy among Beil, Bonnetts, and Jordan, which was the type of conspiratorial conduct alleged in the indictment.
13
We recently addressed a similar contention in United States v. Baldarrama, 5 Cir., 1978, 566 F.2d 560. We rejected the Baldarrama defendants' contention on two grounds, the second of which is dispositive of the defendants' contention in the instant case. After noting that "(v)ariance from the indictment is not always prejudicial, nor is prejudice assumed,"566 F.2d at 566, citing, e. g., Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935), we found in Baldarrama that the "defendants completely failed to demonstrate any prejudice arising out of a possible variance between the offenses proved at trial (allegedly the separate conspiracies) and those charged in the indictment (the single conspiracy)." 566 F.2d at 566. In this regard the Baldarrama defendants relied on United States v. Levine, 5 Cir., 1977, 546 F.2d 658, where the Court found improper joinder of defendants under Fed.R.Crim.P. 8(b), but none of the Baldarrama defendants asserted any prejudicial joinder in their case. Moreover, "the nature of the case was such that the jury could not easily have been confused and failed to consider individual guilt." 566 F.2d at 566-67. Similarly, in this case defendants Beil and Bonnetts also have shown no prejudice resulting from a possible variance between the two conspiracies allegedly proved at trial and the single conspiracy charged in the indictment. Like the Baldarrama defendants, the defendants here do not assert prejudicial joinder, and the possibility of jury confusion is nonexistent because Beil and Bonnetts were tried before the court. Accordingly, their claim is meritless.
14
Having considered each of the defendants' contentions and finding no error, their convictions are
15
AFFIRMED.
APPENDIX A
16
(a) On or about August 13, 1974, at Schaumburg, Illinois, Daniel Michael Bonnetts stole a 1974 Lincoln Continental IV, VIN 4Y89A828487, from the possession of Merle H. Lahti.
17
(b) On or about the same date, Daniel Michael Bonnetts sold the said automobile to Charles Raymond Jordan for $600.00 in Illinois.
18
(c) Between August 13, 1974, and March 24, 1975, Charles Raymond Jordan transported the said automobile from Illinois to, among other places, Columbus, Georgia and thereafter to Chicago, Illinois, where it was sold by Charles Raymond Jordan to Nicholas Katinas.
19
(d) On or about July 9, 1974, at Worth, Illinois, Daniel Michael Bonnetts stole a 1974 Ford Thunderbird, VIN 4J87A133837, from the possession of Norman Steigert.
20
(e) On or about July 9, 1974, Daniel Michael Bonnetts sold the automobile specified in subparagraph (d), above, to Charles Raymond Jordan in Illinois.
21
(f) Between July 9, 1974, and February 13, 1975, Charles Raymond Jordan transported the automobile specified in subparagraph (d), above, from Illinois to, among other places, Columbus, Georgia and thereafter to Chicago, Illinois where it was sold by Charles Raymond Jordan to Nicholas Katinas.
22
(g) On or about February 17, 1975, at Chicago, Illinois, Daniel Michael Bonnetts stole a 1974 Lincoln Continental Mark IV, VIN 4Y89A835241, from the possession of David Hussman.
23
(h) On or about February 17, 1975, Daniel Michael Bonnetts sold the automobile specified in subparagraph (g), above, to Charles Raymond Jordan in Illinois.
24
(i) On or about September 26, 1973, at Chicago, Illinois, James C. Beil stole a 1973 Ford Thunderbird, VIN 3J87N191094, from the possession of Eugene Baer.
25
(j) On or about September 26, 1973, James C. Beil sold the automobile specified in subparagraph (i), above, to Charles Raymond Jordan in Illinois.
26
(k) Between September 26, 1973, and March 14, 1974, Charles Raymond Jordan arranged for the automobile specified in subparagraph (i), above, to be transported to Columbus, Georgia where it was sold by Charles Raymond Jordan to Leon Brooks Murdock, a used car sales person.
27
(l ) On or about July 19, 1975, at Chicago, Illinois, James C. Beil stole a 1975 Cadillac Elderado, VIN 6L47S5Q230589 from the possession of Joseph Edward Rorem.
28
(m) On or about July 19, 1975, James C. Beil sold the automobile specified in subparagraph (l ), above, to Charles Raymond Jordan in Illinois.
29
(n) Between July 19, 1975 and January 13, 1976, Charles Raymond Jordan transported the automobile specified in subparagraph (l ), above, to Columbus, Georgia.
30
(o ) Daniel Michael Bonnetts and James C. Beil understood when they sold the automobiles described in subparagraphs (a) through (n), inclusive, to Charles Raymond Jordan that Jordan, acting in concert with others, was planning to dispose of the said automobiles either by sale or by selling said automobiles as spare parts.
31
(p) Although Daniel Michael Bonnetts and James C. Beil acknowledge the interstate transportation of the aforedescribed automobiles after they were sold to Charles Raymond Jordan, neither Daniel Michael Bonnetts nor James C. Beil knew that the said automobiles would be removed from Illinois by Jordan after he obtained possession of them. In short, Daniel Michael Bonnetts and James C. Beil had no knowledge, actual or implied, that any automobile which they stole and sold to Charles Raymond Jordan would ever leave Illinois.
32
COLEMAN, Circuit Judge, dissenting.
33
With all deference to the views of my Brethren, I cannot concur in the foregoing opinion.
34
The stipulated facts wholly failed to establish the conspiracy charged in the indictment.
35
Under the facts of this case, I find no congressional enactment or clear judicial precedent which would transmogrify a local theft and a local sale of the stolen goods into an interstate offense.
36
Consequently, I would reverse the convictions.
37
* The Stipulated Facts do not Support the Conspiracy Charge
38
The trouble with this case is that the defendants were not prosecuted for a violation of the Dyer Act. They were prosecuted for a conspiracy. The essential elements of the two offenses are different; the requisite proof is not the same.
39
Conspiracies involve action to be taken in the future. One cannot conspire to do something which has already been done. By its very terms the indictment charged that these defendants conspired to commit a specific act. What was that act? It was to transport automobiles in interstate commerce, knowing them to have been stolen.
40
The stipulated facts are that the defendants had neither express nor implied knowledge that the local purchaser would later move the automobiles across state lines. The stipulation does not say that the subsequent interstate transportation by the purchaser occurred by or with the conspiratorial knowledge, intent, purpose, agreement, or participation of the appellants. These appellants stole the automobiles in Illinois and sold them in Illinois, clearly a local crime. Sometime later, maybe six months later, the local purchaser transported the vehicles across state lines. The astounding thing is that the stipulation does not say that the purchaser knew the automobiles were stolen when he bought them; it does not say that he knew the automobiles were stolen when he transported them. Hence, an indispensable element of a Dyer Act violation by the purchaser is totally lacking.
41
These appellants are entitled to the presumption of innocence and, most assuredly, may not be convicted unless the government establishes the essential allegations of its indictment. It inexorably follows that there has been a total lack of proof in this case and these convictions should not be allowed to stand.
42
The majority holds that these fatal deficiencies were cured, post hoc, ergo propter hoc, by proof that the automobiles crossed state lines, ordinarily nothing more than a jurisdictional fact in a completed Dyer Act violation. The trouble with this analysis is that the stipulated facts do not establish a Dyer Act violation by anybody. This being so, the application of what could have been a jurisdictional fact in an appropriate case simply cannot infuse life into a body where life had never existed.
43
This is more cogently so when we realize that what we have here is an effort to use a jurisdictional fact applicable to one type of case (interstate transportation of a stolen vehicle, known to be stolen) to serve as proof of an entirely different but indispensable, element of a conspiracy case (knowledge of a conspiracy, agreement to participate in it, and some act in furtherance of it).
44
As I commented from the Bench at oral argument, the government simply stipulated itself out of Court and, up to and through oral argument, refuses to see it.
45
Without further ado, I might stop here. But there is more which ought to be said.
46
The government had to show that a conspiracy existed, that the defendants knew of the conspiracy, and that knowing of it they agreed to it and participated in it, see, e. g., United States v. Dyar, 5 Cir., 1978, 574 F.2d 1385.
47
As the record shows, on a Rule 20 transfer, these defendants attempted to plead guilty before Judge John F. Grady in the Northern District of Illinois. At the plea hearing, the Judge refused to accept the plea. He stated,
48
Well, I am sure that for a conspiracy to violate this statute, the element of the knowledge of the interstate transportation is required. At least the defendant would have to be on notice of facts from which that transportation would be readily inferable. That is the very least. (Emphasis added).
49
I think Judge Grady was right.
50
He remanded the case to the Middle District of Georgia, where the indictment had been returned.
51
When the case got back to Georgia the government and the defendants entered into the stated stipulation. Then the United States Attorney took the following position:
52
Your Honor, of course the Government is taking the position that the stipulated facts show that both defendants participated in a conspiracy. (Emphasis mine).
53
In all due respect, this is incredible. The stipulation neither mentions nor describes a conspiracy with anybody quite to the contrary, the stipulation specifies that defendants had no knowledge, actual or implied, that the vehicles would ever leave the State of Illinois. If they had no such knowledge how, beyond a reasonable doubt, could they have agreed to, or participated in, the transportation interstate?
II
54
This Conviction is Not Supported by Congressional Enactment
55
or Judicial Precedent
A.
56
The majority says that although the vehicles were stolen and sold in Illinois, a completed state offense, and although the defendants had no joint purpose, agreement, knowledge, or connection as to the subsequent occurrences, they were nevertheless guilty of a conspiracy to violate the Dyer Act where, sometime within the ensuing six months, the vehicles were transported by others in interstate commerce without a showing that the transporters knew the vehicles were stolen.
57
The majority begins its analysis by saying that in Dyer Act prosecutions "(K) nowledge that the property . . . will move in interstate commerce is not an element of the offense", citing three cases.
58
Let us look at the cases cited by the majority. In Overton v. United States, 5 Cir. 1968, 405 F.2d 168, the automobile had already been transported in interstate commerce. Overton was convicted of receiving it, knowing it to have been stolen, 18 U.S.C. § 2312. "Will move" was not in the case.
59
In Bibbins v. United States, 9 Cir. 1968, 400 F.2d 544, the defendant himself had driven the automobile across a state line, although he did not know he had actually crossed it.
60
United States v. Doolittle, 5 Cir. 1975, 507 F.2d 1368, affirmed en banc, 518 F.2d 500, was really concerned with the validity of a wire tap in a prosecution for conspiracy to use interstate wire and telephone facilities to carry on illegal gambling operations. Interstate activity was inherent in the agreement.
61
Finally, the Dyer Act, 18 U.S.C. § 2312, says, "whoever transports". The vehicle must first be stolen, as here, and, with knowledge of that fact, the vehicle must thereafter be transported.
62
I must disagree with this "will move " theory.
63
If the vehicle is stolen, if the defendant knows it, and the vehicle "will move", then, depending on the specific circumstances, the applicable statute would be 18 U.S.C. § 2:
64
(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
65
The record reflects, of course, that this prosecution was in no way grounded on 18 U.S.C. § 2, as indeed it could not have been because the stipulated facts would not have supported it.
B.
66
I think the Ninth Circuit correctly decided the issue now before us in United States v. Berlin, 9 Cir. 1973, 472 F.2d 13, a prosecution involving the Dyer Act but brought under 18 U.S.C. § 2(b). The Court pointed out that the Dyer Act deals with stolen tangible personal property, not the use of the mails in the ordinary course of business, or stolen securities, or forged travelers checks, or the like. I quote:
67
The United States contends for a rule that sale of a car (known by the seller to be stolen), followed by interstate transportation by an innocent purchaser constitutes a violation of the Dyer Act by the seller where the interstate transportation is reasonably foreseeable. (Emphasis added).
68
We agree with appellants that this rule is too broad. Since interstate automobile transportation is now commonplace, this construction would seem to render every sale of a stolen car a federal offense. Section 2(b) does, as appellants contend, have overtones of agency, and, in our judgment, the willful causation to which it refers must be purposeful (emphasis added) rather than be based simply upon reasonable foreseeability.
69
Such is not the case in the ordinary sale of tangible stolen property. In the ascertainment of purpose and intent our focus is not on a course of commercial operations which the very fact of sale dictates will regularly occur. Rather, it is on the interstate transportation itself. (Omitting the immediately preceding language).
70
472 F.2d at 14, 15.
C.
71
The Court says that its views are consistent with United States v. Muncy, 5 Cir. 1976, 526 F.2d 1261. I disagree. I sat on that case and concurred in the opinion, which, as the instruction there attacked clearly reflects, held only that for jurisdictional purposes the government had to prove that the beef moved in interstate commerce, that (to quote the instruction) the government did not have to prove that "prior to or after the alleged receipt of such meat, (the defendants) had knowledge of the fact that the meat had been transported (emphasis mine) in interstate commerce . . . ." 526 F.2d at 1264, n.1.
72
The case does not stand for the proposition that once a defendant completes a local theft he may thereafter, in the absence of the requisite purpose or knowledge, be prosecuted for conspiracy if perchance (unknown to him) others put the stolen goods in interstate commerce.
73
United States v. Kelly, 5 Cir. 1978, 569 F.2d 928, is similarly inapposite. There, the defendant was charged with causing and conspiring to cause a person to travel in interstate commerce in execution of a scheme to defraud; in other words, Kelly had acted with knowledge of future events. That element was completely stipulated out of this case. Of course, the defendants here knew that the buyer would sell the cars, or parts from them, but that is not enough. As the Ninth Circuit observed in United States v. Berlin, supra, the prosecution must be based on a purposeful act. It cannot stand on "reasonable foreseeability".
III
74
United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43
L.Ed.2d 541
75
The teachings of United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541, are, in my opinion, irrelevant to the disposition of this case. I have already pointed out that the stipulation of facts now before us described no federal offense from which a jurisdictional fact could be lifted to serve as a crutch for these convictions.
76
This case is distinguishable from Feola in other respects.
77
First, the existence of the conspiracy at a time prior to the commission of the substantive offense was well established. It was unsuccessfully argued only that lack of knowledge that the assaulted individual was a federal officer provided a defense to the charge brought in the indictment.
78
Second, I can find nothing in Feola which says that a person may be found guilty of a conspiracy although he did not know of its existence, or did not agree to participate in it, or had no joint purpose of furthering it.
79
Third, the jurisdictional fact in Feola was a matter of status, not a matter of action. The person assaulted was a federal officer. What the defendants did or did not do could not have changed that. They did not have to do anything to confer jurisdiction. Like Mount Everest, it was there and had been all the time.
80
The Dyer Act is a different matter. Before jurisdiction attaches there must be action, i. e., someone must transport the vehicle across a state line.
81
In Feola the defendants did not have to know that their intended victim was a federal officer if they intended, in any event, to assault him. In Dyer Act cases by command of the statute, knowledge is an indispensable ingredient. One may transport a stolen automobile across a state line a thousand times, which is enough to confer ordinary interstate jurisdiction, and yet not violate the criminal statute unless he knows that the vehicle was stolen. In Dyer Act cases there must be more than status; there must be knowing action, 18 U.S.C. § 2112. The defendant must, in an illegal manner, knowingly be connected with it; he must have knowingly conspired to have it done, or knowingly caused it to be done, or knowingly aided and abetted it, or knowingly done it himself. So, both under the terms of the statute and under the stipulated facts in this case, it is my view that interstate transportation is something more than jurisdictional in a Dyer Act case. It is an element of the crime itself.
82
Of course, under 18 U.S.C. § 2113, dealing with receipt, concealment, etc., after the fact, interstate transportation is merely jurisdictional if the defendant knew of the stolen character of the vehicle. But § 2113 does not fit the facts in our case.
IV
83
On what should be sound federal judicial policy I must also disagree with this decision. If there is anything the federal courts do not need it is more jurisdiction and more cases. These confessed local car thieves were clearly guilty of a completed local crime. There is no reason why Illinois could not have promptly made them involuntary residents at Joliet. What we have here, in my judgment, is an unprecedented expansion of federal criminal jurisdiction. Henceforth, in the Fifth Circuit, the completed state crime of automobile theft can automatically ripen into a matter of federal criminal prosecution if the vehicles subsequently move, in the hands of others, in interstate commerce, even though the local thief had not joined in any agreement or purpose that such should take place and even though there is no showing that the transporter knew of the stolen character of the vehicles.
Conclusion
84
Although the Dyer Act has been on the books for sixty years, I have searched in vain for any case in the federal jurisprudence which, under similar facts, holds what the Court has held in this case.
85
I must respectfully dissent.
1
18 U.S.C. § 371 provides:
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.
18 U.S.C. § 2312 provides:
Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.
18 U.S.C. § 2313 provides:
Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.
2
The law of conspiracy identifies the agreement to engage in a criminal venture as an event of sufficient threat to social order to permit the imposition of criminal sanctions for the agreement alone, plus an overt act in pursuit of it, regardless of whether the crime agreed upon actually is committed
420 U.S. at 694, 95 S.Ct. at 1268.
3
The defendants attempt to distinguish Muncy by pointing out that there the defendant's conduct occurred after the interstate movement while in this case the defendants' conduct occurred before the interstate movement. We view that as a distinction without a difference
4
As we have already held it was not necessary for the Government to prove that the defendants knew the stolen cars would move in interstate commerce | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/484956/ | 814 F.2d 162
17 Soc.Sec.Rep.Ser. 81, Unempl.Ins.Rep. CCH 17,223James H. HARVEY, Plaintiff-Appellant,v.Margaret M. HECKLER, Secretary of Health and Human Services,Defendant-Appellee.
No. 86-2042.
United States Court of Appeals,Fourth Circuit.
Submitted Nov. 14, 1986.Decided March 25, 1987.
(Sunya Anderson, Charleston, W.Va., on brief), for plaintiff-appellant.
(David A. Faber, U.S. Atty., Marye L. Wright, Asst. U.S. Atty., Charleston, W.Va., on brief), for defendant-appellee.
Before WIDENER and ERVIN, Circuit Judges, and BOYLE, United States District Judge for the Eastern District of North Carolina, sitting by designation.
PER CURIAM:
1
Claimant James Harvey appeals from a district court order denying him disability benefits under the Social Security Act, 42 U.S.C. Sec. 301 et seq. This denial stems from a finding by the Administrative Law Judge ("ALJ") that Harvey's dispatcher job yielded skills transferable to other dispatcher positions. Because the record does not adequately support this finding, we reverse and remand.
I.
2
Claimant Harvey worked first as a coal miner and most recently as a mine dispatcher. As a coal miner, Harvey routinely lifted over 100 pounds and did a great deal of bending. As a dispatcher, his work was more sedentary. He sat for eight hours a day, and lifted only light loads; he talked on the phone and directed rail traffic in the mine.
3
At the administrative hearing, Harvey testified that he finally left the mines in 1983 because of breathing and back problems. He testified that he could sit, but when sitting, he constantly felt uncomfortable. Harvey stated that he ordinarily sat for only 15 to 20 minutes at a time in his role as a dispatcher. At least one of the examining physicians supported Harvey's testimony. Dr. Stowers found that Harvey could not sit longer than 30 minutes without rest periods of 5-10 minutes. Another physician, Dr. Aguila, described Harvey's nonexertional impairments. Among other things, he noted that Harvey should not be exposed to dust, fumes or gases.
4
After leaving the mines, Harvey filed his application for Social Security disability benefits on July 7, 1983. A hearing was held before an ALJ. In her decision, issued April 10, 1984, the ALJ denied disability benefits. She found that Harvey, at the advanced age of 55, with an eighth grade education, had a severe impairment, as defined by 20 C.F.R. Sec. 404.1521 (1986). She ruled that chronic respiratory disease, in combination with vertebrogenic impairment, prevented Harvey from doing work requiring great exertion, but that he retained the capacity for a complete range of light and sedentary work. Most importantly, the ALJ found that Harvey's dispatcher skills are transferable to jobs such as "taxicab dispatcher, police dispatcher, fire dispatcher, or emergency medical services dispatcher.".
5
The Appeals Council affirmed and the United States Magistrate recommended affirmance. The magistrate stated that claimant's dispatching functions were so general that they were readily transferable to other dispatching jobs. The United States District Court for the Southern District of West Virginia, in turn, upheld the magistrate's ruling.
II.
6
The principal issue on appeal is whether substantial evidence supports the ALJ's determination that Harvey's coal mine-dispatching skills are transferable to other dispatching jobs. In making this determination, the ALJ cited Social Security Administration Regulations No. 4. See 20 C.F.R. Sec. 404.1520(b)-(f) (1986). This provision requires the ALJ to consider five sequential factors. The fifth step governs this disposition:
7
If an individual's impairment is so severe as to preclude the performance of past work, other factors including age, education, past work experience and residual functional capacity must be considered to determine if other work can be performed.
8
20 C.F.R. Sec. 404.1520(f) (1986).
9
Appendix 2 to Regulation No. 4 sets out a list of factors relevant to a disability determination. Where, as in this case, the claimant has nonexertional limitations as well as exertional ones, the Appendix is not dispositive as to disability under the fifth step of the Regulations. See Roberts v. Schweiker, 667 F.2d 1143, 1145 (4th Cir.1981). At this stage, the burden is on the Secretary to show that the claimant has skills transferable to alternative employment in the national economy. See Phillips v. Harris, 488 F.Supp. 1161, 1166-67 (W.D.Va.1980). This is generally done through testimony of a vocational expert. See Smith v. Califano, 592 F.2d 1235, 1236 (4th Cir.1979). An exception exists where "the conclusion that [claimant] can engage in a number of light manual and semi-skilled jobs is within the common knowledge and experience of ordinary men." McLamore v. Weinberger, 538 F.2d 572, 575 (4th Cir.1976).
10
The absence of a vocational expert weighs heavily in this case. The Secretary relies upon McLamore. He asserts that the vocational expert's testimony was unnecessary, because it is commonly recognized that the essence of any dispatching job is talking on the phone and directing traffic. Harvey, quite naturally, contends that there is no evidence showing that his skills were transferable to other jobs in the national economy.
11
The balance tips in Harvey's favor. McLamore is clearly distinguishable, for several reasons. The factors which this court stressed in McLamore--claimant's youth, high school education, and relatively mild back condition--are conspicuously absent in the present case. Unlike the ALJ in this case, the judge in McLamore administratively noticed specific jobs in the state Job Guide which claimant could perform. The reference to this manual is probably the most distinguishing feature of McLamore. See Smith v. Califano, 592 F.2d at 1237.
12
The Secretary argues that Harvey's skills would plainly enable him to perform other dispatcher posts. Yet, the "common knowledge" element of McLamore is not apparent from the record. There is no evidence showing the requirements of other dispatcher jobs. The Dictionary of Occupational Titles1 indicates that dispatcher positions do, indeed, vary. For instance, a government service radio dispatcher may be required to hold a federal license. United States Department of Labor, Dictionary of Occupational Titles Sec. 378-362-010, at 263 (4th ed. 1977). A government services taxicab dispatcher must possess map reading skills and a high degree of coordination which a mine dispatcher may lack. Id. Sec. 913.367-010, at 886. Furthermore, it is conceivable that a police dispatcher must be a policeman, and a fire dispatcher, a fireman.
13
Finally, neither the record nor the Dictionary reveals how much sitting each type of dispatcher must do, or what level of education he must have achieved. Certainly, claimant would be ill-suited for jobs requiring more than an hour of continuous sitting, or a high school education.
III.
14
Given the sparse record on the variety of dispatching skills, we remand this case to the Secretary for the submission of additional evidence. Harvey urges us, instead, to award him disability benefits as a matter of law. We reject his argument against a remand.
15
Section 405(g) of the Social Security Act permits a remand when new, material evidence exists, and there is good cause for the failure to previously incorporate this evidence into the record. Harvey notes that Sec. 405(g) was amended in 1980 "partly in an effort to stem the growing tide of unjustified federal court ordered remands." Dorsey v. Heckler, 702 F.2d 597, 604 (5th Cir.1983). Dorsey, however, also suggested that Sec. 405(g) "is not as restrictive as a literal reading might suggest." Id. at 605 (quoting Essig v. Secretary of Health & Human Services, 531 F.Supp. 55, 57 (E.D.N.Y.1981).
16
Essentially, Harvey contends that there is no showing of "good cause" why the Secretary failed to produce a vocational expert during the proceedings. This court, however, has ordered a remand where the Secretary has failed to produce a vocational expert, with instructions that the case be reconsidered in light of additional evidence introduced by the Secretary or the claimant. See, e.g., Wilson v. Heckler, 743 F.2d 218 (4th Cir.1984). Additionally, the Second Circuit recently addressed the "good cause" requirement in a case factually similar to our own. See Carroll v. Secretary of Health and Human Services, 705 F.2d 638 (2d Cir.1983). In Carroll, the ALJ's determination that the claimant had residual functional capacity for sedentary work was not supported by substantial evidence. The Secretary offered no medical evidence or testimony by a vocational expert, and no good cause for omitting this evidence appeared. Yet, the court of appeals remanded the case, since the Secretary might ask to reopen the record to introduce new evidence and might show good cause for failing to introduce this evidence earlier. Id. at 644.
17
This case, then, is reversed and remanded for consideration of additional evidence on the transferability of Harvey's mine dispatching skills.
18
REVERSED AND REMANDED.
1
The ALJ may take official notice of information contained in the Dictionary of Occupational Titles, see 20 C.F.R. Sec. 404.1566(d) (1986) | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/599398/ | 985 F.2d 535
UNITED STATES of America, Plaintiff-Appellee,v.Rex Allen KIRKLAND, Defendant-Appellant.
No. 91-7958.
United States Court of Appeals,Eleventh Circuit.
March 9, 1993.
Floyd C. Enfinger, Jr., Montrose, AL, for defendant-appellant.
J.B. Sessions, III, U.S. Atty., Richard W. Moore, Asst. U.S. Atty., Mobile, AL, for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Alabama.
Before COX and DUBINA, Circuit Judges, and GODBOLD, Senior Circuit Judge.
DUBINA, Circuit Judge:
1
This appeal presents the following question: Is an investigation conducted by a bank's own auditors an "official investigation" within the meaning of United States Sentencing Guideline ("U.S.S.G.") section 3C1.1? Not only is this question one of first impression in this circuit, but research fails to disclose any cases from other circuits that have addressed it.
2
The appellant, Rex Allen Kirkland ("Kirkland"), was charged in a one-count information with embezzlement of bank funds in violation of 18 U.S.C. § 656. He pled guilty to embezzling $267,688.31 while he was employed as a bank officer at First Alabama Bank in Loxley, Alabama. After a sentencing hearing, the district court sentenced Kirkland to thirty months imprisonment and ordered him to pay the full amount of restitution to the victim bank. He is presently incarcerated.
I. BACKGROUND FACTS
3
Kirkland was a lending officer and manager of the Loxley, Alabama, branch of the First Alabama Bank. During a routine review, bank personnel discovered that Kirkland's credit files appeared to contain questionable loans. The loan review personnel reported the questionable transactions to bank officials, who then ordered a full review by the auditing division. The audit revealed that he had made thirty-one unauthorized financial advances from the pre-approved credit line of the Peturis brothers, who were bank customers. When questioned about the Peturis' accounts, Kirkland claimed that George Peturis had authorized all of the transactions as payment for a condominium that Kirkland sold to him.
4
Subsequently, the auditors questioned George Peturis about the transactions and Peturis initially verified that he authorized Kirkland to make the withdrawals. Six weeks later, however, Peturis recanted his statement and told the auditors that the information he had previously given them was false. Armed with Peturis' recantation, the auditors again confronted Kirkland at which time he admitted that the withdrawals were unauthorized.
5
After Kirkland pled guilty, a Presentence Investigation Report ("PSI") was prepared. It stated, "Investigative agents report that Kirkland directed Mr. Peturis to lie to bank officials in order to conceal [Kirkland's] illegal activities. His coercion of Mr. Peturis constitutes obstruction of justice, as defined in U.S.S.G. § 3C1.1." PSI at 3. Kirkland did not dispute the PSI's assertion that he directed Peturis to lie to the auditors; he argued at sentencing, however, and contends on appeal, that the enhancement was not legally justified because the auditors' investigation was not "an official investigation" as contemplated by the obstruction guideline. Kirkland refers to commentary note 3 which applies the adjustment for obstruction of justice to "... the official investigation or prosecution of the instant offense or the sentencing of the offender ...." U.S.S.G. § 3C1.1, comment. (n.3(d) ). He argues that an investigation conducted by an employee of a bank is not "official." Moreover, Kirkland pointed out to the district court that the statements made by himself and Peturis were not made under oath, nor were they made to law enforcement officers.
6
At sentencing, it was undisputed that the investigation was conducted by the bank's own auditors. Nonetheless, the district court found the bank's investigation "was, in fact, an 'official investigation,' " that was obstructed by the conduct of Kirkland, not so much in giving the false answers to the auditors, but in causing someone else to give untruthful statements to those same investigating officers. On the basis of this undisputed evidence, the district court enhanced Kirkland's sentence for obstruction of justice.
II. STANDARD OF REVIEW
7
A district court's findings of fact under section 3C1.1 will not be reversed on appeal unless clearly erroneous. See United States v. Cain, 881 F.2d 980, 982 (11th Cir.1989). Nevertheless, the question of whether a particular guideline applies to a given set of facts is a question of law subject to de novo review. See United States v. Shriver, 967 F.2d 572, 574 (11th Cir.1992).
III. ANALYSIS
8
If a defendant willfully impedes or obstructs the administration of justice during the investigation or prosecution of his offense, the offense level is to be increased by two levels. U.S.S.G. § 3C1.1 (1991). The Sentencing Commission notes that directing or procuring another person to conceal evidence that is material to an official investigation is the type of conduct to which this enhancement applies. U.S.S.G. § 3C1.1, comment. (n.3(d) ).1 In its commentary, the Commission further notes that if such conduct occurred contemporaneously with arrest, it shall not, standing alone, be sufficient to warrant an adjustment for obstruction unless it resulted in a material hindrance to the official investigation or prosecution of the offense. Id. In the present case, because Kirkland's conduct was not contemporaneous with his arrest, the guidelines do not require the government to show that it resulted in a material hindrance to the investigation or prosecution of his offense. In any event, Kirkland did not argue at sentencing, nor does he contend on appeal, that the investigation was not significantly impeded by his procuring George Peturis initially to lie to the bank's auditors.
9
Kirkland argues, instead, that the application of note 3(d) to his acts was incorrect because no "official" investigation had been instituted at the time of the acts in question. As the Assistant United States Attorney recognized at the sentencing hearing, bank employees alone performed the audit that uncovered Kirkland's wrongdoing. No law enforcement officer or governmental entity was involved. The only reason given by the Assistant United States Attorney for deeming the investigation "official" was that bank investigators conducted the investigation. Kirkland contends that the district court's construction of the term "official," in extending it to acts performed by private citizens, is not consistent with the wording of the guideline. Section 3C1.1 is entitled "Obstructing or Impeding the Administration of Justice." Kirkland contends that "official" investigation encompassed within this sentencing guideline refers to investigations conducted by the executive, legislative or judicial departments of the government. It is undisputed that the auditing division of First Alabama Bank is an internal mechanism of a corporation and is wholly unrelated to any governmental entity.
10
Although federal courts have held that acts constituting obstruction of justice are not limited to conduct occurring during the pendency of some judicial proceeding, Cain, 881 F.2d at 982; U.S. v. Galvan-Garcia, 872 F.2d 638, 641 (5th Cir.), cert. denied, 493 U.S. 857, 110 S.Ct. 164, 107 L.Ed.2d 122 (1989); U.S. v. Franco-Torres, 869 F.2d 797, 800 (5th Cir.1989), the cases which have extended the application of this guideline have one factor in common: they all involve some type of law enforcement or other action by government employees acting within the course and in furtherance of their official duties. See Cain, 881 F.2d at 982 (defendant hid checks in cap and tossed cap into parked car while under observation by U.S. Secret Service Officer); United States v. Pilgrim Market Corp., 944 F.2d 14, 20 (1st Cir.1991) (hiding rotting poultry and meat from USDA inspectors warrants enhancement for obstruction). Cf. United States v. Savard, 964 F.2d 1075, 1078 (11th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 359, 121 L.Ed.2d 272 (1992) (defendant's hiding Coast Guard boarding slip in shoe did not significantly impede investigation by Customs officials); Shriver, 967 F.2d at 575 (defendant's lie to IRS inspector did not significantly impede investigation).
11
We agree with Kirkland that the circumstances surrounding his acts did not warrant the obstruction of justice enhancement. The only investigation at issue had been undertaken by bank personnel alone. That investigation was simply not "official" within the contemplation of U.S.S.G. section 3C1.1. Because no official investigation connected to law enforcement or any other governmental entity had been initiated, Kirkland's acts merely furthered a scheme of conduct constituting the crime of embezzlement by a bank officer. Furthermore, we agree with Kirkland's assertion that the district court erred in finding that he caused a third person to give perjured testimony to investigating officers, since the statements given by George Peturis were not made under oath or any equivalent affirmation.
12
For the foregoing reasons, we vacate Kirkland's sentence and remand this case to the district court for resentencing.
13
VACATED AND REMANDED.
1
Commentary note 3(d) provides examples of the type of conduct to which the enhancement applies, including,
"... destroying or concealing or directing or procuring another person to destroy or conceal evidence that is material to an official investigation or judicial proceeding (example: shredding a document or destroying ledgers upon learning that an official investigation has commenced or is about to commence) or attempting to do so; however, if such conduct occurred contemporaneously with the arrest, (e.g., attempting to swallow or throw away a controlled substance) it shall not, standing alone be sufficient to warrant an adjustment for obstruction unless it resulted in a material hindrance to the official investigation or prosecution of the instant offense or the sentencing of the offender;" (emphasis added). | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2266723/ | 4 F.Supp. 319 (1933)
GILLETTE SAFETY RAZOR CO.
v.
TRIANGLE MECHANICAL LABORATORIES CORPORATION et al.
No. 6650.
District Court, E. D. New York.
May 4, 1933.
On Application for Settlement of Final Decree, June 1, 1933.
Settlement of Decree June 28, 1933.
*320 *321 Nims & Verdi, of New York City (Harry D. Nims, Wallace H. Martin, and M. L. Severn, all of New York City, of counsel), for plaintiff.
Louis Soll, of New York City (Morris Kirschstein, of New York City, of counsel), for defendant Triangle Mechanical Laboratories Corporation.
Arthur G. Solomon, of New York City, for defendant Holtz.
INCH, District Judge.
The plaintiff, a Delaware corporation, has sued the defendants alleging infringement of its United States trade-marks and of unfair competition.
The defendants are a New York corporation which, for convenience, will be hereafter referred to as the Triangle Corporation, and two citizens of the state of New York, doing business under the trade-name of "Jacob Holtz."
Answers were duly interposed by these defendants and the issues raised have been duly tried.
No question of jurisdiction has been raised, nor can there be any such question in this case. Title 28, U. S. C. § 41, 28 USCA § 41 (section 24 of the Judicial Code).
Moreover, there is really one cause of action asserted but on different grounds, one of these being the violation of registered trademarks. Hurn, etc., v. Oursler et al., 53 S. Ct. 586, 77 L. Ed. ___ (decided April 17, 1933).
The relief asked for by plaintiff in its complaint is that the defendants be enjoined: From using in their advertising and sale the term "Gillette," "Gillette Type," "Gillette Razor," "Blue Blades for Gillette Razors," "Blue Steel," or any similar term. From representing that defendants' razor blades are "Blue Blades." From manufacturing, selling, and offering for sale safety razor blades of a "blue" color or which are placed in packages colored wholly or partially "blue," or which are "blue" and use the name "Gillette." From selling or offering for sale packages and blades dressed in "blue" such as "Navy Blue Blade," "Sapphire Real Blue Steel Blade," "Goodyear Blue Blade," "Uneeda Genuine `Blue' Steel Blade." From advertising, selling, or offering for sale razor blades not of plaintiff's manufacture in combination with plaintiff's "Gillette" razor frames, without clearly indicating that the blades so sold are not made or sold by plaintiff. And, generally, from passing off, inducing or enabling others to sell or pass off, any safety razor blade or razor frame not the plaintiff's as and for the plaintiff's product.
It will be seen at a glance that while plaintiff seeks in detail the above injunctive relief, in fact that which plaintiff seeks is that the court stop the defendants from violating plaintiff's trade-marks and from unfairly competing with plaintiff in the safety razor frame and "blue" blade business in this country.
A great deal of testimony has been taken. Much of it is not disputed.
Briefly the facts are that the plaintiff at that time a Maine corporation, about thirty years ago, entered the safety razor field. This was in 1901. A year or so later its product was identified by the name "Gillette"; a few years thereafter by the additional "portrait and signature of King C. Gillette." In 1917 the plaintiff was incorporated, under the laws of the state of Delaware. It succeeded to the business.
Plaintiff is possessed of the following trade-marks duly registered in the United States Patent Office: No. 134,317, "Gillette." This was first used in 1903 but was not registered until 1920. No. 56,921, "portrait and signature of King C. Gillette," registered 1906. No. 70,856, "Gillette pierced by arrow, within a diamond," registered 1908. No. 291,052, "combination of features with `blue' color," registered 1932. No. 294,217, "a combination of features including the words `Blue Blades' with a disclaimer of the word `Blue' except in association with the word `Gillette' and with reservation of common-law rights in the word `Blue' and `Blue Color' indicated," registered May 24, 1932. This had been used since October 27, 1931.
There are other trade-marks registered elsewhere, but the above is sufficient to show both the facts of ownership and the nature of the trade-marks of plaintiff claimed to have been here infringed.
There is no proof here that the defendants or any of them used, in manufacture or sale, the trade-marks indicating the "portrait or signature of King C. Gillette" or the trademark *322 "Gillette" in manufacturing safety razors or safety razor blades.
The controversy really arises from the use by the defendants of the words "blue blades" and the use of the "blue color" on its packages containing safety razor blades and the use of the word "Gillette" by the individual defendants in the sale thereof.
While due consideration of plaintiff's trade-marks must be given in view of its claim, the substantial issue arises from alleged unfair competition on the part of defendants.
We may now, briefly, refer to certain other facts.
The razor blades of plaintiff are the natural steel which, for convenience, may be said to be "white." Along in July, 1931, plaintiff commenced an extensive advertising campaign which announced to the United States that plaintiff's razor blades were thereafter to be of a "blue" color and in a "blue" package. This blue color was at first obtained by the application of a blue lacquer to the white steel. Thereafter plaintiff changed this process, somewhat, by first oxidizing the steel blades which in itself produced a blue color and then applied the blue lacquer. By May, 1932, plaintiff's product was so produced extensively. On May 24, 1932, as has already been shown, it obtained the registration of its trade-mark for the "Gillette Blue Blade." It disclaimed the word "blue" except in association with the word "Gillette," but it reserved its rights to be protected from unfair competition, in connection with the words "blue" and "blue color."
Over a million dollars has been spent by plaintiff in the above extensive and unique form of advertising.
It can safely be said that the evidence shows that the general public, due to this advertising, were urged to associate the razor blade of plaintiff with the term "blue blade." At the same time, so far as I can discover from a careful examination of the testimony, and the exhibits, the "blue packages" of plaintiff's razor blades and its razor blade all carried the identifying "portrait," "signature," or name of "Gillette." In other words, many customers, desiring plaintiff's product, thereafter asked for "Blue Blades," while others asked for "Gillette Blue Blades"; but nothing is shown to indicate clearly that plaintiff had so abandoned its said identification of name, etc., that every "blue blade" in the market would naturally be considered that of plaintiff's manufacture.
I find that both the words "blue" and blue color on packages, in connection with safety and other razor blades, were known to some extent previous to the adoption of same by plaintiff. The oxidation of steel, producing a blue color, was a well-known process long before. The idea, however inaccurate, that "blue" steel was better than steel has long existed.
"Secondary meaning is `association' nothing more. It exists only in the minds of those of the public who have seen or known or have heard of a brand of goods by some name or sign and have associated the two in their minds." Nims, Unfair Competition (3d Ed.) p. 105.
The test of "secondary" meaning arises in the associated product and its origin in the mind of the public and no specific length of time is required. Nevertheless such secondary meaning must be proved by a fair preponderance of evidence. Elgin National Watch Co. v. Illinois Watch Case Co., 179 U. S. 665, 21 S. Ct. 270, 45 L. Ed. 365; Herring-Hall-Marvin Safe Co. v. Hall's Safe Co., 208 U. S. 554, 28 S. Ct. 350, 52 L. Ed. 616; Shredded Wheat Co. v. Humphrey (C. C. A.) 250 F. 960; Upjohn Co. v. Wm. S. Merrell Chemical Co. (C. C. A.) 269 F. 209.
The following is applicable to the facts of this case: "A merely descriptive term or the name of a person or place may have become associated with a particular kind of goods or the product of a particular manufacturer in such a way that merely attaching the word to an article of the same kind would amount to a misrepresentation as to the origin of the article. In such case, while the use of the word cannot be prohibited, it may be enjoined unless accompanied by such information and precautions as will unmistakably distinguish the article from the goods of the original manufacturer or vendor and will prevent deception of purchasers." DeLong Hook & Eye Co. v. Hump, etc., Co., 297 Ill. 359, 130 N. E. 765, 768.
Confining ourselves solely to the question of the right to use the term or words "blue blades" or "blue," it seems to me that plaintiff has no exclusive right to such term or word and has failed to prove by a fair preponderance of evidence such a public sanction of plaintiff's appropriation thereof as to justify a finding that the general public has thereby adopted same as the indicia of origin of all blue blades in plaintiff. Upjohn Co. v. Wm. S. Merrell, etc., Co. (C. C. A.) 269 F. 209.
*323 On the facts of this case, therefore, I do not find, in spite of the extensive advertising, that plaintiff has succeeded in securing for itself such a "secondary" meaning of the word "blue" or "blue blade" as is now contended for by plaintiff. Accordingly, plaintiff must rely, it seems to me, for its protection on its common-law rights, the right to have unfair competitors stopped from misleading the public.
Here was an excellent razor blade, produced by a recognized manufacturer, with the widest sort of publicity, requiring the expenditure of a very large sum of money in advertising to the public its "new blue blade" and in a "blue package." It was a success.
Very plainly this was the alluring situation, in the summer of 1931, opened to those manufacturers and sellers of "white" safety razor blades which might wish to unfairly and wrongly appropriate the good will, and the money, of plaintiff, by confusing the mind of the public, into believing that in buying the goods of such other manufacturers they were in fact buying the goods of plaintiff.
Where the proof shows that the necessary and probable tendency of defendants' conduct is to deceive the public, a court of equity will intervene. Coty, Inc., v. Parfums De Grande Luxe (C. C. A.) 298 F. 865.
The law does not require that any particular person be shown to have been duly misled, if the natural and probable result would lead to such confusion. Rice & Hutchins v. Vera Shoe Co. (C. C. A.) 290 F. 124.
In the present case we have ample evidence of actual confusion. Plaintiff produced more than fifty witnesses who so testified and offered to produce many more. In fact, actual confusion and deception is not so easily obtained. Gehl v. Hebe Co. (C. C. A.) 276 F. 271. That plaintiff has been able to produce so many indicates what confusion there really may be.
One may not legally use means with the purpose and to the end of selling his goods as the goods of another and thus attract to himself trade that would have flowed to that person. Pillsbury v. Pillsbury-Washburn-Flour Mills Co. (C. C. A.) 64 F. 841.
Plainly plaintiff has no adequate remedy at law in such a situation as is here indicated. We may therefore turn to what these defendants have done.
It will be recalled that plaintiff's "new blue blade" first came on the market in July, 1931. It was followed by the first "blue" blade advertising in August, 1931. The first "blue blade package" was used in October, 1931. In January, 1932, plaintiff experimented with "oxidizing" the blade, and in April, 1932, combined the "oxidizing" with the "blue" lacquer.
It is fair to say that by this time the market, as well as the general public, was well aware that the plaintiff was manufacturing and selling what was termed a "new" blade or a "new blue blade."
In August, 1932, the defendant Triangle brought into the market a "blue blade" in a "blue package" without the slightest indication who manufactured it or where it came from. The package bore the title "Navy." So much for the corporate defendant.
As to the individual defendants Jacob and Abraham Holtz, they likewise commenced on or about September, 1932, to very plainly unfairly compete with plaintiff. We might as well take up the case against these two individual defendants first. This unfair competition of theirs was accomplished by a "vending" scheme. This scheme or "racket" consisted of furnishing to a person what was termed a "deal" for a certain fixed price to be paid to Holtz. The "deal" consisted of "sets" composed of a combination of articles, consisting of safety razor blades, a razor frame, shaving cream, etc. An important part of this scheme was a so-called coupon which was prepared by the person undoubtedly with the full knowledge of Holtz, and in fact there is evidence that they had, in one instance, outlined the important part of this coupon. This coupon notified the citizens that they were about to obtain a great bargain (see Plaintiff's Exhibits 23 and 28) and that for a comparatively small sum of money such citizen could, by presenting the coupon at the specified place, such as a particular drug store, obtain the "set" combination which if purchased in any other manner would cost them very much more.
A large number of these coupons were thereupon distributed in the mail boxes and at the homes of the citizens in that particular vicinity and naturally caused interest and awakened the natural desire to obtain this bargain.
Up to this point this selling campaign or scheme might be unobjectionable from the plaintiff's standpoint were it not for the following very important item: The citizens must be induced that there is a "bargain," otherwise the whole plan falls flat, as was indicated by an instance testified to where this *324 alleged bargain (omitting the name Gillette) did not attract.
Accordingly these individual defendants led the citizens to believe by the form of this coupon that by it could be obtained ten of the "new type blue blades" of plaintiff's or five of such blades with one of plaintiff's razor frames at a greatly reduced price.
I find this is so for the reason that while that direct statement is not made, the words "New Style Blue Blade" is so coupled with the word "Gillette" that, bearing in mind the extensive advertising of plaintiff of this new style blue blade, no one can read these coupons without reasonably being persuaded that it was plaintiff's product that could be had at this greatly reduced price.
In fact, there is sufficient testimony in the record to indicate that this conclusion was the one arrived at by a large number of citizens.
While this scheme was a subtle one, its fraud is plainly exposed when all the facts are considered. People bought these sets and then found that they had received razor blades manufactured by an unknown concern. Thus did the individual defendants steal the good name of plaintiff and do irreparable damage to it, for no one can trace the widespread effect of such unfair competition, and what in an individual case might be a trifling matter when multiplied throughout this country becomes serious in character from the manufacturer's standpoint.
I am convinced that all the defendants deliberately and intentionally took part and made possible this unfair competition with plaintiff.
The supply of "blue blades" came from the defendant corporation the Triangle, although on occasions a different name was used on the package wholly insufficient, however, to indicate to the customer any source of the razor blades unless it was the plaintiff.
This brings us to the corporate defendant the Triangle.
This corporation is a manufacturer of razor blades. As late as April, 1932, its product was "white." In August, 1932, shortly after plaintiff had come on the market with its "new blue blade," this defendant changed the color of its razor blades from "white" to "blue." This was done not by lacquer but by oxidizing. Nevertheless the change is significant. It likewise commenced to market its products in "blue packages." It should be borne in mind that the plaintiff was also using a blue package. In September, 1932, the Triangle began to sell its blue blades in a blue package to jobbers and retail dealers, among them being the defendants Holtz. Holtz had previously been selling "white" blades in a "red and black" package, but now, as I have already indicated, they changed to the "blue" color package and the "blue blades" of the Triangle. Thus the Triangle knowingly made it possible for Holtz to perfect their fraud upon the customer.
If this combination between the Triangle and Holtz, for a part at least of the Triangle's production, was all that was to be decided, there would be no difficulty in allowing plaintiff all the relief it asks. But it is not all.
Plaintiff seeks to obtain something that has been unsuccessfully sought for by other large and important manufacturers in other fields.
It seeks, because it has extensively advertised its products in the form of a certain "color," to monopolize that color for safety razor blades in the United States. This it cannot do.
The Triangle, as well as other manufacturers, has the right to use "blue" or "red" in their colored razor blades. It has no right, however, to confuse the mind of the public with its razor blades with those of the plaintiff.
To be sure the public is considered to be rather careless in regard to such things, but nevertheless a certain amount of good sense must reasonably be required of a citizen, and just because some concern, by means of large expenditure of money, makes more "blue" razor blades than some smaller yet reputable concern, does not mean that the citizen is thereby justified in believing that thereafter all blue safety blades must be the product of the larger concern, otherwise if one large concern can take "blue" another can take "red," etc., and some concerns may take "white" if that may be termed a color.
A concern, however, must clearly identify its product by something more distinctive and individual than a mere color. The plaintiff has done this. It has used the word "Gillette" and it has used the "portrait and signature of Gillette."
Color itself is free.
The doctrine of unfair competition cannot be successfully invoked to abridge the freedom of trade competition. Kawneer Co. v. McHugh (D. C.) 51 F.(2d) 560-564. Viavi Co. v. Vimedia Co. (C. C. A.) 245 F. 289.
*325 It has been said by the Supreme Court: "The product, including the coloring matter, is free to all who can make it if no extrinsic deceiving element is present." Coca-Cola Co. v. Koke Co., 254 U. S. 143-147, 41 S. Ct. 113, 114, 65 L. Ed. 189; Turner & Seymour Mfg. Co. v. A. & J. Mfg. Co. (C. C. A.) 20 F.(2d) 298.
"The essence of the wrong in unfair competition consists in the sale of the goods of one manufacturer or vendor for those of another; and if defendant so conducts its business as not to palm off its goods as those of complainant, the action fails." Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U. S. 118-140, 25 S. Ct. 609, 614, 49 L. Ed. 972.
Nevertheless while this general proposition is true as to mere color, if color is proven a part of intentional fraud, such fraud will be stopped. It is, however, not the use of a color, but the fraud perpetrated by the intentional appropriation of the color, that is enjoined.
Thus we find any number of instances where such fraud has been stopped, cases in which the adoption of a color or combination of colors has played an important part. Coca-Cola Co. v. Gay-Ola Co. (C. C. A.) 200 F. 720, 722; Coca-Cola Co. v. Koke Co., 254 U. S. 143-147, 41 S. Ct. 113, 65 L. Ed. 189; American Chain Co. v. Carr Chain Works, 141 Misc. 303, 252 N. Y. S. 860; Yellow Taxi cases: Buffalo Yellow Cab Co. v. Baureis, 132 Misc. 654, 230 N. Y. S. 343; Yellow Cab Corp. v. Korpeck, 120 Misc. 499, 198 N. Y. S. 864; Yellow Cab Co. v. Jones, 156 La. 837, 101 So. 216; Taxi & Yellow Taxi Operating Co. v. Martin, 91 N. J. Eq. 233, 108 A. 763.
In considering whether there is such intent to use the color, the fact that the color used is nonfunctional may be some evidence of such intent, as in such case there is no real reason for adopting it. Rushmore v. Badger Brass Mfg. Co. (C. C. A.) 198 F. 379; Wesson v. Galef (D. C.) 286 F. 621.
Thus it is necessary for plaintiff, if an alleged unfair competitor is using a similar color, to prove use of that color as a part of the fraud shown by the unfair competition. When such intentional use is sufficiently shown directly or by fair inference, from proven facts, the court will prevent further unfair competition of this kind although a color is used. Plaintiff having proved such a prima facie case, the burden is then upon the defendant to show steps to avoid the confusion in the mind of the public. Plaintiff will succeed unless the defendant can safeguard this result. Coca-Cola Co. v. Gay-Ola Co. (C. C. A.) 200 F. 720, 722; American Chain Co. v. Carr Chain Works, 141 Misc. 303, 252 N. Y. S. 860.
The mere fact that a competitor, so unfairly competing, finds it cheaper to use a color that is a part of the scheme, is insufficient, Helmet Co. v. Wm. Wrigley, Jr., Co. (C. C. A.) 245 F. 824, or that it was more durable, Taxi & Yellow Taxi Operating Co. v. Martin, 91 N. J. Eq. 233, 108 A. 763.
Plaintiff has shown sufficiently the intent of all of the defendants to unfairly compete by the manufacture, sale, and use of "blue safety razor blades" without plain designation of origin.
It is unnecessary to recapitulate the various acts of defendants, already briefly referred to in this opinion, except to say that when all are taken into consideration it is plain that what these defendants intentionally sought to do was to confuse the mind of the public as to the origin of "blue safety razor blades" in a "blue package."
In other words, they intended to sell or make possible the sale of their goods for those of plaintiff. Such competition will be enjoined. And this is so whether defendant Triangle, partly innocently, resorted to "oxidization" rather than the more audacious plan of blue lacquer.
The burden therefore rests upon the defendants, whether they are the manufacturers or sellers of these "blue blades," to safeguard the plaintiff from the confusion which their conduct, up to the present time, has caused.
What they should have done, if in good faith, was to have made it plain both on the razor blades and on the packages that this was a product of the Triangle and not of plaintiff. In fact, a manufacturer who seeks to fairly compete with others would naturally endeavor to build up its trade by making plain to a citizen that he is buying the product of that manufacturer and that it should not be confused with any other. That is what the plaintiff is doing, but these defendants have not proven any step necessary to show the court that their intentions are similar.
The defendants, in addition to denying any infringement of trade-mark, primary or secondary, deny any proof of unfair competition presumptive or actual and ask permission to continue to manufacture and sell "blue oxidized blades" in "blue packages" and to merely describe the blades as "blue blades."
I find that the proof sufficiently indicates not only an intent to unfairly compete by the adoption of the blue color by the defendants, *326 but that actual unfair competition has resulted by the failure of defendants to properly safeguard the plaintiff against the confusion which has arisen from their fraud.
This being so, plaintiff is entitled to a decree enjoining the defendants from further unfair competition of this sort.
This does not mean, however, that the defendants cannot make or sell "blue safety razor blades," or those of any other color, in "blue packages," or that of any other color, provided such razor blades and packages are distinctly and conspicuously marked, advertised, and sold so as to plainly show to a citizen that such product is that of the defendants and is not in any way the product of plaintiff. Coca-Cola Co. v. Gay-Ola Co. (C. C. A.) 200 F. 720-725. This puts no hardship on an honest manufacturer or seller. Let them stand on their own feet and seek to build up their own good will.
Decree for plaintiff in accordance with the above. Settle decree on notice.
On Application for Settlement of Final Decree.
Settlement of final decree. The findings of fact and conclusions of law submitted by plaintiff have been signed as presented by plaintiff. Costs have been allowed plaintiff to be duly taxed, the amount thereof to be inserted in the final decree when submitted for signature.
The proposed decree submitted by plaintiff has not been signed in the form as submitted, and an exception is granted plaintiff to this refusal so as to preserve to the plaintiff any rights it may claim to have in the event of an appeal by either party.
The final decree herein will be signed in the form proposed by plaintiff with the following changes:
(a) After the word "thereto," unless both the blade and the package containing same is distinctly and conspicuously marked with the name of the manufacturer so as to plainly show the public that both the blade and the package containing same is not the product of the plaintiff.
(b) Unchanged.
(c) The defendants may sell blades and packages colored blue, but are enjoined from placing or causing to be placed in the hands of retail dealers, jobbers, or others, blue safety razor blades so packed as to reasonably suggest or facilitate a substitution as and for Gillette Blue Blades or likely to be, in the hands of such dealers and others, an instrument of fraud on plaintiff or which are colorable imitations of the packages of the plaintiff. Both the packages and blades must bear the full name of the manufacturer in letters readily discernible by the public and as large as the blade and package reasonably may permit, bearing in mind that the purpose of same is to prevent the public from thinking that they are getting plaintiff's product and to prevent same being known, designated, mistaken, substituted, or passed off as and for plaintiff's product.
(d) Unchanged.
(e) Unchanged.
When the decree in the above-amended form is presented it will be signed. The plaintiff is entitled to a practical injunction. It is not the province of a court of equity to aid possible wrongdoers. Oneida, etc., v. Oneida Game Trap. Co., 168 App. Div. 769, 154 N. Y. S. 391; Thum Co. v. Dickinson (C. C. A.) 245 F. 609; Hires Co. v. Consumers' Co. (C. C. A.) 100 F. 809.
While color is free there is no freedom to commit a fraud.
There is no immunity to be gained by the use of a color when same is used as part of a fraud.
While violation of an injunction may be a question of fact in each case and honest competitors should know what is and what is not forbidden, there is no necessity for the court to anticipate a fraud by detailed forbidden acts which may be readily availed of as excuses by persons whose purpose is not to fairly and justly deal with the public and the victim of their unfair competition and who intend to unfairly compete with a competitor, large or small, and thus steal its good name and money.
Settlement of Decree.
Plaintiff is entitled to a practical injunction. Oneida, etc., v. Oneida Game Trap. Co., 168 App. Div. 769, 154 N. Y. S. 391, at page 399; Barton v. Rex-Oil Co. (C. C. A.) 29 F.(2d) 474 (re-hearing). There is no inconsistency between the decree and the decision. For though the proof of secondary meaning may be insufficient (see trade marks), the right, on the facts of this case, to protection from unfair competition is clear. Edward G. Budd, etc., Co. v. C. R. Wilson, etc. Co. (D. C.) 7 F.(2d) 746, at page 749, affirmed (C. C. A.) 21 F.(2d) 803; Thum Co. v. Dickinson (C. C. A.) 245 F. 609, at page 627.
It is ordered, adjudged, and decreed:
*327 That the defendant Triangle Mechanical Laboratories Corporation, its officers, agents, servants, and employees, and the defendants Jacob Holtz and Abraham L. Holtz, and their agents, servants, and employees, and all persons holding by, through, or under each and all of said defendants, be and the same are each and all perpetually enjoined and restrained:
(a) From using, authorizing the use of, or knowingly selling razor blades to others who use, the coupon, a copy of which is attached below,[1] or any coupon colorably similar thereto, or other coupon, advertisement, or other selling device calculated to cause razor blades not of plaintiff's manufacture to be passed off as and for plaintiff's blades.
(b) From using, authorizing others to use, or knowingly selling razor blades to others who use, the word "Blue" and the word "Blade" in juxtaposition; provided, however, that defendants are not hereby precluded from otherwise using the word "blue" to describe their blades as colored blue or oxidized blue in a manner not calculated to cause such blades to be passed off under the distinctive term "Blue Blades."
(c) The defendants may sell blades and packages colored blue, but are enjoined from placing or causing to be placed in the hands of retail dealers, jobbers, or others blue safety razor blades so packed as to reasonably suggest or facilitate a substitution as and for Gillette Blue Blades and likely to be in the hands of such dealers and others an instrument of fraud on the plaintiff or which are colorable imitations on the package of plaintiff. Both the packages and blades must bear the full name of the manufacturer in letters readily discernible by the public and as large as the blade and the package reasonably may permit, bearing in mind that the purpose of the same is to prevent the public from thinking that they are getting plaintiff's product and to prevent them from being known or designated or substituted or passed off as and for plaintiff's product.
(d) From any use of the name Gillette in connection with the sale of double edge safety razor blades.
(e) From passing off, or inducing or enabling others to pass off, any merchandise not the plaintiff's product as and for plaintiff's product, and from any other acts calculated to cause purchasers to believe that defendants' merchandise is the merchandise of the plaintiff, and from otherwise in any manner whatever unfairly competing with the plaintiff.
And it is further ordered, adjudged, and decreed that the plaintiff have judgment for costs against the defendants for the sum of $623.70 as taxed by the clerk of this court, and that the plaintiff have execution therefor. Half to be paid by each defendant.
NOTES
[1] ">1. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266727/ | 165 Cal.App.4th 783 (2008)
ALEXANDRA SKOUMBAS et al., Plaintiffs and Appellants,
v.
CITY OF ORINDA, Defendant and Respondent.
No. A117960.
Court of Appeals of California, First District, Division Three.
July 31, 2008.
*787 Law Offices of Nick T. Reckas and Nick T. Reckas for Plaintiffs and Appellants.
Clapp, Moroney, Bellagamba & Vucinich and James G. Lucier as Amici Curiae on behalf of Plaintiffs and Appellants.
Lepper & Harrington, Gary M. Lepper and Paul V. Samoni for Defendant and Respondent.
OPINION
SIGGINS, J.
Konstantine and Alexandra Skoumbas appeal the dismissal of their suit seeking damages for inverse condemnation, nuisance, and trespass, following a grant of summary judgment in favor of the City of Orinda (the City). The trial court concluded the City could not be held liable for erosion caused by water discharged from a storm drain because there was no evidence the entire drainage system was a public improvement owned by the City or its predecessor in interest. We conclude that the critical inquiry is not whether the entire system was a public improvement, but rather whether the City acted reasonably in its maintenance and control over those portions of the drainage system it does own. Accordingly, we conclude the existence of triable issues of material fact precluded the grant of summary judgment, and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
The Skoumbas property consists of several undeveloped parcels of land on an Orinda hillside in an area known as the Oak Springs subdivision that was created in the 1920's. Their property is to the west and downhill from a subdivision, tract 2742, developed in the 1960's. Tract 2742 includes Candlestick Road, a publicly dedicated street that ends in a cul-de-sac. Surface water from the surrounding area of tract 2742 flows onto Candlestick Road, and is collected in a catch basin that channels the water into an underground metal pipe. The metal pipe runs under tract 2742, and continues downhill into the Oak Springs subdivision, where it discharges surface water near the uphill border of the Skoumbas property. The surface water discharge has allegedly caused substantial erosion and damaged the Skoumbas property. The City admits it owns Candlestick Road, the catch basin, and the first 40 feet of drainpipe, but contends it is not responsible for any flow of water below the first 40 feet of pipe because the City says the rest of the pipe is privately owned.
*788 The drainage system for tract 2742 was originally constructed by the subdivision's developer.[1] As it was originally constructed, the Candlestick Road storm drain was an 18-inch diameter drainage pipe laid in a 10-foot drainage easement on lots 18 and 19 that extended downhill from the end of Candlestick Road and ended on lot 132 of the Oak Springs subdivision.[2] The county did not accept the streets in the Oak Springs subdivision for public use, and no easement was identified on the subdivision map within the boundaries of lot 132. When the subdivision map for tract 2742 was approved in 1960, the county board of supervisors "did not accept on behalf of the public any of the streets, roads, avenues or easements shown thereon as dedicated to public use."
The storm drainage from Candlestick Road was the subject of extended discussion between the developer and the county around that time. A county flood control official advised the developer: "[T]he storm drain at the westerly end of Candlestick Road has been improperly located and does not extend to Patricia Lane .... [¶] It is recommended that the existing storm drain be extended to Patricia Road, that a culvert with a[n] `L' headwall be placed beneath Patricia Road to direct the storm flow into the natural channel to the southwest, and sacked concrete outlet protection be constructed. [¶] This work shall be accomplished under a `change order' submitted by the developer to the Public Works Department accompanied by a drawing showing [relevant details]. [¶] It is urgent that the foregoing described work be completed at the earliest date."[3]
The developer's engineers then sent the flood control district a plan for "revisions to drainage at the end of Candlestick Road." The drawing showed *789 an extension to the existing pipe that included a new 24-inch pipe that crossed under Patricia Lane.[4]
In 1964, work was done to reconstruct and repair slide damage that affected Candlestick Road. As part of that work, Candlestick Road was shortened and repositioned. In its new configuration, the road ended some 40 feet away from the top end of the drain line that was originally installed by the developer of tract 2742. A new catch basin was constructed at the end of the street and 40 feet of pipe was laid to connect the catch basin to the original drain line. The new section of drain was placed in a portion of lot 18 of tract 2742 that was a county-owned easement. In March 1966, Candlestick Road, as relocated and reconstituted, was dedicated and accepted as a public road.[5]
It appears that erosion caused by the discharge from the storm drain off Candlestick Road was the subject of discussion between the county and an area property owner in 1964. An owner of property that adjoined lot 132 exchanged correspondence with the public works department in October 1964 where he said the "culvert and flume [from Candlestick Road] are now carrying the entire run-off of the hill. Over two previous rainy seasons this flume has discharged water to the extent that a gulley approximately twenty feet deep has been cut out of the soil." But it does not appear that the drain was repaired or replaced at that time. In 1965, the same property owner wrote to the public works department to say that while earth movement caused by grading activities on tract 2742 was repaired, "the cavern or ravine caused by [the] drainage pipe still exists." The public works department responded to the property owner in September 1965 that it would not take any further action on the matter. The parties now disagree over whether someone altered the lowest portion of the drain pipe at some later date.[6]
The Skoumbases sued the City and the uphill owners whose property is traversed by the pipe running from Candlestick Road, seeking recovery for damages caused by the water that discharged onto their property.[7] The complaint alleged nuisance and trespass claims against all defendants, and inverse condemnation against the City.
*790 The City moved for summary judgment, asserting it had no responsibility for the discharge of the storm water because the lower portion of the storm drain was privately constructed and privately owned. Thus, the storm drain was not a public improvement. The Skoumbases opposed, arguing the City could be held liable because the water that damaged their property originated in a public improvement, and there were triable issues of fact as to the City's implied acceptance of the entire pipeline.[8] The trial court granted summary judgment for the City because there was no evidence the City expressly or impliedly accepted the lower segments of the drainage pipe as a public improvement.[9] The Skoumbases timely appealed.[10]
DISCUSSION
A. Standard of Review
We review the trial court's ruling on summary judgment de novo. (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 100 [41 Cal.Rptr.3d 229]; Schieding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 69 [81 Cal.Rptr.2d 360].) We view the evidence in a light favorable to plaintiffs as the losing party, construe their evidentiary submission liberally and strictly scrutinize defendant's own showing. (Andrews, supra, at p. 100.) "Summary judgment is a drastic remedy to be used sparingly, and any doubts about the propriety of summary judgment must be resolved in favor of the opposing party." (Mateel Environmental Justice Foundation v. Edmund A. Gray Co. (2003) 115 Cal.App.4th 8, 17 [9 Cal.Rptr.3d 486].)
"`A motion for summary judgment must be granted if all of the papers submitted show "there is no triable issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law. In determining whether the papers show ... there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, ... and all *791 inferences reasonably deducible from the evidence ...." ([Code Civ. Proc.,] § 437c, subd. (c).) A defendant has met its burden of showing a cause of action has no merit if it "has shown that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to that cause of action. Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show ... a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff ... may not rely upon the mere allegations or denials of its pleadings to show ... a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists ...."'" (Andrews v. Foster Wheeler LLC, supra, 138 Cal.App.4th at p. 101.)
(1) Our de novo review of the record leads us to conclude that the summary judgment in favor of the City must be reversed. We conclude the City did not establish that it had a complete defense to liability for damages to private property caused by water collected in a public catch basin off a public street and channeled into a section of public drain pipe. As a matter of law, the City's ownership and control of a portion of the drainage system makes the City potentially liable for damage substantially caused by the City's unreasonable diversion of water through the City-owned portions of the system.
B. Liability for a Public Agency's Diversion of Surface Water
(2) "Water diffused over the surface of land, or contained in depressions therein, and resulting from rain, snow, or which rises to the surface in springs, is known as `surface water.' It is thus distinguishable from water flowing in a fixed channel, so as to constitute a watercourse, or water collected in an identifiable body, such as a river or lake. The extraordinary overflow of rivers and streams is known as `flood water.'" (Keys v. Romley (1966) 64 Cal.2d 396, 400 [50 Cal.Rptr. 273, 412 P.2d 529].) Plaintiffs are suing to recover for damage to their property resulting from the discharge of surface water from tract 2742 that has been diverted into the culvert and storm drain at the end of Candlestick Road. They assert claims for nuisance, trespass and inverse condemnation.
(3) Article I, section 19 of the California Constitution permits private property to be "taken or damaged for a public use ... only when just compensation ... has first been paid to, or into court for, the owner." (4) When incidental damage to private property is caused by governmental activity, but the government has not reimbursed the property owner, a suit in "inverse condemnation" will lie to recover monetary damages for "special injury." (Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 362 [27 Cal.Rptr.2d *792 613, 867 P.2d 724].) This constitutional right to recover for inverse condemnation was originally thought to provide a broader right for individuals to recover against the government than they would have against a private party, as it was unnecessary to prove negligence or commission of a tort by the government. (Ibid.) But in cases of damage caused by flowing water, the prevailing theory was that if a private party would have the right to inflict damage on the plaintiff's property, the government could assert the same immunity. (Ibid.; Archer v. City of Los Angeles (1941) 19 Cal.2d 19, 23 [119 P.2d 1].)
This unique immunity recognized in inverse condemnation became known as the "Archer" exception and "involved the circumstances, peculiar to water law, in which a landowner had a right to inflict damage upon the property of others for the purpose of protecting his or her own property. Such circumstances included the erection of flood control measures (the common enemy doctrine) and the discharge of surface water into a natural watercourse (the natural watercourse rule). Under private water law analysis, these rules immunized the landowner from liability for resulting damage to downstream property." (Arreola v. County of Monterey (2002) 99 Cal.App.4th 722, 738 [122 Cal.Rptr.2d 38].) But in recent cases, the Archer exception has been curtailed and the murky rules pertaining to liability imposed upon government entities for damage caused by flowing water have been refined. (See Belair v. Riverside County Flood Control Dist. (1988) 47 Cal.3d 550 [253 Cal.Rptr. 693, 764 P.2d 1070]; Locklin v. City of Lafayette, supra, 7 Cal.4th 327; Bunch v. Coachella Valley Water Dist. (1997) 15 Cal.4th 432 [63 Cal.Rptr.2d 89, 935 P.2d 796].)
(5) Under modern authorities, the liability of public agencies for diversion of surface waters into a natural watercourse is relatively clear. "[T]he public agency is liable only if its conduct posed an unreasonable risk of harm to the plaintiffs, and that unreasonable conduct is a substantial cause of the damage to plaintiff's property. The rule of strict liability generally followed in inverse condemnation [citation] is not applicable in this context." (Locklin v. City of Lafayette, supra, 7 Cal.4th at p. 367.) In assessing a public agency's conduct under the reasonableness standard prescribed in Locklin, courts may consider (1) whether the damage to their property, if reasonably foreseeable, would entitle the plaintiffs to compensation; (2) whether it is likely that the public agency would refrain from diverting the water in light of a remote possibility of unseen and unforeseeable direct damage to the property; (3) whether the plaintiffs suffered direct physical damage to their property as the proximate result of the diversion as deliberately planned and carried out; (4) whether the cost of the damage can be better absorbed, and with less hardship, by the taxpayers rather than the plaintiff owners of the damaged property; and (5) whether if uncompensated the plaintiffs would contribute more than their fair or proper share to the public undertaking of the project. *793 (Id. at p. 368.) But in all cases, these considerations are limited to situations where the public agency's unreasonable conduct is a substantial cause of the damage to the plaintiffs' property.[11] (Ibid.)
(6) In Bunch v. Coachella Valley Water Dist., supra, 15 Cal.4th 432, our Supreme Court adopted the rule of reasonableness articulated in Locklin to assess claims of inverse condemnation in cases where a public entity has diverted water in a flood control system that fails in a heavy rain and causes damage to property that has historically been subject to flooding. "Bunch reasoned that this reasonableness approach furthers the policies underlying the common enemy cases: it does not discourage beneficial flood control projects by making the government an insurer against flood damage, and yet compensates injured property owners who otherwise would be required to contribute a disproportionate share of the cost of the project." (Pacific Bell v. City of San Diego (2000) 81 Cal.App.4th 596, 613 [96 Cal.Rptr.2d 897].) In Bunch, our Supreme Court concluded that: "The Belair/Locklin reasonableness test applies to cases involving public flood control works that cause physical damage to private property ... courts should use these factors in cases where a public entity's flood control measures, designed to protect against potentially dangerous periodic flooding, cause property damage." (Bunch v. Coachella Valley Water Dist., supra, at p. 454.)
(7) Finally, a landowner's tort liability for the diversion of surface water is decided under a rule of reasonableness similar to that articulated in Locklin. When a landowner diverts surface waters in an unnatural manner and damages a lower property, the upper landowner is liable in tort to the extent he or she failed to take reasonable care in the use of the upper property. (Keys v. Romley, supra, 64 Cal.2d at p. 409.) This rule of liability is referred to as the modified "civil law rule." (Ibid.; see Sheffet v. County of Los Angeles (1970) 3 Cal.App.3d 720, 727-728 [84 Cal.Rptr. 11].) Simply stated, the modified civil law rule provides that: "1. If the upper owner is reasonable and the lower owner unreasonable, the upper owner wins; 2. If the upper owner is unreasonable and the lower owner reasonable, the lower owner wins; and 3. If both the upper and lower owner are reasonable, the lower owner wins also." (Burrows v. State of California (1968) 260 Cal.App.2d 29, 32-33 [66 Cal.Rptr. 868].)
C. Review of the Summary Judgment Granted in this Case
The City does not dispute that it owns three drainage related mechanisms relevant to this case. They are Candlestick Road, the catch basin at the end of *794 Candlestick Road, and the approximately 40-foot length of drain pipe laid in 1964 when Candlestick Road was reconfigured and relocated. Notwithstanding these facts, the City argues that it cannot be held liable to plaintiffs because it does not own the lower stretches of drain pipe, and thus should not be held responsible for "water which passes through public-owned segments... wherever and however it may flow in private segments or on private property thereafter." We disagree. The City's asserted lack of ownership or involvement in development of the lower portion of the drainage system off Candlestick Road is not a complete defense to its possible liability to plaintiffs.
As the City claims, in order for it to be held liable in inverse condemnation, damage to plaintiffs' property must occur as a result of a public improvement, public work, or public use. (Ullery v. County of Contra Costa (1988) 202 Cal.App.3d 562, 568-569 [248 Cal.Rptr. 727].) This is true as far as it goes, but it does not go far enough.
(8) Plaintiffs are suing over damage to their property caused by the outfall of storm water diverted from Candlestick Road and emanating from a public improvement; to wit: Candlestick Road, the catch basin and the initial section of pipe. Under the balancing test that applies to claims of government liability for property damage caused by drainage of surface water to control flooding, the relevant question is whether the City's ownership, operation or control of the improvements to Candlestick Road, the catch basin and the 40-foot pipe were unreasonable or posed an unreasonable risk of harm to plaintiffs, and whether the City's unreasonable conduct was "a substantial cause of the damage to plaintiff's property." (Locklin v. City of Lafayette, supra, 7 Cal.4th at p. 367.)
It is immaterial that the City may not own the entire section of drain emanating from Candlestick Road and ending somewhere on the lower part of lot 132 of the Oak Springs subdivision. The City may be liable in inverse condemnation if the City owned improvements have a "`"substantial" cause-and-effect relationship'" to plaintiffs' damage, provided that no other forces alone produced the injury. (Belair v. Riverside County Flood Control Dist., supra, 47 Cal.3d at p. 559.)
The authorities principally relied upon by the City do not persuade us otherwise. In Ullery v. County of Contra Costa, supra, 202 Cal.App.3d 562, the county was not liable for inverse condemnation because it owned no part of a creek bed in a natural watercourse that traversed private property. The county had expressly rejected the developer's offer of dedication of a drainage easement within the natural watercourse and never improved, maintained, or repaired the creek bed. (Id. at pp. 567-570.) Approval of a *795 subdivision map, standing alone, was insufficient to create liability. (Id. at pp. 570-571.) The Ullery court specifically noted that the county "did not approve or actively construct a drainage system which diverted waters onto appellants' property." (Id. at p. 571.) In this case, the county, as the City's predecessor in interest, accepted Candlestick Road, the drainage culvert, and the first segment of the storm drain as public property. That portion of the drainage system is a public work.
The City also relies on what it views as "the remarkably congruent precedent of DiMartino v. City of Orinda (2000) 80 Cal.App.4th 329 [95 Cal.Rptr.2d 16]." We consider DiMartino unpersuasive in this context. In DiMartino, the plaintiffs sought damages for diminution in the value of their home due to the existence beneath it of a deteriorated metal drainpipe.[12] (80 Cal.App.4th at p. 332.) The trial court found the city liable for inverse condemnation, and awarded damages for the cost of relocating the pipe into an existing drainage easement. (Id. at p. 335.) The appellate court reversed because there was no evidence to support the trial court's findings that the city or county substantially participated in the planning, construction, or maintenance of the drainpipe, exercised dominion or control over the pipeline, or expressly or impliedly accepted dedication of the pipe. (Id. at p. 344.)
Neither the public entities nor the plaintiffs in DiMartino were aware of the location of the pipe until it was discovered "during design stages of a planned remodel." (DiMartino v. City of Orinda, supra, 80 Cal.App.4th at p. 333.) There the court concluded: "The purpose of the pipe appears to have been entirely private: to permit construction of private residences on [the plaintiffs' lot and the adjoining lot], which otherwise would have been unbuildable due to waters flowing in a natural watercourse." (Id. at p. 344.) Here, the City concedes "[i]t is true that the drainage `system' designed for drainage of the subdivision has been used by all residents and the City since its inception," and there is no evidence the property through which the pipeline passed was "otherwise ... unbuildable due to waters flowing in a natural watercourse" (ibid.).[13]DiMartino, is factually distinguishable.
(9) Unlike DiMartino, this case does not involve the failure, replacement and relocation of a secret subterranean drain. It involves potential liability for *796 the diversion of surface water. Where a public improvement is unreasonably a substantial cause of the plaintiff's damage, a public agency may be liable for its role in diverting surface water in order to protect urban areas from flooding. (See Bunch v. Coachella Valley Water Dist., supra, 15 Cal.4th 432; Locklin v. City of Lafayette, supra, 7 Cal.4th 327; Belair v. Riverside County Flood Control Dist., supra, 47 Cal.3d 550; Arreola v. County of Monterey, supra, 99 Cal.App.4th 722.) In such cases, "[t]he reasonableness of the public agency's conduct must be determined on the facts of each individual case, taking into consideration the public benefit and the private damages in each instance." (Belair, supra, at p. 566.)
(10) The City argues for some type of whole ownership rule, asserting that an entire drainage system must be a public improvement in order to find a government agency liable in inverse condemnation for downstream damage caused by diverted surface water. Such a whole ownership requirement is not found in the standard that applies to cases asserting inverse condemnation as a result of diverted surface water, and is belied by the facts in the leading cases in this area. (See, e.g., Locklin v. City of Lafayette, supra, 7 Cal.4th at pp. 371-375 [discussing liability of the city, California Department of Transportation, Bay Area Rapid Transit, the county and flood control district]; id. at p. 378 (conc. opn. of Mosk, J.).) We will not adopt such a rule.[14]
"Belair, Locklin, and Bunch embody policies that recognize that inverse condemnation recovery be equitable, that support the importance of public works projects, and that ensure that the public entity be liable only for the proportionate amount of damage caused by its actions. Our conclusion furthers these policies and also has the further laudable effect of encouraging public entities to engage in flood control efforts while discouraging them from making uncompensated use of private property." (Odello Brothers v. County of Monterey (1998) 63 Cal.App.4th 778, 792 [73 Cal.Rptr.2d 903].)
The tort liability of the City as an upper landowner may be decided under the modified civil rule expressed in Keys v. Romley, supra, 64 Cal.2d 396 that also turns on the relative reasonableness of the parties' conduct. This inquiry too, is highly factual and seems unsuited as the basis for summary judgment in this case.
*797 DISPOSITION
The judgment is reversed.
McGuiness, P. J., and Pollak, J., concurred.
NOTES
[1] The tentative map for the subdivision was conditionally approved in September 1959 after the developer obtained permission for "county approved drain lines ... and a drain line that is to be installed on Tract # 2742, Orinda, to cross through Lot # 132, Unit 4, Oak Springs." The improvement plan was approved by the planning commission in November 1959 as recommended by the public works department.
[2] The street address of lot 18 is 21 Candlestick Road, and the property is owned by Mark and Gail Levie and the Levie Family 2004 Trust. The street address of lot 19 is 16 Candlestick Road and the property is owned by Eric and Laura Jorgensen. Lot 132 in the Oak Springs subdivision is owned by Mark Soloway and the Soloway Family Living Trust. It has a street address of 19 Patricia Road, and is located below the Levie and Jorgensen properties and above the Skoumbas property. The Soloway residence was constructed in the early 1980's.
[3] In its respondent's brief, the City states: "This court may take judicial notice that the `Contra Costa County Flood Control and Water Conservation District' (though it includes the words `Contra Costa County') is a public entity separate and distinct from Contra Costa County itself." The Contra Costa County Flood Control and Water Conservation District is a public agency that is specifically created by statute with the capacity to sue and be sued. (Stats. 1951, ch. 1617, §§ 2, 5, pp. 3639, 3640; West's Ann. Wat.-Appen. (1999 ed.) §§ 63-2, 63-5, pp. 464, 469.) It is not the County of Contra Costa. We need not take judicial notice of its status.
[4] It does not appear that the 24-inch pipe under Patricia Lane was ever constructed.
[5] The City was incorporated in 1985 and succeeded to the public property formerly owned by Contra Costa County.
[6] The City's brief refers to "factual uncertainties" regarding the origin of the lower end of the pipe. The City contends the pipe once terminated at a riprap outfall, and that the lower end of the pipe is of a different type than the upper end. The Skoumbases dispute both assertions, citing supporting evidence.
[7] The uphill property owners included the Jorgensens, the Levies, and the Soloways. The County of Contra Costa was also named as a defendant, but was later dismissed.
[8] The Soloways also filed opposition to the City's summary judgment motion.
[9] The trial court also concluded that "[u]ntil the City's ownership thus is established, the related `reasonableness' of its conduct does not come into play."
[10] An amicus curiae brief in support of the Skoumbases has been filed by the Soloways, who were among the uphill property owners named as defendants in the complaint, but have since reportedly settled with the Skoumbases. The City has filed a response to the Soloways' amicus curiae brief. Amici curiae also contend the county and the City ignored a fundamental principle of drainage planning, namely the provision of a safe outfall, and "cannot simply divert this much hydraulic energy into a catch basin and then ignore how it will obviously be discharged a few hundred feet downhill." Thus, amici curiae argue, "there are triable issues of fact as to whether the City's diversion of surface water onto the Skoumbas and Soloway properties is `reasonable,' under the facts and circumstances in this case, even if an intervening section of the pipeline in question is arguably on private property."
[11] The City's motion specifically declined to address causation and the record contains no evidence relied upon by the City to show it acted reasonably.
[12] The pipe that ran under the DiMartino plaintiffs' home was connected through a manhole on the adjoining lot to a city-owned culvert that crossed under the public road. (DiMartino v. City of Orinda, supra, 80 Cal.App.4th at pp. 332, 343.)
[13] While the City now suggests that the pipe should be treated as a natural watercourse that it was entitled to use for drainage, the City cites no evidence that the pipe was placed in an existing stream bed. (Cf. Locklin v. City of Lafayette, supra, 7 Cal.4th at p. 362 ["a governmental entity may, if it acts unreasonably, be liable in inverse condemnation for damage caused by its discharge of surface water runoff from property which it has improved into a natural watercourse"].)
[14] The City's theory may also be at odds with the definition of "Public work or improvement" contained in the eminent domain provisions added to the California Constitution following the passage of Proposition 99 on June 3, 2008. The Constitution defines a public work or improvement to be, in part, "water-related and waste water-related facilities or infrastructure ... and private uses incidental to, or necessary for, the public work or improvement." (Cal. Const., art. I, § 19, subd. (e)(5).) Because established case law demonstrates the impropriety of the grant of summary judgment, we do not consider the potential effect of this recent addition to the California Constitution in this case. Nor need we address whether the conduct of the City or its predecessor in interest gave rise to implied acceptance of the lower sections of the pipe. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266751/ | 165 Cal.App.4th 1331 (2008)
Estate of THRESIAMMA THOTTAM, Deceased.
ELIZABETH THOTTAM et al., Petitioners and Respondents,
v.
PETER THOTTAM, Objector and Appellant.
No. B196933.
Court of Appeals of California, Second District, Division Four.
August 13, 2008.
As modified September 3, 2008.
*1333 Orren & Orren, Tyna Thall Orren and Lowell H. Orren for Objector and Appellant.
Hicks, Mims, Kaplan & Burns, Stephen L. Kaplan and Stewart S. Mims for Petitioner and Respondent Jameson Thottam.
Resch Polster & Berger and Andrew V. Jablon for Petitioner and Respondent Elizabeth Thottam.
OPINION
EPSTEIN, P. J.
In this case, we consider the admissibility of a document prepared during mediation under the exception to mediation confidentiality set out in Evidence Code section 1123, subdivision (c).[1] We find the exception applies, and reverse the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Following the death of Thresiamma Thottam, disputes arose among her three children, Peter, Jameson, and Elizabeth, regarding the distribution of assets from her estate and from a trust in which the siblings were cotrustees and beneficiaries (the JPL Trust). The siblings agreed to participate in "an all-day discussion" in an attempt to resolve their disagreements.
At the start of the August 22, 2004 mediation, Peter, Jameson, and Elizabeth signed a mediation and facilitation confidentiality agreement, under *1334 which they agreed that "all matters discussed, agreed to, admitted to, or resulting from" the mediation would "(1) be kept confidential and not disclosed to any outside person (excluding spouses), (2) shall not be used in any current or future litigation between us (except as may be necessary to enforce any agreements resulting from the Meeting), and (3) shall be considered privileged and, as a settlement conference, non-admissible under the California Evidence Code in any current or future litigation between us." The agreement was signed by the three siblings and by the mediator.
During the mediation session, a document in chart form (the chart) was prepared. Listed along the left-hand margin of the chart, in abbreviated form, were various pieces of real estate and other assets. Across the top of the chart were three columns, labeled with the first initial of each sibling. The chart was filled in to designate specific allocations of the listed assets. One of the asset entries was for property designated as "Pearblossom." It was allocated 100 percent to Peter, with no entry in the columns for Jameson and Elizabeth. The siblings each signed and dated the top of the chart in the column with his or her initial, and initialed each entry in that column.
Peter prepared a document, dated September 6, 2004, which purported to be a working draft of the "Co-Trustee Estate Distribution Agreement." This document incorporated the chart prepared during mediation and addressed other issues with respect to the property distribution. Neither Elizabeth nor Jameson signed this document.
Peter prepared a second document, dated October 10, labeled "Updated Formalization of Contract to Exchange and Purchase Vacant & Commercial Land Interests." This, too, incorporated the chart prepared during mediation. Elizabeth and Jameson refused to sign this document, and their separate e-mail correspondence to Peter indicated they each took the position that there was no agreement reached on August 22, 2004.
On December 27, 2004, Peter filed an action for breach of contract against Jameson and Elizabeth, individually and as cotrustees (Thottam v. Thottam (Super. Ct. L.A. County, 2006, No. BC326453); the civil action). He sought specific performance of the signed agreement dated August 22, 2004. Attached to his complaint were copies of the chart, the unsigned September 6, 2004 document, and the unsigned October 10, 2004 document. In his first *1335 amended complaint, filed April 20, 2005, Peter added causes of action for breach of oral contract, breach of the implied covenant of good faith and fair dealing, declaratory relief, and promissory estoppel.
Meanwhile, on February 25, 2005, Elizabeth filed a petition in the probate department as personal representative of the Estate of Thresiamma Thottam (L.A. Super. Ct., No. BP090593; the estate action). The petition alleged that decedent mistakenly had transferred certain pieces of real property to each of the children, when her intent was to transfer them into the JPL Trust to be shared equally among the children. Petitioner sought an order directing Peter and Jameson to transfer the specified property to the estate. In the alternative, she asked the court to impose a constructive trust or a resulting trust for the benefit of the estate.
On March 30, 2005, and July 7, 2005, Elizabeth filed petitions in the probate department as beneficiary and cotrustee of the JPL Trust (In re JPL Trust (Super. Ct. L.A. County, 2006, No. BP091185); the trust action). The March petition alleged that Elizabeth and Jameson, as a majority of the adult beneficiaries of the JPL Trust, had voted to remove Peter as cotrustee. It also alleged that from January 2001 to the present, Peter had acted independently of the other trustees and for his own benefit by collecting rents and profits from the trust real property located in Pearblossom, and that he had breached his fiduciary duty as cotrustee by failing to pay taxes on the Pearblossom property. Petitioner sought an order confirming Peter's removal as cotrustee and directing Peter to fully account for rents and profits collected from the trust property and for expenses paid for the benefit of the trust. Petitioner sought sanctions from Peter based on his alleged misconduct and breach of fiduciary duty.
The July petition sought an order for return of the Pearblossom property to the JPL Trust under Probate Code section 850, subdivision (a)(3). It also sought an order directing Peter to render an accounting related to that property, and an assessment of double damages against Peter pursuant to Probate Code section 859.
On June 20, 2005, during her deposition in the civil case, Elizabeth refused to answer Peter's questions regarding the chart created during the August 22, 2004 mediation, and regarding conversations related to the chart which took place during the mediation. Elizabeth moved for a protective order seeking to avoid disclosure of the chart or conversations which took place during the mediation. Peter moved to compel Elizabeth's deposition testimony with regard to the chart.
*1336 The motion to compel was heard by Judge Kenneth Freeman on August 23, 2005. Under section 1123, subdivision (c), a written settlement agreement prepared in mediation is not made inadmissible or protected from disclosure if signed by the parties and "[a]ll parties to the agreement expressly agree in writing ... to its disclosure." Judge Freeman found this exception to the mediation privilege was satisfied by the mediation and facilitation confidentiality agreement. That agreement, signed by the parties, stated that all matters discussed or agreed to in the mediation would be kept confidential and not disclosed, and not used in any litigation among them "(except as may be necessary to enforce any agreements resulting from the Meeting)...."
The court explained: "[W]hether or not the alleged contract in fact constitutes a contract is the basis for plaintiff's cause of action. The court cannot make a finding as to whether the document constitutes a contract. That's a matter for summary adjudication, which is not now before the court. For the purpose of this motion, the court is presented with the issue of whether the defendant is bound to give testimony as to the document. The deponent Elizabeth Thottam, as well as Jameson Thott[am] and Peter Thottam each signed a mediation and facilitation confidentiality agreement consenting to disclosure as may be necessary to enforce any agreements. That document permits disclosure of `all matters discussed, agreed to, admitted to, or resulting from the Mediation/Facilitation Discussion Meeting held with John W. Prager.'" The court granted Peter's motion to compel, and vacated the hearing date for Elizabeth's motion for protective order.
Three days later, Elizabeth filed a notice of related actions in the civil action, pursuant to California Rules of Court, rule 804. She stated that the pending civil action, estate action, and trust action all involved the same parties, issues, and property, and asked that they be assigned to a single judge to avoid unnecessary costs or delay. Peter opposed relating the civil case with the probate court matters, noting that discovery was proceeding in the civil case with trial set for December 14, 2005. After hearing in the probate department, Judge Thomas Stoever vacated the trial date in the civil action, ordered all three actions to proceed in the probate department, and designated the estate action as the lead case.
Trial commenced before Judge James Satt on April 10, 2006. Elizabeth brought an in limine motion to preclude Peter from introducing the chart prepared during mediation as a trial exhibit. The court denied the motion for lack of proper notice.
*1337 On the third day of trial, during his direct testimony about the mediation, Peter sought to introduce the chart. Elizabeth objected, asserting it was protected by mediation confidentiality. After hearing argument and considering supplemental briefing, Judge Satt expressly disagreed with Judge Freeman's earlier ruling that the parties had consented in writing to disclosure of the chart. Judge Satt held that the exception to mediation confidentiality under section 1123, subdivision (c) was not satisfied, and that the chart was thus inadmissible. Peter challenged that ruling by petition for writ of mandate, which was denied.
Trial on the three actions resumed. At the end of trial, the petition in the estate action was withdrawn, and the trust action became the lead case. The court entered judgment against Peter and in favor of Elizabeth and Jameson in the civil action. In the trust action, the court found that Peter had been effectively removed as a cotrustee of the trust; that while acting as a cotrustee, he had breached his fiduciary duties by collecting rents from the Pearblossom property, failing to pay any portion of those rents to his cobeneficiaries, and failing to account for the rents; and that after his removal as a cotrustee, he had wrongfully executed trustee's deeds transferring title to the Pearblossom property and to two other properties to himself as an individual. The court ordered Peter to cease collecting rents on the Pearblossom property and return the rents previously collected; reconvey the Pearblossom property and the other two properties to the trust; and pay twice the value of the rents and properties to the trust as damages under Probate Code section 859. Peter filed timely appeals from the judgments in the civil and trust actions; the appeals were ordered consolidated in this court under case No. B196933.
DISCUSSION
Appellant claims the mediation and facilitation confidentiality agreement signed by the parties during mediation satisfied the exception to mediation confidentiality under section 1123, subdivision (c). Although a trial court's ruling on the admissibility of evidence is generally reviewed for abuse of discretion, the issue here involves the proper construction and application of section 1123, subdivision (c). This is a question of law which we review de novo. (See Zhou v. Unisource Worldwide (2007) 157 Cal.App.4th 1471, 1476 [69 Cal.Rptr.3d 273].)
Mediation confidentiality is set out in section 1119, which provides in pertinent part: "Except as otherwise provided in this chapter: [¶] ... [¶] *1338 (b) No writing ... that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given."
(1) "[T]he mediation confidentiality provisions of the Evidence Code were enacted to encourage mediation by permitting the parties to frankly exchange views, without fear that disclosures might be used against them in later proceedings. (Rojas v. Superior Court (2004) 33 Cal.4th 407, 415-416 [15 Cal.Rptr.3d 643, 93 P.3d 260]; Foxgate Homeowners Assn. v. Bramalea California, Inc. (2001) 26 Cal.4th 1, 14 [108 Cal.Rptr.2d 642, 25 P.3d 1117].)" (Fair v. Bakhtiari (2006) 40 Cal.4th 189, 194 [51 Cal.Rptr.3d 871, 147 P.3d 653].) For that reason, the statutory scheme unqualifiedly bars disclosure of communications made during mediation absent an express statutory exception. (Simmons v. Ghaderi (2008) 44 Cal.4th 570, 582 [187 P.3d 934]; see also Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137, 162 [61 Cal.Rptr.3d 200].)
The exception on which appellant relies is section 1123. Under this section, "[a] written settlement agreement prepared in the course of, or pursuant to, a mediation, is not made inadmissible, or protected from disclosure, by provisions of this chapter if the agreement is signed by the settling parties and any of the following conditions are satisfied: [¶] (a) The agreement provides that it is admissible or subject to disclosure, or words to that effect. [¶] (b) The agreement provides that it is enforceable or binding or words to that effect. [¶] (c) All parties to the agreement expressly agree in writing, or orally in accordance with Section 1118, to its disclosure. [¶] (d) The agreement is used to show fraud, duress, or illegality that is relevant to an issue in dispute."
Appellant's position is that the chart constitutes a written settlement agreement. It is undisputed that the chart contains no explicit language stating that it is admissible or subject to disclosure within the meaning of section 1123, subdivision (a), nor any language providing that it is enforceable or binding within the meaning of section 1123, subdivision (b). Nor was appellant seeking to use the chart to show fraud, duress or illegality. (§ 1123, subd. (d).) Admissibility of the chart thus depends on the existence of an express agreement by the parties to its disclosure under section 1123, subdivision (c).
*1339 Respondents argued, and the trial court found, that the mediation and confidentiality agreement did not satisfy section 1123, subdivision (c) because it was executed before the parties allegedly entered into a settlement agreement. The court's position was that the exception would only be satisfied if the disclosure agreement was executed after the parties had reached a settlement. We disagree.
(2) Subdivision (a) of section 1123 requires that the settlement agreement itself provide that the agreement is admissible or subject to disclosure; section 1123, subdivision (b) requires that the agreement itself provide that it is enforceable or binding. In contrast, there is nothing in section 1123, subdivision (c) requiring that the express agreement in writing permitting disclosure be contained in the settlement agreement. Nor is there a requirement that the agreement regarding disclosure be made at or after the time of the settlement. The court erred in reading a timing requirement into section 1123, subdivision (c).
We turn to the language of the mediation and facilitation confidentiality agreement. As we have discussed, the agreement signed by Peter, Elizabeth and Jameson provided that the three siblings "mutually agree that all matters discussed, agreed to, admitted to, or resulting from the Mediation/Facilitation Discussion Meeting held with Mr. John W. Prager, Jr., Esq. on the above date shall (1) be kept confidential and not disclosed to any outside person (excluding spouses), (2) shall not be used in any current or future litigation between us (except as may be necessary to enforce any agreements resulting from the Meeting), and (3) shall be considered privileged and, as a settlement conference, non-admissible under the California Evidence Code in any current or future litigation between us. These commitments may be waived or modified by the subsequent written consent only of all three of us." (Italics added.)
The parties signed this agreement at the outset of settlement discussions, prior to the alleged settlement. The agreement affirmed the confidentiality of the mediation "except as may be necessary to enforce any agreements resulting from the Meeting...." Appellant's civil action was brought to enforce what he claims is a settlement agreement reached in mediation. This is precisely the use addressed by the exception to the mediation privilege contained in the parties' written agreement. The mediation and facilitation confidentiality agreement satisfies the exception to mediation confidentiality under section 1123, subdivision (c).
*1340 (3) The second question is whether appellant established the preliminary fact that the chart is a "written settlement agreement" within the meaning of section 1123. "A settlement agreement is a contract, and the legal principles which apply to contracts generally apply to settlement contracts." (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810-811 [71 Cal.Rptr.2d 265].) An essential element is mutual consent, which is determined by objective rather than subjective criteria. (Id. at p. 811.) "If there is no evidence establishing a manifestation of assent to the `same thing' by both parties, then there is no mutual consent to contract and no contract formation. (Civ. Code, §§ 1550, 1565 & 1580.)" (Ibid.)
(4) The material terms of a proffered contract must be sufficiently certain to provide a basis for determining what obligation the parties have agreed to. (Weddington Productions, Inc. v. Flick, supra, 60 Cal.App.4th at pp. 811-812.) "There are occasions in which `minor matters' in elaborate contracts are left for future agreement. When this occurs, it does not necessarily mean that the entire contract is unenforceable." (Id. at p. 813.)
Applying these principles, we conclude there was sufficient evidence before the court to establish the preliminary fact that the chart created at the mediation is a settlement agreement. The parties to the agreement are identified, by initial and by signature, as Jameson, Peter, and Elizabeth Thottam.
The items on the chart, while lacking in formality, are sufficiently clear to determine the obligations to which the parties agreed. There are no complete sentences, nor formal descriptions of the assets being addressed, but the assets are named in a shorthand which apparently was understood by the parties. For example, real properties are designated as "Moreno," "Pinion Hills," "Pearblossom," "House," "Large BG," "Small Beverly Glen," and "160 Acre lots." Respondents complain about the lack of formal description of these properties, but make no claim they could not identify the properties by the short descriptions.
The remaining items on the chart were "Cash," "B-School," and "Other Assets." It is unclear from the listing what cash was to be included, but the distribution columns under each initial provide specific amounts. In his first amended complaint in the civil action, Peter explains that "B-School" refers to Jameson's business school tuition; this explanation is not disputed. Least clear is the "Other Assets" listing. The only specific assets mentioned on the chart in that category are plots (presumably burial plots), jewelry, and a car; these were allocated among the parties; 33 percent of whatever remained in that category was to be given to each party.
*1341 (5) While not a model of clarity, this chart provides sufficient information about allocation of assets to indicate the intended obligations of the parties. And each block of the chart indicating distribution to one of the parties was initialed by that party, reflecting an understanding and agreement as to the listing and the allocation. Whether or not the document contained all necessary details for enforcement, it certainly contained adequate manifestation of mutual consent to material terms which were capable of being made certain. Without deciding its enforceability, we conclude that the chart constitutes a written settlement agreement for purposes of section 1123, subdivision (c).[2]
Respondents assert the trial court found against Peter on the foundational fact that the chart constituted a written settlement agreement for purposes of the exception to mediation confidentiality. The court's ruling on admissibility of the chart was based on its conclusion that the mediation and facilitation confidentiality agreement did not comply with section 1123, subdivision (c) because it was signed before the alleged settlement agreement, not at the same time or after. The court did not rule that the chart was not a contract, nor did it base its evidentiary ruling on Peter's credibility. It excluded the chart because it found the mediation confidentiality agreement did not satisfy section 1123, subdivision (c). At the conclusion of trial, the court did make a finding that "Peter Thottam's testimony during the trial and his deposition were in conflict and were not credible. The Court finds that Peter Thottam's testimony during the trial to be dishonest." But this finding was made without the benefit of the alleged settlement agreement, which had the potential to corroborate Peter's testimony. It was not the basis for the ruling excluding the chart during trial.
We turn to the question of prejudice. Error in excluding evidence is a ground for reversing a judgment only if the error resulted in a miscarriage of justice, and that a different result would have been probable if the error had *1342 not occurred. (Zhou v. Unisource Worldwide, supra, 157 Cal.App.4th at p. 1480; see also Cal. Const., art. VI, § 13.) We find the requisite prejudice in this case.
Appellant's civil action alleged breach of written and oral contract, premised on the existence of a settlement agreement resulting from the August 22, 2004 mediation, and promissory estoppel, based on promises made on that date. The chart, signed and initialed by each of the parties, was allegedly the written memorialization of their agreement. Although lacking in details, the chart set out basic terms which, with the addition of parol evidence, were capable of being made certain. But absence of the chart or any evidence about its preparation eviscerated appellant's case. It left him only with his own testimony that there was an agreement, and that of his cousin and former trustee, Jose Varkey, whose testimony was very confusing because he spoke English with difficulty. This was weighed against the testimony of respondents that no agreement was reached. Had the chart been admitted, the court could have found that it corroborated Peter's version of events, and thus may have found his testimony regarding the existence of an agreement to be credible. This could have resulted in a favorable judgment in his civil action. Instead, the court found Peter could not prove the existence of an agreement or promises in the civil action because there was no admissible evidence of an agreement, and thus entered judgment against Peter.
It is also reasonably probable that admission of the chart would have resulted in a more favorable judgment in the trust action. That action arose in large part from appellant's conduct with respect to the Pearblossom property. If appellant were able to prove the existence of a settlement agreement, his transfer of that property to himself would not constitute a breach of fiduciary duty and he also would be entitled to collect and keep the rental income. This evidence also could have rebutted the allegation that Peter acted in bad faith, which resulted in the court's imposition of additional damages under Probate Code section 859. Exclusion of the August 22, 2004 chart and evidence regarding its preparation resulted in prejudice, and requires reversal of the judgment in both the civil and estate actions.
In light of this decision, we need not and do not address appellant's further claim that Judge Satt was not entitled to "reverse" Judge Freeman's ruling with respect to the admissibility of the chart. We also need not address his claim that the court erred in its award of damages under Probate Code section 859.
*1343 DISPOSITION
We reverse the judgment and remand the cause for a new trial in accordance with the views expressed in this opinion. Appellant is to have his costs on appeal.
Willhite, J., and Suzukawa, J., concurred.
NOTES
[1] All statutory references are to the Evidence Code unless otherwise indicated.
[2] Fair v. Bakhtiari, supra, 40 Cal.4th 189 does not require a different result. It addresses the requirement for admissibility under section 1123, subdivision (b) that the agreement provide "that it is enforceable or binding or words to that effect." The mediation document at issue in Fair was a handwritten single-page memorandum, captioned "Settlement Terms" which provided: "Any and all disputes subject to JAMS [(Judicial Arbitration and Mediation Services)] arbitration rules." (40 Cal.4th at pp. 192-193, fn. 2.) The court explained that "the writing must make clear that it reflects an agreement and is not simply a memorandum of terms for inclusion in a future agreement. The writing need not be in finished form to be admissible under section 1123, subdivision (b), but it must be signed by the parties and include a direct statement to the effect that it is enforceable and binding." (Id. at p. 192.) The Supreme Court held that section 1123, subdivision (b) "leaves room for various formulations. However, arbitration clauses, forum selection clauses, choice of law provisions, terms contemplating remedies for breach, and similar commonly employed enforcement provisions typically negotiated in settlement discussions do not qualify an agreement for admission under section 1123(b)." (40 Cal.4th at p. 200, fn. omitted.) Our case involves admissibility under section 1123, subdivision (c), which does not contain the same requirement. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266757/ | 165 Cal.App.4th 1538 (2008)
SOHAIL NASIM, Plaintiff and Respondent,
v.
LOS ROBLES REGIONAL MEDICAL CENTER, Defendant and Appellant.
No. B202144.
Court of Appeals of California, Second District, Division Six.
August 18, 2008.
*1540 Theodora, Oringher, Miller & Richman, Todd Theodora, Arthur R. Chenen and David E. Mead for Defendant and Appellant.
Curtis Green & Furman, Curtis & Green, Thomas B. Curtis and Abbie P. Maliniak for Plaintiff and Respondent.
OPINION
GILBERT, P. J.
A doctor loses his hospital privileges because he did not comply with a hospital rule. Because the rule was applied retroactively, it was impossible for the doctor to comply. We conclude the doctor was denied a vested right.
Defendant Los Robles Regional Medical Center (Hospital) appeals a judgment that granted a writ of mandate and overturned the Hospital's administrative decision. The Hospital's appeal board ruled that plaintiff, Dr. Sohail Nasim, could not continue to exercise privileges in nephrology at the Hospital. We conclude that the trial court properly found that retroactive application of the rule was unreasonable and interfered with Nasim's vested right to maintain his privileges. We affirm.
FACTS
In 2001, after completing his medical training in nephrology at the University of California, Los Angeles (UCLA), Nasim applied for medical staff membership in the Hospital's Department of Internal Medicine. The Hospital approved his application and Nasim joined the provisional medical staff with physician privileges in internal medicine and nephrology.
In June of 2002, the Hospital's credentials committee determined that Nasim continued to meet the Hospital's requirements, but had not obtained board certifications in specialty areas. The Hospital rules did not require staff doctors to obtain board certifications within any specified time periods. The credentials committee suggested that the matter be referred to the bylaws committee for a change in the rules.
In July of 2002, the Hospital's nephrology committee reviewed cases of Nasim and the other nephrologists on staff. It found all of the cases were managed appropriately.
*1541 On March 27, 2003, the Hospital notified Nasim: "[T]he Department of Internal Medicine recently revised its membership requirement rules concerning board certification. The rules now require that: [¶] . . . [¶] If not board certified, certification in Internal Medicine must be achieved within the two year provisional period, or membership will not be renewed. [¶] Applicants for sub-specialty privileges [nephrology] must be Board Certified in Internal Medicine. [¶] Sub-specialty certification must be achieved within two consecutive sub-specialty board exams after completing a sub-specialty training program, or privileges for the sub-specialty will not be renewed. [¶] These requirements will pertain to you. Our search of the American Board of Internal Medicine's records shows that you have not yet been certified in internal medicine. As your provisional membership expires in December of 2003, non-certification will affect your membership." (Underscoring omitted.)
Nasim wished to retain his privileges in nephrology. But because he was not board certified in internal medicine, he could not register to take the nephrology board examination at that time. The earliest available nephrology test for him was in November of 2004. But that was beyond the Hospital's deadline.
In August of 2003, Nasim became board certified in internal medicine. On December 15, 2003, he was appointed to the Hospital's "active" staff for two months subject to a pending peer review.
On March 8, 2004, the Hospital advised him that his privileges to practice there would be terminated in April of 2004. It said: "You are not certified by the Subspecialty Board on Nephrology of the American Board of Internal Medicine . . . . Department of Internal Medicine Rule IV required you to achieve subspecialty in nephrology within two consecutive subspecialty board exams after you completed your nephrology training program. You completed your training program on June 30, 2001."
Nasim requested a hearing. The Hospital claimed his privileges in internal medicine should be terminated because he committed malpractice and was unqualified. The hearing committee found no grounds to terminate those privileges and that he should "be granted membership and privileges in internal medicine . . . ." But it said his privileges in nephrology had to be terminated because of rule IV of the Department of Internal Medicine (Rule IV).
In 2005, Nasim became board certified in nephrology. The certification is valid to 2015.
Nasim appealed the hearing committee's decision to the Hospital's appeal board. He claimed that doctors in the Hospital's nephrology department *1542 wanted to remove him because he had opened a private practice in nephrology. In his administrative appeal brief, he said the new rule was applied to him merely "to eliminate a competitor." The board upheld the revocation of his privileges in nephrology based on Rule IV.
Nasim filed a petition for writ of mandate (Code Civ. Proc., §§ 1085, 1094.5) and requested restoration of his privileges in nephrology. The trial court granted the writ. It found that Nasim acquired a vested property interest in his nephrology privileges and the modified Rule IV "retroactively changed the substantive requirements . . . in a way that impermissibly divested him of a vested property right without due process . . . ." The court said: "[T]he heart of this case . . . is the unfairness of changing the rule midstream, telling a person a new rule and then as a calendar matter it's impossible to complete it." Nasim was "deprived of an important economic relationship with no opportunity prospectively provided to jump through the right hoops." The court issued a peremptory writ of mandate ordering the Hospital to reinstate Nasim's clinical privileges in nephrology. It also ruled: "Nothing in this judgment . . . shall limit or control in any way the discretion legally vested in [the Hospital] with respect to the medical staff membership or clinical privileges of [Nasim]."
Application of New Rule to Nasim
(1) A doctor who has been granted hospital privileges has a vested "`property interest which directly relates to the pursuit of his [or her] livelihood.'" (Anton v. San Antonio Community Hosp. (1977) 19 Cal.3d 802, 823 [140 Cal.Rptr. 442, 567 P.2d 1162].) "[T]he full rights of staff membership vest upon appointment, subject to divestment upon periodic review only after a showing of adequate cause . . . in a proceeding consistent with minimal due process requirements." (Id. at pp. 824-825.) "[A] hospital board, through its act of initially admitting a physician to medical staff membership, has thereby, in the exercise of its discretion, necessarily determined his [or her] fitness for such membership at the time of admission . . . ." (Id. at p. 824.) It may not arbitrarily or unreasonably terminate a doctor's privileges. (Ascherman v. San Francisco Medical Society (1974) 39 Cal.App.3d 623, 646 [114 Cal.Rptr. 681].)
In a mandamus review of a board decision, the trial court exercises its independent judgment on the evidence in the administrative record. (Anton v. San Antonio Community Hospital, supra, 19 Cal.3d at p. 825.) On appeal, we determine whether substantial evidence supports the judgment. If the judgment is correct, we may affirm on any valid ground, even ones not relied on by the trial court. (Mike Davidov Co. v. Issod (2000) 78 Cal.App.4th 597, 610 [92 Cal.Rptr.2d 897].)
*1543 (2) Nasim does not dispute a hospital's authority to make rules. He claims, however, that the trial court could reasonably find that the retroactive application of modified Rule IV to him was unreasonable. We agree. Retroactive rule changes that impair vested rights are disfavored. (Estate of Hilton (1996) 44 Cal.App.4th 890, 906 [52 Cal.Rptr.2d 491]; Lix v. Edwards (1978) 82 Cal.App.3d 573, 580-581 [147 Cal.Rptr. 294]; see also Yap v. Zollar (1997) 294 Ill.App.3d 71, 80 [229 Ill.Dec. 82, 691 N.E.2d 18, 25] [retroactive changes in medical certification requirements were invalid].) Employment rules that impose impossible conditions contravene public policy. (Lab. Code, § 2856; Cerberonics, Inc. v. Unemployment Ins. Appeals Bd. (1984) 152 Cal.App.3d 172, 176 [199 Cal.Rptr. 292].) Hospitals may set qualifications for their staffs. But they "may not adopt rules for . . . revocation of staff membership which permit action on an arbitrary . . . basis" (Miller v. National Medical Hospital (1981) 124 Cal.App.3d 81, 93 [177 Cal.Rptr. 119]), or apply neutral rules in a way that unreasonably interferes with vested privileges. (Redding v. St. Francis Medical Center (1989) 208 Cal.App.3d 98, 103 [255 Cal.Rptr. 806]; Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 550 [116 Cal.Rptr. 245, 526 P.2d 253].)
Here the rule was enacted after Nasim had been granted hospital privileges. On its face, the rule appears neutral. It requires subspecialty certifications to be completed within two consecutive board examinations from the completion of the doctor's training in that specialty.
But the retroactive application of the new rule to Nasim made it impossible for him to comply. He completed his nephrology training in 2001. When the Hospital granted his privileges, there was no requirement that he had to become board certified in nephrology within any time limit. The Hospital told him that as a member of the medical staff he would be reappointed every two years.
But in March 2003, he was notified that, because of the rule change, he had to be board certified within two years of the completion of his 2001 training. By that time, however, it was too late for him to comply with this new requirement. He could not schedule the nephrology examination until 2004. He was not given timely notice, but his privileges were nevertheless terminated because the Hospital retroactively applied the rule. The trial court found that the Hospital applied the rule so as to make compliance "impossible." The March 27 letter ostensibly gave notice about timely compliance with the new standards. But for Nasim, it was a termination notice.
The Hospital contends the trial court lacks authority to undermine hospital rules. But the court did not invalidate this rule. It found its application to Nasim was unreasonable and arbitrary. "[A]n organization's decision to expel *1544 or exclude an individual may be arbitrary either because the reason underlying the rejection is irrational or because the organization has proceeded in an unfair manner." (Pinsker v. Pacific Coast Society of Orthodontists, supra, 12 Cal.3d at p. 550.) The trial court noted that had the Hospital applied the rule prospectively with timely notice and a reasonable opportunity to comply, the result would be different. (Major v. Memorial Hospitals Assn. (1999) 71 Cal.App.4th 1380, 1398 [84 Cal.Rptr.2d 510].)
The Hospital claims there is no showing that Nasim was treated unfairly or arbitrarily by its application of Rule IV. But the rule was not applied uniformly. Staff doctors were exempt from the board certification requirements. The Hospital's reason for this exemption was: "New applicants' qualifications are unknown, while existing staff have a track record and have been subject to monitoring . . . ." (Italics added.)
(3) But Nasim was not a new applicant. He was a doctor in the provisional staff who had been subject to monitoring. The nephrology committee determined his cases had been appropriately managed. Although the stated purpose of the rule involved new applicants, the Hospital applied it "to existing provisional staff members," but not active staff members. Nasim claims the Hospital made this distinction between staff doctors to target him. The Hospital contends it is entitled to substantial deference in making a new rule. That is the case "if it is one of general application intended to address an administrative problem as a whole and not directed at specific individuals." (Major v. Memorial Hospitals Assn., supra, 71 Cal.App.4th at p. 1398, italics added.) Here, the credentials committee, which urged the modification of the rule, discussed only one physician, Nasim. In the mandamus action, the Hospital admitted that "Dr. Nasim was the `impetus' for this new rule."
The trial court could find that the distinction the Hospital made between provisional and active staff might be appropriate if the rule had been applied prospectively. But it became artificial when applied retroactively to Nasim in 2003 and thereafter. Nasim became an active staff member and board certified in internal medicine. However, the Hospital never applied the rule's active staff exemption to him. When he became board certified in nephrology, it continued to object to the reinstatement of his nephrology privileges. Yet, other staff doctors who were exempted from the rule, and not board certified, are allowed to practice that specialty. The Hospital tried to terminate his privileges in internal medicine, but the hearing committee found this attempt to be unwarranted and unreasonable.
The Hospital suggests the judgment impedes its authority to remove doctors whose performance is below reasonable medical standards or who provide inadequate care. But that is not the case. The trial court properly *1545 ruled that the judgment did not limit or control in any way the discretion legally vested in the Hospital in this regard. (Applebaum v. Board of Directors (1980) 104 Cal.App.3d 648, 661 [163 Cal.Rptr. 831].) It found only that the way in which the Hospital applied the rule to Nasim was unreasonable.
We have reviewed the Hospital's remaining contentions and conclude they are without merit.
The judgment is affirmed. Costs on appeal are awarded in favor of respondent.
Coffee, J., and Perren, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266758/ | 4 F.Supp. 947 (1933)
OLSON
v.
MELLON.
UNITED STATES ex rel. KNIGHT
v.
MELLON et al.
Nos. 7560-7566.
District Court, W. D. Pennsylvania.
October 18, 1933.
Chas. A. Russell and Harrison F. McConnell, both of Washington, D. C., Robert A. Henderson, of Altoona, Pa., and M. C. Rhone, of Williamsport, Pa., for plaintiff Olson.
Morris L. Marcus and Reich & Reich, all of Pittsburgh, Pa., and William A. Gray and David Stock, both of Philadelphia, Pa., for plaintiff Knight.
H. L. Stone, William Watson Smith, Leon E. Hickman, and Smith, Buchanan, Scott & Gordon, all of Pittsburgh, Pa., for defendants Mellon and others.
GIBSON, District Judge.
In each of the above-entitled cases a statutory demurrer has been filed by the defendant. The cases are qui tam actions, wherein the plaintiff alleges in each that the defendant has defrauded the United States of income tax due by means of a false and fraudulent return, and seeks a verdict in behalf of the United States and himself for twice the amount of the alleged unpaid tax and the statutory penalty of $2,000 imposed upon one who has presented a false claim against the United States. The demurrer asserts that no law of the United States exists which authorizes the plaintiff to bring the suit, and that the averments of the plaintiff's statement do not constitute a cause of action under the laws of the United States.
As statutory authority for his action the plaintiff Olson has pointed to the Act of March 2, 1863, "as supplemented and amended," and the plaintiff Knight to USCA title 31, §§ 231-235, and title 18, USCA § 80.
Section 80 of title 18 is as follows: "Whoever shall make or cause to be made or present or cause to be presented, for payment or approval, to or by any person or officer in the civil, military, or naval service of the United States, or any department thereof, or any corporation in which the United States of America is a stockholder, any claim upon or against the Government of the United States, or any department or officer thereof, or any corporation in which the United States of America is a stockholder, knowing such claim to be false, fictitious, or fraudulent; or whoever, for the purpose of obtaining or aiding to obtain the payment or approval of such claim, or for the purpose and with the intent of cheating and swindling or defrauding the Government of the United States, or any department *948 thereof, or any corporation in which the United States of America is a stockholder, shall knowingly and willfully falsify or conceal or cover up by any trick, scheme, or device a material fact, or make or cause to be made any false or fraudulent statements or representations, or make or use or cause to be made or used any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or fictitious statement or entry, shall be fined not more than $10,000 or imprisoned not more than ten years, or both. (R. S. § 5438; May 30, 1908, c. 235, 35 Stat. 555; Mar. 4, 1909, c. 321, § 35, 35 Stat. 1095; Oct. 23, 1918, c. 194, 40 Stat. 1015.)"
Sections 231 and 232 follow:
"§ 231. Liability of Persons Making False Claims. Any person not in the military or naval forces of the United States, or in the militia called into or actually employed in the service of the United States, who shall do or commit any of the acts prohibited by any of the provisions of section 80 of Title 18, shall forfeit and pay to the United States the sum of $2,000, and, in addition, double the amount of damages which the United States may have sustained by reason of the doing or committing such act, together with the costs of suit; and such forfeiture and damages shall be sued for in the same suit. (R. S. § 3490.)
"§ 232. Same; Suits. The several district courts of the United States, the supreme court of the District of Columbia, the several district courts of the Territories of the United States, within whose jurisdictional limits the person doing or committing such act shall be found, shall, wheresoever such act may have been done or committed, have full power and jurisdiction to hear, try, and determine such suit. Such suit may be brought and carried on by any person, as well for himself as for the United States; the same shall be at the sole cost and charge of such person, and shall be in the name of the United States, but shall not be withdrawn or discontinued without the consent, in writing, of the judge of the court and the district attorney, first filed in the case, setting forth their reasons for such consent. (R. S. § 3491.)"
The statutes, as quoted supra, on their faces at least, furnish strong support of the right of the plaintiffs to institute the present actions. In the Olson case, however, the defendant asserts that the Act of March 2, 1863 (12 Stat. 696), is now obsolete; and in the other cases the defendants contend that the quotation of sections 231-235, title 31, US CA, was in fact an unofficial and mistaken substitution of the text for sections 3490 et seq., Rev. St., which was narrower in scope and did not authorize qui tam actions to collect income tax unlawfully withheld.
The act establishing the Revised Statutes of the United States was approved June 20, 1874 (18 Stat. 113). By it all acts of Congress passed prior to December 1, 1873, any section of which was embraced in the revision, were repealed, and the section applicable thereto was established in lieu thereof. Sections 5438 and 3490 of the Revised Statutes had each been a part of the Act of March 2, 1863. Section 5438 imposed a penalty upon those presenting, or obtaining the proceeds of, false claims against the United States. Section 3490 is as follows: "Any person not in the military or naval forces of the United States, or in the militia called into or actually employed in the service of the United States, who shall do or commit any of the acts prohibited by any of the provisions of section fifty-four hundred and thirty-eight, Title `Crimes,' shall forfeit and pay to the United States the sum of two thousand dollars, and, in addition, double the amount of damages which the United States may have sustained by reason of the doing or committing such act, together with the costs of suit; and such forfeiture and damages shall be sued for in the same suit."
Section 3491, Rev. St., also part of the act of 1863, authorized qui tam actions to recover the penalties fixed by section 3490.
It will be noted that section 5438, R. S., related only to false claims against the United States, and was not wide enough, in its original form, to include the suppression of material matters in an income tax return. See United States v. Cohn, 270 U. S. 339, 46 S. Ct. 251, 70 L. Ed. 616, Capone v. United States (C. C. A.) 51 F.(2d) 609, 614, 76 A. L. R. 1534.
Section 5438, R. S., became section 35 of the Criminal Code (March 4, 1909), but section 3490 was not repealed when the Criminal Code was adopted, and has not since been re-enacted.
By Act of October 23, 1918, section 35, Criminal Code was amended by the insertion of the following: "* * * Or whoever, for the purpose of obtaining or aiding to obtain the payment or approval of such claim, or for the purpose and with the intent of cheating and swindling or defrauding the Government of the United States, or any department thereof, or any corporation in which the United States of America *949 is a stockholder, shall knowingly and willfully falsify or conceal or cover up by any trick, scheme, or device a material fact, or make or cause to be made any false or fraudulent statements or representations, or make or use or cause to be made or used any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or fictitious statement or entry. * * *" (18 USCA § 80.)
Counsel for the plaintiff Olson has contended that section 5438, Rev. St., prior to the amendment of 1918, was wide enough to cover a false return of income. In this contention, as stated supra, we cannot agree with him. Counsel for the other plaintiffs, as we understand his position, admits that the original section, 5438, Rev. St., is insufficient to cover a false tax return, but asserts that the amendment of 1918 is sufficient; and further asserts that section 3490, Rev. St., now includes not only the subject-matter of the original section 5438, Rev. St., but also the amendment of 1918. Counsel concede, where a statute has been incorporated as a whole by another statute, that any amendment or repeal of the incorporated statute will not, as a general rule, either add to or take away its original effect from the incorporating act, but will leave that statute with just the same scope it had at the time of its enactment. They contend, however, that an exception to the general rule exists when the two acts were originally different sections of an original statute. Sections 3490 and 5438, Rev. St., were substantial reenactments of different sections of the Act of March 2, 1863.
Admitting the exception to the general rule under certain circumstances, we are of opinion that such circumstances do not exist in the present cases. When the Revised Statutes were adopted, all prior laws covering the subject-matter of any of their sections were repealed. The sections in question were widely separated; section 5438 being placed under title 70, "Crimes," and section 3490 under title 36, "Debts Due the United States." In 1909 section 5438 was repealed, being substantially re-enacted in the repealing statute as section 35 of the Criminal Code, as before stated. Section 3490 was not repealed by the Criminal Code statute. It will thus be seen that the two sections, although having their origin in the same act of Congress, had been separated and had become parts of different statutes in their present existence.
United States Code, title 18, § 80 (18 US CA § 80), includes the amendment of section 35 of the Criminal Code, as quoted supra, and section 231 of the United States Code, title 31 (31 USCA § 231) designed as an inclusion of section 3490, Rev. St., appears to incorporate that amendment. It cannot be claimed (and we believe is not claimed by counsel for the plaintiffs) that the United States Code, in itself, authorizes the plaintiffs' actions. The Code act of 1926 (44 Stat. pt. 1, p. 1) repealed or amended no existing law, but was designed only to set forth the United States statutes as they existed on December 7, 1925. The reference in section 231 of the United States Code to "section 80 of Title 18" was one of the slight lapses likely to occur in a codification of numerous laws, and has, in itself, no force. In the United States Code annotated, prepared by the editorial staffs of West Publishing Company and Edward Thompson Company, who also doubtless prepared the Code statute, the following comment is made:
"Editorial Comment. Section 80 of Title 18, Criminal Code and Criminal Procedure, does not cover all of the acts formerly prohibited by R. S. § 5438, to which the original text of this section referred. * * * Criminal Code, § 35 (sections 80 and 82 to 86 of Title 18) as amended, covers some acts not covered by R. S. § 5438. Perhaps this section should be made to follow substantially the language of R. S. § 5438, as follows. * * *"
Counsel for the plaintiffs have contended that sections 3490, 3491, Rev. St., are remedial statutes, and, as such, are entitled to a quite liberal construction, as opposed to the strict construction to be given a penal statute. With this contention we are unable to agree. The statute is plainly penal in its nature, and is not to be enlarged by implication; and, unless it be so enlarged, no statutory authority exists for plaintiffs' suits.
Defendants have urged that the demurrers should be sustained for the further reason that in none of the statements of claim is it set forth that the plaintiff had the permission of the Commissioner of Internal Revenue to bring the action. Such permission is made necessary under certain circumstances by section 3214, Rev. St. (26 USCA § 143), which is as follows: "No suit for the recovery of taxes, or of any fine, penalty, or forfeiture, shall be commenced unless the Commissioner of Internal Revenue authorizes or sanctions the proceedings: *950 Provided, That in case of any suit for penalties or forfeitures brought upon information received from any person, other than a collector or deputy collector, the United States shall not be subject to any costs of suit."
This section was a part of section 9 of the Act of July 13, 1866 (14 Stat. 98, 111), amending section 41 of the Act of June 30, 1864 (13 Stat. 223) as amended by the Act of March 3, 1865 (13 Stat. 469). In a preceding part of the section it was declared to be the duty of collectors of internal revenue to prosecute for the recovery of any sums which may be forfeited by law. It then provided that all suits for fines, penalties, and forfeitures should be brought in the name of the United States, "in any proper form of action, or by any appropriate form of proceeding, qui tam or otherwise. * * *" The section did not specifically mention the Act of March 2, 1863, certain of the provisions of which were incorporated in sections 3490 to 3494 of the Revised Statutes (31 USCA §§ 231 to 235). Were the reference to qui tam actions not present, the section thus far might be taken as controlling collectors; but following the provision incorporated in section 3214, R. S. (26 USCA § 143) is the following: "Provided, That in case of any suit for penalties or forfeitures brought upon information received from any person, other than a collector, deputy collector, assessor, assistant assessor, revenue agent, or inspector of internal revenue, the United States shall not be subject to any costs of suit, nor shall the fees of any attorney or counsel employed by any such officer be allowed in the settlement of his account, unless the employment of such attorney or counsel shall be authorized by the commissioner of internal revenue, either expressly or by general regulations."
Many of the practices in existence at the time of the passage of the Revenue Acts of 1863 to 1870 have been changed by statute or have become obsolete in use. At the time the act of 1866 was passed an informer was entitled to receive a moiety of the amount of a penalty or forfeiture recovered pursuant to his information in fact, the act itself makes such provision. And a collector, deputy collector, or revenue agent, if the knowledge came to him other than in the regular performance of his duty, could at that time be such informer.
We know of no rule in relation to the construction of statutes which takes the instant cases out of the purview of section 3214, Rev. St. As we interpret it, it discloses a plain intent on the part of Congress to keep all cases for the collection of internal revenue taxes, fines, penalties, and forfeitures under the supervision of the Commissioner of Internal Revenue. It was existing law when it and sections 3490-3494 became parts of the Revised Statutes, and cannot be held to be repealed by the amendment of section 35, Criminal Code (5438, Rev. St.), by the act of 1918 (18 USCA § 80), even if it be held and it is still a mooted question that the amendment is broad enough to include false income tax returns. The sections may well exist together.
Being of opinion that the amendment of section 35, Criminal Code, by the act of 1918, is not to be read into the provisions of sections 3490 to 3494, Rev. St., and that consent of the Commissioner of Internal Revenue is necessary to the lawful institution of a suit for the recovery of internal revenue fines and penalties, and therefore that each of the plaintiffs in the present actions is without statutory authority necessary as a basis for his action, the statutory demurrers filed in each case must be sustained. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266666/ | 217 Pa. Superior Ct. 201 (1970)
Commonwealth
v.
Connolly, Appellant.
Superior Court of Pennsylvania.
Submitted June 9, 1970.
September 18, 1970.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.
*202 Alfred P. Filippone and Girone & Filippone, for appellant.
James D. Crawford, Deputy District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
OPINION BY HOFFMAN, J., September 18, 1970:
In the course of his trial for blackmail, appellant took the stand to testify in his own defense. For the purpose of impeaching his credibility, the Commonwealth proved that appellant had once been convicted of robbery by calling a clerk of court, who indicated that appellant had pleaded guilty to an indictment charging him with robbery.
Following this testimony, the following events occurred, as related in the opinion of the court below: "At this juncture in the trial, the Commonwealth called the Honorable Vincent A. Carroll to the witness stand for the purpose of identifying Connolly as the same person who had entered a plea of guilty before him to the indictment about which the court clerk had previously testified. . . . Previously, in chambers, Connolly's attorney had objected to Judge Carroll's testimony as unnecessary because Connolly was willing to stipulate that he was the same person whose plea Judge Carroll *203 accepted. Upon the insistence of the Assistant District Attorney that the jury had a right to see the witness and judge his credibility, the objection was overruled and Judge Carroll was permitted to testify."
After identifying appellant, Judge CARROLL stated: "I tried Connolly and sentenced him and I remember very well, because the case had been a nuisance to me ever since." Appellant's counsel then moved for the withdrawal of a juror. When Judge CARROLL started to speak again, counsel interrupted: "Just a moment Judge Carroll." The Judge responded: "You just a moment." Counsel replied: "Please, you are a witness, please, please."
After being asked to verify his signature, Judge CARROLL added: "I remember the case very well." Upon cross-examination, when asked if he remembered the case, he replied: "I certainly do. I recall the trial. I recall the post trial atmosphere." When this was objected to, he stated: "I recall the trial, then, period."
The jury convicted appellant of blackmail. From judgment of sentence, he now brings this appeal.
The law is clear that "[w]here a defendant in a criminal case takes the stand in his own defense he occupies the same status as any other witness and his credibility is in issue. The Commonwealth may therefore, by way of rebuttal evidence, introduce testimony as to his prior record of conviction of felonies or of misdemeanors in the nature of crimen falsi for the purpose of affecting his credibility." Commonwealth v. Scoleri, 432 Pa. 571, 579-580, 248 A. 2d 295, 299 (1968). "Although severely criticized, the rule in Pennsylvania still permits the prior conviction of robbery to be introduced with the strict limitation that the purpose of admission is to attack credibility." Commonwealth v. Holloway, 212 Pa. Superior Ct. 250, 253, 242 A. 2d 918, 920 (1968).
*204 Appellant urges, however, that Judge CARROLL'S statements went far beyond an attack on credibility. He argues that the statements convey the impression that appellant was a wrongdoer for a period of time, and by innuendo injected collateral accusations of unspecified criminal acts.
"Previous convictions are normally shown by records of the same." Commonwealth v. Riddick, 212 Pa. Superior Ct. 390, 393, 243 A. 2d 174, 175 (1968). This method prevents immaterial and prejudicial matter from being brought to the jury's attention. Testimony beyond mere presentation of the record might, in some cases, be required if it were necessary to ascertain that the person named in the robbery indictment and the present defendant were the same. Any necessity for such evidence in this case was obviated by appellant's stipulation that the clerk of court's testimony related to him.[*] Limiting evidence of prior convictions to the record prevents possible prejudicial emphasis of the past crime from the mere presence of an unneeded witness. Also, such a limitation obviates the possibility that a witness will volunteer prejudicial information.
Arguably, if an extraneous witness had appeared and simply identified appellant, reversible error might not have been committed. However, here the witness stated that appellant's case had been a nuisance to him, and that he recalled the post-trial atmosphere. Moreover, the witness had a minor altercation with defense counsel. This may not have suggested continuing criminal offenses, but at least heightened the impact of the *205 previous convictions on the jury and could easily have raised suspicions of general bad character. As has been long recognized, "it is not permissible to show a general bad character because of the abuse that could be made of it by the prosecution. . . ." Commonwealth v. Quaranta, 295 Pa. 264, 272, 145 A. 89, 92 (1928). The jury would likely wonder why the witness specifically remembered this case out of the great number he had been associated with in the intervening twelve years. Thus, an issue collateral to the conviction for robbery was raised. "A defendant on trial for crime, however guilty, may insist that the Commonwealth establish his guilt, by competent evidence in strict compliance with the law, unaffected by implication or innuendo flowing from collateral matters." Commonwealth v. Steinberg, 189 Pa. Superior Ct. 381, 385-386, 150 A. 2d 131, 133 (1959).
Of course, the extraneous testimony complained of was not that of any witness, but that of an eminent judge. It was established before the jury that he was President and Administrative Judge, a jurist of long experience. If, as argued above, appellant was prejudiced by the testimony of any superfluous witness who volunteered objectionable comments, the prejudice was significantly multiplied by the speaker being a jurist of such magnitude. The present case was a close one, where the evidence was not overwhelming and a past conviction could easily have swayed the jury's decision. In fact, the judge below indicated at the sentencing hearings that "the only reason why Connolly was convicted, in my simple judgment, was because he had a record, so that this conviction he got because he had a record." The evidence complained of was of significant impact because there was a witness unneeded for identification, who injected collateral issues, which were more likely to cause prejudice because the witness was *206 such an influential person. In such a close case, where all the above factors coalesced, appellant was unduly prejudiced and should be granted a new trial.
Accordingly, judgment of sentence is vacated and a new trial granted.
WRIGHT, P.J., and WATKINS, J., would affirm on the opinion of Judge BARBIERI.
NOTES
[*] A series of Wisconsin cases dealing with admission of previous convictions pursuant to a recidivist statute indicates that if appellant admits the prior crime, no further evidence will be allowed. Wells v. State, 40 Wis. 2d 724, 162 N.W. 2d 634 (1968); State v. Meyer, 258 Wis. 326, 46 N.W. 2d 341 (1951); Howard v. State, 139 Wis. 529, 121 N.W. 133 (1909). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266691/ | 461 F.Supp. 578 (1978)
Joanne SWIFT, Individually and on behalf of her minor daughter, Michelle Swift, and on behalf of all other persons similarly situated, Plaintiffs,
Lylia Roe, Plaintiff-Intervenor,
v.
Philip L. TOIA, Individually and as Commissioner of the New York State Department of Social Services, Charles W. Bates, Individually and as Commissioner of the Westchester County Department of Social Services, John Battistoni, Individually and as Acting Commissioner of the Dutchess County Department of Social Services, and Gabriel T. Russo, Individually and as Commissioner of the Monroe County Department of Social Services, Defendants.
No. 77 Civ. 2425 (HFW).
United States District Court, S. D. New York.
November 30, 1978.
Westchester Legal Services, Inc., New Rochelle, N. Y. by Steven A. Hitov, Eileen R. Kaufman, New Rochelle, N. Y., Martin A. Schwartz, White Plains, N. Y., for plaintiffs.
Louis J. Lefkowitz, Atty. Gen. of the State of New York, New York City, for defendants Toia and Blum; Marion R. Buchbinder, Deputy Asst. Atty. Gen., New York City, of counsel.
Sam Dilalla, Chief Social Services Counsel, Monroe County Social Services Dept., Rochester, N. Y., for defendant Russo; James A. Robinson, Rochester, N. Y., of counsel.
*579 OPINION
WERKER, District Judge.
Plaintiffs move for partial summary judgment in this class action[1] alleging violations of their constitutional rights through defendants' policy of prorating public assistance grants when an individual who has no legal obligation to support a family receiving Aid to Families With Dependent Children ("AFDC"), and who receives non-welfare income sufficient to meet his or her own needs, resides with an AFDC family composed of a parent or care-taker relative and at least one needy child. The basis of the motion is that this practice or policy of proration violates the Social Security Act ("SSA") and regulations promulgated thereunder.
FACTS
Plaintiff Swift resides in Larchmont, New York with her minor children Michelle, age four, and William Rooney, age eleven. Mrs. Swift and Michelle are AFDC public assistance recipients; William receives $150 per month from his father, plaintiff's former husband, under a support order and is thus ineligible for public assistance.
From May, 1975 until November, 1975, Mrs. Swift received an AFDC grant of $398 monthly for a household of three. This included $198 for plaintiff's actual rent[2] plus a $200 basic needs allowance for three people. After plaintiff informed the Westchester County Department of Social Services that she was in receipt of William's monthly support payments her grant was recomputed as $289.34. This figure represented a $234 rent allowance for her then actual rent for a household of three, plus a $200 basic needs allowance for a three person household, for a total of $434. $144.66 of William's $150 monthly support payment was then deducted, leaving Mrs. Swift with the $289.34 figure. The $144.66 deduction represented the actual amount of William's per capita monthly needs;[3] thus the final $289.34 grant represented two-thirds of the basic shelter and needs allowance for a three person household. Plaintiff contends that William should not be included in her household and that the proper amount of her AFDC grant should be $362, consisting of a $150 basic needs allowance for two people plus a $212 maximum rent allowance for two[4] rather than two-thirds of the grant for a three person household.[5]
Plaintiff Roe resides in Rochester, New York with her minor daughters Carol, age 8, Cheryl, age 8 and Ann Marie Gauck, age 1. Plaintiff, Carol, and Cheryl are AFDC recipients; Ann Marie is supported by her father and does not receive public assistance. Prior to June 1, 1977 Ms. Roe and all three daughters were in receipt of a monthly *580 AFDC public assistance grant of $450 from the Monroe County Department of Social Services. This sum represented a $192 rent allowance for four persons plus a $258 basic needs allowance for four persons. When in May of 1977 Thomas Gauck agreed to support his daughter Ann Marie, Ms. Roe notified the Monroe County Department of Social Services and requested that Ann Marie be removed from the grant. Ms. Roe was then advised that the family's public assistance grant would be reduced from $450 per month to $337.50 per month. The new figure was computed as three-quarters of a grant for four persons, i. e., three quarters of $450 = $337.50. Thus the Department of Social Services subtracted one fourth, $112.50, of the family's previous grant for four, and assigned that figure as Ann Marie's support that was provided by her father. This was done despite the fact that Thomas Gauck does not provide a fixed or regular amount of support to Ann Marie, but instead provides for her by purchasing clothing and other items that the child needs. Roe affid. at 4. Plaintiff argues that Ann Marie should not be included in her household and that the proper amount of her AFDC grant should be $381, consisting of a basic needs allowance of $200 for three persons plus a $181 rent allowance for three instead of three-quarters of the grant for a four person household.
Plaintiffs Swift and Roe argue for themselves and the remaining class members that defendants' policy of prorating family grants without proof of any actual income contribution by the independently supported child to the AFDC unit violates the SSA and federal implementing regulations because it incorporates a blanket assumption that a non-legally responsible individual is contributing to the AFDC household, or that his or her presence creates a reduced need due to economies of scale without an inquiry into the facts of the particular case.
DISCUSSION
"Summary judgment is a harsh remedy to be granted only where there are no material issues of fact to be tried." FLLI Moretti Cereali v. Continental Grain Co., 563 F.2d 563, 565 (2d Cir. 1977). The function of the court is not to try issues of fact but to determine whether those issues exist to be tried. Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975). In so doing the court must resolve all ambiguities in favor of the non-moving party. Id. at 1320.
In the present case the material facts are not disputed; the court is asked to resolve, as a matter of law, the propriety of defendants' actions. Defendants do not deny that plaintiffs' grants were prorated as described above but contend that proration of a family grant on account of the presence of a self-maintaining child is proper under an economies of scale theory. They rely upon Bureau of Labor statistics[6] that reflect variations in per capita living costs according to changes of household size and contend that no attribution of income from the non-legally responsible individual to the AFDC household is involved. Rather, they state that "[a]ll that is assumed by the Department is that the economies of scale which are embodied in the standard of need will continue to operate regardless of the source of the child's sustenance." Cushing affid. at 7.
An argument similar to that of the present defendants was posed in Houston Welfare Rights Organization, Inc. v. Vowell, 555 F.2d 1219 (5th Cir. 1977), cert. granted, 434 U.S. 1061, 98 S.Ct. 1232, 55 L.Ed.2d 761 (1978). There plaintiffs challenged the state of Texas' Department of Public Welfare's policy of prorating shelter and utility expenses when a non-AFDC recipient shared a recipient's residence. Plaintiffs argued that the proration violated federal regulations and in particular 45 C.F.R. § 233.90(a) which deals with the administration of AFDC programs. Section 233.90(a) provides that when the amount of the assistance payment is calculated, only actually available net income, received on a regular basis, is to be considered; and that *581 income of the parent only will be deemed available for children in the household absent proof of actual contributions.
The DPW, in answer to plaintiffs' claim, contended that its proration policy did not presume income to the AFDC recipient in contravention of section 233.90(a) but rather only a reduced need due to the nonrecipient's presumed contribution of funds to cover his own expenses, coupled with economies of scale achieved through group living. 555 F.2d at 1222-23. The court rejected this position and stated that the economies of scale argument implicitly presumed that the non-AFDC recipient's income was available to offset utility and shelter expenses. Id. at 1224. Thus, the court concluded, the "proration policy, in presuming that a recipient's need decreases when a nonrecipient resides in the household, violates federal regulations controlling state administration of AFDC programs because his need of assistance does not decrease unless the non-recipient is paying his own way." Id.
45 C.F.R. § 233.90(a), relied upon in Houston Welfare Rights Organization, Inc., supra, and 45 C.F.R. § 233.20 were amended in 1977 after the decision in Van Lare v. Hurley, 421 U.S. 338, 95 S.Ct. 1741, 44 L.Ed.2d 208 (1975). In Van Lare the Supreme Court invalidated a New York State regulation requiring shelter allowances of AFDC families to be reduced pro-rata when a non-legally responsible individual resided with the AFDC family. The Court determined that the proration regulations were invalid "insofar as they are based on the assumption that the nonpaying lodger is contributing to the welfare household, without inquiry into whether he in fact does so." 421 U.S. at 346, 95 S.Ct. at 1747 (emphasis supplied). To conform to the Court's holding in Van Lare the AFDC implementing regulations now provide in relevant part:
§ 233.20 Need and amount of assistance.
(a) Requirements for State Plans. A State Plan for OAA, AFDC, AB, APTD or AABD must, as specified below:
* * * * * *
(2) Standards of assistance.
(iv) Include the method used in determining need and the amount of the assistance payment.
* * * * * *
(viii) Provided that the money amount of any need item included in the standard will not be prorated or otherwise reduced solely because of the presence in the household of a non-legally responsible individual; and the agency will not assume any contribution from such individual for the support of the assistance unit.
45 C.F.R. § 233.20 (1977) (emphasis supplied).
§ 233.90 Factors specific to AFDC.
(a) State plan requirement. A State plan under title IV-A of the Social Security Act must provide that the determination whether a child has been deprived of parental support or care by reason of the death, continued absence from the home, or physical or mental incapacity of a parent, or (if the State plan includes such cases) the unemployment of his father, will be made only in relation to the child's natural or adoptive parent, or in relation to the child's stepparent who is ceremonially married to the child's natural, adoptive parent and is legally obligated to support the child under State law of general applicability which requires stepparents to support stepchildren to the same extent that natural or adoptive parents are required to support their children. Under this requirement, the inclusion in the family, or the presence in the home, of a "substitute parent" or "man-in-the-house" or any individual other than one described in this paragraph is not an acceptable basis for a finding of ineligibility or for assuming the availability of income of the State; nor may the State agency prorate or otherwise reduce the money amount for any need item included in the standard on the basis of assumed contributions from nonlegally responsible individuals living in the household. In establishing financial eligibility and the amount of the assistance payment, only such net income as is actually available for current use on a regular basis will be *582 considered, and the income only of the parent described in the first sentence of this paragraph will be considered available for children in the household in the absence of proof of actual contributions.
45 C.F.R. § 233.90 (1977) (emphasis supplied). As I indicated in an earlier decision in this action, Swift v. Toia, 450 F.Supp. 983, 989 (S.D.N.Y.1978), the comments of the Department of Health, Education and Welfare ("HEW") on the above regulations make perfectly clear that the regulations require a state, before reducing AFDC allowances pro-rata "to determine whether actual contributions have been made" to the AFDC recipients by the non-legally responsible individual residing in the AFDC home. 42 Fed. Reg. 6583.
Plaintiff Swift has submitted a sworn affidavit stating that at the New York State Department of Social Services Fair Hearing to review her prorated grant, no evidence was adduced that her self-sustaining son William was furnishing support or contributions to her, or that her needs had diminished due to his presence in the household. Swift affid. at 3. Indeed, the hearing transcript reveals that the Westchester County Department of Social Services justified the grant proration on the basis that Van Lare v. Hurley's prohibition against assuming that the non-legally responsible person's income is used to meet the needs of the AFDC household was inapplicable to a family group situation where the non-welfare child is in fact self-supported. This position appears to conflict, however, with HEW's comments concerning §§ 233.20 and 233.90. When four state agencies submitted that Van Lare and the regulations applied only to the "man-in-the-house" situations rather than to all shared households, HEW flatly rejected such a position and noted that it perceived "no basis for making a distinction between non-legally liable individuals depending on where the [AFDC] child's home is." 42 Fed. Reg. 6583.
Plaintiff Roe has also submitted a sworn affidavit concerning her fair hearing on her family's grant proration. It reveals that she testified, as noted above, that Ann Marie's father provides for the child's needs by purchasing her clothing and other necessary items; he does not provide a fixed monetary sum or a regular amount of support for her. At the hearing no evidence was introduced that Ann Marie was contributing to the AFDC household or that the needs of Ms. Roe and her other two daughters had diminished due to Ann Marie's presence. Roe affid. at 4. In the decision after fair hearing the grant proration was upheld without any findings of actual contribution to the AFDC household.
It is clear from the above that in neither instance did defendants make the requisite inquiry of whether the independently supported child's resources were actually contributed to the household. Without such a threshold determination, it is difficult, if not impossible, to understand how economies of scale come into play. If Mrs. Swift had been asked whether $144.66 of William's monthly support payment is pooled with the AFDC household money to absorb his share of food and shelter expenses, and if she answered in the affirmative, the defendants would have been perfectly justified in prorating her grant. At that point the federal regulations would have been satisfied,[7] and economies of scale would operate to reduce the overall cost of maintaining a three person household.
Turning next to Ms. Roe's factual situation, the lack of inquiry as to actual contribution to the household may result in genuine hardship to the AFDC recipients where the non-AFDC child is supported in kind rather than with funds. For example, if Ann Marie's father provides her monthly with actual items of food and clothing, but no monetary sum that is actually contributed to the AFDC unit, it is wholly artificial to maintain that the cost of running a four person household is reduced by one quarter, i. e., $112.50 per month, Ann Marie's state determined total needs as one person of four. In such an instance reality dictates *583 that the remaining family members, the AFDC household of three, require a full shelter allowance for three people in addition to a basic needs allowance for three people.[8]
Over and above the two plaintiffs' situations, there are undoubtedly countless factual permutations among the class members where the non-AFDC child's support arrangement consists of support in kind only, or support which is given partially in kind and partially in funds, or simply support in whatever monetary amount an absent parent can spare on a monthly basis. The only way to ensure that the prorated amount of the non-AFDC child's per capita needs is actually available and contributed to the AFDC unit to cover the non-AFDC child's share of household expenses is to comply with sections 233.20(a) and 233.90(a) through inquiry in each instance. A similar determination has also been reached by other courts presented with proration issues in differing contexts. See, e. g., Houston Welfare Rights Organization, Inc. v. Vowell, supra; Gurley v. Wohlegemuth, 421 F.Supp. 1337 (E.D.Pa.1976) (two AFDC units residing in one household); see also Reyna v. Vowell, 470 F.2d 494, 497 (5th Cir. 1972) (SSA requires determination of whether earned income of resident 18-21 year old is contributed to household before reduction in AFDC benefits); cf. Gilliard v. Craig, 331 F.Supp. 587 (W.D.N.C.1971) aff'd 409 U.S. 807, 93 S.Ct. 39, 34 L.Ed.2d 66 (1972) (although no discussion of instant issue, i. e., deduction from AFDC grant to extent of state determined standard of need for supported child, court determined that full amount of child's support could not be assumed available to AFDC unit). Finally, defendants' reliance on Padilla v. Wyman, 34 N.Y.2d 36, 356 N.Y.S.2d 3, 312 N.E.2d 149, appeal dismissed, 419 U.S. 1084, 95 S.Ct. 672, 42 L.Ed.2d 677 (1974) is not considered dispositive for the reasons stated in Swift v. Toia, 450 F.Supp. at 989-90.
In accordance with the above, plaintiffs' motion for partial summary judgment is granted. Defendants' practice or policy as outlined above conflicts with the discussed federal implementing regulations of the SSA and as such is violative of the supremacy clause of the constitution. Plaintiffs are directed to submit a judgment enjoining defendants from prorating the class members' AFDC grants without first determining whether the non-AFDC child's monthly support, in the amount of the per capita state determined standard of need, is actually available and contributed to the household to defray the non-AFDC child's share of household expenses.
SO ORDERED.
NOTES
[1] This suit has been the subject of two prior opinions, Swift v. Toia, 450 F.Supp. 983 (S.D.N. Y.1978) (motion to dismiss) and 77 Civ. 2425 slip op. (S.D.N.Y. June 20, 1978) (class certification motion). For purposes of this opinion familiarity with those decisions will be assumed.
The class is defined as
"persons who are residents of the State of New York, who are, were, or will be recipients of AFDC and whose grants have been, are being, or are threatened to be reduced, modified or suspended pursuant to defendants' policy of prorating the public assistance grant when an individual who has no legal obligation to support the AFDC family and who receives non-welfare income sufficient to meet his or her needs resides with an AFDC family consisting of a parent or care-taker relative and at least one needy child."
450 F.Supp. at 991.
[2] 18 N.Y.C.R.R. § 352.3 (1978) provides for a maximum rent allowance of $259 monthly for a three person household or the actual amount of rent paid, whichever is less.
[3] The New York State Department of Social Services computes per capita standards of need based upon the United States Department of Labor's living standards. These are incorporated into Bureau of Labor statistics which vary according to household size. Cushing affid. at 5.
[4] 18 N.Y.C.R.R. § 352.3 (1978) provides for a maximum rent allowance of $212 monthly for a two person household or the actual amount of rent paid, whichever is less.
[5] At the time of the pendency of this motion, counsel reported to the court that Mrs. Swift was in receipt of a monthly grant of $362 to be reduced to $289.33 per month effective October 1, 1978.
[6] See note 3 supra.
[7] HEW has stated that what constitutes "proof of actual contributions" is a determination to be made by state welfare agencies. 42 Fed. Reg. 6583.
[8] Defendants make much of the fact that Ms. Roe (a) lives in a building owned by Ann Marie's father and (b) testified at her fair hearing that Ann Marie's father provides Ann Marie with anything she actually needs and has purchased a washing machine and a freezer. These facts, standing alone, do not detract from plaintiffs' legal arguments. If Ann Marie is in fact contributing to the AFDC household through her father's support obligations then the AFDC grant may and should be properly prorated. However, without such a preliminary determination (and defendants do not contend that they have made this determination), (a) and (b) above are irrelevant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2573501/ | 210 P.3d 778 (2007)
WESTERN TECHNOLOGIES
v.
ANDERSON.
No. 48350.
Supreme Court of Nevada.
June 12, 2007.
Decision without published opinion. Dismissed-Stipulation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379637/ | 187 Ga. App. 293 (1988)
369 S.E.2d 924
DUBOSE
v.
THE STATE.
76280.
Court of Appeals of Georgia.
Decided May 31, 1988.
John A. Pickens, for appellant.
Lewis R. Slaton, District Attorney, Joseph J. Drolet, Nancy A. Grace, Assistant District Attorneys, for appellee.
POPE, Judge.
Defendant was indicted for murder for the shooting death of Alfred "Crum Daddy" Crumley. He was convicted of the lesser included offense of voluntary manslaughter. At trial defendant attempted to present evidence to show the shooting was justifiable in self-defense.
1. The trial court gave lengthy instructions on the defense of self-defense, including the instruction that the burden of proof is not on the defendant to prove self-defense. However, the court refused to give the requested instruction that once self-defense is introduced the prosecution has the burden of proving beyond a reasonable doubt the absence of self-defense by the defendant. The charge as given did address the allocation of burden of proof to the extent it made clear the defendant had no burden of proof on the issue and therefore the instruction was not incorrect. Walden v. State, 251 Ga. 505 (3) (307 SE2d 474) (1983). If the defendant had not specifically requested the instruction regarding the state's burden to disprove self-defense, the charge as given would have been sufficient. Boyd v. State, 253 Ga. 515 (7) (322 SE2d 256) (1984). However, "the trial court erred in failing to give [the] requested charge that where evidence of self-defense is presented the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense." State v. Shepperd, 253 Ga. 321 (320 SE2d 154) (1984).
2. At the trial of the case defendant was not permitted to present testimony concerning the bad character and reputation of the victim, the victim's propensity for violence and carrying a weapon, nor to present evidence of specific prior incidents in which the victim had beaten defendant, cut him with a knife and threatened him with a gun. The judge ruled such evidence was inadmissible because he had not set forth a prima facie case that the defendant acted, at the time of the shooting, in self-defense. Defendant argues the court erred in excluding the testimony he sought to present.
The defendant may present evidence of the victim's general reputation or character for violence "`only when there has been a prima facie showing (by the defendant) that three elements are present: that the deceased was the assailant; that the deceased assailed defendant; and that defendant was honestly seeking to defend himself.' Curtis v. State, 241 Ga. 125, 126 (1) (243 SE2d 859) (1978)." Milton v. State, 245 Ga. 20, 22 (262 SE2d 789) (1980). The critical issue in the case now before us is whether the excluded testimony concerning prior *294 specific assaults by the victim upon defendant were admissible for the purpose of establishing a prima facie case of present assault. See id.
The only evidence concerning the shooting was the testimony of a witness who, on the night of the shooting, saw defendant "laying" up against a truck parked beside an apartment building near the victim's house. The witness saw the victim step out the side door of his house and walk across a field toward defendant. As the victim approached defendant he fumbled in his back pants pocket with his right hand as if he were drawing a weapon. The witness then heard defendant say, "Man, why don't you leave me alone." The witness heard shots fired and then saw both men running in opposite directions. The trial court would not permit defendant to present testimony by deposition of another witness who, two to three weeks before the shooting, witnessed a fight in which the victim had defendant backed up against a parked truck and was swinging at him with a knife. Although it would have been inadmissible as hearsay, the deposition witness also testified he had heard of other incidents in the two weeks prior to the shooting in which the victim allegedly beat or threatened defendant. Defendant's attorney stated on the record that he was prepared to call eyewitnesses to these other fights but the court ruled such testimony inadmissible for failure to make a prima facie case of assault by the victim. However, in this case the excluded facts would, themselves, have established the prima facie case and should have been admitted for that purpose.
At the time he ruled to exclude the testimony in question, the trial judge indicated he might allow the evidence if he heard evidence from the defendant establishing a prima facie case. However, defendant exercised his right to remain silent and did not testify at trial. Is the defendant required to testify in order to make a prima facie case? We think not. "[F]acts from which apprehension might reasonably be inferred ... are relevant when stated or shown by third parties." (Punctuation and cit. omitted.) Baker v. State, 142 Ga. 619, 622 (83 S.E. 531) (1914). Each element of the prima facie case may be established by the testimony of other witnesses or by circumstantial evidence.
The mere fact that the victim reached toward his pocket would not establish the victim was the assailant. In Cooper v. State, 249 Ga. 58 (287 SE2d 212) (1982), where the only evidence concerning the shooting showed the victim verbally threatened to kill the defendant before touching the outside of his pants pocket, the Supreme Court ruled, "We cannot say this evidence, standing alone, is sufficient to establish prima facie that the victim was the aggressor or that the defendant was honestly seeking to defend himself." (Emphasis supplied.) Id. at 61. Thus, in the case now before us, the mere fact that the victim reached toward his pocket would not establish the prima *295 facie case necessary before character evidence could be admitted. However, the victim's gesture toward his pants pocket did not "stand alone" as the only evidence in this case. In this case, defendant proffered evidence of an almost identical earlier incident in which the victim assaulted the defendant with a knife. Defendant claims to have been prepared to offer evidence of other similar incidents. Evidence of specific similar assaults by the victim against the defendant can, itself, establish the threshold elements of a prima facie case by illustrating the basis for defendant's contention he reasonably believed the victim was about to use a weapon on him and that it was necessary for him to harm the victim before the victim harmed him. Milton v. State, supra. In Milton, the only evidence that the victim assailed the defendant was defendant's proffered testimony that the victim threatened to kill him, told him she had a gun in her purse and started reaching for her purse before defendant shot her. If this had been the only evidence, as in Cooper v. State, supra, a prima facie case of present assault would not have been shown. However, in Milton the reasonableness of defendant's belief that it was necessary to act in self-defense was further supported by testimony the victim had shot him and cut him with a knife on earlier occasions. The same sort of evidence was sought to be presented by defendant in the case now before us.
Even after a prima facie showing of self-defense, evidence of other specific acts of violence by the victim would not be admissible for the purpose of corroborating the testimony that the victim was violent on the occasion in question. Only general reputation for violence or a specific type of violence (such as stabbing or shooting) can be presented to corroborate the likelihood the victim was violent on the occasion in question. Henderson v. State, 234 Ga. 827 (218 SE2d 612) (1975). The only purpose for admitting evidence of specific prior acts of violence by the victim against the defendant would be to establish the "reasonableness of defendant's apprehension of danger at the time of the homicide." (Punctuation and cit. omitted.) Milton v. State, supra at 24. The law of Georgia decidedly favors the admission of evidence of previous incidents or threats by the victim against the defendant which supports defendant's contention he reasonably feared it was necessary to kill in order to save his own life. Smith v. State, 128 Ga. App. 777 (197 SE2d 866) (1973). The reasonableness of defendant's apprehension of danger is one of the threshold elements for establishing a prima facie case of self-defense. It follows that evidence of other threats or assaults by the victim against the defendant should have been admitted in this case for the purpose of establishing the prima facie case of self-defense. "This evidence was crucial to his defense, and its exclusion of necessity damaged, if not totally deprived him of, the benefit of his sole defense." Milton v. State, supra *296 at 25-26.
3. Once a prima facie case of self-defense has been made, defendant may present evidence of the victim's character and reputation for violence. Testimony of a witness concerning another's character and reputation cannot be based entirely on the witness' personal opinion. Gravitt v. State, 220 Ga. 781 (141 SE2d 893) (1965). However, references to the impeaching witness' "personal knowledge" or "association" with the individual whose character is at issue "serve[s] only to develop a foundation upon which to base the witness' statement as to reputation." Ballenger Corp. v. Dresco Mechanical Contractors, 156 Ga. App. 425, 437 (274 SE2d 786) (1980).
In deposition testimony which defendant attempted to present at trial, the witness was asked several questions concerning the victim's character and general reputation. Each question posed asked the witness to respond based upon his personal knowledge of the victim and what he had heard others in the community say about the victim. For example, the witness was asked:
"Q.: [D]uring both the 20 years that you have known Crum Daddy, and the two years that you have known and seen him ... have you heard other people that live in that area that know Crum Daddy, talk about him?
A.: Yes.
Q.: And based upon your personally knowing Crum Daddy, and having heard other people in that community talk about him, are you familiar with his general character and reputation?
A.: Yes.
Q.: And is that character and reputation a good one or a bad one?
A.: I think it is bad."
The questions posed in the deposition were proper questions. They did not request the witness' personal opinion of the victim but his knowledge of the victim's general reputation. Thus, the witness' testimony concerning the victim's general reputation was erroneously excluded.
4. Defendant objects to that portion of the jury charge in which the judge instructed, "[W]henever a homicide is neither justifiable or malicious, it is manslaughter and, if intentional, it is voluntary manslaughter." Said portion of the jury charge is an accurate reflection of the law, is a direct quote from Washington v. State, 249 Ga. 728, 730 (292 SE2d 836) (1982), and is therefore not in error.
5. Defendant also objects to the instructions given in explanation or supplementation to the standard charge concerning the defendant's right to remain silent and not to testify. The additional comments instructing the jury they should not be prejudiced by the defendant's choice not to testify were, if anything, favorable to the defendant and certainly not harmful. We find no merit in this enumeration *297 of error.
6. Given the account of the incident by the eyewitness, we find sufficient evidence was adduced at trial from which the jury could find defendant guilty beyond a reasonable doubt of voluntary manslaughter. However, for reasons set forth in Division 2 of this opinion, on retrial defendant may present additional evidence in support of his defense of self-defense.
7. The purpose of a preliminary probable cause hearing is to dismiss at the earliest possible date those charges for which no probable cause is shown. See Rule 26.2 (A) (7) of the Uniform Superior Court Rules. Once there has been an indictment on a charge, probable cause has, by definition, been shown. Failure to hold a preliminary probable cause hearing pursuant to Rule 26.2 provides no ground for appellate review once there has been an indictment and conviction. McClendon v. State, 256 Ga. 480 (1) (350 SE2d 235) (1986); State v. Middlebrooks, 236 Ga. 52 (2) (222 SE2d 343) (1976).
Judgment reversed. McMurray, P. J., and Benham, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379631/ | 369 S.E.2d 636 (1988)
STATE of North Carolina
v.
Ervin Junior DUNSTON.
No. 8710SC1076.
Court of Appeals of North Carolina.
July 5, 1988.
*637 Atty. Gen. Lacy H. Thornburg by Associate Atty. Gen. Kim L. Cramer and Asst. Atty. Gen. Doris J. Holton, Raleigh, for the State.
John T. Hall, Raleigh, for defendant-appellant.
BECTON, Judge.
Defendant, Ervin Junior Dunston, was convicted of attempted second degree rape and taking indecent liberties with a minor. From judgments sentencing him to two consecutive three-year prison terms, defendant appeals, seeking reversal of the attempted rape conviction for insufficiency of the evidence and a new trial on the indecent liberties charge for alleged errors in the admission of evidence. We find no error.
I
The State's evidence at trial showed that, at approximately 8:30 a.m. on 5 August 1986, Jaymie Atkins, age 14, was walking from her home in Raleigh to summer soccer camp at Ravenscroft School. She was wearing a tee-shirt with soccer shorts which fastened with snaps, a zipper, and tie strings. As she travelled along the right side of Newton Road toward the back entrance of the school, a loud mustard-colored car passed her and turned into the entrance. When Jaymie reached the entrance, she walked past the car which was parked just inside the gate with the hood raised. A rather tall, bearded black man of medium build, dressed in khaki pants and plaid shirt, stood by the car playing with his pants zipper.
The car started up, passed Jaymie going toward the school, and disappeared from sight around a curve. Soon the car drove by again, headed out of the school, but reversed and backed up alongside Jaymie as she was walking. The man she previously had seen standing by the car was driving. Then the man drove on toward the entrance.
In a few moments, Jaymie heard the car again. Then suddenly someone grabbed her around the neck from behind, dragged her a few feet to the edge of the woods, and pushed her down on her back. She was screaming, and her assailant leaned over her and placed one hand over her mouth. With his other hand, he fumbled with her pants for a second, then moved his hand down and began rubbing her crotch. Jaymie kicked the man in the groin area, and he suddenly jumped up and ran to his car. As he drove away, his victim memorized the license plate number as HAX 721 or HAX 727.
By tracing the license plate number, the police located a vehicle matching Jaymie's description at a residence in Franklinton where they photographed the car and the defendant. On the afternoon of the attack, Jaymie viewed a photographic line-up but could not identify the man who attacked her. Later the same day, she viewed a second photographic line-up, this one containing the picture of the defendant. She eliminated six of the seven pictures, and stated that picture number six (the defendant) "could be him" but she was not sure. The following day, Jaymie accompanied police officers to a parking lot containing 250-300 cars where she identified a vehicle as the one driven by her assailant. The car was registered to defendant and bore the license number HAX 721.
Jaymie first positively identified defendant at the preliminary hearing, where she recognized him among a group of prisoners coming into the courtroom and pointed him out to her mother and step-father. She *638 also identified defendant at trial as her attacker.
II
Defendant first contends that the trial court erred by denying his motion to dismiss the charge of attempted second degree rape because the evidence was insufficient as a matter of law to establish his intent to commit rape. We disagree. In ruling upon a motion to dismiss in a criminal prosecution, the trial court must view the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from the evidence. E.g., State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982). If there is substantial evidence of each element of the offense charged and that the defendant is the perpetrator, the motion is properly denied. E.g., State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980).
In order to convict a defendant of attempted rape under N.C.Gen.Stat. Sec. 14-27.6 (1986), the State must prove two essential elements beyond a reasonable doubtthat the accused had the specific intent to commit rape and that he committed an overt act for that purpose which goes beyond mere preparation but falls short of the completed offense. State v. Bell, 311 N.C. 131, 140, 316 S.E.2d 611, 616 (1984); State v. Boone, 307 N.C. 198, 210, 297 S.E.2d 585, 592 (1982). The element of intent is established if the evidence shows that the defendant, at any time during the incident, had an intent to gratify his passion upon the victim notwithstanding any resistance on her part. E.g., State v. Moser, 74 N.C.App. 216, 328 S.E.2d 315 (1985). The State need not show that the defendant made an actual physical attempt to have intercourse or that he retained the intent to rape his victim throughout the incident. State v. Hudson, 280 N.C. 74, 77, 185 S.E.2d 189, 191 (1971), cert. denied, 414 U.S. 1160, 94 S. Ct. 920, 39 L. Ed. 2d 112 (1974).
Defendant maintains the State failed to prove a specific intent to have vaginal intercourse with the victim because the evidence presented is equally consistent with an intent to merely look at the victim or commit some other sexual offense. However, there is substantial precedent from our courts establishing that some overt act manifesting a sexual purpose or motivation on the part of the defendant is adequate evidence of an intent to commit rape. See, e.g., State v. Whitaker, 316 N.C. 515, 342 S.E.2d 514 (1986) (defendant verbally expressed desire to perform cunnilingus with his victim and told her to pull down her pants); State v. Bell (defendant discussed with his brother "getting some sex," took their two victims to a secluded area, and ordered them to remove their clothes); State v. Schultz, 88 N.C.App. 197, 362 S.E.2d 853 (1987) (defendant touched victim's breast); State v. Hall, 85 N.C.App. 447, 355 S.E.2d 250, disc. rev. denied, 320 N.C. 515, 358 S.E.2d 525 (1987) (defendant pulled the victim's shirt down and touched her breasts); State v. Wortham, 80 N.C.App. 54, 341 S.E.2d 76 (1986), rev'd in part on other grounds, 318 N.C. 669, 351 S.E.2d 294 (1987) (defendant slit open the crotch of his sleeping victim's panties); State v. Powell, 74 N.C.App. 584, 328 S.E.2d 613 (1985) (defendant entered victim's bedroom at night, undressed, and began fondling his genitalia). Moreover, both our Supreme Court and this court have specifically rejected arguments similar to that made by defendant, holding that evidence an attack is sexually motivated will support a reasonable inference of an intent to engage in vaginal intercourse with the victim even though other inferences are also possible. See State v. Whitaker; State v. Hudson; State v. Schultz; State v. Hall.
In the present case, there is evidence the defendant was playing with his pants zipper prior to the attack and that during the attack he fumbled with the victim's shorts and then began rubbing her crotch. In light of the foregoing precedent, we hold that this constitutes sufficient evidence of overt sexual behavior from which the jury could properly infer, notwithstanding the possibility of other inferences, that defendant intended to engage in vaginal intercourse with his victim.
*639 Defendant further contends, without discussion, that the evidence failed to show he intended or threatened to use force sufficient to overcome any resistance his victim might assert. This argument is also without merit. The evidence shows that defendant grabbed the victim from behind; dragged her several feet; forced her to the ground, covering her mouth with his hand; and proceeded to fondle her without her consent, desisting only after she kicked his groin area. In our view, this is ample evidence to support an inference that defendant, at some point during the attack, intended to forcibly rape the victim despite her resistance.
This assignment of error is overruled.
III
Defendant next argues that the trial court erred by admitting Jaymie Atkins' in-court identification of defendant and evidence of her pretrial identification of him and that he is entitled to a new trial at which this evidence is excluded.
Identification evidence must be suppressed on due process grounds only whenever, under all the circumstances of the case, the pretrial identification procedure was so impermissibly suggestive as to create a very substantial likelihood of irreparable misidentification. E.g., State v. Wilson, 313 N.C. 516, 528-29, 330 S.E.2d 450, 459 (1985). Even when a pretrial procedure is impermissibly suggestive, an in-court identification is admissible if found to be of independent origin and, thus, not tainted by the previous invalid procedure. E.g., State v. Clark, 301 N.C. 176, 183, 270 S.E.2d 425, 429 (1980).
Before the trial court admitted the identification evidence in the present case, an extensive voir dire was conducted concerning both the in-court and out-of-court identification of defendant. After hearing testimony of the victim, her step-father, and the investigating officer, and observing the seven photographs composing the photographic line-up, the court made numerous findings of fact and concluded that the pretrial identification procedures were not impermissibly suggestive. He further ruled that the in-court identification was of independent origin based upon the victim's direct observations during the attack. Our review of the record convinces us that the court's findings and conclusions are supported by substantial competent evidence and are thus binding on appeal. See, e.g., State v. White, 307 N.C. 42, 296 S.E.2d 267 (1982).
We first consider the validity of the pretrial identification procedure. Defendant specifically challenges each step of the pretrial identification and maintains that the combination of events gives rise to a substantial likelihood of irreparable misidentification. He first contends that the photographic lineup containing his picture was impermissibly suggestive because he was the only person portrayed wearing khaki slacks and thereby matching the description given by the victim of her assailant. However, a photographic line-up is not impermissibly suggestive merely because the defendant is the only individual photographed wearing a particular item of clothing matching a witness's description. See, e.g., State v. Ricks, 308 N.C. 522, 302 S.E.2d 770 (1983); State v. White; State v. Thompson, 303 N.C. 169, 277 S.E.2d 431 (1981). All that is required is that the line-up be fair and that the officers conducting it do nothing to induce the witness to select one picture rather than another. State v. Grimes, 309 N.C. 606, 610, 308 S.E.2d 293, 295 (1983). Although we do not have the photographs before us on appeal, the voir dire testimony and the trial court's findings indicate that the seven individuals depicted were of reasonably similar appearance and that the victim was not improperly induced to choose one subject over another. Moreover, the very fact that the victim was unable to positively identify defendant from the photographic line-up belies his assertion that the procedure was impermissibly suggestive. See State v. Ricks, 308 N.C. at 526-27, 302 S.E.2d at 772.
Defendant also attacks the validity of the identification of his vehicle and then argues that the combination of the photographic *640 line-up and the vehicle identification procedure somehow impermissibly predisposed the victim to identify him at the preliminary hearing. These contentions are without merit. The evidence shows that the victim selected the defendant's car from a large array of automobiles without prompting or other inducement by police officers and that she recognized the car from her observations on the day of the incident. Similarly, the voir dire evidence concerning her first positive identification of defendant at the preliminary hearing indicates she recognized and identified him spontaneously and without improper suggestion or inducement.
We find no evidence in the record of any additional circumstances regarding defendant's pretrial identification which are conducive to an irreparable mistaken identification. For the foregoing reasons, we hold that the pretrial procedures were not unnecessarily suggestive and that, consequently, evidence concerning the pretrial identification of defendant was properly admitted.
We also find adequate support for the trial courts' determination that the in-court identification was admissible, regardless of the validity of the pretrial identification, because it was of independent origin based upon the victim's observations at the time of the incident. Jaymie's testimony on voir dire and at trial indicates that during the attack, which occurred in bright daylight, she observed defendant attentively face-to-face, without obstruction, as he leaned over her within sixteen inches of her face. She accurately described the defendant immediately after the attack and at trial. Further, she testified that her identification was based on her memory of the incident. From this evidence, we conclude the in-court identification was fair and untainted by any pretrial events. See State v. Osborne, 83 N.C.App. 498, 350 S.E.2d 909 (1986).
In addition to the foregoing arguments, defendant also challenges the admission of the identification evidence on the basis of alleged errors in the conduct of the voir dire hearing. These contentions merit no discussion and are overruled.
IV
Defendant's remaining arguments relate to other alleged errors of the trial court in the admission of evidence. Having carefully reviewed these contentions, we conclude that they are without merit.
Defendant received a fair trial, free of prejudicial error.
No error.
JOHNSON and GREENE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379662/ | 786 F. Supp. 1403 (1992)
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY, Plaintiff,
v.
ASSOCIATED DRY GOODS CORPORATION, a Virginia Corporation, and a wholly owned subsidiary of May Department Store Company, d/b/a L.S. Ayres & Company, Defendant.
No. S92-2M.
United States District Court, N.D. Indiana, South Bend Division.
January 22, 1992.
*1404 *1405 *1406 Richard Morgan, Joseph Fullenkamp, South Bend, Ind., Alan R. Fridkin, Office of Gen. Counsel, MassMutual Life Ins. Co., Springfield, Mass., for plaintiff.
John Obenchain, South Bend, Ind., Stephen J. Horace, Ronald J. Dolan, St. Louis, Mo., for defendant.
MEMORANDUM AND ORDER
MILLER, District Judge.
On October 25, 1991, Associated Dry Goods Corporation ("ADG") announced that the L.S. Ayres store it operates in the Scottsdale Mall in South Bend, Indiana would be closed as part of a company-wide reorganization. The mall's owner, Massachusetts Mutual Life Insurance Company ("MassMutual"), brings this suit for temporary and permanent injunctive relief requiring ADG to continue to operate the Ayres store for the duration of the twelve years remaining on the Ayres lease. The motion for preliminary injunction was heard on January 9, 10, and 13, 1992. For the reasons that follow, the court concludes that the preliminary injunction should be granted.
Courts ordinarily do not order one party to go through with a contract, because an award of damages for the breach of the contract usually gives the other party everything to which it is entitled. Here, however, the closing of the Ayres store will affect the plaintiff's mall in ways that make an award of damages insufficient. If the Ayres store closes, it simply will not be possible to decide at a later trial what damages resulted from the store's closing and what damages resulted from other factors. The lease's language and surrounding circumstances strongly indicate that the parties to the lease intended the Ayres store to continue to operate as an anchor store during the entire term of the lease, and not just to pay rent. Keeping the Ayres store open may cost the defendant a great deal of money, but the plaintiff must post a bond to insure against that risk. On the other hand, a bond or a later award of damages cannot address the risk to the plaintiff if the injunction is denied.
Courts ordinarily do not enter injunctions that will require the court's long-term involvement, but frequent court involvement is unlikely in light of the Scottsdale Ayres store's eighteen-year history and the defendant's interest in its stores' reputation. Even though no court ever has entered an *1407 injunction like the one sought here, the general rules concerning preliminary injunctions indicate that a preliminary injunction should be issued under the facts presented in this case. Accordingly, the court will grant the plaintiff's motion for a preliminary injunction requiring the defendant to reopen the store and operate it at least until trial. The injunction will become effective when the plaintiff posts security in the amount of $1 million.
I.
The court has jurisdiction under 28 U.S.C. § 1332. MassMutual is a corporation organized and existing under the laws of Massachusetts, having its principal place of business in Springfield, Massachusetts. ADG is a Virginia corporation with its principal place of business in Missouri, doing business in Indiana as L.S. Ayres & Company. ADG is a wholly-owned subsidiary of May Department Stores Company, a New York corporation with its principal place of business in Missouri.[1]
A.
On October 4, 1971, Ayres Department Stores, Inc. (ADG's predecessor in interest) entered into a lease with an Ohio limited partnership,[2] to lease portions of the Scottsdale Mall, which was in the developmental stage. The Ohio partnership contracted as landlord and Ayres Department Stores, Inc. contracted as tenant of the building known as the Ayres building. The lease provided for the landlord's construction of an enclosed shopping center and gave the tenant additional rights to the mall and common areas as defined in the lease agreement. The term of the lease for the Ayres building commenced on August 1, 1973 and terminates on January 31, 2004, with renewal options. The lease binds the original parties' assignees and successors in interest.
The plans and specifications for the construction of the Ayres building were prepared in accordance with the tenant's specified designs; both the landlord and the tenant approved the plans and specifications.
The base rental rate for the Ayres building is approximately $254,000 per year for the thirty year lease, a figure that remains constant throughout the lease term. ADG also pays the landlord dues for membership in the mall's merchants' association and is billed a variable annual sum for maintenance of the mall's common areas. ADG also pays the real estate taxes on its building directly to the county treasurer, rather than to the landlord.
ADG (or its predecessor) has operated a department store in its space at Scottsdale Mall since 1973. MassMutual is the current successor landlord under the lease, having accepted a conveyance of the shopping center and assignment of all leases in lieu of foreclosure effective February 27, 1991. ADG, having assumed the prior tenant's obligation, is the Ayres building's current tenant.
Scottsdale Mall contains 658,000 square feet of gross leasable floor area on two levels. Scottsdale Mall has three anchor stores; Ayres, Montgomery Wards and Target.[3] Ayres and Wards are on both levels, while Target has no second level. Tenants presently occupy 81% of the mall's gross leasable floor area. The Ayres store occupies 109,700 square feet of floor space, almost one-sixth of the mall's gross leasable floor area. If the Ayres store is vacated, the occupancy rate of the gross leasable *1408 floor area will be reduced to 63%. As measured by storefronts, Scottsdale has an occupancy rate of about 60%, with forty-seven of the 107 storefronts vacant.[4]
B.
A second enclosed traditional regional shopping mall, University Park Mall, opened in the South Bend area around 1980, about seven and a half miles from the Scottsdale Mall. The two malls are in direct competition. According to ADG's merchandising information, the areas from which its Scottsdale and University Park stores draw the majority of their customers overlap significantly. Scottsdale's area of exclusive influence is a comparatively small, sparsely populated area.[5]
To date, University Park generally has been a more successful shopping mall than Scottsdale. University Park has a much higher storefront occupancy rate,[6] is considerably more profitable based on sales per square foot, is much larger and has more anchor tenants (four), is newer, and attracts many more customers than Scottsdale.
Ayres is the only department store to operate anchor stores at both Scottsdale and University Park, although the two malls have thirty-one non-anchor "specialty shops" in common. The decision to open the second store was made when the University Park Mall was being developed and was made by ADG's predecessor in interest. Based on the relevant demographics, sales figures, and trends, ADG believes that the South Bend market cannot support two Ayres stores.
ADG has made various marketing decisions based on the merchandising history of the two stores. It has found that higher-priced, higher-quality product lines do not sell as well at Scottsdale as at University Park. Accordingly, the two stores carry varying product lines, with the higher-priced, higher-quality product lines generally being more available at University Park, and lower-priced lines generally being more available at Scottsdale.[7]
ADG's University Park Ayres store sells more than two and one-half times as much merchandise as its Scottsdale store. Sales per square foot at the University Park Mall are more than double that of the Scottsdale store and the gap is widening.[8] The University *1409 Park store grew by 49% in volume of sales from 1984 to 1990, while the Scottsdale store's volume of sales was $10.7 million in 1984 and 1990.[9] The Scottsdale store realized profits of about $250,000 in 1988, about $200,000 in 1989, and about $320,000 in 1990. Although year-end figures for 1991 are not yet available, the Scottsdale store lost $120,000 during the "spring season" (February through July). ADG believes that the Scottsdale store has avoided yearly losses thus far only because of its efforts to reduce costs to a bare minimum, and that the University Park store is stronger because the University Park Mall is stronger.
C.
MassMutual placed a $17.3 million book value on the mall upon acquisition in 1991. In May, MassMutual contracted with the Dial Companies to manage the Scottsdale Mall, and Dial's major tenant lease coordinator, J.F. Carter, telephoned May senior vice president in charge of real estate, Duane R. Vaughan, to introduce himself. Mr. Carter and Mr. Vaughan scheduled a meeting to discuss Dial's future plans for the Scottsdale Mall. Mr. Carter and two Dial vice presidents later met with Mr. Vaughan during a trade show in Las Vegas. Dial presented its redevelopment plan for the Scottsdale Mall[10] and Mr. Vaughan requested updates on the redevelopment plan. Mr. Vaughan does not remember seeing the materials presented to him; the court infers that Mr. Vaughan, who already was seeking a substitute tenant at Scottsdale, simply paid little attention.
After that meeting, MassMutual allocated funds for the first phase of Dial's redevelopment plan. Thus far, Dial's marketing efforts have failed to sign any new tenants, although leases have been tendered to prospective non-anchor tenants; a few non-anchor tenants, known as "specialty shops", have left Scottsdale since MassMutual and Dial took over.
On October 25, 1991, May (ADG's parent company) held a press conference and announced it would close the Scottsdale store by the end of January, 1992 as part of a major reorganization. Neither Dial nor MassMutual knew of this decision until the public announcement. Mr. Vaughan testified that in light of the broader ramifications of the corporate reorganization, he could not disclose the plans to Dial before the public announcement. Mr. Carter tried to telephone Mr. Vaughan to arrange a meeting to discuss the reason for closing the Scottsdale store and to try to resolve the dispute. The meeting was cancelled twice due to Mr. Vaughan's scheduling problems, and ultimately occurred on November 25. At that meeting, Mr. Carter and two other Dial representatives met with Mr. Vaughan in Dial's Omaha offices. Mr. Vaughan rejected Dial's proposals to keep the Scottsdale store open and operating. Mr. Carter told Mr. Vaughan that Dial was interested in seeking a resolution, but MassMutual would file legal proceedings if the matter remained unresolved in thirty days.
Since the announcement of the intent to close the store, ADG has proceeded, according to a schedule prepared in November, to take the many steps necessary to close the Scottsdale Ayres store, including discontinuing all merchandise orders for the Scottsdale store, terminating contracts with parties subleasing or licensing floor space in the premises, transferring employees and offering early retirement to others, delivering "WARN" (plant closing) notices to employees, and disposing of most of its visual trade fixtures. ADG has neither slowed nor accelerated its closure schedule *1410 as a result of these proceedings.[11]
ADG also has represented to the public in advertisements that it was conducting a liquidation sale in connection with closing the Scottsdale store. As part of this process, ADG transferred $700,000 to $800,000 of "distressed" merchandise (or about 25% of the Scottsdale store's December inventory) to its Scottsdale store in the first half of December.[12] On December 20, ADG applied for a "removal of business" sale license from the county clerk's office; all inventory shipments to the Scottsdale store ceased on that date.[13] The license issued with an effective date of January 9, 1992. On December 26, merchandise worth approximately $3.8 million was in stock in the Scottsdale store, which was similar to the amount of stock maintained a year earlier, and ADG still retained all fixtures, visuals, and its full employee staff at the Scottsdale store. On December 26, ADG began a "Consolidation Sale" at the Scottsdale Ayres store.
By January 13, merchandise totalling $2.9 million had been sold at the Scottsdale Ayres store; less than 23% of the December 26 inventory remained in the store. But for the intended closing, the store would have had between $3.5 million and $4 million in inventory; January and February are among the low times in the retail industry. The remaining inventory could not form the base for a re-stocked inventory. As of January 10, the Scottsdale Ayres store still had 75% of its fixtures and 10% of its visual fixtures; the rest had been discarded or sent to other stores, where other fixtures were discarded. Of six area sales managers, one had left the company and another plans to retire. One of its two sales support managers is still associated with L.S. Ayres, and only four of fifty-six regular associates intend to retire. The remaining sales associates have been transferred, await transfer, or hope to transfer to other stores, most to the University Park store.
ADG anticipated closing the store on January 20. The parties agree that the requested injunction essentially would require ADG to open a new Ayres store at Scottsdale.
These findings of fact are not intended to be complete. Additional facts are set forth where pertinent in the sections that follow.
D.
On December 27, MassMutual filed its Verified Complaint in the St. Joseph County Circuit Court,[14] seeking preliminary and permanent injunctive relief and a temporary restraining order. The hearing on the motion for the temporary restraining order was set for January 3, 1992. On January 2, ADG removed this cause to this court and requested a continuance of the TRO hearing. The court denied the request for a temporary restraining order following an evidentiary hearing, due to the imminence of the scheduled January 9 hearing on the motion for preliminary injunction.
ADG denies any present intention to stop paying rent at the Scottsdale store, but strongly denies that it has any lease obligation to operate a store at Scottsdale Mall. MassMutual contends that the lease requires ADG to operate a store in addition to paying rent, and asks this court to order it to do so. Section 23.16 of the lease provides that Indiana law shall apply. Because the contract was to be performed in Indiana, an Indiana court ordinarily would give effect to the contractual choice of law *1411 provision, Wood v. Mid-Valley, Inc., 942 F.2d 425, 426 (7th Cir.1991); Sullivan v. Savin Business Machines Corp., 560 F. Supp. 938 (N.D.Ind.1983), and the parties have not suggested any basis for applying the law of any other jurisdiction. Accordingly, the court will apply Indiana law to the substantive issues. Dyna-Tel, Inc. v. Lakewood Engineering & Manufacturing Co., 946 F.2d 539 (7th Cir.1991); see also Systems Operations, Inc. v. Scientific Games Develop. Corp., 555 F.2d 1131, 1143 (3rd Cir.1977) (state law provides source of rule of substantive elements of claim).
II.
A preliminary injunction's purpose is to minimize the hardship to the parties pending the lawsuit's ultimate resolution. Faheem-El v. Klincar, 841 F.2d 712, 717 (7th Cir.1988) (en banc). Although Indiana law governs the parties' substantive rights in this diversity suit, federal law governs the issuance of a preliminary injunction. General Electric Co. v. American Wholesale Co., 235 F.2d 606, 608 (7th Cir.1956); Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 799 (3rd Cir.1989), at least in the absence of a state statutory bar to the relief sought. See Sims Snowboards, Inc. v. Kelly, 863 F.2d 643, 647 (9th Cir.1988).
In this circuit, one seeking a preliminary injunction bears the burden of showing: (1) that the movant will suffer irreparable harm absent the preliminary injunction; (2) that the harm the movant will suffer absent injunctive relief is greater than the harm the defendant will suffer as a result of injunctive relief; (3) a reasonable likelihood of success on the merits; and (4) that the injunction will not harm the public interest. S.E.C. v. Cherif, 933 F.2d 403, 407-408 (7th Cir.1991). An injunction is improper if the movant has an adequate remedy at law. United States v. Rural Electric Convenience Co-op., Inc., 922 F.2d 429, 432-433 (7th Cir.1991). The plaintiff must satisfy each of these elements. Somerset House, Inc. v. Turnock, 900 F.2d 1012, 1015 (7th Cir.1990).
The court turns to each factor in turn.
A.
MassMutual has demonstrated that the closing of ADG's Scottsdale Ayres store will cause MassMutual irreparable harm for which no adequate remedy exists at law. Even assuming that ADG continues to make all payments due to MassMutual under the lease, including real estate tax payments directly to the county clerk, the store's closing will damage MassMutual significantly in a number of ways.
1.
MassMutual has shown that the store's closing will adversely affect the mall. The extent of the damage to the mall's overall operation cannot be predicted with certainty, but damage certainly will ensue. The Ayres store attracts a more affluent customer than do the store's other anchors; fewer customers of that sort will come to the mall to shop at Wards or Target.[15] The reduction in customers coming to Scottsdale Mall will reduce the flow of customer traffic through the mall, reducing the sales business of all mall tenants. Those hardest hit will be the specialty shops that are geared to the more affluent customer and the shops located closest to Ayres.
Evidence produced at the hearing indicates that a shopping mall is based on the concept of facilitating a unified and a compatible operation between the landlord, anchor tenants, and specialty shops. The specialty shops rely on the anchor tenants to draw a substantial portion of the customer base to the mall, and customers of any one place of business in a mall are potential *1412 customers of any of the other merchants in the mall.
Testimony presented at the hearing establishes that the specialty shops at Scottsdale that cater to the more affluent customer benefit from the Ayres store's presence at the mall. Testimony from owners and managers of such stores indicates that shoppers go to the mall in response to Ayres advertising and then go on to shop at those specialty stores. Testimony of persons intimately familiar with specialty shops that cater to the more affluent Scottsdale customer indicates that the anchors other than Ayres draw a generally less affluent customer to the mall. Observations of increased customer traffic in the mall during advertised Ayres sales corroborate those beliefs. Two scenarios are probable without the Scottsdale Ayres store: either fewer higher income customers will shop at Scottsdale, reducing those specialty shops' gross sales, or those specialty shops will find it necessary to increase their own advertising efforts. Even if additional specialty shop advertising is successful, the expense of additional advertising will reduce the shops' profits.
If the upscale specialty shops suffer reduced gross sales, MassMutual's rental income will suffer. All but four or five of the mall's non-anchor tenants have lease arrangements whereby the tenant pays a minimum base rent, but pays a percentage of gross sales if sales reach a specified point. Thirteen non-anchor tenants paid mall rental on a percentage basis in 1991; an unspecified number of other non-anchor tenants fell just short of sales levels that would have required rent payment on a percentage basis. If the Ayres store's departure causes specialty shops' gross sales to fall, MassMutual will lose: (1) the additional percentage rent that previously successful non-anchor tenants, who have paid percentage rent in the past, would have paid in the years remaining on the Ayres lease; (2) the potential for increased percentage rent from increased future sales from those non-anchor tenants already paying percentage rent; and (3) additional percentage rent that other non-anchor tenants, who now pay the base rent, may have owed as a result of increased sales in coming years.
Similarly, the closing of the Ayres store will prevent the mall from offering prospective new tenants a draw for the customer more likely to shop at an Ayres-like store than at Wards or Target. Accordingly, specialty shops that cater to the more affluent Ayres customer will be less likely to decide to enter the mall.
If the upscale specialty shops simply maintain present sales by increasing their advertising, the cost of doing business at Scottsdale Mall will increase. Unchanged sales combined with increased costs reduce profits. If it becomes less profitable for specialty shops to operate, those shops may consider non-renewal of their leases at expiration or renegotiation, as the owner of one shop indicated at the hearing. Sixteen of the sixty-seven presently operating non-anchor stores' leases, or more than one-third, expire in the next two years, a period in which it is highly unlikely that any replacement for the Ayres store could begin operating. All present non-anchors' leases will expire during the twelve years remaining on the Ayres lease. Persons knowledgeable of some of the specialty shops, such as Richman Brothers, indicated that leases would not be renewed if the Ayres store leaves and no substitute anchor tenant is found quickly.
Indeed, at least some specialty shops need not await their leases' expiration before reconsidering continued operation at the Scottsdale Mall. The Lerner Shops lease provides that if any of the mall's anchors ceases operation for twelve months, the tenant may terminate the lease on thirty days notice. The Sycamore Shops lease provides that if any anchor vacates and is not replaced within one year, the tenant may terminate on ninety days notice. The J. Riggins lease provides that if the Ayres store closes and is not replaced by a similar store within one year, the tenant may terminate on thirty days notice. The Nu-Vision lease provides that if 75% of the mall's leasable area becomes vacant, the tenant's rent abates; the Ayres store's closing would produce a 64% occupancy *1413 rate at Scottsdale Mall, and the non-anchors whose leases expire in the next two years occupy another 6% of mall's leasable area. Other non-anchor leases, such as that of Radio Shack, contain provisions allowing cancellation if an anchor closes. The possibility that non-anchor tenants will vacate is not remote: MassMutual received two termination notices during the week preceding the preliminary injunction hearing.
2.
A second likely impact of the Ayres closing extends beyond the specialty shops who cater to the more affluent customer. Scottsdale Mall is arranged on an essentially east-west basis, with the Wards store on the east end and the Target store on the west end; the Ayres store is located in the center of the linear arrangement. Testimony at the hearing indicated that shopping malls should be designed so as to maximize customer traffic flow through the mall. The Ayres store's closing probably will have a dramatic impact on the mall's customer traffic. Shoppers no longer will exit the Ayres store on the mall's first or second level and then turn east or west, passing specialty shops on the way to another anchor. Mall traffic will consist of (1) shoppers entering the mall at the west end, into or near the Target store, (2) shoppers entering the mall at the east end, into or near the Wards store, or (3) those who enter the mall to shop at a specialty store. Evidence at the hearing indicated that because the specialty shops rely on the anchors' advertising to bring customers to the mall, the third group will be far smaller than the first two.
Shoppers who enter the mall at either end will be less likely to move toward the mall's middle if the Ayres store closes. Reduced customer traffic in the mall's center probably will have the greatest impact on the sales of specialty shops located in the center of the mall; those shops will begin to close or leave at the expiration of their leases. As specialty shops in the mall's center dwindle, shoppers will have even less reason to move toward the mall's center, and more shops located there will close; shoppers are unlikely to walk great distances past empty shops to go to the more distant anchor. In essence, Scottsdale Mall would become two small malls, with a small number of specialty shops clustered near each operating anchor. Because the Target store only occupies one level, there would be few, if any, second-floor specialty stores at the Target end.
3.
A third impact will be upon the mall's image itself. As noted before, more than a third of the mall's leasable area will be vacant if ADG closes the store occupying 107,900 square feet. All of the witnesses who expressed an opinion on the issue at the hearing agreed that a mall with a great vacancy rate faces far more difficulty in attracting shoppers and new tenants. Developments since ADG's announcement demonstrate the accuracy of that testimony. Before the announcement of the intended closing, MassMutual was in negotiation for a fourth anchor, for an expansion of the mall's theater from two screens to six screens, and for the development of a nine-vendor, 15,000 square foot food court. After the announcement, the prospective fourth anchor abandoned its interest in Scottsdale Mall, the theater expansion has been placed on hold pending re-negotiation, and the food court project has been suspended. None of these developments had culminated in an agreement before ADG's announcement, and perhaps none would have done so, but the announcement's impact on the talks demonstrates the damage to the mall's ability to attract new tenants. As a result of ADG's announcement, MassMutual has virtually stayed its redevelopment plan for the mall.
4.
ADG suggests that its closing actually may benefit the mall in the long term by allowing it to procure a new, more profitable tenant. It is true that were a new anchor found, the anchor lease's rental provisions likely would be more favorable to the landlord than those contained in the 1973 Ayres lease. It also may be that if another anchor replaces the Ayres store, other specialty shops, more complementary *1414 to the new anchor, may replace the current non-anchors whose customer base mirrors that of the Ayres store; indeed, a new "tenant mix" ultimately could, conceivably, make the mall's operation more profitable. ADG has demonstrated no likelihood, however, that a substitute anchor can be found for its Scottsdale store.[16]
Although the lease creates no obligation to do so, ADG itself has made inquiries of other potential anchors, starting as long as three years ago,[17] but has met with no success. The May Department stores will not put another of their stores into the space. Due to the timing of ADG's announcement and lack of prior notice from ADG, MassMutual was in no position to seek a replacement before ADG's announcement. As a result, the Ayres space, even under the best of circumstances, will be vacant for several years.
Credible evidence presented at the hearing indicates that the process of acquiring an anchor is a lengthy one. A business with interest in the project must be found; the potential anchor's representatives must tour the facilities and the market and conduct feasibility studies; negotiations over the lease's terms must occur; the potential anchor must develop architectural drawings for its use of the space; renovations must be made to the anchor's specifications. If a substitute anchor were located tomorrow, the substitute anchor could not open its doors at Scottsdale before February 1994; in today's economy, even that timetable is unlikely. As noted before, at least sixteen non-anchor leases will have expired by that time, and the mall's customer traffic probably will have been drastically affected in the interim.
Even after a new anchor begins business, a period of time is necessary for the new anchor to establish itself in the community. Ayres, the store the new anchor would replace, has been long known in Indiana and has enjoyed, at least before the closing announcement, a very good reputation in the state. If a new anchor could be found, customer traffic at the mall would reflect the time needed for a replacement anchor to establish its own reputation and customer confidence. In the meantime, Scottsdale would continue to lose customers, battling its reputation as a vacant mall.
5.
Accordingly, MassMutual has shown that it will be injured if the Ayres store closes. To obtain a preliminary injunction, it must further show that the injury is irreparable. Scruggs v. Moellering, 870 F.2d 376, 378 (7th Cir.), cert. denied, 493 U.S. 956, 110 S. Ct. 371, 107 L. Ed. 2d 357 (1989). In Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 386 (7th Cir.1984), the court explained this requirement as meaning that the plaintiff cannot wait until the end of the trial to get relief. MassMutual has satisfied that standard. The injury may well amount to the closure of the mall, except to the extent of the two remaining anchors and a few nearby specialty shops. Should this develop from non-renewal of non-anchor leases, it may not happen for several years; if it results from specialty stores becoming unable to survive financially, it may, as plaintiff's expert Donald Harney suggested, happen within a year. If the former course is taken, damages will be unknown at trial unless the trial is unreasonably delayed; if the latter course is taken, Scottsdale virtually will have ceased to exist as a shopping mall.
All of MassMutual's loss will be financial. Loss of new tenants is compensable in damages equal to the profits MassMutual would have made from those tenants; loss of rent from existing tenants is compensable in damages equal to the rents *1415 MassMutual would have received had ADG not closed its Scottsdale store; loss of rent due to closures and non-renewals by existing tenants is compensable in damages equal to the rents MassMutual would have received from those tenants had ADG not closed its Scottsdale store. The reduction in fair market value may be quantifiable, and ADG demonstrated that expert witnesses can be found who claim the ability to isolate a given cause. As noted above, preliminary injunctive relief ordinarily is inappropriate if damages are sufficient to remedy the injury of which a plaintiff complains. American Hospital Ass'n v. Harris, 625 F.2d 1328, 1331 (7th Cir.1980); see also Indiana State Board of Public Welfare v. Tioga Pines Living Center, Inc., 575 N.E.2d 303, 306 (Ind.App.1991) (Indiana law); Whiteco Industries, Inc. v. Nickolick, 549 N.E.2d 396, 399 (Ind.App.1990) (Indiana law). In other words, to obtain a preliminary injunction, MassMutual must show not only that it will suffer injury without the injunction; it also must show that an award of damages for those injuries would be an inadequate remedy.
A damages remedy is inadequate if it would come too late to save the plaintiff's business, or if the nature of the plaintiff's loss makes damages very difficult to calculate. Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d at 386; see also Classic Components Supply, Inc. v. Mitsubishi Electronics America, Inc., 841 F.2d 163, 165 (7th Cir.1988); but see Indiana State Dept. of Welfare, Medicaid Div. v. Stagner, 410 N.E.2d 1348, 1352 (Ind.App.1980) (Indiana law). To describe MassMutual's damages as difficult to calculate seriously understates the circumstances presented at the hearing.
Scottsdale's present circumstances demonstrate that more is afoot than ADG's plan to close the Scottsdale store. MassMutual owns the mall today because it took the mall in lieu of forfeiture less than a year ago, when the prior owners were unable to meet their debt service from the mall's cash flow. Although some stores such as Richman Brothers and Shifrin Jewelers have done well in recent years, forty-seven of the mall's 107 non-anchor storefronts presently are vacant; the vacancy rate has doubled, more or less, in the past five years. Thus, even before ADG's announcement, the mall's short-term trend was toward non-renewal of non-anchor leases. Even MassMutual's expert testified at the hearing that a 40% vacancy rate is unacceptable.[18] Storefronts near the Ayres store on the mall's second floor already are vacant, and specialty shops that appeal to the "upscale" customer, such as Gantos, The Gap, Gilbert's, and Redwood & Ross, have closed their Scottsdale stores in the past several years. The present mall manager attributes the recent loss in leased square footage to a predecessor management company's improper management and effort; a former manager of the mall believes the recent downturn was caused by uncertainty in development due to long-delayed decisions about a new highway near Scottsdale Mall.
The Scottsdale Ayres store itself was among the three least profitable of the fifteen pre-consolidation Ayres stores; credible testimony was presented at the hearing that drastic cost-cutting was necessary to allow the store to show any profit in the past three years. On the other hand, projected 1991 sales of the non-anchor Scottsdale stores are expected to show a slight increase over 1990, which may show strength in the face of a recessionary economy.
The Scottsdale Mall is located less than eight miles from a newer and far more successful shopping mall, University Park Mall. University Park, which has four anchors (Ayres, Sears, J.C. Penney, and Hudson's), has a vacancy rate of 5%, compared to Scottsdale's nearly 40%. ADG's University *1416 Park Ayres store shows much higher sales per square foot, a phenomenon mirrored by other chains, such as Richman Brothers, that operate stores at both malls.
Conflicting evidence was presented concerning the demography of the Scottsdale market. The average household income in the area immediately surrounding the mall was more than a third higher than the average for the eleven-county marketing area as a whole, and the councilmanic district in which the mall is located contains many of the city's wealthiest neighborhoods. There has been recent commercial development in the area immediately surrounding Scottsdale, and new residential developments involving more than 2,500 housing starts are planned for the coming decade. A major highway recently was completed adjacent to the mall, linking the mall's area to a city in an adjacent county with 45,000 people. On the other hand, no substitute anchor has been found despite these apparently favorable demographics.
May's experts believe that a population of 250,000 is needed to support one of its stores. Accordingly, a population of 500,000 would be needed to support the two Ayres stores at Scottsdale and University Park. The core population of the South Bend metropolitan area is 250,000, although adjacent communities would expand that figure somewhat. Of that population, ADG's studies of its charge account records indicate that the two stores' primary trading areas share about 150,000 people, an unusually large overlap. The University Park store's trading area has a considerably larger population than does the Scottsdale store. May's experts believe the South Bend metropolitan market is too small to support two Ayres stores or two regional shopping malls.[19]
ADG presented evidence that Scottsdale Mall's design and present tenant mix may be responsible for the mall's troubles, with a one-story anchor (Target) located at one end of the mall and an assertedly confusing co-existence of an "upscale" department store (Ayres) and a discount store (Target) as anchors.[20]
MassMutual presented expert testimony to the effect that Scottsdale might "go dark" (close altogether) within a year of the Ayres store's closing. Again, conflicting testimony was presented on this issue. ADG's experts testified to several instances in which malls have lost anchor stores and continue to operate. Those instances seem easily distinguishable from the Scottsdale situation. Apart from malls that changed to off-price centers, the instances cited by ADG generally involved the closing of anchor stores (such as Miller & Rhoads, Wieboldt's, Bonwit Teller) due to bankruptcy. The Ayres chain is not going bankrupt; ADG intends to continue operating an Ayres store at a nearby, competing shopping mall. ADG reports post-announcement comments from shoppers indicating that its customers will shop at University Park because they like Ayres.[21] Thus, Scottsdale faces a double whammy: like the malls cited by ADG as having survived the loss of an anchor, Scottsdale will face the future with one fewer anchor store; unlike the malls cited by ADG, the customer base developed at the Scottsdale Ayres store will take its business to University Park.
Nonetheless, each of the ADG experts testified that they were unaware of any regional shopping mall that went completely "dark" upon losing an anchor tenant, and MassMutual identified no example of such an occurrence. Under these circumstances, *1417 the court cannot find that MassMutual has made the sort of "concrete showing" required to warrant injunctive relief due to Scottsdale's probable future closure. See USA Network v. Jones Intercable, Inc., 704 F. Supp. 488, 491 (S.D.N.Y. 1989).
Even if the mall does not "go dark", however, the plaintiff will suffer injury that is irreparable because it is immeasurable. Customers will be lost; present tenants will lose sales, reducing rent in some cases, causing non-renewal or failure in others; prospective tenants will shy away. Proof of the damages attributable to the Ayres store's closing will be speculative. Any competent expert will be able to determine the loss to MassMutual between ADG's closing announcement and the time of trial. Given the downturn already evident at Scottsdale before the announcement, however, the court is unpersuaded that any expert will be able to identify, with any degree of certainty, the portion of the loss attributable to the Ayres closing, as distinct from loss attributable to other economic and marketing factors. Further, unless trial is deferred for twelve years or the mall "goes dark" in the near future, any trial expert would face the further task of predicting the mall's future performance and isolating the specific impact of the Ayres closing that future performance. The court is not persuaded that such testimony can be provided within the confines of the Federal Rules of Evidence.
Accordingly, the court concludes that while MassMutual's damages will be exclusively economic and that MassMutual has not made a sufficient showing that the mall will close altogether, MassMutual's probable injury is irreparable, within the meaning of the Seventh Circuit case law, due to the extreme difficulty of establishing both causation and amount of damages. Other courts have so held in similar circumstances. In New Park Forest Associates II v. Rogers Enterprises, Inc., 195 Ill. App. 3d 757, 142 Ill. Dec. 474, 552 N.E.2d 1215 (1990), the court found a sufficient allegation of irreparable harm in the closing of a mall tenant because each mall tenant contributes uniquely to the mall's "total tenant mix" and operates to attract customer traffic to the common area. In Lincoln Tower Corp. v. Richter's Jewelry Co., Inc., 152 Fla. 542, 12 So. 2d 452 (1943), the court found that because the interests of the landlord and tenants were inextricably bound together, it would be impractical, if not impossible, to establish the landlord's damages. See also Madison Plaza, Inc. v. Shapira Corp., 387 N.E.2d 483 (Ind.App. 1979) (trial court found such irreparable injury); Grossman v. Wegman's Food Markets, Inc., 43 A.D.2d 813, 350 N.Y.S.2d 484 (1973) ("There is also evidence, however, that a food store will draw people to a shopping center who will also patronize the other stores and that while the food shop is closed the business of the other stores will be diminished. There might well be damage to the other tenants while the food store remains vacant, and, if the vacancy extends over a long period of time, it is possible that a tenant might also vacate its premises with resulting damage to plaintiffs.").
Although it might be easier to attract a replacement anchor if the Ayres store continues to operate, a preliminary injunction would not spare the mall all of this injury. MassMutual's expert conceded that tenant uncertainty will remain even if the Ayres store is ordered to remain open temporarily, and MassMutual's planned redevelopment of Scottsdale will remain temporarily on hold. Thus, MassMutual may continue to suffer losses even during the life of the preliminary injunction it seeks. Nonetheless, while permanency would lessen the injury, MassMutual will suffer immeasurable damages without the preliminary injunction.
B.
To be entitled to injunctive relief, MassMutual also must show that the irreparable harm it will suffer in the absence of a preliminary injunction is greater than the irreparable harm ADG would suffer as a result of the requested preliminary relief. Brunswick Corp. v. Jones, 784 F.2d 271, 273-274 (7th Cir.1986). Evidence produced at the hearing clearly establishes that a *1418 court-ordered reopening of the Scottsdale store would cost ADG considerable money.
1.
Reopening the Scottsdale Ayres store will require expenditures of approximately $2.75 million in direct and immediate start-up costs. Obtaining new merchandise, fixtures, and employees to put the store in the condition that existed before the closing was announced will take anywhere from two to six months. The store will have no merchandise, aside from any remaining "distressed" merchandise, to sell for a period of six to eight weeks. It will take additional weeks or months to restock and reestablish the Ayres store as a full line department store. Fixtures and visual fixtures will have to be ordered. Leased operationsdepartments ADG leases to others rather than operating itself, such as a beauty salon, men's shoes, Ticketmaster, and fine jewelrywould have to be reestablished. ADG has ordered no new inventory for the Scottsdale store. If a preliminary injunction is issued, the Scottsdale Ayres store must be virtually recreated from scratch.
Low inventory levels customarily maintained at other stores and the lack of sufficiently detailed store inventory records would preclude the use of other stores' inventory for a more rapid restoration of inventory at the Scottsdale store. ADG offered early retirement benefits to its employees under the consolidation plan; only four Scottsdale employees agreed to early retirement, but employees at other stores have taken early retirement, allowing ADG to place Scottsdale employees at those stores. Accordingly, even if former Scottsdale salespeople return to operate a reopened Ayres store at Scottsdale, ADG will have to hire additional employees elsewhere.
Further, the larger consolidation plans involving May's Famous-Barr stores have proceeded upon the assumption that the Scottsdale store would be closed. Accordingly, no arrangements have been made for merchandise buyers to stock a Scottsdale store; as of February 1, the responsibility for buying inventory will be transferred from ADG's old Indianapolis Ayres headquarters to St. Louis, and the great majority of the buyers in St. Louis are unfamiliar with the Scottsdale store's history and market. Presently, no buying for the Scottsdale store is occurring; ADG presently is buying merchandise for delivery to other stores in May or June. ADG's Ayres distribution system also is being transferred from Indianapolis to St. Louis, where no arrangements have been made for distribution to Scottsdale. Buying and distribution arrangements have been made in St. Louis for the University Park store.
Thus, a court-ordered reopening of the Scottsdale Ayres store would cost ADG approximately $2.75 million. That would not, of course, be the sole cost of reopening, because ADG would continue to incur the expenses associated with the operation of a 110,000 square foot department store; employees would have to be paid, health insurance provided, etc.
An operating Scottsdale store also would provide ADG with income, and many of the expenses set forth above would constitute the cost of doing business. While ADG would spend money on inventory, some or all of that inventory will be sold at a price higher than its cost. While new fixtures would have to be purchased, ADG would use those fixtures in its business; many of the old fixtures are in use in other stores. Accordingly, although these expenditures are outlays ADG would not have to make in the absence of the requested preliminary injunction, many of the expenditures will prove to be revenue-producing to some extent.
Further, many of the expenditures will have tax benefits to ADG; in light of the tax and depreciation benefits, ADG would recoup the entire start-up cost if the store made a profit of $340,000. In 1990, the store showed a $320,000 profit. Even assuming sharply reduced gross sales in light of the two to six months needed to reopen, it appears likely that ADG would recoup the start-up costs in two to three years.
2.
If preliminary injunctive relief is granted and ADG ultimately prevails at the trial on *1419 the merits, the damage to ADG resulting from the preliminary injunction will be easily measurable. Apart from continuing rental obligations under the lease, all of ADG's expenditures for the Scottsdale store will have resulted from the court-ordered reopening. If ADG loses money, no future fact-finder will have to divine whether it did so because of Scottsdale's poor recent history, or because of Scottsdale's poor competitive position in comparison to University Park, or because of the overall economy, or because of the mall owner's poor performance in attracting tenants. ADG would not have been exposed to any of those concerns but for the preliminary injunction.
A court balances the irreparable harm to the respective parties on a preliminary injunction motion. As ADG noted in arguing that MassMutual had not shown irreparable harm, purely economic loss ordinarily is not irreparable; an award of damages can make the party whole. The same argument applies with peculiar force to a defendant's claim of irreparable harm from the issuance of the injunction:
A harm so purely pecuniaryso readily quantifiablefrom the grant of a preliminary injunction could in any event be prevented by requiring the plaintiff to post an injunction bond or equivalent security in accordance with Rule 65(c) of the Federal Rules of Civil Procedure, which makes such security mandatory....
Cronin v. U.S. Department of Agriculture, 919 F.2d 439, 445 (7th Cir.1990); see also Ohio Oil Co. v. Conway, 279 U.S. 813, 815, 49 S. Ct. 256, 257, 73 L. Ed. 972 (1929).
Accordingly, in balancing the harm MassMutual would suffer absent injunctive relief and the harm ADG would suffer through injunctive relief, MassMutual's immeasurable injuries are not to be weighed against ADG's easily quantifiable monetary injuries. Artist M. v. Johnson, 917 F.2d 980, 991 (7th Cir.1990), cert. granted sub nom. Suter v. Artist M., ___ U.S. ___, 111 S. Ct. 2008, 114 L. Ed. 2d 97 (1991). ADG has shown that a preliminary injunction would require it to make expenditures totalling millions of dollars, expenditures that it otherwise would not make. That showing, however, does not affect whether the injunction should issue. Under the law of this circuit, it affects only the amount of the bond to be required as a precondition for the injunction.
3.
ADG also contends that it would suffer nonmonetary damage to its reputation if it should be forced to reopen. The court is unpersuaded. ADG already has damaged the Ayres reputation by declaring its intention to walk out on the Scottsdale Mall. The court does not believe that reopening the Scottsdale store will cause any greater damage to ADG's reputation with its Ayres customers.
4.
MassMutual has shown that it will suffer substantial and irreparable injury in the absence of a preliminary injunction. ADG will suffer no injury that cannot be readily quantified and insured against by an appropriate bond. Accordingly, the balance of harms weighs heavily in MassMutual's favor.
C.
To be entitled to a preliminary injunction, MassMutual also must demonstrate a reasonable likelihood of success on the merits. Kinney v. Pioneer Press, 881 F.2d 485, 491 (7th Cir.1989); Glen Theatre, Inc. v. Civil City of South Bend, 726 F. Supp. 728, 730 (N.D.Ind.1985). If no likelihood of success on the merits is shown, the preliminary injunction should be denied. Kellas v. Lane, 923 F.2d 492 (7th Cir.1991); Somerset House, Inc. v. Turnock, 900 F.2d at 1015. A plaintiff need not, however, depending upon the severity of the harm it will suffer if the injunction does not issue, demonstrate a high probability of success on the merits of its claim; it may suffice that the plaintiff's chances are better than negligible. Ping v. National Education Ass'n, 870 F.2d 1369, 1371 (7th Cir.1989). The more heavily the balance of harm weighs in the plaintiff's favor, the lower the degree of likelihood of success on the *1420 merits that is required of the plaintiff. Thornton v. Barnes, 890 F.2d 1380, 1384 (7th Cir.1989). As noted in the previous section, the balance of irreparable harms weighs heavily in MassMutual's favor. MassMutual has demonstrated a realistic likelihood of success on the merits.
ADG makes several challenges to the sufficiency of MassMutual's showing on this element. ADG contends that the lease creates no obligation to continue the store's operation. It also argues that MassMutual cannot prevail on the merits of its claim for permanent injunctive relief because of the traditional reluctance of courts of equity to order specific performance of commercial contracts or to enter orders requiring long-term judicial supervision.[22]
1.
In 1971, the parties' predecessors entered into a 30-year contract. MassMutual contends, and Ayres denies, that the lease requires ADG to continue to operate its Ayres store at Scottsdale. In § 6.01 of the lease, ADG's predecessor agreed to use the building during the lease's continuance for the purpose of operating a merchandising business of the type it generally operates, and to do so in a high class manner.[23] In § 6.02 of the lease, ADG's predecessor agreed to be open for business when Wards and most other mall tenants are open, and to conduct its business with an eye toward the mall's unified and compatible operation.[24] In § 6.04 of lease, ADG's predecessor agreed to spend at least 2% of its annual gross sales on advertising, making specific reference to the Scottsdale store, and agreed to advertise concerning shopping center events sponsored by the merchants' association or some comparable entity.[25] Section 18.01 of the lease requires ADG to join, and remain in good standing in, the merchants' association.[26]*1421 In § 6.08 of the lease, MassMutual's predecessor gave ADG the right of approval of any tenant who sought to lease more than 20,000 square feet, and agreed not to allow such a tenant (other than Ayr-Way, now Target) to operate a general merchandise discount store.[27]
In § 12.01 of the lease, ADG's predecessor agreed not to sublet its store or assign the lease without the landlord's permission, except to a business successor.[28] Section 17.01 of the lease provides that a default shall be deemed to have occurred if ADG should abandon the building.[29]
As noted above, Indiana law governs the substantive issues presented by the parties. Under Indiana law, a court must attempt to interpret a contract so as to give effect to the intent of the parties at the time they form the contract. The parties' intentions are to be determined from the contract's four corners. Estate of Saemann v. Tucker Realty, 529 N.E.2d 126, 129 (Ind.App.1988). If the parties' intentions can be ascertained clearly by the contract language, Indiana courts recognize and enforce that agreement. Myers v. Myers, 560 N.E.2d 39, 43 (Ind.1990). The court must accept an interpretation that harmonizes the contract's provisions, as opposed to one which causes conflict between provisions. First Federal Savings Bank of Indiana v. Key Markets, Inc., 559 N.E.2d 600, 603 (Ind.1990).
Indiana recognizes the existence of express or implied lease covenants requiring a tenant to operate a store continuously and actively. An implied covenant may be found if (1) the obligation arises from the parties' presumed intention as gathered from the contract's language, or appears, from the contract as a whole, to be indispensable to give effect to the parties' intent; and (2) it is so clearly within the parties' contemplation that they deem it unnecessary to express it. Casa D'Angelo, Inc. v. A & R Realty, 553 N.E.2d 515, 521 (Ind.App.1990).
Mr. Vaughan of ADG testified that the lease lacks the "magic words" necessary to create an obligation of continuous use of the premises; he testified that a reading of the entire lease allows one to glean ADG's right to terminate its occupancy after the lease's first five months of operation. Other Scottsdale tenants' leases, including the lease of Lerner Shops,[30] expressly require the tenants to operate stores continuously; the Ayres lease contains no such express language. ADG contends that §§ 6.01 and 6.02 are simply "purpose and use" clauses that only identify and limit the uses to which ADG may put the premises, and are not "continuous use" clauses. ADG argues that those provisions merely prohibit ADG from using the property for any other purpose, and do not require ADG to use the property for *1422 the identified purposes for the entire lease term.
ADG argues that in Casa D'Angelo, Inc. v. A & R Realty Company, 553 N.E.2d 515, the Indiana Court of Appeals found that language similar to that of §§ 6.01 and 6.02 did not require continuous use of commercial premises. ADG is correct, but only to a point. In Casa D'Angelo, the court held that the trial court should have granted summary judgment to the tenant on the landlord's claim for damages arising from the breach of an alleged "continuous use" provision. As ADG argues, the language at issue in Casa D'Angelo was similar to that found in the lease at issue here, but it was not identical:
Use. Lessee shall use the premises for the operation of a restaurant facility and for no other purposes without first obtaining the written consent of Lessor thereof.
* * * * * *
Business Hours. Lessee shall keep the leased premises open for business during normal business hours for a restaurant.
553 N.E.2d at 520. The court of appeals agreed with the tenant that the provisions merely restricted the tenant's use of the property and did not affirmatively require it to operate a restaurant. The Casa D'Angelo clause did not contain the language, "during the continuance of this Lease", found in § 6.01 of the Ayres-Scottsdale lease.
Resort to cases from other jurisdictions is not helpful on this issue. The Ayres-Scottsdale lease does not contain anything as explicit as the clause at issue in New Park Forest Associates II v. Rogers Enterprises, Inc., 195 Ill.App.3d 757, 142 Ill. Dec. 474, 552 N.E.2d 1215 (1990) ("Tenant shall not vacate or abandon the Premises at any time during the Term"), but §§ 6.01 and 6.02 are more explicit than the clause found to require continuous use in Ingannamorte v. Kings Super Markets, Inc., 55 N.J. 223, 260 A.2d 841, 40 A.L.R. 3d 962 (1970) ("to be used and occupied only for a supermarket for the sale of all kinds of foods, groceries, vegetables and refreshments, expressly excluding the sale of drugs, cosmetics, hardware, stationery, dishes, and on the premises bakery").
More importantly, the Casa D'Angelo court declined to decide whether the "business hours" provision of the lease established an obligation of continuous use. The landlord sought damages, and could establish damages only if the lease contained an implied covenant to generate percentage rent. The court specifically noted that the landlord did not rely on the restaurant's operation to enhance the operation and value of its surrounding property; the landlord had only one other tenant, a fabric store that competed for limited parking spaces. 553 N.E.2d at 522. Thus, Casa D'Angelo differs from this case, both because the court looked for an implied covenant to generate percentage rent rather than a covenant of continuous use, and because the facts upon which the decision was based differed markedly from the circumstances surrounding one of three anchor stores of a large shopping mall.
Nonetheless, the Casa D'Angelo court's analysis provides considerable guidance. In determining the tests by which the case would be judged, the court wrote,
Generally, courts in other jurisdictions have refused to find an implied covenant to generate percentage rent or to continuously operate, when the agreed base rent is substantial.... Conversely, when the base rent is insubstantial, the court have found such implied covenants.... Although substantial rent has been defined as more than nominal rent "the modern day equivalent of a peppercorn"[,] the current trend is to define substantial rent as a fair market value for the premises. However, the burden of showing that the agreed base rent is not a fair rental value is upon the lessor....
Finally, a few courts have found an implied covenant to generate percentage rent or to continue operation, even when the base rent is insubstantial, where the provisions of the lease and the surrounding circumstances at the time of its execution show that the parties intended the payment of continuous rent or the continuous *1423 operation of the tenant's business to have been a substantial consideration for the lease.
553 N.E.2d at 521.
ADG's rent is insubstantial in 1992. ADG pays a monthly rent of $21,170, or $254,000 per year, for its 107,900 square foot store, about $2.32 per square foot. That rental payment has remained unchanged since occupancy began in 1973 and will continue unchanged until 2004. Perhaps due to lack of discovery, no evidence was introduced concerning the present fair rental value of other stores in Scottsdale or of stores of comparable size at other shopping malls. Nonetheless, the uncontradicted testimony of Scottsdale Mall property manager Jeffrey Taylor indicates that ADG's rental obligation is well below market value.
More importantly, the lease provisions and the surrounding circumstances at the time of the lease's execution support the proposition that the parties contemplated continued use of the Ayres building. The developer personally negotiated the lease with ADG's predecessor. The lease allowed ADG's predecessor to direct the construction of its building to its specifications, provided ADG's predecessor with a limited veto right over other mall tenants, and rendered its rental payments inflation-proof into the twenty-first century. On the basis of the record before the court, the proposition that the mall developers and financiers would construct a 109,700 square foot building to Ayres' specifications, as part of a 658,000 square foot shopping mall, with the understanding that Ayres could abandon the mall any time after five months had elapsed, is preposterous.
ADG argues that courts do not imply a covenant of continuous use in the absence of an agreement to pay percentage rent. The quoted language from Casa D'Angelo strongly suggest that Indiana law recognizes no such rule. Further, the anchor's role in a shopping mall serves a function similar to an obligation to pay percentage rent. Although the anchor itself may have no such obligation, its operation populates the mall with shops and shoppers, producing additional income to the landlord. Should the anchor cease doing business at the mall, the effect to the landlord is the same: no payments are received in excess of the base rent, whether because the anchor tenant has no income on which a percentage rent provision could apply, or because the mall's income wanes with the other shops and shoppers due to the anchor's absence.
Mr. Vaughan opined at the hearing that "nobody in their right minds" would agree to be bound to operate for thirty years. The parties plainly agreed to something, however, and the surrounding circumstances strongly suggest that it was thirty years of continuous use.
MassMutual has satisfied its burden of demonstrating a reasonable likelihood of success in ultimately establishing that ADG is subject to an implied covenant of continuous operation for the duration of the lease.
2.
ADG argues that equity's traditional reluctance to grant specific performance of contracts and to undertake judicial supervision for lengthy periods of time make it unlikely that MassMutual will succeed on the merits of its complaint for a permanent injunction.
At the hearing, ADG analogized its lease to a contract for personal services. Indiana recognizes a general rule against preliminary injunctions to require enforcement of a contract for personal services. See, e.g., State ex rel. Cleary v. Board of School Commissioners of City of Indianapolis, 438 N.E.2d 12, 14 (Ind.App. 1982). This is a dubious analogy when the party to be compelled is a corporation; notions of indentured servitude become inapplicable. Even so, the rule with respect to contracts for personal services is not an absolute prohibition; trial courts have discretion to balance that general rule in determining whether a preliminary injunction is appropriate. Board of Trustees v. Benetti, 492 N.E.2d 1098, 1104 (Ind.App.1986). The general rule commonly yields to equitable principles, for example, in personal *1424 service contracts and franchise agreements that include covenants not to compete. See, e.g., Hacienda Mexican Restaurant of Kalamazoo Corp. v. Hacienda Franchise Group, Inc., 569 N.E.2d 661 (Ind.App. 1991); Unishops, Inc. v. May's Family Centers, Inc., 399 N.E.2d 760 (Ind.App. 1980).
Instead, the proper inquiry is whether suit for monetary relief can provide adequate relief. See, e.g., Unishops v. May's Family Centers, 399 N.E.2d at 765; Welcome Wagon v. Haschert, 125 Ind.App. 503, 508, 127 N.E.2d 103, 106 (1955). This is a logical approach. Were it otherwise, indeterminate economic damage never could form the basis for injunctive relief.[31] Courts never would enjoin actual or anticipatory breaches of covenants not to compete, nor enjoin upstream riparian owners from continuing to pollute a river to the detriment of downstream owners. See Weston Paper Co. v. Pope, 155 Ind. 394, 57 N.E. 719 (1900) (enjoining pollution).
Indiana has not gone so far, and has recognized instead that injunctive relief is appropriate if it is more practicable, efficient, or adequate than relief afforded by law. Porter Memorial Hospital v. Malak, 484 N.E.2d 54, 62 (Ind.App.1985). Monetary relief may be impracticable, inefficient, or inadequate for a number of reasons: the damages may be speculative in amount; disputes over causation may render the fact of injury unclear; the amount of damages may be potentially excessive; the injury may continue over so great a period of time that multiple damages suits would be needed. Indiana law requires that the remedy at law be "as plain, complete and adequate or, in other words, as practical and efficient to the ends of justice and its prompt administration as the remedy in equity." McKain v. Rigsby, 250 Ind. 438, 444, 237 N.E.2d 99, 103 (1968). As discussed above, the uncertainty of proof concerning damages renders a suit for monetary damages an inadequate remedy for MassMutual.
ADG's stronger argument relies upon the reluctance of courts of equity to enter injunctions that will require long-time judicial supervision. Trial courts must tend to the needs of all litigants; a discretionary act that will distract a court from other cases for many years should not be taken lightly. Many other courts have relied upon this rule of discretion in declining to enter injunctions against departing commercial tenants.
In 8600 Associates v. Wearguard Corp., 737 F. Supp. 44 (E.D.Mich.1990), the court denied injunctive relief on this ground, notwithstanding that the lease specifically consented to injunctive relief. The court stated that cases denying injunctive relief reflect the modern trend and the majority rule.[32] In New Park Forest Associates II v. Rogers Enterprises, Inc., 195 Ill.App.3d 757, 142 Ill. Dec. 474, 552 N.E.2d 1215 (1990), the court assumed that the plaintiff had pleaded irreparable harm from the alleged breach of a clear covenant of continuous use, and further assumed that the balance of harms favored the plaintiff, but denied a preliminary injunction because of Illinois law's concern over long-term supervision. In Grossman v. Wegman's Food Markets, Inc., 43 A.D.2d 813, 350 N.Y.S.2d 484 (1973), the court conceded the possibility of damage to the mall and other tenants due to loss of customer traffic, but denied injunctive relief based on New York's reluctance *1425 to grant specific performance when such an order would require long-term judicial supervision.
Madison Plaza, Inc. v. Shapira Corp., 387 N.E.2d 483 (Ind.App.1979), provides a clear lesson on this general equitable principle's operation under Indiana law. A shopping center sought to enjoin the closing of a retail store that occupied 20% of the center's leasable space. The trial court found irreparable harm of the sort demonstrated by MassMutual in this case, but denied the requested injunction, in part because "A decree of specific performance would require the Court to maintain constant supervision over a long period of time of acts involving taste, skill, judgment and technical knowledge in order to enforce the decree." 387 N.E.2d at 486. The court of appeals affirmed the injunction's denial, but made clear that the principle upon which the trial court relied is one of discretion, not an absolute bar to injunctive relief:
In the case at bar we must search for an abuse of discretion in denying an injunction. An abuse of judicial discretion `... is an erroneous conclusion and judgment, one clearly against the logic and effect of the facts before the court or against the reasonable, probable and actual deductions to be drawn therefrom.' ... Although Judge Sullivan made the following statement ... in the context of reviewing a default judgment, the statement is appropriate also in the case at bar:
... the fact that another trial court might not have abused its discretion by granting ... relief on these facts, does not necessarily mean that the court below abused its discretion by denying relief.
Due to the lengthy period of time involved, the nature and size of Shapira's business operation, and the detailed nature of the relief sought by Madison Plaza in its complaint, we cannot say that the Jefferson Circuit Court's judgment is clearly against the logic and effect of the facts before the court. We hold that the trial court did not abuse its discretion when it denied the equitable relief sought by Madison Plaza.
387 N.E.2d at 487. Accordingly, while Indiana law requires a trial court to weigh the burden of long-term supervision as a factor affecting the grant of injunctive relief, the weighing itself is a matter within the trial court's discretion.
In Dover Shopping Center, Inc. v. Cushman's Sons, Inc., 63 N.J.Super. 384, 164 A.2d 785 (1960), the plaintiff eliminated the equitable concern altogether by waiving judicial supervision, relying on the defendant's self-interest as assurance of proper performance. MassMutual presents a variant on this position. Without waiving the option of judicial proceedings to enforce the lease's provisions, MassMutual argues that ADG's self-interest in maintaining its image among Ayres customers would reduce the likelihood of a need for judicial supervision. ADG maintains several other Ayres stores in Indiana, including one in this market. Ayres has earned an enviable reputation among Indiana shoppers, and it is unlikely that ADG would jeopardize that image by operating a store below the standards required by the lease.
ADG points to many areas of potential dispute over the lease provisions. For example, the lease requires the Ayres store to stock all types of merchandise; ADG inquires whether that provision requires it to carry "better" merchandise as it does in other stores, or whether it would be allowed to stock only Notre Dame sweatshirts without also stocking Indiana University sweatshirts. ADG also points to possible disputes over building maintenance (whose responsibility is it to repair roofs, or to handle water damage?), merchant association activities (how are promotions organized if only half the storefronts are open?), and restrictions on freestanding kiosks (is a Christmas display a kiosk?).
ADG's identification of potential topics for judicial resolution is imaginative, but the court does not believe it likely that such issues will find their way into the courtroom. The lease provisions have had the opportunity to produce dispute and litigation *1426 for the eighteen years in which ADG and its predecessor have operated its Scottsdale store, but ADG cited no examples of prior disputes about the Scottsdale store having produced litigation. Imposition of a temporary injunction may change the situation: MassMutual will be armed with the option of seeking an order in contempt, an option not wielded by predecessor landlords; ADG may think it in its interest to raise such disputes during the pendency of a temporary injunction, to strengthen its argument on this ground against a permanent injunction. Nonetheless, the history of the Scottsdale store presents little reason to believe the court will be distracted from its work on a frequent basis over the years remaining on the lease.
MassMutual has made a sufficient showing that it has a reasonable chance of success on the merits, notwithstanding the equitable doctrine concerning long-term supervision. Again, MassMutual need not establish its right to prevail; in light of the heavy balance of irreparable harm in its favor, it need only show that its chances are more than negligible. It has done more than that.
D.
Finally, MassMutual must demonstrate that the injunction will not harm the public interest. Each side invokes the public interest in its support.
MassMutual presented the testimony of the South Bend city councilman who represents the councilmanic district in which the Scottsdale Mall is located. He reported that his constituents, like he, prefer the convenience of a nearby mall containing an Ayres store. Although University Park is but a few miles away, vehicular and train traffic make the drive much longer than the citizenry would like. Further, the Ayres closing poses substantial risk to the continued operation of other specialty shops at Scottsdale; that risk, in turn, threatens the jobs those shops presently provide. Maintaining an operating Ayres store improves the likelihood of Scottsdale's eventual success, even if only through the improved chances of replacing the Ayres store with another anchor store.
ADG notes that the Scottsdale store's closing will not deprive South Bend shoppers of an Ayres store. Further, court-ordered operation of the store may disserve the efficient operation of a business, and certainly will perpetuate a partnership of unwilling partners.
The balance of public interests cannot be weighed with certainty, but the court need not do so for purposes of deciding the preliminary injunction motion. The court need only determine whether the preliminary injunction would harm the public interest. On balance, the harm to the public interest is at least offset by the benefits to the public interest.
E.
MassMutual has met its burden of satisfying each of the four factors required for issuance of an injunction. Accordingly, whether injunctive relief should be granted rests within the court's discretion. Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429 (7th Cir.1986).
1.
ADG argues that the preliminary injunction should be denied because it seeks more than maintenance of the "status quo" pending the case's final determination. MassMutual does not seek preservation of a store stocked with scattered "distressed" merchandise (the situation existing at the time of the hearing) or the preservation of a store in the process of closing (the situation existing at the time of the suit's filing). MassMutual seeks restoration of a condition the regular operation of an Ayres store that had ceased to exist by the time suit was filed.
ADG is correct that, under both Indiana and federal law, a preliminary injunction is intended to preserve the "status quo" until an opportunity can be had for final determination of the case. F.T.C. v. Weyerhaeuser Co., 648 F.2d 739, 741 (7th Cir.1981); State Board of Public Welfare v. Tioga Pines Living Center, Inc., 575 *1427 N.E.2d at 306. State and federal law also recognize, however, that the status quo need not consist of a photographic replication of the circumstances existing at the moment suit was filed. If the defendant has proceeded with a course of action known to be disputed, courts of equity may compel a defendant to correct injury already inflicted by defining the status quo as the last peaceable uncontested status that existed before the dispute arose. Washington Capitols Basketball Club, Inc. v. Barry, 419 F.2d 472, 476 (9th Cir. 1969); Rees v. Panhandle Eastern Pipe Line Co., 176 Ind.App. 597, 605, 377 N.E.2d 640, 646 (1978); Mounce v. Bostick, 531 S.W.2d 887 (Tex.Civ.App.1976); Steggles v. National Discount Corp., 326 Mich. 44, 39 N.W.2d 237, 240, 15 A.L.R. 2d 208 (1949); see generally 11 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2948 (1973).
ADG knew as early as November 25 of MassMutual's intent to contest the closure decision in court, yet proceeded with its plans for closing the Scottsdale store. The cost of retracing the steps toward closure certainly weigh on the discretionary determination of the motion for preliminary injunction, but the steps themselves constitute no prohibition against injunctive relief.
ADG also suggests that MassMutual is guilty of laches, which should lead the court to deny the request for injunctive relief. Although the sixty-day delay between ADG's announcement and the filing of suit affect the cost of the injunction to ADG, the court does not agree that laches defeats the motion for preliminary injunction. The court cannot find that MassMutual unreasonably delayed filing suit. MassMutual first sought, through Dial, to work with ADG toward a solution that would include the Scottsdale Ayres store's continued operation. Perhaps through no fault of ADG's, but certainly without unreasonable delay by MassMutual, the first meeting could not be held until November 25, a month after the announcement. MassMutual then offered ADG thirty additional days before filing suit to allow a solution to be found. The court does not mean to imply that ADG had a duty to negotiate the store's continued operation, but the court declines to hold unreasonable MassMutual's attempt to seek a solution before filing suit. A finding of laches on such facts would impel every disputant to immediate litigation, without first seeking amicable settlement, for fear of being accused of undue delay. The court does not understand such a result as being consistent with the efficient use of limited judicial resources.
Accordingly, the court does not find that the present circumstances at Scottsdale, or the reasons for those circumstances, preclude issuance, in the court's discretion of the preliminary injunction sought by MassMutual.
2.
MassMutual has made the showings it must make to vest the court with discretion to issue a preliminary injunction, and ADG has failed in its efforts to demonstrate a bar to such relief. It remains to determine whether the court's discretion should be exercised in MassMutual's favor.
The question is not rhetorical. A preliminary injunction "is an exercise of very far-reaching power, never to be indulged in except in a case clearly demanding it." Schwinn Bicycle Co. v. Ross Bicycles, Inc., 870 F.2d 1176, 1181 (7th Cir.1989). The court recognizes as well that mandatory preliminary injunctions compelling a party to take affirmative action "are cautiously viewed and sparingly issued." Jordan v. Wolke, 593 F.2d 772, 774 (7th Cir.1978). Further, no court ever has entered an injunction of the type sought in, and under the circumstances of, this case. Careful consideration is appropriate when a court is asked to do, in the exercise of discretion, what no other court has done. Recognition of the limited standard of review available on appeal heightens this obligation. See National People's Action v. Village of Wilmette, 914 F.2d 1008, 1011 (7th Cir. 1990); Thornton v. Barnes, 890 F.2d at 1385; Gould v. Lambert Excavating, Inc., 870 F.2d 1214, 1217 (7th Cir.1989).
*1428 Injunctive relief was ordered and affirmed in Lincoln Tower Corp. v. Richter's Jewelry Co., Inc., 152 Fla. 542, 12 So. 2d 452 (1943), although the opinion leaves it unclear whether the tenant was enjoined to keep its store open during hours in which it wanted to close for want of sufficient help, or to keep the store from closing altogether. The tenant agreed that the lease's "business hours" provision was valid. The court found that the interests of the landlord and tenants were inextricably bound together and that it would be impractical, if not impossible, to establish the landlord's damages, so the landlord's remedy at law was inadequate. 152 Fla. at 544, 12 So.2d at 453. Again, however, it cannot be determined from the opinion whether the court ordered a business kept open in the face of the business owner's desire to close it.
Injunctive relief was also ordered and affirmed on appeal in Dover Shopping Center, Inc. v. Cushman's Sons, Inc., 63 N.J.Super. 384, 164 A.2d 785 (1960). The trial court had ordered that the tenant reopen the store, maintain required hours, put up an outside sign, and have a manager or salesperson in charge. The landlord's remedy at law was deemed inadequate because of the difficulty in measuring damages from withdrawal of one member of a semi-cooperative enterprise like a shopping center. Two factors distinguish the Dover Shopping Center case from the Scottsdale case, however. First, the tenant had consented to injunctive relief in the lease: "In the event of a breach or threatened breach by Tenant of any of the covenants or provisions hereof, Landlord shall have the right of injunction". 63 N.J.Super. at 393, 164 A.2d at 790. Second, the court found that the balance of harms outweighed the traditional reluctance to engage in long-term supervision because the store required only one salesperson and the landlord waived supervision. The court noted that the "modern" tendency is to grant specific performance where breach is clear and difficulties of enforcement are not great, particularly when compared with inadequacy of damages at law. 63 N.J.Super. at 394, 164 A.2d at 791.
Here, as noted in previous sections, ADG did not specifically consent to injunctive relief, the Ayres store requires far more than a single salesperson, and MassMutual has not waived judicial supervision altogether.
The parties have not cited any other case in which injunctive relief was granted under any remotely similar circumstances. Injunctive relief has been denied in several reported cases, relying on a variety of grounds; as will be seen, each of those cases differ from the Scottsdale situation, as well.
In CBL & Associates, Inc. v. McCrory Corp., 761 F. Supp. 807 (M.D.Ga.1991), the court denied a preliminary injunction on two grounds. First, the court noted the difficulty of long-term judicial oversight. Second, the court concluded that the plaintiff had not shown a likelihood of success on the merits. The store was not an anchor and occupied less than 2% of the mall's leasable square feet. Thus, the only possible loss to the landlord would consist of minimum rent; percentage rent was not likely to be lost from a store that had lost money in last two years. 761 F.Supp. at 808-809. Here, the court has found that MassMutual has established a likelihood of success on the merits of its claim that the loss of the anchor store will cause it immeasurable harm.
In Center Development Venture v. Kinney Shoe Corp., 757 F. Supp. 34 (E.D.Wis. 1991), the court denied preliminary injunctive relief on four bases. First, the landlord had not demonstrated a likelihood of success on its claim that the lease included an implied covenant of continuous use. Second, the landlord's remedy at law was adequate, because the court rejected the argument that a non-anchor "vacancy in the mall results in an exponential decrease in business and mall attraction." 757 F.Supp. at 36. Third, the landlord had not shown that the tenant's departure would threaten the mall operation's existence. Finally, the court found that the tenant's shop was not so specialized as to be irreplaceable. This case involves an anchor rather than a specialty shop. The court *1429 has found a substantial likelihood of implying a covenant of continuous use, MassMutual's damages are irreparable, and the closing of the Ayres departure would threaten the mall's operation. 757 F.Supp. at 36.
In 8600 Associates v. Wearguard Corp., 737 F. Supp. 44 (E.D.Mich.1990), the court denied injunctive relief on three bases, although the lease (like that in Dover Shopping Center) provided for injunctive relief. First, the court relied on the burden of continuous supervision, noting that cases denying injunctive relief reflected the modern trend and the majority rule. Second, the court concluded that the other tenants' loss of business was purely economic, so an adequate remedy at law existed. Third, the court expressed doubt that the defendant tenant, a non-anchor that occupied about 1% of the mall and had been losing business, constituted a "draw" to the shopping center. 737 F.Supp. at 46. In contrast, the court has found that the Ayres store is a "draw" to Scottsdale, and that the loss to the mall, while economic, cannot be measured for purposes of a damages award.
In New Park Forest Associates II v. Rogers Enterprises, Inc., 195 Ill.App.3d 757, 142 Ill. Dec. 474, 552 N.E.2d 1215 (1990), injunctive relief was denied notwithstanding facts very favorable to the plaintiff-landlord. The lease expressly provided, "Tenant shall not vacate or abandon the Premises at any time during the Term." 195 Ill.App.3d at 759, 142 Ill.Dec. at 475, 552 N.E.2d at 1216. The court assumed that the landlord had pleaded irreparable harm because each mall tenant contributes uniquely to the tenant mix and operates to attract customer traffic to the common area, and further assumed that the balance of harms favored the landlord because the defendant-tenant was making money. 195 Ill.App.3d at 762, 142 Ill.Dec. at 477, 552 N.E.2d at 1218. Nonetheless, the court denied injunctive relief because of Illinois courts' strong stand against long term judicial supervision: "New Park Forest does not present a likelihood of success on the merits because Illinois courts will not specifically enforce a long term lease of this nature." 195 Ill.App.3d at 765, 142 Ill.Dec. at 479, 552 N.E.2d at 1220. As noted with respect to Indiana's Madison Plaza case in Part II-C-2 of this opinion, Indiana's rule concerning long term supervision appears to be more flexible.
In Grossman v. Wegman's Food Markets, Inc., 43 A.D.2d 813, 350 N.Y.S.2d 484 (1973), the court affirmed the trial court's denial of injunctive relief. The appellate court conceded the possibility of damage to the mall and other tenants from the loss of customer traffic, but based its ruling on New York courts' reluctance to grant specific performance when such decrees would require long-term judicial supervision. The case appears to be effectively indistinguishable from Madison Plaza; as noted in Part II-C-2 of this opinion, language in the Madison Plaza opinion suggests that the granting of such an injunction would have lain within the trial court's discretion, as well.
Apart from Indiana's Madison Plaza case, the parties cited no other case addressing the propriety of injunctive relief to enforce a claimed continuous use provision in a commercial lease.[33]
If the remedy sought by the plaintiff is unprecedented, it may be because the defendant's *1430 conduct is unprecedented. At the hearing, ADG presented considerable instances of anchor stores departing shopping malls due to bankruptcy or other reasons, but cited no instance in which an anchor walked away with twelve years remaining on a lease,[34] simply because the store was insufficiently profitable and the store wanted to do business elsewhere. Perhaps such conduct is more commonplace than this record reflects, but if MassMutual's proposed decree is extraordinary only because the conduct it seeks to enjoin is extraordinary, placing a higher burden on MassMutual would be inappropriate.
Nonetheless, it is MassMutual that bears the burden of persuading the court to grant its request for a preliminary injunction. It seems that a party who seeks unprecedented relief should be required to make a stronger case for relief than a party who seeks a more familiar sort of decree.
Even by this higher standard, the court believes that MassMutual has demonstrated its entitlement to preliminary injunctive relief:
a. MassMutual has demonstrated a likelihood of very significant irreparable harm: the closing of the Ayres store likely will reduce its mall, valued at $17.3 million less than a year ago, to two widely separated anchor stores, each surrounded by a small cluster of specialty shops (with one such cluster located on a single level), with an abyss of vacant space between them; the challenge of isolating ADG's actions from other economic factors as a cause of the mall's deterioration for purposes of a damages award will be insurmountable. Based on the record presently before the court, it appears that judicial economy will be threatened more greatly by an effort to determine such damages than by the specter of continuing, long term judicial supervision of the Ayres store.
b. The risk of irreparable harm to ADG is not simply less than the risk to MassMutual; it is nonexistent. Any damage to ADG arising from an injunction later vacated will consist of easily quantified monetary loss. Rule 65(c) exists to protect against such risks of loss. Accordingly, the balance of irreparable harms is entirely one-sided.
c. Given so uneven a balance of harms, MassMutual need only show a likelihood of success on the merits that is more than negligible. It has shown much more than that. It has shown, not merely that ADG is subject to what arguably are mere purposes and hours provisions, but also that the lease requires ADG to promote the Scottsdale store in its advertising, forbids ADG from subletting or assigning the lease without the landlord's provision, and allows ADG a veto over certain prospective tenants. MassMutual also has shown that surrounding circumstances exist that strongly suggest that the parties intended the building's continued use as an Ayres store.
Viewing the issue from the other perspective, the court cannot find that the injunction's issuance would be oppressive, harsh, or inequitable, or impose an undue hardship. An injunction would require ADG to do nothing more than it agreed to do when it accepted assignment of the lease: operate an Ayres store in the Scottsdale Mall. Whether ADG agreed to operate the store continuously until 2004 ultimately is a matter for resolution at trial, but it is beyond question that ADG agreed to operate the store for a time. This injunction would merely require it do what it agreed to do until trial.
Accordingly, even recognizing the singular nature of the relief MassMutual seeks, the court concludes that MassMutual has demonstrated its entitlement to it.
F.
Fed.R.Civ.P. 65(c) provides: "No ... preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been *1431 wrongfully enjoined...." The posting of security is required for the issuance of any preliminary injunction.
As noted in Part II-B of this opinion, the injunction's issuance will require ADG to make start-up expenditures of about $2.75 million, although the store's eventual operation will defray some of those costs as inventory is sold at prices exceeding its costs, and tax and depreciation benefits to ADG will defray the expenditures further. The court does not believe, however, that the record warrants the inference argued by MassMutual that ADG will recoup the expenditures within a year. Given the time necessary to reestablish the store, it seems unlikely that the store will be doing business before late spring or early summer. MassMutual's own evidence indicates that once customers stop shopping at a mall, it is a difficult process to entice them to return; this supports an inference that sales will be slow upon the reopening.
In Part B of this opinion, the court stated its belief that, absent a decline in customer traffic at Scottsdale Mall, ADG should recoup its initial expenditure within two to three years. Nothing about this suit suggests that it should take that long to try. There appears to be no impediment to trial within nine to fifteen months from this date. Even if the start-up costs are viewed, as MassMutual suggests, as investment in the business of the Scottsdale Ayres store, ADG is unlikely to have recouped its investment by the time of trial.
Accordingly, the court believes that security in the sum of $1 million is necessary to protect ADG against damages that would be incurred if ADG later is found to have been wrongfully enjoined. If MassMutual should believe that sum too high, or ADG believe it too low, the court will entertain a motion to substitute a bond in a different amount. Until such a determination, however, the preliminary injunction issued today shall become effective if, and only if, MassMutual posts a bond or other approved security in the sum of $1 million.
III.
For the foregoing reasons, MassMutual's motion for preliminary injunction is granted and, upon the plaintiff's posting of security in the sum of $1 million, the defendant is hereby ordered to:
(a) restock, refixture, and reopen an L.S. Ayres department store of the type operated by the defendant prior to October 25, 1991;
(b) comply with this order in good faith and make the reopening of the Scottsdale Mall L.S. Ayres store a top priority of defendant and reopen this store as soon as reasonably practicable;
(c) keep the plaintiff, other Scottsdale Mall tenants, and the general public informed of the defendant's progress towards reopening the Scottsdale Mall L.S. Ayres store on at least a bi-monthly basis utilizing local media and other available communications;
(d) continue to be open for business during the hours and on the days when Wards and a majority of other tenants in the shopping center are open once the L.S. Ayres store has reopened; and
(e) comply with the provisions of the Lease between the parties.
SO ORDERED.
NOTES
[1] May Department Stores was the original defendant. At the hearing on the preliminary injunction motion, ADG was substituted for May as the proper party defendant with the stipulations that ADG waived service of process and that May could be added anew, subject to any existing injunction, if later events indicated that May was the proper defendant.
[2] The partnership called itself "Scottsdale Mall". To avoid confusion between the partnership and the shopping center, the court will not refer to the partnership by name in the text of this memorandum.
[3] At the time of the mall's construction, the Target store was an Ayr-Way store owned and operated by Ayres Department Stores, Inc. ADG, which now owns and operates the Scottsdale Ayres store, does not own or operate the Scottsdale Target store.
[4] Food vendors and banks, rather than retailers, occupy some of the storefronts. Evidence presented at the hearing indicated that ADG has no Ayres store at any other Indiana mall with so high a storefront vacancy rate.
[5] During the hearing, MassMutual introduced into evidence its Exhibit 4, a tally of shoppers' response to a survey conducted by mall management over a two to three week period in the late summer of 1991. MassMutual offered the tally to show the income and shopping preferences of Scottsdale shoppers. ADG moved to strike the exhibit as hearsay.
The motion to strike is denied; "hearsay can be considered in entering a preliminary injunction." S.E.C. v. Cherif, 933 F.2d 403, 412 n. 8 (7th Cir.1991). However, the court attributes little weight to the exhibit in light of the extremely unscientific nature in which the poll was conducted. Persons who approached the mall's information booth were asked to respond. Accordingly, the tally shows nothing more than a profile of shoppers who (1) needed information or a stroller and (2) agreed to take the time to respond. It seems apparent that, stroller needs aside, the shopper most familiar with the mall would be the least likely to need the services of the information booth.
[6] Scottsdale's storefront occupancy rate is approximately 60% as compared to University Park's occupancy rate of approximately 95%. No evidence was introduced concerning University Park's occupancy rate based on gross leasable area.
[7] For example, the Liz Claiborne product line produces 2% of the overall gross sales of the Ayres' chain, but was removed from the Scottsdale store due to slow turnover of that line's inventory. The Liz Claiborne product line is available at University Park but not at Scottsdale.
As suggested by questioning by plaintiff's counsel at the hearing, these marketing decisions likely influence the two stores' marketing areas discussed above. Some portion of the overlap of the stores' marketing areas doubtlessly reflects Scottsdale Ayres shoppers who go to University Park for higher-quality product lines that are not available at Scottsdale. The record does not permit even an approximation of that percentage.
[8] In 1990, the Scottsdale Ayres store produced $129 in sales per square foot. The University Park store produced $275 in sales per square foot. The 300 department stores May operates produced an average of $217 in sales per square foot.
[9] Gross sales at the University Park Ayres store were approximately $24 million in 1990.
[10] MassMutual's redevelopment plan consists of two phases: the first phase would cost between $3.5 million and $5 million, and the second phase would cost another $12 million. The first phase includes aesthetic renovations, parking lot repairs, upgrading of lighting and signs, development of a food court, and expansion of Scottsdale Mall's movie theater. Phase two includes construction for a fourth anchor tenant.
[11] The court is troubled, however, that ADG's Ayres store manager testified at the TRO hearing that the store would close on only one day, January 7, for inventory; the store actually was closed on January 7 and 8, reopening on January 9 with its liquidation sale.
[12] At the TRO hearing, ADG's Scottsdale Ayres store manager testified that the store received $70,000 to $80,000 in merchandise, but at the preliminary injunction hearing, a senior May official produced the higher figure.
[13] MassMutual suggested at the hearing that ADG violated IND.CODE 25-18-1-10 by receiving inventory at the Scottsdale store within sixty days of the issuance of the license, and that the license may have been altered immaterially after its issuance, but these issues appear to be irrelevant to the matters before the court.
[14] The county courts were closed on December 25 and 26.
[15] ADG presented testimony of a study done several years ago concerning the profile of Target's customers; that study indicated that Target draws the same sort of "upscale" customer as does Ayres. MassMutual presented testimony to the contrary from specialty store operators at Scottsdale; the testimony of Scottsdale Mall shop owner Robert Gross particularly impressed the court on this point. Because the issue before the court relates to Scottsdale Mall, rather than to the nature of customers Target stores may bring in in other areas, the court finds MassMutual's evidence to be more persuasive.
[16] Defense expert Michael Kelly testified to four Chicago area malls that were left with two or fewer anchors when Wieboldt's went into bankruptcy. Those malls continue to operate. He also, however, identified the same malls as still having a vacant anchor store. Mr. Kelly acknowledged that finding a replacement anchor store would be difficult in the present economy. His testimony further suggests that replacing a third anchor may be more difficult than replacing a fourth or fifth.
[17] Mr. Vaughan testified that he made inquiries three years ago with an eye toward "recycling" the Ayres store. "Recycling" involves subletting to one or more other tenants, subdividing the leased premises if necessary.
[18] Lack of uniform terminology made some testimony at the hearing misleading. Scottsdale's vacancy rate is 40% if judged on the number of vacant non-anchor storefronts; the Ayres store's closing would have a minuscule effect on that figure. Scottsdale's vacancy rate is 19% if judged on the basis of gross leasable area; the Ayres store's closing would increase that figure to 37%. No witness, however, testified that Scottsdale's present occupancy/vacancy rate is satisfactory by any standard.
[19] The record suggests that it was ADG's predecessor in interest that decided to open the University Park store. In essence, ADG's evidence, viewed most favorably to Ayres, establishes only that several years ago, Ayres made a bad business decision to compete with itself in too small a market. Under Indiana law, a landlord does not assume the risk of a tenant's poor business decisions. Madison Plaza, Inc. v. Shapira Corp., 387 N.E.2d 483, 485 (Ind.App.1979).
[20] ADG's predecessor in interest, of course, is as responsible as MassMutual's predecessor in interest for these circumstances; the one-story discount store anchor originally was an Ayr-Way.
[21] May's Chief Financial Officer testified at the TRO hearing that he expected the University Park store to capture 30% to 40% of Scottsdale's gross sales after the closing.
[22] ADG also argued that MassMutual had not given it a notice of default, as said to be required by § 17.01 of the lease. Mr. Vaughan conceded at the TRO hearing that § 17.01 does not require notice of default in all instances, and that no notice is required if the tenant abandons the building.
[23] Section 6.01. Use By Lessee. The Ayres Building, during the continuance of this Lease, shall be used and occupied by Lessee for the purpose of operating a merchandising business, selling at retail all kinds of merchandise and services and of the type from time to time generally operated by tenant or a business successor of tenant and for no other purpose or purposes without the written consent of landlord. Tenant shall operate and conduct its business in the Ayres Building at all times in a high class and reputable manner.
[24] Section 6.02. Conditions of Use. Tenant shall be open for business during the hours and on the days when Wards and a majority of other tenants in the Shopping Center are open and shall conduct such business in good faith toward the end that the Shopping Center shall be a unified and compatible operation.
Tenant shall promptly comply with all laws, ordinances and lawful orders and regulations affecting the Ayres Building and the cleanliness, safety, occupation and use of same. No auction, fire or bankruptcy sales may be conducted in the Ayres Building without the previous written consent of the Landlord. Tenant shall not operate its business as a Discount Store. Tenant shall not use the Common Area or Mall for its own business purposes without the written consent of Landlord.
[25] Section 6.04. Advertising. Tenant agrees to expend, including its share of the group area advertising, during each lease year during the Term hereof a minimum amount equal to two percent (2%) of Tenant's annual gross sales during such lease year from the Ayres Building for the purpose of advertising the business being conducted by Tenant in the South Bend area making specific reference to the Ayres' Building, but if it so elects, also referring to other locations.... Tenant agrees to advertise in the media pertaining to events sponsored by the Merchants Association composed of tenants within the Shopping Center of which the Ayres Building is a part, or if there is no Merchants Association, by whomsoever is delegated by Landlord to sponsor such events (hereinafter referred to as "Shopping Center Events").
[26] Section 18.01. Membership in Merchants Association. Tenant will become a member of, participate fully in, and remain in good standing in a Merchants Association (as soon as the same has been formed) to foster the interests of the tenants of the Shopping Center and adjoining properties, and will abide by the regulations of such association.... The objectives of such association shall be to encourage its members to deal fairly and courteously with their customers, to sell their merchandise or services at fair prices, to follow ethical business practices, to assist the business of the tenants by sales promotions and center-wide advertising, and in particular to help the interests of members of the said association.
[27] Section 6.08. Competition and Restrictions on Landlord. Any other store in the Shopping Center in excess of 20,000 square feet of floor area shall only be leased for purposes and to tenants approved by Tenant. No space in excess of 20,000 square feet shall be leased to or operated as a general merchandise discount store ... except for the Ayr-Way store [now Target] ...
[28] Section 12.01. By Tenant. Tenant shall not sublet said premises or any part thereof, but Tenant may, without Landlord's consent, grant licenses to concessionaires or sublease space in the Ayres Building for the operation of leased departments as part of Tenant's overall operation. Tenant may not assign this Lease without the prior written consent of landlord except to a Business Affiliate of Tenant or to a Business Successor of Tenant which assumes this Lease.
[29] Section 17.01. Events of Default.... [I]f Tenant shall abandon the Ayres Building ... then an event of default shall be deemed to have occurred.
[30] 8. OPERATION OF BUSINESS
(a) Open for Business. TENANT agrees to occupy the Premises and open its store for business fully fixtured, stocked and staffed, upon the Commencement Date of the term of this lease, and thereafter to continuously conduct in one hundred per cent (100%) of the space within the Premises under the name and for the business permitted hereunder.... This covenant by TENANT is a material consideration to LANDLORD hereunder in order that TENANT might produce the maximum gross sales possible from the Premises during the lease term, and maintain a continuous operation of a full service regional retail development.
[31] In its brief in opposition to the preliminary injunction, ADG cites Canada Dry Corp. v. Nehi Beverage Co., Inc., 723 F.2d 512, 526 (7th Cir. 1983), for the proposition that the concept of efficient breach of contract allows a party to "refuse to fulfill its obligations and be liable only for the damages which the other party suffers as a result of the breach." While this may be true in assessing a claim for punitive damages which the Canada Dry court considered it is of little assistance to a court in equity determining whether to order specific performance of a contract when a damage award would be an inadequate remedy.
[32] By way of contrast, the court in Dover Shopping Center, Inc. v. Cushman's Sons, Inc., 63 N.J.Super. 384, 164 A.2d 785 (1960), concluded that although equity ordinarily will not order specific performance over a long period of time, the modern tendency is to grant specific performance where the breach is clear, and difficulties of enforcement are not great, particularly when compared with inadequacy of damages at law.
[33] In Bradlee's Tidewater, Inc. v. Walnut Hill Investment, Inc., 239 Va. 468, 391 S.E.2d 304 (1990), the court reversed the trial court's grant of injunctive relief, but did so because the continuous provision had lapsed, so the plaintiff-landlord could show no likelihood of success. Contrary to the statement in ADG's post-hearing brief, the court did not reject the plaintiff's "anchor tenant theory"; the plaintiff attempted to abandon the argument on appeal. 239 Va. at 474, 391 S.E.2d at 308.
The parties also cited other cases that involved a declaratory judgment action to determine whether a lease contained a continuous clause, Fay's Drug Co., Inc. v. Geneva Plaza Associates, 98 A.D.2d 978, 470 N.Y.S.2d 240 (1983), suit by a landlord to recover possession from a non-operating, rent paying tenant, Ingannamorte v. Kings Super Markets, Inc., 55 N.J. 223, 260 A.2d 841, 40 A.L.R. 3d 962 (1970), and suits for damages for breach of covenants of continuous use or similar provisions. Casa D'Angelo, Inc. v. A & R Realty Co., 553 N.E.2d 515 (Ind. App.1990); Columbia East Associates v. Bi-Lo, Inc., 299 S.C. 515, 386 S.E.2d 259 (1989).
None of these cases guide the court in the exercise of its discretion concerning preliminary injunctive relief.
[34] In Indiana's Madison Plaza case, the defendant left with seven years remaining on the lease. 387 N.E.2d at 483-484. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379669/ | 295 S.C. 434 (1988)
369 S.E.2d 649
Carol G. NICHOLSON and Deborah Lee Lewis, Respondents
v.
Daniel T. LEWIS, Jr., Appellant.
1166
Court of Appeals of South Carolina.
Heard April 12, 1988.
Decided May 23, 1988.
*435 Robert Marshall Jones, Rock Hill, for appellant.
George W. Speedy, Camden, for respondents.
Heard April 12, 1988.
Decided May 23, 1988.
SHAW, Judge:
Respondents, Carol G. Nicholson and Deborah Lee Lewis, commenced this action in family court against appellant, Daniel T. Lewis. From an order granting Mrs. Nicholson's request for an increase in child support and requiring Mr. Lewis to pay one-half of Deborah's college expenses, Mr. Lewis appeals. We affirm.
Mrs. Nicholson and Mr. Lewis were divorced in 1980. They have three children, two of whom live with Mrs. Nicholson. The oldest child, Daniel, is emancipated. At the time of the *436 hearing, their daughter, Deborah, was 18 years of age and was attending Winthrop College while living at home with her mother, her 14 year old brother Charles, and her step-father. Mr. Lewis was paying a total of $50.00 per week child support for Deborah and Daniel plus $30.00 per month to reimburse Mrs. Nicholson for health insurance carried on the children. Mrs. Nicholson sought an increase in child support for Charles, and Deborah sought to require Mr. Lewis to contribute towards her educational expenses. Following a hearing, the trial judge ordered Mr. Lewis to pay support for Charles in the amount of $50.00 per week and to pay $342.60 per month for one-half of Deborah's educational expenses.
Mr. Lewis contends the trial judge abused his discretion in increasing the child support from $50.00 per week for two children to $50.00 per week for one child. He argues there is no substantial change warranting such an increase. He further contends there was no evidence he had the ability to pay such an increase.
The issue of child support is subject to the continuing review of the family court. Stevenson v. Stevenson, 276 S.C. 475, 279 S.E. (2d) 616 (1981). Child support may be modified upon a proper showing of a change in either the child's needs or the supporting parent's financial ability. Calvert v. Calvert, 287 S.C. 130, 336 S.E. (2d) 884 (Ct. App. 1985). The amount of child support awarded is within the sound discretion of the trial judge whose decision will not be disturbed on appeal absent an abuse of discretion. Millis v. Millis, 282 S.C. 610, 320 S.E. (2d) 66 (Ct. App. 1984).
In the instant case, the record reflects a substantial change in the needs of Charles. At the time of the divorce, Charles was only 6 years old, but had reached the age of 14 at the time of the hearing on this matter. Mrs. Nicholson testified to an increase in expenses for Charles' food, clothes, school and social activities. See Campbell v. McPherson, 268 S.C. 444, 234 S.E. (2d) 774 (1977) and Fender v. Fender, 256 S.C. 399, 182 S.E. (2d) 755 (1971).
Further, § 20-7-40 of the South Carolina Code of Laws (1981) provides as follows:
A husband or wife declared to be chargeable with the support of his or her spouse and children, if possessed of
*437 sufficient means or able to earn such means, may be required to pay for their support a fair and reasonable sum according to his or her means, as may be determined by the court. (Emphasis added.)
The trial judge noted and the record reveals Mr. Lewis was evasive to questions dealing with his financial condition and failed to report income and other assets in a deliberate attempt to avoid payment of child support obligations. He concluded Mr. Lewis is capable of earning in excess of $24,000 per year, having the skill necessary to make such income. The record sufficiently supports the findings of the trial judge and we therefore hold he committed no error in increasing the amount of child support for Charles.
Mr. Lewis also contends the trial judge erred in ordering him to pay one-half of the college expenses of Deborah. He argues the trial judge failed to consider Deborah's ability to finance her own education. He also contends there is no evidence he has the ability to pay for such.
In Risinger v. Risinger, 273 S.C. 36, 253 S.E. (2d) 652 (1979), our Supreme Court held a family court judge could require a parent to contribute to the educational expenses of a child over 18 where there is evidence:
(1) the characteristics of the child indicate that he or she will benefit from college;
(2) the child demonstrates the ability to do well, or at least make satisfactory grades;
(3) the child cannot otherwise go to school; and
(4) the parent has the financial ability to help pay for such an education.
As to Mr. Lewis' ability to financially assist in Deborah's education, we have already addressed this issue under his appeal of the increase in child support and hold the record reflects Mr. Lewis' capability to pay.
Mr. Lewis argues the trial judge erred in finding Deborah could not otherwise go to school. He claims the trial judge failed to consider Deborah's ability to pay for her own education and Mrs. Nicholson's ability to assist Deborah.
In the case of Wagner v. Wagner, 285 S.C. 430, 329 S.E. (2d) 788 (Ct. App. 1985), this court held two other factors must be taken into account when ordering a *438 parent to support an emancipated child so that child might attend college. These factors include (1) the availability of grants and loans and (2) the ability of the child to earn income during the school year or on vacation.
The record indicates Deborah and her mother are making every effort to keep Deborah in school. Deborah agreed, at the request of her father, to attend a local college so that she might commute and minimize expenses.[1] She works full time during the summer months and helps with expenses on the upkeep of the automobile she uses for commuting. While Deborah attempted to maintain a part time job during the school year, a conflict in hours forced her to quit that job. However, at the time of the hearing, she was searching for part time work. Deborah also obtained a grant in the amount of $300.00 and a student loan in the amount of $2,000.00. Her mother provides her with a home, an automobile and living expenses, including gasoline, tuition, books and other fees.
We therefore hold the trial judge did not err in ordering Mr. Lewis to pay one-half of his daughter's educational expenses.
Affirmed.
SANDERS, C.J., and BELL, J., concur.
NOTES
[1] It should be noted that the father admits he agreed to pay half of Deborah's expenses. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379666/ | 369 S.E.2d 199 (1988)
Terry Allen DIGGS
v.
COMMONWEALTH of Virginia.
Record No. 0254-86-4.
Court of Appeals of Virginia.
May 17, 1988.
Ron Lewis Napier (Napier & Napier, Front Royal, on brief), for appellant.
Eugene Murphy, Asst. Atty. Gen., (Mary Sue Terry, Atty. Gen., on brief), for appellee.
Present: KOONTZ, C.J., and BAKER, BARROW, BENTON, COLE, COLEMAN, DUFF, KEENAN and MOON, JJ.
UPON A PETITION FOR REHEARING EN BANC
BARROW, Judge.
In this appeal of a traffic infraction we conclude that a person whose operator's license has been suspended or revoked may not drive a moped[1] on a public highway.
Diggs was convicted of operating a moped on a public highway after his operator's license had been revoked. When he was observed, his moped was being propelled *200 by its motor, although foot-pedalling was required to initiate its motion.
Code § 46.1-350(a) prohibits driving "any motor vehicle or any self-propelled machinery or equipment on any highway" during a period of suspension or revocation of an operator's license.[2] Since a moped is expressly excluded from the definition of a motor vehicle, Code § 46.1-1(15), its operation is prohibited by Code § 46.1-350 only if it is "self-propelled machinery or equipment."
The words, "self-propelled machinery," are not ambiguous. Words are ambiguous if they admit to "being understood in more than one way" or refer to "two or more things simultaneously." Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985). They may also be ambiguous if they are "difficult to comprehend," "of doubtful import," or lack "clearness and definiteness." Id. The term, "self-propelled machinery" is none of these.
The meaning of "self-propelled machinery," is clear and has only one meaning. "Self-propelled" is an adjective meaning "[c]ontaining its own means of propulsion...." American Heritage Dictionary, 1113 (2d College ed. 1982). Machinery refers to "[m]achines or machine parts collectively," while a machine is "[a] system, usually of rigid bodies, formed and connected to alter, transmit, and direct applied forces in a predetermined manner to accomplish a specific objective...." Id. at 751.
According to these definitions, a moped is a "self-propelled" machine. Like a bicycle, it is a system of rigid bodies or parts formed and connected to direct energy in a predetermined manner to accomplish locomotion. Unlike a bicycle, it is equipped with a helper motor and, therefore, contains its own means of propulsion.
Since the words of the statute are clear and unambiguous, judicial construction is not required. Brown, 229 Va. at 321, 330 S.E.2d at 87. The general rules of statutory construction do not apply, and we may not "resort to legislative history and extrinsic facts" to interpret words whose meaning is clear. Id. We must "take the words as written" and give them their plain meaning. Id.
The appellant argues that the words, "self-propelled machinery or equipment" are ambiguous because they are too inclusive. But, broadly inclusive language in a statute is not ambiguous if the legislature's objective requires such language. Diamond v. Chakrabarty, 447 U.S. 303, 315, 100 S. Ct. 2204, 2211, 65 L. Ed. 2d 144 (1980).
Even if we were to accept Diggs' argument that the term is ambiguous, the legislative history supports our conclusion that a moped is "self-propelled machinery or equipment" for purposes of Code § 46.1-350(a). The General Assembly's broad objective in using the language "self-propelled machinery or equipment" is apparent from the statute's history. Immediately preceding the adoption of Code § 46.1-350(a) the Virginia Advisory Legislative Counsel recommended to the General Assembly that anyone whose operator's license is suspended or revoked be prohibited from operating "any self-propelled farm machinery or construction equipment." See Report of the Virginia Advisory Legislative Counsel, Safety of Virginia Highways, S.Doc. No. 8, at 7 (1963) (emphasis added). The General Assembly responded by amending Code § 46.1-350(a) to include "any self-propelled machinery or equipment" without the limitations of the modifying words "farm" or "construction." This action demonstrated the legislature's intent that the words "machinery" and "equipment" have their plain, even though broad, meaning.
This broad objective of the language in Code § 46.1-350(a) was not diminished by later legislative amendments to other parts *201 of the motor vehicle laws. The exclusion of bicycles and mopeds from the definition of "motor vehicle" eliminated the requirements of registration and operators' licenses for mopeds but did not alter their status as self-propelled machinery or equipment under Code § 46.1-350(a). See Code § 46.1-1(15). The increased use of mopeds has required the General Assembly to amend various parts of the motor vehicle code to either include or exclude mopeds from the application of those provisions. See, e.g., Code §§ 46.1-17, 46.1-171.1, 46.1-215.1, 46.1-229.1, 46.1-263. However, because the language "self-propelled machinery or equipment" was already sufficiently broad to accomplish the legislature's objectives in Code § 46.1-350, it was not necessary to broaden its reach any further. Mopeds were included within its reach without the necessity of amendment.
Diggs contends that another provision of the motor vehicle code, Code § 46.1-171.1, demonstrates a legislative intent to treat a moped as something other than self-propelled machinery or equipment. Code § 46.1-171.1 authorizes the State Highway and Transportation Board to prohibit the use of interstate highways "by any or all... (1) Pedestrians, (2) persons riding bicycles or mopeds, (3) horse-drawn vehicles, (4) self-propelled machinery or equipment, and (5) animals led, ridden or driven on the hoof." Diggs suggests that by listing "self-propelled machinery or equipment" separately from "persons riding bicycles or mopeds" the legislature intended to treat these categories as separate and distinguishable for purposes of Title 46.1. Therefore, he reasons that, since mopeds are listed separately from "self-propelled machinery or equipment" in Code § 46.1-171.1, the category of "any self-propelled machinery or equipment" contained in Code § 46.1-350 does not include mopeds.
Since the language of Code § 46.1-350 is clear and unambiguous, we cannot use judicial construction to give it new meaning; however, if we were to look beyond the meaning of the language, we would not agree with Diggs's analysis. The categories contained in Code § 46.1-171.1 are not mutually exclusive. A highway use described by one category may also be described by another. A "horse-drawn" vehicle may also be an animal "led, ridden or driven on the hoof." Similarly, a "moped" may also be "self-propelled machinery or equipment."
Other provisions of the motor vehicle code do not define "machinery" or "equipment" nor do they limit the definition of these terms in a way that would exclude mopeds. Diggs points to other provisions where these terms are used and contends that the manner of their use excludes mopeds.[3] However, in each instance of their use the terms simply enumerate certain tangible personalty without attempting, either explicitly or implicitly, to define "machinery" or "equipment" or limit what may be included within their scope.
In addition, Virginia Attorney General opinions have consistently held, without contrary legislative response, that one whose license is suspended or revoked cannot legally operate a moped on public highways during the period of suspension or revocation. See Op. Va. Att'y Gen. 215-16 (Oct. 26, 1984); Op. Va. Att'y Gen. 265-67 (July 20, 1977); Op. Va. Att'y Gen. 251-52 (Oct. 2, 1975). Although the Attorney General's opinions are not binding, Barber v. City of Danville, 149 Va. 418, 424, 141 S.E. 126, 127 (1928), they are persuasive, id., and may be used as an "aid in construing legislative intent." Richard L. Deal & Assocs., *202 Inc. v. Commonwealth, 224 Va. 618, 621, 299 S.E.2d 346, 348 (1983).
We conclude that, since the defendant was operating a moped being propelled by its motor, he was operating "self-propelled machinery or equipment" in violation of Code § 46.1-350; thus, we affirm his convictions.
Affirmed.
COLE, Judge, with whom KOONTZ, Chief Judge, and BENTON, Judge, join, dissenting.
I respectfully dissent and disagree with the majority opinion.
The issue presented in this case is whether the appellant, Terry Allen Diggs, violated Code § 46.1-350(a) when he operated a moped on a highway while his operator's license was suspended or revoked. This section provides that no person whose operator's license has been suspended or revoked "shall thereafter drive any motor vehicle or any self-propelled machinery or equipment on any highway in this Commonwealth." (emphasis added). We, therefore, must determine whether a moped is a "motor vehicle" or "any self-propelled machinery or equipment" to bring Diggs under the provisions of the statute.
We must first know what a moped is. By statutory definition a moped is a "bicycle-like device with pedals and a helper motor which is rated at no more than two brake horsepower and which produces speeds up to a maximum of thirty miles per hour." Code § 46.1-1(14b). If a vehicle has more power or speed than provided in the statute, it is not a moped. If we use the generally accepted definition of a motor vehicle to ascertain its meaning, a moped is a motor vehicle under Code § 46.1-350(a). What is obvious, however, turns into obscurity when we read the definitional section of the Motor Vehicle Code. Code § 46.1-1(15) states: "[A]ny device herein defined as a bicycle or a moped shall be deemed not to be a motor vehicle." Therefore, since a moped is not a motor vehicle, it is encompassed within the prohibition of Code § 46.1-350(a) only if it is deemed "self-propelled machinery or equipment," a term not defined in the Motor Vehicle Code. We must determine whether Code § 46.1-350(a) is clear and unambiguous. If so, the plain meaning must be accepted without resort to extrinsic evidence and rules of construction.
"It is a settled rule of construction in this state that where a statute is plain and unambiguous there is no room for construction by the court and the plain meaning and intent of the statute will be given it." McClung v. Henrico County, 200 Va. 870, 874, 108 S.E.2d 513, 516 (1959); see Winston v. City of Richmond, 196 Va. 403, 407-08, 83 S.E.2d 728, 731 (1954); Almond v. Gilmer, 188 Va. 1, 14-15, 49 S.E.2d 431, 439 (1948).
Language is ambiguous if it admits to being understood in more than one way or refers to two or more things simultaneously. An ambiguity exists when the language is difficult to comprehend, is of doubtful import, or lacks clearness and definiteness.... [W]hen an enactment is unambiguous, extrinsic legislative history may not be used to create an ambiguity, and then remove it, where none otherwise exists.
Brown v. Lukhard, 229 Va. 316, 321, 330 S.E.2d 84, 87 (1985) (citations omitted).
Applying these rules to the facts of this case, we find the language of Code § 46.1-350(a), "any motor vehicle or any self-propelled machinery or equipment," to be ambiguous. Admittedly, the terms "machinery or equipment" are all inclusive and one can hardly think of any device not included. As already stated, Code § 46.1-1(15) defines "Motor Vehicle" and exempts from it, by definition, a bicycle or a moped. Webster's Third New International Dictionary (1986) defines "machinery" as (1) "machines as a functionary unit:" such as "the constituent parts of a machine or instrument; equipment, stock, or range of machines;" (2) "the means and appliances by which something is kept in action or a desired result is obtained." A synonym for "machinery" is "equipment." Webster's gives many and varied definitions for "machine." The most logical in *203 the context of this case is: "engine, apparatus, appliance, signify[ing], in common, a device, often complex, for doing work beyond human physical or mental limitations or faster than the human hand or mind." (emphasis added). Machine applies to a construction or organization whose parts are so connected and interrelated that it can be set in motion and perform work as a unit.
Webster's defines "equipment," among other things, as (1) "the implements (as machinery or tools) used in an operation or activity;" (2) "all the fixed assets other than land and buildings of a business enterprise;" (3) "apparatus, machinery, paraphernalia, outfit, tackle, gear, material ... in common, all the things used in a given work or useful in effecting a given end." The Commonwealth argues from these definitions that a moped is "machinery" or "equipment."
I think it unreasonable to conclude that the legislature would pass Code § 46.1-1(14b) in 1981, providing that a moped is not a motor vehicle, intending at the same time to include the device as "machinery or equipment." If the legislature had intended this contradictory result, it presumably would not have excluded "moped" from the definition of a motor vehicle. The words "machinery" and "equipment" are so broad that it is difficult to garner from them the meaning and intent of the legislation. Certainly, the precise meaning of these words is difficult to comprehend in the context of this statute. I differ with the view of the majority that the meaning of "self-propelled machinery" is clear and unambiguous. They conclude that judicial construction is not required and that they need not resort to legislative history and extrinsic facts to interpret words whose meaning is clear. I conclude that the language is ambiguous, permitting us to seek legislative history to determine the true meaning and intent of the statute.
Since I find that the statute is ambiguous, I must resort to the history of the statute and the rules of construction to determine legislative intent, which is the primary concern of statutory construction. Virginia Dep't. of Labor & Industry v. Westmoreland Coal Co., 233 Va. 97, 101-02, 353 S.E.2d 758, 762 (1987). "The divergent interpretations discussed above demonstrate the difficulty one encounters in trying to ascertain the statute's meaning." Id. at 101, 353 S.E.2d at 762.
The history of the Motor Vehicle Code is informative in determining legislative intent. Section 2154(39)a(b) of the 1930 Code of Virginia defined the term "motor vehicle" as "every vehicle, as herein defined, which is self-propelled." The term "vehicle" was defined in subsection (a) as:
Every device in upon or by which any person or property is or may be transported or drawn upon a public highway, except devices moved by human power or used exclusively upon stationary rails or tracks.
Code § 2154(39)a(a) (1930). The 1930 Code does not define the terms bicycle or moped. Notably, as far back as 1930, motor vehicles have been defined as self-propelled, and devices moved by human power have been exempted from the definition of "motor vehicles."
In 1958, title 46 was repealed and the Motor Vehicle Code was reenacted as title 46.1. Former Code § 46-347.1 of the 1952 Code was reenacted as Code § 46.1-350 of the 1958 Code. In 1963, the Virginia Advisory Legislative Council compiled a report entitled "Safety on Virginia Highways" which was presented to the Governor and the General Assembly of Virginia. See Report of the Virginia Advisory Legislative Council, Safety of Virginia Highways, S.Doc. No. 8 (1963). This report contains numerous recommendations, two of which are pertinent to our inquiry in the instant case.
First, the Council recommended that legislation should be adopted making it "unlawful for any person whose operator's license is under suspension or revocation to operate any self-propelled farm machinery or construction equipment" on Virginia highways. S.Doc. No. 8, at 7 (emphasis added). The reason given for this recommendation was that the privilege to operate such machinery and equipment was abused *204 by those whose licenses had been revoked, and the use of such machinery or equipment in lieu of motor vehicles added "an unnecessary hazard to our overcrowded highways." Id. at 16.
In response to the Council's report, the General Assembly, in its 1964 session, amended Code § 46.1-350(a) to read, in pertinent part, as follows: "No person ... whose operator's or chauffeur's license ... has been suspended or revoked ... shall thereafter drive any motor vehicle or any self-propelled machinery or equipment on any highway in this State." Code § 46.1-350(a) (1967 Repl.Vol.). The amendment incorporated the language recommended by the Council except that "farm" was omitted before "machinery" and "construction" was omitted before "equipment."
Secondly, the Council recommended that "the State Department of Highways be given authority to prohibit the use of controlled access highways by pedestrians, bicycles, horse-drawn vehicles, self-propelled farm or construction machinery or equipment, and animals led, ridden or driven on the hoof." Id. at 7 (emphasis added). This recommendation resulted in the enactment of Code § 46.1-171.1, in 1964, which provided, in pertinent part:
The State Highway Commission may, when necessary to promote safety, prohibit the use of interstate highways, ..., and other controlled access highways or any part thereof by any of the following: (1) Pedestrians, (2) persons riding bicycles, (3) horse-drawn vehicles, (4) self-propelled machinery or equipment, and (5) animals led, ridden or driven on the hoof.
Code § 46.1-171.1 (Repl.Vol.). Again, the Council's recommendation was adopted verbatim except that the words "farm or construction" were deleted.
The omission of "farm" and "construction" in the statutes suggests that the General Assembly recognized that machinery and equipment were operated upon the highways for uses other than "farm" and "construction" purposes. I think that the report of the Virginia Advisory Legislative Council clearly indicates that the legislature did not have in mind every conceivable mechanical contrivance that man can imagine, but rather those types of self-propelled machinery and equipment usually designed for and associated with agricultural and construction work. The absence of any reference to a moped indicates that the General Assembly did not consider it "self-propelled machinery or equipment." Even if in existence at the time, they clearly would have been included in the term "motor vehicle." The primary purpose of machines and equipment is to generate energy with which to perform work. A moped has no connection with work. I find nothing in the legislative history of the statutes which indicates that mopeds are ordinarily considered instruments to accomplish work, as is the case with machines and equipment.
In 1981 the General Assembly made several significant changes in Code § 46.1-1 concerning definitions which involved mopeds, and they must be read together to determine their intent and meaning. For the first time a moped was defined in the Motor Vehicle Code:
A bicycle-like device with pedals and a helper motor which is rated at no more than two brake horsepower and which produces speeds up to a maximum of thirty miles per hour.... For purposes of Chapter 4 (§ 46.1-168 et seq.) of this title, a moped shall be a vehicle while operated upon a highway.
Code § 46.1-1(14b).
Chapter Four of the Motor Vehicle Code is entitled Regulation of Traffic. This chapter encompasses Code § 46.1-171, which specifically provides that "[e]very person riding a bicycle or moped or an animal upon a highway ... shall have all of the rights and ... duties applicable to the driver of a vehicle." Since subsection (14b) of Code § 46.1-1 states that for purposes of chapter 4 a moped shall be treated as a vehicle while operated upon a highway, this by implication denotes that it is not a vehicle for purposes of other chapters in the Motor Vehicle Code. In subsection (14) the definition of "motorcycle" was amended to except from the motorcycle class any vehicle *205 included within the term "moped." The term "motor vehicle" was amended to provide that moped is not deemed a motor vehicle. The impact of these amendments clearly shows that the General Assembly intended to place a moped in a classification of its own and did not consider it to be "machinery or equipment." If it had intended such a result, it would have added the term moped to the devices specified in Code § 46.1-350(a).
Also in the 1981 session, the General Assembly amended Code § 46.1-171.1 to read as follows:
The State Highway and Transportation Commission may ... prohibit the use of interstate highways ... by any or all of the following: (1) Pedestrians, (2) persons riding bicycles or mopeds, (3) horse-drawn vehicles, (4) self-propelled machinery or equipment, and (5) animals led, ridden or driven on the hoof.
(emphasis added). This amendment further demonstrates that the legislature equated bicycles and mopeds and did not intend "self-propelled machinery or equipment" to encompass mopeds. Otherwise, the language "or mopeds" would be surplusage, and "we will assume that [the legislature's] amendments to the law are purposeful and not unnecessary or vain." Cape Henry Towers, Inc. v. National Gypsum Co., 229 Va. 596, 600, 331 S.E.2d 476, 479 (1985).
The legislative intent to equate mopeds with bicycles and not "self-propelled machinery or equipment" is reinforced by comparing various definitions throughout Title 46.1. First, a "motor vehicle" is defined as "self-propelled" in Code § 46.1-1(15) while the term "self-propelled" does not appear in the definition of "moped" in Code § 46.1-1(14b). This suggests that the legislature did not consider a moped to be "self-propelled" in the context of Title 46.1. The terms "self-propelled" and "machinery" are used in Code § 46.1-1(7) to define "farm tractor" and the term "machinery" is also used in Code § 46.1-352 to describe certain farm and construction vehicles, yet none of these terms was used to define "mopeds." Had the legislature considered a moped to be self-propelled machinery or equipment, it presumably would have used those terms in describing a moped as it did in describing other vehicles.
Finally, I am cognizant of three opinions of the Attorney General stating that a moped is "self-propelled machinery or equipment," and that it is, therefore, covered by Code § 46.1-350(a). See Op. Va. Att'y Gen. 215-16 (Oct. 26, 1984); Op. Va. Att'y Gen. 265-67 (July 20, 1977); Op. Va. Att'y Gen. 251-52 (Oct. 2, 1975). Although these opinions are entitled to due consideration, they are not binding. Albermarle County v. Marshall, 215 Va. 756, 762, 214 S.E.2d 146, 150 (1975); Barber v. City of Danville, 149 Va. 418, 424, 141 S.E. 126, 127 (1928). I am unwilling to conclude that the legislature has, by its inaction, approved the Attorney General's interpretation of Code § 46.1-350(a) because this interpretation is not consistent with the apparent intent of the legislature as disclosed in the foregoing legislative history.
The Commonwealth acknowledges that no Virginia case discusses this issue, and from other jurisdictions cites State v. Senko, 457 A.2d 824 (Me.1983); Royal-Globe Insurance Co. v. Schultz, 385 Mass. 1013, 434 N.E.2d 213 (1982); Lalomia v. Bankers & Shippers Insurance Co., 35 A.D.2d 114, 312 N.Y.S.2d 1018 (1970), aff'd., 31 N.Y.2d 830, 339 N.Y.S.2d 680, 291 N.E.2d 724 (1972); Myers v. State Farm Mutual Auto Insurance Co., 502 A.2d 676 (Pa.Super. Ct.1985); People v. Jordan, 75 Cal. App.3d Supp. 1, 142 Cal. Rptr. 401 (1977); United States v. Stancil, 422 A.2d 1285 (D.C.App.1980), in support of its position. All of these cases are readily distinguishable from the pending case.
Senko was based upon a statutory provision in Maine which defined a "motor vehicle" as "any self-propelled vehicle not operated exclusively on tracks." 457 A.2d at 825. Royal-Globe Insurance was decided upon an insurance policy which defined "auto" as "a land motor vehicle." The defendant admitted that a moped moved over land and had a motor. The court concluded that a moped was a "land motor vehicle." 385 Mass. at 1013, 434 N.E.2d at *206 213-14. In Lalomia, a motorized bicycle was held to be a motor vehicle within the meaning of an uninsured motorist endorsement contained in an insurance policy. 312 N.Y.S.2d at 1024. In Myers, a moped was determined to be a motor vehicle because it "was required to be licensed" under that state's law. 502 A.2d at 677-78. In Jordan, a moped was considered a motor vehicle in a drunk driving case, 75 Cal.App.3d at 7, 142 Cal.Rptr. at 405; and in Stancil a moped was considered a "motor vehicle" for purposes of a statute governing unauthorized use of a vehicle. 422 A.2d at 287-88. However, these cases are unlike the pending case because the Commonwealth admits that, by statutory definition, a moped is not a motor vehicle in Virginia.
The most analogous opinion from another state is Velez v. Criterion Insurance Co., 461 So. 2d 1348 (Fla.1984), where the issue before the court was whether a moped was a self-propelled vehicle. The Florida Supreme Court held that for purposes of the Florida Automobile Reparations Reform Act, the statute in question unambiguously defined a moped as a bicycle. It further held that a bicycle was not a motor vehicle as defined and concluded that the legislature did not intend that a moped be considered a self-propelled vehicle. Id. at 1349.
I would hold that a moped is not a "motor vehicle or any self-propelled machinery or equipment" within the meaning and intent of Code § 46.1-350(a). For these reasons, I would reverse the conviction.
NOTES
[1] A moped is a "bicycle-like device with pedals and a helper motor ... rated at no more than two brake horsepower and which produces speeds up to a maximum of thirty miles per hour." Code § 46.1-1(14b).
[2] Section 46.1-350(a) of the Code of Virginia reads in part that:
[N]o person, resident or nonresident, whose driver's license or instruction permit or privilege to drive a motor vehicle has been suspended or revoked ... shall thereafter drive any motor vehicle or any self-propelled machinery or equipment on any highway in this Commonwealth....
[3] See, e.g., Code § 46.1-47 ("[f]arm tractors, road rollers and road machinery used for highway purposes"); Code § 46.1-156 ("well-drilling machinery"); Code § 46.1-164 (equating "motor vehicles, trailers or semi-trailers" with "machinery"); Code §§ 46.1-315 ("well-drilling machinery"); 46.1-43 ("heavy construction equipment" and "other heavy equipment"); Code § 46.1-46 ("equating" equipment with "fire-fighting trucks, trailers and semitrailers," "fire-fighting apparatus," "vehicles" and "ambulances"); Code §§ 46.1-115(c) and 46.1-115.1 ("special permanent mounted equipment"); Code § 46.1-156(B) (defining "[s]pecialized mobile equipment" as "self-propelled motor vehicle manufactured for a specific purpose"); and Code § 46.1-343.4 (equating "equipment" with "empty, oversize and overweight, rubber-tired, self-propelled haulers and loaders used in the construction and coal mining industrializes"). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267398/ | 146 N.J. Super. 565 (1977)
370 A.2d 486
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
PETER LiBUTTI, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Submitted December 14, 1976.
Decided January 13, 1977.
*567 Before Judges MATTHEWS, SEIDMAN and HORN.
Messrs. Russell & McAlevy, attorneys for appellant (Mr. John P. Russell on the brief).
Mr. Joseph P. Lordi, Essex County Prosecutor, attorney for respondent (Mr. Peter N. Gilbreth, Assistant Prosecutor, of counsel and on the brief).
*568 The opinion of the court was delivered by HORN, J.A.D.
Defendant Peter LiButti appeals his conviction of conspiracy (N.J.S.A. 2A:98-1 and 2) and arson (N.J.S.A. 2A:89-2) following a trial before a jury. A codefendant, August Napolitano, was acquitted on all counts.
On May 16, 1974 the Essex County grand jury indicted defendant along with Frank Basto and Robert Martin, charging that between July 7 and August 10, 1972 in the City of Newark (Essex County) and the City of Hoboken (Hudson County) said parties conspired among themselves and Gerard Charles Festa (unindicted) to burn a building at 301 Jackson Street, Hoboken, New Jersey. A second count charged the same defendants with having committed arson by burning said building. Basto pled guilty to the indictment. Charges against Martin were dismissed as part of a plea agreement involving other charges against him.
On May 1, 1975 an Essex County grand jury returned an indictment charging August Napolitano with being a conspirator in the same conspiracy related in the first indictment naming LiButti, with committing the same arson and in addition with defrauding insurance companies. On May 8, 1975 the indictments were consolidated for trial. As stated, Napolitano was acquitted of all charges contained in the indictment pertaining to him. LiButti was convicted of the conspiracy and arson.
Appellant cites three alleged errors: (1) the trial judge erred in failing to grant a change of venue to Hudson County; (2) he erred in denying the motion to disqualify himself, and (3) the verdict was against the weight of the evidence and a result of passion, mistake, partiality, prejudice and compromise. Under (2) defendant argues that during the trial the judge made statements and rulings which prejudiced defendant and resulted in an unfair trial. In addition, he permitted the prosecuting attorney, over objection, to perform a demonstration during summation which was not alone improper but also highly prejudicial *569 and in violation of defendant's constitutional right to confrontation and to cross-examination. We agree and reverse.
In view of our determination on this point, although we need not consider any of the other points raised, we will only add that we find no persuasive basis to hold that the judge should have disqualified himself. We will comment hereinafter as to the venue.
Festa, a witness for the State, had testified as to how the arson was perpetrated that the several parties charged with the crimes poured gasoline, lacquer and paint thinner out of ten five-gallon containers all over the interior of the liquor store which was set on fire, and that all containers were the same size and shape. On cross-examination by LiButti's attorney a plastic container (later introduced in evidence by him as an exhibit) was identified by Festa as appearing to be the same as those used except that the one identified appeared to be more rectangular. He then demonstrated how the gasoline was poured from the containers.
A state expert in the investigation of suspicious fires testified that no plastic containers or remnants of those which had been used were ever found. Later defendants presented an expert who testified in their defense for the purpose of showing the unlikelihood of defendants having poured the flammable liquids under the circumstances charged by the State. This was sought to be achieved by showing the time it would take to pour the contents of each container as described and demonstrated by Festa. The expert opined:
They would never have lived to succeed to put all that around because in the process of applying it, it takes you a minimum of three minutes to pour and empty that size of container. I have them and used them. It takes you, sloshing it around five to ten minutes to do it because you're only letting it go out on the forward end of the throw and the rest of the time you're not spilling it.
The State produced no expert or other person to directly counter the testimony of defendants' expert (Von Ludwig) on this point. Instead, during his summation the trial prosecutor told the jury:
*570 But if their [defendants'] expert says that to turn this upside down and dump out the liquid takes three minutes, and he knows this from his own personal experience, O.K., Mr. Ludwig, let's find out.
* * * So let's find out if Mr. Von Ludwig is right * * * to dump a five gallon container of liquid, turning it over, would take three minutes.
I borrowed a pulsar watch."
When overruling the objection to the proposed experiment the judge said: "I'll allow it in contravention of the testimony given by Mr. Von Ludwig." Counsel again objected when it appeared that the prosecuting attorney was about to use for the experiment a container which had not been introduced in evidence, saying: "* * * [W]e have never seen this container before, we don't know if it has the same nozzle or spout * * *."
The exhibition consisted of the pouring of liquid, said to be water, from what appeared only from the statements of the prosecuting attorney to be a five-gallon container, into another receptacle. The prosecuting attorney had a detective stand by to call out when the five-gallon container was empty.
Finally, defendant's counsel objected on the ground there was no testimony "whatever liquid is in there is the weight of gasoline or liquid or thinner. * * *." This objection also was overruled.
Then the prosecuting attorney called out "30 seconds." A member of the jury then said: "27 seconds." The prosecuting attorney then said: "Let's make it 28. I'll settle for 28." Appellant's attorney said: "That's providing it was full in the first place."
After the colloquy the prosecutor continued with his summation, explaining how wrong Von Ludwig was, as follows:
Mr. Von Ludwig in his expert opinion, based on his own experiments, can state to a certainty, a scientific certainty, that to dump this container upside down and empty it of liquid takes three minutes.
Now, how wrong was Mr. Von Ludwig? Mr. Von Ludwig is 500% wrong. Now on the surface that seems wrong too, because *571 you would think that if 30 seconds on the one hand as opposed to 180 seconds on the other, it seems like it would be 600% wrong, but I tell you now, and you can check it if you are a mathematician or an actuary, Mr. Von Ludwig is not 600% wrong, he's only 500% wrong, or stated another way, it takes one-sixth of the time he says it would to do what we did. 500% wrong.
On the last day of the trial, while awaiting the jury's verdict, defendant's counsel said to the judge:
I would also like to augment what I requested last night * * * when the prosecutor made his demonstration before the jury in his summation with respect to the pouring of the water, your Honor, I noticed that during the demonstration, that the prosecutor used a certain kind of watch. I never saw the watch. I never had an opportunity to inspect it. There was some kind of a counting down of seconds. The prosecutor indicated it came to 27 or 28 seconds, I don't recall what, but I feel that that watch should be made a part of the court's exhibits and kept as part of the record in this case.
The judge responded: "I don't have to hear any more. I'll take judicial notice that the pouring took between 27 and 30 seconds. Objection noted and overruled. I timed it too." This took place after the case was committed to the jury but nevertheless it should be clarified. This is not the kind of fact of which a court may take judicial notice. The mere fact that the judge himself timed the demonstration does not make it any more appropriate as a subject of judicial notice than the prosecutor's timing.
As applied here, the theory of judicial notice is that where the court is justified by general considerations in declaring the truth of the proposition without requiring evidence from the party, it may take judicial notice of same. 9 Wigmore, Evidence (3 ed. 1940), § 2565 at 531. It is, however, plainly accepted that the judge is not to use from the bench, under the guise of judicial knowledge, that which he knows only as an individual observer, op. cit. § 2569 at 540. See also, Soper v. Conly, 108 N.J. Eq. 370 (Ch. Div. 1929), aff'd 107 N.J. Eq. 537 (E. & A. 1931); Amadeo v. Amadeo, 64 N.J. Super. 417 (App. Div. 1961).
*572 The demonstration should not have been permitted. It was clearly performed for the purpose of providing evidential rebuttal of Von Ludwig's testimony. Ordinarily it is discretionary with the court as to allowing an experiment to be performed in the jury's presence. Demonstrations or experiments may be justified on the ground that they tend to enlighten the jury on an important point. "But caution and prudence should govern in each instance, depending upon the circumstances and the character of the demonstration." State v. Foulds, 127 N.J.L. 336, 344 (E. & A. 1941). The demonstration must be performed within the scope of the evidence in the case. For example, in State v. Gear, 115 N.J. Super. 151 (App. Div. 1971), certif. den. 59 N.J. 270 (1971), it was held that a witness could demonstrate that there is such a substance as water-soluble paper by performing the experiment in the presence of the jury without establishing that the paper used was the type allegedly used by the defendant. This, however, was where the purpose of the demonstration was only to show that there was such a substance.
The court in that case said:
* * * By showing the jury the use of such paper he fulfilled the requirement that the demonstration must be substantially the same as that described in his testimony. 2 Wharton, Criminal Evidence (12 ed. 1955), § 684 at 645. See, generally, 2 Underhill, Criminal Evidence (5 ed. 1956), § 517; 29 Am. Jur.2d, Evidence, § 818 at 908; Annotation, 76 A.L.R.2d 354 (1961). [115 N.J. Super. at 154]
It is difficult to understand why the prosecuting attorney did not use the receptacle which had been marked in evidence as a substantial representation of those which Festa testified as having been used in connection with setting the fire. We do not mean to indicate that the experiment would have been legally permissible even if the exhibit had been used, but it accentuates even more the impropriety of the demonstration.
*573 In Robinson v. Kathryn, 23 Ill. App.2d 5, 161 N.E.2d 477 (App. Ct. 1959), it was held that such demonstration must take place during the taking of testimony or the presentation of evidence, so as to permit an opportunity for cross-examination. As stated by the court in that case (161 N.E.2d at 479): "The place for demonstrative evidence and the time for demonstrative evidence is during the course of the trial and prior to final argument." That holding comports with our own views. Moreover, the action of the prosecuting attorney was within the prohibition against commenting upon matters outside the evidence during summation. See State v. Adams, 50 N.J. 1 (1967); State v. Hill, 47 N.J. 490 (1966); State v. Gould, 123 N.J. Super. 444 (App. Div. 1973), certif. den. 64 N.J. 312 (1973); State v. Ebron, 122 N.J. Super. 552 (App. Div. 1973), certif. den. 63 N.J. 250 (1973); State v. Bruce, 72 N.J. Super. 247 (App. Div. 1962), and State v. Bogen, 23 N.J. Super. 531 (App. Div. 1952).
Accordingly, we are of the view that the convictions must be reversed. Since a new trial must be had we have also considered appellant's contention that the trial judge erroneously denied a change of venue to Hudson County. Since appellant is the only party to be tried and the arson allegedly took place in Hudson County, we remand without prejudice to the renewal by appellant of his motion for a change of venue. The motion should be made within ten days and should be considered favorably by the assignment judge unless sound reasons exist for denying it. R. 3:14-1.
Reversed and remanded pursuant to directions. We do not retain jurisdiction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266734/ | 4 F.Supp. 61 (1933)
WALD STORAGE & TRANSFER CO.
v.
SMITH et al.
BEARD
v.
SAME.
Nos. 547, 550.
District Court, S. D. Texas.
June 23, 1933.
Hirsch, Susman & Westheimer, of Houston, Tex., for plaintiff Wald Storage & Transfer Co.
James J. Shaw, of Houston, Tex., for plaintiff Beard.
Elbert Hooper, Asst. Atty. Gen., for defendants.
Before HUTCHESON, Circuit Judge, and WEST and McMILLAN, District Judges.
HUTCHESON, Circuit Judge.
By these two suits, each of the plaintiffs, alleging that he has applied for and been refused a permit to engage in interstate commerce as a contract carrier, seeks an injunction against the state commission and others to restrain them from interfering with his operations. Wald Transfer & Storage Company is a Texas corporation, engaged in the business of transporting property for hire over the highways of the state of Texas, and has been so engaged for the last seventeen years. Pending the action of the commission on its application for permit, it has been permitted to operate under a license as a Class B motor carrier. It is not, and does not intend to be, engaged as a common carrier. Hauling under a contract with one forwarder, it seeks the permit in order to do only that business. Its equipment is in good condition; it has always submitted, and is willing to submit, to any of the regulations the commission may promulgate.
Beard is, and for some time past has been, engaged in the business of a private contract carrier. Pending the action of the commission he has been permitted to operate under license as a Class B motor carrier. He is not, and will not be, engaged as a common carrier. The sole business which he proposes to do, and for which he asks a permit, is the handling, under private contract, wholly within the state of Texas, of goods moving in interstate commerce. Along with many others, these two filed their applications for permits to operate as contract carriers. After these applications were filed and before they were acted upon, they were amended so *62 as to ask for a permit to engage only as a private carrier in the transportation of commodities in interstate commerce between the cities of Houston and Galveston and other cities of Texas. In purported compliance with the statutory requirement that it set out the highways which it was proposed to operate over, the commodities which it was proposed to carry, and the cities and towns it was proposed to serve, the applications took the widest range. Beard's application, for instance, had attached to it the highway map of Texas, and in his application and by reference he proposed to operate between practically every city and town in the state and over practically every highway, and to carry practically every commodity which moves or might move in interstate commerce. Wald's application is not in the record, but from the briefs it appears that it was of substantially the same generality. After the amendment these applications were treated as substantially applications to transport commodities under contracts with the Universal Carloading & Distributing Company, a forwarding agency, over principally Highway 75, Houston to Dallas, Highways 3 and 3(a), from Houston to San Antonio, Highway 6, from Houston to Waco, and Highways 6 and 2 from Dallas to San Antonio, via Waco and Austin, and while the proof as to the condition of the highways to withstand traffic, their condition as to congestion and present and future burdens, covered practically all of the highways of Texas, the burden of contention settled on the conditions on the Highways last named.
These applications were combined with other applications including that of the Galveston Truck Line Company and the hearing took wide range, covering not only the question of the condition of the highways as to their ability to bear traffic burdens, and as to congestion and conditions of safe travel thereon, but as to the adequacy of existing transportation facilities, and the effect of the proposed operations upon them. The application of the Galveston Truck Line was first acted on. This was refused on the ground that to grant it would impair existing transportation facilities. This court, in Galveston Truck Line Corporation v. C. J. Allen, 2 F. Supp. 488, holding that the commission had no authority to refuse permits to engage in interstate commerce on considerations of that kind, granted an injunction against the commission restraining them from interfering with the operation of that line. Shortly thereafter, on January 25, when these applications were decided, the commission, in deference to the opinion of this court in the Galveston Truck Line Case, rendered its decision on these applications wholly upon considerations of traffic conditions, what the highways were constructed to bear, the congestion of traffic on them, and excluding from consideration all questions of competition in carrier service, rendered an opinion which concluded as follows:
"After careful consideration of the testimony concerning the nature of the proposed service, the traffic conditions on the highways, the character and type of construction of said highways, and the use sought to be made of same by the applicants without any consideration of the adequacies of existing transportation facilities and the effect of the proposed operations by the applicant upon such existing transportation facilities, the Commission is of the opinion and finds the following facts:
"1: That it is doubtful whether or not the service proposed by this applicant would strictly conform to the definition of a contract carrier.
"2: That the extent and the manner of the use of the highways proposed by the applicants will unreasonably interfere with the use of the highways by the general public for highway purposes.
"3: That the use sought to be made of the highways proposed to be used by said applicant will constitute a future undue burden on said highways if the Commission should grant such permit.
"4: That the use of the streets of some of the cities and towns through which such operations will extend will unreasonably interfere with the use of such streets by the general public for ordinary purposes.
"It is therefore ordered, adjudged and decreed by this Commission, that the application of ____ for a permit to operate as a contract motor carrier in the transportation of property for hire as set forth in the application be, and in all things is, hereby denied."
Contesting this order as beyond the power of the commission to make, these suits have been filed.
Prior decisions of this court, Sproles v. Binford (D. C.) 52 F.(2d) 730, affirmed 286 U. S. 374, 52 S. Ct. 581, 76 L. Ed. 1167; Stephenson v. Binford (D. C.) 53 F.(2d) 509, affirmed 287 U. S. 267, 53 S. Ct. 181, 77 L. Ed. 288; Sage v. Baldwin (D. C.) 55 F. (2d) 968 (not appealed); C. J. Allen v. Galveston Truck Line Corporation, 53 S. Ct. *63 694, 77 L. Ed. ___; and the recent decision of the Supreme Court of the United States in line with all of these, C. A. Bradley v. Public Utilities Comm. of Ohio, 53 S. Ct. 577, 77 L. Ed. ___, decided April 10, 1933, have established the full right of the state to control, by prohibition and permit as to intrastate business and its right also to control the use of the public roads by persons desiring to use them for hire as to interstate business, by prohibition and permit, in the exercise of police power of the state to promote safety of life and limb, and the convenience of use of the highways for the purposes for which they were primarily designed, as well as for the preservation of the state's property in the roads and their protection against injury and destruction. They have narrowed this case to a very small compass. That compass embraces two questions: (1) Has the state authorized the commission, in determining whether it will grant a permit to contract carriers, to consider questions of the safety and convenience of highway use for the purposes for which it was primarily designed and the preservation of the state's property in the roads, that is, on the grounds of safety of the highways and of the public having the primary right to use them; and (2) if it has, have the plaintiffs shown that the action of the commission in this case is arbitrary. That is, have plaintiffs sustained the heavy burden which rests on them of overcoming the prima facies accorded to the orders of the commission when made within the apparent scope of their granted powers by a showing that they are unrelated to the purposes sought to be achieved, and are mere arbitrary fiats? Nectow v. Cambridge, 277 U. S. 183, 48 S. Ct. 447, 72 L. Ed. 842; McLeaish v. Binford (D. C.) 52 F.(2d) 151.
An examination of the statutes and the decisions in the light of the Sage Case, supra, will show that though the Legislature has in terms made no distinction between inter and intra state business, the courts have worked out a construction of the statutes which finds valid and effective, as applied to interstate business, those provisions in it which have to do with the protection of the highways from inordinate and unsafe uses, and the protection of the safety of those having the primary right to use them, while striking down those provisions which authorize the commission to refuse permits for interstate operations based on purely or mainly competitive conditions, that is, considerations of the adequacy of existing transportation facilities, and the effect of the proposed operations on such facilities.
Plaintiffs conceding, as they must, that the Legislature may authorize the commission to exclude from the highways persons undertaking to engage in the business of contract carriers for hire, upon considerations of the safety of the public and of the highways, contest the order as unsupported either in law or in fact. As unsupported in law, because the Legislature, while specifically authorizing the commission to refuse certificates of convenience and necessity to common carriers upon considerations of safety to highways and the public, has not made this one of the conditions on which a permit to a contract carrier may be refused, but has limited the right of the commission to refuse permits entirely to considerations of whether the efficiency of existing common carriers would be impaired. They point to section 6 (Vernon's Ann. Civ. St. Tex. art. 911b, § 6), setting out the things which an applicant for a permit must show before it will be granted, as in effect providing that if the application for the permit makes such showing it must be granted. They argue that section 3 (Vernon's Ann. Civ. St. Tex. art. 911b, § 3), providing that no motor carrier shall operate as a contract carrier without having first obtained a permit, and sections 6 and 9 (Vernon's Ann. Civ. St. Tex. art. 911b, §§ 6, 9), setting out what the commission is to consider in granting or refusing permits and certificates, limit the action of the commission to those things set out, and make their refusal, except for causes there fixed, invalid. Defendants point to the general purposes of the act, its general provisions, to section 4 (d) (Vernon's Ann. Civ. St. Tex. art. 911b, § 4 (d), "The Commission is further authorized and empowered and it shall be its duty to supervise and regulate motor carriers in all matters whether specifically mentioned herein or not so as to carefully preserve, foster and regulate transportation and to relieve * * * future undue burdens on the highways arising by reason of the use of the highways by motor carriers, adjusting and administering its regulations in the interest of the public," as authority to the commission to do just what it has done. They argue that it is a strained and unreasonable construction of the act, designed as it is to protect the highways from undue burdens, to say that the commission may refuse certificates to common carriers, because the highways will not permit the service, and may refuse certificates to common carriers because of too great congestion or danger to the public having the primary right to use them, but may *64 not refuse permits to contract carriers, upon the same considerations.
We think the defendants are right. The case is not one like some of those cited by plaintiffs, Arkansas R. R. Commission v. Ind. Bus Line, 172 Ark. 3, 285 S. W. 388; Richland Gas Co. v. Hale, 169 La. 300, 125 So. 130; Chicago Motor Coach v. City of Chicago, 337 Ill. 200, 169 N. E. 22, 66 A. L. R. 834; Ex parte Patterson, 42 Tex. Cr. R. 256, 58 S. W. 1011, 51 L. R. A. 654, where the power to regulate and control has been granted, but the power to suppress or prohibit has been withheld. The very purpose of the act under consideration here was to limit, by prohibiting, the use of the public roads by carriers for hire so as to conserve them for their more effective, safe, and convenient use by the general public, the primary purpose for which they were intended, as well as to conserve and strengthen the transportation facilities of the state. The whole structure of this act shows that it was directed not primarily at the regulation of a particular carrier, but at the regulation of the use by carriers for hire generally, of the public roads, with the prime purpose to so limit their use as to conserve the roads for their primary uses. While we agree, therefore, with plaintiffs that, generally speaking, the power to regulate does not carry with it the power to destroy or to prohibit altogether, and that if a construction of the statute can yield no more than that as to interstate business, the commission cannot prohibit the use of the roads, but can only regulate those who use them, plaintiffs must have their permit, we do not think that the statute can be so limited. We think it plain that the provision in it for denying to contract carriers the right to permits where the territory is already adequately served, was not intended to be exclusive of the right to deny such permit where bridges or pavements are inadequate, or the traffic congestion is too heavy for public safety or convenience. We think it plain that the statute, construed as a whole, authorizes the commission to exclude from the highway those who propose to make their living by hauling on them, contract as well as common carriers, upon proper considerations of highway and public safety.
Coming to the second point, that the record shows that the commission's order was arbitrarily made upon considerations of competition, rather than of traffic and highway safety, that it shows that there is no sound basis upon which the order could rest, we think plaintiffs have failed here too. Their applications sought permits to operate over practically every highway in the state. If we take these applications on their face, and the refusal of the commission as directed to them as presented, which it seems plain to us we must, Bradley v. Public Utilities, supra, it must be said that the record as to the number of weak bridges and bad roads in the state overwhelmingly supports their orders refusing permits for such indiscriminate operations. Further, if we take their applications, as in its opinions, though not in its orders the commission seems to have done, as limited to the main highways over which they expect to operate, plaintiffs find themselves confronted with the fact that as to these highways there was ample testimony to support the commission's finding that they are far too heavily congested, and that the safe and convenient operation over them of vehicles having the primary right to run on them, and of persons using the streets and roads, will be greatly abridged and injured by the use of them which plaintiffs design to make. It may be that the commission, in refusing the permits, considered these applications as two of many, and that they reached their conclusion of injury to the highways and to public safety upon the erroneous view that if they granted plaintiffs' applications they must grant all the rest.[1] It may be that they would not have refused plaintiffs' permits in view of their long engagement in the business of contract carriers and general fitness for that service, had they considered them wholly apart from the others. The evidence makes a very strong case for the holding that it would be greatly injurious to the highways and to the safe and convenient use of them, to grant all the permits, applications for which are being pressed. A case, of course, much stronger than is made for the refusal of one or two. We cannot say, however, that even considered from the standpoint alone of the application of the plaintiffs, the record is so wanting in evidence in support of their exclusion as that the prima facies which attend the commission's action [People's Petroleum Producers v. Sterling (D. C.) 60 F.(2d) 1041] are overthrown and the orders are invalid.
We conclude that no case is made out for an injunction, and so finding, we dismiss the bills for want of equity.
NOTES
[1] See Terrell's affidavit, and evidence of some of the witnesses on the number of trucks which would be turned loose on the highways if the commission were compelled to grant indiscriminately all applications for the moving of commodities to and from the ports. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266747/ | 440 Pa. 147 (1970)
Commonwealth
v.
Brandon, Appellant.
Supreme Court of Pennsylvania.
Submitted May 6, 1970.
October 9, 1970.
*148 Before BELL, C.J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Harry L. Green, Jr., First Assistant Public Defender, for appellant.
Stewart J. Greenleaf and Paul W. Tressler, Assistant District Attorneys, Parker H. Wilson, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
OPINION BY MR. JUSTICE O'BRIEN, October 9, 1970:
The appellant, Willie C. Brandon, was arrested and indicted on a charge of homicide, which homicide had occurred April 30, 1960. On November 1, 1960, Brandon, while represented by his attorney, entered a plea of guilty to the charge of murder. Four judges, sitting as a court en banc, found appellant guilty of second-degree murder after hearing testimony to determine the degree of guilt. He was sentenced to a term of ten to twenty years.
On December 4, 1968, appellant filed a Post Conviction Hearing Act petition raising (1) the issue of the deprivation of his right of direct appeal, and (2) the general denial of constitutional rights. The hearing *149 court allowed his appeal nunc pro tunc, and the case comes before us on that appeal.
Appellant raises only one question on this appeal. He claims his plea of guilty, although entered on the advice of competent counsel, was not valid because it was not his knowing, intelligent and voluntary act. In this silent-record case, appellant emphasizes, as the motivation for his guilty plea, the existence of a confession, which confession the hearing court held to be inadmissible because counsel was denied admission while the statement was being taken.
However, before the police took his written statement, which was held inadmissible, appellant had made oral admissions substantially similar to his statement when he had voluntarily turned himself over to the police. In addition, at the degree-of-guilt hearing, a number of witnesses testified that appellant came into a bar, holding a gun, and asking for the decedent. Moreover, the United States Court of Appeals for the Third Circuit has recently held that when a defendant has been represented by competent counsel, the burden is on him to prove that his plea was not entered as an intelligent act done with sufficient awareness of the relevant circumstances and likely consequences. United States ex rel. Grays v. Rundle, 428 F. 2d 1401 (3d Cir. 1970). As Judge FREEDMAN wrote in his concurring opinion in Grays: "Where the defendant pleads guilty with the advice of counsel, however, there is no reason to presume that he was ignorant of the nature of the charge or the consequences of the plea. Indeed, the more rational assumption is that all the necessary considerations which should have been recorded at the guilty plea proceedings were canvassed with him by his counsel before the decision to plead guilty was reached. In such a case, therefore, even though the record is silent, we should presume that the plea of guilty was voluntarily *150 entered as an intelligent and knowing act rather than presume the contrary."
The existence of the inadmissible statement alone, without more, cannot vitiate the guilty plea. Appellant, who does not deny he was represented by competent counsel at the time of his plea, has not met his burden of proving that he should be permitted to withdraw the plea.
Judgment affirmed.
CONCURRING OPINION BY MR. JUSTICE ROBERTS:
I concur in the majority's result. Appellant has failed to demonstrate that the allegedly coerced confession was the primary basis for his guilty plea. His oral admissions, and the Commonwealth's witnesses who saw him at the bar, provide a reservoir of evidence which could have motivated the plea independently of the challenged confession. Cf. Commonwealth v. Baity, 428 Pa. 306, 237 A. 2d 172 (1968); Commonwealth v. Garrett, 425 Pa. 594, 229 A. 2d 922 (1967). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266756/ | 4 F.Supp. 496 (1933)
McNEE
v.
WALL et al.
District Court, S. D. Florida, Miami Division.
August 22, 1933.
D. C. Hull and Hull, Landis & Whitehair, all of Deland, Fla., for complainant.
Cary D. Landis, Atty. Gen., H. E. Carter and Robert J. Pleus, Asst. Attys. Gen., and T. T. Oughterson and Evans Crary, both of Stuart, Fla., for defendants.
Thomas B. Adams, of Jacksonville, Fla., and Sutton, Tillman & Reeves, of Tampa, Fla., amici curiæ, for defendants.
Before BRYAN, Circuit Judge, and RITTER and STRUM, District Judges.
BRYAN, Circuit Judge.
This is a suit, brought by a holder of bonds of a taxing district known as the St. Lucie Inlet district and Port Authority, to enjoin officers of the state of Florida, whose duty it is under the law to collect state, county, and district taxes, from accepting bonds and matured interest coupons issued by that district in redemption of tax sale certificates held by the state in so far as such certificates represent taxes levied for the purpose of retiring the bonded indebtedness of that district. It is before us now upon an application for an interlocutory injunction, pursuant to 28 USCA § 380. In support of that application, it is contended on behalf of the plaintiff that the tax-collecting officials are without lawful authority to accept anything except money in redemption of delinquent tax certificates and liens held by the state, but that they will, unless enjoined, accept county and district bonds in lieu of money, in accordance with provisions of chapter 16252, Laws of Florida, enacted in 1933, which purport to authorize the acceptance of county and district bonds at par in satisfaction of county and district delinquent taxes; that those provisions, to the extent at least that they affect plaintiff's rights, are unconstitutional, in that they impair the obligation of the contract under which plaintiff's bonds were issued, in violation of section 10, article 1, of the Constitution of the United States.
The St. Lucie Inlet district was created by chapter 9631, Special Laws of 1923, and given authority to issue $250,000 of bonds. That chapter was so amended by chapter 11693, Laws of 1925, Special Session, as to enlarge the district and permit the issuance of $1,250,000. Provisions of the 1923 act, which were declared to constitute "an irrepealable *497 contract" between the district and the holder of any bonds, were made for the annual levy by a district board of taxes on real and personal property with which to create a sinking fund and pay the bonds, principal and interest; for the assessment of taxes so levied; and for their collection by the county tax collector "in the same manner as other taxes are collected."
According to the averments of the bill of complaint, which, not having been denied, are assumed for the purposes of this hearing to be true, the plaintiff is a citizen and resident of a state other than Florida, owns no property subject to taxation within the district, but does own bonds issued by it of a par value of $43,000, and past-due interest coupons amounting to $3,500. The district in 1925 issued $250,000 and in 1926 $1,000,000 of bonds, and pledged its full faith and credit for the payment of the principal and interest thereon. The uncollected taxes levied for the years 1926 to 1931, inclusive, amount to over $200,000, as shown by tax sale certificates, a large proportion of which is held by the state. The district has outstanding bonds and interest coupons in default aggregating approximately $155,000, with only about $23,000 in the interest and sinking funds applicable to the payment thereof, with the result that the amount to which plaintiff is entitled is negligible. The combined effect of chapter 16252, of compliance with it, and of the district's default on its bonded indebtedness, has been to depreciate the market value of the bonds and coupons to such an extent that they are being bought for less than their face value and are being turned in by land owners at par in payment of taxes. Plaintiff, as well as all other bondholders who are not taxpayers, are prejudiced and discriminated against, in that they will be compelled either to sell their bonds and coupons at the depreciated market value, or to hold them without any reasonable expectation of having them paid off so long as bonds are available for the payment of delinquent taxes.
The system of taxation in force in Florida in 1925 and 1926, at the times when the district issued its bonds, is set forth in chapter 1, title 6, Compiled General Laws of 1927. All property is subject to taxation annually, and all taxes create a first lien which continues in force until discharged by payment, and may be enforced by suit in equity. Sections 894, 896. If the taxes upon any real estate are not paid within the time prescribed, the tax collector advertises and sells the land. Section 969. He gives to the purchaser a tax sale certificate, section 981; and, if there be no private bidder, he bids off the "whole tract" for the state. Section 972. The certificates are transferable by indorsement at any time before they are redeemed or a tax deed is issued. Section 982. All certificates owned by the state are held by the clerks of the circuit courts of the several counties wherein the lands are located, not only for sale, but also for redemption. Section 983. Land certified to the state is marked on future tax rolls, though the amount of taxes thereon is not extended, but when the land is redeemed the taxes are paid at the rate of taxation levied for the years "marked as aforesaid." Section 984. The owner of land has the right to redeem it at any time after the tax sale and before a tax deed is issued. Section 985. The holder of any tax certificate at any time within two years after the date of its issue may obtain a tax deed by making proper application. Section 1003. Where land is bid off for the state, "and if the land is not redeemed or the certificate sold by the State, the title to the land shall, at the expiration of the time for redemption, vest in the State without the issuing of any deed, as provided for in other cases, and the certificate shall be evidence of the title of the State," etc. Section 1027.
Chapter 16252, the statute here under attack, in section 6 provides: "That bonds or matured interest coupons of all counties or other taxing district shall be receivable at par and in lieu of money in redemption of tax sales certificates or other evidences of tax liens held in the name of the State, covering lands sold for non-payment of State and County or other taxing district taxes to the amount of the delinquent taxes which were levied in each county or other taxing district for all purposes other than the levy made for State taxes." And in section 7 it provides that any person entitled to do so may redeem his lands from tax sale certificates held by the state by paying the state's portion of the taxes in cash and by paying the portions which represent taxes levied for county or district purposes in bonds at par. Other sections of the act provide for a sort of moratorium by requiring the state to withhold from sale tax sale certificates which it now holds upon conditions therein stated for a period of five or twenty years. But that feature of the act is not now before us for consideration, since as against it the plaintiff in this case seeks no relief.
*498 The act of 1923, by authority of which the district issued its bonds, provides for the annual collection of taxes "in the same manner as other taxes are collected." Under an established principle of law, as well as by its terms, that statute entered into and formed a part of the contract between the district and any holder of its bonds. McCracken v. Hayward, 2 How. 608, 614, 11 L. Ed. 397; Hull v. State, 29 Fla. 79, 88, 11 So. 97, 16 L. R. A. 308, 30 Am. St. Rep. 95. The obligation of a contract is the means provided by law for the enforcement of it. Sturges v. Crowninshield, 4 Wheat. 122, 197, 4 L. Ed. 529. Any law which materially changes the binding force of a contract necessarily impairs it. Green v. Biddle, 8 Wheat. 1, 84, 5 L. Ed. 547; Ogden v. Saunders, 12 Wheat. 213, 256, 6 L. Ed. 606. Under the law of the contract, the district's taxes, like state and county taxes, could be paid or redeemed only in money, since there was then no provision of law permitting settlement or discharge of any taxes in any other way. Frier v. State, 11 Fla. 300; Finnegan v. Fernandina, 15 Fla. 379, 21 Am. Rep. 292. In our opinion subsequent legislation which so materially changes the contract as to permit the payment or redemption of taxes in bonds in lieu of money necessarily impairs that contract and must fail in its object because it violates section 10 of article 1 of the Federal Constitution. In Crummer v. City of Fort Pierce, 2 F. Supp. 737, this court held that current taxes, which the law of the contract provided should be payable in money only, could not by subsequent legislation be made payable in bonds in lieu of money. The defendants do not here deny that this is so, but they seek to distinguish that case from this one because the attempt now is to authorize, not the payment of current taxes in bonds, but the discharge of delinquent taxes in bonds in cases where the period of redemption has expired and the tax certificates are held by the state. The argument is that the state in such cases has acquired title to the lands and, being the owner thereof, may, like any other owner of property, dispose of it on such terms and conditions as it sees fit. The conclusion is that the state therefore has the right to exchange delinquent tax certificates which are more than two years old, and which constitute the evidence of its title, for bonds of the district. The fallacy of that argument, as it seems to us, is that the state does not become the absolute owner of the lands upon the expiration of the two-year period of redemption. It is true that Comp. Gen. Laws § 1027 declares that, after the period of redemption upon tax certificates held by the state has expired, the title shall vest in the state without the issuance of a deed. This section is to be construed in connection with section 985, which gives the owner of land the right to redeem it after the period of redemption has expired at any time before a tax deed is issued. Other sections above referred to show clearly that the state's title as well after as before the period of redemption has expired is subject to be redeemed by the owner of the land. The state is given a lien that continues in force until it is discharged by payment or is enforced by suit in equity. It must transfer any tax sales certificates however old to any one who is willing to purchase them by discharging all taxes upon the land. When it transfers these certificates, the purchaser does not obtain title until he gets a tax deed. Until a tax deed is issued the owner has the right to redeem by the payment of all past-due taxes, interest, and penalties. These provisions are inconsistent with the theory that the state, upon the expiration of the period of redemption, becomes the absolute or unconditional owner of the land. They have been so construed by the Supreme Court in Hightower v. Hogan, 69 Fla. 86, 68 So. 669, and their effectiveness is recognized by the recent decision of the Supreme Court in State v. Butts (Fla.) 149 So. 746, August 3, 1933. Delinquent tax certificates are held by the state as security for the payment of taxes due, not only to it, but to counties and other taxing units or districts as well. It is trustee for the counties and other taxing units, and it would seem to follow as a matter of course that the state cannot be made by subsequent legislation to violate its duties as trustee by compelling its counties and taxing districts to accept bonds at par in lieu of money, even though the bonds may not be worth par. The bondholders are entitled to insist upon the performance of the contract which the law made for them substantially according to its terms. The rights of bondholders were not before the Supreme Court of Florida in State v. Butts, supra, and so that decision cannot justly be said to affect them. Mr. Justice Whitfield, who wrote the majority opinion in that case, was careful to state that the court was only passing upon the rights of the parties before it, and that none of them had any just cause of complaint.
Our conclusion is that the plaintiff is entitled to the interlocutory injunction for which she prays. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266763/ | 4 F.Supp. 715 (1933)
HOUSTON PRODUCTION CO.
v.
UNITED STATES.
No. 2152.
District Court, S. D. Texas, Houston Division.
September 16, 1933.
*716 Selden Leavell, of Houston, Tex., for plaintiff.
E. Barrett Prettyman, Gen. Counsel, Bureau Internal Revenue, and Wm. B. Waldo, Sp. Atty., Bureau Internal Revenue, both of Washington, D. C., and H. M. Holden, U. S. Atty., and Douglas W. McGregor, Asst. U. S. Atty., both of Houston, Tex., for the United States.
HUTCHESON, Circuit Judge.
Plaintiff, in 1924, made a payment to one of its officers on account of services which, though rendered in past years, did not become an obligation of the company until voted by the directors in this year. In its income tax return it took credit for this amount as an ordinary and necessary expense, and in arriving at its net income from its producing properties for the purpose of discovery depletion, it allowed 70 per cent. of this amount as an expense of those properties, and as such deducted it from its gross income. The commissioner rejected the item altogether as an expense for that year in determining the net income both of the company generally and of the producing properties, and determined a deficiency accordingly. Thereafter, on the authority of Lucas v. Ox Fibre Brush Co., 281 U. S. 115, 50 S. Ct. 273, 74 L. Ed. 733, plaintiff was allowed a refund on account of this exclusion; but in figuring it, the commissioner gave the same effect to the salary payment, both in regard to the net income of the company and of the producing properties that the plaintiff had done in its return.
Plaintiff, dissatisfied with this result, claiming that no part of the salary payment should have been deducted in determining the net income of the producing properties, sued to recover, as an overpayment for the calendar year 1924, the amount by which its taxes were increased by the deduction.
The defendant, insisting that the commissioner correctly used the salary item, and that it owes plaintiff nothing, asserts in offset to plaintiff's claim that an additional sum, more than the amount of the claim, is due defendant by plaintiff through the failure of the plaintiff and of the commissioner to take into account as a deduction from the gross income of the producing properties, in determining the discovery depletion allowable, $29,000 allowed plaintiff as a deduction on account of abandoned wells on the depletable property. It urges, under the authority of Lewis v. Reynolds, 284 U. S. 281, 52 S. Ct. 145, 76 L. Ed. 293, that "the overpayment which must appear before the taxpayer may have a refund" is not an overpayment on a particular item, but an overpayment of the tax due, and that there can be no overpayment of a particular item if there are offsetting items due, even though these items, because of limitation, are not collectible.
Plaintiff concedes this position, admitting that if the items of abandoned wells are proper depletion deductions, it cannot recover, because of the offset, even though it maintains its position as to the incorrectness of the salary depletion deduction.
Defendant advances a step further, however. It presents by counterclaim an affirmative demand against plaintiff for the amount refunded to it, asserting that if the abandoned well items are proper deductions against depletion allowable, and the salary item is also, it should be given judgment for the refund though, because barred, the amount of tax due on account of the abandoned well deductions could not be collected by assessment. It declares that since an overpayment must appear before a refund is authorized, the action of the commissioner in making the payment amounts to an unauthorized taking of government funds, and that under the authority of Lewis v. Reynolds, supra, an action lies against plaintiff for the erroneous refundment as for moneys had and received. United States v. Bartron (D. C.) 35 F.(2d) 765; Western Wholesale Drug Co. v. United States (D. C.) 47 F.(2d) 770; Hartwell Mills v. Rose (C. C. A.) 61 F.(2d) 441; Carter Music Co. v. Bass (D. C.) 20 F.(2d) 390; Lewis v. Reynolds (C. C. A.) 48 F.(2d) 515; Id., 284 U. S. 281, 52 S. Ct. 145, 76 L. Ed. 293. That section 610, of the Act of 1928, 26 USCA § 2610, has no effect upon this right of recovery except to limit it to two years, and the action having been brought within that period, it may be maintained.
Plaintiff insists that defendant's cross-action, though in form not a suit to recover barred taxes, is in substance and effect such a suit. It argues that in the face of the taxing acts making barred taxes uncollectible, and declaring their payment to be overpayments, an action for money had and received will not lie to recover them. Champ Spring Co. v. U. S. (C. C. A.) 47 F.(2d) 1.
These contentions have been pressed earnestly and with vigor. And first, of plaintiff's suit.
The allowance of depletion is not essential to the validity of the tax. It is allowed in the nature of a gift. Stanton v. Baltic Mining Co., 240 U. S. 103, 36 S. Ct. 278, 60 *717 L. Ed. 546, Burnet v. Harmel, 287 U. S. 103, 53 S. Ct. 74, 77 L. Ed. 199. By the Act of 1921 (42 Stat. 256, c. 136, § 234 (a) (9), the principle that discovery depletion should be limited to the net income from the property on which the discovery was made, was first brought into the law. This limitation later deemed insufficient, the Act of 1924 increased it by limiting depletion allowance to 50 per cent. of the net income from the property. 43 Stat. 260, c. 234, § 204 (c), 26 USCA § 935 (c). The purpose of limitation on discovery depletion has been stated to be "in order to make it certain that the depletion deduction, when based upon discovery value, shall not be permitted to offset or cancel profits derived by a taxpayer from a separate and distinct line of business." Holmes, Federal Taxes (6th Ed.) p. 1135.
It is certain, then, that neither the statute, nor any regulation or practice under it, was intended to permit a depletion allowance in excess of one-half of the net income from the discovery properties, for this would not only be in the face of the words of the statute, but it would defeat the purpose which lay back of its passing.
I do not understand either plaintiff or defendant to contend differently. The defendant insists that by the use in the depletion section, of the words "net income," without more, it was intended that the net income for discovery depletion is to be determined in the same way and by the use of the same deductions, as was the net income from that property on which the corporation paid taxes. Plaintiff, declaring this to be a mistaken view, asserts that net income of a producing property for depletion purposes and net income of the corporation taxpayer are not the same thing in fact or by statute. That the net income of then producing property is the gross income less expenses necessary to produce it; the net income of the taxpayer is its gross income less prescribed statutory deductions. It contends, in short, that the net income of Act 1924 section 204 (c), the depletion statute, is to be determined under general accounting principles, while the net income under sections 232-234 (a), 26 USCA §§ 984 and note, 985, 986 (a) has been predetermined by the deduction provisions of the statute.
In support of its view it points to the regulations in force under the 1921-1924 Acts defining "net income" for discovery depletion as the gross income from the sale of all mineral production and any other income incidental to the operation of the properties for the production of mineral products, less operating expenses, including depreciation of equipment and taxes, to the General Counsel's memorandum, No. 2315 Bulletin, VI-2, p. 21, and to the testimony of expert accountants in the case, that no part of the salary item, on account of which it sues, was properly deductible as an operating expense of the depletable property for the year 1924.
Assuming without deciding, that the statute should, in the light of the regulations, be construed as meaning by "net income" gross income less operating expenses, and that if the salary payment was not properly allocable to the producing properties as an operating expense of that year, the commissioner incorrectly used it as a depletion deduction, the case made by plaintiff would still not entitle it to recover, for the very existence of its case springs from the fact that it claimed and was allowed a refund on account of this payment as an operating expense for that year.
"Taxation," as it has been said many times, is an eminently practical matter. Tyler v. U. S., 281 U. S. 497, 50 S. Ct. 356, 359, 74 L. Ed. 991, 69 A. L. R. 758. Because it is, it has been generally considered that "where the government and the taxpayer, by acquiescence in the manner of performing an act, have given a definite character and effect to it, the taxpayer will not be permitted, after deriving benefits from this acquiescence, to deny this character and effect to it, or to change his position at the government's expense." Hartwell Mills v. Rose (C. C. A.) 61 F.(2d) 441, 444. Plaintiff claimed this salary as an operating expense; it was allowed to it as such. In its claim and affidavits in support of it, it brought this salary payment within the Ox Fibre Case as a proper operating expense for that year. It may not, having by such characterization obtained a refund of it, give it now a different character in order to obtain an additional refund.
The matter of the abandoned well items, which, since plaintiff has no claim to offset, comes up now only upon defendant's affirmative counterclaim, stands differently. Consistency has marked plaintiff's course in regard to these items throughout. The commissioner has concurred. The defendant, suing upon equitable principles for moneys had and received, has the burden then to establish that the treatment accorded these items by plaintiff and the commissioner, in not using them as deductions for depletion, was so plainly contrary to the statute as that it may be said that plaintiff is in possession of money which it was not entitled to obtain, and therefore *718 may not justly withhold. Plaintiff's reference to the General Counsel's ruling fully supports its position that the treatment given these items was in accordance with the general practice and custom of the bureau. Defendant argues that to give the statute the effect of permitting a taxpayer to take deductions on account of losses occurring on depletable property in regard to the taxes it shall pay, without at the same time requiring those deductions to be made for the purpose of depletion, is to defeat the statute. It asserts that under the taxing statute the net income of the corporation taxpayer must be the sum of the net income from its producing properties, and that any other construction would defeat the statute. Plaintiff argues that to give the statute this meaning is to import into it a definition of net income as "gross income, less deductions allowed to the taxpayer in determining the tax on which he shall pay," a definition which it does not contain, in direct contradiction to the regulations, rules, and practices of the bureau, and to general principles of accounting.
Finally, plaintiff insists that the considerations of natural justice and equity are on its side, not on that of the defendant. I think plaintiff is clearly right here.
In Carter Music Company v. Bass (D. C.) 20 F.(2d) 390, this court, in an action by a taxpayer, found the defendants, under the circumstances of the case, to be under an obligation, from the ties of natural justice and equity, to return to plaintiff money it had wrongfully obtained. It was there pointed out that the action lies whenever a defendant has money of a plaintiff which it cannot show a legal or equitable ground for retaining, and that upon the finding that the money, ex æquo et bono, belongs to the plaintiff, that it had been obtained by the assertion of an unjust demand and was being wrongfully withheld, plaintiff should have judgment.
Here no such circumstances appear. In accordance with uniform practice, plaintiff claimed and was allowed a statutory loss deduction for abandoned wells. In accordance with the same uniform practice, plaintiff did not show these items as deductions for discovery depletion. It was not until defendant brought them forward in this suit as a make-weight, a balancer of the scales against plaintiff's demand, that any one was ever heard to urge these items as such deductions. The refund which plaintiff has had, it got, not as the result of misrepresentation, mistake, or concealment, but as the result of the application of the settled rules of the department to the facts it fairly and correctly stated in its return. Under these circumstances, the question whether the treatment, which the plaintiff and the commissioner gave to these abandoned well items in connection with discovery depletion, was or was not in accordance with the statute, is academic and abstract. It is not decided. What is decided is that though plaintiff may not recover, neither may defendant, for it has failed, by its evidence, to show that the plaintiff has money which, ex æquo et bono, it ought not to retain.
Let the judgment be that plaintiff take nothing by its suit; defendant nothing by its cross-action, and that defendant go hence with its costs. The motions for judgment of both plaintiff and defendant are denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8312916/ | John J. McConnell, Jr., United States District Judge
Pursuant to 34 U.S.C. § 10152(a), Byrne JAG Program provides federal funding for state and local municipalities to support local responses to criminal justice-related concerns upon timely receipt of an application by state or local municipalities. The U.S. Department of Justice administers the program. The City of Providence received $ 212,112 of Byrne JAG Program funding (ECF No. 20-3 at 79) and planned to use the funds to hire bilingual interpreter to support building cooperation with immigrant population in Fiscal Year 2017. ECF No. 20-3 at 8, 9. The City of Central Falls received $ 28,677 of Byrne JAG Program funding (ECF No. 20-3 at 51) and it was critical to the city funding local law enforcement after its 2012 bankruptcy. ECF No. 20-3 at 40.
The DOJ issued a press release stating it would enforce three conditions known as Access, Notice, and Section 1373 conditions on Byrne JAG Program funding. ECF No. 25 at 40.
• The Access condition requires a recipient to provide federal immigration enforcement agents with access to the recipient's correctional facilities. ECF No. 20-3 at 52-71.
• The Notice condition requires a recipient to provide federal immigration enforcement agents notice of a scheduled release for a suspected alien in custody. ECF No. 20-3 at 52-71.
• The Section 1373 condition prohibits a recipient from restricting their officials from sending or receiving information, described in 8 U.S.C. 1373(a), or maintaining, or exchanging information, described in 8 U.S.C. 1373(b), regarding citizenship or immigration status with federal immigration enforcement. ECF No. 20-3 at 52-71.
*163The Cities have filed a complaint alleging that the Access, Notice, and Section 1373 conditions violate the Separation of Power (Count 1), Tenth Amendment (Count IV), Spending Clause (Count V), and represent both ultra vires (Count 11) and arbitrary and capricious agency conduct (Count III). ECF No.15 at 30-38. The Cities now move for summary judgment on all claims relating to Byrne JAG Program funds for FY 2017. ECF No. 20 at 1. Also, the Cities seek a Writ of Mandamus directing the DOJ to immediately disburse the Cities' FY 2017 award funding and reissue FY 2017 award letters without the three challenged conditions. ECF No.20-1 at 63. Additionally, the Cities seeks a permanent injunction enjoining DOJ from imposing the Access, Notice, and Section 1373 conditions on the City of Providence and City of Central Falls. ECF No. 20-1 at 63.
The case before the Court now is not a novel one because several jurisdictions, such as the Northern District of Illinois and Eastern District of Pennsylvania, and the 3rd and 7th Circuits, have considered litigation on similar claims brought by similarly situated plaintiffs. The Court focuses its analysis on the threshold issue: whether statutory authority existed to authorize the Attorney General to enact the Challenged Conditions. If statutory authority was lacking, then the Court need not reach the other claims.
A. Statutory Authorization for the Challenged Conditions
The Attorney General presents three sources of statutory authority to impose the FY 2017 immigration-related conditions: the Byrne JAG statute itself, 34 U.S.C. § 10153(a) of the Byrne JAG statute, and the statutory provision defining the duties of the Assistant Attorney General for the DOJ's Office of Justice Programs found in 34 U.S.C. § 10102(a). In City of Philadelphia v. Attorney Gen. of United States of America , 916 F.3d 276, 292 (3d Cir. 2019), the Third Circuit rejected these identical arguments and held that the Attorney General lacks statutory authorization to impose the challenged conditions for the following highlighted reasons.
First, while the Byrne JAG statute delegates some authority to the Attorney General to withhold funds for a grantee's failure to comply with certain laws, the sweeping nature of withholding all of a grantee's funds for any reason the Attorney General chooses is not supported by its plain text. While the Attorney General argues that "examination of the relevant statutory framework of the Byrne JAG program makes clear that Congress did delegate such authority," (ECF No. 23 at 13), the Third Circuit explained that "[s]uch authorization is nowhere to be found in the text of the [Byrne JAG] statute." City of Philadelphia , 916 F.3d at 284.
Next, neither 34 U.S.C. § 10153(a)(4), relating to data reporting, nor 34 U.S.C. § 10153(a)(5), relating to Byrne JAG program funding recipients' certification that "there has been appropriate coordination with affected agencies," authorized imposing the Access and Notice conditions unrelated to the use of grant funds because the data-reporting requirement is limited to "programmatic and financial" information and the coordination requirement should be interpreted as relating to certification that there was appropriate coordination in terms of Byrne JAG program funding recipient applications.
The Attorney General also argues that the Section 1373 Condition is authorized by 34 U.S.C. § 10153(a)(5)(D), which requires Byrne JAG program recipients to "comply with all provisions of this part and all other applicable Federal laws," The Third Circuit rejected the argument that *164Section 1373 is an "applicable law" for several reasons. First, the term "applicable" must be given some independent effect as Congress did not write that the applicant must certify compliance with "all other Federal laws." Next, the applicable laws clause is located in the fourth of four subsections, all of which relate to the programs that will be funded under the grant. Additionally, the effect of the government's argument that the Section 1373 Condition empowers it to impose the challenged conditions is undercut by the "Administrative Provisions" section of the same chapter of the code as the Applicable Laws Clause, which states, "Nothing in this chapter or any other Act shall be construed to authorize any department, agency, officer, or employee of the United States to exercise any direction, supervision, or control over any police force or any other criminal justice agency of any State or any political subdivision." 34 U.S.C. § 10228.
Lastly, although, pursuant to 34 U.S.C. § 10102(a)(6), "[t]he Assistant Attorney General shall ... exercise such other powers and functions as may be vested in the Assistant Attorney General ... including placing special conditions on all grants," the word "including" is a limiting word meaning that "the power to place special conditions on grants only to the extent that such power has been vested in him or her 'pursuant to this chapter or by delegation of the Attorney General'."
The Third Circuit concluded by saying that neither the Byrne JAG statute nor any other provision of the United States Code vests the Attorney General or the Assistant Attorney General with the authority to place the three challenged condition on grant recipients.
The Court finds the reasoning of the Third Circuit persuasive and concludes that the Attorney General exceeded his statutory authority in imposing the Challenged Conditions.
B. Relief
a. Writ of Mandamus
Under the Mandamus Act, 28 U.S.C. § 1361, this Court is authorized to "compel an officer... of the United States or any agency thereof to perform a duty owed to" the Plaintiffs. Under the APA, 5 U.S.C. § 706(1), the Court is authorized to "compel agency action unlawfully withheld or unreasonably delayed." The Court considers the following factors under Section § 706(1) : (1) "[t]he length of time that has elapsed since the agency came under a duty to act," (2) "[t]he reasonableness of the delay ... in the context of the statute authorizing the agency's action," (3) "[t]he consequences of the agency's delay;" and (4) "[a]ny plea of administrative error, administrative inconvenience, practical difficulty in carrying out a legislative mandate, or need to prioritize in the face of limited resources."
• For the first factor, the Cities received their FY 2017 Award Letters on June 26, 2018 and the DOJ had a duty to pay the funds; however, no funds have been disbursed to the Cities. ECF No. 20-3 at 51 and 79.
• For the second factor, because 34 U.S.C. § 10156(a)(1) requires that "the Attorney General shall ... allocate " Byrne JAG program funding, there exist a mandatory duty on the DOJ to pay the funds as soon as possible. Thus, the Cities have experienced an unreasonable delay of almost two years.
• For the third factor, the City of Central Falls has demonstrated harm as the lack of Byrne JAG program funding, a critical component of the City's budget after its 2012 bankruptcy, *165is detrimental to the city's ability to fund local law. ECF No. 20-3 at 40. Furthermore, the City of Providence showed harm as the lack of Byrne JAG program funding will have a negative impact on local law enforcement efforts, such as the hiring of a bilingual interpreter to further support building cooperation with immigrant population, which has reduced crime by 32%. ECF No. 20-3 at 8, 9.
• For the fourth factor, the Attorney General has not pleaded an administrative error, administrative inconvenience, practical difficulty or need to prioritize limited resources that would prevent the DOJ from paying the funds.
b. Injunction
Because the Cities have pleaded, and the factual record indisputably supports harm tailored to the Cities, the Court finds an injunction as an appropriate remedy to restrain the alleged harmful conduct by the DOJ.
CONCLUSION
The Cities' Motion for Partial Summary Judgment (ECF No. 20) is GRANTED; and Attorney General's Motion to Dismiss or, in the alternative, Cross Motion for Partial Summary Judgment (ECF No. 23) is DENIED.
Moreover, the Cities' request for a Writ of Mandamus directing U.S. Department of Justice ("DOJ") to immediately disburse the Cites' FY 2017 award funding in according with the stipulation order (ECF No. 8) and reissue FY 2017 award letters without the three challenged conditions is GRANTED. ECF No. 20 at 73.
The Cities shall draft, in consultation with the Attorney General, consistent with today's ruling, a permanent injunction enjoining DOJ from imposing the Notice, Access, and Section 1373 conditions on them.
IT IS SO ORDERED. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2266781/ | 4 F.Supp. 83 (1933)
In re VANITY FAIR SLIPPERS, Inc.
District Court, S. D. New York.
June 27, 1933.
*84 Louis I. Hochstein, of New York City, for petitioner.
Bernard A. Grossman, of New York City, for trustee.
KNOX, District Judge.
Morris Wolff, the petitioner below, moved for an order directing the trustee in bankruptcy to turn over to him the proceeds of certain enumerated property and accounts to which he claimed he was entitled by virtue of a chattel mortgage and an assignment of accounts receivable executed by the now bankrupt corporation. The referee granted the motion. The trustee here seeks a reversal of this ruling.
On September 30, 1931, Wolff entered into a written agreement with the bankrupt corporation pursuant to which he loaned it $10,000. In return, the corporation gave him its noninterest-bearing promissory note due and payable December 31, 1931, in the sum of $10,400; the $400 representing a bonus for the making of the loan. As collateral security, Wolff received a chattel mortgage on the corporation's plant, which was duly filed, and an assignment of accounts receivable then on the books of the corporation, and of all future accounts that might come into being in the regular course of business. In addition, Wolff was elected a director and treasurer of the corporation, the agreement providing that he should occupy such positions until payment of the note. As treasurer, he countersigned all checks drawn on the bank account of the corporation, and had supervision and control of the corporate books of account, which contained entries of the accounts receivable assigned to him. The agreement provided that all new accounts should automatically be subjected to Wolff's lien, that the agreement itself should operate as an assignment of all such new accounts, and that Wolff would release to the corporation, such money as was received from existing accounts, upon condition that the corporation would simultaneously assign to him new accounts, subject to his approval, of a value at least as great as those which he relinquished to the corporation.
Between September 30, 1931, and January 27, 1932, when the corporation filed a voluntary petition in bankruptcy, a quantity of merchandise was returned by customers whose accounts had previously been assigned to Wolff. Although the agreement contained no stipulation regarding this contingency, Wolff testified that such returned merchandise was intended to be covered by his lien, and that Mr. Berkow, the corporation's secretary and general manager, subsequently stated that the merchandise covered by the assigned accounts belonged to him. It appears, also, that the returned merchandise was kept segregated and apart from other merchandise in the shop, and that the only packed merchandise on hand at the time of the bankruptcy was kept separate and was not mingled in any way with returned goods.
On January 19, 1932, Wolff gave notice to all debtors of the corporation that their accounts had been assigned to him and demanded payment. A few days later, due to the imminence of bankruptcy, he severed his official connection with the corporation. Irving Trust Company was appointed receiver on January 29, 1932, and on February 6, all the property of the bankrupt was sold at auction. To facilitate liquidation of the estate, Wolff and the receiver stipulated that the plant should be sold free and clear of the chattel mortgage, that the lien of the mortgage attach to the proceeds, that the accounts receivable be collected by Wolff's attorney and held by him until the further order of the court, that the returned merchandise be sold free of whatever lien Wolff might have upon it, and that such lien attach to the proceeds.
There is no question but that Wolff actually paid $10,000 to the corporation, that the agreement and chattel mortgage were made in good faith, or that the corporation was solvent at the time the transaction took place.
The validity of the chattel mortgage, the assignment of accounts, and the lien on returned merchandise, involving different questions, will be considered separately.
*85 First, the chattel mortgage is clearly valid under section 67d of the Bankruptcy Act (11 USCA § 107 (d), since it was executed and duly filed by the corporation, while still solvent, four months before the filing of the bankruptcy petition, and was given for good consideration without any intent to hinder, delay, or defraud creditors, Thompson v. Fairbanks, 196 U. S. 516, 25 S. Ct. 306, 49 L. Ed. 577; In re Baar, 213 F. 628 (C. C. A. 2nd); In re Mahland (D. C.) 184 F. 743; Sprague v. Glynn, 136 Misc. 163, 238 N. Y. S. 696.
Second, the assignment of accounts receivable is valid because there was no such "reservation of dominion (by the assignor which was) inconsistent with the effective disposition of title and creation of a lien" as there was in the case of Benedict v. Ratner, 268 U. S. 353, 45 S. Ct. 566, 567, 69 L. Ed. 991. There, the assignor "was not required to replace accounts collected by other collateral of equal value. It was not required to account in any way to Ratner." In the present case, however, the agreement specifically provided that Wolff would release to the corporation the proceeds of existing accounts only upon condition that the corporation would "simultaneously * * * assign to Wolff, in lieu and in substitution, other accounts receivable * * * which new and substituted accounts shall, at all times, be subject to the approval of Wolff, and are, in no event, to be less, in amount, than the amount of monies that Wolff may, from time to time release or relinquish. * * *"
Such control by Wolff, over the relinquishment of old accounts, and the acceptance of new accounts, effectively prevented such a reservation of unfettered dominion in the corporation as was destructive of the validity of the assignment in the case of Benedict v. Ratner, supra. In addition, the fact that Wolff was elected treasurer and a director of the corporation, and had power to name another director, and was given supervision over the corporation's books of account, as well as the right to countersign checks, precluded reservation of control of the accounts in the hands of the assignor. For these reasons the assignment of accounts receivable was valid and effective.
Finally, it must be determined if Wolff is entitled to the proceeds of the merchandise which was returned by customers whose accounts had been assigned to him. The referee held that he was, on the ground that such was the understanding of the parties, and for the further reason that, as a matter of legal principle, the goods followed the assignment of accounts.
In my view, this is not necessarily so, particularly where the rights of other persons have intervened. In finding that the returned merchandise was so identified and segregated as to constitute a delivery sufficient to consummate a pledge, the referee did not err. See Sexton v. Kessler & Co., 225 U. S. 90, 32 S. Ct. 657, 56 L. Ed. 995; Babcock v. Edson, 82 Misc. 144, 143 N. Y. S. 399. Nevertheless, the creation of a pledge within four months of bankruptcy may give rise to a voidable preference unless supported by an agreement therefor, which antedates the four months' period. See Sexton v. Kessler & Co., supra; In re Glover Specialties Company (D. C.) 18 F.(2d) 314. Here, the agreement did not attempt to deal with returned merchandise. Had it done so, the result might easily be different. See Lee v. State Bank & Trust Company (C. C. A.) 38 F.(2d) 45; In re Bernard & Katz (C. C. A.) 38 F.(2d) 40. If the agreement had been incomplete, its missing provisions could have been supplied by extrinsic evidence. Or, if the subject of returned merchandise had been separate and distinct from the matter about which the parties were contracting, testimony would have been admissible to establish a collateral oral agreement dealing with that subject. Since, however, the agreement was a complete and carefully written document, and since the creation of a lien on returned merchandise would have been merely an additional item of security which Wolff was to receive as consideration for his loan of $10,000, the parol evidence rule precludes resort to testimony concerning such a contemporaneous oral agreement, or to testimony as to what the parties intended but failed to express in their agreement. Burke v. Dulaney, 153 U. S. 228, 14 S. Ct. 816, 38 L. Ed. 698; Culver v. Wilkinson, 145 U. S. 205, 12 S. Ct. 832, 36 L. Ed. 676; Loomis v. New York Cent. & H. R. R. Co., 203 N. Y. 359, 96 N. E. 748, Ann. Cas. 1913A, 928; Edison Electric Illuminating Company v. Thacher, 229 N. Y. 172, 128 N. E. 124; Thomas v. Soutt, 127 N. Y. 133, 27 N. E. 961; See Wigmore on Evidence, §§ 2430, 2431; Williston on Contracts, §§ 636-638; Richardson on Evidence (4th Ed.) § 432. It was error, therefore, for the referee to base his conclusion upon Wolff's testimony as to what was said and intended by the parties with respect to returned merchandise.
It was also error to hold that the goods followed the accounts as a matter of law. The argument that if that is not so, it is possible *86 for a fraudulent assignor to defraud his assignee by enlisting the collusive support of his customers in returning merchandise and thus rendering the assigned accounts valueless, is by no means conclusive. If the assignee chooses to rely on the good faith of the assignor, he gets what he bargains for when he gets only the proceeds realized from accounts receivable. If he wishes the further security of a lien on returned merchandise, he can easily make that a term of the assignment agreement. That is what was done in the cases of In re Bernard & Katz, supra, and Lee v. State Bank & Trust Company, supra.
The order of the referee is reversed, with respect to the proceeds from the sale of returned merchandise. It is affirmed as to the collections of assigned accounts and the proceeds of the property covered by the chattel mortgage. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379758/ | 369 S.E.2d 84 (1988)
Teddy Glenn POLLARD
v.
Eugene Paden SMITH, and Eugene Paden Smith, Administrator of the Estate of Margaret Elizabeth Smith.
No. 873SC788.
Court of Appeals of North Carolina.
June 21, 1988.
Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Victor H.E. Morgan, Jr., Raleigh, for appellant.
Marvin Blount, Jr., and Albert Charles Ellis, Greenville, for plaintiff-appellee.
COZORT, Judge.
In March of 1985, the plaintiff, a highway patrolman employed by the North Carolina Department of Crime Control and Public Safety (the Department), was injured in an automobile accident in which Margaret Elizabeth Smith was killed. The Department paid approximately $17,000.00 for lost time and medical expenses.
In April of 1985, plaintiff sued the defendant administrator of the estate of Margaret Smith, alleging that the negligence of Margaret Smith was the proximate cause of the injuries suffered by plaintiff in the collision. In his answer, defendant denied negligence and counterclaimed. In September of 1986, the Department notified plaintiff's counsel of the Department's subrogation interest for the $17,000.00 paid in benefits. In May of 1987, plaintiff's case was calendared for trial and counsel for plaintiff and defendant executed an Order on Pre-Trial Conference. Shortly thereafter, on or about 18 May 1987, plaintiff *85 petitioned the court for disbursement of settlement funds pursuant to N.C.Gen.Stat. § 97-10.2(j), notifying the court in said petition that plaintiff and defendant had agreed to settle plaintiff's action by defendant's paying to plaintiff $25,000.00. On 18 May 1987, after a hearing, the trial court entered an order disbursing the entire $25,000.00 to plaintiff, giving the Department nothing on its subrogation interest. The Department did not receive notice of the hearing and was not present. The Department appealed.
This case is controlled by N.C.Gen.Stat. § 97-10.2, the section of the Workers' Compensation Act which sets forth the rights and interests of the employee, the employer, and the employer's insurance carrier, if any, when there is a cause of action for damages against a third party. The Department contends that distribution of the settlement proceeds in the case below is governed by § 97-10.2(f) which sets the order of priority for disbursement by the Industrial Commission under certain conditions:
(f) (1) If the employer has filed a written admission of liability for benefits under this Chapter with, or if an award final in nature in favor of the employee has been entered by the Industrial Commission, then any amount obtained by any person by settlement with judgment against, or otherwise from the third party by reason of such injury or death shall be disbursed by order of the Industrial Commission for the following purposes and in the following order of priority:
a. First to the payment of actual court costs taxed by judgment.
b. Second to the payment of the fee of the attorney representing the person making settlement or obtaining judgment, and except for the fee on the subrogation interest of the employer such fee shall not be subject to the provisions of § 90 of this Chapter [G.S. 97-90] but shall not exceed one third of the amount obtained or recovered of the third party.
c. Third to the reimbursement of the employer for all benefits by way of compensation or medical treatment expense paid or to be paid by the employer under award of the Industrial Commission.
d. Fourth to the payment of any amount remaining to the employee or his personal representative.
If the trial court below had followed the order of priority set forth in § 97-10.2(f), the Department would have been compensated for the benefits it paid to plaintiff.
Plaintiff contends that the trial court was correct in not following the priority order in subsection (f). Plaintiff contends the controlling statute is § 97-10.2(j), which reads:
(j) In the event that a judgment is obtained which is insufficient to compensate the subrogation claim of the Workers' Compensation Insurance Carrier, or in the event that a settlement has been agreed upon by the employee and the third party when said action is pending on a trial calendar and the pretrial conference with the judge has been held, either party may apply to the resident superior court judge of the county in which the cause of action arose or the presiding judge before whom the cause of action is pending, for determination as to the amount to be paid to each by such third party tort-feasor. If the matter is pending in the federal district court such determination may be made by a federal district court judge of that division.
Plaintiff contends in his brief that subsection (j) gives the trial judge "unbridled discretion to order the distribution of settlement proceeds as he deems equitable, notwithstanding the provisions of subsection (f)." If subsection (j) is not read that way, plaintiff argues, then it would serve absolutely no purpose. We agree with plaintiff's contention and affirm the trial court's order.
Subsection (j) is clear and unambiguous, and must be given effect. Judicial interpretation of a statute is inappropriate when the Legislature has made clear its intent. Pipeline Co. v. Clayton, Comr. of Revenue, 275 N.C. 215, 226, 166 S.E.2d 671, 679 (1969). The section clearly provides for *86 a different standard for disbursement when the case is before the Superior Court than that for cases before the Industrial Commission. When the General Assembly added subsection (j), it made no reference to subsection (f).
When the General Assembly amends an existing statute, as opposed to merely clarifying existing law, a presumption arises that the Legislature intended to change existing law by creating or taking away rights or duties. Childers v. Parker's, Inc., 274 N.C. 256, 260, 162 S.E.2d 481, 483 (1968).
We realize that subsection (j) allows plaintiff a double recovery at the expense of the employer or carrier, in the discretion of the Superior Court judge. Nonetheless, since the language is clear and unambiguous, we must hold that the Legislature intended this possible result.
The Department also contends that it was error for the trial court to conduct the hearing without giving notice and an opportunity to be heard to the Department. We find no merit to this argument.
Subsection (j) makes no provision for notice to the employer or the insurance carrier. If the General Assembly had intended for the employer to receive notice of the hearing, it could have made provisions for it. For example, in subsection (c), the Legislature preserved the right of the employer to proceed against the third party when the employee has not done so. Subsection (d) preserves the right of the employer to pursue the action when the employee is uncooperative. Subsection (e) gives the employer the right to appear fully in the cause if the third party alleges joint and concurrent negligence of the employer. Subsection (j) makes no such provision, and we must read the omission as being intentional.
The order of the trial court is
Affirmed.
PARKER and GREENE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379739/ | 369 S.E.2d 464 (1988)
STATE of West Virginia
v.
Cleo DUNCAN.
No. 17467.
Supreme Court of Appeals of West Virginia.
April 22, 1988.
*465 Travers R. Harrington, Jr., Fayetteville, for Cleo Duncan.
Mary Rich Maloy, Charleston, for State.
BROTHERTON, Justice:
Cleo Duncan appeals her conviction by a Fayette County jury of the unlawful disinterment or displacement of a dead human body in violation of W.Va.Code § 61-8-14 (1984). She raises two errors relating to W.Va.Code § 61-8-14: First, that unlawful disinterment implies a decent burial as a prerequisite; and second, that W.Va.Code § 61-8-14 is unconstitutionally vague. The appellant also assigns as error the trial court's failure to give the jury instructions defining a principal in the second degree and an aider and abettor, and the trial court's failure to conduct individual voir dire.[1] For the reasons stated below, we find no reversible error, and therefore affirm.
During the early morning hours of January 29, 1983, James Duncan arrived at his rural Fayette County home. Duncan lived with his wife, Cleo, his infant daughter and Cleo Duncan's sons from a previous marriage, Jerry Raines, Joey Raines, and Bobby Raines. Complaining because the fire in the wood stove had gone out and because he was hungry, Duncan woke the appellant and instructed her to prepare him something to eat. Upset because the food was not heated adequately, Duncan threw *466 the plate of food across the room and chased after his wife. The appellant fled outside, but Duncan brought her back inside. By this time the commotion had awakened Jerry Raines, the appellant's oldest son, who interceded on her behalf by asking Duncan to leave his mother alone. Duncan then turned his anger toward Jerry and chased him outside.
Eventually, the family congregated in the kitchen, where Duncan, shaking a kitchen knife, lectured the boys on how to keep the fire going in the wood stove. Duncan then took his mother-in-law's gun from behind the kitchen stove and waved it in front of the boys. The appellant's mother, Dorothy Grubb, who lived next door, arrived and took the gun from Duncan. A shot was fired, killing Duncan.
A decision was made to bury Duncan in the backyard, and Mrs. Grubb instructed Jerry and Joey to dig the hole. Mrs. Grubb and Jerry placed Duncan's body in the hole. Jerry and the appellant then drove Duncan's truck to nearby Prince and ran it over a hill to the edge of the river to make it appear that Duncan had been involved in an accident. The next day the appellant reported Duncan missing to the State Police. A search for Duncan's body ensued.
Motivated by the desire for Duncan to have a decent burial, on January 31, the family decided to put Duncan's body in the river so it would be found by the police in their dragging operations. The appellant instructed Jerry and Joey to dig up Duncan's body. Mrs. Grubb, however, feared that when Duncan's body was found the bullet would be traced to her. Accordingly, Mrs. Grubb cut into Duncan's chest with a knife, removed the heart and lungs, but was unable to find the bullet.
The appellant, Mrs. Grubb, and Jerry then proceeded to Wiggins Bridge near Hinton, West Virginia, where they attempted to throw Duncan's body off the bridge. However, Duncan's foot became entangled in the superstructure of the bridge, leaving his body hanging over the river. While Jerry was underneath the bridge trying to dislodge the body, headlights appeared on the bridge. Realizing that the vehicle was a Hinton police car, the appellant got back into her car and drove off.
Unable to continue the cover-up, the appellant decided to turn herself in to the authorities. On the way to the police the next morning, the appellant was met by two State Police officers and placed under arrest.
The appellant was tried on a two-count indictment, count one charging her with murder, and count two charging her with unlawful disinterment. On August 14, 1985, the Fayette County jury acquitted the appellant on count one, but found her guilty of the unlawful disinterment of a dead human body. The appellant was sentenced to a prison term of two-to-five years at the West Virginia State Prison for Women at Alderson, West Virginia.
I.
The appellant argues first that "disinterment" in W.Va.Code § 61-8-14 (1984) implies prior burial in the sense of a decent burial. She argues that Duncan's body was merely hidden in the ground, not decently buried, and that, therefore, it could not be subject to unlawful disinterment under W.Va.Code § 61-8-14.[2] We disagree.
West Virginia Code § 61-8-14 provides:
If any person unlawfully disinter or displace a dead human body, or any part of a dead human body, which shall have been placed or deposited in any vault, mausoleum, or any temporary or permanent burial place, he shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than two nor more than five years.
West Virginia Code § 61-8-14 contains no requirement that a body be decently or lawfully buried before it can be subjected to unlawful disinterment. Rather, the language "any temporary or permanent burial *467 place" indicates a legislative desire not to distinguish between the types of graves which might be subject to unlawful disinterment. While the hole in the backyard indeed may have been a hiding place, it was also a burial place. The burial place became a temporary burial place only because the family decided to recover the body and deposit it in a different place so it could be given a "proper burial."[3] However, "[t]he unauthorized disinterring of the body of a deceased human being is an indictable offense both at common law and by statute regardless of the motive or purpose for which the act is done." Davis v. State, 61 Ga.App. 379, 6 S.E.2d 736 (1939). Thus, we cannot excuse the appellant's actions on the basis of her desire to provide Duncan's body a decent burial.[4] We, therefore, must reject the appellant's first attack on W.Va.Code § 61-8-14.
In her second attack upon W.Va. Code § 61-8-14, the appellant argues that the statute is unconstitutionally vague and fails to fully and fairly give a person notice that his conduct is prohibited. In State v. Flinn, 158 W.Va. 111, 208 S.E.2d 538 (1974), the Court set forth the standard for measuring a criminal statute for certainty and definiteness: "A criminal statute must be set out with sufficient definiteness to give a person of ordinary intelligence fair notice that his contemplated conduct is prohibited by statute and to provide adequate standards for adjudication." Syl. pt. 1, State v. Flinn, 158 W.Va. 111, 208 S.E.2d 538 (1974). See United States v. Harriss, 347 U.S. 612, 617, 74 S. Ct. 808, 811, 98 L. Ed. 989 (1954); Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322 (1926). However, "[i]mpossible standards of specificity are not required." Jordan v. De George, 341 U.S. 223, 231, 71 S. Ct. 703, 708, 95 L. Ed. 886 (1951). "Criminal statutes, which do not impinge upon First Amendment freedoms or other similarly sensitive constitutional rights, are tested for certainty and definiteness by construing the statute in light of the conduct to which it is applied." Syl. pt. 3, State v. Flinn, 158 W.Va. 111, 208 S.E.2d 538 (1974). See United States v. Powell, 423 U.S. 87, 92, 96 S. Ct. 316, 319, 46 L. Ed. 2d 228 (1975). In this case, the body of James Duncan was placed in a hole in the appellant's backyard dug especially for that purpose. He was covered with dirt and remained there for approximately 72 hours. At the appellant's instruction, Jerry and Joey Raines removed Duncan's body from the hole in the backyard for the purpose of throwing it into the river.
The clear and unambiguous language of W.Va.Code § 61-8-14 gives a person of ordinary intelligence fair notice that the disinterment of a dead human body from any temporary or permanent burial place constitutes a felony punishable by a two-to-five year prison term. We, therefore, find that W.Va.Code § 61-8-14 is not unconstitutionally vague and that the appellant had fair notice that her conduct was prohibited by statute. "When the constitutionality of a statute is questioned every reasonable construction of the statute must be resorted to by a court in order to sustain constitutionality, and any doubt must be resolved in favor of the constitutionality of the legislative enactment." Syl. pt. 3, Willis v. O'Brien, 151 W.Va. 628, 153 S.E.2d 178, cert. denied, 389 U.S. 848, 88 S. Ct. 71, 19 L. Ed. 2d 116 (1967).[5]
*468 II.
The appellant argues that because the only evidence showed that she was a principal in the second degree, and because the jury was instructed only as to the elements of a principal in the first degree, the jury's verdict was not supported by the evidence. At trial, the State offered aiding and abetting instructions.[6] At an in camera proceeding, the trial court and counsel for both sides discussed whether the court should give the instructions in view of this Court's decision in State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980). In Petry, this Court abolished the distinction among principals in the first degree, principals in the second degree, aiders and abettors, and accessories at the indictment stage. The Petry Court noted that the historical foundation for any distinction between principals in the first and second degrees has been completely eroded. Id. 273 S.E.2d at 350. It held that "a general indictment as a principal in the first degree shall be sufficient to sustain a conviction regardless of whether the evidence demonstrates that the defendant was a principal, aider and abettor, or accessory before the fact." Id. 273 S.E.2d at 352.
In the instant case, it was decided that the State would withdraw its proposed instructions and that the point would be argued to the jury.[7] The appellant asserts that while under Petry a defendant need not be indicted as a principal in the second degree, the court must give the jury an instruction defining principal in the second degree where the facts show that the accused did not actually perpetrate the criminal act. Jury instructions as to parties to crime benefit the State, not the defendant, because absent such an instruction, the jury may conclude incorrectly that a conviction is warranted only if the facts show that the accused actually perpetrated the criminal act. See Romo v. State, 568 S.W.2d 298, 302 (Tex.Crim.App.1978). Therefore, aiding and abetting instructions, when offered, are proper where the evidence supports a finding that the accused, charged as a principal in the first degree, was a principal in the second degree. In the present case, however, the jury found the appellant guilty in the absence of an instruction defining a principal in the second degree. Accordingly, any error committed in failing to give the jury such an instruction benefited the appellant and, therefore, was harmless.
Further, any error in failing to instruct the jury as to a principal in the second degree was harmless because the appellant was subject to the same punishment whether the jury viewed her role in the disinterment of Duncan's body as that of a principal in the first degree or a principal in the second degree.[8]
We also reject the related argument that the State was required to elect between prosecuting the appellant as a principal in the first degree or as a principal in the second degree. Cf. State v. Ashcraft, ___ W.Va. ___, 309 S.E.2d 600 (1983). In *469 Ashcraft, the trial court denied a portion of a defendant's bill of particulars which would have required the State to specify whether it would prosecute a defendant charged with first-degree murder as a principal in the first degree or a principal in the second degree. Id. 309 S.E.2d at 606. On appeal, it appeared to the Court that "the appellant, through the discovery process, attempted to force the prosecution to elect one of two possible factual theories surrounding the degree of involvement of the appellant in [the victim's] death." Id. 309 S.E.2d at 606-07. Reasoning that "the resolution of factual disputes in a criminal trial is a function of the jury, not of the prosecutor," this Court held that the trial court did not abuse its discretion in denying that portion of the appellant's motion for a bill of particulars. Id. 309 S.E.2d at 607. Although in the present case we do not address the issue of election in the context of the discovery process, we find the reasoning of the Ashcraft Court applicable to the facts before us. Forcing the State to elect between possible factual theories surrounding the appellant's degree of involvement in the unlawful disinterment of the body of James Duncan would have invaded the fact finding function of the jury. We, therefore, find no error in the State's failure to elect between prosecuting the appellant as a principal in the first degree and a principal in the second degree.
III.
At a pre-trial conference, the appellant moved for individual voir dire of the prospective jurors due to the media attention the case had received. The trial court denied the motion at that time, stating that:
[W]e have to wait until we start the trial and get into the voir dire of the panel and see how it goes, and I may permit some individual voir dire, but, how much, I wouldn't be in a position to say at this time.
R. at 13. During voir dire of the panel, prospective jurors who indicated that they had read about the case in a newspaper or had heard about it on television news were asked individually by the trial court whether, as a result of their exposure to media coverage of the case, they had formed an opinion as to the guilt or innocence of the appellant.[9] The one prospective juror who responded affirmatively was questioned individually by the trial court, out of the presence of the other prospective jurors, and dismissed from the panel. Moreover, at the conclusion of voir dire, the trial court asked the appellant's counsel if he had any additional questions. The appellant's counsel replied, "I'm pleased with the collection of the jury. We have no questions." R. at 31.
"Jurors who on voir dire of the panel indicate possible prejudice should be excused, or should be questioned individually either by the court or by counsel to precisely determine whether they entertain bias or prejudice for or against either party, requiring their excuse." Syl. pt. 2, State v. Pratt, 161 W.Va. 530, 244 S.E.2d 227 (1978). "The trial court's exercise of discretion in determining the extent of inquiry on voir dire is not normally subject to review on appeal. However, the court's discretion is limited by the requirement of due process, and may be reviewed in a case of abuse." State v. Ashcraft, ___ W.Va. ___, 309 S.E.2d 600, 608 (1983). On the record before us we, therefore, find that the trial court did not abuse its discretion in denying the appellant's motion for blanket individual voir dire.
For the foregoing reasons, the judgment of the Circuit Court of Fayette County is affirmed.
Affirmed.
NEELY, Justice, dissenting:
I dissent because it does not appear to me that burying a body and covering it with dirt exclusively to conceal it is the *470 type of "temporary or permanent burial place" contemplated by W.Va.Code, 61-8-14 [1984]. If the appellant in this case is guilty of anything, she is guilty of being a principal or accessory to homicide. We are stretching the plain intent of this statute to catch the appellant in its net. "Penal statutes must be strictly construed against the State and in favor of the defendant." State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970).[1]
NOTES
[1] The appellant assigns numerous other errors, all of which we find to be without merit and do not address in this opinion.
[2] Arguing that "burial place" in W.Va.Code § 61-8-14 implies more than a body covered with dirt, the appellant would have this Court view the hole into which Duncan's body was placed as a "hiding place," not a "burial place."
[3] We find no merit in the appellant's argument that if any covering of a dead body with earth is a burial from which the removal is a felony, then the retrieval of bodies after an underground mine disaster or the removal of bodies buried in a mass murderer's basement would be a prohibited act. The burial in this case, which involved the placement of a body after death, is different from accidents where a victim is buried alive, such as mine disasters, mud slides, and floods. Further, removal of bodies from a basement, when done by the proper authorities, is distinguishable from and raises a question different from the circumstance that we address today.
[4] Cf. State v. Hartzler, 78 N.M. 514, 433 P.2d 231 (1967). In Hartzler, the appellant was convicted of "indecent handling of a dead body." Id. 433 P.2d at 232. The court concluded that it was immaterial that the appellant may have acted out of sincere motives and with no evil intent and refused to excuse his actions on the basis of his religious beliefs. Id. 433 P.2d at 235.
[5] We also reject the appellant's third attack on W.Va.Code § 61-8-14, that the punishment provided for in the statute is unconstitutionally disproportionate.
[6] The terms "principal in the second degree" and "aider and abettor" are synonymous. See State ex rel. Brown v. Thompson, 149 W.Va. 649, 142 S.E.2d 711 (1965), overruled on other grounds, State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 (1980).
[7] This case was tried before this Court's decision in State v. Reedy, ___ W.Va. ___, 352 S.E.2d 158 (1986). In Reedy, this Court noted that prior to Petry, because of the distinction among principals, aiders and abettors, and accessories, a trial court could not give instructions on aiding and abetting unless aiding and abetting was charged in the indictment. Recognizing that the holding in Petry "explicitly abolished the distinctions between principals in the first degree and aiders and abettors at the indictment stage," the Reedy Court concluded that "the prohibition against aiding and abetting instructions in instances where the indictment only charges the defendant as a principal in the first degree has also been abolished." Reedy, 352 S.E.2d at 167. This Court's decision in Reedy, therefore, permits aiding and abetting instructions when a defendant is charged as a principal in the first degree.
[8] West Virginia Code § 61-11-6 (1984) provides in relevant part:
In the case of every felony, every principal in the second degree, and every accessory before the fact, shall be punishable as if he were the principal in the first degree.
[9] Cf. State v. Ashcraft, ___ W.Va. ___, 309 S.E.2d 600, 609 (1983) (where no juror answered affirmatively when asked collectively whether exposure to newspaper articles would influence decision, jurors' responses cannot be taken as conclusive on issue); cf. also United States v. Pomponio, 563 F.2d 659, 666 (4th Cir.1977) ("[g]eneral allegations of damaging publicity are sufficiently dealt with by questions and admonitions addressed to the panel as a whole").
[1] See also, State v. Hager, ___ W.Va.___, 342 S.E.2d 281 (1986); State v. Hodges, ___ W.Va. ___, 305 S.E.2d 278 (1983); State v. Vandall, ___ W.Va. ___, 294 S.E.2d 177 (1982); State v. Barnett, 168 W.Va. 361, 284 S.E.2d 622 (1981); State v. Cole, 160 W.Va. 804, 238 S.E.2d 849 (1977); State ex rel. Davis v. Oakley, 156 W.Va. 154, 191 S.E.2d 610 (1972). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379751/ | 806 P.2d 1299 (1991)
Tomi E. JENNINGS, Appellant (Defendant),
v.
The STATE of Wyoming, Appellee (Plaintiff).
No. 90-58.
Supreme Court of Wyoming.
March 5, 1991.
*1300 Wyoming Public Defender Program: Leonard D. Munker, State Public Defender, Steven E. Weerts, Sr. Asst. Public Defender; and Donald K. Slaughter, Legal Intern, for appellant.
Tomi E. Jennings, pro se.
Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Paul Rehurek, Sr. Asst. Attys. Gen., and Kaylin D. Kluge, Asst. Atty. Gen., for appellee.
*1301 Before URBIGKIT, C.J., and THOMAS, CARDINE, MACY and GOLDEN, JJ.
THOMAS, Justice.
The most significant issue presented in this case is whether sufficient evidence was presented to the jury to sustain the conviction of Tomi E. Jennings (Jennings) on three charges of the commission of burglary in violation of § 6-3-301(a), W.S. 1977 (June 1988 Repl.).[1] More specifically, it is Jennings' contention that there was not adequate evidence to permit the jury to reasonably find that his actions demonstrated an "intent to commit larceny or a felony" as required by the statute, and he also challenges the sufficiency of the evidence to establish identity. Collateral issues are presented that relate to the propriety of receiving into evidence, in the state's case in chief, testimony concerning Jennings' actions following his arrest; the refusal by the trial court of a proffered jury instruction by Jennings; cumulative error; the absence of a complete record of the preliminary hearing; and the failure to include representatives of the black race in the jury venire. As a final matter, an issue is presented with respect to credit for presentence incarceration against Jennings' minimum and maximum sentence. We affirm the judgment and sentence of the trial court except for the failure to afford Jennings credit for presentence incarceration. We remand for entry of a judgment and sentence granting him 154 days credit against the minimum and maximum sentence for presentence incarceration.
In the Brief of Appellant, filed by counsel, the issues are stated as follows:
"1. Whether the evidence of Appellant's actions upon arrest was relevant.
"2. Whether the trial court properly refused Appellant's proposed jury instruction on the presumption of innocence.
"3. Whether there was sufficient evidence to support a conviction.
"4. Whether Appellant's convictions should be reversed pursuant to the doctrine of cumulative error.
"5. Whether Appellant should receive credit for time served to be applied to the maximum and minimum terms for all of his convictions."
The State of Wyoming accepts these issues as stated, but it does contend that the phrasing of the third issue by Jennings is unartful since it does not specify which of the three convictions he is challenging on the basis of insufficient evidence. The State also rephrases the issue relating to presentence incarceration in this way:
"Whether based on this record it is unclear if appellant should receive credit for presentence incarceration?"
In addition to the brief filed on his behalf by counsel, Jennings was given permission to file a brief pro se, and he raises the following issues in that brief:
"1. Was it wrong for the Laramie County Court not to have a full record of the appellant's preliminary hearing.
"2. Was it wrong for the trial court to have an all caucasian jury to select from, [when] dealing with a Negro defendant."
The State, in responding to the pro se brief, asserts this additional question:
"Whether this court should consider appellant's issues not supported by cogent argument or pertinent authority?"
On the evening of August 18, 1989, Jennings and his girl friend went out to a bar, and from there they went to a party at a private residence. They left that party in the early morning hours of August 19, 1989, intending to return to their home in the girl friend's car. Jennings was drunk and, during the journey, he and his girl friend argued. She stopped the vehicle and told Jennings that either he was getting out or she was. Jennings said he would not leave the car, and his girl friend took the keys and began walking down the road. She had not gone very far before she heard her car window shatter behind her, but she *1302 did not turn back. Instead, she walked on to a friend's house.
In the vicinity of the point where the girl friend abandoned her car, the victims, a husband and wife, were sleeping in their home. At about 4:00 a.m., the wife was awakened by some noises. The living room light, which had been off, came on. She got out of bed, walked into her kitchen, and saw a black man standing in the living room. He did not speak to her, and he simply walked out the front door.
The wife was able to ascertain, from bloodstains and other marks of entry, that the person she had seen had entered their home through the spare bedroom window and walked past the bedroom door of the room in which she and her husband were sleeping, through the kitchen, and then into the living room. The person had touched the telephone in the living room, but she verified that nothing was missing from the house.
Two vehicles, both belonging to the victims, were parked outside the house, a 1978 Ford Mustang and a 1987 Ford Tempo. A deputy sheriff, who was summoned to the scene, observed blood on the exterior and interior of both vehicles. A set of keys that belonged to a friend of the wife was missing from a box beneath the emergency brake of the Ford Tempo. Those keys later were recovered from the locker at the detention facility in which Jennings' property was kept and, after they had been identified by the wife, they were returned to her.
In the meantime, law enforcement officers had located the car that had been abandoned by Jennings' girl friend. They found identification belonging to her inside the car, and they called her on the telephone. The girl friend told the officers that Jennings had been with her and that she thought he might be hurt because she had heard her car window break. The officers conducted a search of the area, and they located a person who matched the description given them by both the girl friend and the wife. That person turned out to be Jennings, who was placed under arrest.
Because of his apparent injuries, the arresting officers proposed to take Jennings to the hospital so that his hand could be treated. One of those arresting officers testified at trial about Jennings' behavior following his arrest. This testimony was received, after objection by the defense, and the officer stated that Jennings became "violent and belligerent" and that he was swearing and kicking the cage when he was placed in the patrol car. The officer also testified that, when they transported Jennings to the hospital, he again became violent, kicking the officers, swearing, and yelling. The officers then decided that Jennings should be removed from the hospital because they felt he might pose a danger to the staff.
At the conclusion of the trial, the jury found Jennings guilty of burglarizing the victims' home and both of their cars. A guilty verdict was returned on each of the three counts of the information. Jennings was sentenced to not less than five nor more than ten years on each of the three counts of burglary, with the provision that those sentences be served concurrently. As of the time of the sentencing, Jennings had been in jail from August 19, 1989 through January 19, 1990, a total of 154 days.
Jennings' main claim in this appeal is that the evidence was not sufficient to support the several convictions for burglary. In Munson v. State, 770 P.2d 1093, 1095 (Wyo. 1989), another burglary case, we articulated the standard of review with respect to the sufficiency of the evidence to sustain a conviction:
"* * * [T]his court must determine whether, after viewing the evidence and appropriate inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime to have been proven beyond a reasonable doubt."
We apply that standard to the evidence in this case.
In contending that the evidence is not sufficient to sustain his convictions, Jennings principally focuses on the element of specific intent. A crime requiring specific *1303 intent differs from a crime involving only a general intent. With respect to a crime that requires only a general intent, it is sufficient to demonstrate that the defendant undertook the prohibited conduct voluntarily, and his purpose in pursuing that conduct is not an element of the crime. Crozier v. State, 723 P.2d 42 (Wyo. 1986); Felske v. State, 706 P.2d 257 (Wyo. 1985); Armijo v. State, 678 P.2d 864 (Wyo. 1984). Conviction with respect to a crime involving an element of "specific intent," however, requires the state to prove that the defendant intended to commit some further act, or achieve some additional purpose, beyond the prohibited conduct itself. When specific intent is an element of the crime, it must be established, like every other element, beyond a reasonable doubt. Crozier; Dean v. State, 668 P.2d 639 (Wyo. 1983). See Longfellow v. State, 803 P.2d 848 (Wyo. 1990).
Both at common law and under the Wyoming statutory definition, burglary is a crime requiring specific intent. The specific intent encompassed in the Wyoming statute defining the crime of burglary is that the accused must have entered or remained within a structure, without authority, and "with the intent to commit a larceny or felony therein." Section 6-3-301(a), W.S. 1977 (June 1988 Repl.). It is as essential for the state to prove the intent to steal or commit another felony beyond a reasonable doubt as it is to prove the breaking and entering itself. Mirich v. State, 593 P.2d 590 (Wyo. 1979).
In arguing the insufficiency of the evidence, Jennings points to facts in the record that he contends serve to demonstrate the absence of any intent to steal or commit another felony. Jennings notes that there was no evidence that any property in either of the vehicles or the house was taken. As we will establish later, he is mistaken about no property being taken from either of the vehicles. Jennings emphasizes the wife's testimony that he did not attempt to harm anyone or carry anything away from the house. In addition, Jennings alludes to evidence establishing that he had no burglary tools with him when he was arrested.
While Jennings argues vigorously about evidence that might establish the absence of the specific intent to steal or commit another felony, he does not assess all of the evidence in the light most favorable to the prosecution nor account for the inferences to be drawn from that evidence. First, an inference can be drawn from the fact that Jennings entered the victims' home in the nighttime and that he did so with the intent to commit larceny. "A reasonable mind recognizes that people do not usually break into and enter the building of another under the shroud of darkness with innocent intent and that the most usual intent is to steal." Mirich, 593 P.2d at 593. The same authority also stands for the proposition that direct evidence is not necessary to prove intent to steal since "[p]roof of intent is not a precise process." Mirich, 593 P.2d at 593. The quantum of proof from which a jury is permitted to draw the required inference of intent to steal is dependent upon the totality of the circumstances. Mirich.
As we examine all of the circumstances in this case, we recognize evidence that Jennings entered the victims' house long after midnight by removing a screen from the spare bedroom and climbing in through the window. Jennings walked by the victims' bedroom, but he did not awaken them. He then turned on a light in the living room and, as soon as the wife came into the kitchen, he walked out the front door without speaking to her. The victims did not know Jennings and had never given him permission to enter their home. They did not hear him knock at either the front or back door. Jennings did not ask for their assistance in treating his injured hand. The simple fact that Jennings did not hurt anyone inside the house is not relevant to the prosecution's theory of the case, which was that Jennings entered the house in order to commit larceny.
The fact that nothing was taken subsequent to the unlawful entry does not destroy the inference that the intent to steal existed at the time the entry was effected. *1304 Mirich. Jennings did take the keys from the Ford Tempo. At least, that inference can be drawn from the fact that the keys found in his possession at the time of his arrest were identified as those taken from that vehicle. The possession of that recently stolen property is strong circumstantial evidence of guilt, and only slight evidence of any other inculpatory circumstances is required for conviction. Cowell v. State, 719 P.2d 211 (Wyo. 1986); Downs v. State, 581 P.2d 610 (Wyo. 1978). With that evidence before it, the fact that Jennings did not take anything from the house, or from the other vehicle, does not result in a conclusion that the jury was foreclosed from drawing a reasonable inference of intent to steal with respect to the other two counts. Considering the facts and circumstances in totality, we hold that the jury, as a reasonable trier of fact, could have found specific intent to steal in this instance.
While Jennings relies upon the absence of burglary tools in his possession when he was arrested, he did not need them since he gained entry to the house by lifting a screen. Although the presence of burglary tools would have been strong circumstantial evidence of mens rea, or a guilty mind, the absence of the burglary tools does not demonstrate the converse. As this case illustrates, a burglary can be committed without them, and a finding of guilt is not foreclosed because burglary tools were not found.
In his alternative argument relating to the sufficiency of the evidence, Jennings contends that it was not adequate to identify him as the perpetrator of these crimes. The evidence that connected him to these burglaries can be summarized in this way: (1) blood was left all over the scene of each of the three crimes and, when Jennings was arrested, his clothes were covered with blood from his injured hand; (2) keys taken from the victims' Ford Tempo were found in Jennings' possession; and (3) he was arrested near the scene of the crimes.
"Defendant's presence in the neighborhood of a burglarized house is an important circumstance and is not to be treated merely as a coincidence. Placing defendant in the area of the scene of the crime, along with possession is sufficient to sustain a conviction." Downs, 581 P.2d at 616 (citations omitted).
In this case, possession of stolen property was established only as to one of the crimes. The "trail of blood" that linked appellant to that crime, however, also extended to the scenes of the other crimes with which he was charged. Jennings' possession of the stolen keys, coupled with his arrest in the area of these crimes and the other evidence linking him to each of the unauthorized entries, was more than sufficient to support his identification as the perpetrator of the crimes. We hold that there was sufficient evidence to identify Jennings as the perpetrator of each of these three burglaries.
We turn to Jennings' issue relating to the admission of the evidence about his conduct after he was arrested. One of the arresting officers, as noted above, testified about Jennings' belligerence after his arrest and at the hospital. Jennings insists that this evidence was not relevant and was designed to arouse the passions of the jury. Rule 401, W.R.E., defines "relevant evidence" as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." In a criminal case, evidence that tends to prove or disprove one of the elements of the charged crime is relevant. Coleman v. State, 741 P.2d 99 (Wyo. 1987); Grabill v. State, 621 P.2d 802 (Wyo. 1980). In an instance in which specific intent is an essential element of the crime charged, as it is here, evidence that tends to demonstrate the defendant's intent, or lack thereof, is relevant. Pena v. State, 792 P.2d 1352 (Wyo. 1990).
In this instance, it was obvious to all concerned that the effect of voluntary intoxication upon Jennings' specific intent had to be an issue in the case. In fact, the trial court gave the jury the usual instruction explaining the effect of voluntary intoxication upon specific intent. It is somewhat difficult to conclude whether the evidence *1305 offered by the arresting officer in his testimony made the existence of specific intent more probable or less probable, but there is no question that it was relevant within the definition of Rule 401, W.R.E.
Furthermore, it was conceivable that Jennings would argue to the jury that he entered the victims' house and cars in an effort to obtain medical treatment for his injured hand and not with intent to steal or commit a felony. At the hearing held on his motion to represent himself at trial, he testified that he "wanted to tell his side of the story," which included his contention that he entered the victims' residence and their cars "to get help." The testimony about Jennings' reactions and behavior when the police offered assistance by taking him to the hospital for treatment certainly would have been relevant to rebut the possible testimony and argument by Jennings that his intent in making the unlawful entries was to secure assistance rather than to steal. In the context of this case, the evidence well may have been a part of the totality of the circumstances. See Crozier, 723 P.2d 42.
Jennings argues that the prejudicial nature of this evidence exceeds its probative value under Rule 403, W.R.E. In order for this court to reach a ruling by the trial court admitting evidence despite claims of undue prejudice under Rule 403, W.R.E., the appellant must show that the testimony has little or no value and that it was extremely inflammatory or introduced solely for the purpose of inflaming the jury. Coleman, 741 P.2d 99; Apodaca v. State, 627 P.2d 1023 (Wyo. 1981). The balancing test under Rule 403, W.R.E. is assigned to the sound discretion of the trial court. Grabill, 621 P.2d 802. This evidence did have probative value with respect to the appellant's intent, or lack thereof, in entering the victims' home and their cars. Specific intent was an element of the crime charged. Under these circumstances, we cannot say that there was an abuse of discretion on the part of the trial court in permitting the evidence to be presented to the jury. We hold that the trial court properly admitted the challenged evidence which was relevant to proving, or perhaps disproving, the intent. That probative value was not exceeded by the danger of unfair prejudice.
Jennings' next assignment of error relates to the refusal of the trial court to give the following requested jury instruction:
"The law raises no presumption against the defendant but rather, the presumption of the law is in favor of his innocence. In order to convict the defendant of the crime charged, every material and necessary element to constitute such crime must be proved beyond a reasonable doubt and if the jury entertains a reasonable doubt on any single essential fact or necessary element, it is your duty to give the benefit of such doubt to the defendant and acquit him. This presumption of innocence is the law."
In an instance in which the principle embodied in a proposed instruction already is included in other instructions given by the trial court, the court properly may refuse to give the proposed instruction. Oien v. State, 797 P.2d 544 (Wyo. 1990); Prime v. State, 767 P.2d 149 (Wyo. 1989); Griffin v. State, 749 P.2d 246 (Wyo. 1988); Summers v. State, 725 P.2d 1033 (1986), aff'd on reh. 731 P.2d 558 (Wyo. 1987). No constitutional violation occurred in the refusal by the trial court to give the proffered instruction. If the rule of law sought to be encompassed in the instruction already has been given in other instructions, that is adequate to protect the defendant's right to due process. See Oien. The defendant is not entitled to jury instructions which are merely cumulative.
In this case, the trial court gave as its reason for refusing the proffered instruction that it already had given the instruction in substance through other instructions. Our review of the instructions that the court gave convinces us that the trial court's view was eminently correct. Instruction No. 3 informed the jury that "[i]t is incumbent upon the prosecution to establish all the material allegations of the Information beyond a reasonable doubt." Instruction No. 5 set forth each of the *1306 elements of the charged crimes, and it stated that if the jury found that any of them had not been proven beyond a reasonable doubt, the defendant must be found not guilty. Instruction No. 10 informed the jury that the defendant is presumed to be innocent, that he is not required to prove himself innocent, and that the presumption abides with the defendant throughout the trial unless the defendant is proven guilty beyond a reasonable doubt. Instruction No. 11 was very similar in character. Instruction No. 13 repeated the admonition that if the defendant was not found guilty beyond a reasonable doubt, he must be found not guilty. When we view these instructions as a whole, it is clear that the jury had already been instructed, on more than one occasion, with respect to the substance of the requested instruction. The trial court properly refused Jennings' proffered instruction.
Jennings also includes as a claim of error the concept of cumulative error. A claim of cumulative error cannot be recognized where there is no underlying error to support it. Justice v. State, 775 P.2d 1002 (Wyo. 1989). See Pena, 792 P.2d 1352; Thom v. State, 792 P.2d 192 (Wyo. 1990). In this case, we hold that there was no error with respect to the other issues that Jennings has raised. Consequently, there is no need to consider, or apply, the doctrine of cumulative error. See Schmunk v. State, 714 P.2d 724 (Wyo. 1986); Browder v. State, 639 P.2d 889 (Wyo. 1982).
Having afforded Jennings the opportunity to file a pro se brief, we consider the claims of error presented there. He first argues that the failure to include the preliminary hearing transcript in the record on appeal was prejudicial. Jennings' argument is that at least one of the deputy sheriffs who testified at the preliminary hearing later testified to different facts at the trial. In his Supplemental Brief of Appellant, presented pro se, Jennings states:
"The following was witnessed at the Preliminary Hearing:
"(* * * or * * * Deputy Sheriffs) Testified the defendant, Tomi E. Jennings did not have any burglary tools. Did not run and asked for help. No blood inside the briefcase."
The trial record discloses that one of the arresting officers testified that he found a bloody screwdriver in the back seat of the Ford Tempo. He did not state or imply that this was a burglary tool. Consequently, even if Jennings' version of the preliminary hearing were accepted, there is no inconsistency between that and the arresting officer's testimony at trial. The officer could have located a screwdriver that was stained with blood in the car without considering it a burglary tool.
The arresting officer also testified at trial, on cross-examination, that he "believed" that there was blood inside the briefcase, but he could not be sure. Again, this statement is not inconsistent with the testimony that appellant alleges the officer gave earlier at the preliminary hearing. Comparing the two statements as Jennings claims the first was made, there is no reason to conclude that the deputy testified falsely or erroneously. It would seem he simply could not recall at trial what he had apparently known earlier at the preliminary examination. In any event, there is no charge of burglary of a briefcase. Consequently, the matter could not be prejudicial to Jennings.
Jennings then claims that the officers testified at his preliminary hearing that he "did not run and asked for help." At trial, one of the officers was asked by defense counsel whether Jennings had made any effort to run or hide. He stated that Jennings had not. There simply is no inconsistency on this issue as to whether Jennings ran away when the officers approached. In this regard, the only possible cognizable claim of inconsistency arises as to whether the officer changed his story about whether Jennings asked for help. The other officer's testimony that Jennings became belligerent when told that he would be taken to the hospital is independent evidence that tends to refute the claim that the other officer changed his story about Jennings seeking help.
*1307 There is no evidence in this record that supports Jennings' version of this statement from the preliminary hearing. Jennings did not follow the procedure prescribed by Rule 4.03, W.R.A.P., to present a proper record in this case. That rule requires:
"If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or proposed amendments thereto within ten (10) days after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the district court for settlement and approval and as settled and approved shall be included by the clerk of the district court in the record on appeal."
Instead of providing a proper record, Jennings simply demands that the court credit his recollection of what transpired at the preliminary examination. He has failed to verify his recollection by attempting, in any way, to comply with the requirements of the rule quoted above. On the record, there is no independent evidence that Jennings' version of the preliminary hearing testimony is at all accurate. It is incumbent upon Jennings to show some prejudice from the failure to transcribe the preliminary hearing testimony before it may be claimed to be ineffective assistance of counsel. Spilman v. State, 633 P.2d 183 (Wyo. 1981). Jennings' recollection, coupled with the record before us, is simply not sufficient to make any showing of prejudice because of the failure to include a transcript of the preliminary examination in the record. The requirement for a complete record relates to the record in a district court and does not encompass an obligation to transcribe the proceedings at the preliminary examination.
Jennings next contends, in his pro se brief, that it was wrong for a Negro defendant to have an all-caucasian jury to choose from. The Equal Protection Clause of the Fourteenth Amendment protects defendants from purposeful exclusion from a jury of members of his race. Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). On the other hand, "a defendant has no right to a `petit jury composed in whole or in part of persons of his own race.'" Batson at 85, 106 S.Ct. at 1717 (quoting from Strauder v. West Virginia, 100 U.S. 303, 305, 25 L. Ed. 664 (1880)). Jennings has presented no argument suggesting purposeful exclusion of blacks from his jury. He merely complains that there were no black jurors to choose from. This claim is not cognizable as creating a prima facie case of discrimination under the Batson standard.
As a final matter, we turn to Jennings' claim that he was denied credit for presentence incarceration time. Jennings was in the Laramie County Jail from August 19, 1989 until he was sentenced on January 19, 1990, a total of 154 days. Under Renfro v. State, 785 P.2d 491 (Wyo. 1990), credit automatically is to be given for presentence incarceration time on all sentences entered after January 10, 1990. Ramirez v. State, 800 P.2d 503 (Wyo. 1990); Van Duser v. State, 796 P.2d 1322 (Wyo. 1990); Prejean v. State, 794 P.2d 877 (Wyo. 1990); Weedman v. State, 792 P.2d 1388 (Wyo. 1990). The only argument the State presents is that Jennings may have been incarcerated in relation to charges other than the burglaries for which he was convicted. That argument is not supported by references to information in the record on appeal adequate to establish the existence of other charges. In any event, Jennings would be entitled to credit against this sentence for any time served while awaiting trial and sentencing, even if he also were awaiting sentence in the same jurisdiction for another crime.
We affirm Jennings' conviction and the judgment and sentence of the trial court, with the exception of the failure to afford him credit for presentence incarceration time. The case is remanded for entry of an amended judgment and sentence or other order of the trial court granting appellant *1308 credit of 154 days for time served awaiting trial and sentence.
NOTES
[1] Section 6-3-301(a), W.S. 1977 (June 1988 Repl.), provides:
"(a) A person is guilty of burglary if, without authority, he enters or remains in a building, occupied structure or vehicle, or separately secured or occupied portion thereof, with intent to commit larceny or a felony therein." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379779/ | 806 P.2d 1140 (1990)
FRONTIER FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellant/Counter Appellee,
v.
COMMERCIAL BANK, N.A., Appellee/Counter Appellant.
No. 72366.
Court of Appeals of Oklahoma, Division 3.
December 4, 1990.
Rehearing Denied February 19, 1991.
Gordon H. Rowe, III, Oklahoma City, for appellant/counter appellee.
*1141 Edward O. Lee, Paul R. Foster, Oklahoma City, for appellee/counter appellant.
Released for Publication by Order of the Court of Appeals of Oklahoma, Division No. 3.
MEMORANDUM OPINION
HANSEN, Judge:
Appellant Frontier Federal Savings and Loan (Frontier) seeks review of summary judgment granted in favor of Appellee Commercial Bank (Commercial). By counter-petition in error, Commercial appeals trial court's denial of attorney fees. We affirm.
Both parties held promissory notes made by Charles Sherrard (Sherrard). Frontier's note was in the amount of $200,000.00, and Commercial's $31,000.00. To secure repayment of his note to Commercial, Sherrard pledged and delivered to Commercial certain other notes made in his favor. These latter notes (McCown notes) had total face value of $205,000.00. Sherrard was in default on his notes to Frontier and Commercial, and the McCown notes were also in default.
Commercial obtained a judgment against Sherrard. In a separate action, Frontier filed against Sherrard and served a garnishment summons on Commercial. Frontier contends it then advised Commercial the proper way to dispose of the collateral (McCown notes) was to bring suit against the obligors on the notes. Commercial, however, had the notes sold at a Sheriff's Sale, after notice to Frontier. Commercial was the only bidder, purchasing the notes by bidding in a credit of $15,000.00 against its judgment. The trial court confirmed the sale over Frontier's objection. It appears Frontier did not appeal from the confirmation order.
Frontier then brought this third action, arguing it held a "duly perfected second security interest or lien" in the McCown notes by virtue of the garnishment summons on Commercial. Frontier alleged Commercial's disposition of the notes was thus governed by the Oklahoma Commercial Code, specifically, 12A O.S.1981 § 9-101 et seq., and that it was entitled to recover under 12A O.S.1981 § 9-507 for its disposition of the notes in a commercially unreasonable manner and for its bad faith conduct. The trial court granted summary judgment to Commercial. In its initial order, the court found Frontier, being neither a debtor nor a party having a secured interest in the collateral, had no standing under § 9-507. In a subsequent order, the trial court dismissed Frontier's remaining bad faith claim. Finally, the trial court denied Commercial's Motion to Assess Attorney Fees. Commercial argued it was entitled to attorney fees under the authority of 42 O.S.1981 § 176, as the prevailing party in an action to enforce a lien. We hold that the trial court's action in each instance was correct.
Frontier propounds five separate propositions on appeal. However, all are disposed of by resolution of two threshold issues, i.e. whether Frontier could recover under theories of either commercially unreasonable disposition or bad faith.
Part 5, Article 9, Oklahoma Commercial Code, provides the rights and remedies of a "secured party" when the debtor is in default. Generally, Part 5 requires the secured party to act in a "commercially reasonable" manner. Specifically, § 9-507 provides, in relevant part:
. . . the debtor or any person entitled to notification, other than the holder of a subordinate lien that is not a security interest, or whose security interest has been made known to the secured party prior to the disposition has a right to recover from the secured party any loss caused by a failure to comply with the provisions of this part.
Frontier does not controvert Commercial's contention that Frontier's rights in the collateral are subordinate. Frontier, rather, argues it has standing under § 9-507 as one succeeding to Sherrard's rights as a "debtor" and, additionally, as the holder of a "security interest" in the collateral. We agree with the trial court's findings that Frontier is neither.
In support of its contention that it succeeded to Sherrard's rights as a debtor, Frontier cites 12A O.S.1981 § 9-311, which provides:
*1142 . . . debtor's rights in collateral may be voluntarily or involuntarily transferred (by way of sale, . . . garnishment, . . .).
However, 12A O.S.1981 § 9-105(1)(d) defines "debtor", in those instances where it may be someone other than the one who owes payment, in this way:
Where the debtor and the owner of the collateral are not the same person, the term "debtor" means the owner of the collateral in any provisions of the article dealing with the collateral, . . . (emphasis added).
Thus, if Sherrard, the person who owed payment on the note, was not the debtor for purposes of § 9-507, the "debtor" would have to be one who owned the collateral. In Re Buttram, 2 B.R. 92 (Bankr.N. D.Okla.1979); Security Pacific National Bank v. Goodman, 24 Cal. App. 3d 131, 100 Cal. Rptr. 763, 10 U.C.C.Rep.Serv. 529 (1972). While Frontier purports to stand in Sherrard's place with respect to the collateral, it does not suggest, nor do we find, that it became the owner of the McCown notes by virtue of its garnishment proceedings against Commercial. Garnishment proceedings result in a lien on the fund or property garnished. Butler v. Breckinridge, 442 P.2d 313 (Okla.1967). A lien transfers no title to the property subject to the lien. 42 O.S.1981 § 10.
Similarly, Frontier's lien does not come within the Commercial Code meaning of a "security interest". A security interest cannot attach, or come into existence, without an agreement that it attach. Morton Booth Co. v. Tiara Furniture, Inc., 564 P.2d 210, 213 (Okla.1977). Further, Article 9 applies to consensual security interests. See the Uniform Commercial Code Comment to 12A O.S.A.1981 § 9-102. "It follows that Article 9 does not apply to judgment liens, judicial liens, statutory liens and other forms of security that arise by operation of law rather than via agreement of the parties". J. White & R. Summers, Handbook of the Law Under the Uniform Commercial Code, p. 757-58 (1972).
Frontier does not come within the statutory meaning of those classes authorized to proceed by § 9-507. The trial court's finding, as a matter of law, that Frontier had no standing under § 9-507, is correct.
Frontier bases its breach of good faith cause on 12A O.S.1981 § 1-203, which provides:
Every contract or duty within this Act imposes an obligation of good faith in its performance or enforcement.
No contractual relationship exists between Frontier and Commercial. As to duty, we disagree with Frontier's contention that § 1-203 establishes an independent duty upon which a cause of action may be grounded. We find nothing in a plain reading of the section to lead us to that conclusion, nor in the cases cited by Frontier. Frontier cites as its primary authority, Rigby Corp. v. Boatman's Bank and Trust Company, 713 S.W.2d 517 (Mo. App.1986). That case is, in fact, inapposite to Frontier's contention. In Rigby, the Missouri Court of Appeals expressly held the remedy for breach of the obligation of good faith under § 1-203 is a contract, not a tort, remedy. Frontier's argument that Liberty National Bank and Trust Company of Oklahoma City v. Acme Tool Division of Rucker Company, 540 F.2d 1375 (10th Cir.1976), stands for the proposition that Oklahoma recognizes an independent cause of action in tort for breach of the obligation of good faith, is no more convincing. The court in the latter case specifically found claimant had a proper security interest, imposing a duty upon the secured party under § 9-504 to sell collateral in commercially reasonable manner. We find nothing, even inferentially, to support an independent cause of action for breach of the obligation of good faith in the absence of contract or a separate duty under the Oklahoma Commercial Code. We have previously disposed of Frontier's sole contention concerning a separate duty under the Code for commercially reasonable disposition, finding no standing to assert such a right. Further, Frontier has not argued, nor provided authority, that Commercial *1143 had some duty to it outside the scope of the Code.
The trial court was correct in finding, as a matter of law, that Frontier had failed to establish it had a sustainable cause of action. Finding no standing, we need not address Frontier's allegations relative to whether Commercial's actions were commercially reasonable or in good faith.
Commercial appeals from the trial court's order denying attorney fees. Commercial asserts it is entitled to attorney fees as the prevailing party pursuant to 42 O.S.1981 § 176, which states:
In an action brought to enforce any lien, the party for whom judgment is rendered shall be entitled to recover a reasonable attorney's fee . . .
Commercial contends the parties here were "real adversaries seeking a judicial hearing and determination of their conflicting lien claims", and cites authority for award of attorney fees under those circumstances. In support of its position, Commercial further notes Frontier asserts a claim for alteration of lien priorities. We find this argument unpersuasive.
Frontier's Petition, in its relevant part, prays for "actual and punitive damages for losses incurred as a result of the commercially unreasonable acts of (Commercial)". The purported Frontier claim for alteration of lien priorities, which Commercial relies on, was raised by Frontier in its Response to Commercial's second Motion for Summary Judgment. Frontier's statement there that the trial court had the authority to, and should, alter priorities if it found Commercial acted in bad faith, was, at best, an ineffectual attempt by Frontier to amend its Petition. Frontier conceded the priority of Commercial's interest in the collateral, and elected to proceed upon its alleged rights to recover damages as a "security interest" holder under the Oklahoma Commercial Code. The fact that Frontier had no such rights does not change the nature of the action. This is not an action where two lienholders "affirmatively asserted their claims against the other". General Electric Credit Corp. v. First National Bank, 475 P.2d 137 (Okla.1970). For Commercial to be entitled to attorney fees, the judgment must have been against a lien claim. Pierson v. American National Bank of Shawnee, 325 P.2d 426, 428 (Okla. 1958).
In the absence of abuse of the trial court's discretion to tax attorney fees, and finding the trial court correctly ruled Frontier had no standing, as a matter of law, to bring its action, we AFFIRM.
HUNTER, V.C.J., and GARRETT, P.J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379807/ | 806 P.2d 459 (1991)
248 Kan. 197
In the Matter of the ESTATE OF Bart STRATMANN, a/k/a Bert J. Stratmann, Deceased.
CENTRAL KANSAS MEDICAL CENTER, First Presbyterian Church of Ellsworth, Sterling College, Ellsworth County Veterans Memorial Hospital, and Lutheran Society Good Samaritan Home, Appellees,
v.
Edith STRATMANN, Appellant.
No. 63661.
Supreme Court of Kansas.
February 20, 1991.
*460 Gerald L. Green, of Gilliland & Hayes, P.A., Hutchinson, argued the cause and was on the briefs for appellant.
John Sherman, of Svaty, Sherman & Hoffman, Ellsworth, argued the cause for appellees, and was on the briefs for appellees First Presbyterian Church of Ellsworth, Sterling College, Ellsworth County Veterans Memorial Hosp. and Lutheran Soc. Good Samaritan Home.
Robert P. Keenan and Martin J. Keenan, of Keenan Law Firm, P.A., of Great Bend, were on the briefs for appellee Cent. Kansas Medical Center.
Frederick Woleslagel, Lyons, was on the brief for all listed charities.
*461 HERD, Justice:
This is a civil action against the estate of Bert Stratmann by several charities Central Kansas Medical Center, First Presbyterian Church of Ellsworth, Sterling College, Ellsworth County Veterans Memorial Hospital, and Lutheran Society Good Samaritan Home. The claimants allege Bert Stratmann and his brother and sister made mutual and contractual wills, leaving all their property to the claimants. The claimants contend Bert breached the contract when he executed a new will giving all his property to Edith Stratmann, his wife. Following a jury trial, a verdict was returned in favor of the claimants.
The facts of this case reveal a long history of litigation within the Stratmann family. Tena Stratmann was the mother of seven children: Chris, Bert, Edwin, Otto, Marvin, Ervin, and Mathilda. Edwin predeceased his mother and the other children. Chris, Marvin, and Ervin each married and were thereafter treated as outsiders by the three single Stratmanns, Bert, Otto, and Mathilda. After Tena Stratmann's death in 1960, numerous lawsuits and partition actions were filed among the children. Eventually, Bert, Otto, and Mathilda each held a one-third interest of Tena Stratmann's considerable estate.
On April 23, 1970, Bert revoked all prior wills and executed a new will wherein he left all his property to Otto and Mathilda to share absolutely and forever, or to the survivor of them. In the event that Otto and Mathilda predeceased Bert, the will provided for disposition of the estate in the following manner:
St. Peter's Lutheran Cemetery Assoc., Holyrood $1,000
Good Samaritan Center Bldg. Fund, Ellsworth 10%
Ellsworth County Veterans Memorial Hosp. 10%
First Presbyterian Church of Ellsworth Bldg. Fund 30%
Sterling College Endowment for Scholarship Fund 50%
On July 16, 1970, Otto executed a similar will. He left his entire estate to Bert and Mathilda to share absolutely and forever, or to the survivor of them. In the event that Bert and Mathilda predeceased Otto, the will provided for division as follows:
St. Peter's Lutheran Cemetery Assoc., Holyrood $2,000
Good Samaritan Center Bldg. Fund, Ellsworth 10%
Ellsworth County Veterans Memorial Hosp. 10%
First Presbyterian Church of Ellsworth Bldg. Fund 25%
Central Kansas Medical Center, Great Bend 10%
Sterling College Memorial Endowment Scholarship
Fund, as follows: 45%
Memorial Scholarship Fund
In Memory of
Bert J. Stratmann
Otto Stratmann
Mathilda Stratmann
of Lorraine, Kansas
There is no record of a 1970 will executed by Mathilda. Testimony by Mathilda in the probate of Otto's will, however, indicates she executed a reciprocal will on the same day as Otto. The drafting attorney also testified that Mathilda executed a will on July 16, 1970, and left her estate to Bert and Otto or, if neither survived, to the same charities in the same percentages as Otto's will.
Otto Stratmann died August 9, 1973, and the 1970 will was probated. Bert and Mathilda received the bulk of Otto's estate estimated at a value of $549,730.
*462 Mathilda executed a will in 1974 and again in 1976. The June 24, 1976, will left all her property to Bert, and if he did not survive Mathilda the following disposition was ordered:
St. Peter's Lutheran Cemetery Assoc., Holyrood $ 1,500
Ellsworth Memorial Cemetery $ 1,000
First Presbyterian Church of Ellsworth Bldg. Fund $ 20,000
Mathilda's grave maintenance $ 1,000
Bert's grave maintenance $ 1,000
Central Kansas Medical Center Bldg. Fund, Great Bend undivided ½ interest
in remainder
Sterling College Memorial Endowment Scholarship undivided ½ interest
Fund, in remainder
as follows:
Memorial Scholarship Fund
In Memory of
Bert J. Stratmann
Mathilda Stratmann
Otto Stratmann
Bert also executed a new will on June 24, 1976. Bert left his entire estate to Mathilda and directed the following disposition if Mathilda failed to survive him:
St. Peter's Lutheran Cemetery Assoc., Holyrood $ 1,500
Ellsworth Memorial Cemetery $ 1,000
First Presbyterian Church of Ellsworth Bldg. Fund $ 20,000
Bert's grave maintenance $ 1,000
Mathilda's grave maintenance $ 1,000
Central Kansas Medical Center Bldg. Fund, Great Bend undivided ½ interest
in remainder
Sterling College Memorial Endowment Scholarship undivided ½ interest
Fund, in remainder
as follows:
Memorial Scholarship Fund
In Memory of
Bert J. Stratmann
Mathilda Stratmann
Otto Stratmann
Mathilda Stratmann died October 28, 1981, and her 1976 will was probated. Bert received the entire estate valued at $1,360,717.
Edith Oeser became acquainted with the Stratmanns while she worked at the Central Kansas Medical Center where Mathilda was frequently a patient. In 1979, Edith began to occasionally care for Mathilda in the Stratmann home. In November 1981, Bert and Edith began to date. The relationship flourished and culminated in marriage on April 3, 1982, at which time Bert was 81 and Edith was 64.
On November 10, 1983, Bert executed his final will. Under the new will Bert left most of his estate to Edith and her children. Certain property was left in trust with the income to be paid to Edith and her children in designated percentages. After the trust had been in effect for twenty years, the will authorized disposition of the principal and income in the following manner:
*463
Sterling College Memorial Endowment Scholarship
Fund $ 5,000
or, if Edith is deceased $50,000
In Memory of
Otto Stratmann
Mathilda Stratmann
Bert J. Stratmann and Edith Stratmann
First Presbyterian Church of Ellsworth Bldg. Fund $ 5,000
or if Edith is deceased $50,000
Edith Stratmann undivided ½ interest
in remainder
Edith's children individually undivided 1/6 interest
in remainder
Bert Stratmann died July 1, 1986, survived by his wife Edith. A petition to admit the 1983 will was filed, but the claimants prevented probate by filing a dissent to the petition wherein claimants alleged breach of the contractual wills. Following a jury trial to determine if claimants were entitled to recover against Bert's estate, the jury found contractual wills existed among Otto, Mathilda and Bert in 1970, and between Mathilda and Bert in 1976. Edith filed motions for a judgment notwithstanding the verdict, or, in the alternative, a new trial. The motions were denied and Edith appeals.
Preliminary to considering the issues of error raised, let us review the standard of proof required in cases such as this. The burden of proof is placed upon the claimants to establish an agreement existed for mutual and contractual wills among the testators. The trial court instructed the jury that claimants must prove the existence of a contract by clear and convincing evidence. On appeal, in an unpublished opinion filed June 1, 1990, the Court of Appeals ruled that where the claimant of an alleged contract with a decedent is merely a third-party beneficiary of an alleged mutual contract among several decedents, the claimant need only prove the mutual contract by a preponderance of the evidence. We disagree with the Court of Appeals.
It is well established that in an action against an estate to enforce an oral contract with a person since deceased the existence of the contract must be established by clear and convincing evidence. Lostutter v. Estate of Larkin, 235 Kan. 154, 163, 679 P.2d 181 (1984); In re Estate of Mueseler, 188 Kan. 407, 409, 362 P.2d 653 (1961); Jones v. Davis, 165 Kan. 626, 632, 197 P.2d 932 (1948); Bond v. Bond, 154 Kan. 358, 360, 118 P.2d 549 (1941). In these actions the ordinary civil standard of proof of a preponderance of the evidence is insufficient because of the inherent danger of fraud in claims against the estate of a decedent. Jones v. Estate of Cooper, 216 Kan. 764, 766, 533 P.2d 1273 (1975); In re Estate of Shirk, 194 Kan. 424, 429, 399 P.2d 850, modified and reh. denied 194 Kan. 671, 401 P.2d 279 (1965); Woltz v. First Trust Co., 135 Kan. 253, 259, 9 P.2d 665 (1932).
In Braden v. Neal, 132 Kan. 387, 295 P. 678 (1931), the beneficiary under a contractual will between a husband and wife brought an action to enforce the agreed upon will. The court held that where a definite contract was clearly and certainly established, equity would grant relief to the third-party beneficiary. 132 Kan. at 391, 295 P. 678. See Eikmeier v. Eikmeier, 174 Kan. 71, 254 P.2d 236 (1953).
We find no reason or authority to support the position that the less burdensome standard of proof of a preponderance of the evidence should apply in circumstances where the claimant is a third-party beneficiary of an alleged contract between deceased parties. The temptation to set up fraudulent claims against the estate of a deceased person is not less when the claimant is a third-party beneficiary to the alleged *464 agreement than when the claimant is a direct party to the contract. In fact, it appears logical that the temptation for fraud is greater for a third-party beneficiary. Therefore, we hold the Court of Appeals erred in finding claimants needed to establish evidence of an agreement among Otto, Mathilda, and Bert by a mere preponderance of the evidence. In an action to enforce a contractual will against the estate of a decedent, the claimants must produce evidence of a clear and convincing nature to establish the existence of the alleged contract.
Now, let us turn to the first substantive issue of error raised on appeal. Edith Stratmann argues the jury verdict that the wills of 1970 and 1976 are contractual is not supported by clear and convincing evidence. In situations such as this, where the trial court found a contract existed, on appeal we review the record to determine if there is substantial evidence to support the finding and, in addition, consider the evidence to determine if it is clear and convincing. In re Estate of Shirk, 194 Kan. at 427, 399 P.2d 850. In order to establish a contract existed by clear and convincing evidence, the witnesses must be credible and the facts to which they testify must be distinctly remembered and narrated exactly and in due order; the testimony must be clear, direct, and weighty. 194 Kan. at 430, 399 P.2d 850.
Edith contends there is no evidence of a contract among the testators. She correctly points out the wills are not expressly contractual and alleges there is no direct testimony of a contract among the siblings. Finally, Edith asserts the only evidence of a contract is general statements of an intent to leave property to the church or college, and such evidence is insufficient to establish the existence of a contract.
Mutual wills made in pursuance of a contract and in consideration of reciprocal provisions do not violate public policy and have long been held valid in Kansas. Carle v. Miles, 89 Kan. 540, 543, 132 P. 146 (1913). Mutual wills made pursuant to an agreement not to revoke are contractual as well as testamentary in nature and impose an irrevocable obligation on the surviving testator upon the death of the other testator. In re Estate of Wade, 202 Kan. 380, 385-86, 449 P.2d 488 (1969). Nevertheless, the contractual will may be revoked and probate prevented. Menke v. Duwe, 117 Kan. 207, 216, 230 P. 1065 (1924). The revocation breaches the contract, however, so that any beneficiary under the revoked will is entitled to make a claim against the estate of the testator. 117 Kan. at 216, 230 P. 1065.
The existence or nonexistence of a contract is a question of fact. Reznik v. McKee, Trustee, 216 Kan. 659, 671-72, 534 P.2d 243 (1975). Claimants must establish by direct or circumstantial evidence that mutual and contractual wills were made in consideration of one another. The contract must be established by full and satisfactory proof which cannot be supplied by a presumption arising from the fact the wills were mutual. 216 Kan. at 672, 534 P.2d 243; In re Estate of Wade, 202 Kan. 380, 387, 449 P.2d 488 (1969). Therefore, the fact that the wills contain no reference to a contract is not conclusive, nor can a contract be presumed because two persons simultaneously make reciprocal testamentary dispositions. See In re Estate of Chronister, 203 Kan. 366, 372, 454 P.2d 438 (1969); In re Estate of Miller, 186 Kan. 87, 96, 348 P.2d 1033 (1960). The terms of the will itself, however, may be circumstantial evidence of a contract and may show by implication, along with other known circumstances such as family relations, that execution of the will was the product of a pre-existing agreement. Finally, the contract must be definite, certain, and unequivocal as to parties, subject matter, and consideration. Reznik, 216 Kan. at 674, 678, 534 P.2d 243.
As we have already noted, neither the 1970 wills nor the 1976 wills are contractual on their face. Therefore, we must look to circumstantial evidence to determine whether a contract existed among the testators. In 1970, Otto and Bert each executed reciprocal wills wherein the survivors of the three unmarried Stratmann children received the entire estate. In the *465 event Otto and Mathilda predeceased Bert or Bert and Mathilda predeceased Otto, certain named charities received the property in designated percentages. Otto's will, however, included two charities not listed in Bert's will, and provided for different percentages of disposition. Thus, although the wills are similar they are not identical.
The 1976 wills of Bert and Mathilda are mutual, reciprocal, and identical in all substantive aspects. The testator left his or her entire estate to the other and bequeathed the residue to the same charities under the will of the survivor.
The reciprocal and similar provisions of these wills is indicative of an overall pattern of disposition of the family estate. See Reznik, 216 Kan. at 674, 534 P.2d 243; Chronister, 203 Kan. at 373, 454 P.2d 438. In addition, the 1976 wills made by Bert and Mathilda expressed their specific intent to omit other heirs. However, the 1970 wills of Otto, Bert, and Mathilda fall in a much weaker position since those wills are not mutual and Mathilda's 1970 will was not produced at trial. We have only oral testimony concerning its contents.
Oral testimony at trial can provide circumstantial evidence of contractual wills. Testimony of Bert and Mathilda which had been given during the probate of Otto's will was read into evidence at this trial. Mathilda had testified she and Otto executed the 1970 wills on the same date and that neither of them asked the other to make a will, but that for some time they had discussed leaving their property to the other. There was no direct evidence of a contract. Bert, however, testified he did not know that Otto and Mathilda were planning to make new wills in 1970, and did not gain such knowledge until after the wills were executed. Bert indicated he decided on his own to make a similar will with a few changes.
Reverend William McCreery testified he met with Otto, Mathilda, and Bert in the spring of 1970 in an effort to cultivate interest in Sterling College. After meeting with the Stratmanns, McCreery felt they were going to do something for the college but did not receive a definite commitment on the amount of their contribution. Although the Stratmanns did not state they had a contractual agreement, McCreery held the opinion they were in agreement on helping the college and at one point Bert told him the college was taken care of in the "Stratmann Estate."
Sister Miriam Schremmer testified that she visited with Bert while Mathilda was a patient at the Central Kansas Medical Center. Bert told Sister Schremmer they were going to do something nice for the hospital because its staff was nice to Mathilda.
Reverend Don Ray, pastor for the First Presbyterian Church of Ellsworth, testified that Otto, Mathilda, and Bert acted as a team. Reverend Ray made regular calls on the Stratmanns and from conversations with them believed they intended to do something for Sterling College; however, no specific amounts or percentages were ever given. On one specific occasion, in response to a request for a $70,000 gift for an organ for Sterling College, Bert told Reverend Ray, "No, you will get our money when we die."
Edith contends the testimony presented general statements of an intent to give property to the church or college, which are not sufficient to establish the existence of a contract. In Jones v. Estate of Cooper, 216 Kan. 764, 767-68, 533 P.2d 1273 (1975), we held that definite evidence of an alleged contract with a decedent must be produced and the claimant could not rely merely upon witnesses' testimony of the decedent's intent to devise property as a reward for claimant's services. 216 Kan. at 767-68, 533 P.2d 1273.
John O'Donnell, an attorney who represented the Stratmanns for many years, testified that Otto, Bert, and Mathilda owned and dealt with most of their property separately and distinctly. O'Donnell stated that Otto and Mathilda were not present when Bert executed his 1970 will, nor did Bert indicate to him the existence of a contract. Otto also made no mention to O'Donnell about any contractual arrangement when he executed his 1970 will.
*466 Thus, we are presented from the foregoing facts with the question of whether there is clear and convincing evidence the Stratmanns contracted among themselves, each to the other, to will their property as the three of them did in 1970 or as Bert and Mathilda did in 1976.
Let us first examine the 1970 wills. The wills were not mutual and reciprocal in all respects between Otto and Bert, and from Bert's preserved testimony from the probate hearing in Otto's probate we know that Bert and Otto had no contract. There is no evidence to support a conclusion that there was a contract. John O'Donnell, the attorney who drafted the wills, testified there was no contractual arrangement among the Stratmanns. He said had there been one he would have so stated in their wills. Claimants' failure to produce direct testimony of a contract and O'Donnell's testimony are persuasive. We hold there was no contract among the Stratmanns in the 1970 wills. Had a contract existed, it would have rendered any subsequent wills ineffective.
Now we turn to the 1976 wills of Bert and Mathilda. These two wills are clearly mutual and reciprocal and show that the two testators saw the proper disposition of their estates the same way at that time. The question presented is: Does that mutuality constitute a contract which precludes each of them from changing their will thereafter, absent agreement by the other?
We stated in In re Estate of Pennington, 158 Kan. 495, Syl. ¶ 1, 148 P.2d 516 (1944):
"The separate wills of two persons which are reciprocal in their provisions giving the property of each to the other are not inherently contractual, where the wills do not so declare, and where there is no evidence of an agreement by the testators to that effect."
We amplified the Pennington holding in In re Estate of Miller, 186 Kan. 87, 95, 348 P.2d 1033 (1960), stating:
"To establish an agreement for mutual wills there must be full and satisfactory proof of the agreement, which cannot be supplied by presumption. Merely to argue that wills are contractual because they are mutual begs the question. The contractual character of a will is a fact to be established by evidence, showing that such was the understanding and the deliberate agreement.
"It is essential to the validity and enforcement of a contract for the execution of wills containing bequests which are reciprocal between the parties that the contract be definite, certain and unequivocal as to the parties, the subject matter and the considerations."
As we previously stated, neither of the 1976 wills contain a reference to a contract, nor do we have any information from the testators which asserts a contract. Thus, we must search the extrinsic evidence for guidance. To prevail, the claimants must produce evidence that Bert and Mathilda each intended their 1976 mutual wills to be binding on both of them and that they understood the consequences of such agreement and that they so agreed deliberately. We have no direct evidence on any of these points. Rather, the will draftsman, Attorney Ed Moses, testified to the contrary. He says nothing about a contract was mentioned to him by either testator. Thus, we must examine the testimony of the claimants. Does it provide any contract information which is definite, certain, and unequivocal as to parties, subject matter, and consideration and which is clear, direct, and weighty? Our thorough search of the record reveals no evidence of a contract, let alone evidence which meets the requirements of the contract being definite, certain, unequivocal, clear, direct, and weighty.
The claimants have the burden of proving the wills were contractual by clear and convincing evidence. They failed to produce witnesses who distinctly remembered and narrated exactly and in due order, and whose testimony was clear, direct, and weighty that a contract existed between Bert and Mathilda Stratmann. Thus, the claimants failed to sustain the burden of proof. There was insufficient evidence of a contract to submit that issue to the jury.
*467 Bert Stratmann's 1983 will is not subject to the contractual claim of appellees. The other issues raised need not be discussed.
The judgments of the trial court and the Court of Appeals are reversed and judgment is entered for appellant.
ABBOTT, J., not participating.
SIX, Justice, concurring and dissenting:
I agree with the majority that the standard of proof should be clear and convincing evidence under the instant fact situation. The trial court determined the clear and convincing standard applied and so instructed the jury.
I detach myself from the majority's observation: "In fact, it appears logical that the temptation for fraud is greater for a third-party beneficiary." The majority's observation relates to the distinction made by the Court of Appeals between litigation involving a claimant who allegedly contracted with the decedent to perform services in exchange for a promise to leave the claimant property in decedent's will (the oral promise must be proved by clear and convincing evidence), and situations similar to the case at bar (claimants are third-party beneficiaries to an alleged mutual will contract among several decedents). In my view, the former is more susceptible to fraud than the latter. In the beneficiary situation, as in the case at bar, written evidence is present (the will in question and the will or wills forming the basis of the alleged contract).
I dissent from the majority's reversal of the jury verdict. The majority has, contrary to the verdict of the jury and the ruling of an experienced trial judge, entered judgment for appellant Edith Stratmann, holding that Bert Stratmann's 1983 will is not subject to the contractual claims of appellees as third-party beneficiaries.
The majority has applied an incorrect scope of review.
What is the scope of review for this court, in the instant litigation, as it rewalks the path of the jury, the trial judge, and the Court of Appeals?
The answer is found in the opinion of Justice McFarland, speaking for the court, in Newell v. Krause, 239 Kan. 550, 557, 722 P.2d 530 (1986). Krause picks up the cardinal thread of the judicial review fabric woven in In re Estate of Shirk, 194 Kan. 424, 399 P.2d 850 (Shirk I), modified and reh. denied 194 Kan. 671, 401 P.2d 279 (1965) (Shirk II).
"Clear and convincing evidence is not a quantum of proof, but rather a quality of proof; thus, the plaintiff establishes fraud by a preponderance of the evidence, but this evidence must be clear and convincing in nature. On review, this court considers only the evidence of the successful party to determine whether it is substantial and whether it is of a clear and convincing quality." (Emphasis added.) Krause, 239 Kan. at 557, 722 P.2d 530.
The majority relies on Shirk I as its guide for establishing the scope of review. 194 Kan. at 427, 399 P.2d 850. ("On appeal we review the record to determine if there is substantial evidence to support the finding and, in addition, consider the evidence to determine if it is clear and convincing.") The Shirk I inquiry is incomplete. Without Shirk II, the reader is misled and the evidentiary focus of the appellate court's scope of review is either obscured or "off target." Shirk I and Shirk II must be read as one opinion for identification of the proper scope of review.
In fact, Shirk II sends out the dominant signal. In Shirk II, this court was confronted with a motion for rehearing addressing the language of Shirk I. The Shirk I appellee, who won in the trial court on an oral agreement claim against an estate but lost in this court, filed a motion for rehearing. The motion challenged the language of Shirk I dealing with the quality of evidence required to meet the clear and convincing test necessary in establishing an oral contract with a deceased person.
We denied the motion for rehearing but extended the Shirk I opinion; consequently, the two opinions must be read together. This the majority has failed to do. The *468 pithy extension of Shirk II instructs us on the scope of review:
"It was not the intention of this court to depart from the long established rule that it would not weigh evidence on appeal.. . . In reviewing the record for the purpose of determining whether there is clear and convincing evidence to support the judgment this court does not weigh the evidence." 194 Kan. at 672, 401 P.2d 279.
After repeating the admonishment "not to weigh the evidence," Shirk II tells us what to do in the case at bar. We are to consider "only the evidence of the successful party for the purpose of determining whether it is substantial and of that quality required to be clear and convincing." (Emphasis added.) 194 Kan. at 672, 401 P.2d 279.
John O'Donnell was Edith Stratmann's witness. O'Donnell's testimony was not evidence of the successful party. The charities prevailed. The jury found that a contract existed.
The majority not only relies on the testimony of John O'Donnell, but also characterizes it as "persuasive." In its opinion, the majority has the following to say about the evidence of the unsuccessful party as that evidence relates to the 1970 wills of Otto, Bert, and Mathilda Stratmann:
"John O'Donnell, an attorney who represented the Stratmanns for many years, testified that Otto, Bert, and Mathilda owned and dealt with most of their property separately and distinctly. O'Donnell stated that Otto and Mathilda were not present when Bert executed his 1970 will, nor did Bert indicate to him the existence of a contract. Otto also made no mention to O'Donnell about any contractual arrangement when he executed his 1970 will.
"Thus, we are presented from the foregoing facts with the question of whether there is clear and convincing evidence the Stratmanns contracted among themselves, each to the other, to will their property as the three of them did in 1970 or as Bert and Mathilda did in 1976.
"Let us first examine the 1970 wills. The wills were not mutual and reciprocal in all respects between Otto and Bert, and from Bert's preserved testimony from the probate hearing in Otto's probate we know that Bert and Otto had no contract. There is no evidence to support a conclusion that there was a contract. John O'Donnell, the attorney who drafted the wills, testified there was no contractual arrangement among the Stratmanns. He said had there been one he would have so stated in their wills. Claimants' failure to produce direct testimony of a contract and O'Donnell's testimony are persuasive. We hold there was no contract among the Stratmanns in the 1970 wills. Had a contract existed, it would have rendered any subsequent wills ineffective."
The majority observes that the existence or nonexistence of a contract is a question of fact, citing Reznik v. McKee, Trustee, 216 Kan. 659, 671-72, 534 P.2d 243 (1975). I agree.
The jury was instructed (No. 6):
"In reviewing the evidence as presented in the terms of the will, you should put yourself as nearly as possible in the situation of the testator (person making the will) when he or she made the will and may take into consideration all other evidence admitted in this case in attempting to put yourself in such a position to determine what the testator's actual intent was at the time the will was executed."
The jury in a special verdict form proposed by counsel for Edith Stratmann found the 1970 wills of Otto, Bert, and Mathilda to be contractual.
"We, the jury, present the following answers to the questions submitted by the Court:
"1. Do you find that a contract was entered into prior to July 16, 1970, among Bert, Otto and Mathilda Stratmann, whereby they contractually bound themselves that the last of them to die would leave all of their property to the following claimants in the following percentages:
*469
"Lutheran Society Good Samaritan
Home 10%
"Central Kansas Medical Center 10%
"First Presbyterian Church of Ellsworth 25%
"Sterling College 45%
"Ellsworth County Veterans Memorial
Hospital 10%
and thus Bert Stratmann could not change his
Will after the deaths of Otto Stratmann and
Mathilda Stratmann and the provisions of his
November 10, 1983 Will should be given no
effect?
"ANSWER: YES X NO ___"
The jury also found the 1976 wills of Bert and Mathilda to be contractual by indicating "yes" on a similar verdict form proposed by Edith Stratmann.
The trial judge in his memorandum of decision on the post-trial motions of Edith for judgment notwithstanding the verdict or in the alternative motion for a new trial reasoned:
"There can be no argument that the burden of proof in a case of this nature is on the Claimants, that it must be clear and convincing evidence.
"Further in a Motion for Judgment Notwithstanding The Verdict, all evidence is construed most favorable to the party against whom the motion is directed.
"In a motion for a new trial, the Court must make an overview of all the evidence and use its sound discretion as to whether there was error and, if so, whether such error was so prejudicial as to warrant a New Trial.
"Both sides have filed lengthy briefs, reply briefs, and the Court heard lengthy arguments several months ago. The Court has reviewed all briefs along with a transcript of the Arguments made on October 6, 1988. It would seem to the Court that the sole issue is: "whether there was evidence presented of a clear convincing nature that Otto, Mathilda and Bert made an agreement as to exactly how their property was to be ultimately disposed of." (Emphasis added.)
Krause instructs that clear and convincing evidence is not a quantum of proof but rather a quality of proof. The charities must establish a contract between Otto, Bert, and Mathilda by a preponderance of the evidence evidence which carries the quality of "clear and convincing." See 239 Kan. at 557, 722 P.2d 530. Shirk II and Krause direct us to consider only the evidence of the successful parties; in this case, the charities. Shirk II offers further assistance in resolving the instant case. The trial court must be satisfied that the evidence is clear and convincing. 194 Kan. at 672, 401 P.2d 279. Here, the trial court was satisfied. The trial court gave the jury the clear and convincing instruction from PIK Civ.2d 2.11.
Shirk II observes: "It may be said that in every case the trier of facts must be satisfied with the evidence, there must be some evidence to support the findings, and on appeal it will be presumed that the findings are supported by evidence unless there is a showing to the contrary." 194 Kan. at 672, 401 P.2d 279. The charities, as would all appellees similarly situated, arrive here with the benefit of the Shirk II presumption.
Let us consider the evidence of the successful parties.
The threshold for departure is the observation of the trial judge in his memorandum decision on the Edith Stratmann post-trial motions: "Otto, Mathilda and Bert Stratmann were the unmarrieds in the Stratmann family, they lived together on the homestead where they grew up. They *470 together amassed a sizeable fortune. To put it mildly they did not get along with their three brothers who had married."
The similarities among the wills of the three single siblings provide circumstantial evidence that an agreement was reached. Additional circumstantial evidence of a contract is provided by the consideration of the three that their property was a part of one Stratmann estate, even though they held property separately. Together they listened to representatives from the charities as the representatives attempted to solicit funds. They made their wills at, or near, the same times. Over the years, as they revised their wills, the provisions among them were always similar or identical.
The first wills drawn by Bert, Otto, and Mathilda (the singles) were drawn approximately 20 days after their mother's death in June of 1960. The singles drew their first identical wills in April of 1963. All of the wills excluded the married siblings completely.
Otto and Mathilda were together when one another's 1970 wills were prepared and signed. Mathilda stated during a deposition that they made the 1970 wills to protect themselves. She testified that the threesome agreed to give their property to each other at that time after talking about it "quite awhile."
The Stratmann family was characterized by intense conflict. Bert, Otto, and Mathilda had nothing to do with the three married siblings. The conflict continued over a period of many years. When Chris Stratmann, the oldest sibling, was married in the 1920's, the family forced him to move. Ervin, the second to marry, was also forced off into another county when he was married. Ervin was barred from visiting the homestead. The third to marry was Marvin. Otto, Bert, and Mathilda, refused to permit his fiance into their home.
The singles not only avoided the marrieds but also sued them. The history of the singles versus the marrieds was before the jury. The extreme nature of the hostile relationship is represented by a suit filed by the singles against the marrieds over the ownership of a plow. The litigious flavor of the singles/marrieds relationship surfaced in this court. Stratmann v. Stratmann, 204 Kan. 658, 465 P.2d 938 (1970) (Bert, Otto, and Mathilda against Ervin and his wife Sybil in a quiet title case involving royalty interests).
Otto died in August 1973 at the Central Kansas Medical Center. More litigation followed. The marrieds filed a will contest against Otto's estate. The claim was settled. The remaining singles executed codicils to their wills noting that the exclusion of the marrieds, their spouses, and offspring was intentional. In July 1975, Marvin and Ervin (two marrieds) sued Bert, who acted as executor of the Estate of Tena Stratmann, for fraud and for holding bearer bonds that should have been inventoried in the estate. In 1978, Marvin (a married) filed suit against Bert and Mathilda to quiet title to an oil royalty interest Bert was claiming. See Stratmann v. Stratmann, 6 Kan. App. 2d 403, 628 P.2d 1080 (1981).
The singles attended the First Presbyterian Church in Ellsworth. Reverend Ray, their pastor, knew Otto, Bert, and Mathilda well. The singles lived in the same house, ate meals together, and conducted their finances together. Reverend Ray testified that the singles acted as a team. He stated that they did not have any heirs and they did not care for anyone else to have their money besides them.
Reverend Ray stated that he knew if any of the three singles ever married they would be "cut out" by the others. He had no recollection of any of the threesome even dating anyone, and he noted that the singles had purchased cemetery plots so that they could be buried together. The jury could find that the singles anticipated each other remaining single until their death.
Reverend Ray was also on the Board of Directors of Sterling College, a Presbyterian college in Sterling, Kansas, and was an alumnus of the school, as were all six of his children. Reverend Ray, knowing that the singles had substantial assets and that they were interested in Christian education, introduced them to the President of Sterling *471 College, Dr. William McCreery. Dr. McCreery first met the singles in the spring of 1970 prior to their new wills being drawn. He called on the singles in their home. He was there as a "salesman" for the college. He spoke with them about what they might do to help the college and its students. He told them that they could make a permanent contribution to the college which would fund scholarships for Christian students in perpetuity.
The singles were excited about the idea of a Stratmann Scholarship at Sterling College, so that their names would live in perpetuity. During one of the visits, Bert told Dr. McCreery that the college had been "taken care of" in the estate. When Reverend Ray asked for some money for Sterling College prior to the deaths of the singles, Bert told him, "No, you're going to get our money when we die." The money was referred to as "our money." Reverend Ray responded: "I took their word the fact is if Bert said he would give me a million dollars I would probably go out and start buying things on time because his word was good." Reverend Ray informed the Board of Directors of Sterling College that it would be receiving $1.5 million or more from the Stratmann Estate.
The singles had few close friends. They were good friends with Reverend Ray and his wife. Reverend Ray had testified in court for the singles in the past. He knew them well and ministered to their spiritual needs for over 20 years. When Reverend Ray would visit with the singles, he would visit with all three at the same time. The singles acted as a team.
Mathilda was admitted to the Central Kansas Medical Center 45 times. Mathilda was a rather shy person. She seemed lonely and depressed during her stays at the hospital. Sister Miriam spent a lot of time visiting with her. Mathilda often asked Sister Miriam to pray with her.
Whenever Mathilda was admitted to the hospital, Bert would bring her. He would also take her home upon being dismissed. He visited her regularly. Sister Miriam recalled one particular visit with Bert. During the conversation, according to her testimony:
"[T]hen he went on to tell me also that on the many admissions that there was for Mathilda he said we were always so nice to her and we did many nice things for her, and when she was there for awhile she always came out of her depression and she always felt better. The nurses and everyone always made her feel so much better that she was able to go back home and function again for awhile. . . . And he proceeded on to tell me that they're going to do something nice and they're going to remember us when the occasion comes to. . . . He just told us that they were gonna do something nice for us. He said we are going to do something nice for you because you have been so nice to Mathilda every time she comes to the hospital."
Otto and Mathilda predeceased Bert. Both estates passed by will to the surviving single. At age 81, shortly after Mathilda's death, Bert, the last of the singles, married Edith Oeser.
Edith was a nurse's aide at the hospital. She had known Bert due to prior hospitalizations of Otto and Mathilda. Edith had also helped Mathilda in the family home on various occasions. Edith had been married for 44 years before her divorce in 1980. Edith was 62. Her first date with Bert was in November 1981, less than a month after Mathilda's death. Bert told his nephew Larry that Edith wanted to get married in the spring and she was moving her stuff out to the farm. Edith and Bert were married in April 1982, less than six months after Mathilda's death.
In October 1981 when Mathilda died, her estate was valued at approximately 1.3 million. She was buried side by side with her brother Otto. The singles had purchased three cemetery plots at a local cemetery so they could all be buried together. There was a large tombstone which said "Stratmann," and small markers for the individual graves of Otto and Mathilda. Bert planned to have his marker installed upon his death.
*472 Bert died at home in July of 1986. He was buried in a different cemetery from Otto and Mathilda. The plot next to Otto and Mathilda's graves is empty.
The jury heard evidence during a four-day trial. The wills as documentary evidence were considered.
The challenge in this case asserted by Edith is to the jury's finding of fact. The existence or nonexistence of an agreement underlying contractual wills is a question of fact.
Had I been the trier of fact, I might not have found as the jury did. This court, however, must review evidence with deference to the jury's findings.
I cannot say that the jury erred when there is circumstantial evidence to support its findings. Applying our scope of review from Shirk II and Krause (considering only the evidence of the charities, the successful parties), I would hold a contract had been established by a preponderance of the evidence and that the evidence is clear and convincing in nature. Substantial evidence of a clear and convincing quality exists to support the jury verdict.
I would affirm the trial court and the result reached by the Court of Appeals. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2309241/ | 609 A.2d 676 (1992)
David CORMIER, Appellant,
v.
James McRAE, Appellee.
No. 90-CV-1012.
District of Columbia Court of Appeals.
Submitted February 18, 1992.
Decided May 12, 1992.
*677 Gary D. Wright, Washington, D.C., submitted a brief, for appellant.
Carol S. Blumenthal, Washington, D.C., submitted a brief, for appellee.
Before FERREN, FARRELL and KING, Associate Judges.
FERREN, Associate Judge:
In this landlord's action for possession of an apartment, the trial court granted summary judgment for the tenant-appellee. The tenant successfully argued that, although he had received a 30-day "notice to cure or vacate" pursuant to D.C.Code § 45-2551(b) (1990) (Rental Housing Act of 1985), the landlord-appellant had failed to comply with the further requirement of D.C.Code § 45-1402 (1990) that a notice "to quit" a month-to-month tenancy must be given, not merely 30 days in advance of termination, but at least 30 days before the end of a rental period and thus at least 30 days before the date on which a new month-to-month tenancy would otherwise begin. To the contrary, the landlord argued that § 45-2551(b) supersedes implicitly repeals § 45-1402 as applied here, and thus that, in order to evict the tenant, the landlord was not required to provide a notice to quit expiring on the very day the lease had commenced. Although we analyze the issue somewhat differently from the landlord's approach, we agree that § 45-1402 is inapplicable. Accordingly, we reverse.
I.
On February 24, 1976, the tenant signed a one-year lease for an apartment on the third floor of 3228 Hiatt Place, N.W., for the period March 24, 1976 through March 23, 1977. When the lease expired, the tenant stayed on month-to-month. On February 27, 1990, the landlord served the tenant with a 30-day notice to cure or vacate that expired on March 31, 1990. The notice was based on the following alleged violations of the lease:
not notifying landlord of repair work needed; repeated refusal to allow access to apartment to begin repairs; allowing extra people to occupy [the] apartment; refusal to pay $480 for theft of electricity; repeated threats to [landlord]; endangering the health and safety of all tenants by opening fire doors.
When the tenant failed to cure the violations or to vacate the apartment, the land-lord *678 filed a suit for possession in the Land-lord and Tenant Branch of Superior Court on April 4, 1990.
The tenant moved to dismiss or, in the alternative, for summary judgment, basing his argument on two statutes. D.C.Code § 45-2551(b) directs that:
A housing provider may recover possession of a rental unit where the tenant is violating an obligation of tenancy and fails to correct the violation within 30 days after receiving from the housing provider a notice to correct the violation or vacate.
The earlier statute, D.C.Code § 45-1402 (enacted in 1901), similarly provides for terminating a month-to-month tenancy with a 30-day written notice to quit, but § 45-1402 directs that the notice must expire "on the day of the month from which such tenancy commenced to run."
The trial court concluded that the 30-day notice requirement of § 45-2551(b) applied but that § 45-1402 still governed the timing of the notice. The court accordingly accepted the tenant's argument that the landlord should have given notice 30 days or more before the day of the month on which the lease began to run. The trial court reasoned that, because the landlord notified the tenant to cure or vacate by March 31, 1990, the landlord to achieve that goal should have given notice no later than February 22, 1990, 30 days before March 24, the day the monthly tenancy began.[1] The tenant, however, did not receive notice until February 27, 1990. The trial court ruled that because the notice did not satisfy § 45-1402, the landlord was not entitled to sue for possession and granted the tenant's motion for summary judgment.
II.
In reviewing a summary judgment order, our standard is the same as the trial court's. See Taylor v. Eureka Inv. Corp. 482 A.2d 354, 357 (D.C.1984). We examine whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Super.Ct.Civ.R. 56(c). In so doing, we must examine all facts in the light most favorable to the non-moving party. See Thompson v. Shoe World, Inc., 569 A.2d 187, 189 (D.C.1990).
The central question is whether the § 45-1402 timing requirement for a "notice to quit" applies when a landlord wishes to evict a month-to-month tenant for breach of a covenant now called an "obligation of tenancy," D.C.Code § 45-2551(b) in the lease.
A.
It is important, first, to note the common law origins of § 45-1402 and how rent control legislation has affected that statute. At common law, either party could terminate a periodic (e.g., month-to-month) tenancy, without claiming a breach of the lease, merely by giving adequate notice. More specifically, under the common law, "notice a full period in advance of the end of a period was required." 1 A. JAMES CASNER, ET AL. AMERICAN LAW OF PROPERTY § 3.23 at 222 (1952); see id. § 3.90 at 377. In keeping with the common law, Congress in 1901 enacted the predecessor of the present § 45-1402, codifying for the District of Columbia the requirement that the 30-day notice required for terminating a month-to-month or quarter-to-quarter tenancy must expire "on the day of the month from which such tenancy commenced to run." Act of Mar. 3, 1901, ch. 854, § 1219, 31 Stat. 1382 (establishing District of Columbia Code).
In contrast with § 45-1402, Congress adopted in 1901 what is now D.C.Code § 45-1401 (1990) to govern leases of real estate "for a certain term," entitling a landlord to sue for possession without notice to quit "immediately upon the expiration *679 of the term." Similarly, D.C.Code § 45-1404 (1990), adopted in 1901 to govern "tenancies by sufferance," entitles a landlord to terminate the tenancy "at any time" but, akin to § 45-1402, requires a "notice in writing ... to quit the premises leased," though not a specified number of days in advance.[2]
In Jack Spicer Real Estate, Inc. v. Gassaway, 353 A.2d 288 (D.C.1976), we interpreted the impact of rent control regulations on these sections of the Code. In that case, the landlord filed suit for possession after serving a tenant at sufferance with a simple notice to quit under § 45-1404, without including any of the reasons for eviction specified in Section 10 of the District of Columbia Rent Control Regulation No. 74-20. We held that the simpler, "conflicting" termination provisions codified at §§ 45-1401 and 45-1404 "must yield to more recently enacted rent control regulations" requiring a notice showing a legitimate reason for termination. Jack Spicer, 353 A.2d at 291-92.
Similarly, in Administrator of Veterans Affairs v. Valentine, 490 A.2d 1165, 1170 (D.C.1985), we held that D.C.Code § 45-1561 (1981) a statute incorporating provisions similar to those in Rent Control Regulation No. 74-20, which had been applied in Jack Spicer "supersede[d] the earlier enacted [D.C.Code] §§ 45-222 and 45-1403." These earlier enacted provisions had permitted termination of tenancies at will merely by giving 30 days notice in writing by either party. Valentine, 490 A.2d at 1167.
D.C.Code § 45-1561 (1981) (construed in Valentine), governing evictions under the Rental Housing Act of 1980, replaced Rent Control Regulation No. 74-20, see D.C.Law 3-131, § 501 (Mar. 4, 1981) (construed in Jack Spicer). Similarly, D.C.Code § 45-2551 (1990), governing evictions under the Rental Housing Act of 1985, has supplanted former § 45-1561, in some instances with identical eviction provisions. See D.C.Law 6-10, § 501 (July 17, 1985); D.C.Law 6-192, § 13(g) (Feb. 24, 1987). Jack Spicer and Valentine, therefore, indicate for purposes of this case that after enactment of a series of rent control statutes, no basis remains for saying that a housing landlord[3] could still use § 45-1402, any more than §§ 45-1401, -1403, or -1404, to terminate a tenancy without giving a valid reason specified by statute.
B.
The fact that a landlord subject to § 45-2551 no longer may terminate a month-to-month tenancy under § 45-1402 without giving an adequate statutory reason, however, still leaves a critical question: given the required 30-day notice under both § 45-1402 and § 45-2551(b), does the timing provision of § 45-1402 nonetheless apply here? The answer has to be no, not because the two provisions conflict § 45-2551(b) contains no timing provision but because our statutory and case law have removed all right of a residential landlord subject to § 45-2551 to use § 45-1402 for any purpose. As we shall see, the 1980 Rental Housing Act withdrew from residential landlords the right to give merely a notice to quit, as such, for breach of a lease obligation (other than for nonpayment of rent) and, as a result, left no room for § 45-1402, including its timing provision, to apply in such a case.
In Jones v. Brawner Co., 435 A.2d 54 (D.C.1981), the landlord sued for possession of an apartment alleging the tenant had willfully and consistently failed to pay rent on time. Two statutes applied: D.C.Code § 45-1699.6(b)(1) (1980 Supp.) part of the 1977 Rental Housing Act required a "notice to cure";[4] D.C.Code § 45-906 (1973), *680 called for a "notice to quit."[5] This court indicated that these two notices were different documents, not only because their purposes were obviously different but also because service of process on a tenant under § 45-906, including substituted service, was different than that allowed under the 1977 Rental Housing Act. Id. at 56. We reversed the judgment of possession in favor of the landlord because the landlord had failed to meet the service requirements of § 45-906. In doing so, we rejected the argument that our decision in Jack Spicer implied that the Rent Control Regulation No. 74-20 had superseded the service provisions applicable to a notice to quit under § 45-906. We expressly confirmed that "the provisions of the regulation did not supplant the notice requirements specified in the previously enacted § 45-906. The two were to be read harmoniously." Jones, 435 A.2d at 56 (citation omitted).
This reasoning in Jones could be read to justify appellee's argument that the § 45-1402 timing provision should be held to supplement the 30-day notice requirement under § 45-2551(b) because they can "be read harmoniously" together. Id. Two years after Jones, however, we decided Cooley v. Suitland Pkwy. Overlook Tenants' Ass'n, 460 A.2d 574 (D.C.1983), a suit for possession based on alleged violation of a lease obligation limiting residency in the apartment to family members and others named in the rental application. We noted in Cooley that the law since Jones had changed i.e., that the 1980 Rental Housing Act, in supplanting the 1977 Act, had made "it explicitly clear that a notice to cure or vacate is all that a landlord is required to give to a tenant before filing suit for possession based on a tenant's failure to correct a violation of the tenancy." Id. at 575-76. Thus, a separate "notice to quit" was no longer required; the 1980 Act "merg[ed] both notice requirements into one." Id. at 576.[6]
This merger of a notice to cure and a notice to quit into one required notice the "notice to cure or vacate" under the 1980 and 1985 Rental Housing Acts leaves no room for the § 45-1402 timing requirement when § 45-2551(b) applies to the termination of a month-to-month tenancy. By eliminating the need for indeed, the validity of a separate notice to quit when a landlord gives notice to cure or vacate, the 1980 Act and its successor, the 1985 Rental Housing Act governing this case, have altogether eliminated the applicability to the landlord of any statutory provision, such as § 45-1402, that provides rules governing only "notices to quit" as such.[7]
*681 Recent case law confirms this analysis. In Pritch v. Henry, 543 A.2d 808 (D.C. 1988), we considered a timing-of-notice problem in a possessory action based on alleged nonpayment of rent. We held not only that § 45-2551(b) itself required a thirty-day notice to cure or vacate but also without even a reference to § 45-1402 that the cure period "will expire, not thirty days after the notice is received, but rather on the first day of the rental period immediately following the lapse of the thirty day notice period which commences on receipt of the notice." Id. at 812. Thus, for nonpayment cases, we incorporated the timing requirement of § 45-1402 into § 45-2551(b) and explained why that was necessary without relying on § 45-1402 itself. We suggested in dicta, however, that in a case where the tenant had violated a lease obligation other than the obligation to pay rent, this timing restriction would not apply. See id. at 811-12. The lease in Pritch prohibited use of the premises for any non residential purpose. We said:
Assume that the landlord became aware that the tenant was using the premises as a business office and notified the tenant to correct this violation within thirty days. It is clear under these circumstances, that the cure period would begin to run from the date the notice was received and would expire thirty days later.
Id. at 811-12.
We now confront a situation similar to the one hypothesized in Pritch. The landlord here alleged that the tenant had allowed extra persons to live in the apartment, had refused to pay for pilfered electricity, had refused to allow access to the apartment for repairs, and had endangered the health and safety of other tenants. The tenant has not denied these allegations, and for purposes of this review we accept them as true.[8] We now hold, in keeping with the Pritch dicta, that a landlord may file an action for possession of leased residential premises alleging violation of "an obligation of tenancy," other than nonpayment of rent, if the tenant has not "correct[ed] the violation within 30 days after receiving ... notice to correct the violation or vacate," D.C.Code § 45-2551(b) without regard to the timing requirement for nonpayment cases imposed in Pritch and without regard to the timing requirement in § 45-1402.
In sum, beginning with § 45-1651 of the 1980 Rental Housing Act, as construed in Cooley, and continuing through § 45-2551 of the 1985 Act, which contains the same "correct or vacate" language, the District's law has erased the separately required notice to quit for all cases in which § 45-2551 applies. With that erasure, therefore, the successive Rental Housing Acts have also eliminated the § 45-1402 timing provision, which now applies only when a notice to quit as such, not a notice to cure or vacate, may still be used (e.g., when a tenant elects to terminate a month-to-month tenancy).
III.
"It is trite but true to state that forfeitures are not favored. A breach by a tenant must be a violation of a substantial obligation to be enforceable by forfeiture." 2 MILTON A. FRIEDMAN, FRIEDMAN ON LEASES § 16.2, at 975 (3d ed. 1990). We are dealing here, however, not with the tenant's eviction but with the grant of summary judgment in the tenant's favor, a ruling which prevented the landlord from maintaining *682 a suit for possession at all. It is for the trial court to determine whether the breaches alleged here were of sufficient magnitude and willfulness to allow the landlord to oust the tenant. See Entrepreneur, Ltd. v. Yasuna, 498 A.2d 1151, 1160-62 (D.C.1985) (collecting cases where breach has led to forfeiture and cases where forfeiture disallowed).
Concluding as we do that § 45-1402 does not apply when a tenant protected by § 45-2551 allegedly violates a lease obligation, we are left only with the question whether the landlord's notice to cure or vacate here was sufficient under § 45-2551(b). We conclude that it was. On February 27, 1990, the tenant received notice to cure or vacate by March 31, 1990. The landlord filed suit on April 4, 1990. Thus, the tenant received notice of more than 30 days during which time he could have cured the violations and avoided the landlord's suit for possession.
We hold, accordingly, that the trial court erred in granting the motion for summary judgment. We remand the case for proceedings consistent with this opinion.
Reversed.
NOTES
[1] The 30-day notice period begins to run on the day the tenant receives notice. See Pritch v. Henry, 543 A.2d 808, 812 (D.C.1988). February 22-28 (7 days), when added to March 1-23, total 30 days.
[2] However, D.C.Code § 45-1404 requires a terminating tenant to give the landlord a 30-day notice.
[3] We express no opinion on whether § 45-1402 remains valid and applicable when either a commercial lessor or a tenant seeks to terminate a month-to-month tenancy.
[4] See Jones, 435 A.2d at 54-55 (referring to notice required under Rental Housing Act as "notice to cure").
[5] D.C.Code § 45-906 (1973) is the predecessor statute to id. § 45-1406 (1990).
[6] The 1977 Rental Housing Act had provided that no rent paying tenant could be evicted, notwithstanding expiration of the lease, unless the tenant was violating an obligation of the tenancy and failed to correct the violation "within thirty (30) days after receiving notice thereof from the landlord," D.C.Code § 45-1699.6(b)(1) (1980 Supp.), quoted in Cooley, 460 A.2d at 576 (emphasis in Cooley). This required notice to correct the violation did not necessarily embrace the separately required notice to quit. See Cooley, 460 A.2d at 575-576. The 1980 Act, however, replaced the "notice thereof" language with "notice to correct such violation or vacate." D.C.Code § 45-1561(b) (1981), quoted in Cooley, 460 A.2d at 576 (emphasis in Cooley). This language, therefore, effectively merged the notice to cure and the notice to quit into one required notice. See Cooley, 460 A.2d at 576. The 1985 Rental Housing Act presently in effect has retained the "notice to correct the violation or vacate" language. See D.C.Code § 45-2551(b) (1990).
[7] The tenant's argument that the timing provision of § 45-1402 applies to termination of month-to-month apartment leases for breach of a covenant other than for nonpayment of rent is premised on an assumption that § 45-1402 (and its statutory predecessors) applied to such residential tenancies before rent control regulations were enacted. The statutory language appears broad enough to cover such terminations; the analysis in Jones discussing the interplay of rent control provisions and notices to quit before the 1980 Rental Housing Act was adopted suggests that § 45-1402 and its companion provisions applied until the merger of notices to cure and to quit recognized in Cooley; and local landlord-tenant law treatise writers have assumed as much. See JULIAN KARPOFF, LANDLORD AND TENANT LAW IN THE DISTRICT OF COLUMBIA, Ch. VI § 61 (1977); KENNETH LOEWINGER AND R.J. TURNER, LOEWINGER ON D.C. LANDLORD-TENANT LAW, Ch. 9, §§ 9.1-9.7 (1988). We have found a few and only a few cases suggesting that a month-to-month tenant who breached a covenant other than the obligating to pay rent was entitled to a thirty-day notice to quit. These cases did not refer to the timing of such a notice, but because a statutory predecessor of § 45-1402 was on the books at the time of each decision, presumably the case law was referencing these statutory requirements (reflecting the common law), including the timing provisions. See Dunnington v. Thomas E. Jarrell Co., 96 A.2d 274, 275 (D.C. 1953) (because tenant had not used apartment in unlawful manner, court held tenant had not waived notice to quit "and consequently the tenant was entitled to a thirty days' notice"); Hall v. Henry J. Robb, Inc., 32 A.2d 707, 708 (D.C.1943) (where tenant violated lease provision prohibiting subletting, court noted tenant's written waiver of notice to quit). But see Banks v. Torre, 56 A.2d 52 (D.C.1947) (in suit for possession, where tenant operated shoe shine parlor on premises limited by lease to use as private dwelling, court sustained directed verdict for landlord with no mention of notice to quit).
[8] In reviewing the grant of summary judgment, we are bound to view the facts in the light most favorable to the non-moving party. See Thompson, 569 A.2d at 189. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3341613/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION
The petitioner has brought this habeas corpus proceeding challenging the disciplinary proceeding that resulted in the petitioner being found guilty of a Security Risk Group Affiliation. The petitioner challenges his classification and the nature of the hearing procedures that resulted in his classification as a security risk group safety threat member.
It is well established that a petitioner cannot state, as a basis for habeas corpus relief; a cognizable claim relative to his safety threat classification. Abed v. Commissioner ofCorrection, 43 Conn. App. 176 (1996).
Due process does not require that inmates be provided with attorneys or advocates for such disciplinary hearings nor is the standard of proof to be employed that of a criminal trial, proof beyond a reasonable doubt. This court is not required to set aside the decisions of prison administrators that have some basis in fact. Superintendent v. Hill 472 U.S. 445, 456.
The court concludes, from the evidence presented, that the decision of the hearing officer designating the petitioner as a security risk group member, based upon the items that were seized from the inmates cell during a "shakedown" provides an adequate basis in fact for the finding of the hearing officer.
The petitioner has failed to meet his burden of proof in this case and the petition is accordingly dismissed. CT Page 3630
BY THE COURT
CARROLL, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1379851/ | 369 S.E.2d 590 (1988)
STATE of North Carolina
v.
Robert Rudolph PRUITT.
No. 381A87.
Supreme Court of North Carolina.
June 30, 1988.
*591 Lacy H. Thornburg, Atty. Gen. by David F. Hoke, Associate Atty. Gen., Raleigh, for the State.
Malcolm Ray Hunter, Jr., Appellate Defender by David W. Dorey, Asst. Appellate Defender, Raleigh, for defendant-appellant.
FRYE, Justice.
Defendant was indicted on 2 March 1987 on two counts of first degree rape, one count of first degree kidnapping, and two counts of taking indecent liberties with a child. He was tried at the 13 April 1987 Criminal Session of Superior Court, Gaston County. The jury found defendant guilty of all charged offenses. He received life sentences on the rape convictions, a twenty year prison term on the kidnapping conviction, and five year prison terms on each of the taking indecent liberties convictions, all sentences to run consecutively. Pursuant to N.C.G.S. § 7A-27(a), defendant appealed as of right the life sentences. Defendant's motion to bypass the Court of Appeals on the lesser offenses was allowed by this Court on 22 October 1987.
Defendant contends on this appeal that the trial court committed several prejudicial errors which entitle him to a new trial. In one of these assignments of error defendant contends that the trial court failed to comply with the statutory mandates of N.C.G.S. § 15A-1242 before permitting defendant to discharge his appointed counsel and represent himself at trial. We agree with defendant that the trial court erred and that the error was prejudicial. Accordingly, defendant is entitled to a new trial.
Because we dispose of this case on one assignment of error and because the other assigned errors may not arise at retrial, we need not address them. Furthermore, the assignment of error that we do address has no relation to the facts surrounding the crimes with which defendant is charged, thus an exhaustive recitation of these facts is unnecessary.
Prior to trial it was determined that defendant was indigent. The trial court appointed an attorney from the Public Defender's Office for the Twenty-Seven-A Judicial District to represent defendant. A conflict arose, however, which made it improper for this attorney to further represent defendant. The trial court, therefore, appointed a private attorney to represent defendant.
During pretrial hearings, defendant indicated, through his appointed counsel, that he wished to represent himself. Initially the trial court denied this request and ordered defendant to proceed with the counsel provided. Further into the proceedings, however, defendant, through defense counsel, renewed his request and informed the trial court that he intended to represent himself at trial. The trial court granted this request and ordered the appointed counsel to assist defendant if needed.
*592 On appeal, defendant argues that the trial court committed reversible error by failing to conduct a thorough inquiry, as mandated by N.C.G.S. § 15A-1242, prior to granting defendant's request to have his court appointed counsel removed and to represent himself at trial.
The sixth amendment of the United States Constitution, as applied to the states through the fourteenth amendment, guarantees persons accused of serious crimes the right to counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). Implicit in this guaranteed right to counsel is the right of a defendant to refuse counsel and to conduct his or her own defense. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). Moreover, when an accused relinquishes the benefit of counsel, the decision must be knowingly and intelligently made, i.e., the accused "knows what he is doing and his choice is made with eyes open." Adams v. United States ex rel McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 242, 87 L. Ed. 269, 275 (1942).
The applicable North Carolina statute provides as follows:
A defendant may be permitted at his election to proceed in the trial of his case without the assistance of counsel only after the trial judge makes thorough inquiry and is satisfied that the defendant:
(1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;
(2) Understands and appreciates the consequences of this decision; and
(3) Comprehends the nature of the charges and proceedings and the range of permissible punishments.
N.C.G.S. § 15A-1242 (1983) (emphasis added).
The inquiry to be made by the trial court under N.C.G.S. § 15A-1242 is mandatory and failure to conduct such an inquiry is prejudicial error. State v. Bullock, 316 N.C. 180, 340 S.E.2d 106 (1986). Furthermore, "neither the statutory responsibilities of standby counsel, N.C.G.S. 15A-1243, nor the actual participation of standby counsel ... is a satisfactory substitute for the right to counsel in the absence of a knowing and voluntary waiver." State v. Dunlap, 318 N.C. 384, 389, 348 S.E.2d 801, 805 (1986).
In the case sub judice, during the pretrial hearing, the trial court initially denied defendant's request:
MR. FUNDERBURK (defense counsel): Your Honor, [defendant] has indicated that he wishes to represent himself in this matter.
THE COURT: You have had counsel to represent you, Mr. Pruitt, and you are proceeding with those counsel....
Later during this pretrial hearing the defendant, through defense counsel, renewed his request:
MR. FUNDERBURK: ... I did talk with the Defendant further about whether or not he wished to represent himself. He informed me Friday in the jail that he did intend to represent himself if this came to trial. I know he told you earlier that he did. I have informed him that I guess he has a right to represent himself if he so desires. I have informed him that I do not think it would be in his best interest to attempt to represent himself, but he has indicated to me that he does wish to do that. I told him I would tell you that, and he wants to begin to represent himself at the point of jury. I told him that, once the jury trial began, I was sure he would not be able to switch back and forth, and he told me that he does want to represent himself beginning with the jury trial.
THE COURT: Would counsel approach the bench, please?
(Conference at the bench between counsel)
MR. FUNDERBURK: Your Honor, Mr. Pruitt would ask that a continuance be granted on the grounds that he needs time to get his witnesses here that he listed in this motion.... On the grounds that he says that he discovered last Wednesday that he was coming for trial today.
*593 THE COURT: Mr. Pruitt has known longer than last Wednesday that he was coming up for trial today.
MR. FUNDERBURK: Your Honor, he has indicated that he does wish to represent himself.
THE COURT: Motion to continue DENIED. Okay, Mr. Pruitt, you may step over to the seat that Mr. Funderburk has been sitting in. I request that [appointed counsel] remain in court in order to assist the Defendant if he should desire your assistance.
The foregoing reveals the trial court failed to make any inquiry of defendant concerning whether he understood and appreciated the dangers and disadvantages of self-representation or whether he understood the nature of the charges, proceedings, and the range of permissible punishments he faced. The State contends that the record reveals that defendant was aware of the seriousness of his decision since defense counsel had so advised defendant. The State contends as well that the record further shows that defendant knowingly and voluntarily gave up his right to appointed counsel since defendant had had extensive interviews with different attorneys regarding this case.
We disagree with the State's contention that the record reveals that defendant was fully advised of the seriousness of his decision. While the record does reveal that defendant was aware of his right to counsel, there is nothing in the record which shows that defendant understood and appreciated the consequences of proceeding pro se nor is there anything in the record which shows that defendant understood the "nature of the charges and proceedings and the range of permissible punishments." N.C.G.S. § 15A-1242 (1983). It is the trial court's duty to conduct the inquiry of defendant to ensure that defendant understands the consequences of his decision. State v. Bullock, 316 N.C. 180, 340 S.E.2d 106. Having a bench conference with counsel is insufficient to satisfy the mandate of the statute. Because the trial court failed to follow the dictates of N.C.G.S. § 15A-1242, defendant is entitled to a new trial. State v. Dunlap, 318 N.C. 384, 348 S.E.2d 801; State v. Bullock, 316 N.C. 180, 340 S.E.2d 106; State v. McCrowre, 312 N.C. 478, 322 S.E.2d 775 (1984).
NEW TRIAL. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/846678/ | Order Michigan Supreme Court
Lansing, Michigan
March 27, 2006 Clifford W. Taylor,
Chief Justice
129990 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
PEOPLE OF THE STATE OF MICHIGAN, Robert P. Young, Jr.
Plaintiff-Appellee, Stephen J. Markman,
Justices
v SC: 129990
COA: 265504
Genesee CC: 05-016153-FC
JAMES ANDREW NEPH,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the October 25, 2005
order of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the question presented should be reviewed by this Court.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 27, 2006 _________________________________________
p0320 Clerk | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1380361/ | 166 S.W.3d 589 (2005)
STATE of Missouri, Respondent,
v.
James Joe CARRUTH, Appellant.
No. WD 64067.
Missouri Court of Appeals, Western District.
July 5, 2005.
*590 Dimitra Yvette Massey, Kansas City, MO, for appellant.
Deborah Daniels, Jefferson City, MO, for respondent.
Before: SMART, P.J., HOLLIGER and HARDWICK, JJ.
LISA WHITE HARDWICK, Judge.
James Carruth was convicted of possession of a controlled substance, § 195.202,[1] and sentenced as a prior offender to a six-year prison term. On appeal, he challenges the sufficiency of the evidence to support his status as a prior offender.
At trial, the State sought to prove Carruth had been previously convicted of a felony under the name "DeShawn Jones." The State presented a certified copy of a 1993 conviction for DeShawn Jones from the City of St. Louis for felony possession of a controlled substance. The State also offered Exhibit 21, which was a card containing the fingerprints taken from DeShawn Jones on January 17, 1992, following his arrest on the felony charge.
Marcia Hale, a laboratory technician with the Missouri Highway Patrol testified that the fingerprints in Exhibit 21 matched the fingerprints taken from Carruth after his most recent arrest. The circuit court admitted Exhibit 21 into evidence, overruling a defense objection that the fingerprint card had not been authenticated by someone from the St. Louis City Police Department. The court then relied on the fingerprint evidence in determining that Carruth was a prior offender who had committed a felony under the name of DeShawn Jones.
In his sole point on appeal, Carruth contends the court abused its discretion in admitting Exhibit 21 without foundational evidence to show how the fingerprint card was prepared. The trial court has broad discretion in determining whether to admit or exclude evidence. We review such matters for an abuse of discretion and will reverse only upon a showing of prejudicial error. State v. Kirk, 134 S.W.3d 804, 806 (Mo.App.2004).
The State contends that only plain error review is available because the issue on appeal differs from the evidentiary objection at trial and, thus, Carruth failed to preserve his claim. At trial, Carruth objected that Exhibit 21 had not been properly authenticated by the officer who took the prints. On appeal, he argues the fingerprint card was not properly authenticated because there was no evidence showing its mode of preparation. Although the trial objection and argument on appeal are phrased differently, both raise foundational challenges to the manner in which the fingerprints were originally obtained. The defense objection preserved the claim on appeal. Accordingly, abuse of discretion is the appropriate standard of review.
*591 The circuit court admitted Exhibit 21 into evidence under the business records exception to the hearsay rule. Section 490.680 defines this exception under Missouri law:
A record of an act, condition or event, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the sources of information, method and time of preparation were such as to justify its admission.
The trial court has considerable discretion in determining whether a sufficient foundation exists to support the admission of business records, provided that minimal requirements are met. State v. Williams, 797 S.W.2d 734, 739 (Mo.App.1990).
Fingerprint cards can be admitted under the business records exception even when the qualifying witness is not the person who took the fingerprints. Id. The qualifying witness must establish that he or she has knowledge of the standard procedures used by a particular jurisdiction to collect fingerprints from arrestees. Id.
The testimony of Marcia Hale was sufficient to satisfy this foundational requirement. Hale is a latent print technician and a custodian of records for the Highway Patrol. She is certified to take, classify, and compare fingerprints, having completed eighty hours of forensic identification training and an additional six months of on-the-job training as a latent technician. Hale testified that the Highway Patrol maintains a computerized database of fingerprint cards received from the St. Louis City Police Department and other agencies. The Police Department records the fingerprints by rolling each of the arrestee's fingertips across a "ten-print card." The Police Department then scans the card into a computer, where the fingerprints are captured and digitally transmitted to the Highway Patrol for database storage in the Automated Fingerprint Identification System (AFIS). Hale testified that the ten-print card records are maintained by the Highway Patrol in the ordinary course of business.
Hale further testified that the Highway Patrol received and maintained fingerprint records for DeShawn Jones from the St. Louis Police Department. She compared those records with the fingerprints the Highway Patrol had received for James Carruth from the Columbia Police Department. Based on her training in forensic identification, Hale determined that the two sets of fingerprints came from the same person.
Hale's testimony established the standard procedures used by the St. Louis Police Department to collect fingerprints. Her testimony qualified Exhibit 21 for admission as a business record under Section 490.680 because she identified the mode of preparation of the fingerprint card at the time of arrest and confirmed that it was transmitted to and maintained by the Highway Patrol in the usual course of business. We find no abuse of the circuit court's discretion in admitting the evidence, nor in relying upon it to determine that Carruth was a prior offender.
The judgment of the circuit court is affirmed.
All concur.
*592 DOCNUM 011431FB]
NOTES
[1] All statutory citations are to the Missouri Revised Statutes 2000, unless otherwise indicated. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1058266/ | 166 S.W.3d 721 (2005)
STATE of Tennessee
v.
Patrick D. COLLINS.
Supreme Court of Tennessee, at Nashville.
April 15, 2005 Session.[1]
June 29, 2005.
*723 V. Michael Fox, Nashville, Tennessee, and Darren J. Scoggins, Burns, Tennessee, for the Appellant, Patrick David Collins.
Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Elizabeth T. Ryan, Senior Counsel; Victor S. (Torry) Johnson, III, District Attorney General; and Scott R. McMurtry, Assistant District Attorney General, for the Appellee, State of Tennessee.
April 15, 2005 at Pulaski.[1]
OPINION
E. RILEY ANDERSON, J., delivered the opinion of the court, in which FRANK F. DROWOTA, III, C.J., and ADOLPHO A. BIRCH, JR., JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.
We granted review of this interlocutory appeal to determine whether the defendant was sufficiently advised of the consequences of refusing to take a breath-alcohol test. The arresting officer informed the defendant that his license would be suspended for one year if he refused the test, but under the provisions of Tennessee Code Annotated section 55-10-406(a) (2000) in effect at the time, the penalty was two years. The trial court held that the defendant was not sufficiently advised of the consequences and barred the State from seeking any suspension of the defendant's driver's license. The trial court also barred the State from arguing to the jury on the DUI charge that the defendant had refused the breath test. The Court of Criminal Appeals reversed, holding that the defendant was adequately advised of the consequences for refusing the test. After reviewing the record and applicable authority, we affirm in part and reverse in part the decision of the Court of Criminal Appeals on the separate grounds set forth herein. We hold that although the State may request suspension of Collins' license, the State may not seek a suspension of longer than one year because Collins was incorrectly advised of the consequences of refusing to take the test.
Background
This case comes to us on a pre-trial interlocutory appeal. The facts contained in the limited record are as follows.
On September 28, 2000, defendant Patrick Collins ("Collins") was stopped for speeding in Davidson County, Tennessee. After subjecting Collins to a number of field sobriety tests, the arresting officer determined that Collins was intoxicated. The officer then read Collins a standard script, issued by the Metropolitan Nashville Police Department ("Metro"), advising Collins:
There are reasonable grounds to believe you were driving or in physical control of a motor vehicle while under the influence of alcohol. I hereby request you to submit to a breath alcohol test. You will be informed of the results and then have the right to a blood test at your own expense. You have the right to refuse this test. However, according to Tennessee state law, if you do, you will be charged with violating the implied consent law and, if the court finds you in violation of this law, then the court will suspend your license for one year. Do you understand? Will you take the breath test?
Collins did not take the breath test. He was subsequently indicted for driving under the influence of an intoxicant ("DUI") *724 in violation of Tennessee Code Annotated section 55-10-401 (2000). The State also sought to suspend Collins' license as a penalty for his failure to take the breath test pursuant to Tennessee Code Annotated section 55-10-406 (2000).
Tennessee Code Annotated section 55-10-406(a)(1) provides that anyone driving a motor vehicle in this state "is deemed to have given consent to a test for the purpose of determining the alcoholic or drug content of that person's blood." This "implied consent" statute provides that refusal to submit to such a test subjects the driver to revocation of his license. See State v. Turner, 913 S.W.2d 158, 159-60 (Tenn.1995). The statute further provides that "if the driver was not advised of the consequences of such refusal," a court may not suspend his license. Tenn.Code. Ann. § 55-10-406(a)(2).
Prior to 2000, the statutory revocation period was one year. As amended effective July 1, 2000, section 55-10-406(a)(3) provides for revocation periods of between one and five years. The revocation period is two years if the driver was previously convicted of, inter alia, driving under the influence. Tenn.Code Ann. § 55-10-406(a)(3)(B) (2000). Collins had a prior conviction for driving under the influence and so, under section 55-10-406(a)(3)(B), he was subject to a two-year suspension for refusing to take the alcohol test. However, although Collins was arrested nearly three months after the July 2000 amendments took effect, Metro's standard script had not been revised to conform to the amendments. The arresting officer therefore stated to Collins that he was only subject to a one-year suspension for refusing to take the breath test.
Because the arresting officer had read him an incorrect advisory statement, Collins moved prior to trial to strike the implied consent charge and bar the State from attempting to revoke his license. Collins also sought to bar the State from arguing to the jury on the DUI charge that he refused to submit to a breath test knowing that he would lose his driver's license by refusal.
The trial court ruled that the State did not sufficiently inform Collins of the consequences of his refusal to take the breath test because Collins was informed that the consequence was a one-year, rather than a two-year, suspension. The trial court therefore ruled that the State could not seek penalties under the implied consent law. Reasoning that the statement of rights read by the officer was "wholly deficient," the trial court also held that the State could not argue to the jury that Collins knew he would lose his license if he refused the test, because Collins was not in fact going to lose his license.
The trial court granted the State's request to continue the trial in order to permit the State to pursue an interlocutory appeal as to whether it could seek suspension of Collins' license and as to whether it could argue to the jury that Collins refused the breath test knowing that he would lose his license. The Court of Criminal Appeals granted the interlocutory appeal and reversed the trial court, holding that Collins was adequately informed of the consequences of refusing the breath test. The court reasoned that it would be cumbersome and confusing to attempt to inform a suspect of all possible consequences of refusal under the revised statute. Because Collins was informed that his license would be suspended, the Court of Criminal Appeals reasoned that "[a]ny additional explanation of the consequences of refusal would be gratuitous on the officer's part." The court also held that the State would not be precluded from arguing to the jury that Collins knew his *725 license would be suspended if he refused the breath test.
We granted review.
Analysis
This case requires us to interpret Tennessee Code Annotated section 55-10-406. We undertake statutory interpretation de novo, with no presumption of correctness given to the courts below. State v. Wilson, 132 S.W.3d 340, 341 (Tenn.2004).
The requirement that officers advise drivers of the consequences of refusing an alcohol or drug test is set forth in section 55-10-406(a)(2). As of September 28, 2000, the date of Collins' arrest, that section provided in pertinent part:
Any law enforcement officer who requests that the driver of a motor vehicle submit to a test pursuant to this section for the purpose of determining the alcoholic or drug content of the driver's blood shall, prior to conducting such test, advise the driver that refusal to submit to such test will result in the suspension of the driver's operator's license by the court and, if such driver is driving on a revoked, suspended or cancelled license, when the person's privilege to do so is cancelled, suspended or revoked because of a conviction for vehicular assault under § 39-13-106, vehicular homicide under § 39-13-213, aggravated vehicular homicide under § 39-13-218, or driving under the influence of an intoxicant under § 55-10-401, that the refusal to submit to such test will, in addition, result in a fine and mandatory jail or workhouse sentence. The court having jurisdiction of the offense for which such driver was placed under arrest shall not have the authority to suspend the license of a driver who refused to submit to the test if the driver was not advised of the consequences of such refusal.
Tenn.Code Ann. § 55-10-406(a)(2) (emphases added). We note that Collins was advised only that refusal to take the breath test would subject him to a suspension of his license, not that there was a possibility of a fine or jail sentence. Since there is no evidence that Collins was driving on a revoked, suspended or cancelled license at the time of his arrest, however, the "consequences" of his refusal to take the test were limited to suspension of his driver's license. We express no opinion as to whether the officer's statement would have been deficient had Collins been subject to a fine or jail sentence.
The consequences of refusing to take an alcohol or drug test are set forth in section 55-10-406(a)(3) which, as of September 2000, stated in pertinent part:
If such person having been placed under arrest and thereafter having been requested by a law enforcement officer to submit to such test and advised of the consequences for refusing to do so, refuses to submit, the test shall not be given, and such person shall be charged with violating this subsection (a).... If the court finds that the driver violated the provisions of this subsection (a), except as otherwise provided in this subdivision (a)(3), the driver shall not be considered as having committed a criminal offense; however, the court shall revoke the license of such driver for a period of:
(A) One (1) year, if the person does not have a prior conviction for a violation of § 55-10-401[DUI] ... in this state or a similar offense in any other jurisdiction.
(B) Two (2) years, if the person does have a prior conviction for an offense set out in subdivision (A).
Tenn.Code Ann. § 55-10-406(a)(3).
"The most basic principle of statutory construction is to ascertain and give *726 effect to the legislative intent without unduly restricting or expanding a statute's coverage beyond its intended scope." Owens v. State, 908 S.W.2d 923, 926 (Tenn.1995) (citing State v. Sliger, 846 S.W.2d 262, 263 (Tenn.1993)). Where the statute's language is clear and unambiguous, we derive the legislative intent from its plain and ordinary meaning. Wilson, 132 S.W.3d at 341. If, however, "the parties derive different interpretations from the statutory language, an ambiguity exists, and we must look to the entire statutory scheme in seeking to ascertain legislative intent." Owens, 908 S.W.2d at 926 (citing Lyons v. Rasar, 872 S.W.2d 895, 897 (Tenn.1994)). "In ascertaining the intent of the legislature, this Court may look to `the language of the statute, its subject matter, the object and reach of the statute, the wrong or evil which it seeks to remedy or prevent, and the purpose sought to be accomplished in its enactment.'" State v. Gilliland, 22 S.W.3d 266, 275 (Tenn.2000) (quoting State v. Lewis, 958 S.W.2d 736, 739 (Tenn.1997)). "Statutes `in pari materia' those relating to the same subject or having a common purpose are to be construed together." Owens, 908 S.W.2d at 926 (citing Lyons, 872 S.W.2d at 897). With these principles in mind, we turn to the parties' arguments.
Collins argues that failure to apprise him of the two-year suspension provision constitutes a failure to inform him of the consequences of his failure to take the breath test. Therefore, he argues, his failure to take the test should not subject him to suspension of his license, and the State should not be permitted to argue to the jury on the DUI charge that Collins knew he would lose his license if he refused the breath test. The State argues that the Court of Criminal Appeals correctly held that the length of the suspension is immaterial; what matters is that Collins was informed that refusal to take the test would subject him to having his license suspended. Collins further argues that all evidence of his "alleged refusal" to take the breath test should be suppressed at his DUI trial. We decline to address this broad argument. The interlocutory appeal granted by the Court of Criminal Appeals was limited to review of the trial court's determination that the State could not seek suspension of Collins' license and that the State could not argue to the jury on the DUI charge that Collins "knew" he would lose his license if he refused the breath test. Additionally, Collins did not raise to the Court of Criminal Appeals the argument that all evidence relating to the breath test should be suppressed. We therefore confine our review to the questions of whether the State may seek suspension of his license and whether the State may argue to the jury on the DUI charge that Collins knew he would lose his license.
In our view, the purpose and structure of section 55-10-406 indicate that the legislature intended only that a driver be advised that his license will be suspended if he refuses an alcohol or drug test, not that a driver be advised of the specific length of the suspension. As we have previously observed, we must construe section 55-10-406 together with all of the driving under the influence statutes. Turner, 913 S.W.2d at 160. The purpose of these statutes is "to remove from the highway, prosecute, and punish those who engage in the dangerous menace of driving under the influence." Id.; see also State v. Lawrence, 849 S.W.2d 761, 765 (Tenn.1993) (driving under the influence statutes are "`intended to enable the drunken driver to be apprehended before he strikes'") (quoting Hughes v. State, 535 P.2d 1023, 1024 (Okla.Crim.App.1975)).
*727 Thus, the purpose of the implied consent statute is not to allow motorists suspected of driving under the influence to make an "informed choice" about whether to take an alcohol or drug test; rather, it is to advance the State's objective of keeping intoxicated drivers off the roadways. In furtherance of this objective, "[t]he legislature intended to enable the State to establish the offense by scientific evidence. For the privilege of operating a vehicle on our highways, the driver consents to a test to determine whether that privilege is, as a law enforcement officer suspects, being abused." Turner, 913 S.W.2d at 160. We note also that section 55-10-406(a)(3) specifically provides that revocation of a driver's license under the circumstances applicable to Collins does not constitute a criminal offense, as it confers only an administrative penalty. Turner, 913 S.W.2d at 163. Therefore, the rule that we strictly construe the statute against the State does not apply. Id.
Viewing the statute in this light, we conclude that section 55-10-406(a)(2) required only that Collins be informed that his license would be suspended if he refused to take the breath test. Section 55-10-406(a)(2) does not mandate that the specific length of the suspension, which varies according to the driver's prior history, be spelled out for the driver. Rather, section 55-10-406(a)(2) sets general parameters, requiring that a driver be informed that refusal to be tested will result in a license suspension and could result in a mandatory fine and mandatory jail or workhouse sentence. As the Court of Criminal Appeals noted, the 2000 amendments did not alter the language requiring that the driver be advised that refusal to take the test will result in suspension. The amendments also did not change the provision barring suspension of the license when the consequences of refusal are not stated.
The particular consequences of refusal are spelled out separately in section 55-10-406(a)(3). That section specifies the length of the suspension as well as the maximum fine and the minimum jail or workhouse sentence. Had the legislature intended these consequences to be spelled out to each driver who is requested to take an alcohol or drug test, the legislature would have included the specific consequences in section (a)(2) of the statute. The legislature did state with specificity in section (a)(2) the prior convictions which subject a driver to a mandatory fine and jail or workhouse sentence; this bolsters our conclusion that the legislature did not intend to require arresting officers to enumerate the entire range of consequences of refusal to take an alcohol or drug test in the advisory stated to drivers. Because the specific consequences are spelled out in a separate section, we conclude that a general statement of consequences is sufficient.
Although we conclude that the advisory statement made to a driver need not be specific, we disagree with the State and with the Court of Criminal Appeals that it need not be accurate. Law enforcement officers may not "mis inform motorists, some of whom may understand the inaccurate warning and rely upon it." People v. Johnson, 197 Ill. 2d 478, 259 Ill. Dec. 397, 758 N.E.2d 805, 811 (2001) (emphasis added) (holding that rescission of summary suspension of driver's license was warranted if an inaccurate warning was given and "that misinformation directly affects the motorist's potential length of suspension").
Had the arresting officer simply advised Collins that his license would be "suspended," we would have little difficulty in concluding that the statute's requirement that Collins be advised of the consequences of *728 refusing the breath test was met. Here, however, the arresting officer incorrectly advised Collins, pursuant to Metro's standard form, that refusal to take the breath test would subject him only to a one-year suspension.
There is no evidence in the record that the arresting officer intended to deceive Collins or acted with bad faith. If the record showed that the officer had intended to mislead Collins, we would agree with Collins that the State should be precluded from seeking any suspension of his license whatsoever. See State v. Stade, 683 A.2d 164, 166 (Me.1996) ("[A]lthough the State's interest in preventing drunk drivers from operating on our highways is great, the State has no legitimate interest in allowing its law enforcement officers ... to affirmatively mislead citizens about the consequences of taking or failing to take a blood-alcohol test."). In this case, however, the basic requirement of section 55-10-406(a)(2) was met: Collins was informed that his license would be suspended if he refused to take the breath test. That the arresting officer then went beyond the minimum requirements of the statute and incorrectly advised Collins that his license would be suspended for one year rather than two does not void the advisory statement because the officer's error was made without an intent to deceive Collins. We therefore hold that the State may seek to suspend Collins' driver's license, but that the State may not seek a suspension of greater than one year.[2] Indeed, the State recognized the unfairness of subjecting Collins to a two-year suspension and represented to the trial court that it would seek only a one-year suspension.
Our holding that the error in the advisory limits the State to seeking a one-year suspension does not mean, as Collins argues, that the State should be barred from arguing to the jury that Collins knew he would lose his license if he refused the breath test. The provisions for advising a driver of the consequences of refusing a drug or alcohol test only apply to the State's ability to seek the civil penalty of license suspension. See Tenn.Code Ann. § 55-10-406(a)(4). The issue of whether Collins' refusal to take the test is admissible in his criminal DUI trial is entirely separate. We see no reason to bar the State from presenting evidence and arguing to the jury that the arresting officer informed Collins that his license would be suspended if he refused the breath test.
Conclusion
Having considered the record and applicable authority, we hold that the implied consent law does not require an arresting officer to enumerate the entire range of consequences of refusal to take an alcohol or drug test. However, because Collins was erroneously advised that he would be subject only to a one-year suspension, the State may not seek to suspend Collins' driver's license for longer than one year. We therefore reverse the Court of Criminal Appeals in part. We affirm the Court of Criminal Appeals in part as to the admissibility of Collins' refusal to take the test on the DUI charge, and we hold that the State may argue to the jury that Collins was told that he would lose his license if he refused the breath test. Costs are taxed equally to the State and to Patrick David Collins and his surety, for which execution may issue if necessary.
NOTES
[1] Oral argument was heard in this case on April 15, 2005, in Pulaski, Giles County, Tennessee, as part of this Court's S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.
[2] Our holding is limited to application of the implied consent law as codified in Tennessee Code Annotated section 55-10-406. | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379933/ | 187 Ga. App. 46 (1988)
369 S.E.2d 278
HESTER
v.
THE STATE.
76537.
Court of Appeals of Georgia.
Decided April 19, 1988.
Rehearing Denied May 3, 1988.
*49 Neil E. Wester III, for appellant.
Jack O. Partain III, District Attorney, Steven M. Harrison, Assistant District Attorney, for appellee.
DEEN, Presiding Judge.
Eddie Hester was convicted of two counts of violating the Georgia Controlled Substances Act (possession of cocaine and diazepam), and of being a habitual offender. He was found not guilty of possession of more than an ounce of marijuana.
The evidence showed that appellant brought his Datsun 280Z automobile to an upholstery shop to have the carpet replaced. While there, he entered into a conversation with Knowles, the shop's owner, concerning change left on the floor of the car, and Hester was informed that everything which was in the car when it was brought in would be left in it although the inside of the vehicle would be cleaned. *47 Hester remarked, "Well, how about if we've got some illegal stuff there?" Knowles assured him it also would not be removed. After work was begun on the Datsun, Knowles inquired of the workman if he had seen any "illegal stuff." The employee stated that he had, and showed Knowles where it was located in a paper bag in a compartment in the rear of the car. After thinking it over, Knowles called the police. Police officers investigated, determined the material to be marijuana, replaced the bag, and had an arrest warrant issued for Hester. After Hester picked up his automobile, he was arrested. The marijuana in the paper bag was seized and yellow tablets, later determined to be diazepam, were found in his pocket during a search of his person. A packet containing cocaine was found on his person when he was booked at the correctional center.
1. Appellant asserts as error the trial court's denial of his motion to suppress. The evidence shows that the discovery of the paper bag containing marijuana was made by a private citizen. The police responded to a report of discovery of contraband and verified the private citizen's observation and obtained an arrest warrant.
There is no Fourth Amendment violation where an individual's privacy is initially invoked by a private act. United States v. Jacobsen, 466 U.S. 109 (104 SC 1652, 80 LE2d 85) (1984). "The additional invasions of respondent's privacy by the Government agent must be tested by the degree to which they exceeded the scope of the private search," Id. 466 U.S. 115. As evidence shows that the officer's search did not go beyond that of private citizen, we find no error. The discovery of the illegal material by a private citizen and the verification of this evidence by the officer which led ultimately to the issuance of the arrest warrant was reasonable and did not violate the Fourth Amendment. State v. Johnston, 171 Ga. App. 224 (319 SE2d 83) (1984); Marks v. State, 174 Ga. App. 711, 714 et seq. (330 SE2d 900) (1985).
"`Once a [person] has been placed under custodial arrest, police may search his person, incident to that arrest, for weapons or contraband.' [Cits.]" Anderson v. State, 177 Ga. App. 130, 131 (338 SE2d 716) (1985). The seizure of the yellow tablets and packet of white powder from appellant's person following his arrest was not illegal. The trial court did not err in denying the motion to suppress.
2. The trial testimony established the chain of custody of the contraband with a reasonable certainty.
Where evidence of a fungible nature is introduced against a defendant, the State must show with reasonable certainty that the evidence is the same as that seized and that there has not been any tampering or substitution. The State, however, need not negate all possibility of tampering and "`need only establish reasonable assurance of the identity' of the confiscated evidence. [Cit.]" Kelly v. State, 182 Ga. App. 7, 9 (354 SE2d 647) (1987).
*48 The arresting officer identified the bag of marijuana and the yellow pills which he seized from the Datsun and appellant's person. He identified the white powder as the substance that he received from the booking officer. The booking officer verified his testimony. The arresting officer testified that the items were placed in two bags and stapled together in his presence. Evidence cards were completed in his presence, stating from whom the property was obtained, where it was obtained, and the time and the date. It was signed by the evidence intake technician and stored in the evidence locker until a technician took it to the State Crime Lab for analysis. The chemist and evidence technician both testified that the bags were stapled and the paper bag had an evidence tag attached. The fact that the chemist found five yellow tablets and the arresting officer testified that he recovered four does not give rise to an implication of tampering absent evidence of such. The officer apparently made a mistake in remembering the number of tablets he recovered. The chain of custody was proven with reasonable certainty.
3. The trial court did not err in finding that a statement made by appellant after he was informed of his Miranda rights and that the waiver form he executed waiving these rights was voluntary. Appellant stated that the white powder was cocaine, that he was addicted to cocaine, and that the yellow tablets were Valium. He claimed that he did not know anything about the marijuana. Only after he was asked to reveal his source of supply did he request to speak to an attorney. Contrary to appellant's assertion, we know of no necessity for recording all statements.
Absent a showing that the trial court's finding that the statement was voluntary is clearly erroneous or a clear abuse of discretion, this court will not reverse. Jackson v. State, 180 Ga. App. 774 (350 SE2d 484) (1986).
4. It is not error for the prosecutor to "argue to the jury the necessity for enforcement of the law and may impress on the jury, with considerable latitude in imagery and illustration, its responsibility in this regard." Terhune v. State, 117 Ga. App. 59, 60 (159 SE2d 291) (1967).
There was testimony at trial that appellant was "hooked" on cocaine and had it in his possession at the time of his arrest. A statement by the prosecutor that drugs are "killing our society" and pointing out that appellant committed a serious offense was merely pointing out to the jury its interest in law enforcement. This statement did not in any way prejudice appellant's right to a fair trial.
Judgment affirmed. Carley and Sognier, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379943/ | 186 Ga. App. 886 (1988)
369 S.E.2d 36
SIMMONS
v.
THE STATE.
75473.
Court of Appeals of Georgia.
Decided March 16, 1988.
Rehearing Denied April 21, 1988.
Linda B. Borsky, for appellant.
Thomas J. Charron, District Attorney, Nancy I. Jordan, Assistant District Attorney, for appellee.
BEASLEY, Judge.
Defendant, caught in the home he had broken into by passing friends of the owners, appeals his burglary conviction. OCGA § 16-7-1 (a).
1. Defendant was appointed counsel for his trial and separate counsel for his appeal. Counsel has enumerated errors and has briefed those. In addition, she appended defendant's pro se arguments concerning several issues, some of which are covered by counsel and some of which are not enumerated or argued by counsel. Defendant is apparently under the mistaken impression that he is entitled to have counsel and also to represent himself. He is entitled to either, not both. Ga. Const. 1983, Art. I, Sec. I, Par. XII & Par. XIV; Cargill v. State, 255 Ga. 616, 622 (3) (340 SE2d 891) (1986); Jones v. State, 171 Ga. App. 184, 185 (2) (319 SE2d 18) (1984). Therefore, we will consider the enumerations and arguments presented by counsel, whose representation of appellant has not been rejected.
2. After a jury panel had been called into the courtroom for voir dire and striking, defendant's counsel orally moved to empanel another array on the ground that the panel was all white and defendant was black. The only authority cited was Batson v. Kentucky, 476 U.S. 79 (106 SC 1712, 90 LE2d 69) (1986). Defendant was given an opportunity to pursue the matter after he presented his Batson argument, but stated that he had nothing further.
Pretermitting whether defendant properly challenged the array, having filed no written motion as required by OCGA § 15-12-162, the issue presented has been decided adversely to defendant. In Campbell v. State, 185 Ga. App. 3 (363 SE2d 293) (1988), a timely challenge to the array was made, and the error similarly urged was that the trial court erred in refusing to inquire into the selection procedures of the all-white jury venire.
Campbell did not offer any evidence to support his challenge, instead relying upon "the mere observation that there were no blacks included among the forty-two potential jurors." Campbell held that such a challenge is legally insufficient and that defendant's reliance on Batson for it is misplaced. Batson targets the State's discriminatory use of peremptory challenges, not the racial composition of the array.
3. Defendant challenges the admission of evidence of another incident on the basis that there was no criminal conviction. Although *887 not in the record, it appears there was a pretrial hearing on the subject. The objection then and at trial was that it was insufficient evidence of another burglary.
The evidence of the incident on trial was that defendant was seen at approximately 2:30 p. m. on April 15 going into the Roberts residence by two friends of the Robertses' son. They investigated and found the back door broken into. They encountered defendant rummaging through their friend's bedroom. Defendant offered to get them high and to give them $50 each and a handful of gold jewelry which he displayed, if they would not turn him in to the police. He then attempted to run, dropping some of the jewelry and they apprehended him. The police arrived to take defendant into custody and, upon searching defendant, found additional jewelry.
Part of it belonged to Ms. Griffin, who lived within two blocks of the Robertses. She had been home that day for lunch from 1:00 to 2:00 p. m. and had left her house locked. Upon returning at 4:30, she found it broken into and her jewelry missing.
The State tendered this evidence as part of the res gestae, not as a "like act" introduced to show the purposes enumerated in State v. Johnson, 246 Ga. 654, 655 (1) (272 SE2d 321) (1980). "[W]here ... evidence of other transactions is a part of the res gestae or tends to show motive, or to show a course of conduct pointing toward and leading to the crime or to the concealment of the crime or the identity of the perpetrator thereof, such evidence is admissible as an exception to [the general rule excluding such evidence]." Spurlin v. State, 228 Ga. 2, 5 (4) (183 SE2d 765) (1971); Graham v. State, 171 Ga. App. 242, 254 (14) (319 SE2d 484) (1984).
Defendant used the fruits of an earlier incident in an effort to deter his captors from reporting the burglary on trial. Such evidence is within the rule of Spurlin. There need not be a charge or conviction relating to it for a criminal act to be introduced. High v. State, 153 Ga. App. 729, 731 (2) (266 SE2d 364) (1980). Nor need it be proven beyond a reasonable doubt. Kilgore v. State, 251 Ga. 291, 297 (3) (c) (305 SE2d 82) (1983). Recent possession of stolen goods raises an inference that the possessor stole them and is sufficient for admission under the present circumstances. Byrd v. Hopper, 234 Ga. 248, 250 (215 SE2d 251) (1975); Napier v. State, 184 Ga. App. 770, 773 (4) (362 SE2d 501) (1987).
4. Finally, defendant complains of the introduction of his mug shot, taken in connection with a 1978 Indiana charge.
Defendant here pleaded not guilty by reason of insanity, based on his cocaine addiction. His wife testified that from February to April 1986 he had become severely addicted to cocaine and had become disheveled in appearance. Prior to that time, she said, he had been neat in appearance.
*888 In rebuttal, the State offered the 1978 photo to show what it contended was the unkempt appearance of defendant in 1978, thus negating this recent addiction/insanity defense. All markings indicating that the photo was a mug shot were removed and no reference was made to it as a mug shot in the jury's presence. The case relied on by defendant, Stanley v. State, 250 Ga. 3 (295 SE2d 315) (1982) involved not only use of and reference to "mug shots" in the jury's presence, but also the definition of them as "pictures of individuals that we have had previous cases on." This was held to have placed defendant's character in issue by identifying him as having a prior record of criminal offenses.
Admission of a mug shot, even with the identifying numbers left on it, does not indicate that an accused has been convicted of any previous crime and is not error. Dorsey v. State, 183 Ga. App. 409 (1) (359 SE2d 195) (1987).
Judgment affirmed. McMurray, P. J., and Sognier, J., concur in the judgment only. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1379956/ | 166 S.W.3d 394 (2005)
INOVA DIAGNOSTICS, INC., Appellant,
v.
Carole Keeton STRAYHORN, Comptroller of Public Accounts of the State of Texas and Greg Abbott, Attorney General of the State of Texas, Appellees.
No. 03-04-00503-CV.
Court of Appeals of Texas, Austin.
May 26, 2005.
*395 Gilbert J. Bernal Jr., David J. Sewell, Stahl, Bernal & Davies, LLP, Austin, for Appellant.
Christine Monzingo, Asst. Atty. Gen., Austin, for Appellees.
Before Chief Justice LAW, Justices B.A. SMITH and PEMBERTON.
OPINION
BEA ANN SMITH, Justice.
When INOVA, a California corporation, hired a salesperson in this state, the Texas Comptroller informed the company that it was required to pay the state franchise tax. INOVA paid the taxes under protest and filed suit in the district court for a refund. The trial court ruled in favor of the Comptroller.
INOVA argues that Public Law 86-272 (15 U.S.C. §§ 381-84 (West 1997)) exempts INOVA from paying any portion of the franchise tax measured by earned surplus and that the portion of the franchise tax imposed on capital cannot be separated from the portion imposed on earned surplus. Even if the franchise tax contains two distinct components, INOVA insists that net taxable capital is measured in part by surplus earnings and it is thus exempt. In the alternative, INOVA contends it lacks a substantial nexus with this state to be subject to the franchise tax under the Commerce Clause. We reject all of INOVA's challenges and affirm the district court's judgment denying the refund.
BACKGROUND
INOVA is a California corporation based in San Diego. It develops and manufactures *396 products used in medical testing. INOVA has only one employee in Texas, who was hired in 1996. That employee is a salesperson who works an average of seven to ten days per month in Texas. His activities in Texas are limited to visiting existing and prospective customers, providing promotional materials, and demonstrating INOVA products. All orders are placed directly with INOVA in California and delivered via mail or common carrier.
In 1998, INOVA completed a business tax questionnaire at the Comptroller's request. Based on the questionnaire, the Comptroller informed INOVA that it was required to pay the Texas franchise tax for the years following INOVA's employment of a salesperson in Texas. INOVA initially refused to pay the tax but ultimately paid the taxes under protest when the Comptroller notified INOVA that it had forfeited its corporate privileges in Texas. INOVA submitted claims for refunds of franchise taxes paid for the years 1999 through 2003. The Comptroller denied these claims and INOVA filed suit in the district court. After a bench trial, the district court entered judgment in favor of the Comptroller. This appeal followed.
STATUTORY AND ADMINISTRATIVE PROVISIONS
Our resolution of INOVA's issues involves the interaction of the Texas franchise tax, Public Law 86-272, and the Comptroller's rules for assessing the franchise tax. Accordingly, it is useful to briefly review the relevant statutes and rules before discussing INOVA's issues.
The franchise tax
Texas imposes a tax on corporations for the privilege of doing business in the state. See Tex. Tax Code Ann. § 171.001(a) (West Supp.2004-05); Anderson-Clayton Bros. Funeral Home, Inc. v. Strayhorn, 149 S.W.3d 166, 169 (Tex.App.-Austin 2004, pet. filed); Rylander v. Fisher Controls Int'l, Inc., 45 S.W.3d 291, 293 (Tex.App.-Austin 2001, no pet.). The tax is imposed annually on "each corporation that does business in the state or is chartered in the state." Tex. Tax Code Ann. § 171.001(a). Before 1991, the franchise tax had been assessed solely on a corporation's taxable capital. See General Dynamics Corp. v. Sharp, 919 S.W.2d 861, 863-64 (Tex.App.-Austin 1996, writ denied) (discussing history of franchise tax). The tax code was amended in 1991 to add taxation of a corporation's taxable earned surplus or its taxable capital, whichever is higher under the statutory formula. See Act of Aug. 12, 1991, 72d Leg., 1st C.S., ch. 5, § 8.02, 1991 Tex. Gen. Laws 134, 152.[1] This amendment corrected an inequity of the prior law in which capital-intensive industries bore the brunt of the tax, while less capital-intensive service industries did not pay as much even when they generated large profits. See Anderson-Clayton Bros. Funeral Home, 149 S.W.3d at 169; General Dynamics Corp., 919 S.W.2d at 863. The tax on capital is set at the lower rate of .25 percent of a corporation's net capital, while franchise tax on earnings is set at 4.5 percent of net earned surplus.
Public Law 86-272
Congress enacted Public Law 86-272 in 1959 in response to a United States Supreme *397 Court decision that indicated that the federal constitution does not prohibit individual states from imposing an income tax on out-of-state corporations, even when their only business activity in the state is solicitation of purchases. See Wisconsin Dep't of Revenue v. William Wrigley, Jr. Co., 505 U.S. 214, 220-21, 112 S. Ct. 2447, 120 L. Ed. 2d 174 (1992) (discussing opinion in Northwestern States Portland Cement Co. v. Minnesota, 358 U.S. 450, 452, 79 S. Ct. 357, 3 L. Ed. 2d 421 (1959)). Less than a year after the Northwestern States Portland Cement opinion, Public Law 86-272 was passed to create minimum standards for business activity required within a state before that state may impose state income tax on an out-of-state corporation. See William Wrigley, Jr. Co., 505 U.S. at 223, 112 S. Ct. 2447. Specifically, the statute prohibits a state from imposing a net income tax if the foreign taxpayer's only business activity in the state is the solicitation of orders. See 15 U.S.C. § 381(a). The statute defines net income tax as "any tax imposed on, or measured by, net income." Id. § 383.
Administrative rules
The Comptroller agrees that it may not impose the net earned surplus component of the franchise tax on an out-of-state corporation whose only activity in the state is solicitation of orders. See 34 Tex. Admin. Code §§ 3.546, 3.554 (2005). However, for more than ten years, the Comptroller has held that Public Law 86-272 does not exempt an out-of-state corporation from the payment of franchise tax based on its net taxable capital. See id. § 3.546 (adopted 1992); id. § 3.554 (adopted 1994). Section 3.546 of the rules explains that "a corporation may be subject to the taxable capital component [of the franchise tax], but not subject to the earned surplus component, because of Public Law 86-272." 34 Tex. Admin. Code § 3.546(b). Section 3.554 provides that:
If the only business activity within this state is the solicitation of orders for sales of tangible personal property . . . then the corporation is not subject to the earned surplus component of the franchise tax, even if the corporation has obtained a certificate of authority. Only the sale of tangible personal property is afforded immunity under Public Law 86-272; therefore, the leasing, renting, licensing, or other disposition of tangible personal property, intangibles, or any other type of property is not immune from taxation by reason of Public Law 86-272. This subsection does not apply to a corporation chartered in Texas.
Id. § 3.554(b). Section 3.554 also contains detailed provisions defining solicitation and discussing what business activities will subject a corporation to the earned surplus component of the franchise tax. See id. § 3.554(c), (d), (e), and (f).
DISCUSSION
The parties do not dispute the underlying facts of the case; they agree that INOVA only engages in the solicitation of orders in Texas for the purposes of Public Law 86-272. The resolution of this case turns on questions of law that we review de novo. See Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex.2002). INOVA raises two issues contending that Public Law 86-272 prevents the Comptroller from imposing the taxable capital component of the state franchise tax. First, it contends that the franchise tax is a single integrated tax and may not be separated into components for the purpose of avoiding the application of Public Law 86-272. Second, INOVA contends that even if the taxable capital component stands alone, INOVA is exempted from that portion of the franchise tax as well because the capital component is imposed on, or measured by, net income. Finally, INOVA contends *398 that it lacks a substantial nexus with Texas under the Commerce Clause to permit state taxation.
May the Comptroller impose franchise tax on net capital alone?
Although the practical effect of the present franchise tax is to assess the greater of a 4.5 percent tax on net taxable earned surplus or a .25 percent tax on net taxable capital, the legislature chose to express this tax in a more complicated formula. See Tex. Tax Code Ann. § 171.002(b). The tax is calculated by adding the tax on net taxable capital and the difference between the tax on net taxable earned surplus and the tax on net taxable capital. See id.[2] INOVA contends in its first issue that the Comptroller may not ignore that formula and assess only the capital taxable component of the tax in order to avoid the application of Public Law 86-272.
This contention requires us to construe section 171.002 of the tax code to determine whether the legislature intended for the franchise tax to be imposed on net taxable capital when a corporation is exempt from paying tax on earned surplus under Public Law 86-272.[3] Our primary goal in statutory construction is to ascertain and effectuate the legislature's intent. Albertson's, Inc. v. Sinclair, 984 S.W.2d 958, 960 (Tex.1999). When construing a statute, we ascertain the intent of the legislature from the plain meaning of the actual language used. Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex.2002). Every word, phrase, clause, and sentence of a statute should be given effect. Strasburger Enters., Inc. v. TDGT Ltd. P'ship, 110 S.W.3d 566, 570 (Tex.App.-Austin 2003, no pet.). Additionally, the primary rule in statutory interpretation is that a court must give effect to legislative intent, considering the language of the statute, as well as its legislative history, the objective sought, and the consequences that would flow from alternative constructions. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 383 (Tex.2000) (op. on reh'g). Although we are not bound by the Comptroller's interpretation, see Rylander v. Fisher Controls Int'l, Inc., 45 S.W.3d 291, 302 (Tex.App.-Austin 2001, no pet.), "[t]he consistent construction by an administrative agency charged with effectuating the policy of an enactment carries very considerable weight." Sergeant Enters. v. Strayhorn, 112 S.W.3d 241, 250-51 (Tex.App.-Austin 2003, no pet.) (citing Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L.Rev. 527, 543 (1947)).
Viewing the Comptroller's rules in the context of the language of the statute, we find that the Comptroller has not ignored the statutory formula for calculating the franchise tax. When the legislature amended the franchise tax to add a tax based on income, it referred to that component as "taxable earned surplus." See Anderson-Clayton Bros. Funeral Home, 149 S.W.3d at 169. We find the legislature's use of the term taxable to be significant. Inherent in the term is the premise that the earned surplus is indeed taxable. *399 Here, the parties agree that Public Law 86-272 prohibits the imposition of a tax on INOVA's earned surplus. Accordingly, INOVA's earned surplus cannot be considered a taxable earned surplus under the statute.
The Comptroller's rule recognizes this fact by stating that a corporation may be subject to the taxable capital component, but not the taxable earned surplus component in light of Public Law 86-272. See 34 Tex. Admin. Code § 3.554. The rule acknowledges that an out-of-state corporation that only solicits orders in Texas has no taxable earned surplus. Thus, applying Public Law 86-272 to the formula in section 171.002 of the tax code, an out-of-state corporation's net taxable earned surplus will always be zero, and the tax on capital will always be greater.[4] When the statutory formula is applied to taxable earned surplus, the franchise tax will always be based on the foreign corporation's net taxable capital.
We agree that the franchise tax is one integrated tax. However, Public Law 86-272 exempts INOVA's earned surplus from taxation. Because INOVA has no taxable earned surplus, the calculation of its franchise tax is based solely on net taxable capital. Thus, the Comptroller's rule is not inconsistent with the statute. We uphold the Comptroller's rule and overrule INOVA's first issue.
Is the taxable capital component measured by net income?
INOVA contends in its second issue that the taxable capital component of the franchise tax is "imposed on, or measured by, net income," and, therefore, may not be imposed under Public Law 86-272. INOVA points to the method of computing taxable capital that includes a corporation's retained earnings as evidence that the tax is imposed on net income. INOVA also relies on case law discussing the Buck Act (4 U.S.C. § 106 (West 2005)) in which the franchise tax is considered an income tax. See General Dynamics Corp. v. Bullock, 547 S.W.2d 255 (Tex.1976).
INOVA first argues that net income is an integral part of the taxable capital component of the franchise tax. The taxable capital component of the franchise tax is the stated stock value of the corporation plus its surplus. Tex. Tax Code Ann. § 171.101(a)(1) (West 2002). Surplus is defined as the net assets of a corporation minus its stated capital. Id. § 171.109(a)(1) (West Supp.2004-05). INOVA points out that, under generally accepted accounting principles, the tax code's definition of surplus is also equal to a corporation's retained earnings. Retained earnings consist of a corporation's current net income plus its net income over time. See 34 Tex. Admin. Code Ann. § 3.547(c)(6) (retained earnings represent accumulated gains and losses of corporation to date). INOVA asserts that, because net income is included in the calculation of a corporation's taxable capital, the franchise tax is a "tax imposed on, or measured by net income" for the purposes of Public Law 86-272. However, other courts have rejected similar arguments.
In Gillette Co. v. Dept. of Treasury, the Michigan Court of Appeals considered whether Michigan's single business tax was a net income tax for the purposes of Public Law 86-272. See 198 Mich.App. 303, 306-07, 497 N.W.2d 595 (Mich.Ct.App.1993). The calculation of Michigan's single business tax begins with a corporation's federal taxable income, see Gillette, 198 Mich.App. at 309-310, 497 N.W.2d 595, which is then adjusted by a number of *400 factors to arrive at the tax base. This base is then apportioned, subjected to other adjustments, and multiplied by the appropriate rate to arrive at the tax. Id.
Applying Public Law 86-272, the court concluded that Michigan's single business tax, calculated in this manner, is not imposed on net income; rather it is imposed on the privilege of doing business. Id. at 308, 497 N.W.2d 595. Furthermore, the court held that the tax is not measured by net income because federal taxable income is only the starting point of the extensive adjustments required to compute the tax. Id. at 310-11, 497 N.W.2d 595.[5]
Similarly, a New Jersey court has held that the net worth component of New Jersey's business tax is not "imposed on, or measured by, net income" under Public Law 86-272. See Clairol, Inc. v. Kingsley, 109 N.J.Super. 22, 262 A.2d 213, 216-17 (App.Div.1970). The New Jersey tax on net worth is measured by stockholder's book equity value. See Roadway Express, Inc. v. Director, Division of Taxation, 50 N.J. 471, 236 A.2d 577, 580 (1967). One component of net worth or stockholder's book equity value is a corporation's retained earnings. See Black's Law Dictionary 1131 (7th ed.2001) (stockholder's equity is capital contributed plus retained earnings). By implication, the court rejected the argument that a tax that is based in part on retained earnings is a tax imposed on or measured by net income under Public Law 86-272.
The legislative history of Public Law 86-272 also supports the conclusion that the law does not exempt the taxable capital component of the Texas franchise tax. INOVA argues that the purpose of Public Law 86-272 was to respond to the "creation of sprawling diverse [state] revenue systems" and that a narrow interpretation of the law would frustrate that objective. See S.Rep. No. 86-658, at 4 (1959). A review of the House and Senate conference reports on the legislation confirms that Congress was concerned about the burden imposed on interstate commerce by the lack of uniformity in state taxation of businesses and the growing cost of compliance. See id.; H.R. Conf. Rep. No. 86-1103 (1959). But both reports also recognize the limited nature of Public Law 86-272 and express the need for further study of the problem. See S.Rep. No. 86-658, at 4; H.R. Conf. Rep. No. 86-1103. The language of Public Law 86-272 and the conference reports indicate that the legislation was intended only to govern the narrow category of state net income taxes.[6] In fact, the language regarding "sprawling diverse revenue systems" cited by INOVA is contained in the section of the Senate report discussing the need for a committee to study the broader tax problem at a later date and does not state the specific purpose of Public Law 86-272. See S.Rep. No. 86-658, at 4-5.
Next, INOVA relies on the Texas Supreme Court's discussion of another federal law, the Buck Act, to insist that the *401 capital component of the franchise tax is a net income tax under Public Law 86-272. The Buck Act is a federal statute that allows a state to levy and collect state income taxes on persons residing in a federal area within the state. See 4 U.S.C. § 106(a). It defines an income tax as "any tax levied on, with respect to, or measured by net income, gross income, or gross receipts." Id. § 110(c). In General Dynamics Corp. v. Bullock, the supreme court held that the Texas franchise tax is an income tax for the purposes of the Buck Act. See 547 S.W.2d 255, 259 (Tex.1976). The supreme court cited a Senate Finance Committee report explaining that Congress intended a broad definition for income tax under the Buck Act:
The Congressional intent is strongly stated in the bill's Senate Report where it is stated that "[t]his definition [of income tax] . . . must of necessity cover a broad field because of the great variations to be found between the different State laws. The intent of your committee in laying down such a broad definition was to include therein any State tax (whether known as a corporate-franchise tax, or business-privilege tax, or any other name) if it is levied on, with respect to, or measured by net income, gross income, or gross receipts."
General Dynamics, 547 S.W.2d at 257 (quoting Report of the Senate Finance Committee of May 16, 1940 at page 5; 76th Congress, 3rd Session; Report No. 1625, Calendar No. 1692, as stated in Humble Oil & Refining Co. v. Calvert, 478 S.W.2d 926, 929 (Tex.1972)).
Unlike the Buck Act, which broadened the states' authority to tax, Public Law 86-272 limits the states' power to tax. Where a federal law explicitly supercedes a state's powers, we construe the preemption provision more narrowly than an identical phrase in another context. Moore v. Brunswick Bowling & Billiards Corp., 889 S.W.2d 246, 249 (Tex.1994). When Congress enacted Public Law 86-272, the Buck Act had been on the books for nineteen years. Had Congress intended Public Law 86-272 to be as broad as the Buck Act, it would have used similar language. Instead, Congress omitted any reference to gross income or gross receipts and only extended an exemption to net income taxes.[7] In light of the differences in language, history, and purpose of the two statutes, we cannot conclude that Congress intended Public Law 86-272 to cover as broad an array of state taxes as the Buck Act.
Thus, we read Public Law 86-272 to do exactly what it says. It exempts certain businesses from state taxes imposed on net income or measured by net income. Extending the exemption in Public Law 86-272 to taxes that only use net income as a factor in calculating another tax would be inconsistent with the stated intent of the law, the longstanding interpretation by the Comptroller, as well as the decisions of all of the courts that have considered this issue. Because we interpret the definition of net income in Public Law 86-272 narrowly, we hold that the capital component of the franchise tax is not a net income tax under Public Law 86-272 and therefore INOVA is not exempt from paying franchise tax on its net taxable capital.
*402 Commerce Clause
In its final issue, INOVA contends that the corporation is not subject to the state franchise tax because it lacks a substantial nexus with Texas. Those engaged in interstate commerce may be required to pay their fair share of state taxes consistent with the Commerce Clause so long as the tax (1) is applied to an activity with a substantial nexus with the taxing state, (2) is fairly apportioned, (3) does not discriminate against interstate commerce, and (4) is fairly related to the services provided by the state. Quill Corp. v. North Dakota, 504 U.S. 298, 314, 112 S. Ct. 1904, 119 L. Ed. 2d 91 (1993); Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 279, 97 S. Ct. 1076, 51 L. Ed. 2d 326 (1977). The Supreme Court has established and followed a bright-line rule in determining whether a taxing state has a sufficient nexus with the taxpayer to allow taxation. This bright-line rule states that physical presence in a state establishes a sufficient nexus to allow taxation under the Commerce Clause. See Quill, 504 U.S. at 314, 112 S. Ct. 1904; National Bellas Hess, Inc. v. Dept. of Revenue of Ill., 386 U.S. 753, 759-60, 87 S. Ct. 1389, 18 L. Ed. 2d 505 (1967); Rylander v. Bandag Licensing Corp., 18 S.W.3d 296, 299 (Tex.App.-Austin 2000, pet. denied). This line draws a clear distinction between those companies that merely communicate with residents of the taxing state by way of mail or common carrier, as part of a general interstate business, and those who maintain retail outlets, solicitors, or property within the state. See Quill, 504 U.S. at 307, 112 S. Ct. 1904; Bellas Hess, 386 U.S. at 758, 87 S. Ct. 1389. While the tax in question in Quill was a use tax, this Court has applied this same bright-line test when determining whether the franchise tax is consistent with the Commerce Clause. Bandag Licensing, 18 S.W.3d at 299.
Although it is undisputed that INOVA employs a Texas resident who spends seven to ten days per month soliciting orders in the state, INOVA contends that this presence in the state is de minimis. INOVA points to several cases in which no nexus was found after a company sent employees into a state.[8] However, in each of these cases, the company's presence was much more limited than INOVA's. In In Re: Intercard, the Kansas Supreme Court held that, where an out-of-state corporation's only presence in the state was sending technicians into the state to install equipment for a total of forty-four hours over one three-month period, that presence was not sufficient to establish a substantial nexus under the Commerce Clause. See 270 Kan. 346, 14 P.3d 1111, 1113 (2000). In Florida v. Share Inter'l, Inc., a Florida court of appeals held that the presence of employees for three days per year at a national chiropractic seminar held in Florida did not establish a substantial nexus with that state. See 667 So. 2d 226, 230 (Fla.Dist.Ct.App.1995).[9] These two cases involving short visits to a state are distinguishable from the present facts. Here, INOVA has a permanent sales presence *403 in Texas. INOVA's employee lives in Texas, works from his home in Texas, and systematically solicits orders from new and existing customers in Texas. This sustained activity is clearly encompassed by the bright-line rule equating physical presence in the state to a substantial nexus. See Quill, 504 U.S. at 314, 112 S. Ct. 1904; Bellas Hess, 386 U.S. at 759-60, 87 S. Ct. 1389; Bandag Licensing, 18 S.W.3d at 299. Because INOVA has a physical presence in Texas, we hold that the Comptroller's imposition of the franchise tax does not violate the Commerce Clause of the federal constitution. We overrule INOVA's final issue.
CONCLUSION
We hold that the imposition of the franchise tax on INOVA's net taxable capital alone is consistent with the statute, that Public Law 86-272 does not exempt INOVA from paying the state franchise tax on its taxable capital, and that INOVA has a substantial nexus with the state. Accordingly, we affirm the judgment of the district court.
NOTES
[1] A corporation's taxable capital or taxable earned surplus is apportioned to the state by dividing the corporation's gross receipts generated in Texas by the corporation's total world-wide gross receipts. See Tex. Tax Code Ann. § 171.106 (West Supp.2004-05); General Dynamics, 919 S.W.2d at 863. This percentage is then multiplied by the total tax base to calculate the amount of tax base apportionable to Texas. General Dynamics, 919 S.W.2d at 863; see Tex. Tax Code Ann. § 171.106.
[2] If the difference between net taxable earned surplus and net taxable capital is less than zero, the difference should be computed as zero. See Tex. Tax Code Ann. § 171.002(c) (West 2002). This provision ensures that the full tax on net taxable capital is collected when the tax on net taxable earned surplus is less than the tax on net taxable capital.
[3] We have previously recognized that Public Law 86-272 has been incorporated in the Comptroller's rules, see Rylander v. Fisher Controls Int'l, Inc., 45 S.W.3d 291, 297 (Tex.App.-Austin 2001, no pet.), but we have never considered a challenge to the Comptroller's longstanding practice of assessing only the taxable capital component of the franchise tax against qualifying out-of-state corporations.
[4] This calculation is also reflected by the placement of a zero in the entry for net taxable earned surplus on INOVA's franchise tax reports.
[5] The Supreme Court of Ohio also concluded that Michigan's single business tax is not "imposed on, or measured by, net income" in determining whether an Ohio taxpayer was entitled to an income tax credit for its single business tax paid to Michigan. See Ardire v. Tracy, Tax Comm'r, 77 Ohio St. 3d 409, 674 N.E.2d 1155, 1156 (1997). The court cited the Gillette opinion extensively and adopted its reasoning. Id. at 1158.
[6] The section of the Senate report discussing minority views emphasized the limited nature of Public Law 86-272:
It should be borne in mind that the subject of the bill is a tax on net income or a tax measured by net income. We are not here considering licensing or franchise regulations or fees which might truly set up barriers to interstate commerce.
S. Rep. No. 86-658, at 9 (1959).
[7] We note that the concept of gross receipts or gross income is quite distinct from net income. Gross income or gross receipts do not take a corporation's expenses into account, while net income is defined as the "excess of all revenues and gains for a period over all expenses and losses of the period." Black's Law Dictionary 1040 (6th ed.1990). Thus, a corporation may have considerable gross receipts or gross income, yet have no net income.
[8] INOVA discusses Comptroller's Decision No. 36,590 (2000), STAR Document No. XXXXXXXXXH, stating that the Comptroller based its ruling on the Commerce Clause. This decision does not mention the Commerce Clause; rather it is a determination that certain business activities within the state were de minimis and did not amount to more than solicitation for the purposes of Public Law 86-272. See id. at 13.
[9] INOVA also cites Pledger v. Troll Book Clubs, where a company provided incentives for teachers to solicit orders on behalf of the company. See 316 Ark. 195, 871 S.W.2d 389, 390 (1994). However, this case is not relevant to our determination because it was decided based on the fact that the teachers were not agents of the company. See id. at 392-93. | 01-03-2023 | 10-30-2013 |
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