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https://www.courtlistener.com/api/rest/v3/opinions/1379948/ | 166 S.W.3d 301 (2005)
MISSION RESOURCES, INC., f/k/a Bellwether Exploration Co., Coastal Oil & Gas Corp., and Coastal Oil & Gas USA, L.P., Appellants,
v.
GARZA ENERGY TRUST, et al., Appellees.
No. 13-02-136-CV.
Court of Appeals of Texas, Corpus Christi-Edinburg.
May 5, 2005.
*309 Timothy E. Gehl, Baker & Botts, Michael D. Jones, Gary J. Holloway, Kilburn, Jones, Gill & Campbell, Lynne Liberato, Alene R. Levy, Mark Trachtenberg, Haynes & Boone, Houston, Ramon Garcia, Edinburg, Bennett Stahl, Loeffler Jonas & Tuggey. San Antonio, Elizabeth N. Miller, Richard P. Marshall, Jr., Scott, Douglass & McConnico, Austin, for appellants.
Everard A. Marseglia Jr., Thomas A. Zabel, Burns, Wooley, Marseglia & Zabel, Houston, for appellees.
Before Justices HINOJOSA, YAÑEZ and GARZA.
OPINION
Opinion by Justice GARZA.
On motion of the Court, the opinion issued in this matter on April 7, 2005 is withdrawn and the following opinion is issued in its place. In this opinion, the Court revises its legal-sufficiency review of the evidence supporting the jury's finding of malice and felony theft to conform to the supreme court's precedent in Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 609-10 (2004).
This is an appeal from a judgment of approximately $14 million against appellant, Coastal Oil and Gas Corporation ("Coastal"), now known as El Paso Production Oil & Gas Company, following a jury trial in Hidalgo County.[1] Appellees, plaintiffs below, are members of the Garza and Salinas families. They are Coastal's lessors in several undivided mineral leases in Share 13, the subject matter of this suit. Appellees asserted multiple causes of action at trial. They alleged Coastal committed a subsurface trespass on Share 13 through the fracture treatment of a well located on an adjacent tract of land known as Share 12. They also claimed that Coastal breached the duty of good faith pooling, as well as the implied covenants to market, develop the leasehold, and protect against drainage.
Following a trial, the jury returned a verdict in favor of appellees on each of their claims except breach of the implied covenant to market. In connection with its trespass finding, the jury found that Coastal had acted with malice and awarded $10 million in punitive damages. The jury also found that Coastal had committed "felony theft," which rendered inapplicable the statutory cap on punitive damages. Coastal now raises fourteen issues on appeal. We sustain Coastal's thirteenth issue regarding attorneys' fees, reverse the judgment as to that issue, and affirm the judgment in all other respects.
Background
Hydraulic fracturing is a secondary recovery method used to increase production from oil and gas wells. During a "frac job," a thick liquid is pumped into the well under great pressure to fracture or break up rock formations that trap oil or gas. A mixture, often composed of sand, is then pumped into the fracture to prop the fracture open. The oil and gas drain through the fractures out of the reservoir to the wellbore, allowing for the capture of reserves that would otherwise not be produced.
*310 Appellees' claim for subsurface trespass is based on Coastal's 1996 "fracing" of the Coastal Fee No. 1 well. The Coastal Fee No. 1 is located on Share 12, adjacent to the southwest corner of Share 13 at a location approved by the Railroad Commission. Coastal owns both the surface and mineral estates of Share 12. Appellees own the surface of Share 13 and, through their leases with Coastal, a royalty interest in the Share 13 mineral estate. Coastal is the lessee of the Share 13 mineral estate. Appellees alleged that Coastal's fracing of the Coastal Fee No. 1 well ("the well") created a subsurface fracture or crack two miles underground that crossed the lease line and drained gas and gas condensate from Share 13. The jury awarded appellees $1 million for subsurface trespass, but the trial court reduced the award to $543,776 to conform to the evidence.
I. Subsurface Trespass by Hydraulic Fracture Stimulation Treatment of a Well
In its first issue, Coastal contends that Texas does not recognize a cause of action for subsurface trespass based on the hydraulic fracture stimulation treatment of a well. According to Coastal, no Texas court has ever held that "fracing" can support a cause of action for trespass damages. Coastal notes that two Texas cases have discussed fracture treatments but maintains that both cases did so only indirectly. See Gregg v. Delhi-Taylor Oil Co., 162 Tex. 26, 344 S.W.2d 411 (1961); Geo Viking, Inc. v. Tex-Lee Operating Co., 817 S.W.2d 357 (Tex.App.-Texarkana 1991), writ denied per curiam, 839 S.W.2d 797 (Tex.1992). Based on this precedent, or lack thereof, Coastal asks this Court to reject the trespass-by-fracing theory. We reach the opposite conclusion. The Texas Supreme Court has held that fracing can be a subsurface trespass. See Gregg, 344 S.W.2d at 416. To the extent our sister court reached the opposite conclusion in Geo Viking, it is in conflict with the Texas Supreme Court and we decline to follow it. See Geo Viking, 817 S.W.2d at 364.
In Gregg, the issue was whether the trial court, rather than the Railroad Commission, had primary jurisdiction to grant injunctive relief to preserve the status quo when the plaintiff's neighbor was about to frac a well close to the property line. Gregg, 344 S.W.2d at 412. The plaintiff claimed that the fracture treatment would be a subsurface trespass. Id. at 415. The defendant denied any wrongdoing and further argued that the case should be heard first by the Railroad Commission. Id. The supreme court ruled against the defendant and held that the trial court had jurisdiction because the Railroad Commission could not make trespass legal. Id. In a passage that Coastal describes as dicta, the supreme court noted that the plaintiff's allegations were "sufficient to raise an issue of whether there is a trespass." Id. at 416.
We conclude that the supreme court's statement cannot be discounted entirely as dictum, if it is dictum at all. The Gregg decision hinged on the supreme court's conclusion that fracing can be a subsurface trespass. According to the court, "[t]o constitute a trespass, `entry upon another's land need not be in person, but may be made by causing or permitting a thing to cross the boundary of the premises." Id. (quoting Glade v. Dietert, 156 Tex. 382, 295 S.W.2d 642, 645 (1956)). If the court had concluded that fracing could not be a trespass, it would have simply dismissed the case and allowed the Railroad Commission to resolve the dispute. But the court did not do so. Id. It held that the trial court had jurisdictionand that the Railroad Commission did notbecause the case involved a tort (i.e., trespass). According to the opinion, fracing can create a subsurface *311 trespass if "the invasion alleged is direct and the action taken is intentional." Id.
The Texas Supreme Court did not revisit the trespass-by-fracing issue until three decades later, when the Texarkana court issued its opinion in Geo Viking. Geo-Viking, 817 S.W.2d at 359. In Geo Viking, an oil well driller named Tex-Lee brought a DTPA claim against a fracing company called Geo-Viking for improperly performing a fracture treatment on a well and failing to increase production. Id. The jury awarded Tex-Lee damages for oil and gas that would have been produced if the frac treatment had been performed properly. Id. at 363-64. On appeal to the Texarkana court, Geo-Viking argued that the damages awarded to Tex-Lee were excessive because, if completed as designed, the frac job would have crossed the lease lines and trespassed on a neighboring tract. Id. Geo-Viking maintained that Tex-Lee should not be allowed to recover damages for oil and gas that would have been improperly drained by a trespass into a neighboring lease. Id. According to Geo-Viking, the trial court should have instructed the jury not to include in its damage calculations any oil and gas drained from the adjoining tract. Id. Citing "the rule of capture," the court of appeals rejected Geo-Viking's argument that fracing could create a subsurface trespass:
This rule [of capture] permits the owner of a tract to drill as many wells on his land as the Railroad Commission will allow and provides that he is not liable to adjacent land owners whose lands are drained as a result of his operations. The remedy of an injured land owner in such circumstances is generally said to be self-help.
Id. at 364.
Initially, the supreme court reversed the Texarkana court, stating that fracing beyond lease lines did constitute subsurface trespass, Geo Viking, Inc. v. Tex-Lee Operating Co., No. D-1678, 1992 WL 80263, at *1, 1992 Tex. LEXIS 40, *1 (Tex.1992) (per curiam); however, the court later withdrew its opinion, denied the writ, and stated: "We should not be understood as approving or disapproving the opinion of the court of appeals analyzing the rule of capture or trespass as they apply to hydraulic fracturing." Geo Viking, 839 S.W.2d at 798. Thus, in the end, the Geo Viking holding went unreviewed by the supreme court.
Gregg and Geo Viking appear to conflict: Gregg held that fracing could be a subsurface trespass, and Geo Viking implied that it could not. This Court will not endeavor to reconcile the conflict. Instead, we follow Gregg as it is not for this Court to declare it devoid of precedential value, as Gregg remains the law. Coastal's first issue is overruled.
II. Standing to Sue for Subsurface Trespass
In its second issue, Coastal contends that appellees lack standing to sue because, as royalty interest owners, they lack a possessory interest in the mineral estate. See H.G. Sledge, Inc. v. Prospective Inv. and Trading Co., Ltd., 36 S.W.3d 597, 604 (Tex.App.-Austin 2000, pet. denied) ("Royalty and overriding interests have no possessory right or interest in a tract."). According to Coastal, only a party with a possessory interest in a mineral estate has standing to sue for subsurface trespass. Coastal cites Pentagon Enters. v. Southwestern Bell Tel. Co., 540 S.W.2d 477, 478 (Tex.Civ.App.-Houston [14th Dist.] 1976, writ ref'd n.r.e.) and argues that because appellees have royalty interests and not possessory interests, they have no claim *312 for trespass, though they might have a claim for breach of the implied covenant to protect against drainage.
Standing to sue is a threshold inquiry. M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex.2001) ("Standing is a prerequisite to subject-matter jurisdiction, and subject-matter jurisdiction is essential to a court's power to decide a case."). In general, a plaintiff has standing to sue if the plaintiff has suffered an injury that was caused by the defendant and is likely to be remedied by the relief requested. MET-Rx USA, Inc. v. Shipman, 62 S.W.3d 807, 810 (Tex.App.-Waco 2001, pet. denied); see also Brown v. Todd, 53 S.W.3d 297, 305 (Tex.2001) (citing Tex. Workers' Compensation Comm'n v. Garcia, 893 S.W.2d 504, 516-17 (Tex.1995)). If the plaintiff has no standing, the court lacks subject matter jurisdiction over the plaintiff's claim and must dismiss it. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-46 (Tex.1993); see also Douglas v. Delp, 987 S.W.2d 879, 882 (Tex.1999) ("Without subject matter jurisdiction, courts may not address the merits of a case.").
Although Coastal maintains that appellees have no standing to sue, it has cited no case holding that royalty interest owners cannot sue for trespass. The only case cited by Coastal that arguably addresses the issue of standing held that a company could not sue or recover damages for a trespass that occurred before it acquired title to and possession of the property that was the subject of the trespass claim. See Pentagon Enters., 540 S.W.2d at 477-78.[2] Even assuming that Pentagon Enters. dealt with the issue of standing, it is distinguishable from the instant case. Here, appellees owned a real property interest against which Coastal trespassed. Unlike the plaintiff in Pentagon Enters., appellees owned their interest at the time of the trespass. See id. This case can be further distinguished from Pentagon Enters. because Pentagon Enters. did not involve royalty interest owners and in no way purported to decide whether a royalty owner can sue for trespass. See id.
Appellees have alleged an injury in the form of a subsurface intrusion by Coastal that caused drainage of gas and gas condensate in which appellees have a royalty interest. Appellees' injury is likely to be redressed by the relief requested (i.e., money damages) because appellees' injury is financial in nature. We therefore conclude that appellees have standing to sue. Accord HECI Exploration Co. v. Neel, 982 S.W.2d 881, 890 (Tex.1998) ("A royalty owner may sue for its own damages. . . ."). Coastal's second issue is overruled.
III. Legal Sufficiency of the Evidence
Coastal's third, fourth, and fifth issues challenge the legal sufficiency of the evidence. When reviewing a legal-sufficiency point, we consider only the evidence and inferences that tend to support a finding *313 and disregard all evidence and inferences to the contrary. N. Am. Refractory Co. v. Easter, 988 S.W.2d 904, 908 (Tex.App.-Corpus Christi 1999, pet. denied). If there is any evidence of probative force to support the finding (i.e., more than a mere scintilla), we will overrule the issue. Id.
A. Malice
In its third issue, Coastal argues that the jury's finding of malice was not supported by legally sufficient evidence. Because appellees had the burden of proving malice by clear and convincing evidence, an elevated standard of proof, we apply a more exacting approach on appeal by looking at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. See In re J.F.C., 96 S.W.3d 256, 264-268 (Tex.2002); see also Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d at 609-10 (2004).
The definition of malice given to the jury had two alternative prongs: a specific intent prong and a gross negligence prong. To prove specific intent, appellees had to show that Coastal specifically intended to cause them "substantial injury or harm." See TEX. CIV. PRAC. & REM.CODE ANN. § 41.001(7) (Vernon Supp.2004-05). To satisfy the gross negligence prong, appellees had to show that (1) when viewed objectively, Coastal's acts or omissions "involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others," and (2) Coastal had "actual subjective awareness of the risk involved but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others." See id. § 41.001(11).
Coastal argues that there is no evidence to support a finding of malice under either the specific intent or gross negligence prong. Coastal's appellate brief advances two main arguments: (1) evidence that Coastal's production department did not check the lease lines in designing the fracture stimulation does not support the malice finding, and (2) evidence that Coastal's land department knew about the fracture stimulation proposal does not support a finding of malice.
In response to Coastal's no-evidence challenge, appellees argue that Coastal's failure to check the location of the lease lines is, in fact, evidence of malice. Additionally, appellees reference ten points of evidence, which, they argue, support the jury's finding of malice:
1. Coastal conducted an intense fracture stimulation procedure on its Coastal Fee No. 1 well on Share 12, designed to encroach upon and drain Share 13.
2. Coastal voluntarily shut in its highly-successful Pennzoil No. 1 well in order to drill its Coastal Fee No. 1 well.
3. Coastal intended the fracture stimulation procedures to drain oil and gas from Share 13, and they performed as intended.
4. Coastal possessed an 84% ownership interest on Share 13, but later acquired a 100% interest on adjoining Share 12.
5. Despite its implied obligation to develop Share 13 after the completion of the M. Salinas No. 3, Coastal developed its Share 12 fee property, where its net revenue interest was 100%.
6. Coastal did not seek GET's consent before conducting the fracture stimulation procedures on the Coastal Fee No. 1 well.
7. In the design of the 1100' fracs implemented in the Coastal Fee No. 1 well, Coastal did not consider lease line boundaries.
8. Because of the instantaneous drainage along the fracture, Professor Economides *314 [(appellees' expert witness)] calculated the drainage by trespass based upon the length of the fracture into Share 13. He estimated the value of that drainage to be $543,000.
9. Coastal drilled protection wells, albeit ineffective in both time and location, only after GET filed suit to protect its rights.
10. By the time Coastal drilled the protection wells, after litigation was commenced, the gas and gas condensate were already gone, having entered the fracture created in the Coastal Fee No. 1 well. These reserves could not be produced by a protection well.
In a separate, unnumbered point of evidence, appellees state that "Coastal implemented the largest `frac jobs' in the field to maximize the possibility that its `frac jobs' would cross into Share 13 and effect a drainage of the gas and gas condensate found there."
Coastal's reply brief asserts that appellees' evidence is "misleading." Coastal then proceeds to take issue with some of the evidentiary points enumerated by appellees. Coastal maintains that, contrary to appellees' characterization, "the frac job performed on the Coastal Fee No. 1 was less effective than most of the frac jobs done on . . . [appellees'] wells and, in fact, was one of the least effective in the field." Coastal also disputes appellees' assertion that it "intended the fracture and stimulation procedures to drain oil and gas from Share 13." According to Coastal, "The gist of this allegation is that if Coastal's model predicted that the fracture would travel 1,164 feet, it must have done so." Coastal argues that such reasoning is flawed because the "design model was not intended to predict exactly what will occur in the field when the fracture treatment is implemented, but rather was used to compare the effectiveness of frac jobs on various wells." Coastal maintains that its model only calculated for the propped length and not the effective length of the fracture, which is always shorter than the propped length.[3] Thus, according to Coastal, even if the proppant crossed the lease line, it does not necessarily mean that the fracture would drain oil and gas from the neighboring tract.
We conclude that the record contains legally-sufficient evidence to establish Coastal's specific intent to cause substantial injury to appellees. Specific intent means that "the actor desires to cause the consequences of his act, or that he believes the consequences are substantially certain to result from it." Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex.1985) (quoting Restatement (Second) of Torts § 8A (1965)). Appellees' evidence of specific intent is mostly circumstantial, but this is not problematic because even purely circumstantial evidence can suffice to prove malice. See Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex.1998).
Dr. Economides testified that the well fraced by Coastal is located 467 feet from Share 13, such that any fracture treatment of the well exceeding between 467 and 660 *315 feet in length (depending on the direction of the fracture) would penetrate Share 13. Dr. Economides also testified that, based on his calculations, as well as the stimulation proposals relied upon by Coastal, the fracture treatment performed by Coastal was designed to extend approximately 1,100 feet or more. In Dr. Economides' opinion, a "massive" fracture treatment such as the one performed by Coastal in this case would be the ideal way to "exploit" the reservoir of gas and gas condensate in Shares 12 and 13. Based on this evidence, the jury could have reasonably inferred that Coastal intended for its fracture treatment to penetrate and drain gas and gas condensate from Share 13. Furthermore, the jury could have also reasonably inferred that the drainage of gas and gas condensate from Share 13 would cause substantial injury to appellees in the form of a financial loss because appellees owned a royalty interest in the gas and gas condensate produced from Share 13 but had no such interest in Share 12.
Based on the evidence, a reasonable trier of fact could have formed a firm belief or conviction that Coastal acted with malice. See In re J.F.C., 96 S.W.3d at 264-268. Because we hold that the jury's finding of malice is supported by legally-sufficient evidence of specific intent, we need not address the legal sufficiency of the evidence to prove that Coastal was grossly negligent, which was the alternative option for establishing malice. See TEX.R.APP. P. 47.1. Coastal's third issue is overruled.
B. Felony Theft
In its fourth issue, Coastal argues that the punitive damages award must be drastically reduced because the statutory cap on punitive damages applies in this case. See TEX. CIV. PRAC. & REM.CODE ANN. § 41.008(b) (Vernon Supp.2004-05) (statutory cap on punitive damages). In order to avoid the statutory cap on punitive damages, appellees alleged that Coastal was guilty of felony theft.[4] This allegation required appellees to prove, beyond a reasonable doubt, that when Coastal fractured its well, it intended to and did unlawfully deprive appellees of their property in an amount in excess of $20,000. See id.; TEX. PENAL CODE ANN. § 31.03(e)(4)-(7) (Vernon Supp.2004-05) (felony theft). The jury's affirmative finding on this point removed the cap that otherwise would have limited any punitive damage award to $1,087,532, twice the actual economic damages awarded for trespass. See TEX. CIV. PRAC. & REM.CODE ANN. § 41.008(b), (c)(13).
On appeal, Coastal argues that the trial court should have applied the cap because there is no evidence that Coastal's intent in fracing its well was to deprive appellees unlawfully of their property. According to Coastal, the evidence overwhelmingly demonstrated that all area wells must be fraced to be productive and Coastal's sole intent was to allow the well to be productive.
We disagree. We have concluded that there is more than a scintilla of evidence in the record to prove that Coastal acted with specific intent to cause a substantial injury by draining gas and gas condensate from Share 13, thereby diminishing appellees' royalties and causing them to incur a financial *316 loss exceeding half-a-million dollars. The jury's award of damages in the amount of $543,776 establishes that the value of the property taken from appellees exceeded $20,000. Based on this evidence a reasonable finder of fact could have formed a firm belief or conviction that when Coastal fractured its well, it intended to and did unlawfully deprive appellees of their property in an amount in excess of $20,000. See TEX. PENAL CODE ANN. § 31.03(e)(4)-(7). We therefore overrule Coastal's fourth issue.
C. Bad Faith Pooling
In its fifth issue, Coastal challenges the jury's finding that it breached its contractual duty to pool in good faith, for which the jury awarded appellees $1 million (subsequently reduced to $81,619). The leases executed between Coastal and appellees granted Coastal the authority to combine or "pool" tracts from two or more leases into a single unit. See Southeastern Pipe Line Co. v. Tichacek, 997 S.W.2d 166, 170 (Tex.1999) ("A lessee has no power to pool without the lessor's express authorization, which is usually contained in the lease's pooling clause."). The primary legal consequence of pooling is that production and operations anywhere on the pooled unit are treated as if they have taken place on each tract within the unit. Id. If the lessee pools in good faith, the lessee is relieved of the obligation to reasonably develop each tract separately, or to drill off-set wells on other tracts included in the unit to prevent drainage by a well on one or more of such tracts. Id. In other words, there can no longer be drainage of the individual leases by a unit well, only drainage of the unit by wells located outside the unit. Id. Conversely, if the unit is not pooled in good faith, production will be considered to take place only on the actual tract upon which it occurs, and production from a unit well will not maintain off-site leases. Id. Generally, the question of good faith or bad faith pooling and unitization is a fact issue to be resolved by the trier of fact. Circle Dot Ranch v. Sidwell Oil & Gas, 891 S.W.2d 342, 347 (Tex.App.-Amarillo 1995, writ denied).
Coastal asserts that the jury's finding of bad faith pooling is supported by no evidence; however, John Wilson, an expert witness for appellees, testified that Coastal formed a pooled unit in a manner that financially penalized appellees, even though there were other ways to pool without creating such a penalty. Wilson also testified that the penalty incurred by appellees directly benefitted Coastal.
We agree with the Amarillo court's conclusion that a lessee should not be required to subordinate its own interests entirely to the interests of the lessor, Elliott v. Davis, 553 S.W.2d 223, 226 (Tex.App.-Amarillo 1977, writ ref'd n.r.e.), but at the same time, we believe it is equally important that a lessee be prohibited from subordinating the lessor's interests entirely to its own when it comes to the duty of good faith pooling. As the court stated in Circle Dot Ranch, "the lessee's primary obligation is to exercise the pooling power in good faith, taking into account the interests of both lessee and lessor." Circle Dot Ranch, 891 S.W.2d at 346 (emphasis added, internal quotations and citations omitted). The evidence favoring the jury's finding of bad faith pooling tends to prove that Coastal did not adequately consider the financial interests of appellees in exercising its pooling power. This is more than a scintilla of evidence of bad faith pooling. Coastal's fifth issue is therefore overruled.
IV. Punitive Damages
Coastal's sixth and seventh issues challenge the jury's award of punitive damages. *317 In its sixth issue, Coastal argues that punitive damages were not recoverable in this case because there was no award of tort damages. In its seventh issue, Coastal argues that the jury's award of punitive damages violates its due process rights under the United States Constitution.
A. Availability of Punitive Damages
Punitive damages cannot be recovered without a finding of an independent tort and an award of actual tort damages. See Fed. Express Corp. v. Dutschmann, 846 S.W.2d 282, 284 (Tex.1993). According to Coastal, appellees were not entitled to an award of punitive damages because they failed to submit a question on the damages caused by Coastal's alleged trespass. The trial court submitted the following question on damages:
QUESTION NO. 8:
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Plaintiffs for the damages proximately caused by the Defendant's failure to prevent substantial drainage from the Salinas Lease caused by the trespass?
Consider the following elements of damages, if any, and none other:
The value of the royalty on the gas drained from Share 13 by the subsurface trespass from the Coastal Fee No. 1 well.
Coastal argues that Question 8 did not inquire about damages for Coastal's alleged conduct as trespasser, but instead sought contract damages caused by Coastal's breach of the contractual covenant to protect against drainage, a covenant that was implied in its oil and gas lease contract on Share 13. This is confirmed, according to Coastal, by Question 8's dependence on Question 7, which asked whether Coastal "failed to act as a reasonably prudent operator to prevent substantial drainage . . . caused by the subsurface trespass by fracture treatment. . . ." Coastal argues that the jury's award of damages in response to Question 8 was based on in its finding in Question 7 that Coastal breached the implied covenant to protect against drainage, not its allegedly tortious conduct as an adjoining landowner.
We find it significant that Questions 7 and 8 were each conditioned on a "yes" answer to Question 6, which asked whether "there has been substantial drainage of gas and gas condensate . . . caused by the subsurface trespass from the fracture treatment. . . ." As the jury's affirmative findings demonstrate, Coastal's trespass caused substantial drainage of gas and gas condensate from Share 13. These are the damages that Question 8 measured and awarded.
The tort and contract damages in this case necessarily overlap because Coastal played two different roles in causing the damages incurred by appellees: As an adjoining landowner, Coastal trespassed onto Share 13, and as the lessee of Share 13, it failed to protect against the substantial drainage caused by its trespass. Although Coastal's two different roles created two distinct injuries, one sounding in tort and one sounding in contract, the damages from both injuries are the same: diminished royalties caused by the drainage of gas and gas condensate from Share 13. Not only are the damages the same, they are inseparably linked to the two different injuries that caused them. If, on the one hand, Coastal had not trespassed onto Share 13, there would have been no drainage to protect against and therefore no contract damages for failure to protect against drainage. If, on the other hand, Coastal had protected against the drainage, its trespass would have been harmless, causing no tort damages for trespass. *318 For this reason, we conclude that the jury's answer to Question 8 constituted an award of actual tort damages and overrule Coastal's sixth issue.
B. Due Process
The Due Process Clause of the Fourteenth Amendment prohibits a State from imposing a "grossly excessive" punishment on a tortfeasor. BMW of N. Am. v. Gore, 517 U.S. 559, 562, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996) (quoting TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 454, 113 S. Ct. 2711, 125 L. Ed. 2d 366 (1993)). Punitive damages may properly be imposed to further a State's legitimate interests in punishing unlawful conduct and deterring its repetition. Id. at 568. States necessarily have considerable flexibility in determining the level of punitive damages that they will allow in different classes of cases and in any particular case. Id. Only when an award can fairly be categorized as "grossly excessive" in relation to these interests does it enter the zone of arbitrariness that violates the Due Process Clause of the Fourteenth Amendment. Id.
Elementary notions of fairness enshrined in the constitutional jurisprudence of the United States Supreme Court dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose. Id. at 574, 116 S. Ct. 1589. Three guideposts have been used by the high Court: (1) the degree of reprehensibility of the conduct; (2) the disparity between the harm or potential harm suffered by the plaintiff and his punitive damages award; and (3) the difference between this remedy and the civil or criminal penalties authorized or imposed in comparable cases. Id. at 575, 116 S. Ct. 1589. Our de novo application of these three guideposts to the facts of this case follows. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 418, 123 S. Ct. 1513, 155 L. Ed. 2d 585 (2003) ("appellate courts. . . [must] conduct [a] de novo review of . . . the jury's award").
Degree of Reprehensibility
Perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant's conduct. Gore, 517 U.S. at 575, 116 S. Ct. 1589. Exemplary damages imposed on a defendant should reflect "the enormity of his offense." Id. (quoting Day v. Woodworth, 54 U.S. 363, 13 How. 363, 371, 14 L. Ed. 181 (1852)). This principle reflects the accepted view that some wrongs are more blameworthy than others. Id. Thus, the Supreme Court has noted that "`trickery and deceit' are more reprehensible than negligence." See id. at 576, 116 S. Ct. 1589 (internal citation omitted). The high Court has also explained that intentional malice can be the decisive element in a "close and difficult case." See id.
Although Coastal's conduct did not cause physical injury, it did involve a substantial amount of economic harm. Coastal breached its contract and committed the intentional tort of trespass. It acted with malice, and its conduct amounted to felony theft. Furthermore, the harm inflicted on appellees was possible only because Coastal abused its dual roles as lessee and adjacent landowner. Given these considerations, we conclude that Coastal's conduct was sufficiently repugnant to justify a punitive damages award befitting a substantial degree of reprehensibility.
Ratio
The second and perhaps most commonly cited indicium of an unreasonable or excessive punitive damages award is its ratio to *319 the actual harm inflicted on the plaintiff. Id. at 580, 116 S. Ct. 1589. The Supreme Court has consistently rejected the notion that the constitutional line is marked by a simple mathematical formula, even one that compares actual and potential damages to the punitive award. See id. at 582, 116 S. Ct. 1589.
The ratio in this case is approximately 20 to 1. It is markedly lower than both the 500 to 1 ratio rejected in Gore and the 145 to 1 ratio rejected in Campbell. See Campbell, 538 U.S. at 425, 123 S. Ct. 1513; Gore, 517 U.S. at 582, 116 S. Ct. 1589. Admittedly, it exceeds the "single-digit multipliers," which, according to the Supreme Court, "are more likely to comport with due process," Campbell, 538 U.S. at 425, 123 S. Ct. 1513; however, the Supreme Court has clarified that such "ratios are not binding . . . [but] instructive." Id. Thus, the precise award in any case must be based upon the facts and circumstances of the defendant's conduct and the harm to the plaintiff, not a bright-line rule forbidding ratios exceeding 10 to 1. See id. Although the harm suffered by appellees may have been compensated by the jury's award of damages, the highly unlawful nature of Coastal's conduct (it being a breach of contract, an intentional tort, and felony theft) prevents this Court from concluding that the ratio 20 to 1 was grossly excessive.
Sanctions for Comparable Misconduct
Comparing the punitive damages award and the civil or criminal penalties that could be imposed for comparable misconduct provides a third indicium of excessiveness. Gore, 517 U.S. at 583, 116 S. Ct. 1589. This third guidepost proves to be the least helpful in this case because we have been cited to no cases involving comparable misconduct. Apparently, appellees are the first plaintiffs in Texas to have successfully asserted a cause of action for subsurface trespass by hydraulic fracture stimulation treatment of an oil and gas well. We therefore have no judgments in similar cases to which we can compare the damages awarded in this case.
The criminal penalties for felony theft, in contrast, are defined by statute. Theft of property exceeding $200,000 is a first degree felony. See TEX. PENAL CODE ANN. § 31.03(e)(7) (Vernon Supp.2004-05). An individual who commits felony theft is subject to imprisonment for a term ranging from 5 to 99 years, in addition to a fine not to exceed $10,000. See TEX. PENAL CODE ANN. § 12.32 (Vernon 2003). Coastal, being a corporate entity and not an individual, would be subject to a fine not to exceed twice the amount gained or caused to be lost or damaged, whichever is greater. See TEX. PENAL CODE ANN. § 12.51 (Vernon 2003). That amount would be $1,086,000.
The maximum fine Coastal could be subjected to if prosecuted for felony theft is much lower than the $10 million award of punitive damages, but this disparity, while noteworthy, is the product of a comparison of dubious utility. Coastal breached its contract, trespassed, and committed felony theft, but only one of these illegalities is accounted for in a comparison between the punishment for felony theft and the punitive damages award in this case. Without the benefit of more complete information on which to base an adequate comparison, this Court cannot conclude that the third guidepost militates towards a finding of gross excessiveness.
On balance, the factors by which the United States Supreme Court has instructed appellate courts to evaluate awards of punitive damages tend to favor a conclusion that the damages awarded in this case are not grossly excessive and do not violate the Fourteenth Amendment's guarantee *320 of substantive due process. Coastal's seventh issue is therefore overruled.
V. Damages
Coastal's eighth and ninth issues challenge the measures of damages submitted to the jury for appellees' claims for failure to protect against substantial drainage and failure to develop the leasehold.
A. Failure to Protect Against Substantial Drainage
As mentioned above, supra IV. A., the trial court submitted one question on damages that encompassed the damages from both the alleged trespass and the alleged failure to protect against substantial drainage. Coastal argues the jury's award of damages for failure to protect against substantial drainage must be reversed and rendered in its favor because the measure of damages stated in Question 8 was improper for failure to protect against substantial drainage, though it may have been the proper measure for trespass. We disagree that a reversal is in order. See TEX.R.APP. P. 44.1(a).
Although the measure of damages stated in Question 8 might have been improper for a claim of failure to protect against substantial drainage, Coastal does not challenge the instruction as a measure of damages for trespass. In deciding Coastal's sixth issue, we concluded that Question 8 measured appellees' trespass damages. Because Coastal has not challenged Question 8 as a measure of damages for trespass, we cannot conclude that the error of which Coastal complains probably led to the rendition of an improper judgment. See id. Coastal's eighth issue is overruled.
B. Failure to Develop the Leasehold
Coastal also complains that the trial court erred by instructing the jury that the measure of damages for breach of the implied covenant to develop was the "value of the interest income on the royalty amount lost to Plaintiffs, if any, through the lessee's failure to reasonably develop the Salinas Lease." According to Coastal, this instruction runs counter to longstanding Texas law, which holds that the measure of damages for failure to develop is the difference between the royalty that was actually paid and the royalty that should have been paid had the lessee exercised ordinary care to develop the lease (the "royalty rule"). See Tex. Pac. Coal & Oil Co. v. Barker, 117 Tex. 418, 6 S.W.2d 1031, 1038 (1928) (discussing other cases that "announce the correct doctrine which requires the lessee to pay the lessor the amount he actually loses by awarding him without deduction the full value of royalty lost to him through the lessee's failure to exercise ordinary care to. . . develop the minerals in the leased premises"). The gist of Coastal's complaint is that "the trial court should have instructed the jury to apply the Barker royalty rule and then allowed Coastal a dollar-for-dollar credit for the royalties it paid. . . ." Coastal maintains that "it should not be required to pay the royalty again when development took place. . . ."
The trial court's measure of damages did not run afoul of supreme court precedent. A lessee's obligations in the performance of the implied covenants as to development, operation, equipping and marketing are measured by the same rule, reasonable diligence, or what an ordinarily prudent and diligent operator would do. Rhoads Drilling Co. v. Allred, 123 Tex. 229, 70 S.W.2d 576, 585 (1934). Should it be found that the lessees or their assigns failed to exercise reasonable care in exploring, developing, or producing the oil and gas in the leased land, the parties or party in default would be liable to the lessors for the damages thereby sustained. *321 Mon-Tex Corp. v. Poteet, 118 Tex. 546, 19 S.W.2d 32, 34 (1929).
The jury found that Coastal failed to act with reasonable diligencefailed to act as an ordinarily prudent and diligent operatorin its development of Share 13. The evidence in support of this finding tended to prove that Coastal delayed unreasonably in developing the tract, a delay which, according to appellees' expert witness, cost appellees $2,292,513 in lost interest income. A damages award such as the one advocated by Coastal, based on the difference between royalties actually received and royalties that should have been produced, would not at all account for the damages sustained by appellees, as the leasehold was eventually developed after the commencement of this suit. Application of Coastal's measure of damages would have contradicted the supreme court's holding in Poteet that a party in breach of an implied covenant is "liable to the lessors for the damages thereby sustained." See id. As the Barker court stated, "the correct [measure]. . . requires the lessee to pay the lessor the amount he actually loses. . . ." Barker, 6 S.W.2d at 1038. The amount lost by appellees is the interest income on the delayed royalties. That is the amount measured by the jury's instruction. The jury's award of damages did not force Coastal to pay royalties twice; it awarded appellees interest on the royalties appellees would have received if Coastal had not breached the implied covenant to develop the leasehold. Accord Freeport Sulphur Co. v. Am. Sulphur Royalty Co., 117 Tex. 439, 6 S.W.2d 1039, 1045 (1928) (allowing the recovery of interest income on royalties that were delayed). Coastal's ninth issue is overruled.
VI. Admissibility of 1977 Memorandum
In its tenth issue, Coastal complains that the trial court erred by admitting into evidence an internal memorandum written by a Coastal employee in 1977. We must uphold the trial court's admission of the 1977 memo if there is any legitimate basis for the ruling, see Torrington Co. v. Stutzman, 46 S.W.3d 829, 845 n. 13 (Tex.2000), because the admission of evidence is a matter committed to the trial court's sound discretion. Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex.2001). We cannot reverse a trial court's ruling for an abuse of discretion merely because we may disagree with that decision. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.1991).
A. Relevancy
Coastal argues that the 1977 memo was inadmissable because it was not relevant. See TEX.R. EVID. 402. ("Evidence which is not relevant is inadmissible."). Relevant evidence is 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. Stutzman, 46 S.W.3d at 845 n. 13 (citing TEX.R. EVID. 401). To be relevant, in other words, the proposed testimony must be sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute. Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713, 720 (Tex.1998). Testimony that is inadmissible in the first instance may become relevant and admissible in rebuttal, but the alleged rebuttal evidence must be in fact offered to rebut other evidence, not as a part of the proponent's case-in-chief. See Waldrep v. Tex. Emplrs. Ins. Assoc., 21 S.W.3d 692, 706 (Tex.App.-Austin 2000, pet. denied).
The 1977 memo was irrelevant, according to Coastal, because it dealt only *322 with title issues related to Share 13, issues which, according to Coastal, were not litigated in the instant case. At trial, Coastal raised title issues as a defensive theory to appellees' failure-to-develop claim, but the title issues involved Share 15, which is located on a tract of land adjacent to Share 13. As with Share 13, Coastal owns Share 15's mineral estate but not its surface rights. The surface rights are held by the Coates family, which also holds a royalty interest in the mineral estate.
Coastal raised the title problems with Share 15 as follows. In the portion of her opening statement related to appellees' claim for failure to develop the leasehold, counsel for Coastal contended that "title disputes [to Share 15] had been going on" and that Coastal "wasn't able to simply drill down here [on Share 13] until some things got resolved. . . . There were [title] problems that Coastal had been trying to resolve for a long time and all they did was get sucked into lawsuits trying to do it." To prove this contention at trial, Coastal presented the testimony of Steve Salge, its director of land for the district of south Texas. Salge testified that Coastal's delay in developing Share 13 was caused by complications related to title issues involving Share 15. Salge testified that Coastal was "trying to cure up [these] title issues so that we could actually drill some additional wells, specifically, it would have been those wells located along the-where the 5, 7, and 8 are and then eventually the 10 and 11 because we had-we had some title concerns up there that previously had hindered the drilling of those wells."
Even though Coastal raised title issues as a defensive theory to appellees' failure-to-develop claim, it argues that the 1977 memo was nonetheless irrelevant because it discussed title problems related to Share 13, not Share 15. These two groups of title problems, Coastal argues, are completely unrelated.
We disagree with Coastal on this point. Although the disputes in question are undoubtedly distinct, both legally and factually, each is relevant to a central issue of this case: the reasonableness of Coastal's failure to develop Share 13 because of title problems. In the 1977 memo, a Coastal employee recommended that, despite the title problems with Share 13, Coastal should "assume the calculated risks of drilling . . . [a] well [on Share 13]." The memo further advised that "if . . . [the well] is a producer we can file an interpleader suit and let the court decide which parties are entitled to royalties and the percentages." Thus, the memo can be fairly characterized as stating that development of Share 13 would be reasonable despite any title problems.[5] We conclude that the 1977 memo was relevant because its recommendation to drill despite title problems could have helped the jury to decide whether Coastal was reasonable in delaying its development of Share 13 because of title problems with Share 15. In reaching this conclusion, we emphasize that we do not review the admission of evidence de novo but are instead restricted to an abuse-of-discretion standard under which we cannot reverse the trial court's ruling simply because we would have reached the opposite conclusion. See Buller, 806 S.W.2d at 226.
B. Unfair Prejudice
Coastal further contends that even if the 1977 memo is held to be relevant, the trial court nonetheless erred by admitting it because it was unfairly prejudicial. *323 See TEX.R. EVID. 403. In particular, Coastal argues that the following passage from the memo caused it to be "tried. . . for racism":
The complex problems encountered by Mr. Slator result from the fact that possession of these lands began over 200 years ago and the people in possession were mostly illiterate Mexicans and later Mexican-Americans who had large families, many estate problems, heirship problems and errors of all kinds involving surveys and resurveys, partitions and attempted partitions.
Coastal contends that the language about "illiterate Mexicans" was offered specifically for its potential to create prejudice, confuse the issues, and mislead the jury.
All relevant evidence is admissible unless its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. See TEX.R. EVID. 403; Easter, 988 S.W.2d at 916. Rule 403 thus requires the trial court to conduct a balancing test to determine whether the proffered evidence is admissible. TCA Bldg. Co. v. Northwestern Res. Co., 922 S.W.2d 629, 637 (Tex.App.-Waco 1996, writ denied). Rule 403's balancing test generally comes into play when the probative value of the evidence is low or the problems with the evidence are serious. Farr v. Wright, 833 S.W.2d 597, 602 (Tex.App.-Corpus Christi 1992, writ denied).
We have concluded that the 1977 memo was probative of Coastal's unreasonableness in delaying production of Share 13 because of title problems with Share 15. The memo showed that previous title problems had not hindered Coastal's development of Share 13, even when the title problems dealt with Share 13, the actual tract of land which was to be developed. Although the title problems raised as a defense by Coastal involved a different tract of land, this distinction militates (if at all) against the reasonableness of Coastal's delay in developing Share 13.
Next, we must balance the probative value of the 1977 memo against the danger of unfair prejudice, confusion of the issues, or misleading the jury. See TEX.R. EVID. 403; Easter, 988 S.W.2d at 916. Unfair prejudice is an undue tendency to suggest a decision on an improper basis, commonly, though not necessarily, an emotional one. Weidner v. Sanchez, 14 S.W.3d 353, 365 (Tex. App.-Houston [14th Dist.] 2000, no pet.). Coastal characterizes the 1977 memo as an illicit use of race to gain courtroom advantage. To prove that the use of race is unfairly prejudicial, Coastal makes the following argument with which this Court wholeheartedly agrees:
In Texas, you can't say you should win because your adversaries are "yellow nigs" or "yellow darkies." Tex. Employers' Ins. Ass'n v. Haywood [153 Tex. 242], 266 S.W.2d 856, 858-59 (Tex.1954). You can't argue that a witness would lie for money because he is a Jew. See Tex. Employers' Ins. Asso. v. Jones, 361 S.W.2d 725, 727 (Tex.Civ.App.-Waco 1962, writ ref'd n.r.e.). You can't say that Americans should not lose their case to aliens. See Penate v. Berry, 348 S.W.2d 167, 168 (Tex.Civ.App.-El Paso 1961, writ ref'd n.r.e.). You can't call your opponent a wetback. See Basanez v. Union Bus Lines, 132 S.W.2d 432, 433 (Tex.Civ.App.-San Antonio 1939, no writ). And you can't appeal to jurors for ethnic unity based on a shared Hispanic heritage. See Tex. Employers' Ins. Ass'n v. Guerrero, 800 S.W.2d 859, 862-63 (Tex.App.-San Antonio 1990, writ denied).
Although we agree that courtroom strategies appealing to racial or ethnic biases are highly improper and unfairly prejudicial, *324 we cannot conclude that the memo's language about "illiterate Mexicans" is anywhere near as inflammatory as the remarks made in the cases cited by Coastal. The memo simply cannot be considered "an appeal to . . . prejudice in language clear and strong," Berry, 348 S.W.2d at 168-69, especially because it was written by a Coastal employee and did not ask the jury to decide the case on an improper basis as did the arguments made in the cases cited by Coastal. For this reason, we cannot conclude that the trial court abused its discretion by admitting the memo over Coastal's objection of unfair prejudice.
In support of its tenth issue, Coastal raises two collateral arguments, which this Court is compelled to address. It argues that the memo's danger of unfair prejudice was magnified by the testimony of appellee Margarito Salinas that he was "insulted," "infuriated," and "really, really mad" about the "illiterate Mexicans" language because it was "my ancestors" who were being insulted. Salinas also testified that the rest of his family members "feel . . . the same way. They feel hurt. They feel infuriated."
The foregoing testimony may have been held inadmissible on several grounds, the most obvious of which being relevancy, see TEX.R. EVID. 401, 402, but Coastal made no such objections at trial. Coastal's motion for new trial likewise failed to raise any objection to the testimony. Although Coastal's tenth issue complains only of the admission of the 1977 memo, Coastal buttresses this alleged error with the additional error of allowing testimony by Salinas that was equally as objectionable by Coastal's reasoning. Salinas's testimony that his ancestors were "insulted" by the memo and that he was "infuriated" by it appears just as prejudicial as, if not more prejudicial than, the memo's description of the original landowners as "illiterate Mexicans," language which could conceivably be an accurate, though potentially prejudicial, description. We agree that Salinas's testimony magnified whatever prejudicial danger the memo presented, but we conclude that this heightened threat of unfair prejudice should not be considered in the rule 403 balancing test because Salinas's testimony was not objected to at trial. Any error related to Salinas's testimony was not preserved for appellate review. See TEX.R.APP. P. 33.1(a).
Coastal also argues that the danger of the memo having a prejudicial effect was increased by appellees' closing argument. Counsel for appellees argued that the memo "shows [Coastal's] attitude." He characterized Coastal as "this $10 billion corporation that didn't care enough to bring in the person that actually wrote the memo or received the memo so they can tell you what they really meant. Why are they referring to . . . illiterate Mexicans?"
As with Salinas's testimony, Coastal made no objections to counsel's closing argument. Coastal has not raised improper jury argument as a separate issue on appeal. Instead, it appeals only the admission of the 1977 memo and has attempted to demonstrate the memo's prejudicial effect by referencing counsel's closing argument.
Although we firmly believe that appeals to racial or ethnic biases are contemptible practices and are unfairly prejudicial, we cannot conclude that the closing argument made by appellees' counsel crossed into this forbidden realm. Instead, we hold that the closing argument by appellees' counsel did not increase the danger of unfair prejudice presented by the memo. Our review of the trial court's rule 403 balancing test is therefore not influenced by the appellees' closing argument.
*325 In the cases cited by Coastal, the improper arguments made by counsel were unmistakably designed to gain courtroom advantage by capitalizing on racial or ethnic biases.[6] They were not mere references to race or ethnicity; they were suggestions that the case be decided based on improper considerations.[7] In contrast, appellees' closing argument did not ask the jury to decide the case based on racial or ethnic biases; it recapped the evidence and responded to the calls for ethnic unity made by Coastal during its closing argument. The following excerpts are the most notable portions of Coastal's closing argument:
I came up here to talk to you about one thing. I came up here to talk to you about a departmental memo that referred to the term "illiterate Mexican." You heard Mr. Salinas testify that he was offended by the term illiterate Mexican. I'm sure some of you may have been offended by the term illiterate Mexican. I want to tell you that I'm offended by the term illiterate Mexican . . . We all know that our ancestors, our pioneering ancestors, were people that were more about the land and not people of the letter. The reason this came about is because this term was used and this term was offensive, but way back then our people knew the land. Our people knew things that pertained to the land. Our people knew cattle. Our people knew the game and the wildlife. Our people knew farming. Our people knew ranching. Nobody cared to read or write. That wasn't an insult. That's just the way it was. We survived. And how did we survive? We survived through knowing the land, through using the land. That's how we were able to overcome . . . And 200 years ago, ladies and gentleman, I would almost guarantee you that 80 percent of the gringos were illiterate . . . Along with their lawyers, the Plaintiffs have been enriched in this case. "Nadie esta en la calle." Nobody is in the street, not the lawyers, not the Plaintiffs. . . I am proud to be a Mexican American. I am proud to come from Mexican ancestry. That ancestry settled this country. That ancestry fought. That ancestry was courageous. And because of that ancestry, I'm here and a lot of us are here today.
*326 According to this Court's tally, counsel for Coastal used the term "our people" no less than six times and the term "we" (meaning Mexican Americans) at least four times. Counsel referenced and relied upon his common Hispanic "ancestry" throughout his argument, going so far as to use a Spanish epithet to describe Anglos (i.e., "gringos"). In sum, Coastal's closing argument was ostensibly designed to align the jury to Coastal's counsel based on a shared Hispanic heritage. But as Coastal acknowledged in its appellate brief, "you can't appeal to jurors for ethnic unity based on a shared Hispanic heritage." See Guerrero, 800 S.W.2d at 862-63.
According to Coastal, its closing argument was necessary to mitigate the prejudicial effect of the 1977 memo. We disagree. An objection to Salinas's testimony would have markedly offset the prejudicial danger of the memo rather than adding to it, but no such objection was made. Instead, Coastal attempted to use the jury's Hispanic heritage to its advantage by having its Hispanic counsel call for ethnic unity during closing argument.
In sum, we find that Coastal brings its tenth issue with unclean hands, for it is guilty of the very wrong of which it complains. Although we are not influenced by any theories such as "opening the door" or "estoppel," we find it noteworthy that appellees' closing argument was made in express response to the objectionable portions of Coastal's closing argument. Our disposition of this issue, however, hinges not on Coastal's calls for ethnic unity but on our inability to conclude, based on the facts of this case, that the trial court's admission of the 1977 memo amounted to an abuse of discretion. The trial court balanced the probative value of the memo against the danger of unfair prejudice and concluded that the balance favored admission of the memo. We have reached the same conclusion, and in disposing of this issue, we note that even if we had not reached the same conclusion, we would not necessarily be able to find an abuse of discretion. Buller, 806 S.W.2d at 226 (stating that appellate court cannot reverse trial court's ruling for abuse of discretion merely because it may disagree with that decision). Coastal's tenth issue is overruled.
VII. Plea in Abatement
In its eleventh issue, Coastal contends that the trial court erred by failing to abate this suit in favor of an earlier-filed suit. According to Coastal, the claims asserted by appellees in this case are identical to the claims in two earlier suits filed in Hidalgo County by essentially the same parties. For this reason, Coastal moved to abate the present suit in favor of the first-filed of the earlier suits, but the trial court denied Coastal's plea in abatement.
Abatement of a lawsuit due to the pendency of a prior suit is based on the principles of comity, convenience, and the necessity for an orderly procedure in the trial of contested issues. Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex.1988). When an inherent interrelation of the subject matter exists in two pending lawsuits, a plea in abatement in the second action must be granted. Id. at 247. It is not required that the exact issues and all the parties be included in the first action before the second is filed, provided that the claim in the first suit may be amended to bring in all necessary and proper parties and issues. Id. In determining whether an inherent interrelationship exists, courts should be guided by the rule governing persons to be joined if feasible and the compulsory counterclaim rule. Id. (citing TEX.R. CIV. P. 39 (joinder of parties), 97(a) (compulsory counterclaims)).
*327 This lawsuit was filed in 1997 in the 206th District Court of Hidalgo County by Garza Energy Trust and members of the Garza and Salinas families, two branches of the same family tree. Previously, in 1988, the Garza Energy Trust and members of the Garza family had filed claims in the 370th District Court of Hidalgo County ("Garza I") against Coastal and over twenty other defendants,[8] and in 1995, the Salinas plaintiffs filed claims in the 93rd District Court of Hidalgo County ("Salinas") against Coastal and over thirty other defendants.[9]
The three lawsuits are similar in some respects, though the earlier-filed suits clearly involved more defendants than the latter suit. Each lawsuit involves (1) Share 13, (2) mineral leases of Share 13 executed between appellees and Coastal, (3) claims for breach of the implied covenants to protect against drainage and to develop the leasehold, and (4) drainage of gas and gas condensate from Share 13 because of fracture treatments on wells located on adjoining tracts of land. Garza I differs from the other two suits because it involves a title dispute over Share 15.
Coastal contends that this lawsuit ("Garza II") should have been abated in favor of Garza I because it involves the same parties and the same controversy. According to Coastal, appellees filed Garza II in the 206th District Court so they could have a friendlier forum than the 370th District Court. On December 9, 1996, the 370th District Court signed a summary judgment against the Garza I plaintiffs on their title claims to Share 15. The trial court then severed the title claims, rendering the summary judgment order final and appealable, and ordered the remaining claims abated until "after all appeals" of the summary judgment.[10]
Coastal alleges that the trial court erred by denying abatement of Garza II because appellees have "conceded that. . . [the] requirements [for abatement] have been or could be satisfied." This statement is unsupported by the record. In fact, the opposite is true: Appellees have consistently argued that abatement of Garza II was unnecessary and improper because the claims at issue in Garza I are different from the claims asserted in Garza II. We agree with appellees on this point.
The Garza I suit complained about drainage caused by Coastal's fracture treatment on a well located on Share 15. In contrast, the Garza II suit complained about drainage caused by Coastal's fracture treatment on a well located on Share 12. Not only do the two cases involve entirely different incidents of drainage, different tracts of land, different wells, and different damages, the drainage in each suit took place at very different times. The Garza I drainage allegedly began prior to 1988, whereas the Garza II drainage did not begin until 1996, when Coastal fraced the Coastal Fee No. 1 well located on Share 12.
This leaves the failure-to-develop claims. Each of these claims involved Share 13, and their allegations appear to be very similar: Coastal unreasonably delayed its development of the leasehold. Although the claims are hardly distinguishable, we note that Garza II resolved the failure-to-develop *328 controversy only from 1993 to present. The Garza II jury was asked whether "Defendants failed to reasonably develop the Salinas Lease after production was obtained after 1993." In contrast, Garza I sought damages for Coastal's failure to develop beginning in 1980. Thus, Garza II did not resolve the failure-to-develop issue raised by Garza I but actually resolved the issue as it unfolded years after Garza I was filed.
Because we conclude that the Garza I and Garza II claims are different, we next consider whether there is a inherent interrelation of the subject matter of the suits by reference to the compulsory counterclaim rule. See id. at 247. Texas Rule of Civil Procedure 97(a) dictates that a pleading shall assert a counterclaim if it meets six elements: (1) it is within the jurisdiction of the court; (2) it is not at the time of filing the answer the subject of a pending action; (3) the action is mature and owned by the pleader at the time of filing the answer; (4) it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim; (5) it is against an opposing party in the same capacity; and (6) it does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. TEX.R. CIV. P. 97(a). The Garza II claims do not meet the third prong of the compulsory counterclaim rule: they were not mature at the time of filing the answer because the drainage had not yet occurred and the damages sought for failure to develop (from 1993 forward) had not yet been incurred. See Ingersoll-Rand Co. v. Valero Energy Corp., 997 S.W.2d 203, 207 (Tex.1999) ("A claim is mature when it has accrued."). Accordingly, we conclude that there is no inherent interrelation of the subject matter of the suits.
The duty to abate a lawsuit in favor of a pending prior proceeding arises as a consequence of the dominant jurisdiction rule, under which the court of earliest filing ascends to a position of dominance over all other courts of later filing. See Miles v. Ford Motor Co., 914 S.W.2d 135, 138 (Tex.1995). There are three exceptions to the rule: (1) where a party has engaged in inequitable conduct that estops him or her from asserting prior active jurisdiction; (2) where there is a lack of persons to be joined if feasible, or the power to bring them before the court; and (3) where there is a lack of intent to prosecute the first proceeding. Id. Although we conclude that there is no inherent interrelation of the subject matter of the suits and, therefore, no duty to abate Garza II in favor of Garza I, we think the prolonged abatement of Garza I evidences a lack of intent to prosecute. This is especially true because Garza I was abated, on motion of the Garza I plaintiffs, until "after all appeals." "All appeals" ended on November 12, 1999, when the supreme court denied a motion for rehearing on a petition for discretionary review of this Court's judgment affirming the trial court's summary judgment against the Garza I plaintiffs.
The trial court did not err in denying Coastal's plea in abatement. We overrule Coastal's eleventh issue.
VIII. Repudiation Instruction
In its twelfth issue, Coastal asserts that the trial court improperly refused to submit a jury instruction on its repudiation defense. Coastal argues that it presented evidence that appellees repudiated the leases on Share 13 from 1995 to 1997 by seeking a declaration in Garza I that the leases had terminated. See NRG Exploration v. Rauch, 671 S.W.2d 649, 652 (Tex.App.-Austin 1984, writ ref'd n.r.e.) ("A suit brought by a lessor to have the *329 lease terminated constitutes a repudiation."). According to Coastal, appellees' repudiation of the leases excused it from its contractual obligations to develop the leasehold, an issue which should have been submitted to the jury. See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 756 (Tex.2003) ("repudiation is often a fact question"). As the supreme court stated in Ridge Oil:
The law is well-settled in Texas that "lessors who . . . wrongfully repudiate the lessees' title by unqualified notice that the leases are forfeited or have terminated cannot complain if the latter suspend operations under the contract pending a determination of the controversy and will not be allowed to profit by their own wrong." A lessor's repudiation of a lease relieves the lessee "from any obligation to conduct any operations, drilling, re-working, or otherwise, on said land in order to maintain the lease in force pending the judicial determination of the controversy . . . over the validity of the lease."
Ridge Oil Co. v. Guinn Invs., Inc., 148 S.W.3d 143, 157 (Tex.2004) (footnotes omitted).
Appellees argue that repudiation is a variation of promissory estoppel, a theory which requires a showing of detrimental reliance. See Atl. Richfield Co. v. Hilton, 437 S.W.2d 347, 353-55 (Tex.Civ.App.-Tyler 1969, writ denied n.r.e.). According to appellees, Coastal produced no evidence to show that it relied on the allegations of Garza I to the effect that the leases had terminated, and thus, a jury instruction on repudiation was not required as a matter of law. See TEX.R. CIV. P. 278 (stating that courts shall submit questions raised by written pleadings and evidence). In response, Coastal argues that there is no requirement of detrimental reliance for a defense based on repudiation.
We do not necessarily agree that detrimental reliance must be shown to prove the defense of repudiation, but the supreme court's statement in Ridge Oil specifies that any suspension in development of the leasehold must be related to the "judicial determination of the controversy." See Ridge Oil, 148 S.W.3d at 157. Coastal produced no evidence at trial to prove that its development of Share 13 was delayed by the "judicial determination of the controversy." In fact, the evidence shows the opposite: Coastal continued to develop Share 13 after Garza I was filed and increased development substantially after Garza II was filed. Because Coastal failed to produce any evidence showing that its delay in developing Share 13 was related to appellees' alleged repudiation, the trial court did not err by refusing to instruct the jury on repudiation. See TEX.R. CIV. P. 278. Coastal's twelfth issue is overruled.
IX. Attorneys' Fees
Coastal's thirteenth issue argues that appellees' award of attorneys' fees must be reversed and remanded based on their expert's admission that he could have, but failed to, segregate attorneys' fees between recoverable and unrecoverable claims.
As Coastal points out, appellees cannot recover attorneys' fees for either their trespass claim or their claim for breach of the implied covenant to market, for which the jury awarded no damages. See Green Int'l v. Solis, 951 S.W.2d 384, 390 (Tex.1997) (holding that breach-of-contract claimant was not entitled to attorney's fees because jury awarded zero damages); Z.A.O., Inc. v. Yarbrough Drive Ctr. Joint Venture, 50 S.W.3d 531, 550 (Tex.App.-El Paso 2001, no pet.) ("attorney's fees are not recoverable in tort actions"). To ensure Coastal was not charged for attorneys' fees which are unrecoverable, *330 appellees were required to segregate their attorneys' fees between claims on which fees could be recovered and those on which fees could not be recovered. See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex.1991) ("In order to show the reasonableness and necessity of attorney's fees, the plaintiff is required to show that the fees were incurred while suing the defendant sought to be charged with the fees on a claim which allows recovery of such fees."). A recognized exception to this duty to segregate arises when the attorneys' fees are incurred in connection with claims arising out of the same transaction and are so interrelated that their "prosecution or defense entails proof or denial of essentially the same facts." Id. at 11. Therefore, when the causes of action involved in the suit are dependent upon the same set of facts or circumstances and thus are "intertwined to the point of being inseparable," the party suing for attorneys' fees may recover the entire amount covering all claims. Id.
Attorney Michael Jones, appellees' expert on attorneys' fees, testified at trial that it was "not impossible" to segregate attorneys' fees in this case:
Q. [By Coastal's counsel] Mr. Jones, is it your testimony that it is impossible for you to segregate the amount of attorney's fees that you have spent or incurred in prosecuting the claims for bad faith pooling?
A. No, I could probably I could probably get to those. I was thinking more about the subsurface trespass and implied covenant to protect. Those are kind of inextricable. But perhaps the bad faith pooling.
Q. And is it your testimony that you're unable to segregate the amount of attorney's fees that you have incurred in prosecuting the claims for subsurface trespass from the other claims in this lawsuit?
A. Very few things are impossible and I'm not saying that's impossible, but the amount of time and the effort would be and a lot of judgment calls and some people would say, yeah, that should be excluded and others would say, no, it shouldn't so
Q. So it is not impossible, it is just a time-consuming process?
A. Yes, sir.
After reviewing the record, we conclude that attorneys' fees incurred on appellees' claim for breach of the implied covenant to market should have been segregated from the fees incurred on the other claims for which attorneys' fees were recoverable. We further conclude that appellees' trespass claim and claim for breach of the implied covenant to protect against drainage are inseparably intertwined because they involved proof of essentially the same facts (i.e., Coastal's drainage of Share 13 gas and gas condensate by hydraulic fracture stimulation treatment of a well located on Share 12). Accordingly, the attorneys' fees incurred on appellees' trespass claim were not subject to the segregation rule. See id.
We sustain Coastal's twelfth issue in part and remand the cause to the trial court for a proper determination of attorneys' fees. See Stewart Title, 822 S.W.2d at 11. The trial court is instructed to segregate attorneys' fees incurred on appellees' claim for breach of the implied covenant to market from the attorneys' fees incurred on appellees' other claims.
X. Prejudgment Interest
In its fourteenth issue, Coastal argues that this Court should modify the judgment to reflect the accurate interest rate under House Bill 4, which reduced the post-judgment interest rate from ten percent *331 per year to the prime rate or, if the prime rate is lower than five percent, to five percent per year. See Act of June 2, 2003, 78th Leg., R.S., H.B. 4, § 6.01. According to House Bill 4, the change applies to all judgments that are "subject to appeal on or after the date of this Act." Act of June 2, 2003, 78th Leg., R.S., H.B. 4, § 6.04. Coastal argues that the judgment in this case was "subject to appeal" on September 1, 2003, and thus, the judgment is inaccurate as to the post-judgment rate.
The final judgment in this case was signed on December 17, 2001. As this Court has explained previously, the language "subject to appeal" used by House Bill 4 means that the judgment "fully and finally disposes of all parties and all issues before the trial court and therefore is capable of being appealed." In re Kajima Int'l, Inc., 139 S.W.3d 107, 117 (Tex.App.-Corpus Christi 2004, orig. proceeding). The judgment in this case was neither "signed" nor "subject to appeal" on or after the effective date of House Bill 4. In fact, the appeal was pending in this Court on the effective date of House Bill 4. Consequently, the post-judgment interest rate prescribed by House Bill 4 is inapplicable. Coastal's fourteenth issue is overruled.
XI. Conclusion
We reverse the trial court's judgment regarding attorneys' fees and remand that issue to the trial court for further proceedings consistent with this opinion. In all other respects, the judgment is affirmed.
NOTES
[1] Mission Resources, Inc. F/K/A Bellwether Exploration Co. was also a defendant in the suit. It filed a notice of appeal but did not file a brief or appear for oral argument. We dismiss its appeal for want of prosecution. See TEX.R.APP. P. 38.8(a).
[2] We cannot conclude that Pentagon Enters. actually decided the issue of standing to sue because its disposition of the case is inconsistent with the supreme court's conclusion that standing to sue is an issue of subject matter jurisdiction. See Tex. Ass'n of Bus., 852 S.W.2d at 443-46. If a plaintiff lacks standing to sue, the court must dismiss the case for lack of jurisdiction. See Delp, 987 S.W.2d at 882. It cannot issue a take-nothing judgment. See id. In Pentagon Enters., the court affirmed a judgment non obstante veredicto by which the plaintiff was ordered to take nothing by its claim. Pentagon Enters., 540 S.W.2d at 478. This is inconsistent with the case being decided on the basis of standing to sue. The more plausible explanation for the disposition is that the court of appeals affirmed the take-nothing judgment because, as a matter of law, the plaintiff could not recover damages for a trespass that occurred before it had any interest in the property.
[3] There are at least four different ways to measure the distance of a hydraulic fracture. The first, referred to in this opinion simply as the "fracture length," is the "fracture half length," which refers to the length of one fracture wing from the wellbore to the tip. The second distance is known as the "hydraulic length." It is the portion of the "fracture half length" that is occupied by the liquid initially used to create the fracture. The third measure of distance is the "propped length," which is the portion of the fracture containing "proppant," the material (often a sand mixture) used to prop open the fracture. The fourth measure is the "effective length." It is the portion of the fracture that actually contributes to the flow of oil and gas.
[4] Section 41.008 provides in relevant part:
This section does not apply to a cause of action against a defendant from whom a plaintiff seeks recovery of exemplary damages based on conduct described as a felony in the . . . Penal Code if . . . the conduct was committed knowingly or intentionally:
(13) Chapter 31 (theft) the punishment level for which is a felony of the third degree or higher;
See TEX. CIV. PRAC. & REM.CODE ANN. § 41.008(c)(13).
[5] At trial, appellees introduced into evidence a judgment entered in 1982 on an interpleader suit filed by Coastal, presumably in response to the 1977 memo. The judgment determined, inter alia, ownership of the royalty interests to Share 13's mineral estate.
[6] In Haywood, for example, counsel argued as follows:
[W]hy then didn't they bring the superintendent (of Shaw's garage) or bring some white fellow that you could see and know was telling the truth? * * * It looks to me like it would have been awful easy to have brought some white fellows that had their cars worked on or somebody that you could believe. Is that the way you would do it? That's common sense. I wouldn't fly a couple of those yellow nigs in here and expect the jury to believe that kind of stuff.
Haywood, 153 Tex. at 244, 266 S.W.2d at 858. In holding this argument amounted to reversible error, the supreme court concluded that such arguments could not be made "without implanting in the minds of the jurors the deepest and most ineradicable type of prejudice." Id at 246, 266 S.W.2d 856.
[7] For instance, in Jones, the court concluded that counsel's argument "was an appeal to racial and religious prejudice in language clear and strong. Moreover, it tied racial and religious prejudice in with the charge that Dr. Frieburg would falsify [testimony] for money." See Jones, 361 S.W.2d at 727. Similarly, in Berry, counsel's argument suggested that the jury decide the case based on the plaintiff's nationality: "[Y]ou see, it just so happens that in this country you can't come into court and reach your hands into the pockets of an American citizen and take his property from him not for an alien. . . ." Berry, 348 S.W.2d at 168; see also Basanez, 132 S.W.2d at 433 (holding that counsel's argument "sought a verdict upon the premise that appellants were not citizens of the United States, as were the jury and the appellee").
[8] Garza I is styled Juan Lino Garza, et al. v. Elizabeth H. Coates Maddux, et al., No. C-035-88-G.
[9] Salinas is styled Amelia Garza de Salinas, et al. v. Elizabeth H. Coates Maddux, et al., No. C-6239-95-B.
[10] This Court affirmed the summary judgment in Garza v. Maddux, 988 S.W.2d 280, 291 (Tex.App.-Corpus Christi 1999, pet. denied). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1380052/ | 27 Cal. 2d 232 (1945)
THE GOSPEL ARMY (a Corporation), Respondent,
v.
CITY OF LOS ANGELES et al., Appellants.
L. A. No. 18808.
Supreme Court of California. In Bank.
Nov. 20, 1945.
Ray L. Chesebro, City Attorney, Frederick von Schrader, Assistant City Attorney, and Wilbur Bassett, Deputy City Attorney, for Appellants.
Robert H. Wallis for Respondent.
TRAYNOR, J.
Certain ordinances of the City of Los Angeles regulate transactions in secondhand goods and solicitations for charitable purposes. Plaintiff, an incorporated religious organization, brought this suit to enjoin the enforcement of these ordinances as applied to it on the ground they abridged its religious liberty in violation of the Constitution of the United States and the Constitution of California. The trial court found that plaintiff is "engaged exclusively in the promulgation, by literature and word of mouth, of its religious beliefs, by and through its auxiliaries, and in the procuring of donations in the form of money and articles of value in the prosecution and furtherance of its religious activities." It enjoined defendants from "further interference and threatened acts, which would in any way prevent the free exercise of the religious liberty and freedom of worship of the said Plaintiff." Defendants appeal.
The finding of the trial court must be viewed in the light of the evidence, which is undisputed. Religious services at plaintiff's mission are conducted by a minister ordained by it whose compensation depends entirely on solicited contributions. Plaintiff engages in missionary work, distributes the New Testament and religious tracts free to the public, and gives assistance to those in need. It collects salvage from the public to obtain funds to propagate its religious doctrines and to provide aid to the poor. Some of the salvage is sold in a secondhand goods store operated by plaintiff; some, such as clothing, is distributed to the poor; goods not suitable for *234 further use go directly to a salvage mill. The salvage is collected by plaintiff's "industrial solicitors" in four of plaintiff's trucks. The money received from the sale of secondhand goods in plaintiff's store is used to meet the cost of operating the store, including the compensation paid to the manager and the solicitors. Whatever remains is paid into plaintiff's treasury. Ninety per cent of the money received for the mill material goes to the drivers of the trucks; the remainder is turned over to the manager of the store for plaintiff's treasury.
Other employees of plaintiff solicit money from the public. Solicitors make the object of their mission known by showing to prospective donors a printed card stating that "the bearer whose signature is herein attached for identification is duly authorized to solicit money, food, clothing or any other useful articles that will help the Gospel Army to carry on their rereligious home missionary and evangelical work among the poor and under- privileged." About fifty per cent of the funds raised is absorbed by the cost of soliciting, including the compensation of the solicitors, which is paid on a percentage basis. The funds remaining are used to pay the cost of furnishing tracts and religious literature free to the public and to supply food, lodging, clothing and car fare to the poor.
[1] Section 24.01 of the Los Angeles Municipal Code defines a "junk dealer" as "a person having a fixed place of business in this City who goes from house to house or from place to place, gathering, collecting, buying, selling or otherwise dealing in any old rags, sacks, bottles, cans, paper, metal or other articles commonly known as junk." A "secondhand dealer" is "a person engaging in, conducting, managing, or carrying on the business of buying, selling or otherwise dealing in secondhand goods, wares or merchandise." Junk dealers and secondhand dealers must obtain a permit to engage in business from defendant city's Board of Police Commissioners. The following "Requisites of Permits" are set forth in subsection (a) of Section 24.01: "(1) Persons desiring to obtain a permit to conduct, manage or deal in any business mentioned in subsection 'a' of this Section shall file an application in writing with the Board specifying by street and number the place where such business is proposed to be conducted or carried on; junk collectors having no fixed place of business shall specify in such application their residence by street number. The application shall be signed by the applicant and shall contain his residence address. (2) Before receiving an *235 application for any permit the Board shall require the payment of such fees as are hereafter specified. (3) Upon receipt of such application the Board shall cause to be investigated the business of the applicant and location at which applicant proposes to engage in business as specified in said application. Thereafter the Board may issue a permit to the applicant which shall be effective for the remaining portion of the current year. (4) Persons operating under the provisions of this Section shall be required to secure an annual renewal of such permit commencing January 1st of the succeeding year in which such permit was granted. (5) No person holding a permit to conduct, manage, carry on or deal in any business mentioned in subsection 'a' of this Section shall buy, sell or otherwise deal in secondhand jewelry, precious stones, precious metals (including old gold), watches or other similar secondhand merchandise without first applying for and receiving a special permit therefor from the Board in the manner provided in this Section for securing ordinary permits." The fees prescribed are set forth in subsection (d): "(1) Applications for permits other than provided for in this subsection shall pay the sum provided in Section 22.10; (2) Applications for special permits, the sum of $50.00; (3) Applications for annual permit renewal, the sum of $25.00; (4) Applications for changing location of place of business for which a permit has been granted, the sum of $10.00; (5) Change of ownership, the sum of $10.00, to be applicable only in cases where the new owner is already operating under a permit issued pursuant to provisions of this Section." Subsection (e) provides: "(1) The Board shall not grant any permit provided for in this Section to persons who fail, refuse or neglect to comply with the laws and ordinances relating to and regulating the business for which such permit is sought. (2) Persons applying for or obtaining permits under the provisions of this Section shall comply with the provisions of this Section." Subsection (f) provides for the revocation of permits: "Any permit issued under the provisions of this Section may be revoked or suspended upon the grounds provided for in this Section: (1) ... If persons holding permits under the provisions of this Section shall violate any of the provisions of this Section or any provisions of any other ordinance, or any law relating to or regulating any such business, or shall conduct or carry on such business in an unlawful *236 manner, the Board, in addition to any other penalties provided by this Code, shall revoke such permit issued to such person; (2) ... Permits granted pursuant to this Section shall be revoked only in the manner provided in Section 22.02 of this Code; (3) ... No permit shall be granted to any person to conduct, manage, carry on or deal in any business mentioned in subsection 'a' of this Section whose permit has been revoked by the Board until six (6) months have elapsed after such revocation." Holders of permits must keep a complete record of all goods purchased or received by them, which is open to inspection by any member of the police department. They must also file with the Chief of Police daily reports on prescribed forms of the goods purchased or received during the preceding day, describing the article and specifying the hour of the day when it was acquired, the name and address of the party from whom it was acquired, the height, age, sex, complexion, and other characteristics of that person. The hours of business are prescribed. Secondhand dealers must keep the articles received by them 21 days before selling them. The period prescribed for junk dealers is three days. With respect to certain articles classed as scrap, junk dealers are exempted from the provisions requiring the keeping of records, the filing of reports, and the keeping of articles for three days. There are comparable exemptions for secondhand dealers. If a claim is made that property in the hands of the holder of a permit is stolen, the board, in the event no court action is pending, may determine whether or not the property was stolen from the claimant and order its return if it was. If such an order is disobeyed, the board may revoke the permit. The foregoing provisions are reasonable, and the standards prescribed are adequate. (In re Holmes, 187 Cal. 640, 646 [203 P. 398]; Co-operative Junk Co. v. Board of Police Commissioners, 38 Cal. App. 676, 679 [177 P. 308]; Zemansky v. Board of Police Commissioners, 61 Cal. App. 2d 450, 453-455 [143 P.2d 361]; see 30 A.L.R. 1427; 88 A.L.R. 970, 972; 7 Cal.Jur. 10-yr. Supp. 366; 33 Am.Jur. 336-339, 355; 47 Am.Jur. 555.)
[2] Regulation of the business of junk dealers and secondhand dealers is designed to protect the public interest by preventing such dealers from becoming outlets for stolen goods. No question arises as to the constitutionality of such regulation when the business regulated is not carried on by a religious organization. (Lewis v. Quinn, 217 Cal. 410, 413 [19 *237 P.2d 236]; In re Holmes, supra; Co-operative Junk Co. v. Board of Police Commissioners, supra; Zemansky v. Board of Police Commissioners, supra; see 30 A.L.R. 1427; 88 A.L.R. 970, 972; 7 Cal.Jur. 10-yr. Supp. 366; 33 Am.Jur. 336-339, 355; 47 Am.Jur. 554.) Business carried on by a religious organization cannot be differentiated, for the reasons set forth below with respect to the validity of the regulation of plaintiff's solicitation of funds for charity.
[3] Sections 44.01 to 44.19 of the Los Angeles Municipal Code regulate solicitations of funds for charity. The term "charitable" includes "Philanthropic, social service, benevolent, patriotic, either actual or purported." The term "contribution" includes "alms, food, clothing, money, property or donations under the guise of a loan of money or property." ( 44.01.) Certain provisions, applicable to solicitors of charitable contributions in general, are designed primarily to secure information that will assist the public in judging the nature and worthiness of the cause for which the solicitation is made and to insure the presentation of such information to prospective donors. We find nothing unduly burdensome or unreasonable in any of these provisions. Section 44.05, which is quoted in the margin, [fn. *] requires any person who solicits for any charitable purpose to file with the Department *238 of Social Service a notice of intention to solicit ten days before the solicitation. This notice must contain, among other things, information regarding the purpose, character, method, and estimated expenses of the solicitation, the need for the contribution to be solicited, the proposed use of the solicited funds, the amount that will remain available for charitable purposes over expenses, the amount received from solicitations in the preceding calendar year, the expenses of such solicitations, and the amount that remained available for charitable purposes. The department may investigate the statements in the notice of intention. ( 44.03(a).) Information cards setting forth the facts in the notice of intention and such other facts as in the opinion of the Board of Social Service Commissioners will be of assistance to the public in determining the nature and worthiness of the solicitation (Section 44.06 quoted in the margin [fn. ]) are issued by the Department of Social Services for four cents per card. ( 44.03(e).) The information *239 cards, which are in effect permits to solicit, are issued automatically upon the filing of the required information and the payment of the four cents for each card. The department is given no authority to withhold such cards when these requirements are met, and we cannot assume that it will abuse its authority in order to withhold them. As this court said in In re Holmes, 187 Cal. 640, 647 [203 P. 398], quoting from In re Flaherty, 105 Cal. 558, 562 [38 P. 981, 27 L.R.A. 529] and Gaylord v. City of Pasadena, 175 Cal. 433, 437 [166 P. 348]: " 'Laws are not made upon the theory of the total depravity of those who are elected to administer them; and the presumption is that municipal officers will not use these small powers villainously or for purposes of oppression or mischief.' If this petitioner had applied for a permit under the requirement of the section of the charter above quoted, and been either whimsically or arbitrarily refused such permit, he might then, as is shown in Gaylord v. City of Pasadena, supra, have had recourse to the courts for relief from such unjust and arbitrary action."
Each solicitor must exhibit an information card to the prospective donor and must not make any misstatements. A solicitor must also carry written authorization from the association that he represents. The board may recall the cards and amend them if it receives additional information showing that any statements thereon are incorrect. The board may not disallow a proposed solicitation but it may investigate the statements in the notice of intention and the methods of making or conducting the solicitation; it may inspect the records of the person in charge of the solicitation and the association for whom it is made, and it may give such publicity to its findings as it deems best to reach the general public and persons interested. The association for whom the solicitation is made must maintain an accounting system recording the entry of all donations and disbursements. ( 44.08.)
More restrictive provisions are applicable to promoters. A promoter is "any person who for pecuniary compensation or consideration received, or to be received, solicits or is engaged in the business of or holds himself out to the public as engaged in the business of soliciting contributions for or on behalf of any other person or any charitable association, corporation or institution, or conducts, manages or carries on ... any drive or campaign for any such purpose; provided, however, that *240 pecuniary compensation or consideration as used herein, shall include, but shall not be limited to, participation on a percentage basis in any fund solicited, or raised, for or on behalf of any other person, firm, association or corporation; provided, further, that no person who is a bona fide paid officer or employee of a social service agency endorsed by the Board of Social Service Commissioners, shall be considered a promoter within the meaning of this article." ( 44.01.) The conditions that a social agency must meet to be endorsed by the Social Service Commission and the standards that govern the commission are set forth in a separate ordinance, the relevant part of which is quoted in the margin. [fn. *] In our opinion *241 the classification effected by this ordinance is reasonable and the standards provided are adequate.
A promoter must apply for a promoter's license. The application must set forth the applicant's qualifications and show that he is of good character and reputation. Persons working as solicitors for compensation under the promoter must be registered as solicitors. The board grants a promoter's license if it is satisfied that the applicant is of good character and reputation, is equal to the financial responsibility incident to the proposed solicitation and intends to conduct his business as promoter fairly and honestly. Similarly, before registering a solicitor, the board must be satisfied of his good character and reputation. A license fee of $25 is required for a promoter's license. A promoter must also file a $2,000 bond with the board to insure contributors against loss through theft. Solicitors must file a $500 bond and pay a registration fee of $1.00. The board may revoke a promoter's license, after a hearing, for any "unfair, unjust, inequitable or fraudulent" *242 act of a promoter or his employees, or agents in making a solicitation or conducting the business of promoter. Any ground that would have led to denial of the license is also ground for its revocation.
Solicitations upon premises owned or occupied by the association upon whose behalf the solicitation is made, and the soliciting of funds solely from members of the soliciting association are not subject to the provisions concerning promoters and solicitors or to certain other regulatory provisions of the ordinance. "Solicitations made solely for evangelical missionary or religious purposes" are also exempted. If, however, they are conducted in such a manner as in the opinion of the board may give the persons solicited or the public the impression that the purpose of the solicitation is in whole or in part charitable, the board may investigate the matter and give such publicity to its findings as it may deem best to advise the public of the facts. ( 44.16.)
[4] Plaintiff contends that since the practice of charity and the solicitation of funds for that purpose are part of its religious duties, the ordinances regulating the solicitation of charitable contributions cannot apply to plaintiff's solicitations without abridging its religious liberty in violation of the Constitution of the United States and the Constitution of California.
Religious liberty "embraces two concepts,--freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be." (Cantwell v. State of Connecticut, 310 U.S. 296, 303 [60 S. Ct. 900, 84 L. Ed. 1213, 128 A.L.R. 1352].) The constitutional guarantee protects the profession of a religious belief by word of mouth or in writing, the dissemination of the doctrines of a religious organization by preaching from the pulpits or other methods of evangelism, or the right to refuse to state beliefs against the dictates of one's conscience. (Murdock v. Pennsylvania, 319 U.S. 105, 109 [63 S. Ct. 870, 891, 87 L. Ed. 1292, 146 A.L.R. 81]; West Virginia v. Barnette, 319 U.S. 624, 642 [63 S. Ct. 1178, 87 L. Ed. 1628, 147 A.L.R. 674].) "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word of mouth or act their faith therein." (West Virginia v. Barnette, 319 U.S. 624, 642 [63 S. Ct. 1178, 87 L. Ed. 1628, 147 A.L.R. 674].) It does not follow, *243 however, that religious organizations enjoy unlimited freedom in carrying on all activities related to their religious program. As the United States Supreme Court declared in Murdock v. Pennsylvania, 319 U.S. 105, 109-110 [63 S. Ct. 870, 891, 87 L. Ed. 1292, 146 A.L.R. 81]: "we do not intimate or suggest ... that any conduct can be made a religious rite and by the zeal of the practitioners swept into the First Amendment. Reynolds v. United States, 98 U.S. 145, 161-167, 25 L. Ed. 244, and Davis v. Beason, 133 U.S. 333, 10 S. Ct. 299, 33 L. Ed. 637, denied any such claim to the practice of polygamy and bigamy. Other claims may well arise which deserve the same fate. We only hold that spreading one's religious beliefs or preaching the Gospel through distribution of religious literature and through personal visitations is an age-old type of evangelism with as high a claim to constitutional protection as the more orthodox types."
Many activities prompted by religious motives can hardly be differentiated from secular activities. If the applicability of government regulation turned on the religious motivation of activities, plausible motivations would multiply and in the end vitiate any regulation. "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. ... Where a restriction of the use of highways ... is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection. One would not be justified in ignoring the familiar red traffic light because he thought it his religious duty to disobey the municipal command or sought by that means to direct public attention to an announcement of his opinions." (Cox v. New Hampshire, 312 U.S. 569, 574 [61 S. Ct. 762, 85 L. Ed. 1049, 133 A.L.R. 1396].) In Prince v. Massachusetts, 321 U.S. 158 [64 S. Ct. 438, 88 L. Ed. 645], it was contended that religious liberty was abridged by the application of a statute regulating child labor to a guardian who permitted her minor ward to distribute religious literature on the streets at night. In vindicating the state's power to regulate in this way the dissemination of religious beliefs, the court declared: "The parent's conflict with the state over control of the child and his training is serious enough when only secular matters are concerned. *244 It becomes the more so when an element of religious conviction enters. Against these sacred private interests, basic in a democracy, stand the interests of society to protect the welfare of children and the state's assertion of authority to that end, made here in a manner conceded valid if only secular things were involved The last is no mere corporate concern of official authority. It is the interest of youth itself, and of the whole community, that children be both safeguarded from abuses and given opportunities for growing into free and independent well-developed men and citizens. Between contrary pulls of such weight, the safest and most objective recourse is to the lines already marked out, not precisely but for guides, in narrowing the no man's land where this battle has gone on ... the family itself is not beyond regulation in the public interest, as against a claim of religious liberty. Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244; Davis v. Beason, 133 U.S. 333, 10 S. Ct. 299, 33 L. Ed. 637. And neither rights of religion nor rights of parenthood are beyond limitation. Acting to guard the general interests in youth's well being, the state as parens patriae may restrict the parent's control by requiring school attendance, regulating or prohibiting the child's labor and in many other ways. Its authority is not nullified merely because the parent grounds his claim to control the child's course of conduct on religion or conscience. ... It is sufficient to show what indeed appellant hardly disputes, that the state has a wide range of power for limiting parental freedom and authority in things affecting the child's welfare; and that this includes, to some extent, matters of conscience and religious conviction."
Activities characteristic of the secular life of the community may properly be a concern of the community even though they are carried on by a religious organization. (See Prince v. Massachusetts, 321 U.S. 158, 165 [64 S. Ct. 438, 88 L. Ed. 645]; United States v. Ballard, 322 U.S. 78, 87 [64 S. Ct. 882, 88 L. Ed. 1148]; Murdock v. Pennsylvania, 319 U.S. 105, 109 [63 S. Ct. 870, 891, 87 L. Ed. 1292, 146 A.L.R. 81]; Chaplinsky v. New Hampshire, 315 U.S. 568, 571 [62 S. Ct. 766, 86 L. Ed. 1031]; Cox v. New Hampshire, 312 U.S. 569, 574 [61 S. Ct. 762, 85 L. Ed. 1049, 133 A.L.R. 1396]; Davis v. Beason, 133 U.S. 333, 342 [10 S. Ct. 299, 33 L. Ed. 637]; In re Dart, 172 Cal. 47, 56 [155 P. 63, Ann.Cas. 1917D 1127, L.R.A. 1916D 905]; Chrisman v. Culinary Workers' etc., 46 Cal. App. 2d 129, 132 [115 P.2d 553]; People v. Pierson, 176 N.Y. 201 [68 N.E. *245 243, 98 Am. St. Rep. 666, 63 L.R.A. 187]; City of St. Louis v. Hellscher, 295 Mo. 293 [242 S.W. 652]; Commonwealth v. Childs, 299 Mass. 367 [12 N.E.2d 814]; Commonwealth v. Green, 268 Mass. 585 [168 N.E. 101]; Commonwealth v. Plaisted, 148 Mass. 375 [19 N.E. 224, 12 Am. St. Rep. 566, 2 L.R.A. 142]; State v. White, 64 N.H. 48 [5 A. 828]; Stull v. Reber, 215 Pa. 156 [64 A. 419, 7 Ann.Cas. 415]; Matter of Frazee, 63 Mich. 396, 405 [30 N.W. 72, 6 Am. St. Rep. 310]; State v. Chenoweth, 163 Ind. 94, 99 [71 N.E. 197]; see, also, Zollman, Religious Liberty in the American Law, 17 Mich.L.Rev. 355, 456.) Religious organizations engage in various activities such as founding colonies, operating libraries, schools, wineries, hospitals, farms, industrial and other commercial enterprises. Conceivably they may engage in virtually any worldly activity, but it does not follow that they may do so as specially privileged groups, free of the regulations that others must observe. If they were given such freedom, the direct consequence of their activities would be a diminution of the state's power to protect the public health and safety and the general welfare. With that power so easily diminished there would soon cease to be that separation of church and state underlying the constitutional concept of religious liberty. (See Evans v. Selma Union High School Dist., 193 Cal. 54 [222 P. 801, 31 A.L.R. 1121]; Knowlton v. Baumhover, 182 Iowa 691 [166 N.W. 202, 5 A.L.R. 841]; People ex rel. Ring v. Board of Education, 245 Ill. 334 [92 N.E. 251, 19 Ann.Cas. 220, 29 L.R.A.N.S. 442]; Board of Education of Cincinnati v. Minor, 23 Ohio St. 211 [13 Am. St. Rep. 233]; Donahoe v. Richards, 38 Me. 379 [61 Am.Dec. 256].)
There is no doubt that plaintiff, like many religious organizations, regards the practice of charity as a religious duty. It is not exclusively a religious activity, however; many charitable activities spring from sources in the everyday life of the community unrelated to religion. The state itself has an active responsibility for the welfare of the poor, the aged, the sick, the unemployed, and the orphaned. There is a public interest in regulating the solicitation of funds for these purposes. The very worthiness of such purposes creates a risk that the charitable impulses of people may be taken advantage of by solicitors who would collect funds under false pretenses or retain for themselves an undue percentage of what they collected. Fraud in the solicitation of charitable contributions *246 can be most effectively controlled by measures such as the regulation in question requiring the presentation of information to enable the public to determine the nature and worthiness of the purpose for which the solicitation is made, and requiring proof of the good character and reputation of paid solicitors. In the words of Mr. Justice Shaw, speaking for a majority of the court in In re Dart, 172 Cal. 47, 56 [155 P. 63, Ann.Cas. 1917D 1127, L.R.A. 1916D 905]: "The occupation of soliciting contributions to charitable purposes is clearly so far subject to the police power, that it may be regulated by laws or ordinances providing for a reasonable supervision over the persons engaged therein, and for the application and use of the contributions received to the purposes intended, in order to prevent unscrupulous persons from obtaining money, or other things, under the pretense that they were to be applied to charity, and to prevent the wrongful diversion of such funds to other uses, or to secure them against waste. Measures reasonably tending to secure these ends are unquestionably valid." (See cases collected in 57 A.L.R. 516, 128 A.L.R. 1361.)
The religious organization in Cantwell v. Connecticut, supra, on which plaintiff relies, solicited funds, not for charitable purposes but for its own support. Under the statute there involved it was allowed to engage in such solicitation only if the licensing officer determined that its cause was a religious one and issued a certificate to that effect. It was held that the vesting of this power in an administrative official amounted to "censorship of religion as the means of determining its right to survive" since under the statute the official's judgment was decisive as to what constituted a religious cause. The ordinance involved in the present case specifically exempts solicitations for religious purposes only; its object is to regulate all solicitations for charitable purposes. The Board of Social Service Commissioners has no authority to appraise the nature or worthiness of a religious cause. In the Cantwell case the court recognized that even the solocitation of funds for the support of a religious organization is subject to reasonable regulation: "The general regulation, in the public interest, of solicitation, which does not involve any religious test and does not unreasonably obstruct or delay the collection of funds, is not open to any constitutional objection, even though the collection be for a religious purpose. Such regulation would not constitute a prohibited previous *247 restraint on the free exercise of religion or interpose an inadmissible obstacle to its exercise." (310 U.S. 296, 305.)
Thomas v. Collins, 323 U.S. 516 [65 S. Ct. 315, 89 L. Ed. 430], cited in support of plaintiff's contentions, "does not involve the solicitation of funds or property." (65 S. Ct. 315, 324.) The court there held that a state could not constitutionally require a paid union organizer to register with the Secretary of State before making a public speech inviting a nonunion worker specifically and nonunion workers in the audience generally to join the union. "We think a requirement that one must register before he undertakes to make a public speech to enlist support for a lawful movement is quite incompatible with the requirements of the First Amendment." (65 S. Ct. 315, 327.) The court was careful, however, to distinguish cases in which the speaker solicits funds from the public: "Once the speaker goes further, however, and engages in conduct which amounts to more than the right of free discussion comprehends, as when he undertakes the collection of funds or securing subscriptions, he enters a realm where a reasonable registration or identification requirement may be imposed. In that context such solicitation would be quite different from the solicitation involved here. It would be free speech plus conduct akin to the activities which were present, and which it was said the State might regulate, in Schneider v. Irvington, supra, 308 U.S. 147, 84 L. Ed. 155, 60 S. Ct. 146, and Cantwell v. Connecticut, 310 U.S. 296, 84 L. Ed. 1213, 60 S. Ct. 900, 128 A.L.R. 1452, both supra. That however must be done and the restriction applied, in such manner as not to intrude upon the rights of free speech and free assembly. In this case the separation was not maintained." In his concurring opinion in Thomas v. Collins Mr. Justice Jackson gives the following reasons for these variations in state power: "This wider range of power over pursuit of a calling than over speech-making is due to the different effects which the two have on interests which the state is empowered to protect. The modern state owes and attempts to perform a duty to protect the public from those who seek for one purpose or another to obtain its money. When one does so through the practice of a calling, the state may have an interest in shielding the public against the untrustworthy, the incompetent, or the irresponsible, or against unauthorized representation of agency. A usual method of performing this function is through a licensing system. *248"
"But it cannot be the duty, because it is not the right, of the state to protect the public against false doctrine. The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion. In this field every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us. West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628, 147 A.L.R. 674. Nor would I. Very many are the interests which the state may protect against the practice of an occupation, very few are those it may assume to protect against the practice of propagandizing by speech or press. These are thereby left great range of freedom."
[5a] The requirement that promoters and the solicitors working under them submit proof of their good character and reputation does not discriminate against plaintiff or other religious organizations or censor their religious beliefs, nor does the regulation vest arbitrary power in the administrative board in authorizing it to withhold a license if it is not satisfied that the applicant is of good character and reputation. Such a requirement is common in statutes regulating admission to professions and occupations involving duties of a fiduciary character. (In re Stepsay, 15 Cal. 2d 71 [98 P.2d 489]; Spears v. State Bar, 211 Cal. 183 [294 P. 697, 72 A.L.R. 923]; Leach v. Daugherty, 73 Cal. App. 83 [238 P. 160]; Riley v. Chambers, 181 Cal. 589, 593 [185 P. 855, 8 A.L.R. 418]; Ex parte McManus, 151 Cal. 331 [90 P. 702]; Ex parte Whitley, 144 Cal. 167 [77 P. 879, 1 Ann.Cas. 13]; Gundling v. Chicago, 177 U.S. 183, 187 [20 S. Ct. 633, 44 L. Ed. 725]; Graves v. Minnesota, 272 U.S. 425 [47 S. Ct. 122, 71 L. Ed. 331]; New York ex rel. Lieberman v. Van De Carr, 199 U.S. 552 [26 S. Ct. 144, 50 L. Ed. 305]; Douglas v. Noble, 261 U.S. 165 [43 S. Ct. 303, 67 L. Ed. 590]; see, also, 12 A.L.R. 1435, 1450; 54 A.L.R. 1104, 1112; 92 A.L.R. 400, 415; Rottschaefer, Constitutional Law, pp. 466-482.) The filing of a bond is also a common requirement in the regulation of occupations or activities involving the handling of entrusted funds. (Palmer v. Continental Casualty Co., 205 Cal. 34, 35 [269 P. 638]; Clark v. Patterson, 213 Cal. 4 [300 P. 967, 75 A.L.R. 1124]; Gundling v. Chicago, supra; People of the State of New York v. Perretta, 253 N.Y. 305 [171 N.E. 72, 84 A.L.R. 636]; see 33 Am.Jur., Licenses, sec. 54; 87 *249 A.L.R. 145; 95 A.L.R. 1224; 103 A.L.R. 405; 120 A.L.R. 950.) [6] The license fee is a reasonable one, covering the expenses of investigations and administration.
[5b] The board has no discretion to withhold a license if the applicant's good character and reputation and his financial responsibility are established and the required bond is filed. The board is not free to deny licenses, but must act reasonably in the light of the evidence presented. (Riley v. Chambers, 181 Cal. 589, 595 [185 P. 855, 8 A.L.R. 418]; In re Holmes, 187 Cal. 640, 647 [203 P. 398]; Tarpey v. McClure, 190 Cal. 593, 600 [213 P. 983]; Bank of Italy v. Johnson, 200 Cal. 1, 32 [251 P. 784]; People v. Globe Grain and Mill. Co., 211 Cal. 121, 125 [294 P. 3]; Cranford v. Jordan, 7 Cal. 2d 465, 467 [61 P.2d 45]; Leach v. Daugherty, 73 Cal. App. 83 [238 P. 160]; Hall v. Geiger-Jones Co., 242 U.S. 539, 554 [37 S. Ct. 217, 61 L. Ed. 480]; Graves v. Minnesota, supra, p. 428; Douglas v. Noble, supra, p. 170; New York ex rel. Lieberman v. Van De Carr, supra; Plymouth Coal Co. v. Commonwealth of Pennsylvania, 232 U.S. 531, 545 [34 S. Ct. 359, 58 L. Ed. 713]; Minnesota v. Probate Court, 309 U.S. 270, 277 [60 S. Ct. 523, 84 L. Ed. 744, 126 A.L.R. 530]; Yakus v. United States, 321 U.S. 414, 434, 435 [64 S. Ct. 660, 88 L. Ed. 834].)
The provision empowering the board to revoke a license in case of unfair, unjust, inequitable or fraudulent practices of solicitation is neither vague nor uncertain and affords no possibility for the censorship of religious beliefs. In Agnew v. Daugherty, 189 Cal. 446, 448-449 [209 P. 34], this court upheld a similar provision in the Corporate Securities Act making the granting of a permit dependent on the commissioner's finding that the "proposed plan of business ... is not unfair, unjust or inequitable" and that the methods to be used to dispose of securities "are not such as, in his opinion, will work a fraud upon the purchaser thereof." (See, also, People v. Kuder, 93 Cal. App. 42 [269 P. 198, 630]; People v. Stewart, 115 Cal. App. 681, 689 [2 P.2d 195]; Yakus v. United States, supra, pp. 426-427, and cases there cited.)
It is contended that since the trial court found that plaintiff is engaged exclusively in religious activities, the Charities and Relief Ordinance is rendered inapplicable to plaintiff's solicitations because of its provision that it "shall not be applicable to solicitations made solely for evangelical, missionary *250 or religious purposes." There is no conflict in the evidence, however, as to what plaintiff's activities are. The issue presented is one of law, namely, whether the charitable purposes for which plaintiff solicits funds are exclusively religious purposes within the meaning of the ordinance. The trial court erroneously concluded that because plaintiff solicits funds for charitable purposes as part of its religious program its solicitations are solely for religious purposes within the meaning of the ordinance. The ordinance specifically differentiates charitable from religious purposes. No person may solicit "any contribution for any charitable purpose" without complying with the requirements of the ordinance. The ordinance does not exempt solicitations for charitable purposes undertaken by religious organizations. Solicitations for charitable purposes, namely, for "philanthropic, social service, benevolent, patriotic" purposes, are subject to regulation whether or not they are undertaken by a religious organization. The intention to maintain a sharp differentiation between charitable and religious purposes is apparent in the provision that if a solicitation for religious purposes is likely to give the public the impression that funds are sought for charity, the board shall "investigate the matter of such solicitation and give publicity to its findings thereon in such manner as it may deem best to advise the public of the facts of the case." The solicitation of funds to provide food, shelter, and clothing for those in distress is clearly for a charitable purpose and is therefore regulated by the ordinance. Plaintiff admittedly solicits funds for the purpose of giving relief to persons in distress. Since this purpose is charitable within the meaning of the ordinance, plaintiffs' solicitations for that purpose are subject to the ordinance.
The judgment is reversed.
Gibson, C.J., Shenk, J., and Spence, J., concurred.
CARTER, J.
I dissent. The majority opinion places the stamp of validity in toto upon a regulatory ordinance containing requirements so stringent that with their enforcement humble charities and good works must inevitably bow to
"The organized charity scrimped and iced"
"In the name of a cautious statistical Christ."
Admittedly the intrusion into community existence of religious *251 activities characteristic of the secular life brings into sharp focus the conflicting loyalties to church and state, the clash of religious freedom with social legislation. (See Conscience v. The State, by Prof. C. C. McCown, 32 Cal.L.Rev. 1; Liberty under the Fourteenth Amendment, by John Raeburn Green, 43 Mich.L.Rev. 437; Bill of Rights Review of Am. Bar Ass'n., vol. 1, no. 2.)
Since 1940 the subject has been brought frequently before the United States Supreme Court by the sect known as Jehovah's Witnesses, and that court has been alert to protect the free exercise of religion against abridgement. Its recent decisions, rendered at a time when the currents of world thought have been against democracy and toleration, have, as Professor McCown comments, made a substantial contribution to the defense of the liberties guaranteed by the Constitution, and the emphasis in several of the opinions upon the rights of "little people," of causes that are humble, needy, and with financial resources, is particularly notable, Quoting from the cited article. "The justices of the Supreme Court echo the language of social and religious protest from almost the beginning of history (2500 B.C.) in Mesopotamia, Egypt, and later in Palestine, down to the present day. Such language is familiar in the Hebrew prophets, the Psalms, and the Gospels. The obligation of government to protect the rights of the weak against those who possess political and economic power has been repeatedly proclaimed by prophets, but all too seldom recognized by the powers that be. Both democracy and religion demand the protection of the advocate of unpopular causes, for practically every reform, whether political, social, or religious, begins as a protest against vested interests and majority opinions. ... In dealing with Jehovah's Witnesses the Supreme Court has shown a sanity and a consideration for the ultimate issues involved which cannot but have some effect upon the cowardice of politicians and the impatience of crowds." (32 Cal.L.Rev., pp. 14, 30.) (See, also, Cantwell v. Connecticut, 310 U.S. 296 [60 S. Ct. 900, 84 L. Ed. 1213, 128 A.L.R. 1352]; Largent v. Texas, 318 U.S. 418 [63 S. Ct. 667, 87 L. Ed. 873]; Jamison v. Texas, 318 U.S. 413 [63 S. Ct. 669, 87 L. Ed. 869]; Murdock v. Pennsylvania, 319 U.S. 105 [63 S. Ct. 870, 891, 87 L. Ed. 1292, 146 A.L.R. 81]; Martin v. Struthers, 319 U.S. 141 [63 S. Ct. 862, 882, 87 L. Ed. 1313]; West Virginia v. Barnette, 319 U.S. 624 [63 S. Ct. 1178, 87 L. Ed. 1628, 147 A.L.R. 674].) *252 In these decisions state legislation impinging upon a claimed religious freedom has been held valid only where there has been a strong showing of an essential need for regulation in the interest of the public safety, health, and welfare, or for the maintenance of morals, peace, and order, protection against a clear and present danger, or the like.
During the world war, as also pointed out by Professor McCown, the rise of nationalism to the status of a religious cult and the contemporary sharpening of the Christian conscience revitalized and realigned issues that were supposedly settled. Social problems have arisen which are ancient, but also very modern, and they are made the more difficult of solution by the traditions and social, political, religious, and legal philosophies with which they are surrounded. This country, having just emerged from a great conflict in which a guarantee of religious liberty to all peoples was a major aim, should be on guard against the subtle undermining, in the guise of municipal regulation, of those very rights which it has gone to such lengths to secure for others. For this reason the majority holding in the present case, with its reactionary trend, is particularly deplorable.
Obviously the commission of crime in the name of religion cannot be tolerated and the state must be safeguarded. The public are entitled to reasonable protection in community life, and fanaticism or misguided earnestness cannot be allowed to hold rein over the goodwill of the people. But beyond situations of emergency and present danger, the field of regulation should be extremely narrow. Thus in Schneider v. Irvington, 308 U.S. 147, 161 [60 S. Ct. 146, 84 L. Ed. 155], the United States Supreme Court, after stressing the importance of preventing the restriction of enjoyment of the constitutional liberties, said: "In every case, therefore, where legislative abridgment of the rights is asserted, the courts should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions. And so, as cases arise, the delicate and difficult task falls upon the courts to weigh the circumstances and to appraise the substantiality of the reason advanced in support of the regulation of the free enjoyment of the rights." *253
Using this formula to test the legislation here under review, it appears that one of the main reasons advanced in support of the regulation is its asserted necessity to protect the public from fraud. Resort to the penal statutes and usual methods of dealing with this evil is said to afford insufficient protection, in that warmhearted and generous citizens are especially vulnerable to solicitations made in the name of a religion or charity because of the nature of the appeal and their reluctance to turn a deaf ear to any cry of the poor and needy. Thus a delicate social problem is posed. Which is the more important, to give the public added protection, over that of the penal statutes, against annoyance, inconvenience, and possible fraud, or to preserve intact the cherished right of religious liberty? Should the state essay, at the expense of invasion of a constitutional right, to protect a citizen from his own inclination, or perchance his weakness, in responding to charitable solicitation without due inquiry into the worth of the sponsored cause? Is it not more in keeping with the American tradition to instill in youth and preserve in the thought of the people that individual independence, strength of character, moral stamina, and perception which will enable them to judge personally the good or bad faith of a colporteur or solicitor and the merit of the cause he espouses?
That some fraud may escape detection is to be anticipated. This is more or less true in all walks of life despite volumes of protective legislation. But the diversion to wrongful channels of some part of the public contribution to charity is not a major catastrophe when weighed against the cost of protection effected only by carving a large slice from the bill of rights. Indeed it may be asked whether any community can afford to undertake a regulatory program which may largely deprive the public of the opportunity to hear and respond to pleas of other than organized and municipally approved charities, thus stifling the growth and character development gained by the exercise of pity, compassion, and generosity. Small are the sums contributed by the average community to charity when compared with the large amounts customarily spent for luxuries and entertainment. In one sense the benefit of the opportunity to give where the right hand knows not what the left hand is doing is of more intrinsic value than the actual raising of the money, for all are in need of the spiritual enrichment which comes of free will offering. There are few housewives who will not cheerfully *254 give from their larder to ten itinerant mendicants rather than run the risk of turning away hungry one man worthy of alms. And by the same reasoning there is less danger from solicitation for unworthy causes than from regulations so stringent that they may crush the humble workers, the "little people," destroy their good deeds, impinge upon their practice of religion, and form a breeding grounds for intolerance, totalitarianism, or narrow nationalism.
All of this has been given recognition in the decisions of the United States Supreme Court. In the Cantwell case it is said at pages 308 and 310. "But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy. The essential characteristic of these liberties is, that under their shield many types of life, character, opinion and belief can develop unmolested and unobstructed. Nowhere is this shield more necessary than in our own country for a people composed of many races and of many creeds. There are limits to the exercise of these liberties. The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the states appropriately may punish. ... Equally obvious is it that a state may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions. Here we have a situation analogous to a conviction under a statute sweeping in a great variety of conduct under a general and indefinite characterization, and leaving to the executive and judicial branches too wide a discretion in its application." (Italics ours.)
Again it is said in the Schneider case at page 164: "Conceding that fraudulent appeals may be made in the name of charity and religion, we hold a municipality cannot, for this reason, require all who wish to disseminate ideas to present them first to police authorities for their consideration and approval, with a discretion in the police to say some ideas may, while others may not, be carried to the homes of citizens; some persons may, while others may not disseminate *255 information from house to house. Frauds may be denounced as offenses and punished by law. Trespasses may similarly be forbidden. If it is said that these means are less efficient and convenient than bestowal of power on police authorities to decide what information may be disseminated from house to house, and who may impart the information, the answer is that considerations of this sort do not empower a municipality to abridge freedom of speech and press." The same is true with respect to abridgment of the right of religious freedom. Many recent pronouncements of similar tenor might be added to those above cited.
Before proceeding to a more detailed review of the legislation here involved, it may be stated that plaintiff is an incorporated religious organization and that it operates a mission and store, the latter being called its industrial department. Among its religious activities are the holding of religious services at its mission by a minister ordained by it, church services and missionary work, giving away the New Testament and religious tracts. It conducts its operations in substantially the following manner: Financial solicitors, working from its headquarters, endeavor to obtain money contributions. These contributions are delivered to the treasurer of the organization and are used for carrying on its religious activities. The present treasurer has been a solicitor for plaintiff for many years and retains 30 per cent of the funds collected. About 50 per cent of the funds are used for salaries and expenses. The minister's sole compensation is derived from contributions and it is said to cover no more than his expenses. Plaintiff also gives assistance in property and money to those in need. In operating its store or industrial department it acquires secondhand property, most of which is called salvage, and sold to the public. The remainder is disposed of as junk. The truck drivers who collect the property receive a percentage of the salvage, but they do not participate in the proceeds derived from operation of the store. They also retain all but 10 per cent of the proceeds of the sale of the junk. Solicitors of salvage work from trucks and receive an average of 50 cents an hour. The store uses its funds for expenses of operation and occasionally does charity work. The balance is delivered to plaintiff's treasurer. None of the salvage solicitors distribute plaintiff's religious literature.
Defendant department claims that plaintiff, in operating *256 its store, is a "promoter" as defined in the city ordinance, and demands that it obtain a license authorizing solicitations for the store. No demand is made in regard to religious activities, but a religious organization is required to file a notice of intention and obtain a permit to solicit funds for charitable purposes. Apparently defendant department determines whether an organization is soliciting for charity or for religion and has adopted a rule that 50 per cent of the amount collected must go for charitable purposes.
The trial court found on substantial evidence that plaintiff is a "duly constituted and functioning religious organization, engaged exclusively in the promulgation, by literature and word of mouth, of its religious beliefs, by and through its auxiliaries, and in the procuring of donations in the form of money and articles of value in the prosecution and furtherance of its religious activities," and that if plaintiff is required to obtain a permit and pay a license fee as a condition of solicitation and receipt of donations "to be used in the furtherance of said religious activities," this "will amount to a prior restraint on the exercise of [its] religious activities within the meaning of the Constitution of the United States ... an infringement upon the free exercise of ... religious liberty as protected by the Constitution."
These findings require a consideration first of the question whether plaintiff's operations come in whole or in part within the exemption provision of the ordinance. Solicitations upon premises owned or occupied by the association in whose behalf the solicitation is made, and the soliciting of funds from members of the association are not subject to the promoter, solicitor, and certain other regulatory provisions of the ordinance. Exemption is also extended to "solicitations made solely for evangelical, missionary or religious purposes," but with the proviso that if such solicitations are conducted in a manner which, in the opinion of the board, may give those solicited the impression that the purpose of the solicitation is in whole or in part charitable, the board may investigate the matter and give such publicity to its findings as it deems best to advise the public of the facts.
In considering the applicability of the exemption to plaintiff's activities it would at first blush appear, and the trial court concluded, that inasmuch as all of plaintiff's operations, including its charitable work, are conducted for and as part and parcel and incident to its religious purpose, all must *257 come within the exemption. However, a review of the ordinance in its entirety indicates that by use of the word "solely" in the exemption clause, it was intended to differentiate between solicitations for promulgation and support of the religion or church itself, and solicitations for charitable work performed as part of the religious purpose, with exemption accorded to the former but not to the latter. If the exemption is thus unavailable where the religious organization solicits for charity in connection with the promulgation and exercise of its doctrines of religion (and this seems to be the interpretation placed upon the ordinance by the rules and regulations of the board and by the officers in enforcing it), then the validity of the regulatory provisions must be tested by the limitations, if any, which may be imposed upon the exercise of the right of religious liberty.
To a degree the majority opinion recognizes this fact but it implies, without straightway so declaring, that charitable undertakings are separable from the religious purpose inducing them, and that by severance they may be removed to the realm of secular affairs and there by subjected to governmental regulation without intrusion of the bothersome problem of preservation of the constitutional right of religious liberty. This implication is inherent in the discussion which starts with the declaration (p. 12): "Many activities prompted by religious motives can hardly be differentiated for secular activities. If the applicability of government regulation turned on the religious motivation of activities, plausible motivations would multiply and in the end vitiate any regulation," and proceeds to state (pp. 14-15): "Activities characteristic of the secular life of the community may properly be a concern of the community even though they are carried on by a religious organization. ... Religious organizations engage in various activities such as founding colonies, operating libraries, schools, wineries, hospitals, farms, industrial and other commercial enterprises. Conceivably they may engage in virtually any worldly activity, but it does not follow that they may do so as specially privileged groups, free of the regulations that others must observe. ... There is no doubt that plaintiff, like many religious organizations, regards the practice of charity as a religious duty. It is not exclusively a religious activity, however; many charitable activities spring from sources in the everyday *258 life of the community unrelated to religion. The state itself has an active responsibility for the welfare of the poor, the aged, the sick, the unemployed, and the orphaned. There is a public interest in regulating the solicitation of funds for these purposes. ..."
In the above discussion the majority opinion quotes copiously from Prince v. Massachusetts, 321 U.S. 158 [64 S. Ct. 438, 88 L. Ed. 645], a case which has been criticized as being out of line with other recent United States Supreme Court decisions. (See Liberty Under the Fourteenth Amendment, supra, at p. 446.)
It is true that religious liberty "embraces two concepts--freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be" (Cantwell v. Connecticut, supra, 310 U.S. 296, 303), and that where the religious organization conducts activities characteristic of the secular life of the community, they may be subject to proper regulation under the police power. But, as already pointed out, this power of regulation is not unrestricted and it can only be enforced with due regard to preservation of constitutional rights. Both freedom of religious thought and freedom of religious action come within the protection of the bill of rights. This freedom cannot be whittled away by carving out segments of religious activities and relegating them to the realm of secular affairs. If that were permitted, the right of action for a religious purpose could eventually be destroyed by the gradual severance and classification as secular of every activity undertaken to promote the religious purpose.
Aside from the pronouncements found in the late federal decisions, it has long been the law of this state that a charity conducted as part of a religious practice is inseparable from the religion itself. The utter impossibility of any severance is made plain in the case of Application of Dart (1916), 172 Cal. 47 [155 P. 63, Ann.Cas. 1917D 1127, L.R.A. 1916D 905], where in speaking of the Jewish and Christian religions it is said (pp. 55-56): "In both of these religions charity is the central word. It is enjoined, not as a good thing, or a wise thing, or as a kindly thing only, but as a fundamental part of the religion itself. Says the Jewish faith: 'On three things the world is stayed; on the Torah (the law) and on worship and on the bestowal of kindness.' 'Now the end of the commandment is charity out of a pure heart,' says Paul *259 to Timothy. 'Charity is the scope of all God's commands,' preaches Chrysostom. 'All perfection of the Christian life is to be attained according to charity,' declares Thomas Aquinas. Does it need more, does it need so much, to show that in these religions the bestowal of charity, the devotion of life to charity, are a part of the religion itself? And does it demand discussion to establish so plain a truth as that touching religion there is a doubtful zone which legislation should be most reluctant to enter? The founders of the nation recognized it when they placed the great guaranty of religious liberty in the constitution of a free people, and it is for every court to see that that liberty is not encroached upon and that freedom gnawed and impaired by any experimental legislation however well meant. So when legislation does enter that uncertain domain, the fact that it is there must bring it to condemnation. In accordance with the dictate of the Constitution itself the doubt will be resolved in favor of religious liberty. And it will be found better in the long run that the free exercise of religion be preserved in its integrity, better for the nation, better for charity itself which owes so much to religion, even if the efficiency of religious charities be not up to the standard of perfection set by the Municipal Charities Commission. If, under that standard, seventy-five cents of every dollar would go to the objects of charity, while under the less efficient methods in vogue but fifty cents of each dollar actually reaches the beneficiaries, it is not to be forgotten that there will be many millions fewer of these dollars to be distributed in charity if the activities of the religious are hampered, thwarted and stayed." (Italics ours.)
The above comment is extremely apropos. If, under defendants' interpretation and enforcement of the ordinance, plaintiff is to be denied the benefit of the exemption clause in so far as its charitable activities are concerned, then the regulatory provisions of the ordinance must be subjected to close scrutiny in order to determine whether they infringe the guarantee of religious liberty. Although concededly acts of charity, apart from religious motivation, might be performed by the state, or by a professed atheist or nonreligionist, nevertheless the evidence here establishes beyond contradiction that plaintiff's charities are an integral part of and inseparable from its religious purpose. From common knowledge, and in challenge to the severance theory of the majority *260 opinion, it must be said that acts of charity which do not stem, consciously or unconsciously, from early religious training or Christian inheritance are sparse. It is a matter of common historical knowledge that public charities and benevolent associations for the gratuitous relief of every species of distress, are peculiar to christianity; no other system of civil or religious policy has originated them; they form its highest praise and characteristic feature. The Apostle Paul in chapter XIII of his first Epistle to the Corinthians epitomized his concept of the essential intangibles of Christianity and concluded with the immortal verse: "And now abideth faith, hope, charity, these three; but the greatest of these is charity." Thus charity is the heart and basic principle of plaintiff's religion. To destroy that heart leaves the body lifeless. Yet the majority opinion does just that. It declares charity to be a secular affair in spite of the above showing to the contrary and thus subjects the exercise by plaintiff of its religion to unrestricted regulation and ultimate destruction.
Moreover, the anomalous result of the majority opinion is that a religious organization may use its own funds for a charitable purpose without hindrance, but if it solicits directly for the charity, the solicitation is subject to the cumbersome ordinance provisions hereinafter discussed. This makes the matter merely one of the form of the solicitation. To avoid regulation and gain the protection of the exemption, the solicitor only needs to make his plea for funds in the name of his church. The church then receives the donations and uses them for any purpose it may choose, good or bad, charitable or uncharitable, and it is not reached by the ordinance provisions.
Proceeding now to test the regulatory provisions of the ordinance as against the claimed infringement of the constitutional guarantee of religious liberty, it will be noted that the majority opinion incorporates the provisions by marginal reference and then, upon a discussion replete with generalizations, none of which standing alone can be said to contain an incorrect statement of the law, it announces the broad conclusion that, "We find nothing unduly burdensome or unreasonable in any of these provisions" (p. 237); "In our opinion the classification effected by this ordinance is reasonable and the standards provided are adequate" (pp. 240-241). *261
Were each regulation discussed in detail and given separate consideration, it is doubtful that even the author of the opinion would say that none is unduly onerous. Section 44.05 imposes upon any person who wishes to solicit "any contribution for any charitable purpose," a duty of filing with the department at least ten days prior to the commencement of the work, a written notice of intention containing "complete information" upon eleven comprehensive phases of the undertaking. But a glance at this section shows that the much maligned income tax forms issued by the federal government are no more complex and demanding than is this notice of intention in its requirements of itemized data. One wonders where the average almsman or solicitor is to acquire the educational background to enable him to supply such statistics. Must the opportunity for exercising one's religion by doing charitable work be limited to those who are apt in reading, writing, and arithmetic?
The solicitor must show (a) "The purpose of the solicitation and use of the contribution to be solicited"; he must make (b) "A specific statement, supported by reasons and, if available, figures, showing the need for the contribution proposed to be solicited"; he must show (c) "The character of such solicitation and how it will be made or conducted." How can these requirements be fitted into the program of the itinerant religionist who solicits as he wanders, taking with the one hand to give freely with the other, reserving for himself only bare necessities? What freedom is left for the missionary and walking preacher who play so colorful a part on the American scene, soliciting their charities, spreading their doctrines, without preconceived plan and as each feels himself daily to be guided, and without compiling statistics or publishing abroad the good works.
Further requirements of the notice indicate that its enforcement will doubtless effect the disappearance of all but organized institutions, for the applicant must also show the following: "(d) The expenses of the solicitation, including salaries and other items, if any, regardless of from what funds such expenses are payable; (e) What portion of the contributions collected as a result of the solicitation will remain available for application to the specific purposes declared in the Notice of Intention as the object of the solicitation: (f) A specific statement of all contributions collected or received by such person or association within the calendar *262 year immediately preceding the filing of such Notice of Intention. The expenditure or use made of such contributions, together with the names and addresses of all persons or associations receiving salaries, wages, compensation, commissions or emoluments from such contributions, and the respective amounts thereof; (g) The names and addresses of the officers and directors of any such association for which the solicitation is proposed to be made; (h) A copy of the resolution, if any, of any such association authorizing such solicitation, certified to as a true and correct copy of the original of such resolution by the officer of such association having charge of the records thereof; (i) A statement that the signers of such Notice have read and are familiar with the provisions of this Article and will require all solicitors engaged in such solicitation to read and be familiar with all sections of this Article prior to making any such solicitation." This last quoted provision expressly bars all who have not attained a sufficient degree of learning to abide by its terms.
As a whole the involved demands are a far cry from the simple regulation endorsed in the Cantwell case, to wit: that "Without doubt a state may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to act for the cause which he purports to represent. The state is likewise free to regulate the time and manner of solicitation generally, in the interest of public safety, peace, comfort or convenience." (310 U.S. at p. 306.) A regulation such as that described is not unreasonable and affords a sufficient basis for the opening of an investigation in the event charges of fraud should be lodged against a solicitor. (Murdock v. Pennsylvania, 319 U.S. 105 [63 S. Ct. 870, 891, 87 L. Ed. 1292, 146 A.L.R. 81].) Probably no sincere solicitor would protest having to register, carry an identification card, and conduct his activities in a seemly manner and at reasonable hours. But he should be immune from any more onerous legislative interference, even though to some, his efforts might appear to be misguided.
The ordinance contains further requirements even more burdensome than those above set forth. With the notice of intention there must be filed a statement of any agreement between solicitors and the organization for which they are soliciting. ( 44.06.) Whenever in the opinion of the Board *263 of Social Service Commissioners the notice of intention does not contain sufficient information for the public concerning the facts required to be therein stated, there must be filed within 48 hours such additional information as the board requests. ( 44.06.) The department has power to investigate the statements in the notice of intention and the methods and manner of solicitation, to inspect records of the association for which the solicitation is made, and to issue to solicitors information cards at four cents a card. These information cards are in effect permits to solicit and they must set forth the facts stated in the notice of intention and such additional information as in the opinion of the board will be of assistance to the public in determining the nature and worthiness of the purpose for which the solicitation is made. ( 44.03.) The board may recall information cards when they receive additional information which renders incorrect any statement thereon and amend them. ( 44.02.) No person shall employ any misstatement, deception, or fraud in connection with the solicitation ( 44.04), or use a fictitious name ( 44.07). A person may not solicit for a charitable association unless it maintains records of receipts and disbursements. ( 44.08) Solicitors must have the written authorization of the organizations they represent. ( 44.10, 44.11.) They must exhibit their information card to the prospective donee when soliciting ( 44.12), and file a complete report of their activities with the board ( 44.14). They must give receipts to donees stating various facts. ( 44.15.) Violation of the ordinance is made punishable as a crime.
In support of its declaration of the validity of these provisions, the majority opinion states that they confer upon the department no authority to withhold information cards when the requirements are met, and it cannot be assumed that the department will abuse its authority in order to withhold them. This is true, but it is also apparent that a procedure so complex and so costly in time and effort will, so far as many solicitors are concerned, be prohibitive. It is said in the Cantwell case (310 U.S. 296, 305) that "The general regulation, in the public interest, of solicitation, which does not involve any religious test and does not unreasonably obstruct or delay the collection of funds, is not open to any constitutional objection, even though the collection be for a religious purpose." Assuming that the provisions above quoted do not involve any religious test, nevertheless *264 they are so demanding as not only to open the door to unreasonable delay and abuse of discretion, but also as possibly to bar certain classes of solicitors found among the "little people." Obviously, they do unreasonably obstruct and delay the collection of funds.
Still more restrictive provisions of the ordinance apply to so-called "promoters," who are defined as "any person who for pecuniary compensation or consideration received, or to be received, solicits or is engaged in the business of or holds himself out to the public as engaged in the business of soliciting contributions for or on behalf of any other person or any charitable association, corporation or institution, or conducts, manages, or carries on ... or is engaged in the business of or holds himself out as engaged in the business of conducting, managing or carrying on any drive or campaign for any such purpose; provided, however, that pecuniary compensation or consideration as used herein, shall include, but shall not be limited to, participation on a percentage basis in any fund solicited, or raised, for or on behalf of any other person, firm, association or corporation; provided, further, that no person who is a bone fide paid officer or employee of a social service agency endorsed by the Board of Social Service Commissioners, shall be considered a promoter within the meaning of this article." ( 44.01.)
Section 44.19, subdivision 1, provides that "No promoter shall in any manner whatsoever, solicit within the City of Los Angeles any contribution for any actual or purported charitable use, purpose, association, corporation or institution without license from the Board so to do."
Subdivision 2, entitled "Application," states that "To obtain such license, such promoter shall make and file with the Board an application therefor in writing. In such application, the applicant shall set forth, in addition to such information as may be required by the Board: (a) The name and address of the applicant. ... (b) A succinct statement of facts showing that the applicant ... is of good character and reputation. ... (c) The general plan, character and method in or by which the applicant proposes to conduct its or his business as a promoter."
Subdivision 3 is entitled "Bond," and states: "At the time of so filing with the Board an application for such license the applicant shall file and thereafter maintain with *265 the Board a good and sufficient bond in the aggregate sum of ... $2,000 running to the City of Los Angeles for the use and benefit of interested persons and parties. ... Said bond shall be conditioned upon the strict compliance, by the Principal, with the provisions of this Article and the payment of any direct pecuniary loss sustained, through any act of grand or petty theft on the part of the Principal, by any donor or by any person on whose behalf the funds or personal property were solicited or received by the Principal. ..."
Subdivision 5, entitled "Investigation," provides that "The Board shall examine such application and shall make such further investigation of the applicant and its or his affairs as the Board shall deem advisable. If from such examination the Board shall be satisfied: (a) That the applicant is of good character and reputation. ... (b) That applicant has sufficient financial responsibility to carry out the obligations incident to any solicitation such applicant may make within the City of Los Angeles as such promoter and that all of the statements made in such application are and each of them is true and that ... applicant ... has (not) violated any of the provisions of this Article or has (not) engaged in any fraudulent transaction or enterprise, and that the applicant intends to conduct its business fairly and honestly, the Board shall issue to the applicant a license to solicit as a promoter within the City of Los Angeles, contributions. Otherwise, the Board shall deny the application and refuse to issue a license, and shall notify the applicant of the decision of the Board. ..."
Under the heading "Revocation," subdivision 6 states that "All licenses issued hereunder shall be subject to the condition that the applicant thereafter shall cease and desist from acting as a promoter within said City of Los Angeles when ordered so to do by the Board if the Board finds after a hearing ... that any act or omission of such promoter ... in making any solicitation or in the conduct of the business of promoter within the City of Los Angeles is unfair, unjust, inequitable or fraudulent. The Board must suspend or revoke any such license if, after hearing upon notice, the Board shall find the existence of any of the grounds hereinabove enumerated for the denial of an application for a promoter's license; provided, however, that such suspension or revocation shall be discretionary with the Board if the *266 only ground for such revocation is such that it does not affect the licensee's honesty and integrity, or his ability properly to perform his duties as a promoter."
Subdivision 7 deals with "Termination" of licenses at the close of each fiscal year, and subdivision 8 with "Funds." The latter subdivision provides that "No promoter shall commingle any contribution with the promoter's own funds or property, or fail at any time to maintain and keep all contributions separate and apart from the promoter's own funds or property. ... (a) It shall be unlawful for any promoter to cause or permit any person for pecuniary compensation or consideration received or to be received by such person to solicit or receive on his behalf or at his instigation, under his direction or control or in his employment, any contribution unless such person shall be registered as a solicitor by the Board. (b) No person shall be so registered as a solicitor unless he shall first appear personally before the Board and furnish satisfactory proof that he is a person of good moral character, that his reputation for honesty is good and unless he first file with the Board and thereafter maintain a bond satisfactory to the Board in the sum of ... $500.00, conditioned for the payment of any direct pecuniary loss which may be sustained by the promoter, by any donee, or by any person on whose behalf any contribution was solicited or received, through any act of grand or petty theft, committed by such person. (c) The provisions of paragraphs b, c, d, and e of subsection 3, above, shall apply to bonds filed pursuant to this subsection. (d) The Board shall collect a fee of ... $1.00 for each such registration. ..."
The comment which has been made concerning the unreasonableness of the ordinance provisions relating to solicitors applies with double force to these "promoter" provisions, and they are also subject to additional criticism.
From the definition of a "promoter," as heretofore quoted ( 44.01, supra), it appears that the term is not confined to business solicitors, such as employees of a promotion agency handling fund raising campaigns, but includes any person who for pecuniary compensation solicits for another. Many solicitors for charity are indigent religionists. As an integral part of the exercise of their religious right they solicit funds in support of their cause and the charitable activities incident to it, and of necessity they retain some portion of *267 the money collected in order that they themselves may be clothed and fed. To impose upon this class the burden of posting a $2,000 bond, of paying a license fee, and of showing sufficient financial responsibility to carry out the obligations incident to their solicitation is to seriously impede, if not prohibit, their undertakings at the outset. A required qualification of financial standing sufficient to enable such an applicant to post a $2,000 bond will neither insure honesty nor create a deterrent against fraud. In many cults and religions it is traditional that poverty and saintliness shall walk hand in hand. Many creeds view the possession of property and assets, or of more money than necessary for bare essentials, as a manifestation of sins of worldliness. Yet history shows that some of the finest deeds of charity and most unselfed works known to man have been accomplished by adherents of these views. It is thus a dangerous legislation which would impede the charitable impulses and hamper the undertakings of all but the financially able--which would give to men of property but deny to the poor the right equally possessed by both to develop and carry out the tenets of their creed.
The fee of $25 may not seem large but when it is combined with the expense and difficulty of obtaining a bond (if indeed such could be obtained by an indigent religionist even if the premium were paid for him), and establishing the vague condition of "financial responsibility," it involves cumulative burdens too heavy to be borne. In seeking to justify its declaration of the reasonableness of these provisions, the majority opinion states that the filing of a bond is "a common requirement in the regulation of occupations or activities involving the handling of entrusted funds," and that "The license fee is a reasonable one, covering the expenses of investigations and administration" (p. 20). This latter statement may have been inspired by the fact that the late federal decisions speak of the distinction between a license fee solely to defray the costs of enforcement of a regulatory statute and one for revenue purposes, condemning only the latter. But here, even if the regulatory provisions of the ordinance were otherwise reasonable as applied to religionists and justified the imposition of a fee sufficient to meet the costs of administration, there is no indication whatsoever that those costs would amount to $25 for the handling of each *268 application or that that sum was fixed in contemplation of reimbursement for expenses.
The following excerpt from Murdock v. Pennsylvania, 319 U.S. 105, pp. 111-113 [63 S. Ct. 870, 891, 87 L. Ed. 1292, 146 A.L.R. 81], is pertinent: "It is plain that a religious organization needs funds to remain a going concern. ... Freedom of speech, freedom of the press, freedom of religion are available to all, not merely to those who can pay their own way. ... Those who can tax the exercise of this religious practice can make its exercise so costly as to deprive it of the resources necessary for its maintenance. Those who can tax the privilege of engaging in this form of missionary evangelism can close its doors to all those who do not have a full purse. Spreading religious beliefs in this ancient and honorable manner would thus be denied the needy. Those who can deprive religious groups of their colporteurs can take from them a part of the vital power of the press which has survived from the Reformation. ... In all of these cases the issuance of the permit or license is dependent on the payment of a license tax. And the license tax is fixed in amount and unrelated to the scope of the activities of petitioners or to their realized revenues. It is not a nominal fee imposed as a regulatory measure to defray the expenses of policing the activities in question. It is in no way apportioned. It is a flat license tax levied and collected as a condition to the pursuit of activities whose enjoyment is guaranteed by the First Amendment. Accordingly, it restrains in advance those constitutional liberties of press and religion and inevitably tends to suppress their exercise. ... So, it may not be said that proof is lacking that these license taxes either separately or cumulatively have restricted or are likely to restrict petitioners' religious activities. On their face they are a restriction of the free exercise of those freedoms which are protected by the First Amendment. ... Itinerant evangelists moving throughout a state or from state to state would feel immediately the cumulative effect of such ordinances as they become fashionable. The way of the religious dissenter has long been hard. But if the formula of this type of ordinance is approved, a new device for the suppression of religious minorities will have been found. This method of disseminating religious beliefs can be crushed and closed out by the sheer weight of the toll or tribute which is exacted town by town, village by village. The spread of religious *269 ideas through personal visitations by the literature ministry of numerous religious groups would be stopped."
It will further be noted that the provision defining "promoters," as heretofore quoted ( 44.01, supra), includes a special exemption running in favor of bona fide paid officers and employees of social service agencies endorsed by the board. The conditions which a social service agency must meet to secure endorsement are set forth in a detailed separate ordinance, the relevant portions of which are incorporated in the majority opinion by marginal reference. One condition is "(h) That the officers and employees of such corporation or association are persons of good moral character and reputation and that the corporation or association has exercised reasonable care in selecting persons of good moral character and reasonable experience as solicitors for its funds."
Apparently no bonding or license requirement is imposed upon these solicitor-employees, or in their behalf upon the organization they represent. Thus the solicitors for the organized charity hold a great primary advantage over the unorganized worker, with no sound reason for the discrimination. Graft and corruption can flourish, and fraud can emanate from high places as well as low, and through organization these evils are sometimes hidden and the more securely entrenched. Also the percentage of contribution retained to meet the expenses and recompense the employees of charitable institutions is apt to be higher than that retained by unorganized workers or sincere and humble religionists who sacrifice all in the practice of their religion. Abuses and breaches of trust do occur but who can say that the hazard is greater in unorganized classes of workers, whose illicit gains are probably small, compared with what is lost when a large institution becomes permeated with corruption.
Vital need exists for the individual as well as for the organized worker in both charitable undertakings and general benefits derived from the spreading of religious doctrines. There are many dark places where the light of organized charity does not penetrate--many needy whom it does not reach. To these people the tender ministrations of sincere and unfettered religionists bring succor and salvation. The unreasonable curtailment of this activity merely because some are addicted to fraudulent and deceitful practices in the name of charity, is as unthinkable as would be the dissolution *270 of established institutions merely because dishonesty and corruption have at times been uncovered in their administration. The public as a whole cannot be freed from the entire power of decision as to the worth of the cause for which they are solicited or their inclination to contribute. If the constitutional guarantees are to be upheld, then the public must expect to bear some portion of the burden of seeing that their gifts are made only to worthy and honestly administered causes.
Another objectionable provision of the ordinance is that which requires the promoter to furnish "a succinct statement of facts showing that the applicant ... is of good character and reputation." Those who contribute to charity are not so much concerned with the "reputation" of the solicitor as they are with the intended use to which the donations are to be put. A most wicked man of public ill repute may espouse a very worthy cause or do a very good deed. Religionists and reformers are often called from the gutter whence they return to make expiation for their wrongdoings by trying to save others from a like fate and to aid the redemption of those who may already have strayed. Forceful and effective work has been done by the reformed, turned reformer, and many of these people labor on without affiliation with any recognized institution and without financial help other than that gleaned through solicitation.
Hence, it would seem that if any statement is to be demanded in connection with a reasonable requirement for registration and identification it should embrace no more than an averment of present honesty and sincerity in the disbursement of money and property for the purpose for which they are solicited. Reputation is not an issue.
The requirement of section 44.19 that the officials may make an investigation and if "satisfied" that the applicant is of "good character and reputation" they may issue a license, places upon the applicant the burden of establishing this requirement as a condition precedent to the exercise of his right of religious liberty. Such a requirement is not a sufficiently fixed and definite standard to safeguard the free exercise of the constitutional right here involved. In the exercise of their power the officials might conclude that an applicant does not qualify merely because of their opinion concerning his particular religious belief and creed. The way of the dissenter is usually hard and by reason of his *271 views his reputation in the eyes of a large group, or a majority, may be far from good and his character at least questionable if not downright immoral. What fair qualification to the right of religious liberty can be conceived which limits its exercise to those who have good reputation and character, and denies it to those who have not?
It is said in Murdock v. Pennsylvania, supra (319 U.S. 105, 116): "Plainly a community may not suppress, or the state tax, the dissemination of views because they are unpopular, annoying or distasteful. If that device were ever sanctioned, there would have been forged a ready instrument for the suppression of the faith which any minority cherishes but which does not happen to be in favor. That would be a complete repudiation ... of the Bill of Rights." And again in Cantwell v. Conneticut, supra, (310 U.S. 296, 310): "In the realm of religious faith, and in that of political belief, sharp differences arise. In both fields the tenets of one man may seem the rankest error to his neighbor. To persuade others to his own point of view, the pleader, as we know, at times, resorts to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement. But the people of this nation have ordained in the light of history, that, in spite of the probability of excesses and abuses, these liberties are, in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy."
Subdivision 6 of section 44.19 of the ordinance is also subject to criticism. It authorizes the revocation of the license where the licensee, in making the solicitation, is unfair, unjust, inequitable, or fraudulent. These grounds, except the one last stated, are vague and uncertain and may well result in the same religious censorship arising from a determination of good character and reputation.
Subdivision 8 of the section, dealing with the qualifications of solicitors for promoters, is subject to the same objections as the rest of the section. The only difference is the amount of the fee and the size of the bond. It requires a "good moral character," and a reputation for honesty that is good.
It is not an obstacle to plaintiff's attack on section 44.19 that it has not sought a license or that if the public officials act arbitrarily their action is subject to jurisdictional review. *272 The section on its face operates as a prior censorship on the free exercise of religious liberty. (Cantwell v. Connecticut, supra.)
There is another ordinance which concerns the regulation of pawnbrokers, secondhand dealers, and junk dealers (Los Angeles Municipal Code, 24.01). Although its provisions must be considered in relation to the operation of the store or so-called industrial department of plaintiff, the subject need not be developed here, for from the evidence it is clear that the store partakes of enough of the character of a commercial enterprise to justify the restrictions imposed. In the main I can concur in the conclusions (although not the reasoning upon which they are based), expressed in the majority opinion with respect to this phase of the case. The store is not conducted as a profiit making institution but it is in the business of selling used property. The operations of junk dealers and pawnbrokers have long been recognized as a distinct class of business subject to regulation under the police power in order to facilitate the recovery of stolen property and the preservation of health. (See 43 C.J. pp. 389-390; 43 Id. 410-411; 16 C.J.S., Constitutional Law, 189.)
It is not contended that the regulatory provisions of section 24.01 are invalid if considered apart from the question of the guarantee of religious liberty. Even assuming that the section must be viewed in the light of the right of free exercise of religion, there seems to be nothing arbitrary or unreasonable in its regulatory requirements. The measure is patently a police regulation and the specified fee is not a tax for revenue. That fee does not have combined with it the other financial burdens imposed under the ordinance dealing with promoters and hence it is distinguishable. Moreover, the operation of the store has most of the aspects of an ordinary commercial enterprise.
Such ordinance (Los Angeles Municipal Code, 24.01) provides that persons who are to engage in the regulated business must annually apply for and receive a written permit. Under subsection (c), entitled "Requisites of Permits," it specifies the following requirements or "standards": (1) The original application must state "by street and number the place where such business is proposed to be conducted" or, in the case of junk collectors having no fixed place of business, "their residence by street number." The application *273 "shall be signed by the applicant and shall contain his residence address." (2) The payment in advance of an annual fee of $25 ($50, if jewelry, watches "or similar secondhand merchandise" is to be dealt in). (3) Upon receipt of the application "the Board shall cause to be investigated the business of the applicant and location at which applicant proposes to engage in business as specified in said application. Thereafter the Board may issue a permit ... for the remaining portion of the current year." (4) Persons operating under the ordinance must "secure an annual renewal of such permit commencing January 1st of the succeeding year." (5) Persons holding "an ordinary" permit must apply for and secure a "special permit," "in the manner provided ... for securing ordinary permits," before dealing in "secondhand jewelry, precious stones, precious metals, ... watches or other similar secondhand merchandise."
Further regulations or "standards" set by the ordinance include the following: "The Board shall not grant any permit ... to persons who fail, refuse or neglect to comply with the laws and ordinances relating to and regulating the business for which such permit is sought"; "If persons holding permits ... shall violate any of the provisions of this Section [the Municipal Code section setting forth the ordinance in question] or any provision of any other ordinance, or any law relating to or regulating any such business, or shall conduct or carry on such business in an unlawful manner, the Board ... shall revoke such permit," but only upon following the procedure "in the manner provided in Section 22.02 of this Code" (which procedure is not questioned); permit holders "shall file daily reports, on forms provided by the Chief of Police, listing the merchandise received or purchased on the preceding day, the hour of such receipt or purchase, the "true name and address of the party making the sale, delivery or pledge as nearly as the same is known to or can be ascertained by such person together with a description of such party," the number of the pawn ticket issued, if a pledge is involved, and the amount loaned, and a description of each article pledged, received or purchased. The permit holder is also required to keep "a complete record of all goods ... pledged to or purchased or received by him" which record "shall be open at all times during business hours to the inspection of any member of the Police Department." *274"
The mentioned provisions (and the same is true of the further provisions not herein epitomized) are not unreasonable or uncertain. Substantially nothing more is required for an original permit than the payment of the moderate fee and the filing of the written and signed application giving the data as to the location of the proposed business and the applicant's name and residence address. The requirements for compliance with law and the keeping and filing of reports, etc., after commencing business, are reasonably related to the nature of the business and the purposes of the regulations. These latter provisions furnish a proper and exclusive standard for guidance of the board in passing on applications for renewals of permits or proceedings to revoke permits. The very moderate requirements for original issuance of permits, hereinabove set forth, leave little if anything, beyond the suitability of the proposed location, to the discretion of the board. This ordinance fully meets the constitutional requirements that regulatory laws of this type establish reasonable standards for the guidance of the permit-issuing board.
Defendants contend that injunctive relief is not available to plaintiff and that there is no showing of irreparable injury. Generally, public officers may be enjoined from enforcing an unconstitutional statute, and section 526 (4) of the Code of Civil Procedure and section 3424(4) of the Civil Code have no application to such situations. (Brock v. Superior Court, 12 Cal. 2d 605 [86 P.2d 805]; Bueneman v. City of Santa Barbara, 8 Cal. 2d 405 [65 P.2d 884, 109 A.L.R. 895].) Where a criminal statute or ordinance causes irreparable damage to property rights, the injured party may attack its constitutionality in an action to enjoin its enforcement. (See Jones v. City of Los Angeles, 211 Cal. 304 [295 P. 14]; Sullivan v. San Francisco Gas etc. Co., 148 Cal. 368 [83 P. 156, 7 Ann.Cas. 574, 3 L.R.A.N.S. 401]; Los Angeles T. Ins. Co. v. Los Angeles, 52 Cal. App. 152, 156 [198 P. 1001]; San Diego T. Ins. Assn. v. East San Diego, 186 Cal. 252 [200 P. 393, 17 A.L.R. 513]; and Abbey Land etc. Co. v. San Mateo, 167 Cal. 434, 438 [139 P. 1068, Ann.Cas. 1915C 804, 52 L.R.A.N.S. 508].)
An interference with the solicitation by plaintiff of contributions is an interference with its property rights in the sense that its right to collect and then use the funds will be impeded. Even if it be assumed that no injury to property rights is threatened, it seems that injunctive relief would *275 be appropriate to restrain the enforcement of a criminal statute where the attack thereon consists of a bona fide claim that the statute violates one of the personal liberties guaranteed by the Constitution, and that claim is not wholly lacking in merit on its face. In such case the injury consists of the consequences of the enforcement of the law to the person, viewed in the light of the exalted standing of the constitutional guarantees. These consequences under the procedure in this state are serious.
A violation of the ordinance being a misdemeanor, the case would be cognizable only in an inferior court. From that court the only appeal available is to the superior court, or to its appellate department. If that court denied relief plaintiff would have no recourse to this court or the district court of appeal by appeal or certiorari, although in the event of being imprisoned he would have the remedy of habeas corpus. (Portnoy v. Superior Court, 20 Cal. 2d 375 [125 P.2d 487].) The cases heretofore cited are not determinative of the point. They merely state the rule that injunctive relief will be given if injury to property rights is threatened. That does not exclude such relief where the injury is to personal rights.
It has been recognized that personal rights may be protected by equity, and they obviously should be, as they are more sacred than property rights. It is said in 28 American Jurisprudence, Injunctions, section 71: "However, there have always been some clearly defined exceptions to the general rule, and there is a progressive tendency on the part of the courts to remedy by injunction, injuries to personal rights. This is, perhaps, as it should be, because the personal rights of citizens are more sacred and, by every test, of more value than things that may be measured by a purely monetary standard, and the courts have expressed difficulty in understanding why injunctive protection of the one class of rights should be placed above similar protection of the other. It may be added that the courts with great uniformity base their jurisdiction to protect purely personal rights by injunction nominally on an alleged property right, where in fact no property rights are invaded, so that the rule seems to be one of those known chiefly by its breach rather than its observance." (See, also, 14 A.L.R. 295.) Section 526 of the Code of Civil Procedure does not limit the injury to property rights. On the contrary it authorizes an injunction where *276 the acts would produce great or irreparable injury "to a party to the action." (Italics ours.) (See Nation v. Chism, 154 Okla. 50 [6 P.2d 766].)
For the reasons above stated, I am of the opinion that the judgment of the trial court should be modified by restricting the injunctive relief to alleged violations of all provisions of the Municipal Code here involved except section 24.01 which I believe to be valid.
Schauer, J., concurred.
EDMONDS, J.
In this case, the trial court, upon undisputed evidence, found that the Gospel Army was soliciting donations for the purpose of furthering its religious activities. Because these funds are used in part for the purpose of giving relief to persons in distress, Mr. Justice Traynor declares, as a matter of law, its activities are charitable and not religious. I cannot concur in that conclusion, nor in the construction of the Los Angeles Municipal Code as requiring the issuance of permits to either organizations or promoters without an appraisal of "the nature or worthiness of a religious cause." And if, contrary to the evidence and findings of the trial court, the Gospel Army, as a matter of law, is a charitable institution, then, by the challenged ordinance it is arbitrarily denied the right to exist unless it complies with undisclosed standards of the commissioners and carries on its operations in accordance with arbitrary and unreasonable regulations.
As Mr. Justice Henshaw pointedly stated in considering an earlier ordinance of the city of Los Angeles, which, like the one now before the court, gave municipal authorities broad and arbitrary power over every institution ministering to human suffering and spiritual need, charity is a fundamental part of religion. Speaking of the work of the Salvation Army, he said: "Profoundly impressed with the Founder's sympathy for the poor and afflicted, and with His teachings that 'Now abideth faith, hope and charity, these three, but the greatest of these is charity,' and 'Now, the end of the commandment is charity out of a pure heart,' it has made its special field of religious work the relief of the destitute and the rescue of society's outcasts. It has found that it cannot lead the spirit of the weary and heavy burdened without first ministering to his physical necessities. While 'man does not *277 live by bread only,' he cannot live at all without bread. Therefore, the charitable organizations of the Salvation Army are vital, integral parts of its religious life and work." (In re Dart, 172 Cal. 47, 49 [155 P. 63, Ann.Cas. 1917D 1127, L.R.A. 1916D 905].)
The Gospel Army also endeavors to gain converts for its religious doctrines and carries on activities which minister to material need. The expense of conducting its work is largely met by donations of money and secondhand goods solicited from the public. The net proceeds from each of these main sources of income go into the Army's treasury from which is paid the cost of religious services, free distribution of tracts and religious literature, as well as food, lodging, clothing and other necessaries for those in need. The record discloses no segregation of such funds on the books of the Army as being for a religious or for a charitable purpose. Upon this evidence the trial court found that if the Gospel Army is required to comply with the provisions of the ordinance, such enforcement "will amount to a prior restraint on the exercise of their religious activities within the meaning of the Constitution of the United States. ..." Mr. Justice Traynor sweeps aside the evidence and the trial court's findings upon the ground that, as a matter of law, charity has no place in religion, and whenever an organization carrying on religious activities steps aside from the promulgation of its spiritual doctrines to extend a helping hand by the alleviation of human suffering, it becomes subject to onerous and restrictive regulations. So narrow a view of the practice of religion runs counter to all of the fine principles of human conduct which, more and more, are leading men of good will to help those less fortunate along the daily path. A religious man, it has been said, is one "whose light shines in the dark places of the earth through righteous acts and helpful deeds."
Large groups of citizens of every faith and creed are regularly devoting much time and effort, at great personal sacrifice, to the cause of those who are in need. If the work in behalf of the less fortunate among us is done in the name of or in connection with the promulgation of a religious doctrine, then the Los Angeles ordinance authorizes the Department of Social Service to add to the indifference, inertia and self-interest which solicitation must always overcome, either the condemnation or damnation by faint praise of an official bureau which is authorized to reach a conclusion without *278 regard to anything but the personal opinion of some administrative officer as to the worthiness of the purpose. Whatever is done in the name of religion for a charitable purpose, the ordinance declares in effect, is to be viewed with suspicion and distrust. There can be preaching without official intervention, but any practice of Christian virtues is to be carried on only under the watchful eye of the Department of Social Service according to its notions of "the public interest." And yet my associates say that such legislation lays no restraint upon religious freedom.
It is, of course, true that reasonable regulations may be imposed upon an organization carrying on religious activities. The rule, as stated by the Supreme Court of the United States, is that "The general regulation, in the public interest, of solicitation, which does not involve any religious test and does not unreasonably obstruct or delay the collection of funds, is not open to any constitutional objection, even though the collection be for a religious purpose." More specifically, the court declared that "A state may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before permitting him publicly to solicit funds for any purpose, to establish his identity and authority to act for the cause which he purports to represent." (Cantwell v. Connecticut, 310 U.S. 296, at pp. 304, 306 [60 S. Ct. 900, 84 L. Ed. 1213, 128 A.L.R. 1352].)
But the ordinance here challenged goes far beyond these limits. As the statute reads, its provisions shall not be applicable "to solicitations made solely for evangelical, missionary, or religious purposes." These terms are not defined, yet the lawmakers provided "that in any case where it shall come to the attention of the Board that any solicitation has been or is being intended to be made for evangelical, missionary or religious purposes but in such manner as in the opinion of the Board is calculated to give or may give the impression to the person or persons solicited in any such solicitation or to the public that the purpose of such solicitation is either in whole or in part charitable, then the Board, if in its opinion the public interest will be subserved thereby, shall investigate the matter of such solicitation and give publicity to its findings thereon in such manner as it may deem best to advise the public of the facts of the case." ( 44.16.) If this curious language means anything, it extends the exemption to any solicitation in behalf of a religious organization for a purpose in whole or in part charitable but allows the Board *279 of Social Commissioners to state to the public, "in such manner as it may deem best," its official disapproval of any such practical application of the Master's teachings to human need or of the methods by which help is being extended. Under that construction of the exemption provision, no license for the appellant's solicitations may be required. But it probably would be more disastrous to the work of a religious organization to arbitrarily and publicly condemn its activities than to require it to obtain a license, and equally violative of constitutional guarantees.
Considering the provisions of the ordinance from the standpoint that, under its express terms, only solicitation for contributions to meet the expense of doctrinal church activities is exempt from regulation, although the good works done by an organization such as the Gospel Army are, to borrow Mr. Justice Henshaw's words, "vital, integral parts of its religious life and work," no person may solicit a contribution for its support who has not obtained an "information card." Such a card is issued by the Department of Social Service only following the filing of a "notice of intention" to solicit, which shall include the detailed information specified by section 44.05 of the code. (Ante, p. 251.) This information is not limited to facts relating to the identity of the proposed solicitor and his authority to act for a particular organization. Also there must be submitted detailed information relating to the organization's purpose and business affairs and those who are supporting it financially or employed in its activities. In short, all of the data demanded concern the merits of the cause which is asking the public for assistance and the scope of the work it is carrying on.
Moreover, the information card which allows one to solicit, providing he presents it to the person who is approachced for a donation, "allowing him sufficient opportunity to read the same, before accepting any contribution. ..." ( 44.12), is not issued as of course upon the filing of the notice of intention. There is neither requirement nor even suggestion in the ordinance to support Mr. Justice Traynor's assertion that these cards, "which are in effect permits to solicit, are issued automatically upon the filing of the required information and the payment of the 4 for each card." On the contrary, the Department of Social Service shall have the power: "(a) To investigate the allegations of the Notice of Intention, or any statement or reports; (b) To have access to and inspect and *280 make copies of all books, records and papers of such person, by or on whose behalf any solicitation is made; (c) To investigate at any time the methods of making or conducting any such solicitation. ..." ( 44.03.)
A majority of the court sanction the indefinite terms of the ordinance relating to the issuance of a permit upon the presumption that the Board of Social Service Commissioners will fairly investigate the facts in connection with each application and promptly make a determination upon them. It may not be assumed, say my associates, that the board will whimsically or capriciously deny an application, and the courts will relieve from unjust and arbitrary action. The same argument was advanced by the state in Cantwell v. Connecticut, supra, and summarily rejected. The opportunity to obtain judicial correction, said Mr. Justice Roberts, speaking for the court, does not justify interference with constitutional rights. "... The availability of a judicial remedy for abuses in the system of licensing still leaves that system one of previous restraint which, in the field of free speech and press, we have held inadmissible. A statute authorizing previous restraint upon the exercise of the guaranteed freedom by judicial decision after trial is as obnoxious to the Constitution as one providing for like restraint by administrative action." (p. 306.)
Moreover, the inquisitorial authority of the department is a continuing one. "Whenever, in the opinion of the Board of Social Service Commissioners the Notice of Intention does not disclose sufficient information for the public concerning the facts ... required to be stated in such Notice or concerning the person or association making such solicitation or on whose behalf such scolicitation is made, then, upon the request of said Department, there shall be filed, in writing, within forty-eight (48) hours after such request, such additional information as may be required by said Board upon the foregoing subjects." ( 44.06.) This right may be exercised after the Board has made an investigation, and there is no limitation upon the time within which inquiries must be concluded. Also, there is no restriction upon the number of additional requests the board may make for information, or any time fixed in the ordinance to prevent the board from taking months to look into the purpose and scope of an organization's activities; designed delay is invited by the censorious terms of the legislation, and the widests discretion is given to harass, condemn, delay and obstruct. And if perchance the applicant *281 represents an unpopular cause, then the authority of the Board of Social Service Commissioners to publish the results of its investigations "by such means as may be deemed best to reach the general public and persons interested" ( 44.02) gives opportunity for the undermining of public confidence and provides a vehicle for official propaganda which may do irreparable damage.
Occasion for discrimination is also afforded by section 44.03 which allows the Department of Social Service to issue an information card in a form stating either that the authorization given does or does not constitute an endorsement of the charitable association for which solicitation is to be made. Moreover, the information card may show the pertinent facts set forth in the notice of intention and any additional information "as shall in the opinion of the Board be of assistance to the public to determine the nature and worthiness of the purpose for which the solicitation is made. ..." The information card which the solicitor must carry with him, and either read to each prospective contributor or present to such person for his perusal, allowing him sufficient time to read it before accepting any donation, may therefore be a sizable volume of data which in practice, if not in purpose, will effectively block public support of an organization which has a legitimate purpose and against which no criticism justly may be made.
To meet the demands of the city, the receipt required for each donation must be signed by the solicitor and contain "in addition to a description of the amount and kind of the contribution, substantially the following matters: (a) The name of the association, if any, in whose name or upon whose behalf the solicitation is made. (b) A statement as to whether the contribution solicited is to be applied for the general purposes of such association, if any, or for specific purposes, and if for specific purposes the nature thereof shall be clearly stated. (c) A statement that the Information Card, issued by the Department, was presented to the person making the contribution for his perusal prior to receipt by the solicitor of the contribution receipted for. ..." ( 44.15.) Only by means of a traveling office could a solicitor comply with all of these requirements.
As justification for his position, Mr. Justice Traynor asserts that "activities characteristic of the secular life of the community may properly be a concern of the community even *282 though they are carried on by a religious organization." A host of decisions is cited in support of that statement. But the cases relied upon are authority only for the proposition that certain activities such as the sale of religious periodicals by minors, beating a drum on the traveled portions of the city streets, and parades, carried on by a church, are subject to reasonable regulation by the state under its police power; they do not purport to declare what may be done in the field of reasonable regulation of solicitation for religious purposes. Indeed, excluding In re Dart, supra, only two of them concerned the constitutionality of a statute regulating the solicitation of funds. One of these two, Prince v. Massachusetts, 321 U.S. 158 [64 S. Ct. 438, 88 L. Ed. 645], upheld a statute restricting the activity of minors. The other decision, Murdock v. Pennsylvania, 319 U.S. 105 [63 S. Ct. 870, 87 L. Ed. 1292, 146 A.L.R. 81], expressly excluded consideration of the question now in controversy, for the court declared that there was no issue before it in regard to a registration system for solicitors.
As to In re Dart, supra, the statement from it which is quoted in the majority opinion has no application to solicitation for religious work; it concerns the regulation of organizations which seek contributions for charitable purposes. The declaration that under the police power, there may be reasonable supervision over persons engaged in the occupation of obtaining money from the public for the maintenance of an organization carrying on charitable work is followed by the pronouncement: "Every person has the right, under our constitution, and perhaps without its guarantee, to solicit contributions for a worthy charitable purpose, provided he acts in good faith and honestly applies them to that purpose. The ordinances give the commission power to deprive persons of that right without cause or reason. To the extent that they give this arbitrary power they are contrary to the constitution and void." (In re Dart, supra, at p. 57.) Certainly the constitutional guarantee gives as much, if not greater, protection to religious endeavors which include ministration to relieve human suffering. For as James wrote concerning faith without works, "If a brother or sister be naked, and destitute of daily food. And one of you say unto them, Depart in peace, be ye warmed and filled; notwithstanding ye give them not those things which are needful to the body; what doth it profit" Jas. 2:5, 16.) *283
But if the practice of religion may be legally isolated beyond the contaminating reach of charity, then, in my opinion, the legislation is vulnerable to attack as unlawfully circumscribing the activities of every organization which carries on its work without the profession of religious doctrine. Unquestionably the occupation of the solicitation of contributions for charitable purposes may be subjected to regulation, but legislatures or municipalities may not, under the guise of the police power, impose unnecessary and unreasonable restrictions upon the use of private property or the pursuit of useful activities. (McKay Jewelers Inc. v. Bowron, 19 Cal. 2d 595 [122 P.2d 543, 139 A.L.R. 1188]; In re Fuller, 15 Cal. 2d 425 [102 P.2d 321]; Skalko v. City of Sunnyvale, 14 Cal. 2d 213 [93 P.2d 93]; In re Monrovia Evening Post, 199 Cal. 263 [248 P. 1017]; Frost v. City of Los Angeles, 181 Cal. 22 [183 P. 342, 6 A.L.R. 468]; Ex parte Dickey, 144 Cal. 234 [77 P. 924, 103 Am. St. Rep. 82, 1 Ann. Cas. 428, 66 L.R.A. 928]; Larson v. Bush, 29 Cal. App. 2d 43 [83 P.2d 955].) Also the general and indefinite terms used in the ordinance wholly fail to meet the constitutional requirement that a regulatory statute must specify a standard for official action. (In re Dart, supra; Hewitt v. State Board of Medical Examiners, 148 Cal. 590, 593 [84 P. 39, 113 Am. St. Rep. 315, 7 Ann.Cas. 750, 3 L.R.A.N.S. 896]; Schaezlein v. Cabaniss, 135 Cal. 466, 469 [67 P. 755, 87 Am. St. Rep. 122, 56 L.R.A. 733]; County of Los Angeles v. Hollywood Cemetery Assn., 124 Cal. 344, 349 [57 P. 153, 71 Am. St. Rep. 75]; Ex parte Sing Lee, 96 Cal. 354, 359 [31 P. 245, 31 Am. St. Rep. 218, 24 L.R.A. 195]; Yick Wo v. Hopkins, 118 U.S. 356 [6 S. Ct. 1064, 30 L. Ed. 220]; Hoyt Bros. Inc. v. Grand Rapids, 260 Mich. 447 [245 N.W. 509].)
The provisions of the Municipal Code which have been summarized in connection with the discussion concerning their application to the charitable work of a religious organization effectively hamper and restrict any endeavor to better the lot of those in need of material aid and comfort if that effort does not conform to an undisclosed standard. The work of every organization must meet the approval of the department; such as do not, are unfit to live. Moreover, in its practical aspects the ordinance is particularly burdensome upon organizations such as the Gospel Army, which continually solicits donations. "Every person soliciting any contribution *284 for any charitable purpose must file with the Department within 30 days after the close of any such solicitation or within 30 days after a demand therefor by the Department a report to the Department, stating the contributions secured from or as a result of any such solicitation, and in detail all expenses of or connected with such solicitation, and showing exactly for what uses and in what manner all such contributions were or are to be disbursed or distributed." ( 44.14.) What constitutes "the close of any such solicitation?" And to what extent must the organization show "exactly for what uses and in what manner all such contributions were or are to be disbursed or distributed?" Is every person who is a beneficiary of the organization's helpfulness to be named? Is the value of that aid to be stated in terms of money or spiritual comfort? Must a substantial part of the effort intended for human betterment be devoted to making reports to a governmental agency set upon the minute and continuing supervision of all charitable activities?
Very obviously, the purpose of these reports is to provide a basis for keeping each organization within the range of a policy which is not stated in the ordinance and may be as variable as differing views upon permissible bounds of social service. For an information card may be recalled by the board upon receipt of data which, in its opinion, shall render incorrect any statement set forth in that document. Under such circumstances, the board shall amend or correct the card, or issue a new one in accordance with the additional data obtained. But impliedly each card is to be issued for a period which need not be uniform as to all applicants, and is valid only during that time ( 44.02). Under those provisions, only by carrying on its work in accordance with the views of the Board of Social Service Commissioners, and making reports in such detail as to satisfy demands which cannot be measured against any standards set by law, may an organization continue.
Also, there is no standard or limitation provided in regard to the data printed upon the information card. As a solicitor must show this card to each prospective donor, allowing him sufficient opportunity to read it before accepting any contribution, the board may arbitrarily express disapproval of a worthy charity or make the information so voluminous that solicitation would be effectively blocked. And the unlimited *285 power given to the board to publish the results of its investigations is broad enough to authorize presentation to the public of confidential data concerning policies and details of management having no relation to reasonable licensing requirements.
If an organization runs the gauntlet of these provisions and is able to carry on its work to the satisfaction of the official censors of charitable purposes, every person whom it employs for "pecuniary compensation or consideration" to obtain subscriptions from the public must also secure a license. The way of an applicant for such a license is a hard one. In his application he must set forth, in addition to facts showing that he "is of good character and reputation," "such information as may be required by the board." Thereupon, the board shall make such investigation of the applicant and his affairs as it deems advisable. No limitation as to the extent of such an investigation is imposed and no time is fixed within which it must be concluded. Any ground that would have led to a denial of the license is also ground for its revocation.
If, contrary to the narrow interpretation of religion laid down by my associates, human kindness is included in its practice, then these provisions governing the licensing of individuals to solicit contributions are clearly invalid, for they go much further than to lay down a reasonable requirement for registration and identification. Indeed, there is no statutory statement of the data which an applicant must submit, for the specified information is "in addition" to that which may be required by the board. The majority allows the regulation of solicitation for religious purposes to go far beyond the limitation specified by the United States Supreme Court in the Cantwell case, supra, by approving the requirements that a promoter or solicitor be granted a license only if the board is satisfied that he is of good character and reputation and equal to the financial responsibility incident to the proposed solicitation; that he file a bond and pay a license fee; and that he give a complicated form of receipt to each contributor. The provision authorizing the revocation of a license after a hearing, for any "unfair, unjust, inequitable or fraudulent" act or for any ground that would have led to a denial of the license also goes far beyond the permissible bounds fixed for regulation of solicitation for a religious purpose. *286
And construing any organized plan for taking care of those in need of material aid as beyond the reach of religious duty or concern, the licensing provisions which have been mentioned in the next to the last paragraph unreasonably restrict the right of an individual to engage in the business of solicitation for charitable purposes and also fail to set up a definite standard which the applicant for a license must meet. The cases cited by the majority as authority for the proposition that a promoter or solicitor may be required to submit proof of his good character and reputation stand only for the rule that a state may do so in connection with regulation of the practice of a profession which requires the possession of special knowledge, skill and training, or the sale of merchandise of a particular character. (Leach v. Daugherty, 73 Cal. App. 83 [238 P. 160] [broker's certificate under the Corporate Securities Act]; Riley v. Chambers, 181 Cal. 589 [185 P. 855, 8 A.L.R. 418] [license of real estate broker]; Gundling v. Chicago, 177 U.S. 183 [20 S. Ct. 633, 44 L. Ed. 725] [license for sale of cigarettes].) These decisions, in my judgment, have no application to legislation laying down licensing requirements for the business of soliciting funds for charitable purposes.
A recent controversy in Michigan presented substantially the same question as is now before this court. An ordinance which prohibited the solicitation of contributions or the sale of goods "the proceeds from which, or any part thereof, are to be used for any so-called charitable purpose" without a written permit to be granted by the city manager, when it appeared, after investigation and report by a police officer, "that the charity is a worthy one" and that the applicants for a permit "are fit and responsible parties," was held to violate the provisions of a state constitution prohibiting deprivation of life, liberty, or property without due process of law. "It is requisite to the validity of the ordinance," said the court, "that it should state 'a standard for the guidance' of the official who passes upon the application for the permit. ... The general and indefinite terms used in this ordinance wholly fail to comply with this requisite." (Hoyt Bros. Inc. v. Grand Rapids, supra, [128 A.L.R. 1363].)
Turning to the other provision of the Los Angeles Municipal Code which is in controversy, although, generally speaking, the business activities of a religious organization come within the scope of regulations tending to protect the morals, *287 safety or general welfare of the public, section 24.01 relating to dealers in secondhand goods is also unconstitutional for the reason that it sets no standard to which an applicant for a license must conform. To carry on the business of a "secondhand dealer," one must "file an application in writing with the Board [of Police Commissioners] specifying by street and number the place where such proposed business is proposed to be conducted or carried on; ... The application shall be signed by the applicant and shall contain his residence address. Upon receipt of such application the board shall cause to be investigated the business of the applicant and location at which applicant proposes to engage in business as specified in said application. Thereafter the board may issue a permit to the applicant which shall be effective for the remaining portion of the current year."
This enactment states no grounds justifying a denial of the application, specifies no time within which an investigation must be made, makes no provision for a hearing upon the application, and by the use of the word "may," impliedly allows the board to grant or withhold official favor for any reason which whim or fancy may dictate. No standard of character or business responsibility is set for the guidance of the board nor are there any qualifications specified for one desiring to deal in secondhand goods. Such legislation has uniformly been held not to measure up to the requirements of constitutional guarantees. (In re Dart, supra; Hewitt v. State Board of Medical Examiners, supra; Schaezlein v. Cabaniss, supra; County of Los Angeles v. Hollywood Cemetery Assn., supra; Ex parte Sing Lee, supra; Yick Wo v. Hopkins, supra; Hoyt Bros. Inc. v. Grand Rapids, supra.
Under these circumstances, in my opinion, as the right of the Gospel Army and those acting in its behalf to solicit contributions for either religious or charitable purposes is a property right, the unlawful interference with which will cause irreparable injury, the trial court properly enjoined the enforcement of the ordinances here challenged (Brock v. Superior Court, 12 Cal. 2d 605 [86 P.2d 805]; Bueneman v. City of Santa Barbara, 8 Cal. 2d 405 [65 P.2d 884, 109 A.L.R. 895]), and the judgment should be affirmed.
"(a) The purpose of the solicitation and use of the contribution to be solicited;"
"(b) A specific statement, supported by reasons and, if available, figures, showing the need for the contribution proposed to be solicited;"
"(c) The character of such solicitation and how it will be made or conducted;"
"(d) The expenses of the solicitation, including salaries and other items, if any, regardless of from what funds such expenses are payable;"
"(e) What portion of the contributions collected as a result of the solicitation will remain available for application to the specific purposes declared in the Notice of Intention as the object of the solicitation;"
"(f) A specific statement of all contributions collected or received by such person or association within the calendar year immediately preceding the filing of such Notice of Intention. The expenditure or use made of such contributions, together with the names and addresses of all persons or associations receiving salaries, wages, compensation, commissions or emoluments from such contributions, and the respective amounts thereof;"
"(g) The names and addresses of the officers and directors of any such association for which the solicitation is proposed to be made;"
"(h) A copy of the resolution, if any, of any such association authorizing such solicitation, certified to as a true and correct copy of the original of such resolution by the officer of such association having charge of the records thereof;"
"(i) A statement that the signers of such Notice have read and are familiar with the provisions of this Article and will require all solicitors engaged in such solicitation to read and be familiar with all sections of this Article prior to making any such solicitation."
"1. To investigate, when requested or permitted, by the officers or persons in charge thereof all charitable or philanthropic corporations or associations dependent upon public appeal or general solicitations for support, and submit quarterly, in writing, the result of such investigation to the Council."
"2. To endorse such of said charitable corporations or associations as shall apply to said Commission for endorsement and prove to the Commission that they have complied with the following provisions, namely:"
"(a) That the title to any real property in the City of Los Angeles owned by such charitable corporation or association is vested in the name of said charity, if it be a corporation, or else in the name or names of a responsible trustee, or trustees under a declaration of trust or other written instrument, setting forth the rights of such charitable corporation or association therein, and recorded in the records of the County Recorder of Los Angeles County."
"(b) That the declared purpose for which such a corporation or association is organized are charitable or philanthropic, and not for the pecuniary profit of the members or associates thereof or any of them."
"(c) That for three months prior to its endorsement said charitable corporation or association has faithfully complied with the following provisions with reference to its accounts, namely: All funds received by it and all disbursements made by it, have been entered upon the books of its treasurer or other financial officer, receipts have been given or tendered for all money or other property donated to it, whenever required by law or ordinance all expenditures other than petty cash to a reasonable amount have been made by checks signed by at least two officers of such corporation or association; that the bank book of such asosciation or corporation has been balanced and reconciled with the books of account at reasonable intervals."
"(d) That no moneys of said corporation or association are on loan directly or indirectly to any officer, director, trustee or employee thereof, and that the corporation or association for a period of three months prior to its endorsement has not invested any moneys constituting part of its permanent endowment funds except in securities legal as investments for savings banks within the State of California, and has not paid out more than 15% of any amounts collected by solicitation within the City of Los Angeles for expenses of solicitation, and has not diverted funds donated to it from any source to purposes other than those for which they were donated."
"Provided, however, that the provisions of this paragraph shall not apply to any loan or investment that has been made prior to the passage of this ordinance."
"(e) That the work for which such corporation or association has been organized has been faithfully performed."
"(f) That the by-laws and other written rules and regulations of such corporation or association define the powers and duties of the officers of such corporation or association, and that a copy of the Articles of Incorporatiton of said charity, if it be a corporation, and a copy of the By- Laws and other written rules and regulations of such corporation or association have been filed with the Social Service Commission."
"(g) That within three months prior to its endorsement such a corporation or association has not violated any law or ordinance applicable to it."
"(h) That the officers and employees of such corporation or association are persons of good moral character and reputation and that the corporation or association has exercised reasonable care in selecting persons of good moral character and reasonable experience as solicitors for its funds."
"Said Commission shall issue said endorsement to any such corporation or association as shall comply with the aforesaid requirements. Said endorsement shall be valid for such time as shall be fixed by the Commission but not exceeding one year from date of its issuance."
"Said Commission shall report to the Council upon request by it the name of any corporation or association which is endorsed or has been refused endorsement by it, with a general statement of the reasons for its refusal."
"Said Commission shall also have power to request any endorsed corporation or association to make application for a new endorsement at or after the end of each fiscal year or at an earlier period if the Commission shall deem such requirement advisable, and if said corporation or association shall not so do its endorsement shall be withdrawn."
NOTES
[fn. *] *. "No person shall solicit, nor shall any officers or member of any association authorize any person to solicit, any contribution for any charitable purpose unless, within the fiscal year of the City in which such solicitation is made and at least within ten (10) days prior to the beginning of such solicitation, there shall have been filed with the Department, on a form furnished by said Department, by such person or association upon whose behalf the solicitation is made, written Notice of Intention to solicit such contribution, which notice shall contain complete information as follows:
[fn. ] . "There shall be filed with the Department with such Notice of Intention a statement of any agreement made with any agent, solicitor, promoter, manager or conductor of such solicitation, together with a copy of each agreement which may be in writing. Within twenty-four hours after any change in any such agreement or the making of any new or further agreement, a true copy of such change or agreement, if in writing, or if not, written details thereof shall be filed with the Department. Whenever, in the opinion of the Board, the Notice of Intention filed with the Department does not disclose sufficient information for the public concerning the facts hereinabove required to be stated in such Notice or concerning the person or association making such solicitation or on whose behalf such solicitation is made, then, upon the request of said Department, there shall be filed, in writing, within forty- eight (48) hours after such request, such additional information as may be required by said Board upon the foregoing subjects. Provided, however, that the Board, for good cause, may extend the time for filing such additional information. The Notice of Intention and such additional information, if requested, shall be signed by such person intending to make such solicitation, or if by or on any association, by at least two officers of such association and shall be open to the inspection of the public."
[fn. *] *. "Sec. 2. Said Commission shall have power: | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1380086/ | 232 P.2d 338 (1951)
STATE
v.
GILBERT
No. 9048.
Supreme Court of Montana.
June 6, 1951.
*339 John D. Gillan, Havre, for appellant.
Arnold H. Olsen, Atty. Gen., Mr. William H. Coldiron, Asst. Atty. Gen., Mr. Edward J. Ober, Jr., County Atty., Havre, for respondent.
FREEBOURN, Justice.
John Gilbert, defendant and appellant, was charged by information, with the crime of "carrying a concealed weapon outside a city," in that on April 13, 1950, he did, "knowingly, wilfully, unlawfully and feloniously, outside the limits of the City of Havre, Montana, carry and bear concealed upon his person a deadly weapon, to-wit: a .38 calibre revolver * * *".
Upon the trial he was convicted by a jury and sentenced by the court to imprisonment in the county jail of Hill county for a term of nine months and to pay a fine of $300. From the judgment he appeals.
Defendant, a married man with family, made his livelihood during the winter by trapping. He had trapped two years for the government. In his trapping he used a small pistol.
On April 13, 1950, he, after running trap lines on Red Rock creek and along the Milk river, in company with Monte Boe and Lee Norby, using Norby's car, took some beaver hides to Harry Soderberg's Pacific Hide and Fur Company in Havre.
From the Hide Company's place of business they went to the Blue Moon tavern outside of Havre. It was in this tavern that the events occurred which resulted in defendant's trial and conviction.
The state had but two witnesses: one, Gladys Moolis, a lady bartender, who testified in the case in chief, and a deputy sheriff, who, in rebuttal, testified to a statement Lee Norby denied making.
It appears that defendant, while in the Blue Moon, went to the tavern restroom. Upon leaving the restroom he forgetfully left behind him a loaded pistol. Shortly thereafter a twelve-year old boy, in the care of Gladys Moolis, found the pistol in the restroom, and taking it outside the tavern fired one shot from it. He then gave it to Gladys Moolis and she, while behind the bar, returned it to defendant who immediately unloaded it.
The testimony of the lady bartender of what occurred after defendant unloaded the pistol is the basis of defendant's conviction, insofar as this record is concerned.
She asserts that after defendant unloaded the weapon he concealed it upon his person. She asserts, not only that J.T. Hale, the tavern proprietor, was not in the tavern when defendant concealed the pistol upon his person, but that J.T. Hale was not present when defendant first entered the tavern. She further says that when defendant handed the pistol to J.T. Hale for inspection it was unloaded and that defendant had it concealed on his person.
J.T. Hale, the Blue Moon proprietor, contradicts Gladys Moolis in important particulars. He recalled the defendant coming into the tavern. He says the pistol was loaded when it was handed to him and he broke it open. J.T. Hale does not say defendant took the pistol from his person. To the contrary, he says defendant went outside the tavern and re-entered carrying the pistol in his hand; that defendant handed it to him; that he broke it open and then laid it upon the bar.
On direct examination Gladys Moolis's testimony shows: "Q. What did he do *340 with the gun? A. He put it inside of his shirt and under his belt.
"Q. Did he put it between his shirt and ____ A. [Interrupting] I believe so, yes.
"Q. But at least he put it under his shirt? A. Yes.
"Q. Inside of the belt? A. Yes, sir. * * *
"Q. Well, Gladys, calling your attention to the afternoon of that day when you stated that the defendant and his two companions came into the Blue Moon, was J.T. Hale there at that time? A. No. I know J.T. wasn't there when they came in because I was alone in there, and Johnny told me his name I had talked to him before on the phone.
"Q. Well, did J.T. Hale come in the Blue Moon while the defendants, Norby and Monte were there? A. Yes, he did. * * *
"Q. While they were standing there, did you see the defendant Johnny Gilbert, do anything with the gun? A. Well, he made some remarks to J.T. and he handed the gun to J.T. and J.T. opened the gun it was empty because I could see through the little holes.
"Q. Did you see where the defendant got the gun? A. I believe, he took it from his shirt.
"Q. Did you see him doing anything with his shirt? A. I think I did, yes, and he took it from underneath his shirt because he didn't leave the building.
"Q. And he took it from underneath his shirt? A. I don't know whether it was under his shirt or his jacket.
"Q. Would it be from the neighborhood of the waist belt? A. Yes."
Not only does the use of "I believe" and "I think" show an uncertain mind, but she did not know whether defendant had the pistol "under his shirt or his jacket." The question might well be asked: If the gun was under the shirt, how could she see it under the belt? This uncertainty in the mind of the only state's witness to the facts of the crime must have been recognized by the prosecutor, and would account for the leading question: "Would it be from the neighborhood of the waist belt?" which elicited the answer, "Yes."
Compare now the testimony of J.T. Hale, the tavern owner, as to what occurred when defendant handed him the pistol.
"Q. Referring to the 13th day of April, 1950, do you recall John Gilbert coming into your place of business on that day? A. Yes, sir. * * *
"Q. After you had this conversation that you have just related, what did John Gilbert say to you? A. He said that I have a gun out in the car that you have never seen, so I will go out and bring it in and show it to you. I said, `all right,' he went out to the car and brought in a little pistol and handed it to me, and we were talking about it and he said that it was a gun that he was going to carry on his trap lines, and we just talked about it; that was about all I guess.
"Q. Did you observe how John Gilbert brought the gun from the car into your place of business? A. He had it in his hand.
"Q. You saw it in his hand, did you? A. That's right.
"Q. After you had examined the gun, did you see what John Gilbert did with it? A. He brought the gun and handed it to me; I broke it and it was loaded; I put it back together and then I laid it on the bar. * * *
"Q. Where was the gun when you left? A. Laying on the bar."
J.T. Hale was not asked any question on cross-examination concerning the testimony just quoted except as to where the gun was lying when he left. No attempt was made to shake his testimony, so given, on cross-examination.
Defendant said proprietor Hale was in the tavern when he arrived; that he went out to the car and obtained the pistol and brought it into the tavern, carrying it in his hand. He said he handed the pistol to Hale who broke it open and that it was loaded at that time; that he went to the restroom, carrying the pistol in his hand and putting it down, forgot it when he came out. He said Gladys Moolis returned it to him, at which time he unloaded it, and *341 handed it to Norby. He denied concealing the gun on his person.
Both Norby and Boe corroborate defendant.
R.C.M. 1947, section 94-7203, provides: "A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal."
R.C.M. 1947, section 93-301-4, provides: "The law does not require demonstration; that is, such a degree of proof as, excluding possibility of error, produces absolute certainty, because such proof is rarely possible. Moral certainty is only required, or that degree of proof which produces conviction in an unprejudiced mind."
The provisions of this section apply to criminal causes. State v. Powers, 39 Mont. 259, 102 P. 583; State v. Cassill, 71 Mont. 274, 229 P. 716.
The presumption of innocence surrounds the defendant at every step in the trial and to its benefits he is entitled in the determination of every fact by the jury.
It has the weight and effect of evidence in the defendant's behalf. State v. Harrison, 23 Mont. 79, 57 P. 647; State v. Wong Sun, 114 Mont. 185, 133 Pac. (2d) 761.
It is quite evident that, under the law and upon the evidence submitted, the prosecution did not prove the defendant guilty of carrying a concealed weapon upon his person beyond a reasonable doubt and to a moral certainty.
That the jury found defendant guilty does not weaken this conclusion. It simply tends to show that something other than evidence of concealment swayed the judgment of the jury. If the thing that caused defendant's conviction was the fact that he left the pistol in the restroom where a boy found and fired it, thus endangering himself and, perhaps, others, the answer is: Although such evidence is part of the res gestae and properly admissible as such, nevertheless, the defendant is not on trial for leaving the pistol in the restroom, but only for the crime of carrying a pistol concealed on his person and he can be legally convicted for that crime only.
The evidence was insufficient to justify defendant's conviction for the crime charged. For that reason the case is remanded to the lower court with directions to dismiss it.
MR. CHIEF JUSTICE ADAIR, and ASSOCIATE JUSTICES METCALF, BOTTOMLY, and ANGSTMAN, concur | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1380083/ | 104 Cal. App. 2d 599 (1951)
ROBERT WECK et al., Respondents,
v.
LOS ANGELES COUNTY FLOOD CONTROL DISTRICT et al., Defendants; SOUTHERN PACIFIC COMPANY (a Corporation) et al., Appellants.
Civ. No. 16962.
California Court of Appeals. Second Dist., Div. One.
June 5, 1951.
C. W. Cornell and Randolph Karr for Appellants.
Stewart, Shaw & Murphey and William L. Murphey for Respondents.
HANSON, J. pro tem.
This is the second appeal, in nine separate actions (consolidated for trial) commenced by the respective respondents, to recover damages that resulted to them on March 3 and 4, 1943, as a consequence of the flooding of their lands by storm or flood waters which broke out of a drainage ditch known as Eaton's Canyon Wash.
The respondents, as plaintiffs below, named as defendants the Southern Pacific Railroad Company (hereinafter called "Railroad Company"), the Southern Pacific Company (hereinafter called "the Company"), the Los Angeles County Flood Control District (hereinafter referred to as the "District") and certain of its employees and officers. It is enough at this point to say that liability against all of these defendants was based on negligence.
The map which we set forth herein (based on exhibits in
Graphic Material Omitted
*603 the case) will help to point out some of the salient facts. The lands of respondents lie in a triangular area east of Encinita Avenue and north of the Southern Pacific Railroad tracks. The drainage ditch known as Eaton's Canyon Wash for a period of time prior to 1906 ran from A to B to C passing under the right of way of the Southern Pacific through a trestle which was constructed over the wash in such a manner as not to interfere with storm or other waters passing down the channel of the wash or drainage ditch. By 1906 or 1907 the channel became blocked at the locality of the trestle and thereupon waters therein flowed easterly along the north side of the railroad right of way from the bend thereof at "B" to "D" on the map and not at all from "B" ' to "C." At the time of the storm in question, the storm waters originating in the Sierra Madre Mountains flowed southeasterly, in the drainage ditch known as Eaton's Wash toward Encinita Avenue but broke out of the banks of the wash at point "A" and flooded the area depicted by dots on the map.
We proceed to state additional facts which are germane to a decision of the case. When in 1873 the predecessor railroad of the Southern Pacific Company constructed its railroad line running from Los Angeles easterly it ran roughly parallel to the Sierra Madre Mountains which lay to the north of the railroad. In that day, it seems, the surface and storm waters originating in those mountains were largely absorbed by the ranch lands north of the railroad in the locality of what is now known as Savanna, California. However, it appears that, even at that time, excess storm waters coming out of a canyon in the mountains known today as Eaton's Canyon naturally flowed down a course known today as Eaton's Wash to a point westerly of Savanna but east of a highway known as Lower Azusa road at the point where the road diagonally crossed the railroad tracks. Initially, the excess storm waters reached the railroad right of way 531 feet east of the point where the railroad and highway intersected. Accordingly, the railroad constructed a culvert through its roadbed at the point where the waters flowed so as to permit them to flow southeastwards following the low point of the land's topography. Later on, the storm waters shifted their course somewhat westerly so as to reach the right of way only 35 feet east of the point where the road and railway intersected. To meet this new situation the railroad constructed a trestle in its roadbed to permit the water to flow unimpeded in this new natural channel. This channel coming from the north *604 and running slightly southeasterly is depicted on the map as having followed the line A, B, C. At times during torrential rainfalls the channel made by nature was insufficient in depth and width to wholly confine the flood waters therein and hence in part flowed easterly along the northerly side of the railroad. To the south of the railroad the natural channel ran through the approximate center of the Adams ranch and then onwards into the Rio Hondo River.
There is evidence that in 1906 the owners of the Adams ranch erected on their own land, but immediately adjacent and parallel to the railroad right of way on the north, a tight board fence directly across the natural drainage ditch and that this fence extended easterly and westerly of the ditch a total distance of about 1,200 feet, in other words, the whole length of the Adams property. There is likewise evidence that this construction acted as a dam to storm or flood waters and as a consequence that the drainage ditch became filled up with boulders and sand not only on the south side of the right of way, but underneath the trestle, and on and across the north side of the right of way. Moreover, there is evidence that as a result of this damming- up process the storm waters coming down from the north were deflected (at point B on the map) and flowed easterly along the north side of the railroad right of way. There was no evidence that water could get through what had been the trestle opening after it had filled up with boulders and sand. After that condition had arisen the railroad pulled up its trestle and dumped dirt in the holes which had been occupied by its timbers.
The railroad did not at any time remove the boulders and sand which clogged the natural ditch at the point where it crossed its right of way. It did, however, shore up its northerly right of way on either side of, but not across, the natural drainage ditch. However, after the natural drainage ditch was fully blocked, in the manner stated, the railroad shored up the natural channel of the ditch where it had crossed its right of way. Additionally, thereafter the railroad widened and extended the new ditch which ran along on the north side of its right of way. Furthermore, at various times the railroad removed boulders and sand from the new ditch (B to D), as well as from the old portion of the ditch as far north as point A is depicted on the map. This was done to permit the storm waters to flow more freely and as a protection to the roadbed.
Six of the plaintiffs, i.e., James, Mueller, Reinert, Weck, *605 Tonso, and W. R. Kratka, acquired title to their lands from one Platt under deeds, in which was inserted the phrase, "Subject to an unrecorded agreement ... between Platt and Southern Pacific Railway Company." All of these named plaintiffs acquired their lands which are here involved, subsequent to the time the old channel B to C was blocked up.
The agreement recited that the railroad company was to do certain excavating in the new ditch and, in part, on Platt's land; that such work would be for the benefit of Platt's land and the roadbed of the railroad as a protection against storm waters; that Platt should have the right at any time to clean out the new ditch, whether it ran on the right of way or on his own land. As the only portion of Platt's land which was excavated was that acquired by Mr. James and Mr. Mueller the contract was admitted in evidence only in their cases against the railroads.
Beginning with the year 1915, and prior to 1940, the Los Angeles County Flood Control District had acquired title to the right of way of the old flood channel (A to B) and of the new continuation thereof (B to D). In addition the Flood Control had acquired from the plaintiff Kerns a strip of land 25 feet in width running the full distance of his property east and west, i.e., 1674.11 feet. This strip of land immediately adjoined the new channel on its northerly side. Upon this strip for its full length the Flood Control District built a dike 15 feet in height. Likewise the Flood Control District acquired a permit to spread dirt and boulders upon a strip of land immediately adjacent to the south of the new channel which extended all the way from B to D.
Prior to 1906 the original natural ditch from A to B was only about 30 feet in width and about 4 feet in depth north of the railroad and of smaller dimensions south of the railroad. Prior to that year the railroad had excavated a small ditch along its northerly right of way, beginning at the original natural ditch (B), which ran easterly to D. After 1907 the railroad gradually widened and deepened this ditch evidently to meet the silting up process going on in the old ditch and the new, as well. By 1936 the railroad had widened and deepened the new ditch considerably One witness for the plaintiffs stated it was widened to three times its original width. In the meantime it had several times cleaned it out. About 1936 the district undertook to clean out the ditch and to build up the banks along the course of the old and new ditch lying to the north of the railroad. For a period of some *606 three or four years prior to the March, 1943, flood, the district had done little or nothing in the way of cleaning out the ditch.
At the first trial the trial judge at the conclusion of all the evidence directed a verdict in favor of all the defendants. On the appeal therefrom another division of this court affirmed the judgment entered upon the ruling except as to the two named defendant railroads (Weck v. Los Angeles County Flood Control Dist., 80 Cal. App. 2d 182 [181 P.2d 935].)
Upon that appeal the railroads rested their case for an affirmance on three major grounds. First, that there was no evidence that Eaton's Canyon Wash was a watercourse from B to C or for that matter from A to C. Second, that there was no evidence that the railroad companies diverted the flow of the waters of the wash. Third, that there was no evidence of any act by the railroads which proximately caused the waters to leave the channel at A, which it is conceded directly caused the damages. The court ruled that there was substantial conflicting evidence on all of these points and, hence, that the jury should have been permitted to rule on the conflict.
While the railroads on the first appeal contended that the channel B to D should be classed as though it was a part of the natural watercourse or natural drainage ditch (A to B) they did not stress the point nor did they argue, that by reason of lapse of time and the use that was made of the new channel (B to D), they had ceased to be liable for any original diversion or obstruction to the natural channel at B, if such there was on their part. Moreover, in their discussion of the further point that no act of commission or omission on their part was a proximate cause of the injury to plaintiffs, the railroads did not advert at all to the fact that plaintiffs, in their complaints, had alleged that they would not have sustained any injury had it not been for the presence of the dike on the northerly side of the new channel. We pause briefly to state that the evidence on the first appeal disclosed, and the court conceded, that this dike was constructed and maintained by the district alone on an easement owned by it. We do not now stop to discuss what effect these matters of fact should or would have had on the court had they been brought to its attention.
The case upon the second trial below was heard on the original complaint notwithstanding (1) it charged all the defendants (the district as well as the railroads) with a joint liability and (2) averred that had it not been for the construction *607 by all of the defendants of the 15-foot dike none of the plaintiffs would have sustained any damage. The latter averment was not merely an allegation by the plaintiffs that the proximate cause of the injuries sustained by them was the construction of the dike, but it was also a binding judicial admission against the plaintiffs. Yet the evidence is undisputed that it was the Los Angeles Flood Control District which purchased the 25-foot strip of land that ran a distance of 1674.11 feet immediately adjacent to the north of the new ditch and erected the dike thereon and that the railroads had no part in it. If then the dike was the proximate cause and it alone was constructed and maintained by the district it is clear that the railroads were not proximately liable, as by the pleading they were absolved from liability, unless in fact they had joined in the construction and maintenance of the dike, which as stated is not the fact.
Upon the instant appeals before us the railroads assign as major errors (1) the failure of the trial court to direct a verdict; (2) the refusal of the court to permit the jury to consider, on the question of defendants' liability, the evidence introduced tending to show that the owners of the Adams Ranch caused the diversion of the channel away from its natural course; (3) errors in the instructions; and (4) that appellants James, Mueller, Tonso, Weck, Reinert and W. R. Kratka, as successors in interest of Platt were bound by his ratification of the diversion as evidenced by the so- called Platt contract with the railroads.
We are confronted at the outset, as just indicated, with the problem whether the trial judge ruled erroneously when he refused to direct a verdict for the railroads. This particular problem is beset with difficulties for us, as it undoubtedly was for the trial judge. Initially, we feel called upon to consider whether "the law of the case" as made upon the first appeal, binding alike upon the trial judge as it is upon us, required the submission of the case to the jury. In our view, it did not for reasons presently to be stated.
[1] The rule in this state is that the law of the case comprehends only such facts and legal points as are presented to and decided upon a reversal. (Moore v. Trott, 162 Cal. 268 [122 P. 462]; Steelduct Co. v. Henger-Seltzer Co., 26 Cal. 2d 634 [160 P.2d 804].) For instance, if in an action upon a promissory note the defendant pleads payment and the evidence on that question is conflicting, a court on appeal would necessarily rule it was a jury question, where the trial court *608 had directed a verdict for the defendant. If, however, on the second trial the defendant had amended his answer, setting up that the action was barred by the statute of limitations and sustained it by uncontradicted proof the trial court would be under a duty to direct a verdict. This for the simple reason that the appellate court had directed a jury trial on one issue alone, to wit, the issue before it. The question then whether there had or had not been a diversion on the part of the railroads was ruled on the first appeal to be a jury question. But the basic question now before us whether such a diversion, if shown, created a continuing legal liability in view of the facts now before us, was not ruled upon. As the motion below and the appeal likewise have raised that point we proceed to a discussion of it.
[2] If we assume, for the moment, that the railroads in 1907 blocked the natural drainage ditch from B to C and so caused the waters to flow from B to D and then on easterly, we are met with the question whether liability may still stem from the original act of diversion. In 1907 the natural channel from A to B was only about 30 feet in width from bank to bank with a maximum depth of about 4 feet. That the railroad thereafter excavated from time to time, the channel from B to D is the record in this case. It not only removed sand and boulders from it, but before 1936 had widened it quite considerably. If the old natural channel (A, B, to C) was sufficient to carry all storm waters within its banks we fail to see that the diverter was under a duty to construct an artificial ditch which would carry more than the same amount of water without overflowing its banks. We find it hard to believe that one who constructs an artificial ditch is under an obligation to build it so large and so secure that it will carry all the water that may artificially be diverted into it for all time. On the contrary we think that when an artificial ditch has been in operation for as long as 36 years, as is the case here, it must be held that the original act of diversion is no longer a basis of liability and must be classed as if it has just faded away. We think this is particularly true, where as here, the railroads could not reinstall the trestle, or clean out the old ditch and thereby permit the waters to be cast onto the land which is known in the record as the Adams Ranch and where it is plain that the jurisdiction and control over the old and new ditch are exclusively with the district.
[3a] While it has been said, particularly in cases decided decades ago, that liability for diversion never ceases, we think *609 it cannot be said to be the rule today. (Cf. Barkley v. Wilcox, 86 N.Y. 140 [40 Am. St. Rep. 519]; 3 Farnham, Waters and Water Rights, 889d, p. 2606.) Moreover, these early cases dealt for the most part with the diversion of streams valuable for their waters. As there is a vital distinction between diverting waters from a watercourse and guarding against storm or flood waters, we turn to expand a bit further on the subject.
[4] Since very early times it has been a well-established principle of law that waters flowing in a stream in a natural watercourse through or adjoining a person's lands could not be diverted by upper landowners to the damage of lower riparian landowners. The reason back of this rule is self-evident. The pivotal question in every such case has been whether or not there is in fact a watercourse. Hence, the courts were early compelled to define what was meant by the term "watercourse" and quite naturally held that "a water course is a stream of water of such well- defined existence as to make its flow valuable to the owners of land along its course" (3 Farnham, Waters and Water Rights, 878, p. 2556, n. 1. See, also, vol. 2, 459, p. 1562; see, also, Hellman Commercial Tr. & Sav. Bank v. Southern Pac. Co., 190 Cal. 626 [214 P. 46].)
A natural stream of water, generally speaking, is something of value to lands adjacent to its course. But such a stream when augumented with storm or flood waters is quite the reverse, unless there is a need for such excess waters. Hence, the courts quite naturally held that adjacent landowners along the watercourse were entitled to erect barricades on their lands to prevent storm or flood waters in such a natural watercourse from inundating or otherwise damaging them. This was in no sense a diversion of the waters, but rather an endeavor to confine the waters to their channels.
From what has been said it is apparent that to speak of Eaton's Canyon Wash as a watercourse is a misnomer, but quite too often the courts have done so because in large measure the rules applicable are the same. But in truth the "Wash" in this case was merely a natural drainage ditch; i. e., the natural course taken by storm and flood waters which flowed only more or less periodically. Such waters, being entirely annual and intermittent, possessed no value to lands adjacent to the course they tended to follow, as for instance, a natural ditch created by their more or less periodic flows. *610
[5] Storm or flood waters are not surface waters although before flowing in the channel of a ditch they may have been of that character. "The chief characteristic of surface water is its inability to maintain its identity and existence as a water body" (3 Farnham, Waters and Water Rights, 878, p. 2557, n. 7, citing Gray v. McWilliams, 98 Cal. 157 [32 P. 976, 35 Am. St. Rep. 163, 21 L.R.A. 593]). "The weight of authority, as well as of reason, is that flood water is not, and cannot be treated as, mere surface water" (3 Farnham, Waters and Water Rights, 879, p. 2558). "Flood water ... must be treated as in a class by itself, and it cannot be treated either as a water course or as surface water" ( 879, p. 2559, n. 8). Upon these premises how should storm or flood waters, not flowing as a part of a natural constant stream of water and without value to property owners along the drainage ditch, be treated? In an endeavor to solve the problem the early decisions in this country accepted the doctrine of "no diversion of waters from a natural watercourse" as being a sufficient and all embracing guide. But those decisions were rendered at a time when the country was largely unsettled or agricultural and not urbanized, as was the case in California in its early days. But we have come upon a new era with new problems which cannot be settled by the laws of nature with respect to the flow of storm and flood waters, where man today is able to block those laws. Storm and flood waters which a century ago could readily have been absorbed by the great open spaces where they normally flowed are now blocked with huge cities and so must seek--in effect--artificial channels as they flow according to the laws of gravity. [3b] We should not hold back the normal development and improvements of lands by saying to those who divert natural drainage ditches into artificial ones that liability for diversion never ceases. If at the time of the diversion the artificial channel is adequate to care for all reasonably anticipated storm or flood waters under the then existing conditions of the landscape it should be deemed adequate. There should be no obligation to construct the artificial channel so large and so efficient that it will care for excess storm and flood waters which may flow into it caused by subsequent artificial conditions such as the building of cities and highways which prevent absorption by the lands of such waters and so artificially increase their flow.
We are not without support for these views in the decisions of this state. In San Gabriel Valley Country Club v. Los *611 Angeles, 182 Cal. 392 [188 P. 554, 9 A.L.R. 1200], the waters of Eaton Canyon were diverted in part, as here, from their natural course by the construction of a storm drain. As a result the waters formed a channel which passed through the grounds of the plaintiff club where they had never passed before. Later on the defendant improved the channel. In speaking of the channel the court said: "In any event, it has now existed for such a length of time as the channel for the natural drainage of the watershed tributary to it, that the manner of its creation is not material, and it has all the attributes of a water channel wholly natural in origin." So in Chowchilla Farms, Inc. v. Martin, 219 Cal. 1 [25 P.2d 435], it was held that where waters had been diverted through an artificial canal for a number of years, it would be regarded as though it were a natural course. In the course of its opinion the court quoted from 1 Wiel on Water Rights, section 60, in part as follows: " 'There is further an established principle that by lapse of time an artificial watercourse may come to be regarded as equivalent to a natural one. These cases do not depend exactly upon prescription, for, as above shown, prescription, properly speaking, cannot run in favor of lower parties upon a flow as against parties higher up. They rest rather upon what some of the cases call ordinary dedication to a class of public which, in the course of time, has established itself upon the basis of the artificial condition. Where the creator of the artificial condition intended it to be permanent, and a community of landowners ... has been allowed to adjust itself to the presence and existence of the ... artificial condition, acting upon the supposition of its continuance, and this has proceeded for a long time beyond the prescriptive period, the new condition will be regarded as though it were a natural one, its artificial origin being then disregarded by the law as it has been by the community."
Quite regardless of what has so far been said we are of the opinion that the case, in any event, must be reversed upon the ground that the trial court committed reversible error (1) in its refusal to admit for all purposes evidence as to the barricade constructed by the owners of the Adams Ranch; (2) in the instructions given to the jury; and (3) in not holding as a matter of law that appellants James, Mueller, Tonso, Weck, Reinert and W. R. Kratka could not recover in view of the Platt contract and the ratification thereby of the diversion.
[6a] As has already been indicated, the trial court admitted evidence which disclosed the erection of the barricade upon *612 the Adams land by the occupant thereof and evidence tending to prove that this act alone caused the channel to silt up and that it was the original proximate cause which turned the waters so that they flowed from B to D. The trial judge, however, permitted this evidence not to prove the inherent facts, but for the limited purpose of showing that on March 3 and 4, 1943, "there was no wash south of the railroad tracks."
The statement just quoted was made by the court to the jury at the time of its admission, with this further statement: "... the evidence is not admitted for the purpose of indicating at all, ladies and gentlemen, that because somebody else did something the Southern Pacific or the Southern Pacific Railroad Company is excused from anything they did or failed to do. It is admitted solely in connection with the claim of the defendant that there was no wash south of the railroad tracks. You are to understand that the reception of this evidence, if established, does not in any wise relieve the Southern Pacific Company or the Southern Pacific Railroad Company for anything they did or failed to do. Now, I am not indicating at all to you that they did or failed to do anything, that is up to you to decide, but the fact that somebody else did something or did not do something has no bearing on their liability, the liability of the defendants in this case, or either of them ..." (Italics supplied.)
The trial court, as appears from the transcript, proceeded upon the theory that the railroads and the owners of Adams Ranch were joint tort feasors, even if the latter initially blocked the natural channel (B to C) and hence that the railroads could not shift their liability by a showing of the true fact. The ruling would have been correct if the parties were shown to have been joint tort feasors, but that necessary premise was lacking and consequently the ruling was not only erroneous, but highly prejudicial. [7] In order that two or more persons (including corporations as persons) may be said to be joint tort feasors it is essential that it be shown that the parties acted in concert to achieve a result or that the actor was authorized by the other to act in his behalf. [6b] Here the action of the owners of the Adams Ranch was not shown to have been participated in or authorized by the railroads. The fact, if it be a fact, that the owners of the Adams Ranch blocked the natural drainage course and prior, or subsequent thereto the railroads did likewise, if they did, would not in and of itself show that the parties were acting in concert and as a consequence could be held to be joint tort feasors. As *613 the proper premise was wanting the conclusion was erroneous. (Cf. Thome v. Honcut Dredging Co., 43 Cal. App. 2d 737 [111 P.2d 368]; California Orange Co. v. Riverside Portland Cement Co., 50 Cal. App. 522 [195 P. 694]; Wm. Tackaberry Co. v. Sioux City Serv. Co., 154 Iowa 358 [132 N.W. 945, 134 N.W. 1064, Ann.Cas. 1914A 1276, 40 L.R.A.N.S. 102]; 56 Am.Jur. 522, 523.) Accordingly, the railroads were entitled to introduce evidence to show that the owners of the Adams Ranch blocked the course of the natural drain and that this, without any action on their part, was the proximate cause of the diversion of the channel from B to C to the new channel B to D. The railroads were under no duty to eliminate the blockade so long as it was not caused by their trestle or any other act on their part. The railroads could accept the results of the blockade without taking any affirmative action to eliminate it. [8] Railroads, like any other private owner of lands, are under no duty to go into a natural drainage channel or ditch and remove therefrom debris, sand and boulders which interfere with the free flow of waters so long as they have not erected or placed therein any obstruction to such flow. This is elemental law. [6c] If, as the railroads contended, the owners of the Adams Ranch, by means of the barricade, caused the natural channel to silt up on the north side of the right of way, underneath the trestle and on the south side of the right of way and thus caused the diversion, they were entitled to show those facts, if they could. If as is contended, the railroads removed the timbers of the trestle and filled in the spaces occupied by such timbers such action gave rise to no legal liability, if the action of the owners of the Adams Ranch initially was alone sufficient to divert the channel so that it followed the course B to D rather than B to C. The railroads on such an hypothesis of facts may not be said to have adopted the acts of the actors in the scene. They merely accepted an existing condition and made use of it, for their own purposes, without expanding upon it. Accordingly, the refusal on the part of the trial court to accept the facts as tending to show a want of legal liability on the part of the railroads was prejudicial error. If the jury had been permitted to consider the facts on the basis of legal liability it might well have concluded that the owners of the Adams Ranch rather than the railroads created the diversion.
In view of what has been said it is unnecessary to discuss the error in refusing to give certain requested instructions and additional errors assigned by appellants. *614
As we are firmly of the view that the court should have directed a verdict for the defendant railroads, the case is reversed with instructions to enter up a judgment for the defendants notwithstanding the verdict. The appeals from the minute order and order denying motion for new trial are dismissed.
White, P. J., and Drapeau, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1380105/ | 94 Ga. App. 465 (1956)
95 S.E.2d 341
MITCHELL
v.
ASBURY.
36181.
Court of Appeals of Georgia.
Decided September 28, 1956.
Rehearing Denied October 17, 1956.
W. R. Bentley, Northcutt & Edwards, W. S. Northcutt, Edwin R. Johnston, for plaintiff in error.
S. T. Ellis, Ernest M. Smith, contra.
FELTON, C. J.
In support of his plea of accord and satisfaction the defendant alleged that all moneys which had become due to the plaintiff under the contract sued on had been paid by a check given to the plaintiff and accepted by him in full settlement of the account. The plaintiff contends that he did not accept such check in full settlement of the amount due, but only as a part payment thereof. The check contained on its face the notation, "In full settlement of account." The plaintiff testified that he took the check to the Farmers Bank in Locust Grove and had it certified. The check is still in the plaintiff's possession. The evidence demanded the finding in favor of the defendant on its plea of accord and satisfaction. "If a creditor remits a sum of money to his debtor, though less than the amount actually due, with the understanding, either express or implied, that it is in satisfaction of his debtor's claim, and the latter accepts and retains it, accord and satisfaction of the demand results therefrom, and the balance, insofar as our law is concerned, may not thereafter *466 be recovered by the creditor in an action instituted for that purpose (Chicago Ry. Co. v. Clark, 178 U.S. 353, 366, 20 Sup. Ct. 924, 44 L. ed. 1099); and this is true under our law whether the debtor's claim or demand be liquidated or unliquidated, disputed or undisputed." Rivers v. Cole Corp., 209 Ga. 406, 408 (73 S.E.2d 196). The certification of the check by the bank at the instance of the plaintiff amounted to a payment of the check as to all parties except the plaintiff and the bank. Thompson v. Thompson, 203 Ga. 128 (2a) (45 S.E.2d 632). The notation placed on the check by the bank at the time it was presented for certification was: "Good for 3224.27. When properly endorsed March 13, 1954, (Signed) Julian A. Brown." The plaintiff contends that such notation did not amount to a certification of the check because it does not appear that Julian A. Brown was authorized to certify the check. This notation is not the only evidence concerning the certification. The plaintiff testified that he took the check to the bank for the purpose of having it certified so that he would have at least the face amount of the check in case he could not collect the balance he alleged was due him. He further testified that the check was certified. This did not amount to a mere conclusion on his part because he could have based the testimony that the check was certified on the fact that he knew Julian A. Brown was a person authorized to certify checks for the Farmers' Bank.
At the end of each year's operation the parties would make up a settlement sheet which reflected the year's operation and from which a settlement for that year was taken. While the settlement sheets for the prior years contained the notation, "Subject to correction of any errors or omissions," the settlement sheet for the year 1953, the final year of operation between the parties, did not contain such a notation.
The remaining assignment of error which complains of the exclusion of certain evidence is without merit. Since the evidence excluded did not relate to the issue of acceptance of the check and its certification, and since the evidence concerning that issue demanded a finding for the defendant, the exclusion of the evidence was not error.
Since the evidence demanded a verdict in favor of the defendant on his plea of accord and satisfaction, the court did not err *467 in directing a verdict for the defendant and in denying the amended motion for a new trial.
Judgment affirmed. Quillian and Nichols, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1380111/ | 786 F. Supp. 549 (1992)
Emory HILL and Myrtice Hill, as Guardians ad Litem for Harlas Hill, Plaintiffs,
v.
HONEY'S INC., d/b/a Sheraton Palmetto and Honey Properties, Inc., Defendants.
Civ. A. No. 6:91-2327-20.
United States District Court, D. South Carolina, Greenville Division.
March 16, 1992.
Thomas W. Traxler, Greenville, S.C., for plaintiffs.
Theron G. Cochran, Greenville, S.C., for defendants.
ORDER
HERLONG, District Judge.
This matter is before the court on the defendants' motion for summary judgment. For the reasons stated below, the defendants' motion is granted.
The plaintiffs, the Guardians ad Litem for Harlas Hill ("Hill"), brought this suit seeking compensation for injuries Hill sustained in an accident. He was injured while riding in an automobile driven by Sheila Dickey ("Dickey"). At the time of the accident, Dickey was employed by the Sheraton Palmetto Hotel in Greenville which was owned and operated by the defendants, Honey's, Inc. and Honey Properties, Inc. (collectively "the Sheraton").
On December 18, 1988, the Sheraton had a Christmas party for its hotel employees and their guests. The party was a social event, and attendance was voluntary. Food, non-alcoholic and alcoholic beverages[1] were provided. The Sheraton paid for the party and treated it as a business expense. Like the other employees of the Sheraton, Dickey was invited to the Christmas *550 party. She attended the party and took Hill as her guest. The party began around 7:00 p.m. and continued until midnight or shortly thereafter.
On the evening of December 18, before the party began, Hill went to Dickey's home. While there, they both used cocaine and smoked marijuana. Dickey then drove them in her automobile to the party. While at the party, they had a few drinks. Around 9:30 or 10:00 p.m., Dickey and Hill left the party to purchase more cocaine. After doing so, they returned to the Sheraton's parking lot and used some of the cocaine. They then returned to the party and had more drinks. There is no evidence of what time Dickey and Hill left the party.
At approximately 1:40 a.m. Dickey drove her automobile into the rear of a tractor trailer. Hill was seriously injured and has been in a coma since the accident. About an hour after the accident, urine and blood samples were taken from both Hill and Dickey. Hill's urine sample tested positive for cannabinoids and cocaine. His blood sample revealed that he had 189 mg/dl percent of alcohol in his blood at the time the sample was drawn. Dickey also tested positive for cannabinoids and cocaine. Her blood sample revealed that she had 171 mg/dl percent of alcohol in her blood at the time the sample was taken. Dickey subsequently pleaded guilty to felony DUI in the Court of General Sessions for Greenville County.
The plaintiff has asserted two causes of action against the Sheraton. The first is that the Sheraton is directly liable to the plaintiffs because it was negligent and reckless for providing alcohol to Hill and Dickey when it knew or should have known that they were intoxicated. The second cause of action is for vicarious liability for the acts of negligence and recklessness on the part of Dickey, an employee of the Sheraton.
The Sheraton claims that it is not directly liable to the plaintiffs because it was acting as a social host. Under South Carolina law, "a social host incurs no liability to third parties when he serves alcohol to his adult guests." Garren v. Cummings & McCrady, Inc., 289 S.C. 348, 350, 345 S.E.2d 508, 510 (Ct.App.1986). The Sheraton argues that Garren is applicable to the case at bar.
The plaintiffs cite the case of Ballou v. Sigma Nu General Fraternity, 291 S.C. 140, 352 S.E.2d 488 (Ct.App.1986) to support its argument that even if the Sheraton were a social host, it is still directly liable to the plaintiffs. In Ballou, the South Carolina Court of Appeals held that a fraternity could be liable for its participation in getting a pledge fatally intoxicated.
The facts of Ballou are quite different from those in the case before this court. Ballou involved a fraternity initiation party called "Hell Night" which pledges were required to attend. At the initiation, the active members coerced the pledges into drinking excessive amounts of alcohol. Getting the pledges drunk was apparently the main purpose of the initiation party. One of the pledges drank so much alcohol that he lost consciousness. No one in the fraternity sought medical attention for the pledge, and he subsequently died. The South Carolina Court of Appeals quoted with approval an Oregon case that stated "abandonment of a guest who had been maimed and injured after having been made helplessly drunken by her host is another breach of duty." Ballou, 291 S.C. at 147, 352 S.E.2d at 493 (quoting Ibach v. Jackson, 148 Or. 92, 111, 35 P.2d 672, 680 (1934)).
In the case at bar, attendance at the Sheraton's Christmas party was completely voluntary, and the Sheraton did not coerce its guests into drinking excessively. The Sheraton merely provided its guests with alcoholic beverages which they could accept or reject as they saw fit. Furthermore, the plaintiffs have presented no evidence that either Hill or Dickey was in a helpless position at the party.
The plaintiffs' main argument in support of their direct liability claim is that the role of the Sheraton in giving the party was not one of a social host, but was rather one of an employer. They claim that the party was a business function that advanced the Sheraton's business purpose of maintaining *551 employee morale and goodwill. Because the Sheraton was acting as an employer, it had a higher degree of responsibility than a social host who serves alcohol. In support of this argument, the plaintiffs cite Chastain v. Litton Systems, Inc., 694 F.2d 957 (4th Cir.1982), cert. denied, 462 U.S. 1106, 103 S. Ct. 2454, 77 L. Ed. 2d 1334 (1983). The Fourth Circuit Court of Appeals found that the case presented questions of first impression in North Carolina whose laws governed the case. No North Carolina court had decided if an employer who gives an office party is a social host. The court held that it was for the jury to decide if the employer were acting as a social host, and not liable, or advancing its business interests, and thus, open to liability. Relying upon North Carolina's common law and Dram Shop laws, the court indicated that if the employer were not a social host, "we conclude that Litton [the employer] was negligent if it failed to exercise ordinary care in furnishing, or permitting its employees to furnish, alcoholic beverages to Beck [the employee] knowing that he had become intoxicated." Id. at 962.
In Chastain, the party was held on the employer's premises and began at 8:00 a.m. and continued during normal working hours. All the employees were required to check in by 8:00 a.m. in order to be paid for the day, although they could leave at any time. The Fourth Circuit found that it was for the jury to decide if the party were purely a social event or whether it advanced business interests.
Unlike North Carolina, South Carolina has spoken on the subject of the liability of employers who provide alcohol at office parties. In Garren, the South Carolina Court of Appeals found that the employer, who gave a party and served alcohol, was a social host who was not liable for the injuries caused by an employee who became drunk at the party.[2]
In view of the law of South Carolina as expressed by Garren, this court holds that the Sheraton was a social host and therefore not directly liable for the injuries caused by its employee after she drank alcohol at the Christmas party.
The plaintiffs also contend that the Sheraton is vicariously liable for the negligence and recklessness of its employee, Dickey. In order for an employer to be liable for the torts of its employee, the employee must be acting within the scope of his employment. Hyde v. Southern Grocery Stores Inc., 197 S.C. 263, 15 S.E.2d 353 (1941). An act is within the scope of employment if it is done in furtherance of the employer's business. Gathers v. Harris Teeter Supermarket Inc., 282 S.C. 220, 317 S.E.2d 748 (Ct.App. 1984).
This court holds that the Sheraton's Christmas party was a social event, and Dickey was not acting within the scope of her employment when she was drinking at the party. Nor was she acting within the scope of her employment when she was driving home after the party. The Sheraton is not vicariously liable for the injuries caused by Dickey's driving under the influence of drugs and alcohol.
For these reasons, this court holds that the Sheraton is not liable, either directly or vicariously, for the injuries sustained by Hill. The defendants' motion for summary judgment is hereby granted.
IT IS SO ORDERED.
NOTES
[1] The Sheraton hired an outside bartender to serve the drinks.
[2] Because Chastain was decided before Garren and is indeed cited in Garren, it can be inferred that the South Carolina Court of Appeals was aware of, and rejected, the Fourth Circuit's conclusion that under North Carolina law it is for the jury to decide if an employer is a social host when holding an office party. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1380390/ | 594 F.3d 200 (2010)
In re RELIANT ENERGY CHANNELVIEW LP, et al., Debtor.
Kelson Channelview LLC, f/k/a Kelson Energy IV, LLC, Appellant.
No. 09-2074.
United States Court of Appeals, Third Circuit.
Argued November 3, 2009.
Filed: January 15, 2010.
*202 Andrew K. Glenn (argued), Kasowitz, Benson, Torres & Friedman, New York, NY, Garvan F. McDaniel, Bifferato Gentilotti, Wilmington, DE, for Appellant.
Cory D. Kandestin, Robert J. Stearn, Jr. (argued), Richards, Layton & Finger, Wilmington, DE, for Appellees.
Before: SCIRICA, Chief Judge, and JORDAN and GREENBERG, Circuit Judges.
OPINION OF THE COURT
GREENBERG, Circuit Judge.
I. INTRODUCTION
This matter comes on before this Court on appeal from an order of the District Court entered on March 31, 2009, affirming March 18, 2008 and June 9, 2008 orders of the Bankruptcy Court in proceedings arising from the sale of a major asset of the Debtors' estate in this bankruptcy proceeding. The Bankruptcy Court denied the request of an unsuccessful bidder for the asset, Kelson Channelview LLC ("Kelson"), for disbursement of administrative expenses in the form of a break-up fee from the estate in the March 18, 2008 order, and then in the June 9, 2008 order approved the sale of the asset to Fortistar, LLC.[1] Kelson appealed but the District Court affirmed the orders of the Bankruptcy Court. In re Reliant Energy Channelview LP, 403 B.R. 308 (D.Del. 2009). We will affirm the order of the District Court and, in effect, the order of the Bankruptcy Court of March 18, 2008.
II. BACKGROUND
The Debtors in the Chapter 11 proceedings, Reliant Energy Channelview LP and Reliant Energy Services Channelview LLC (together, the "Debtors"), decided to sell their largest asset, a power plant in Channelview, Texas.[2] With the assistance of consultants with expertise in the energy industry, the Debtors contacted 115 potentially interested purchasers. This substantial effort was fruitful for 38 potential bidders executed confidentiality agreements with respect to a possible purchase, and 24 went further and conducted due diligence on the purchase. Ultimately 12, including Fortistar, made bids for the plant. Many of the bids, however, were contingent on the bidder obtaining financing, a difficult undertaking in the then *203 prevailing business environment. Kelson, however, submitted a complete bid of $468 million not contingent on financing and was selected as the winning bidder. Consequently, Kelson entered into an Asset Purchase Agreement ("APA") with the Debtors for the power plant.
Inasmuch as the Debtors were in bankruptcy, consummation of the APA required the Bankruptcy Court's approval. Consequently, the APA provided that the Debtors immediately would seek an order from the Bankruptcy Court allowing the sale. Moreover, the Debtors agreed that they would seek an order approving certain "bid protections and procedures" for Kelson's benefit if the Court determined that there should be an auction for the plant before its sale. These proposed bid protections and procedures provided that Debtors could not accept a competing bid unless it exceeded Kelson's bid by $5 million. Furthermore, the proposed bid protections and procedures provided that if a competing bid was accepted, Kelson would be entitled to a $15 million break-up fee, about three percent of its bid, as well as reimbursement for expenses it incurred in the sale process up to $2 million. The practice of paying a break-up fee to an initial bidder for assets has developed in bankruptcy and other contexts to compensate the bidder for memorializing its interest in acquiring the asset, an interest which sometimes, as we will explain below, can be useful to the asset's seller even if the bid is not accepted.
As the APA required, the Debtors requested that the Bankruptcy Court authorize the sale of the plant to Kelson without conducting an auction. In that motion, the Debtors asserted that the Kelson bid "represents the highest and best offer available for the Debtors' assets and that further marketing of the assets will not result in a higher purchase price." App. at 198. The Bankruptcy Court delayed its decision on this motion when one of the Debtors' equity holders objected to the fast pace of the transaction.[3] Ultimately, however, the Court would not approve the sale to Kelson without an auction for the plant.
When the Court delayed the approval of the sale, the Debtors, with the support of their Creditors, asked the Court to authorize the bid protection measures that we have described. However, Fortistar, which previously had submitted a losing contingent bid, objected to this request and asserted that it was willing to enter a "higher and better" bid at an auction, but the $15 million break-up fee along with the $2 million reimbursement for expenses would be a deterrent to it doing so.
The Bankruptcy Court held a hearing to consider authorization of the bid protections at which, among others, William Hardie, the consultant to the Debtors in charge of shopping the assets, and Andrew Johannensen, an officer of the Debtors, testified. Hardie described the process the Debtors had followed in seeking a buyer and explained that the Debtors dropped Fortistar from consideration as a purchaser when it lost its financing. At that point, the Debtors and their creditors decided to sign the APA with Kelson as its consummation would result in the full compensation of all the Debtors' creditors, and Kelson's bid was for a fair price and was financed fully.
Hardie thought that by reason of all the work that had been done in seeking bidders *204 there was no need for an auction as the Debtors already had obtained the best price for the plant. Moreover, Hardie explained that in view of the advantages of the Kelson bid the Debtors were willing to seek the bid protections Kelson sought and he believed that Kelson would not have agreed to make its bid unless the Debtors agreed to seek the bid protections. Finally, Hardie thought that the Kelson APA benefitted the Debtor's estate because it established a floor price and terms for the sale of the assets. On cross-examination Hardie acknowledged, however, that Kelson would be bound by its offer even if the Court rejected the bid protections, though he suggested that Kelson would find a way to avoid its commitment if it desired to do so.[4] Johannensen's testimony was similar to that of Hardie.
The Bankruptcy Court nevertheless declined to approve the sale of the plant without an auction and, in a ruling from the bench, said that in deciding whether to approve the bid protections it had to consider whether they would enhance or chill bidding. In particular, the Court believed that it was required to decide whether the proposed protections would benefit the estate:
It's hard generally to consider how bid protections or break-up fees protect the estate. I've heard the arguments and have approved them in the case where the ... parties have convinced me that it is the only way to get other bidders, any bidder to the table. But I'm not convinced in this case that that is the case. There are other bidders, at least one other bidder. And I have in the past denied break-up fees in circumstances where another party had appeared and expressed an intention to bid at the auction.[5]
App. at 589.
Ultimately the Bankruptcy Court entered its March 18, 2008 order approving the $5 million "overbid" requirement which required that bids competing with Kelson's bid must exceed it by $5 million. In addition, the Court approved the reimbursement to Kelson for expenses it incurred in the transaction up to $2 million. Finally, however, in the provision of its order at issue on this appeal, the Court refused to authorize payment of the $15 million break-up fee.
Kelson did not participate in the subsequent auction, and, in fact, argued that its offer was no longer available. Fortistar, however, submitted the winning, now fully financed bid, which topped Kelson's bid by $32 million. In accordance with the Bankruptcy Court's decision, the Debtors did not pay Kelson the $15 million break-up fee, although they did pay Kelson for its expenses.[6]
After the Bankruptcy Court entered an order on June 9, 2008, approving the sale to Fortistar, Kelson appealed to the District Court from the order denying the payment of the $15 million break-up fee, arguing that the Bankruptcy Court abused its discretion by denying Kelson's request for the fee. Kelson also argued that it was a stalking-horse bidder entitled to a break-up *205 fee as a matter of fundamental fairness and contended that the Debtors were estopped from opposing its appeal because they supported its request for the break-up fee in the Bankruptcy Court. The District Court rejected Kelson's arguments and affirmed the March 18, 2008 and June 9, 2008 orders of the Bankruptcy Court and thus the District Court did not allow the payment of the break-up fee. Kelson then filed this appeal of the District Court's order to the extent that it affirmed the Bankruptcy Court's order of March 18, 2008.
III. JURISDICTION AND STANDARD OF REVIEW
The Bankruptcy Court had initial jurisdiction over the matter now before us as it concerned the administration of the estate. 28 U.S.C. § 157(b). The District Court had jurisdiction to review Kelson's appeal under 28 U.S.C. § 158(a),[7] and we have jurisdiction to review the District Court's final decision under 28 U.S.C. § 158(d)(1).
We exercise plenary review over the decision of the District Court sitting as an appellate court in this bankruptcy proceeding and consequently we review the ruling of the Bankruptcy Court. See Lowenschuss v. Resorts Int'l, Inc. (In re Resorts Int'l, Inc.), 181 F.3d 505, 509 (3d Cir.1999). We review the Bankruptcy Court's legal determinations de novo, its factual determinations for clear error, and its decision denying the break-up fee on an abuse of discretion standard. See Interface Group-Nevada, Inc. v. Trans World Airlines, Inc. (In re Trans World Airlines, Inc.), 145 F.3d 124, 131 (3d Cir.1998).[8]
IV. DISCUSSION
A. The O'Brien Standard
In Calpine Corp. v. O'Brien Env't Energy, Inc. (In re O'Brien Env't Energy, Inc.), 181 F.3d 527 (3d Cir.1999) ("O'Brien"), we set forth the controlling legal principles applicable on this appeal. In O'Brien, the debtor, after considering bids from several interested buyers for certain of its assets, entered into an asset purchase agreement with Calpine Corporation, which conditioned its bid on the parties' ability to secure Bankruptcy Court approval of a $2 million break-up fee. The debtor, supported by many of its creditors, sought approval for the fee from the Bankruptcy Court. Nevertheless, the Court denied the application, stating that a break-up fee would complicate or even chill the bidding process. However, the Court gave Calpine permission to renew its application after an auction for the sale of the assets.
Notwithstanding Calpine's insistence that it would not make an offer without the assurance of a provision for a break-up fee, it did enter the bidding process. After a different bidder made the best offer, Calpine renewed its request for a break-up fee, but the Court denied the request after an evidentiary hearing. Calpine appealed and, after the District Court affirmed, Calpine appealed to our Court.
Calpine argued to us that it was seeking the fee under "applicable case law," but we *206 rejected this contention. We held that courts do not have the authority to create new ways to authorize the payment of fees from a bankruptcy estate, and the methods of recovering fees from an estate are limited to the procedures established by the Bankruptcy Code. We concluded that a bidder must seek a break-up fee under 11 U.S.C. § 503(b), which, so far as germane here, permits payment of post-petition administrative expenses for the "actual, necessary costs and expenses of preserving the estate." We also held that there was no "compelling justification for treating an application for a break-up fee and expenses under § 503(b) differently from other applications for administrative expenses under the same provision." O'Brien, 181 F.3d at 535.
Therefore, we indicated that in considering requests for break-up fees, we would apply the general standard used for all administrative expenses"the allowability of break-up fees, like that of other administrative expenses, depends upon the requesting party's ability to show that the fees were actually necessary to preserve the value of the estate." Id. Focusing specifically on break-up fees, we noted that it was permissible to offer a break-up fee and reimbursement for expenses to induce an initial bid, provided the allowance of the fee does not give an advantage to a favored purchaser over other bidders by increasing the cost of acquisition. We also indicated that a break-up fee is not "necessary to preserve the value of the estate" when the bidder would have bid even without the break-up fee. Id. (citing Bruce A. Markell, The Case Against Breakup Fees in Bankruptcy, 66 Am. Bankr.L.J. 349, 359 (1992)).
Applying this standard to the facts in O'Brien, we found that Calpine would have made its bid even without the assurance of a break-up fee, as it indeed did. For this reason, among others, we found that an award of a break-up fee was not necessary to preserve the value of the estate and we affirmed the order of the District Court and thus the order of the Bankruptcy Court denying allowance of the fee.
B. Application of O'Brien To This Case
Under O'Brien, we must decide whether an award of a break-up fee was necessary to preserve the value of the Debtors' estate. In this regard, we recognize that it could be argued that in either or both of two ways a break-up fee could have preserved the value of the estate. First, the opportunity to obtain a break-up fee could have induced Kelson to make its bid before the Bankruptcy Court ordered the auction, and second, the provision for a break-up fee may have been necessary to induce Kelson to adhere to its bid after the Court ordered the conducting of the auction.[9]
1. Was a break-up fee needed to induce the first bid?
Kelson's bid undoubtedly provided a benefit to the estate by establishing a minimum *207 price and a complete set of offer terms and, in fact, the Bankruptcy Court required that any competing bid exceed Kelson's bid by at least $5 million. Indeed, it is plausible to believe that an initial bid, ordinarily or perhaps even always, will provide a benefit to an estate because it will establish a floor price for the assets to be sold. But we have to decide a different question, i.e., was an award of a break-up fee necessary to produce this benefit and preserve the value of the estate?
We recognize that the first bidder in a bankruptcy sale necessarily takes a risk at least to the extent of investing the time, money and energy needed to produce its bid.[10] Nevertheless, while we understand that the first bidder may be motivated in part to submit its bid by the possibility that it will receive a break-up fee, it does not follow from that motivation that the bidder will withdraw its bid, pass up on the opportunity to acquire the asset to be sold, and nullify its work in preparing its bid if a court, when ordering that there be an auction of assets, declines to authorize a break-up fee to be paid to the initial bidder. Surely O'Brien makes that clear because even though Calpine had made its bid contingent on the award of a break-up fee, it competed at the auction after the Bankruptcy Court rejected the request for a break-up fee.
Here, however, Kelson argues that the provision of a break-up fee was necessary to entice it to bid, but the facts do not support this argument. We are satisfied that it is clear beyond doubt that Kelson did not condition its bid on the presence of a provision for a break-up fee, although it did condition the bid on the Debtors' promise to seek authority to pay it such a fee. Thus, section 8.1(d) of the APA provided that "Sellers shall ... file a bidding procedures motion with the Bankruptcy Court ... seeking the entry of an order approving the bid protections." App. at 288 (emphasis added). These bid protections included the break-up fee. Accordingly, there is no escape from the fact that Kelson did make its bid without the assurance of a break-up fee, and this fact destroys Kelson's argument that the fee was needed to induce it to bid.[11] Rather, the mere possibility of the payment of a break-up fee was sufficient for that purpose.
2. Was a break-up fee needed to preserve Kelson's bid?
The record suggests that although an assurance of a break-up fee may not have been needed to induce Kelson's bid, it nevertheless could have been useful to assure that Kelson adhered to its bid rather than abandoning its attempt to purchase the plant in the event that the Bankruptcy Court required an auction for its sale. A break-up fee certainly provides a benefit to *208 an estate if a bidder remains committed to a purchase, though, as we have explained, we see no reason to believe that bidders who already have made a full and complete bid necessarily will abandon their efforts to obtain an asset without an assurance of a break-up fee. In this case, the Bankruptcy Court believed that the provision for the fee would deter other possible purchasers from bidding for the plant and would outweigh any possible benefit achieved for the estate by keeping Kelson committed to the purchase through the provision for the break-up fee.
Clearly, the Bankruptcy Court was faced with a difficult choice. If the Court denied the break-up fee, then Kelson might abandon the purchase, as it supposedly did. If another suitable bid had not materialized and Kelson had walked away permanently from the purchase, the estate would have been harmed severely by the denial of a break-up fee. To avoid this result, the Court could have granted a break-up fee to secure Kelson's existing bid. Nevertheless, the Court decided that a $15 million break-up fee was not necessary for the protection of the estate. This decision, which we view from the Court's perspective on March 18, 2008, was justified by (1) Fortistar's assertion that it planned to continue bidding, (2) the binding language of the APA, and (3) the logical belief that Kelson would not abandon a fully negotiated agreement if no other bidder materialized. Though we do not decide the case on the basis of our knowledge of what happened after the Court denied the fee, as we decide the case on the basis of the record as of March 18, 2008, when the order from which Kelson appealed to the District Court was entered, there is no escape from the fact that the Bankruptcy Court's decision was shown to be correct when Fortistar placed a substantially higher bid for the assets.
3. Conclusion
We cannot say that the Bankruptcy Court abused its discretion in its application of the O'Brien standard. Though the allowance of a break-up fee might have benefitted the estate, Kelson made its bid before the auction knowing that it might not receive a break-up fee, and a retroactive grant of a break-up fee could not have induced a bid that Kelson already had made. Though, as we have made clear, the estate might have benefitted if on March 18, 2008, the Bankruptcy Court had provided for a break-up fee to secure Kelson's adherence to its earlier bid, the Court found that the potential harm to the estate that a break-up fee would cause by deterring other bidders from entering the bid process outweighed that benefit. We cannot say that the Bankruptcy Court abused its discretion in reaching its result.
C. Application of the Business Judgment Rule Instead of O'Brien
Kelson bases a substantial portion of its argument on the circumstance that none of the Debtors' creditors or equity holders objected to its request for a break-up fee. Kelson points out that the business judgment rule would have been applied to the Debtors' decision to support the award of a break-up fee if the Debtors had not been in bankruptcy. We agree that the Bankruptcy Court should not lightly dismiss such a consensus among the creditors, but we are not willing to conclude that the presence of unanimity among creditors should require the Court to decide the matter through the application of the business judgment rule. Clearly, section 503(b) does not give the Bankruptcy Court the authority to award fees solely because there is no objection to them from a party-in-interest. That section requires that for fees to be awarded they must be part of "the actual, necessary *209 costs and expenses of preserving the estate," and does not suggest that that standard is met merely because there is no objection to the application for the fees.[12] Furthermore, the role of the business judgment rule is of limited use on this appeal because in O'Brien we stated that "we conclude that the business judgment rule should not be applied as such in the bankruptcy context." 181 F.3d at 535.[13]
In declining to apply the business judgment rule we have not overlooked Kelson's contention that we should not consider O'Brien's rejection of the business judgment rule to be controlling in this case for the Debtors are solvent and the "sole affected shareholder has consented to the fee." Appellant's br. at 14-15 n. 2. We reject the contention that O'Brien should not apply because, in providing the circumstances in which a court may award fees, section 503(b) does not make a distinction depending on the solvency of the debtor. We cannot rewrite that section to accommodate Kelson.
D. Kelson's "Fundamental Fairness" and Estoppel Arguments
In the District Court, Kelson argued for the first time that it was entitled to a break-up fee as a matter of "fundamental fairness," which Kelson interprets as a type of unjust enrichment claim.[14] But Kelson did not raise this claim in the Bankruptcy Court, and we will not consider new claims for the first time on appeal. Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976). We are aware that Kelson argues that it did raise its break-up fee claim in Bankruptcy Court and that it is simply asserting a different basis for the same claim. See Yee v. City of Escondido, 503 U.S. 519, 534-37, 112 S.Ct. 1522, 1532-33, 118 L.Ed.2d 153 (1992) (permitting new argument in support of same claim). But we disagree with its view of the record for a break-up fee under section 503(b) is clearly a statutory claim, and a claim for a break-up fee as a matter of "fundamental fairness" is a claim that can be predicated only on the common law or a principle of equity. These statutory and common law or equitable claims, though seeking the same relief, are discrete, rather than being different arguments advancing the same claim. See B & T Masonry Constr. Co. v. Pub. Ser. Mut. Ins. Co., 382 F.3d 36, 40-41 (1st Cir.2004) (same distinction addressed).
Kelson also argues that the Debtors are estopped from opposing its appeal because they supported the request for a break-up fee in Bankruptcy Court. *210 But debtors-in-possession have a fiduciary duty to maximize the value of the estate, Official Comm. of Unsecured Creditors of Cybergenics Corp. v. Chinery, 330 F.3d 548, 573 (3d Cir.2003), and the Debtors here argue convincingly that if they adhered to their earlier position in the face of the changed circumstances they would harm the estate and violate their fiduciary duty. Overall, we are satisfied that the Debtors' opposition to Kelson's appeal is not unconscionable, does not undermine the integrity of the judicial system, and is not made in bad faith. Therefore, we reject Kelson's estoppel arguments. In any event, even if we disregarded the Debtor's arguments and entertained Kelson's appeal on an ex parte basis, we would reach the same result that we reach today. See supra note 12.
V. CONCLUSION
The Bankruptcy Court did not abuse its discretion when it concluded that an award of a break-up fee was not necessary to preserve the value of the estate and accordingly, we will affirm the District Court's order of March 31, 2009, to the extent that it affirmed the order of the Bankruptcy Court of March 18, 2008, denying authorization to pay the break-up fee.
NOTES
[1] The actual purchaser was Fortistar's affiliate GIM Channelview Corporation LLC, but for ease of reference we will refer to the purchaser as Fortistar.
[2] In its brief Kelson characterizes the sale as being of "substantially all of the Debtors' assets." Appellant's br. at 2.
[3] The objector's claimed status as an equity holder was disputed at the time but we are not concerned with that dispute. We emphasize, however, that not all of the interested parties supported the original proposed sale, and the Bankruptcy Court, we think quite appropriately, acted with caution in considering this very substantial matter.
[4] Of course, the text of the APA and not Hardie's opinion of its meaning governs its construction and interpretation and the parties' obligations under it.
[5] Kelson argues that this last sentence created a per se rule that break-up fees are not available when there is another bidder, but we do not believe that the Bankruptcy Court was applying any such rule. Rather, we understand the experienced Court merely to be saying that as a factual matter break-up fees often are not needed when there are bidders for an asset other than the initial bidder.
[6] There was an agreement that Kelson's expenses were $1,210,257.
[7] In their brief Debtors contend that Kelson did not appeal to the District Court from the June 9, 2008 order approving the sale. Nevertheless, as we have indicated, the District Court affirmed both the March 18, 2008 and June 9, 2008 orders. The disputed scope of the District Court's purely appellate jurisdiction, however, is not significant to us because Kelson asks only that we "issue an order granting [it] full payment" of the break-up fee, appellant's br. at 33, a matter over which the District Court had jurisdiction and on which it ruled, and over which we now have jurisdiction. Accordingly, we do not address any other issue.
[8] There are no disputes of what may be characterized as the historical facts in this case.
[9] In its brief Kelson argues that the "APA was necessary to preserve the value of the estate, as it enabled the Debtors to resolve a dispute with the pre-petition secured lenders with respect to the use of cash collateral." Appellant's br. at 19. While we do not doubt that a sale to Kelson would have resolved the cash collateral dispute inasmuch as all the Debtors' creditors were to be paid in full from the sale proceeds, the issue before us is quite different from the need to placate the Debtors' creditors, as we are concerned with whether the $15 million break-up fee was necessary to preserve the value of the estate, a matter relating to Kelson's bid rather than to the consequences of a sale of the plant such as the satisfaction of the Debtor's creditors. As we explain below, Kelson entered into the APA without the assurance that it would receive a break-up fee if it was unable to acquire the plant.
[10] In this case, Kelson was compensated fully for its first-bid expenses when the Bankruptcy Court awarded it $1,210,257 for that purpose.
[11] In its brief Kelson asserts that "the Debtors improperly claim that they only had an obligation to file a motion seeking approval of the Bid Protections and the Break-Up Fee. According to the Debtors, this means that the Break-up Fee was always `unnecessary,' thus making this contractual obligation illusory." Appellant's br. at 5. Kelson argues that under New York law which controls the interpretation of the APA "a contract cannot be interpreted to create an illusory obligation." Id. We reject this argument because there was nothing illusory about the Debtors' obligation to seek authority for a break-up fee as they did. Kelson knew or should have known that the Debtors could urge the Bankruptcy Court to allow the fee but they could not command it to do so. Thus, Kelson's contention in its brief that the "Debtors were required to obtain approval [of] the Break-Up Fee, as a condition to Kelson's bid," id. at 25 (emphasis added), is plainly wrong.
[12] Recently in McKenna v. Philadelphia, 582 F.3d 447, 459 n. 13 (3d Cir.2009), in considering an application for attorney's fees, we pointed out that "it should not be overlooked that the awarding of an attorney's fee is a judicial action and, regardless of the parties' indifference to it, a court need not lend its imprimatur to an inappropriate order merely because there was no objection to its entry." The same principle applies to a request for administrative expenses in the form of a break-up fee under section 503(b).
[13] We hasten to note that our comment in O'Brien about the applicability of the business judgment rule in a bankruptcy case was limited to the circumstance of a party seeking an alternative to section 503(b) as a basis for awarding expenses from the bankruptcy estate. We could not have meant then, and do not mean now, that the business judgment rule is irrelevant when a corporate governance dispute arises in a bankruptcy setting. Indeed, more recently, in an adversary action brought in connection with a bankruptcy and in which a plaintiff challenged the actions of corporate fiduciaries, we recognized that the plaintiff was required to "plead around the business judgment rule." In re Tower Air, Inc., 416 F.3d 229, 238 (3d Cir.2005).
[14] In its brief Kelson elevates its fundamental fairness argument to the level of being a "doctrine." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/173187/ | 594 F.3d 1179 (2010)
UNITED STATES of America, Plaintiff-Appellee,
v.
Isaac HEADMAN, Defendant-Appellant.
No. 09-1033.
United States Court of Appeals, Tenth Circuit.
February 4, 2010.
*1180 Elizabeth L. Harris, (Andrew W. Myers, with her on the brief), Jacobs Chase Frick Kleinkopf & Kelley, LLC, Denver, CO, for Defendant-Appellant.
James C. Murphy, Assistant United States Attorney, (David M. Gaouette, United States Attorney, Michael Carey and Todd Norvell, Assistant United States Attorneys, with him on the brief), Denver, CO, for Plaintiff-Appellee.
Before LUCERO, MCKAY, and HARTZ, Circuit Judges.
HARTZ, Circuit Judge.
Defendant Isaac Headman was convicted in the United States District Court for the District of Colorado of first-degree premeditated murder, first-degree felony murder, and kidnapping. He appeals, raising the following challenges to his convictions: (1) that double jeopardy bars his convictions for both felony murder and the lesser-included offense of kidnapping; (2) that the government violated its duties under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), by not disclosing that two of its witnesses had shared a cell during trial; and (3) that the district court committed plain error by not informing the jury that the intoxication instruction submitted by him applied to aiding and abetting first-degree premeditated murder.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part and reverse in part. The government concedes error on the double-jeopardy issue, agreeing with Defendant that either the felony-murder or kidnapping conviction should be vacated on remand. We reject Defendant's two remaining challenges. He has not persuaded us that the cell-sharing arrangement was material evidence or that the failure of the intoxication instruction to mention aiding and abetting was plain error.
I. BACKGROUND
A. The Murder
Clifton Joseph Greany was murdered during the early hours of August 23, 2007. *1181 Before his death he had been drinking with Johnita Taylor, April Watts, Monica Williams, Defendant, and others in Ignacio, Colorado. An argument erupted between Taylor and Greany, and Defendant joined in, punching and kicking Greany; Watts and Williams followed suit. Defendant drove Taylor, Watts, Williams, and Greany (who was in the trunk) to a location near a maintenance yard within the boundaries of the Southern Ute Indian Reservation. There, Williams, Watts, and Defendant, encouraged by Taylor, attacked Greany, stabbing him with a knife and stomping on him. Greany died from multiple stab wounds and blunt-force injuries.
The four culprits were arrested later that morning. At the police station Williams said that she had passed out at Taylor's house and was not involved in any murder. On August 25 Watts gave law-enforcement officers oral and written statements about Greany's murder. She orally reported that after the initial attack on Greany, "a decision was made by all of them but mainly [Taylor] that [Greany] would have to be killed [because] otherwise he would `tell on them.'" R. Vol. 2, at 42. And her written statement explained that en route to the maintenance yard someone gave her a knife and "[a]ll I could remember is hearing a female saying that we have to kill him cause he was going to tell somebody that we beat him up." Id. at 43.
Williams and Watts eventually agreed to plead guilty to first-degree murder and to cooperate with the government in exchange for a lower recommended sentence and dismissal of certain charges. In her plea agreement, signed in April 2008, Williams acknowledged her involvement in the murder.
B. The Trial
Defendant, an Indian, was indicted on charges of premeditated murder, felony murder premised on kidnapping, and kidnapping, all within Indian country. Each count of the indictment also invoked 18 U.S.C. § 2(a), the aiding-and-abetting statute.
Trial began on September 15, 2008. Immediately before opening statements, the district court invoked Fed.R.Evid. 615, directing that "except for the defendant and any other witness granted an exemption from sequestration, all other witnesses who may testify during this trial must now leave and remain outside the courtroom and shall not discuss their testimony with anyone, except for legal counsel, pending further order of court." Id. Vol. 3, Part 1 at 30. Unknown to defense counsel, Watts and Williams, who were to testify for the government, had been sharing a cell at the Southern Ute Detention Center since September 4; this arrangement continued still without defense counsel's knowledge until both had testified.
At trial Williams and Watts provided the only first-hand accounts of Greany's murder. On September 16 Williams testified that after Defendant handed her a knife, she stabbed Greany in the neck, breaking off the knife's handle in the process. Defendant told her to stomp the knife into Greany's throat, but she was unable to do so. Her testimony did not indicate whether anyone else had stabbed Greany. On cross-examination Williams said that she had not discussed her testimony with anyone except her attorney, the prosecutor, and law-enforcement officials.
Watts, who testified two days after Williams, gave a somewhat different account of Greany's murder. According to Watts, she held the knife to Greany's throat and Williams stepped on it but failed to drive it in. Defendant also tried *1182 and failed to push the knife in, and proceeded to stomp on Greany's face. Defendant then held the knife as Watts stepped on it, forcing it through Greany's throat. Watts also testified that after the first attack on Greany in Ignacio, Defendant had said that they could not take Greany home because he would tell on them. And she said that later as they were driving toward the maintenance yard, "[Taylor] had a knife and she talked to [Defendant] and saidshe said, I am going to have to kill him." Id. Part 3 at 536. Watts was cross-examined about her statement to law-enforcement officers that "a female [said] that we have to kill [Greany] because he was going to tell somebody that we beat him up." Id. at 558. When asked whether she "remember[ed] who that female was," she replied, "Johnita Taylor." Id. Defense counsel also asked Watts whether she had "do[ne] anything to prepare for your testimony today." Id. at 564. She replied that she had not.
At the jury-instruction conference Defendant submitted an intoxication-defense instruction. The district court approved it over the government's objection. On September 22 Defendant was convicted on all three counts.
C. Posttrial Judicial Proceedings
After both Williams and Watts had testified, a member of the courtroom audience alerted defense counsel that the two had been sharing a cell; the government confirmed this two days after the verdict. On September 29 Defendant moved under Fed.R.Crim.P. 33 for an evidentiary hearing and new trial. His motion alleged that Fed.R.Evid. 615 and the district court's sequestration order had been violated because the witnesses had "conferred over their respective testimony both before and, more importantly, after Ms. Williams testified and before Ms. Watts testified at Defendant's jury trial." Id. Vol. 1, Part 3 at 737.[1] Although acknowledging that each witness had been cross-examined "as to what they did to prepare for their testimony and who they spoke with" and that "[n]either mentioned having spoken with each other," Defendant contended that "[i]t defies belief that neither [witness] would have spoken of the case at hand here or the questions posed by counsel at trial." Id. at 738.
The government denied that the witnesses had impermissibly conferred, and it submitted affidavits executed by Williams and Watts after trial. Williams's affidavit states:
Prior to my testimony, I was instructed by both my attorney ... and by [the prosecutor] not to discuss my testimony with anyone, and in particular, not to discuss the facts of the case or my preparations with April Watts.... After my trial testimony, I did not discuss my testimony or the questions asked with April Watts.
Id. at 752-53. Similarly, Watts's affidavit states:
Prior to my testimony, I was instructed by [the prosecutor] not to discuss my testimony with anyone, and in particular, not to discuss the facts of the case or my preparations with Monica Williams.... After Monica Williams testified and before I testified in the trial, I did not learn of the questions asked of Monica Williams or what she said in court, and I did not discuss my future testimony with her.
Id. at 754-55.
The district court reviewed the witnesses' affidavits and their testimony on *1183 cross-examination. Noting that defense counsel had examined each witness about her pretrial statements to law-enforcement agents, the court compared those statements with the witnesses' trial testimony and found no indication that "their testimony at trial appeared to be the result of jailhouse discussions between them that caused them to conform their testimony perjuriously to that of each other." Id. Vol. 3, Part 3 at 712-13. The court continued: "[T]he defendant does not point to specific facts in his motion, one, that codefendants Watts and Williams violated my sequestration order, and two, that if they did confer, that they dishonestly conformed their testimony at trial to coincide with those impermissible discussions." Id. at 713. Therefore it denied Defendant's motion without an evidentiary hearing.
We now turn to the two contested issues on appeal: (1) whether the government's failure to disclose its witnesses' cell-sharing arrangement was a Brady violation, and (2) whether the district court committed plain error in instructing the jury on the intoxication defense.
II. BRADY CHALLENGE
The Brady doctrine protects a defendant's due-process right to a fair trial by ensuring that the prosecution does not conceal evidence that could warrant an acquittal. "To establish a Brady violation, the defendant must prove that the prosecution suppressed evidence, the evidence was favorable to the defense, and the evidence was material." United States v. Erickson, 561 F.3d 1150, 1163 (10th Cir. 2009). "Impeachment evidence, ... as well as exculpatory evidence, falls within the Brady rule." United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). Evidence is material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Burke, 571 F.3d 1048, 1053 (10th Cir. 2009) (internal quotation marks omitted). "[E]vidence significantly enhancing the quality of the impeachment evidence usually will [be material]." Douglas v. Workman, 560 F.3d 1156, 1174 (10th Cir.2009). Although Brady claims typically arise from nondisclosure of facts that occurred before trial, they can be based on nondisclosure of favorable evidence (such as impeachment evidence) that is unavailable to the government until trial is underway. See id. at 1173 (the government's disclosure duty "continues throughout the judicial process."); Smith v. Roberts, 115 F.3d 818, 819, 820 (10th Cir.1997) (applying Brady to a claim that the prosecutor failed to disclose evidence received after trial but while the case was on direct appeal).
Defendant claims that the government violated his rights under Brady by not disclosing that Williams and Watts had shared a cell during trial. He contends that this is material impeachment evidence with which he could have "undermine[d] the witnesses' credibility based on their opportunity for collusion or fabrication." Aplt. Br. at 30. In district court, however, Defendant did not raise a Brady claim, only a claim of a violation of Rule 615 and the court's order under that rule. Our review is therefore for plain error. See United States v. Redcorn, 528 F.3d 727, 744 (10th Cir.2008). To prevail, Defendant must show that "(1) there was error, (2) that is plain, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity or public reputation of judicial proceedings." United States v. Fields, 516 F.3d 923, 943 (10th Cir.2008) (internal quotation marks omitted). He cannot surmount even the first requirement. Because there was no Brady violation, we reject his claim.
Defendant's Brady claim fails because he has not shown that the undisclosed *1184 information is material. As the district court found, there was no evidence (1) that Williams and Watts had discussed the case or (2) that their testimony had been affected by any impermissible conversations between them. Absent such evidence, there is no reasonable probability that disclosure to Defendant of the cell-sharing arrangement would have changed the trial's outcome.
Although Defendant has suggested that it is inconceivable that Williams and Watts did not discuss their testimony while confined together, their affidavits state that they had been instructed by the prosecutor not to discuss their testimony with each other, and both denied having done so. Moreover, Watts's testimony is consistent with her pretrial statements to investigators, and Defendant does not allege that the cell-sharing had tainted the testimony of Williams, who testified first.
At oral argument in this court, defense counsel suggested that the two witnesses could have discussed Williams's testimony and realized that it had some gaps, so that Watts would have to engage in "cleanup" when she testified. But the record reveals no such cleanup in which Watts expanded upon her pretrial statements. In support of her suggestion, counsel contended that Watts, despite having told law-enforcement officers that it was Taylor who said that Greany must be killed, testified at trial that the statement had been made by Defendant. The transcript of proceedings, however, does not support this contention. At trial Watts testified that while the group was driving Greany to the murder site, "[Taylor] had a knife and she talked to [Defendant] and saidshe said, I am going to have to kill him." R. Vol. 3, Part 3 at 536. On cross-examination Watts again attributed the remark to Taylor.
It would have been better if Defendant had been informed during trial of the cell-sharing by the two eyewitnesses testifying against him. But this lapse did not deny him due process.
III. JURY INSTRUCTIONS
Defendant was convicted of first-degree premeditated murder. The verdict form did not indicate whether he was convicted as the actual killer or as an aider and abettor. Defendant contends on appeal that he could have been wrongfully convicted as an aider and abettor because the instructions, although stating that intoxication can be a defense to premeditated murder, did not inform the jury that intoxication can be a defense to aiding and abetting premeditated murder.
Defendant acknowledges that he failed to raise the issue at trial and argues that we should therefore review for plain error. The government, however, contends that Defendant waived the issue because the court used the intoxication instruction submitted by Defendant. The dispute is interesting, but we need not resolve it because Defendant has not shown plain error, and is therefore not entitled to relief even if he did not waive the issue. As stated earlier, to prevail on a claim of plain error, Defendant must establish that "(1) there was error, (2) that is plain, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity or public reputation of judicial proceedings." Fields, 516 F.3d at 943 (internal quotation marks omitted).
Defendant's theory on appeal is that because the jurors had not been told that intoxication can be a defense to aiding and abetting, they could have convicted him of aiding and abetting first-degree premeditated murder even though they harbored a reasonable doubt that he was sober enough to have the intent necessary for premeditated murder. To assess this theory, we must review the instructions given *1185 for first-degree premeditated murder, aiding and abetting, and intoxication.
The pertinent portion of the instruction for first-degree murder provided as follows:
Defendant is charged in Count One of the Indictment with murder in the first degree.
This law makes it a crime to unlawfully kill a human being with premeditation and malice aforethought. Every murder committed by poison, lying in wait, or any other kind of willful, deliberate, malicious, and premeditated killing, is murder in the first degree.
To find defendant guilty of this crime, you must be convinced that the government has proved each of the following four (4) essential elements beyond a reasonable doubt:
First: that defendant caused the death of Clifton Joseph Greany; and
Second: that defendant killed Clifton Joseph Greany with malice aforethought; and
Third: that the killing was premeditated; and
Fourth: that the killing took place within the territorial jurisdiction of the United States.
To kill "with malice aforethought" means either to kill another person deliberately and intentionally, or to act with callous and wanton disregard for human life. To find malice aforethought, you need not be convinced that defendant hated the person killed, or felt ill will toward the victim at the time.
In determining whether the killing was with malice aforethought, you may consider the use of a weapon or instrument, and the manner in which death was caused.
A killing is "premeditated" when it is the result of planning or deliberation. The amount of time needed for premeditation of a killing depends on the person and the circumstances. It must be long enough for the killer, after forming the intent to kill, to be fully conscious of that intent.
You should consider all the facts and circumstances preceding, surrounding, and following the killing, which tend to shed light on the condition of defendant's mind, before and at the time of the killing.
R. Vol. 1, Part 3 at 705-06. The instruction on aiding and abetting stated:
Each count of the Indictment also charges defendant with a violation of 18 U.S.C. section 2, which provides that: "Whoever commits an offense against the United States, or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal."
This law makes a person criminally liable for a crime if he intentionally helps someone else commit a crime. To find defendant guilty as an aider and abettor of a crime, you must be convinced that the government has proved both of the following two (2) essential elements beyond a reasonable doubt:
First: that someone else committed the charged crime, and
Second: that defendant intentionally associated himself in some way with the crime and intentionally participated in it as he would in something he wished to bring about. This means that the government must prove that defendant consciously shared the other person's knowledge of the underlying criminal act and intended to help him or her.
Defendant need not perform the underlying criminal act, be present when it is performed, or be aware of the details of its commission to be guilty of aiding and abetting. However, a general suspicion that an unlawful act may occur or that something criminal is happening is *1186 not enough. Mere presence at the scene of a crime and knowledge that a crime is being committed also are not sufficient to establish aiding and abetting.
Id. at 717. And the intoxication-defense instruction (which was submitted by Defendant) stated:
Although intoxication or drunkenness alone will never provide a legal excuse for the commission of a crime, the fact that a person may have been intoxicated at the time of the commission of a crime may negate the existence of a specific intent.
Thus, evidence that defendant acted or failed to act while in a state of intoxication is to be considered in determining whether or not defendant acted, or failed to act, with specific intent, as charged.
The element of premeditation necessary for murder in the first degree as charged in Count One of the Indictment requires the formation of a specific intent. No specific intent, of the type which might be negated by evidence of intoxication, is necessary for defendant to be guilty of the lesser included offense of murder in the second degree or the lesser included offense of voluntary manslaughter.
If the evidence in the case leaves the jury with a reasonable doubt whether, because of the degree of his intoxication, defendant was capable of forming, or did form, specific intent to commit the crime of murder in the first degree, the jury must acquit defendant of that crime.
Id. at 718.[2]
Defendant contends that the instructions should have explicitly linked the intoxication defense and aiding and abetting. He points out that (1) although the intoxication-defense instruction explained that intoxication can negate the premeditation element of first-degree murder, it did not mention aiding and abetting; and (2) although the instruction also stated that the defense can negate the existence of specific intent, the aiding-and-abetting instruction did not use the term specific intent. Defendant reasons that for the jury to have thought that intoxication could defeat the intent required for aiding and abetting first-degree premeditated murder, it would have had to make "an enormous inferential leap" that the intent described in the aiding-and-abetting instruction was specific intent. Reply Br. at 7.
We disagree. Reading the three instructions together, see United States v. Serawop, 410 F.3d 656, 668 (10th Cir.2005) (appellate court reads instructions as a whole in determining whether jury was misled), we hold that Defendant has failed *1187 to establish the second requirement for plain errorthat the error be "plain." If the instructions somehow misinformed the jury about the application of the intoxication defense to aiding and abetting first-degree premeditated murder, the error is not obvious to us. We make the following observations:
First, the aiding-and-abetting instruction required the jury to find "that defendant intentionally associated himself in some way with the crime and intentionally participated in it as he would in something he wished to bring about. This means that the government must prove that defendant consciously shared the other person's knowledge of the underlying criminal act and intended to help him or her." R. Vol. 1, Part 3 at 717. We fail to see how one could have "intentionally participated in" the offense of first-degree premeditated murder and could have "consciously shared the [murderer's] knowledge of the underlying criminal act and intended to help him or her" without also acting with premeditation.
Second, the intoxication instruction states that "premeditation [is] necessary for murder in the first degree as charged in Count One of the Indictment." Id. at 718. Yet Count One, as the aiding-and-abetting instruction reminds the jury, incorporates aiding and abetting first-degree murder. See id. at 717 ("Each count of the Indictment also charges defendant with a violation of 18 U.S.C. section 2, which provides that: `Whoever commits an offense against the United States, or aids [or] abets ... its commission, is punishable as a principal.'"). In other words, Defendant could be guilty of first-degree murder under Count One either as one who committed the offense or as an aider and abettor. Thus, when the intoxication instruction states that Defendant can be guilty of first-degree murder under Count One only if he acted with premeditation, it appears to be saying that premeditation is required whether one is guilty as the principal or as an aider and abettor.
Third, the intoxication instruction states that "the fact that a person may have been intoxicated at the time of the commission of a crime may negate the existence of a specific intent." Id. at 718. It then explains that "[t]he element of premeditation necessary for murder in the first degree... requires the formation of a specific intent." Id. Consequently, the intent required for aiding and abetting first-degree murder, which includes premeditation (and therefore the formation of a specific intent), can be negated by intoxication.
Fourth, after saying that intoxication can negate the intent required for first-degree murder, the intoxication instruction states that intoxication cannot negate the intent required for second-degree murder or voluntary manslaughter. The instruction says nothing about aiding and abetting. The logical implication is not that the intoxication defense is unavailable to aiders and abettors, but that the application of the defense to an aider and abettor is the same as the application of the defense to a principal. That is, because the instruction refers only to the substantive offenses, it must be treating identically both theories of culpabilityas the actual perpetrator and as an aider and abettor.
In sum, it is not apparent that there is any error in what the instructions say or imply regarding the applicability of the intoxication defense to aiding and abetting first-degree premeditated murder. Perhaps it would have been prudent for the instructions to state explicitly that the intoxication defense applies to aiding and abetting first-degree premeditated murder. But there was no plain error in failing to do so.
Finally, we find readily distinguishable the one case relied on by Defendant, United *1188 States v. Sayetsitty, 107 F.3d 1405 (9th Cir.1997). There, the district court had properly instructed the jury that voluntary intoxication is not a defense to second-degree murder, but was reversed for failing to instruct the jury that intoxication could be a defense to aiding and abetting second-degree murder. See id. at 1412. The Ninth Circuit held that aiding and abetting second-degree murder required specific intent, even though second-degree murder itself did not. See id. In other words, the district court's error was in failing to distinguish an aider and abettor from a principal with respect to the availability of an intoxication defense. In contrast, Defendant is contending that the instructions needed to specify that aiders and abettors are treated the same as principals with respect to the defense.
IV. CONCLUSION
We AFFIRM Defendant's conviction of first-degree premeditated murder, and REMAND to the district court to vacate either his conviction of felony murder or his conviction of kidnapping.
NOTES
[1] The motion also alleged that the "overwhelmingly Caucasian" jury pool had violated Defendant's due-process rights, R. Vol. 1, Part 3 at 735, but Defendant has not pursued this issue on appeal.
[2] The pertinent portion of the instruction for second-degree murder stated:
If you unanimously find defendant not guilty of murder in the first degree, or if, after all reasonable efforts, you are unable to agree on a verdict as to that offense, then you must determine whether defendant is guilty or not guilty of the lesser included offense of murder in the second degree.
The difference in these two offenses is that, to convict defendant of murder in the second degree, the government does not have to prove premeditation, as that term is defined in [the instruction for first-degree murder]. Premeditation is an element of the greater offense of murder in the first degree, but not of the lesser included offense of murder in the second degree.
For you to find defendant guilty of the lesser included offense of murder in the second degree, the government must prove each of the following three (3) essential elements beyond a reasonable doubt:
First: that defendant caused the death of Clifton Joseph Greany; and
Second: that defendant killed Clifton Joseph Greany with malice aforethought; and
Third: that the killing took place within the territorial jurisdiction of the United States.
R. Vol. 1, Part 3 at 708. | 01-03-2023 | 08-14-2010 |
https://www.courtlistener.com/api/rest/v3/opinions/1380249/ | 354 F. Supp. 45 (1972)
Carl A. PETTERSON et al., Plaintiffs,
v.
Robert S. FROEHLKE, Individually and as Secretary of the Army of the United States, et al., Defendants, and The Port of Portland, a municipal corporation, Intervener-Defendant.
Civ. No. 71-283.
United States District Court, D. Oregon.
November 29, 1972.
*46 Marvin B. Durning, Durning, Prince & Smith, Seattle, Wash., for plaintiffs.
Sidney I. Lezak, U. S. Atty., Jack G. Collins, First Asst. U. S. Atty., Portland, Ore., for defendants.
Lofton L. Tatum, Donald J. Morgan, Wood, Wood, Tatum, Mosser & Brooke, Portland, Ore., for intervener-defendant.
*47 OPINION
SOLOMON, District Judge:
Plaintiffs are Washington citizens who own real property on or near the Columbia River (River) in Clark County, Washington. They object to the proposed $170 million expansion of the Portland International Airport (Airport) by the Port of Portland (Port), the construction of the I-205 bridge across the River, and the construction of a segment of Highway I-205.
In a prior decision in this case, I held that plaintiffs have standing to maintain this action and that there was no merit to plaintiffs' claim that the Port was required to obtain congressional authorization for the project. Petterson v. Resor, 331 F. Supp. 1302 (D.Or.1971).
Plaintiffs' other objections are now before the court.
A history of the Port's expansion plan will be helpful to understand the issues.
The Port has made a number of piecemeal additions to the Airport to accommodate increasing passenger travel and air cargo. The Port has also been troubled by a shortage of land to permit commercial and industrial development at the Airport.
In 1967, the Port concluded that it should either build a large new airport at another site or enlarge the existing airport facilities by separating the runways by at least 5,000 feet. The Port and the Columbia Regional Association of Governments considered 25 sites where a new airport might be built. Each site presented serious problems. The Port finally decided that the public interest would be served best if it expanded the present airport.
To achieve greater runway separation, the Port could either move the south runway farther south, or it could move the north runway farther north. Moving the runway to the south would intrude into the residential Parkrose area of Portland, and it would create serious problems with the U. S. military, which uses land south of the Airport. Therefore, the Port decided that the best alternative was to expand to the north by filling in part of the Columbia River. The Port intends to secure financial assistance for the project from the Federal Government.
The Port has already obtained title to Sand, McGuire and Government Islands, all of which lie in the River near the Airport. The northward expansion plan contemplates that the Port will fill in 640 acres of the River and will remove all of Sand Island and parts of Lemon and Government Islands.
The proposed I-205 highway and bridge would carry some Airport traffic, but neither is an integral part of the Port's expansion plan. The proposed fill would save more than $20 million because it would reduce the number of pilings necessary for the bridge.
The Port started to obtain administrative approval for its plan more than three years ago. On February 14, 1969, the Federal Aviation Administration (FAA) found that the proposed runway changes would be "safe and efficient." On July 11, 1969, the Secretary of Transportation (Secretary) approved the Airport expansion in a Department of Transportation news release. On August 5, 1969, the Corps of Engineers (Corps), acting for the Secretary of the Army, issued a dredge and fill permit. On December 23, 1969, the FAA approved the proposed Layout Plan for the Airport, and, on September 17, 1971, the FAA approved a revised Layout Plan.
The administrative history of the I-205 highway and bridge projects commenced even earlier. On March 7, 1966, the Federal Highway Administration (FHA) approved the corridor for the project. On April 18, 1969, the FAA found that the highway and bridge would not threaten air traffic. On February 18, 1970, the Secretary approved the highway, and on May 15, 1970, the bridge. On May 20, 1970, the Coast Guard granted a permit for the bridge to cross the River. And on January 27, 1971, the FHA approved the design of *48 the bridge and the Oregon portion of the highway.
Several federal environmental laws were enacted since the Airport and I-205 projects were started. The National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4347 (NEPA), is the most important. NEPA requires federal agencies to make environmental impact studies before they can take major actions. Other laws require the Secretary to make special environmental determinations. Section 16 of the Airport and Airway Development Act of 1970, 49 U.S.C. § 1716 (Airport Act), requires the Secretary to find that all steps have been taken to minimize the environmental effects of an airport construction project before he grants the project federal assistance. Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 1653(f) (Transportation Act), requires the Secretary to make a similar determination before he approves any project that uses a publicly owned park, recreation land, or a similar area.
The Port has agreed not to perform any substantial work on the Airport until the Federal Government approves the project on the basis of impact studies now in preparation. These studies are investigating whether the Airport should be expanded and, if so, whether it should be expanded into the River. These studies are also investigating the impact of the proposed expansion on 22 different environmental variables like noise, wildlife, air quality, and aesthetics. The Port asserts that these studies will satisfy the requirements of NEPA and will give the Secretary an adequate basis to fulfill his duties under Section 16 of the Airport Act and Section 4(f) of the Transportation Act.
Similar studies are being made for the I-205 highway and bridge. The FHA has agreed to withhold authorization for their construction until the Secretary approves the impact statement and makes a new 4(f) determination. These studies will investigate and report on the impact of I-205 on the natural and urban environments, on alternatives to the project, and on ways to minimize the environmental impact of the project.
Plaintiffs fear that the Airport expansion will create both congestion and noise and will pollute the atmosphere. Plaintiffs also believe that dredging will impair the recreational and wildlife value of the area and will lead to erosion of the riverbank. Plaintiffs ask the court to declare invalid the dredging permit and every other federal agency action for the Airport expansion. They also challenge all the federal agency actions on I-205.
Although the Port has agreed to proceed only if the impact studies are favorable, plaintiffs are not satisfied with this offer. Regardless of whether the studies are favorable, plaintiffs want the Port and the other agencies to set aside all past decisions and seek new authorizations. They want the agencies to hold new public hearings and to make new decisions on the basis of the impact studies, the information the plaintiffs have, and any other information the public might offer. Plaintiffs believe the Port should proceed only if this information, when considered anew, showed that the project was in the public interest.
It has been difficult to evaluate plaintiffs' claims because many of their arguments have been neither organized nor relevant. Plaintiffs have made many allegations of environmental harm and illegal administrative action, but their trial brief has frequently failed to relate their allegations to the legal issues.
Most of the controversy focuses on the dredging permit.
Plaintiffs first contend that NEPA is retroactive and that the permit is invalid because it was issued without an impact statement.
The Corps issued the permit on August 5, 1969, and NEPA went into effect on January 1, 1970. NEPA applies to a continuing project begun before January 1, 1970, only if the project requires major action by a federal agency *49 after that date. Lathan v. Volpe, 455 F.2d 1111 (9th Cir. 1971); Calvert Cliffs' Coordinating Committee, Inc. v. U. S. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109 (1971). Since the Corps had to perform no such actions after issuing the permit, NEPA does not affect the permit. Greene County Planning Board v. FPC, 455 F.2d 412, 424 (2d Cir.), cert. denied, 409 U.S. 849, 93 S. Ct. 56, 34 L. Ed. 2d 90 (1972); Pennsylvania Environmental Council, Inc. v. Bartlett, 454 F.2d 613 (3d Cir. 1971).
Plaintiffs contend that the permit violates Corps regulations and 33 U.S.C. § 403 because the Corps did not adequately consider the environmental consequences of the dredging. Plaintiffs are particularly critical of the way the Corps evaluated the threat of erosion. The Corps relied on a mathematical simulation of the river currents. Plaintiffs assert that a hydraulic simulation was necessary.
I do not agree with these contentions. Corps regulations and Section 403 do not require the board, detailed reports required by NEPA. The Corps here adequately investigated the problems it was obligated to consider.
Plaintiffs also allege that the permit violates Corps regulations because it does not adequately describe the dredging plan and because the Corps approved some minor changes in the permit on September 17, 1970, without public notice or a public hearing. There is no merit in these contentions. 33 C.F.R. §§ 209.130(b) & (j).
The Under Secretary of the Interior stated in a letter to the Corps that he had no objection to the Port's plan. Plaintiffs assert that this letter was written without sufficient consideration of the environment and, therefore, that the permit issued by the Corps is void. Plaintiffs also assert that the permit is void because the Secretary of Transportation's 4(f) determination for the Airport port was illegal.
I reject both of these contentions. Plaintiffs have spent considerable effort trying to show that these administrative actions were illegal, but they have failed to show any way in which these actions could affect the validity of the dredging permit, which is independent of the other administrative actions.
Next plaintiffs contest the permit on the ground that the islands were transferred to the Port in violation of the Wildlife Restoration Act, as amended, 16 U.S.C. §§ 669 to 669g-1. The islands were transferred legally. And here again, even if the islands were transferred illegally, plaintiffs have failed to show how that fact could affect the validity of the dredging permit.
In 1805, Lewis and Clark camped overnight on Government Island, and other small sections of the Lewis and Clark Trail and the Oregon Trail are near the Airport. The National Trails System Act of 1968, 16 U.S.C. §§ 1241-1249, requires the Secretary of Interior to prepare studies of these trails before Congress decides whether to designate them "national scenic trails". These studies have not been completed. Plaintiffs assert that no federal agency can authorize work that will affect these trails in any way until Congress makes this decision.
I disagree, and I am confident that Congress did not intend to immunize the land along these trails from any change, no matter how slight or remote.
Plaintiffs allege that the Corps of Engineers violated the National Historic Preservation Act of 1966, 16 U.S.C. §§ 470-470n. They also allege that the act invalidates all other agency actions that have been taken. Specifically, plaintiffs assert that the Airport expansion, bridge, and highway will affect the Fort Vancouver National Historic Site, which is one of the historic sites protected by the act.
The Fort Vancouver National Historic Site is near the Columbia River more than 10 miles from the Airport. It consists primarily of a small museum commemorating Fort Vancouver, a fur-trading *50 post established by the Hudson's Bay Company in 1824.
It is inconceivable that the act invalidates the action of the Corps of Engineers. Nor do I believe that the increased air and auto traffic will disturb the site to such an extent that other agencies fall within the restrictions of the act.
Plaintiffs' attacks on the Secretary of Transportation's 4(f) determinations are moot because the Secretary has agreed to make new determinations.
Plaintiffs' attacks on other pre-NEPA administrative decisions are groundless. NEPA does not require that the agencies start over and make new decisions, and plaintiffs have shown no other grounds which invalidate these actions.
Plaintiffs have also failed to show that the post-NEPA actions are invalid, even though made without impact statements. The FHA design approval for I-205 and the Coast Guard permit for the bridge were both made under authority delegated to these agencies by the Secretary of Transportation. Their decisions will be reexamined when the Secretary evaluates the impact studies and makes his new Section 4(f) and Section 16 determinations. Moreover, the decisions of the Coast Guard and the FHA were small, isolated parts of a much broader administrative process. There was no need for these agencies to make a comprehensive environmental review prior to their decisions. Calvert Cliffs' Coordinating Committee, Inc. v. U. S. AEC, supra, 449 F.2d at 1119, 1128.
I find that the agencies are complying with federal law. The Port of Portland has and is taking all steps necessary to obtain the authorizations to expand the Airport.
Plaintiffs' action for a declaratory judgment invalidating the agency decisions and for other relief is dismissed.
This opinion shall serve as findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2447826/ | 282 S.W.2d 1 (1955)
STATE of Missouri, Respondent,
v.
Olin KITCHIN, Appellant.
No. 44628.
Supreme Court of Missouri, Division No. 2.
September 12, 1955.
*2 Olin Kitchin, pro se.
John M. Dalton, Atty. Gen., John W. Inglish, Asst. Atty. Gen., for respondent.
STORCKMAN, Judge.
On October 17, 1933, the appellant, Olin Kitchin, pleaded guilty in the Circuit Court of Greene County to two charges of robbery with firearms. In each case he was sentenced to a life term in the state penitentiary where he has since been and is now confined serving his sentences. On August 27, 1954, Kitchin, pro se, filed in each of said cases a motion which he entitled "Motion for Non (Nunc) Pro Tunc Order." On the same day these motions were taken up by the court, considered and overruled. In due course Kitchin appealed in each case and orders were made permitting him to prosecute his appeal as a poor person. On the motion of the attorney general the appeals were ordered consolidated for purposes of appeal.
The motions, quite informally drawn, request that the court "delete from the records of the trial Court that portion of petitioner's judgments and sentences, cases 99922 and 99924, titled `Deft. Arraigned and pleads guilty.' Which recites defendant appeared in court `With counsel appearing in his behalf.' And, in the clerk's docket and judge's docket, cases 99922 and 99924, in the box opposite the printed word `Atty.' where the name of (Fred or F. Stewart) appears, that the said name of `Fred (or F.) Stewart' be deleted."
The clerk's and the judge's docket sheets are printed forms with spaces provided for the insertion of various information such as the names of the plaintiff and defendant and their respective attorneys, and the kind of cause of action involved. The forms also have lines for minute entries. In cause No. 99922 on the clerk's docket sheet the name of "Fred Stewart" is inserted as attorney for the defendant, Olin Kitchin, in the space designated for that information, and on the judge's docket sheet the similar space is filled in with the name of "F. Stewart." In case No. 99924 the clerk's docket sheet shows the name of "Fred Stewart" as attorney for the defendant, but the box or space for the attorney's name on the judge's docket sheet is left blank.
Identical orders were entered on October 17, 1933, in each case. These judgment entries each begin with this statement: "Comes now the prosecuting attorney of Greene County, who prosecutes on behalf of the state, as well as the defendant in his own proper person and counsel appearing in his behalf, * * *." Then follows the statement as to his arraignment, the plea of guilty and the assessing of his punishment at imprisonment for life, and the concluding part is an order "that the defendant stand committed unto the care and custody of the sheriff of this county to await sentence and judgment of the court herein." Under the same date, and presumably following immediately, is the judgment and sentence which begins with this recital: "Now, at this day comes the *3 prosecuting attorney of Greene County, who prosecutes on behalf of the state, and also comes the defendant in his own proper person, and in the custody of the sheriff of this county, * * *." Then follows the allocution and sentencing.
Thus, three out of four available spaces on the judge's and clerk's docket sheets are filled in and positively show that defendant was represented by counsel. Also it positively appears that counsel for defendant was present during the arraignment and plea of guilty although there is no affirmative showing that defendant's counsel continued to be present during the allocution and sentencing. On the other hand, there is no showing that the attorney withdrew from the case. Although the only relief requested under the present motions is the deletion of the names and phrases relating to defendant's representation by an attorney, this procedure is undoubtedly a forerunner, if successful, of an attempt by defendant to secure his release from prison on the ground that he was not represented by counsel at the time he pleaded guilty and received his sentence.
One of defendant's contentions on appeal is that the trial court denied his motion "without notice of formal hearing, without allowing petitioner the opportunity of presenting testimony of the actual person whose name is erroneously and fraudulently entered into the court record as attorney for defendant and with total disregard to appellant's rights to equal protection and due process, * * *." The record entry in each case, dated August 27, 1954, is as follows: "Now on this day Defendant files herein his motion for a nunc pro tunc order and said motion being now seen and fully considered is by order of the Court overruled."
While defendant's motion proper was short, the supporting statements, documents and exhibits added as an integral part of the motion filed made quite a comprehensive document. The motion itself was followed by these named sections: II Statement of the facts of the case. III Jurisdiction. (This section contained citations and quotations from cases.) IV Contentions. V Basic Question. VI Evidence submitted. VII Argument. (Also containing citations and quotations from cases.) VIII Exhibits. A. Photostat copy of notarized affidavit of Fred Stewart. B. Photostat copies of certified copies of: Information; Judge's docket; Clerk's docket; Judgments and sentences in cases 99922 and 99924; and IX Conclusion. All of this was sworn to by the defendant.
Since the evidence upon which the petitioner was depending was either of record or covered by the affidavit and exhibits attached to the motion and the petitioner submitted his brief of authorities with the motion and concluded his motion with a prayer that the court issue a nunc pro tunc order "upon the authorities cited herein and the evidence presented," the petitioner indicated a purpose and intent to submit his motion to the court without further hearing. To submit a controversy or action in court means "to refer or to place it before the court for determination." 83 C.J.S., Submission, p. 557. If the defendant considered that he had made a plenary presentation by the motion and the accompanying exhibits and legal briefs, he could voluntarily relinquish his right, if any he had, to a further hearing.
We must keep in mind that a motion, unlike other proceedings, is at issue without further pleading since no answer or other pleading to a motion is required. Rudd v. Rudd, 223 Mo.App. 472, 13 S.W.2d 1082, 1084. Defendant makes no claim or contention that he has further evidence which he was unable to get before the court except that he wanted to "present the testimony of the actual person," Fred Stewart, presumably in addition to his affidavit. The usual method of supporting motions is by affidavit and the trial court is vested with a considerable discretion as to when the reception of evidence in support of motions will be closed and defendant has shown no abuse of discretion in this case. Henry v. Diviney, 101 Mo. 378, 13 S.W. 1057, 1058-1059.
*4 Furthermore, if defendant did not intend to submit his motion at the time of filing and believed that his constitutional right of due process of law had been violated, he should have raised the objection at the earliest opportunity which, in this instance, would have been in a motion for new trial, and by failing to do so he waived the objection. Such procedure would also have given the trial court an opportunity to correct its error, if any. Lohmeyer v. St. Louis Cordage Co., 214 Mo. 685, 113 S.W. 1108; Laret Inv. Co. v. Dickmann, 345 Mo. 449, 134 S.W.2d 65.
On the merits petitioner urges that he is entitled to have the record "corrected" by the elimination of all reference to his being represented by an attorney at the time he pleaded guilty and was sentenced on October 17, 1933. In his sworn motion, defendant denies that he had legal counsel at the time of the 1933 hearing. He further attaches to his motion the affidavit of Fred Stewart which states in substance that Stewart represented the defendant "for the sole purpose of filing the habeas corpus petition in the circuit court and making an appearance at the hearing on the writ," but that he did not represent the defendant "in any criminal action by the state against Olin Kitchin." Neither the testimony of the defendant nor that of Fred Stewart can be considered on the issue raised by the motion since an order for an entry nunc pro tunc cannot be based on parol evidence even though it be the testimony of the judge presiding at the time the entry was erroneously made or omitted. State v. Libby, 203 Mo. 596, 102 S.W. 641, 642; Burton v. Burton, 288 Mo. 531, 232 S.W. 476, 477. In State v. Jeffors, 64 Mo. 376, 378, this court well stated the prevailing rule:
"The power possessed by courts to make nunc pro tunc entries in a cause, after the end of a term, does not authorize the entry of an order which ought to have been made, but only those which were actually made, the evidence of which is preserved by some minute made at the time. Evidence aliunde cannot be resorted to for such purpose. To allow such entries to be made on facts resting in the mere memory of witnesses, and their statements as to what occurred, would be to establish a rule which would breed the utmost confusion and uncertainty, and make courts of record everything except what the law intends them to be. Neither can such entry be made after the end of the term upon the knowledge of the judge himself."
Similarly, under the Missouri practice, a writ of error coram nobis cannot be used to dispute and impeach by parol evidence an affirmative showing in the record. State v. Terrell, Mo., 276 S.W.2d 219; State v. Harrison, Mo., 276 S.W.2d 222.
The rule of law is well established that after a judgment has become final, an order of correction nunc pro tunc cannot be made unless it is based upon some entry, minute or notation in the record, or some paper on file in the case. State ex rel. Holtkamp v. Hartmann, 330 Mo. 386, 51 S.W.2d 22; E. C. Robinson Lumber Co. v. Hazel, Mo.App., 271 S.W.2d 610; Abbott v. Seamon, Mo.App., 229 S.W.2d 695. Defendant contends that the lack of a notation in one out of four places on the clerk's and judge's docket sheets and a failure to state again in the judgment record of the sentencing the presence of counsel should be sufficient to erase and obliterate from the records the positive showings that defendant was represented by counsel. He would have us accentuate the negative rather than the positive, which generally is the opposite of what the rule intends. We also apply to the records in this case the rule that positive evidence is of greater weight than negative evidence where the source or sources are the same or equally credible. Borrson v. Missouri-Kansas-Texas R. Co., 351 Mo. 214, 172 S.W.2d 826.
Among the cases cited by the defendant are Bunch v. Paxton, Duke & Bradley, Mo. App., 295 S.W. 474, which was an action to rescind the purchase of an automobile and to recover the amount paid. The judgment was held technically wrong on the facts of the case in designating the amount *5 of plaintiff's recovery as damages and the excess words were accordingly stricken. State ex rel. Kersey v. Sims, Mo.App., 286 S.W. 832, held that a personal judgment could not be rendered in an action by the collector of revenue for the collection of drainage district taxes and the unnecessary words of the judgment were stricken. In Ex parte Messina, 233 Mo.App. 1234, 128 S.W.2d 1082, the petitioner was discharged on a writ of habeas corpus because he had been arrested as a fugitive eight years before and a judgment rendered which was a bar to the present proceedings. The decision discusses the function of motions for orders nunc pro tunc and writs of error coram nobis. Neither these nor the other cases cited by the defendant support the defendant's contention, and we find no reversible error in the record.
For the reasons given, the judgment is affirmed.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1380210/ | 212 Ga. 764 (1956)
95 S.E.2d 792
MONTOS
v.
THE STATE.
19543.
Supreme Court of Georgia.
Argued November 14, 1956.
Decided December 5, 1956.
J. B. McGee, Jr., Clarence D. Blount, J. Walter LeCraw, for plaintiff in error.
Leon A. Wilson, Andrew J. Tuten, Solicitor-General, Eugene Cook, Attorney-General, Rubye G. Jackson, T. J. Townsend, contra.
MOBLEY, Justice.
The defendant, Nick Montos, along with Dan Cullifer and Robert Mathus, was indicted for robbery by force and intimidation. Montos was convicted of the offense as charged without a recommendation to mercy. His motion for new trial as amended was denied, and to this judgment he excepts.
1. As to the general grounds, the defendant in error contends that the evidence was not sufficient to sustain his conviction of robbery by force, but only made out a case of robbery by intimidation. The evidence of the victim that the defendant grabbed her, hauled her around, tried to hold her, tore her dress off her, and, after all of that finally ripped off her brassiere, pulled the billfold from a pigskin bag pinned with a safety pin therein, she at all times resisting and trying to get away, amply establishes the element of force required by the statute. Baugh v. State, 211 Ga. 863 (3) (89 S.E.2d 504); Osborne v. State, 200 Ga. 763 (38 S.E.2d 558); Long v. State, 12 Ga. 293 (9); Smith v. State, 117 Ga. 320 (43 S.E. 736, 97 Am. St. Rep. 165). Henderson v. State, 209 Ga. 72 (70 S.E.2d 713), relied upon by the plaintiff in error, is distinguishable upon its facts, as there the force was applied *765 after the robbery, whereas here it was applied prior to and while the money was being taken from the victim. The general grounds are without merit.
2. As the case is being reversed upon other grounds, it becomes unnecessary to pass upon the exception to the refusal to grant a continuance.
3. Ground 5 complains of the failure of the court upon request to sequester two of the State's witnesses, T. M. Price and John Wolfe. The solicitor-general contended that these witnesses were officers, and, being officers, should be permitted to remain in the courtroom. He made no contention that he needed their assistance in the conduct of the case, nor was any reason given other than that they were officers. The witnesses were employees of the Georgia Bureau of Investigation. There is nothing in the record to support the contention of the solicitor-general that these officers were needed in the courtroom to guard against an escape by the defendant, who he claims was an "escape artist." Under Code § 38-1703, which provides that "In all cases either party shall have the right to have the witnesses of the other party examined out of the hearing of each other, . . ." the sequestration of witnesses is mandatory upon a timely request by any party to the cause, and in this case the refusal of the trial court to grant such request by counsel for the defendants deprived the defendant of a substantial and positive right. "Whatever may have been the rule at common law, and despite interpretations placed thereon in any early decision of this court, the rule as fixed by the Code of 1863 ( § 3787) and continued in all subsequent Codes, as to the sequestration of witnesses [now Code § 38-1703], conferred upon the party making such request an absolute right, subject only to the sound discretion of the trial judge in permitting one or more witnesses to remain in the courtroom to advise the opposite party in the presentation of his case, and where it appears that in making the exception to the rule the fair rights of the opposite party are secured or the impairment of the efficiency of the court avoided by allowing a deputy or other officials, who are witnesses, to remain in the courtroom. The mandate of the law is that in all cases either party shall have the right to have the witnesses of the other party examined out of the hearing of each other . . ." Poultryland, *766 Inc. v. Anderson, 200 Ga. 549, 562 (37 S.E.2d 785). The record in this case does not bring it within any of the exceptions to the rule. We can not agree with the State that the record does not show any harm to have resulted to the defendant because of this error. Whenever a party is deprived of his rights, the presumption of the law is that he has been injured unless the contrary plainly appears. Poultryland, Inc. v. Anderson, supra, and cases there cited. Furthermore, the death penalty was imposed in this case, and it cannot be said that the jury's verdict was demanded and that this error might have been harmless. Barfield v. State, 179 Ga. 293(1) (175 S.E. 582).
4. Ground 6 assigns error upon the admission of testimony of Dr. W. W. Sharp, over objection of the defendant, to the effect that Fender Carter's mind is not as good now as it was before his injury in August, 1951, when he was struck over the head by Mathus during the commission of the robbery, and that in his opinion as a doctor the impairment of Carter's mind grew out of the injury he received on that occasion. Ground 7 complains of the admission of similar testimony from Mrs. Sanella Bland, to the effect that her brother's mind was good prior to the robbery when he got hit on the head, and since then his mind has been impaired. The objection to this testimony was that it was not relevant, tended to inflame the minds of the jury, and illustrated no issue in the case. We are of the opinion that this evidence as to Fender Carter's having been struck over the head by one of the defendants during the robbery was admissible as a part of the res gestae and was illustrative of the force used in the commission of the robbery; and evidence of his mental condition at the time of the trial, at which he was present but was not used as a witness, was admissible to explain the failure of the State to use him as a witness. This ground is without merit.
5. Grounds 8 through 34 complain of the admission in evidence, over timely objection, of certain articles and testimony relating thereto, which articles were found in the automobile identified as the one used by the defendant and his two companions in the perpetration of the robbery and their escape from the scene. The articles were a crowbar, an ice pick, two flash lights, a deputy sheriff's badge, shotgun shells, cartridges, automobile tags and tag fasteners. The jury were authorized to *767 find that the automobile had been used by the defendant Mathus and Cullifer in getting to the scene of the robbery and away from it afterwards; that Cullifer, in driving the car from the scene, wrecked it and was found in it, while the other two had jumped out and escaped. None of these articles was used in the commission of the robbery. The defendant offered no evidence, but made a statement in which he denied that he was involved in the robbery. The only issue raised was whether the State had the guilty party. The articles found in the car, none of which was shown to have been used in the robbery, were not relevant upon this issue, as they would in no way show that Montos was one of those who committed the robbery. These articles, as well as the evidence relating to them, should have been excluded by the trial judge.
6. Grounds 35 and 36 complain that the witnesses Wolfe and Price were permitted to testify that the victim readily identified the defendant when his picture was presented to her, the objection being that this testimony was hearsay. Neither of these witnesses testified as to any statement made by Mrs. Bland in connection with her identification of the defendant from pictures shown to her, but both testified to the fact that she identified the defendant's picture from a number of photographs exhibited to her. Testimony as to the mere fact that she identified the defendant's picture is not inadmissible as hearsay. 22 C. J. S. 1236, § 725.
7. Grounds 37 through 40 complain of the refusal of the court to declare a mistrial in four different instances of alleged improper argument of the solicitor-general before the jury, the defendant's counsel having objected in each instance and moved for a mistrial. The trial court did not admonish or reprimand the solicitor-general and did not order the argument withdrawn from the jury's consideration, but merely denied the motions when made. The statements objected to were as follows: 1. "This crime was perpetrated by two of the most notorious criminals in the United States." 2. "The defendant is a man of a criminal mind." 3. The defendant is "a member of a big-town gang." 4. The defendant "was hiding in Alma for the purpose of covering up some other crime at some other place." There was no evidence that the defendant and Mathus were "two of the *768 most notorious criminals in the United States," nor any evidence which would authorize such a deduction or conclusion. Likewise, there was no evidence that the defendant was "a member of a big-town gang," and none from which such a deduction could be drawn. There was no evidence that the defendant "was hiding in Alma for the purpose of covering up some other crime at some other place," and if evidence to support such argument had been offered, it would have been inadmissible, for the general character of the defendant and his conduct in other transactions would be irrelevant unless he had put his character in issue, which he had not done in this case. Code §§ 38-201, 38-202; Henderson v. State, supra; Bacon v. State, 209 Ga. 262, 262 (71 S.E.2d 615). It was clearly improper for the solicitor-general to make these arguments to the jury, as it is well settled that counsel may not argue facts which are not in evidence. He is permitted to draw deductions from the evidence and his deductions may be illogical, unreasonable or even absurd. Owens v. State, 120 Ga. 209 (47 S.E. 545). Yet, there must be evidence from which such deductions can be made, which was lacking in this case. Code § 81-1009. "Where . . . a solicitor-general in his address to the jury uses highly improper language not authorized by the evidence or any fair deduction therefrom, and the counsel for the accused objects thereto and moves the court to declare a mistrial, which the court refuses, and exception is taken to the ruling, this court will reverse the judgment and grant a new trial in the interest of justice and of fair and impartial trials." Ivey v. State, 113 Ga. 1062 (39 S.E. 423, 54 L. R. A. 959). This being a case in which the death penalty was imposed, and the statements of the solicitor-general being highly inflammatory and prejudicial and wholly unauthorized, we are of the opinion that the trial court erred in not granting the defendant's motion for a mistrial. There is no merit in the motion based on the statements of the solicitor-general that the defendant is a man of a criminal mind. The evidence as to his participation in this robbery was sufficient to authorize a deduction that he was of a criminal mind and the solicitor-general was authorized to argue this.
8. There is no merit in ground 41, which complains of the failure of the court to charge on robbery by intimidation. The State's evidence, heretofore discussed on the general grounds, *769 showed clearly that this was a case of robbery by open force and violence. "Where one is indicted for robbery `by force and intimidation,' and on the trial it appears from the evidence that, if a robbery was committed, it was by force or violence and not by intimidation, it is not error for the court to fail to charge the law relating to robbery by intimidation and the punishment for one found guilty of robbery by intimidation. Bradham v. State, 51 Ga. App. 436 (180 S.E. 748); Long v. State, 12 Ga. 293." Haire v. State, 209 Ga. 378 (5) (72 S.E.2d 707).
Judgment reversed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1380213/ | 232 P.2d 975 (1951)
ROBERTS
v.
DREDGE FUND et al.
No. 7753.
Supreme Court of Idaho.
June 20, 1951.
*976 Robert E. Smylie, Atty. Gen., Glenn A. Coughlan, Asst. Atty. Gen., for appellants.
Whitla & Knudson, Coeur d'Alene, for respondent.
GIVENS, Chief Justice.
Nick G. Roberts was employed as a pipeline tender on an electrically driven dredge operated by a Mr. Hersehgen, clearing out the channel of a stream. Mr. Roberts' shift was from three o'clock in the afternoon until eleven at night. About seven-thirty p. m. on July 23, 1949, a transformer fuse burned out in a substation about one thousand feet from the dredge, through which the dredge received its electrical power (13,000 volt line).
Mr. Torkelson, who was foreman of the dredge, when the lights went off, went towards the transformer house and met Mr. Hersehgen and Mr. Roberts. Torkelson left the house to secure the attendance and services of Mr. Atkinson and Mr. Doolittle, evidently employees of the Washington Water & Power Company, supplying the power, and alone entitled to service the transformer, etc. Upon their return, Mr. Roberts stood outside a metal fence surrounding the transformer house with Mr. Torkelson's two daughters, aged six and seven years. As Mr. Atkinson started to replace a fuse, a short occurred attended by a roar and a big ball of fire four feet in diameter, which burned a metal bracket. *977 The little girls screamed, which turned the attention of the other men to them and Mr. Roberts, who was lying upon the ground outside the steel fence, apparently not in contact with it. Upon their going to him, he appeared to be dead. Artificial respiration was given him without success. Dr. Gibbon was called immediately and estimated the time of death to be from fifteen minutes to an hour before he reached Mr. Roberts, who was still lying near the fence. Dr. Gibbon observed no electrical burns on or about his person and in answer to a hypothetical question, synopsizing the above circumstances and seeking the cause of death, answered:
"A. A shock, I don't mean an electric shock, I mean a shock to his system by a sudden flash, you might say by a blow to his mind to see this sudden ball of fire. I felt, and I feel now that the cause of his death was hastened by the fact that this shock from the ball of fire which has caused his heart to stop beating from, probably, my assumption was and is now, from occlusion of a coronary artery which happens very frequently in people of his age, and caused his death."
"Q. Doctor, will you explain the basis upon which you say that this man had a coronary occlusion, what leads you to believe that? A. From the fact that it is a definite cause of death in this age group and from finding no evidence of burn on the bare parts of the body that I examined, and knowing that sudden exertion or sudden excitement, shock, as was referred to there, can cause the heart to beat rapidly and perisystole these things."
He gave his further opinion that Mr. Roberts did not suffer a cerebral vascular accident in common parlance, a stroke; that without an autopsy it was not possible to state definitely what the exact cause of death was. (No autopsy was performed because someone, not indicated, objected to it.)
Dr. Whitesel did not see Mr. Roberts after his death, but in answer to a like hypothetical question, stated:
"A. Well, I think that an exciting factor like this occurrence could precipitate a massive vascular collapse that would be an etiological cause of a coronary thrombus.
* * * * * *
"A. Well, I think considering all of the facts we have concerning the occurrence as it happened that evening, and having known about his previous health status, in all likelihood the cause of death is pretty definite."
He stated further than only an autopsy would show positively the cause of death and that he did not think there was a chance the deceased had died from a cerebral hemorrhage or stroke.
Dr. Mowery, who examined the body, merely testified he did not think death was occasioned by any connection with an electric current, but was not asked and did not testify as to any other cause. No one contended that deceased had come in contact with an electrical current; consequently, the testimony was without pertinency as to the issue involved.
The Board's findings approximate the above résumé of the detailed facts and circumstances and ruled as a matter of law that the deceased's death was occasioned by an accidental injury arising out of and in the course of his employment.
Appellants urge the evidence is insufficient to show there was an accidental injury because there was no injury which resulted in violence to the physical structure of the body as required by Section 72-201, I.C., and the accidental injury, if there were one, did not arise in the course of deceased's employment.
Mr. Roberts had been asked by Mr. Torkelson to look after his, Torkelson's, daughters while he went to call the employees of the Washington Water & Power Company; Mr. Roberts was on shift at the time of his death; the dredge needed the electrical current to operate it and it was the duty of the men operating the dredge, including Mr. Roberts, to ascertain what trouble interfered with the transmission of power and that is what Roberts and Hersehgen were doing when Mr. Torkelson first saw them. It is thus obvious Mr. Roberts had to wait until the power was again turned on to the dredge before he could resume his work. The distance between the transformer and the dredge, *978 while a factor to be taken into consideration, does not control as to whether or not the deceased's presence there had taken him out of the course of his employment. The facts and circumstances herein show he was clearly within the course of his employment within the law as exemplified in Re MacKenzie, 55 Idaho 663 at page 669, 46 P.2d 73, 75: "`It is essential to the right to compensation that the injury shall have been received in the course of the workman's employment; that it shall have been received while he was doing some act reasonably incidental to his work. An accident or injury is so received where it occurs while he is doing what a man in like employment may reasonably do within a time during which he is so employed, and at a place where he may reasonably be during that time. "Course of employment" includes acts in which the employer has acquiesced, though they are not done in a strict performance of the employee's duties. An employee is not, like a part of a machine operated by him, fixed to precisely the mechanical movements he must perform in order to discharge his industrial function. He may do whatever a human being may reasonably do while in the performance of his duty without such acts placing him outside of the course of his employment.'"
"They also serve who only stand and wait." Milton.
Neale v. Weaver, 60 Idaho 41, 88 P.2d 522, strongly relied upon by appellants on this point, considered totally different circumstances; the employee at that time was engaged purely in his personal affairs and with nothing in any way connected with his employer's business; while the deceased herein, though not actively engaged in assisting in making the repairs on the electrical apparatus, was on shift and was present by reason of and in connection with his employment.
"The location of the motors, with reference to the place where the employee performed her work, was one of the conditions attending her employment, (cases); and the report and flash which they emitted when they were blown out by the bolt of lightning, frightening the employees in their vicinity, was a risk of employment in such a place, and a paralyzing injury produced by the fright could be found to be causally connected with the employment." Charon's Case, 321 Mass. 694, 75 N.E.2d 511, at pages 513-514.
There can be no question that the short caused in attempting to put in a new fuse and the attendant loud noise and explosion and ball of fire constituted an accident. Two doctors testified there was a causal connection between this electrical disturbance, not contact with the electric current, and deceased's death. We believe we are justified in stating the doctors meant, in slightly different and perhaps more colloquial language, that the occurrence, i. e., the electrical explosion, light and noise, caused immediate collapse, i. e., a shrinking together of the blood vessels of deceased, both arterial and venous, resulting in a stoppage of the flow of blood into and through his heart; the heart stopped beating and there is no question of doubt that Roberts died immediately. In other words the doctors who were interrogated and the Board found that Mr. Roberts was killed because of shock to his nervous system, which in turn affected his heart and it was sufficiently violent to the physical structure of his body to cause death. The authorities considering this precise point are uniform in holding there need not be physical contact between the accident and the person to constitute an accidental injury. Carr v. Martin, 35 Wash.2d 753, 215 P.2d 411.
In Burlington Mills Corp. v. Hagood, 177 Va. 204, 13 S.E.2d 291, the employee was working at a machine approximately 15 feet away from an electrical motor which was being repaired. A loose wire in the motor caused a short circuit, which produced an electric flash and a sound resembling that of a shotgun. The employee saw the flash and started to fall backwards, but was caught and supported by another employee. First aid was administered. The employee, after the accident, when she saw the person who had helped her, again fainted. There was no pathology disclosing electrical burns or other physical conditions which usually follow electrical shock. The doctors stated she had traumatic neurosis *979 resulting from the shock and that in turn the irritation of the nerves caused functional disorders, and whether the disability resulted from nervous reaction or from auto-suggestion set in motion by memory of the accident, the result was the same. The Commission awarded compensation and the court sustained it, holding the disability was occasioned by an injury which may be traced to a risk which arose out of and in the course of her employment and there was a direct causal relation between the electric flash and the irritated condition of her nervous system.
In the instant case the shock was sufficiently great to cause death, which thus was more violent to the physical structure of deceased's body than in the last cited case, but clearly supported thereby; as in Charon's Case, supra, thus related and decided: "A severe storm occurred while the employee was eating her lunch at the machine at which she worked on the first floor of a four-story mill building. Lightning struck the roof and followed the sprinkler system to the first floor where it burned out or blew out three motors, causing a loud noise and a considerable flash of light, frightening the employees, and producing such a shock to the claimant that she sustained a hemiplegia or paralysis of her left side. The reviewing board found that the hemiplegia was directly traceable to the fright caused by the blowing out of the motors, accompanied by the noise and flash of light which were induced by the bolt of lightning, and that the harm sustained by her constituted a personal injury which arose out of and in the course of her employment. The board awarded her compensation."
The court sustained the award, holding: "This statute does not in terms or by implication exclude an injury causally connected with the employment merely because the injury was not occasioned by physical impact or the application of some form of external violence to the body. The quoted words have been construed as not limited to such injuries as are caused by contact with some physical object, (cases); * * *."
To like effect and in principle are: American Smelting & R. Co. v. Industrial Commission, 59 Ariz. 87, 123 P.2d 163; Peavy v. Mansfield Hardwood Lumber Co., La. App., 40 So. 2d 505; Hall v. Doremus, 114 N.J.L. 47, 175 A. 369; Geltman v. Reliable Linen Supply Co., 13 A.2d 844, 18 N.J. Misc. 423.
In Van Ness v. Borough of Haledon, 45 A.2d 673, 675, 24 N.J.Misc. 29, the employee, a police marshal of a municipality, under great strain and excitement from driving a car to secure an ambulance, suffered a fatal heart attack and died, diagnosed as a coronary occlusion induced by extreme emotional strain and excitement. It was urged there was no legal proof of injury by accident in that there was no distinct episode or incident which can be pointed to as an accident and in the absence of an autopsy, the medical conclusion, therefore, of the fatal coronary occlusion must need be purely speculative. The court said:
"The respondent's other contention is that there is no proof of an injury by accident and no proof of causal relation. We cannot agree. The death certificate and three medical experts gave as the cause of death coronary occlusion. All the experts agreed that excitement, confusion, restlessness, anxiety, emotional strain, could produce coronary occlusion. The testimony clearly establishes the excited, confused, emotional state of Van Ness. There is no other medical conclusion offered as to the cause of death. The medical expert for the respondent said that without an autopsy any cause of death was speculation. That may be true, but we have no autopsy here to aid us. We must deal with the facts as we have them. That the decedent was excited we know from witnesses who saw * * * the manner in which he drove his car. That coronary occlusion is a logical medical hypothesis is evident."
"There is, of course, a presumption of death from natural causes; but the evidence is entirely convincing that the immediate cause of the officer's death was a coronary occlusion induced by emotional and nervous strain attending the performance *980 of his duty, and thus his demise was the result of an accident which arose out of and in the course of his employment." 136 N.J.L. 623, 56 A.2d 888, 891.
It might appear that Bekeleski v. O. F. Neal Co., 141 Neb. 657, 4 N.W.2d 741, 742, is opposed to our conclusion herein and particularly because it interprets a statute identical with ours as signifying the terms "injury" and "personal injuries" mean only violence to the physical structure of the body. The circumstances therein were: "* * *, while plaintiff was operating the elevator, a passenger riding therein was caught between the floor of the elevator and the second floor of the building and killed. The record shows that plaintiff was lodged in the elevator with the dying man for some thirty minutes before the doors were broken in and his body removed. Plaintiff claims that the sight of this terrible accident and her proximity to it when it occurred resulted in an injury to her nervous system which constitutes permanent total disability, entitling her to benefits under the workmen's compensation law."
There is a marked difference between that case and this, because herein the employee died. With all due respect to the majority, we think the dissent is more scientifically reasoned and more worthy of acceptance: "* * * It (plaintiff's claim) is rejected on the sole ground that she did not prove `violence to the physical structure of the body.' * * * I am inclined to think that the lawmakers, by the use of the term `violence to the physical structure of the body,' meant an animate body with a directing brain containing blood, sensitive nerves, fibers and convolutions. The brain is part of the physical structure of the body. Without it there could be no performance of an employee's duties. Accidental violence to the brain and resulting disability may be difficult to prove, but plaintiff was rational before the accident and irrational afterward. Her blood pressure was higher and her pulse more rapid. The pupils of her eyes were dilated and her posture abnormal. She had tremors and was unable to walk in her usual manner, all as properly indicated by the majority opinion, but it seems to me these results of the accident evidence `violence to the physical structure of the body,' within the meaning of the compensation law." 4 N.W.2d at page 744.
If we substitute "heart" for "brain," we have the present situation arriving at the legitimate conclusion that the violence to the physical structure of deceased's body was stopping the heart as a living organism.
The following exposition of the law further clearly substantiates this view: "If the driver's efforts to avoid the accident had brought the truck to so quick a stop that he had been thrown so hard against the steering wheel that he had broken a rib, or had jabbed his leg against a brake and had thereby blood poison, or had strained so greatly in turning the truck from its course, he had sustained a sprained back, hernia, a rupture of an aneurism, a dilated heart, or had burst a blood vessel of the eye, an accidental injury would have resulted in every illustrative instance here given quite independently of the injury being traumatic or not, or whether direct or consequential, or whether or not his anterior physical condition was such as would have predisposed him to any of the particular injuries thus prematurely sustained. Supra. Hence, if the cause be accidental, the personal, injurious, and proximate effect in causative relation is an accidental injury within the meaning of the statute no matter; for example, if the burst vein or artery be in the brain, lung, heart, eye, or hand. It is not perceived that there is any fundamental difference in law or in principle between an injury causatively resulting from a blood vessel being cut or crushed and one broken by an artificial distension of that blood vessel from fright, apprehension, or exertion directly and proximately a consequence of an accidental event." J. Norman Geipe, Inc., v. Collett, 172 Md. 165, 190 A. 836 at pages 839-40, 109 A.L.R. 887.
Despite the opinion of an intermediate appellate court in Pennsylvania, Liscio v. S. Makransky & Sons, 147 Pa.Super. 483, *981 24 A.2d 136, the pronouncements of the Supreme Court of that State, we believe, are in line with the conclusion herein: Lane v. Horn & Hardart Baking Co., 261 Pa. 329, 104 A. 615, 13 A.L.R. 963; Clark v. Lehigh Valley Coal Co., 264 Pa. 529, 107 A. 858, and it will be noted that the Maryland case, J. Norman Geipe, Inc., v. Collett, supra, relied upon, among other authorities, Clark v. Lehigh Valley Coal Co., supra.
The award of the Board is affirmed. Costs awarded to respondent.
PORTER, TAYLOR, THOMAS, and KEETON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1380282/ | 166 S.W.3d 767 (2005)
Elysee MARC, Appellant,
v.
The STATE of Texas, State.
No. 2-03-205-CR.
Court of Appeals of Texas, Fort Worth.
June 2, 2005.
*770 Donald Davidson, Bedford, for Appellant.
Tim Curry, Criminal District Atty., Charles M. Mallin, Sharon A. Johnson, Mitchell Poe, and Edward Lasater, Asst. Criminal District Attys., Fort Worth, for The State.
Panel A: WALKER, J; WILLIAM BRIGHAM, J. (Senior Justice, Retired Sitting by Assignment); and SAM J. DAY, J. (Retired Sitting by Assignment).
OPINION
WILLIAM BRIGHAM, Justice.
INTRODUCTION
Elysee Marc appeals from his conviction for aggravated sexual assault and sentence of ninety-nine years' confinement. In seven issues, appellant complains that the evidence is factually insufficient to support his conviction and that the trial court erred by admitting certain exhibits and hearsay into evidence at the guilt-innocence and punishment phases of trial. We affirm.
FACTS
While driving in his car, appellant picked up Y.D., a convicted prostitute, and asked her to perform sexual favors for him at his apartment in exchange for fifty dollars. As appellant was driving Y.D. to his apartment, she became nervous and asked appellant to take her back to where he had picked her up. Appellant refused, took out a box cutter, and held it to Y.D.'s throat.
When they reached appellant's apartment, he told Y.D. that if she screamed, he would kill her. Once inside the apartment, appellant told her to take off her clothes. She did, and appellant proceeded to have intercourse with her. The intercourse was *771 very rough, and Y.D. complained that appellant was hurting her. He ignored her and continued. During intercourse, she told him that he had not paid her. Appellant paused to give her eight or ten dollars out of his pocket, which he later took back. He started intercourse with her again. Y.D. pushed appellant off of her because he was being too rough, and appellant pulled out the box cutter and told her he was going to finish what he was doing. After appellant was done, Y.D. got dressed and appellant agreed to drive her home. But after they drove a few blocks, he stopped and told her to get out.
Y.D. went to a nearby pay phone, called the police, and reported that she had been raped. When the officer arrived, she took him to appellant's apartment and identified his car. Y.D. also submitted to a hospital rape exam. At trial, the parties stipulated that DNA analysis of the semen found in Y.D. came from appellant.
The jury found appellant guilty of aggravated sexual assault. At sentencing, the State introduced evidence that appellant had committed six other rapes and an attempted rape with a deadly weapon. All victims except one were prostitutes.
FACTUAL SUFFICIENCY
In his first issue, appellant complains that the evidence is factually insufficient to support his conviction.
Standard of Review
In reviewing the factual sufficiency of the evidence to support a conviction, the appellate court is to view all the evidence in a neutral light, favoring neither party. Zuniga v. State, 144 S.W.3d 477, 481 (Tex.Crim.App.2004). The only question to be answered in a factual sufficiency review is whether, considering the evidence in a neutral light, the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Id. at 484. There are two ways evidence may be factually insufficient: (1) the evidence supporting the verdict or judgment, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt; or (2) when there is evidence both supporting and contradicting the verdict or judgment, weighing all of the evidence, the contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. Id. at 484-85. "This standard acknowledges that evidence of guilt can `preponderate' in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt." Id. at 485. In other words, evidence supporting a guilty finding can outweigh the contrary proof but still be insufficient to prove the elements of an offense beyond a reasonable doubt. Id.
In performing a factual sufficiency review, we are to give deference to the fact finder's determinations, including determinations involving the credibility and demeanor of witnesses. Id. at 481; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App.1997). We may not substitute our judgment for that of the fact finder. Zuniga, 144 S.W.3d at 482.
A proper factual sufficiency review requires an examination of all the evidence. Id. at 484, 486-87. An opinion addressing factual sufficiency must include a discussion of the most important and relevant evidence that supports the appellant's complaint on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App.2003).
Discussion
Appellant focuses the entirety of his discussion of factual insufficiency on Y.D.'s veracity and inconsistent statements and conflicting testimony on the issue of consent.
*772 Veracity
Appellant points out that Y.D.'s veracity was "highly suspect" because she was a prostitute, a drug addict, and had been convicted in federal and state court for a variety of theft and felony offenses. Appellant contends that Y.D.'s credibility was further undermined by the fact that she lived at a crack house and prostituted herself to get money for illegal drugs.
Y.D. admitted on cross-examination that she had stolen from her customers in the past and that it was not beneath her to "lie and cheat and steal." Appellant notes that Y.D. admitted to lying to police during the initial investigation by telling them that she had merely asked appellant for a ride to a friend's house in order to avoid getting in trouble for prostitution.
The State responds, stating that Y.D.'s criminal history, drug use, and occupation as a prostitute were known to the jury from the beginning of the State's case. Immediately upon taking the witness stand, Y.D. admitted that she was unemployed, addicted to crack cocaine, smoked several "rocks" a day, earned money as a prostitute, and had numerous criminal convictions.[1] According to Officer Timothy Trull, who took the initial police report on the sexual assault, one of the first things Y.D. told him was that she was a prostitute. The detective assigned to Y.D.'s case testified that he knew Y.D. was a prostitute and that, after interviewing her, he dropped her off at a known crack house.
In addition to hearing Y.D.'s testimony, the jury also heard the testimony of two police officers describing Y.D.'s emotional state after the assault. Officer Trull testified that when he met Y.D. at the convenience store where she had called 911, Y.D. was crying and appeared "really upset." Detective Spivey, who had known Y.D. for a long time, met Y.D. at the hospital where she received her rape exam. Detective Spivey noted that Y.D. was crying and more upset than he had ever seen her before. Y.D. testified that although she had been raped in the past, this incident was different because no one had ever threatened to kill her before. This incident was the only time Y.D. made a sexual assault report to the police.
As the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given their testimony, a jury may believe or disbelieve all or any part of a witness's testimony. Page v. State, 125 S.W.3d 640, 646 (Tex.App.-Houston [1st Dist.] 2003, pet. ref'd). Based upon Y.D.'s candid testimony and the corroborating testimony of the two police officers, the jury could have chosen to believe Y.D. despite her background and personal history.
Inconsistent Statements
Next, appellant complains that the evidence is factually insufficient because Y.D. made inconsistent statements at trial. First, he points to the inconsistent references to the weapon as a "knife," a "box cutter," and a "razor." Officer Trull testified that Y.D. referred to the weapon as a "knife" when first reporting the assault but later referred to it as a "razor." Ultimately, Y.D. explained during her testimony that a "razor" is the street term for a "box cutter." Accordingly, despite the different terms used, the jury could have concluded that appellant used a box cutter during the offense.
*773 Appellant also points out that Y.D. gave conflicting testimony regarding a man she saw coming out of an apartment neighboring appellant's apartment. Officer Trull testified that Y.D. told him she saw the neighbor when she and appellant first arrived at his apartment. At trial, Y.D. testified that she saw the neighbor as she and appellant were leaving his apartment. In light of the fact that Officer Trull testified that Y.D. was upset and crying when she initially told him what had happened to her, the jury could have believed that Y.D. was telling the truth about the assault despite this inconsistency.
Lack of Consent
Lastly, appellant complains that the evidence was factually insufficient to show lack of consent to sex on the part of Y.D. First, he argues that Y.D. gave inconsistent testimony as to whether she told appellant to stop having intercourse with her. On both direct and cross-examination, Y.D. testified that she told appellant to stop. First, she stated, "He had gave me some money because I had told him to stop, and I don't know how long [the inter-course] happened but I eventually got him up off me." Appellant contends that the above statement contradicts the following testimony:
[PROSECUTOR] Is that what you were saying, he was pulling your hair?
[Y.D.] No, the braidshe pulled the braids out.
Q. He pulled the braids out?
A. Yeah, he pulled them aloose.
Q. We are talking this was your real hair?
A. Yeah, he pulled them aloose. It wasn't no braids. They was all loose in all of them.
Q. Did that hurt?
A. Yeah.
Q. Did you ever tell him stop?
A. Yeah, I did. Yes, sir.
Q. How did you tell him that?
A. Actually, I didn't tell him to stop. I just told him that he was hurting me, that he needed to slow down. I said, don't pull my hair so hard because you are hurting me. He wasn't listening. He just kept on doing it.
While appellant contends the above question of whether Y.D. asked him to stop relates to intercourse, the jury was free to conclude that the question related only to whether she asked appellant to stop pulling her hair. Thus, even though the above statements are somewhat ambiguous and open to interpretation, they are not dispositive on the issue of consent.
Next, appellant contends that Y.D. participated in sexual intercourse with him in exchange for payment, not because she feared for her safety. Appellant points to Y.D.'s interview with Detective Spivey in which she stated that she was not scared of appellant. However, appellant takes Y.D.'s statement out of context because she actually stated that she was not scared of appellant, "but he had a razor." Y.D. explained on redirect examination that she was not afraid of appellant but was afraid of the razor he carried.
Although the record shows that Y.D. at times appeared motivated by payment, it supports the jury's finding that she was forced to participate in sexual intercourse with appellant because he threatened her. For example, appellant points to the fact that Y.D. pushed appellant off of her during sex because he was hurting her as evidence that Y.D. was not afraid of appellant. But appellant's argument ignores the fact that Y.D. was forced by appellant to continue having sex with him because he pulled the box cutter out of his pants, showed it to her, and told her that he was going to finish what he was doing. Y.D. *774 testified that she only let him continue because she was afraid appellant would cut her with the "razor."
Appellant also argues that Y.D.'s statement to him in his apartment that she wanted to "get it over with" indicated that the sex was consensual. However, the jury could have interpreted the statement to mean that Y.D. knew what was going to happen to her and did not want to prolong it. Appellant also points to the fact that he did not "beat up." Y.D. as evidence that the sex was consensual. However, the record reveals that appellant held a box cutter to her throat while driving her to his apartment; when at the apartment, threatened to kill her if she screamed; threatened to kill her if she screamed; threatened her with the box cutter during intercourse, telling her he was going to finish what he was doing; treated her roughly by pulling her hair and causing her pain; and, ultimately, refused to stop although Y.D. repeatedly told him that he was hurting her.
The penal code provides that a person commits the offense of aggravated sexual assault "if the person ... intentionally or knowingly ... (i) causes the penetration of the anus or sexual organ of another person by any means, without that person's consent; [or] (ii) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person's consent." TEX. PENAL CODE ANN. § 22.021(a)(1) (Vernon Supp.2004-05). Our review of the record reveals evidence showing that after initially agreeing to go to appellant's apartment, Y.D. changed her mind and asked appellant to take her back to where he had picked her up; appellant refused, pulled out a box cutter, and held it to her throat. When they arrived at the apartment, it was undisputed that appellant had intercourse vaginally and orally with Y.D. While having intercourse, appellant threatened her with a weapon in order to force her to continue having sex with him and refused to stop after she repeatedly told him that he was hurting her.
The evidence we have detailed is not too weak to support the jury's finding of guilt, nor is the evidence contrary to the finding so strong that guilt cannot be proven beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 485. Accordingly, we hold that the evidence was factually sufficient to support the jury's verdict. Appellant's first issue is overruled.
ADMISSION OF EVIDENCE
In his remaining issues, appellant complains that the trial court erred by admitting various exhibits and certain testimony.
Standard of Review
The admission of evidence is a matter within the discretion of the trial court. Montgomery v. State, 810 S.W.2d 372, 378 (Tex.Crim.App.1990). As long as the trial court's ruling admitting the evidence was within the "zone of reasonable disagreement," there is no abuse of discretion and the trial court's ruling will be upheld. Rachal v. State, 917 S.W.2d 799, 807 (Tex.Crim.App.1996).
Witness Statement
In appellant's second and third issues, he complains that the trial court erred by admitting exhibits containing his written statement to police because they are inadmissible under Texas Rules of Evidence 404(b) and 403. The exhibits at issue are copies of a written statement made by appellant while in police custody. Appellant's statement is as follows:[2]
*775 My partents are going through a divorce pressure builds up causes me to durink. Makes me mad and drepressed. So I start looking for something to get my mind off of things thats when I get in trouble and start durinking and pick up prostutes. When I pick them up I'm arerend mad I told one of them if she try anything to hurt me I wood hurt her with a boxcuter. And a nother one I lift with her purse still in my car.
Appellant's trial counsel objected under rule 404(b), arguing that the statement is not a confession and it is unclear whether the reference to the box cutter refers to the incident with Y.D. or whether it refers to an incident with a different prostitute. Counsel also stated that the exhibit was "only being admitted for the purpose of inflaming the jury and making them speculate that the box cutter that is being spoken of in here ... [is] the same box cutter that was used in a specificin this specific case[;] that is not what this indicates." The State responded by arguing that the statement is relevant to appellant's motive and intent and it corroborates Y.D.'s testimony.
During the discussion regarding the admissibility of the statement, the trial court indicated that it was concerned about the other extraneous offenses mentioned in the statement, i.e., getting drunk and picking up prostitutes, not just Y.D. In clarifying his objection, defense counsel stated that his objection is
that they [the State] intend to prove that that box cutter statement goes directly to that young lady [Y.D.]. And I say that is making the jury leap[,] speculate[,] and is prejudicial to my client for them to take that position that that statement that he made there, which is exculpatory, is trying to imply that that box cutter that he was talking about is the same box cutter being used here in this court.
The State also informed the trial court that appellant made the statement after he was arrested and questioned about Y.D.'s case; thus, appellant's references to the box cutter went directly to the incident with Y.D.
Rule 404(b) prohibits the admission of evidence of "other crimes, wrongs or acts" in a criminal case to prove that the defendant acted in conformity with his character to commit crimes. TEX.R. EVID. 404(b). Once the opponent objects to such evidence, it is incumbent upon the proponent of the evidence to show that the evidence has relevance apart from its tendency to prove the defendant acted in conformity with his character. Montgomery, 810 S.W.2d at 388 (op. on reh'g). If the trial court determines the evidence has no relevance apart from character conformity, then the evidence is inadmissible. Id. "However, the proponent of the evidence may convince the court the evidence is relevant to establish some elemental fact, such as identity or intent; that it tends to establish some evidentiary fact, such as motive, opportunity or preparation, leading inferentially to an elemental fact; or that it rebuts a defensive theory." Massey v. State, 933 S.W.2d 582, 586 (Tex.App.-Houston [1st Dist.] 1996, no pet.).
"`Relevant evidence' means 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." TEX.R. EVID. 401. Here, the State argues that the written statement was relevant to corroborate Y.D.'s testimony that appellant threatened her with a box cutter and went to the issue of consent. The trial court admitted the statement because
*776 it basically states that [appellant engaged] in drinking and picking up prostitutes, and also it states in here about the box cutter, since the box cutter has been related to this particular case, and since he was arrested topertaining to this particular case, it is [the trial court's] opinion that he is talking about this particular case. [Emphasis added.]
Thus, it appears the trial court believed that the portion of the statement in which appellant admitted to threatening a prostitute with a box cutter referred to Y.D. and corroborated her testimony. No evidence was admitted at guilt-innocence about the other extraneous acts revealed in the statement, i.e., drinking, getting mad, and picking up other prostitutes. Accordingly, we hold that the trial court did not abuse its discretion in admitting the statement under rule 404(b) both to corroborate Y.D.'s testimony and because it was relevant to the issue of consent.
Next, we must determine whether the trial court abused its discretion in admitting the evidence under rule 403. See Montgomery, 810 S.W.2d at 388. Rule 403 allows the admission of relevant evidence unless its probative value is substantially outweighed by the danger of unfair prejudice, confusion, undue delay, or the unnecessary presentation of cumulative evidence. TEX.R. EVID. 403. Rule 403 favors admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial. Montgomery, 810 S.W.2d at 389. In Santellan v. State, 939 S.W.2d 155 (Tex.Crim.App.1997), the court of criminal appeals re-stated the factors discussed in Montgomery that should go into the balancing test:
(1) how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probablea factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense;
(2) the potential the other offense evidence has to impress the jury "in some irrational but nevertheless indelible way";
(3) the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense; [and]
(4) the force of the proponent's need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.
Id. at 169 (footnote omitted).
Here, appellant's statement about the box cutter corroborates Y.D.'s testimony about her lack of consent and thus makes it more probable that she did not consent to sex with appellant. As appellant notes in his earlier points, Y.D.'s criminal history and drug use did not make her the ideal witness. For that same reason, the State had a strong need for the evidence. Although the police found a box cutter at appellant's apartment, the jury could have concluded that appellant's owning a box cutter was not unusual and that Y.D. could have seen it when she was at appellant's apartment. Thus, appellant's statement strengthened the State's case on the consent issue.
In addition, while the acts described in appellant's statement were probably distasteful to at least some, if not all, of the jury members, they are not any more inflammatory than the charged offense. In fact, appellant's statement about the box cutter purports to be exculpatory by implying that he was responding to a threat. Moreover, the amount of time the State spent developing testimony about the statement was very small compared to the rest of the record. And the prosecutors *777 did not unduly emphasize the statement in their closing arguments; the bulk of their arguments focused on Y.D. and her testimony. Thus, we conclude that the trial court did not abuse its discretion in admitting evidence of appellant's statement under rule 403.
We overrule appellant's second and third issues.
Hearsay Statements, Admission of Exhibits 53 and 55, and the Confrontation Clause
In his fourth through seventh issues, appellant complains that the trial court erred during the punishment phase of trial by admitting the hearsay statements of L.J. and K.G. and DNA evidence reports linking appellant to the alleged sexual assaults of both of these women. Specifically, appellant complains that the trial court erred by allowing two police officers to testify about statements the women made when they reported being sexually assaulted and by admitting the DNA evidence through the police officers. Appellant asserts that in allowing the statements and exhibits into evidence, the trial court violated his constitutional right to confront and cross-examine witnesses under the Sixth and Fourteenth Amendments. The State responds that the statements were properly admitted as nontestimonial excited utterances under evidence rule 803(2). TEX.R. EVID. 803(2). Appellant stipulated to the admissibility of the exhibits but conditioned his stipulation on his prior Confrontation Clause objection.
Fort Worth Police Officer Thomas Shelton testified that on August 17, 2000, he found L.J. walking down the street. Her pants were torn and she was "crying" and "upset." Officer Shelton asked her what had happened and she responded, still crying and "very emotional," that approximately three hours earlier she had been walking home from the store when a car pulled up beside her and asked her how she was doing. According to Officer Shelton, she then described how the car pulled over when she walked away from it and the driver got out, grabbed her, held a gun to her side, and told her to get into the car. They drove to an old concrete factory, pulled into the parking lot, and the driver made L.J. perform oral sex on him. Afterwards, L.J. and the driver went into the building and the driver had sexual intercourse with L.J. without her consent.
The State admitted exhibit 53 during punishment. The exhibit was a DNA lab report regarding a piece of paper with semen on it found at the concrete factory where L.J. alleged she was raped. DNA analysis confirmed that the semen on the paper came from appellant.
The other contested testimony came from Fort Worth Police Officer Daryl Horn. Officer Horn testified that on September 27, 2001, he was flagged down by K.G. in a park near Benbrook Lake. Officer Horn described K.G. as being "very upset, very emotionally distraught, almost hysterical." Officer Horn testified that K.G. told him that she had been raped and robbed in the park approximately twenty to thirty minutes earlier. While K.G. and Officer Horn spoke, K.G. continued to cry and be upset. K.G. told Officer Horn that she had been trying to find a ride home when a man in a car pulled over and she offered him two dollars to drive her home. The driver took her to an apartment complex near Hulen Street and went inside. When the driver came out, he screamed at K.G. and told her that she was going to obey him. The driver took K.G. to the park near Benbrook Lake and sexually assaulted her for two to two-and-a-half hours. After the driver ejaculated, he robbed K.G. of forty dollars. Officer Horn took K.G. to the hospital for a rape exam. *778 DNA analysis of the semen found in K.G. showed that it belonged to appellant.
Admissibility Under Confrontation Clause
We review de novo the trial court's ruling that the admission of Officers Shelton's and Horn's testimony would not violate appellant's Confrontation Clause rights. See Lilly v. Virginia, 527 U.S. 116, 137, 119 S. Ct. 1887, 1900, 144 L. Ed. 2d 117 (1999) (holding that "when deciding whether the admission of a declarant's out-of-court statements violates the Confrontation Clause, courts should independently review whether the government's proffered guarantees of trustworthiness satisfy the demands of the Clause"). The Sixth Amendment provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him." U.S. CONST. amend. VI. The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversarial proceeding before the trier of fact. Lilly, 527 U.S. at 123-24, 119 S.Ct. at 1894.
At the time of appellant's trial, a Confrontation Clause challenge to the admissibility of an out-of-court statement offered against the accused was governed by Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980). Under Roberts, before an out-of-court statement could be admitted, the hearsay declarant had to be unavailable if she was not present for cross-examination at trial. Even then, her statement was admissible only if it bore adequate "indicia of reliability." Reliability could be shown by the presence of a firmly rooted hearsay exception or by particularized guarantees of trustworthiness. Id. at 66, 100 S.Ct. at 2539.
While appellant's appeal was pending before this court, the Supreme Court replaced the Roberts test with a new test, set out in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). In Crawford, the Court declared that the Roberts test was at once too broad because it applied the same analysis whether the out-of-court statement was testimonial or not, and too narrow because it admitted ex parte testimonial statements "upon a mere finding of reliability." Id. at 60, 124 S.Ct. at 1369.
Crawford distinguishes the standards used in determining the admissibility of nontestimonial statements from those applicable to testimonial statements. Under Crawford, without exception, testimonial statements of witnesses absent from trial are admissible over a Sixth Amendment Confrontation Clause objection only where the declarant is unavailable and the defendant has had a prior opportunity to cross-examine the declarant.[3]Id. at 68, 124 S.Ct. at 1374. Testimonial statements from absent, unavailable witnesses are not admissible if the defendant has not had the opportunity to cross-examine the declarant. In contrast, nontestimonial statements of an unavailable declarant who has not been cross-examined may still be admitted as evidence in a criminal case if the statements qualify under an exception to the rule against hearsay. Id.
Therefore, the threshold question under Crawford is whether the statement offered is "testimonial" in nature.[4] Unfortunately, *779 the Supreme Court failed to define what constitutes a testimonial statement. Instead, the Court stated,
We leave for another day any effort to spell out a comprehensive definition of "testimonial." Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.
Id. at 68, 124 S.Ct. at 1374.
Appellant argues in his reply brief that K.G.'s and L.J.'s statements are testimonial because they are analogous to statements made under police interrogation. The State argues that the statements are nontestimonial because they were not made during a police interrogation. The State characterizes each statement as a "call for help," not initiated by the police, that was part of "the criminal incident itself, not part of the prosecution that followed." Appellant concedes that a 911 call may constitute a nontestimonial "spontaneous declaration"; however, he contends that the statements in this case were not spontaneous, but rational, thinking responses to questions posed by the police.
Since Crawford was decided, several Texas and other courts have had the opportunity to examine whether certain out-of-court statements are testimonial. See Key v. State, ___ S.W.3d ___, ___, No. 12-04-00030-CR, 2005 WL 467167, at *3 (Tex.App.-Tyler Feb.28, 2005, pet. filed). "Most ... have held that initial police-victim interaction at the scene of an incident is not an interrogation and that admission of testimony about that interaction does not offend the Confrontation Clause." Id.; see also Spencer v. State, 162 S.W.3d 877, 881 (Tex.App.-Houston [14th Dist.] 2005, no pet. h.) (agreeing with Key's conclusion that "statements made to officers responding to a call during the initial assessment and securing of a crime scene are not testimonial"); Wilson v. State, 151 S.W.3d 694, 698 (Tex.App.-Fort Worth 2004, pet. ref'd) (holding that statements made by appellant's girlfriend to police at scene of accident were nontestimonial).
Here, the testifying officers did not seek out the victims for the purpose of investigating the offenses the victims eventually described. Indeed, the officers did not know if any offense had been committed when they first encountered the victims. The victims were not considered suspects, accomplices, or co-conspirators. The officers' testimony indicates that each one asked questions of a lone, visibly upset female in a deserted place in the middle of the night in an attempt to determine the reason for her emotional state. We conclude that the victims' statements to the officers were not the product of custodial interrogation, nor were they responses to tactically "structured police questioning." See Crawford, 541 U.S. at 53 n. 4, 124 S.Ct. at 1365 n. 4.
Moreover, even if the trial court had abused its discretion in admitting L.J.'s and K.G.'s statements to the police, any error would be harmless. See Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438, 89 L. Ed. 2d 674 (1986); TEX.R.APP.P. 44.2(a). DNA tests corroborated the testimony that appellant had engaged in sexual intercourse with the declarants. The officers' observations of the disheveled appearance and disturbed and emotional demeanor of the declarants also corroborated the testimony that they had *780 been assaulted. In addition to Y.D.'s testimony at guilt-innocence, five other prostitutes testified at punishment that appellant assaulted them. Appellant was able to cross-examine all of them. In light of the evidence corroborating L.J.'s and K.G.'s statements; the strength of the State's case against appellant, the cumulative nature of the evidence, and the relative unimportance of the hearsay testimonyas evidenced by the testimony of the five other women who testified to similar assaults by appellant; and the fact that appellant was able to cross-examine all of those women, we can determine beyond a reasonable doubt that the admission of L.J.'s and K.G.'s hearsay statements and the DNA evidence did not contribute to appellant's punishment.
Admissibility as Excited Utterances
In addition to disputing whether L.J.'s and K.G.'s statements are admissible under Crawford, appellant also contends that the statements are not admissible as excited utterances under rule 803(2). TEX.R. EVID. 803(2). We disagree.
Although appellant asserts several reasons why L.J.'s and K.G.'s comments to the police are not excited utterances, the only reason he asserted at trial was that "it is not near the time period." Thus, we will address only appellant's contention that L.J.'s and K.G.'s comments, and the offenses described by them, were too remote in time from the occurrence of the offenses. See TEX.R.APP. P. 33.1(a)(1)(A); Guevara v. State, 97 S.W.3d 579, 583 (Tex.Crim.App.2003).
"It is not dispositive that [a] statement is an answer to a question or that it was separated by a period of time from the startling event; these are simply factors to consider in determining whether the statement is admissible under the excited utterance hearsay exception." Brown v. State, 96 S.W.3d 508, 514 (Tex.App.-Austin 2002, no pet.).[5] The critical determination is "whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event" or condition at the time of the statement. Id. (quoting Salazar v. State, 38 S.W.3d 141, 154 (Tex.Crim.App.), cert. denied, 534 U.S. 855, 122 S. Ct. 127, 151 L. Ed. 2d 82 (2001)). Here, Officer Shelton testified that L.J. was upset and very emotional when he saw her and that she was still crying while she answered his questions. Officer Horn described K.G. as being "very upset, very emotionally distraught, almost hysterical." Considering the apparent emotional state of the women when the officers encountered them, we do not believe the trial court abused its discretion in determining that their statements were admissible as excited utterances. See TEX.R. EVID. 803(2); Brown, 96 S.W.3d at 514. Accordingly, we overrule appellant's fourth through seventh issues.
CONCLUSION
Having overruled all of appellant's issues, we affirm the trial court's judgment.
NOTES
[1] Y.D.'s convictions included one misdemeanor theft conviction, five prostitution convictions, a state jail felony conviction for possession of a controlled substance, and federal convictions for embezzlement and felony theft.
[2] All errors are in original.
[3] Crawford was pending, certiorari granted, in the United States Supreme Court at the time of submission, and both sides acknowledged that the Supreme Court's holding in that case would be dispositive of the present case.
[4] The Supreme Court derived this term from the Confrontation Clause's language, noting that the Clause is concerned with "witnesses," whom the Court identifies as those who "bear testimony." Id. at 51, 124 S.Ct. at 1364.
[5] Because Brown is a pre-Crawford case, it is unclear whether the victim's statements to police are testimonial or nontestimonial because that issue is not analyzed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1380322/ | 198 Va. 505 (1956)
HAMPTON CATLETT
v.
COMMONWEALTH OF VIRGINIA.
Record No. 4605.
Supreme Court of Virginia.
November 26, 1956.
W. A. Hall, Jr., for the plaintiff in error.
Present, Hudgins, C.J., and Eggleston, Spratley, Buchanan, Miller and
1. Catlett, charged with rape, was tried by the court after he had filed a signed waiver of trial by jury and had in person reaffirmed this waiver on the day of trial. He was found guilty. The order of conviction did not expressly recite the concurrence of the court in the waiver. The requirement of the Constitution that such concurrence be entered of record was met, nevertheless, because such concurrence could be fairly inferred from the statement in the order that the court after the waiver heard the case without a jury.
2. However, since the concurrence of the prosecuting attorney is also required to be entered of record and such concurrence could not be fairly inferred from the order, it was fatally defective and the omission could not be supplied by order nunc pro tunc.
Error to an order of the Circuit Court of Fairfax county. Hon. Arthur W. Sinclair, judge presiding. The opinion states the case.
R. D. McIlwaine, III, Assistant Attorney General (J. Lindsay Almond, Jr., Attorney General, on brief), for the Commonwealth.
WHITTLE
WHITTLE, J., delivered the opinion of the court.
This case is before us upon a writ of error granted Hampton Catlett, who challenges a final order entered on October 21, 1955, *506 correcting nunc pro tunc an order which had been entered on June 18, 1953, in a prosecution against him under an indictment for rape.
On May 11, 1953 Catlett was indicted for rape by the Grand Jury of Fairfax County. He was arraigned and entered a plea of not guilty; whereupon the case was set for trial on June 18, 1953. On June 17, 1953 Catlett filed a signed waiver of trial by jury and requested to be tried by the court, which waiver and request were reaffirmed by him in person on the day of trial. The court heard the case on June 18, 1953 and entered an order finding Catlett guilty as charged, fixing his punishment at thirty years in the penitentiary.
On October 15, 1955 the Commonwealth's Attorney served notice upon Catlett and his attorneys that on October 21, 1955 he would move the court to enter an order nunc pro tunc supplying an omission in the court's order of June 18, 1953, correcting such order to show "the concurrence of the Commonwealth's Attorney and of the Court" in Catlett's waiver of trial by jury.
At this hearing the attorneys who represented Catlett at the trial for rape testified that they advised their client to waive trial by jury; that Catlett adopted the suggestion and so agreed in writing, which writing was signed by him at the suggestion of the Commonwealth's Attorney and filed in the court records; that the Commonwealth's Attorney in open court expressly concurred in appellant's waiver, and the court also concurred therein. The Commonwealth's Attorney who prosecuted the case testified to the same effect.
Catlett objected to the admission of the foregoing testimony on the ground that it was not competent for the court to correct its order of June 18, 1953,
nunc pro tunc, except upon "record evidence" from which the correction could be safely made. This objection was initially overruled by the court; however, at the conclusion of the proceedings the court sustained Catlett's motion to strike the testimony as inadmissible.
The trial court was of the opinion that the order of June 18, 1953 was sufficient to show that he heard the case "with the concurrence of the Commonwealth's Attorney and of the court", and that this was "manifest from the entire record in the proceedings".
The order entered on June 18, 1953 stated, inter alia:
"Thereupon, said Hampton Catlett, in person, waived his right to a trial by jury and requested the court to hear all matters of law and facts in the case, and thereupon, the court proceeded to hear all of the *507 evidence in the case, both on behalf of the Commonwealth and on behalf of the defendant, * * *."
The nunc pro tunc order complained of, entered on October 21, 1955, stated in part:
"And it further being the opinion of the Court that such omission in the order of June 18, 1953 indicating the concurrence of the Commonwealth's Attorney and the Court in the waiver of trial by jury was omitted through inadvertence by the Court."
"It is adjudged and ordered that the said order of June 18, 1953 be amended to read as follows: * * *"
"'Thereupon said Hampton Catlett, in person, waived his right to a trial by jury and requested the court to hear all matters of law and facts in the case,"
with the concurrence of the Commonwealth's Attorney and of the Court; the Court thereupon proceeded to hear all of the evidence in the case, both on behalf of the Commonwealth and on behalf of the defendant, * * *.'" (Italics supplied)"
The question presented is: Was the concurrence of the Commonwealth's Attorney and of the Court in the waiver by the accused of a trial by jury "entered of record" in the order of June 18, 1953 as required by Section 8 of the Constitution of Virginia?
The pertinent portion of Section 8 of the Constitution provides:
"In criminal cases, the accused may plead guilty; and, if the accused plead not guilty, with his consent and the concurrence of the Commonwealth's Attorney and of the Court entered of record, he may be tried by a smaller number of jurors, or waive a jury. In case of such waiver, or plea of guilty, the Court shall try the case." (Italics supplied)
Under our holding in Barnes Commonwealth, 92 Va. 794, 800, 801, 23 S.E. 784, 785, it can be safely said that the concurrence of the court was "entered of record" as required by Section 8 of the Constitution. The order of June 18, 1953 stated: "* * * Thereupon, [that is, upon the defendant's waiver and request that the court hear the case] the court proceeded to hear all of the evidence * * *." Undoubtedly the court would not have so proceeded unless it had concurred in the defendant's waiver and request. Hence the necessary inference to be drawn from the order is that the court concurred in the defendant's waiver and request that it hear the case. Gilligan Commonwealth, 99 Va. 816, 822, 37 S.E. 962, 963, 964; Teasley Commonwealth, 188 Va. 376, 380, 381, 49 S.E.2d 604, 605, 606. *508
However, we cannot draw by necessary inference from the order of June 18, 1953 that the Commonwealth's Attorney concurred in the waiver and request of the defendant, or that such concurrence, if had, was "entered of record" as required by the Constitution.
It may be conceded that the Commonwealth's Attorney concurred in the waiver. But that does not satisfy the mandate of the Constitution. It requires that such concurrence be "entered of record". Since the order of June 18, 1953 failed to record such concurrence, proofs aliunde could not cure the defect.
In Council Commonwealth, 198 Va. 288, 94 S.E.2d 245, we held that proofs aliunde were admissible to show that the panel which tried the accused was actually composed of twelve jurors and not of eleven as stated in the order. In the present case there is no issue of fact as to whether the Commonwealth's Attorney actually concurred in the waiver. The only question here is whether such concurrence was "entered of record", and no proper inference can be drawn from a reading of the order to show that the concurrence of the Commonwealth's Attorney, even if had, was "entered of record".
In this instance the failure of the order to record the concurrence of the Commonwealth's Attorney as required by the Constitution is fatal.
For the reasons stated the nunc pro tunc order entered on October 21, 1955 is annulled.
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1380248/ | 104 Cal. App. 2d 697 (1951)
SECURITY-FIRST NATIONAL BANK OF LOS ANGELES (a National Banking Association), as Trustee, etc., Plaintiff and Respondent,
v.
ELBA W. REYNOLDS et al., Appellants; JOHN SETLEY KLEIS, JR., a Minor, et al., Defendants and Respondents.
Civ. No. 18244.
California Court of Appeals. Second Dist., Div. Two.
June 12, 1951.
Erb, French & Picone, Edward D. French, Brady & Nossaman and Walter L. Nossaman for Appellants.
Raymond A. Nelson, in pro. per., for Respondents.
MOORE, P. J.
Plaintiff sued the life tenants and remaindermen of a trust estate because of conflicting demands made with reference to certain income of the estate. It asked (1) for instructions to the trustee and (2) for a construction of the declaration of trust and of the trustee's authority.
The trustor was Harriet L. Rice. She had formerly placed *698 her estate in trust with plaintiff from which she was to receive in her lifetime "the net income received from the trust estate and available for distribution." That trust terminated in January, 1931. Under date of February 18, 1931, the present trust was created, the corpus of which was composed of the assets of the former trust and its accumulated income. By the terms of the Declaration of Trust, herein referred to as the declaration, trustor was privileged to withdraw at any time the "accumulated income" of the former trust. But on April 4, 1941, the declaration was so amended that "all accumulated income under paragraph XI of the Declaration in the sum of $25,000" which was income of the previous trust "shall henceforth be and become a part of the principal of the trust estate."
While the trustor might without let or hindrance have, in compliance with her declaration of trust, taken for her own use all the income from the trust estate [fn. *], she did not do so. On July 29, 1942, without protest from her, the trustee budgeted the income and thereafter paid her only $500 monthly. As a consequence, at the time of her decease the excess of income received and accumulated by the trustee above her withdrawals aggregated $7,083.20 while $1,106.78 had accrued but had not yet been received by the trustee.
Following the demise of Mrs. Rice in February, 1948, her executor brought an action against the trustee to recover the collected excess income ($7,083.20). Relief was denied and as a part of its decision the court made the following finding: "That it was the intention of Harriet L. Rice, the creator of said trust, that all of the net income which she was entitled to receive during her lifetime, but which had not been paid over to her at the time of her death, should be paid over pursuant to said trust agreement as follows: Income accrued and/or undistributed at the termination of any interest or estate hereunder, shall belong and go to the beneficiary or beneficiaries entitled to the next eventual estate in the same proportions as the principal thereof."
Pertinent Provisions of the Declaration of Trust
The latter sentence of the finding made in the executor's action is quoted from article IX of the declaration, and it was never modified.
Article III requires the trustee on the trustor's demise to make payments to the persons mentioned in article II and *699 then to distribute to them certain sums of money; but the trustee was not directed to pay them out of principal or income. However, the declaration as amended in April, 1941, required that the accumulated income which had been made a part of the trust estate become a part of the principal.
Article V provides that after payment has been made to the beneficiaries named in article III, the net income of the trust estate shall be distributed in installments to designated persons and it makes provision for such distribution to the successors in interest of those named and for the termination of the trust and for the ultimate distribution of the corpus to specified relatives of trustor. Appellants have priority over all other relatives named in the declaration and assert the right to receive all the income including that accrued and undistributed.
Under the declaration (art. VIII) the trustee was given all powers over the trust estate that might have been exercised by an absolute owner, including the power and discretion to invest accumulated income the same as though it were the corpus of the trust.
Article IX requires that all accrued or undistributed income upon the termination of the trust "shall belong and go to the beneficiary or beneficiaries entitled to the next eventual estate in the same proportions as the principal thereof."
The Trustor's Intent
[1] Appellants contend that (1) at no place in the declaration is there proof of trustor's purpose with respect to the accumulated income; (2) had she intended the accumulations to become principal she would have said so in the declaration; (3) as life tenants they are entitled to the next "eventual estate"; (4) since they do not take any portion of the principal, the "eventual estate" clause must be disregarded and the accumulated income be divided among them on the basis whereby they receive current income. On the other hand, respondent-remaindermen contend that the trustor clearly intended that income already accumulated at the date of the trustor's demise, as well as the income accrued but not collected, constitutes corpus of the trust and as such corpus it should at the termination of the trust be paid to themselves as article IX clearly indicates. That article directs the disposition of undistributed income and unless it is avoided by other provisions of the declaration such directive must prevail. Not only is there no such contravening clause *700 within the instrument but on reading it in its entirety and in the light of transpired events it is reasonably inferred that the trustor intended the income accumulated and accrued at her death to go to the remaindermen when the trust terminates. In the executor's action, final judgment determined that the "accumulated income" is not a part of Mrs. Rice's estate, but it is a part of the trust estate and must be distributed to the beneficiaries of the next eventual estate as the declaration provides. That is a final judgment.
There are means of divining the trustor's intention other than her written word. Not only did she deposit under the new declaration the accumulated income from the former trust in the sum of $25,000 but she amended the later instrument in 1942 by her acquiescence in the trustee's budgeting of the total income, advancing to her only $500 monthly and keeping the balance as "accumulated income." Such conduct on her part was tantamount (1) to a declaration that she desired only that a monthly allowance be made to her and (2) to her approbation of the trustee's retention of the unused portion of the net income. In fact, it could mean no less than that she had arranged for the budget in the ordinary course of business. (Code Civ. Proc., 1963, subds. 19, 20.) And by the same token and the silence of the record to the contrary, the trustee conducted the trust fairly and regularly and according to the ordinary course of business. Moreover, the earnings of accumulated income were paid trustor as income on principal, i.e., she made no distinction between income from the original corpus and earnings from the cumulated income. Obviously for the purpose of giving an aura of sanctity to her silence, in 1941 she amended the declaration by making the past accumulations a part of the corpus of her trust and continued the practice of accepting only a part of the net earnings thereof, leaving the balance to build up the corpus Such conduct negates the deduction urged by appellants, to wit, that she would have made provision for the future cumulations had she desired them to be part of the corpus of the trust. Intent that income shall be wholly or partially accumulated to become principal may be inferred not only from the language of the declaration but as well from the acts of the trustor during the continuance of her life estate. (See Manning v. Bank of California, 216 Cal. 629, 637 [15 P.2d 746]; Estate of Budd, 166 Cal. 286, 292 [135 P. 1131]; Estate of Steele, 124 Cal. 533, 541 [57 P. 564].)
If the trustor intended for the income amassed in her *701 lifetime to become part of the trust estate, then such intention must continue to prevail notwithstanding her death. Such intention having been inferred from the instrument and the acts of the trustor, it becomes a directive posthumously to deny to life tenants the accumulated income and to preserve it as corpus for the remaindermen. The declaration contains no provision for payment to appellants as life tenants of any sum other than the income accruing after the death of Mrs. Rice. Giving to every clause of the instrument the effect intended by its author as required by the rule in interpreting contracts (Civ. Code, 1641) no other conclusion can be derived. The trustor's intention is manifested by her language in the declaration.
"Next Eventual Estate"
[2] Appellants contend that the phrase "next eventual estate" quoted from article IX appears in section 733 of the Civil Code and has been applied to determine the destination of income undisposed of under the terms of the trust. They cite many decisions in support of that thesis, to wit, Manice v. Manice, 43 N.Y. 303, 385; Pray v. Hegeman, 92 N.Y. 508; In re Saddington's Will, 260 A.D. 135 [21 N.Y.S.2d 80], etc. A close inspection of section 733 [fn. *] will show that it has no application. Before it could be invoked, article IX must be impotent and not susceptible of a practical interpretation. It relates to the income from a trust estate which accrued while the power to alienate the corpus is suspended by reason of "a valid limitation of a future interest." The amassed income of the trust estate here did not accrue by virtue of "a suspension of the power of alienation" in "consequence of a valid limitation of a future interest." It accumulated while the trustor was in being and had the right to use it at will. It cannot therefore be said that article IX of the declaration would constitute a foundation for an award of the accumulated income to appellants. In the case of Manning v. Bank of Calif., 216 Cal. 629 [15 P.2d 746], a situation not wholly unlike the facts herein was under consideration. After observing the broad powers of the trustee to manage, invest and reinvest "any moneys or surplus or proceeds of sale," *702 the court commented that at the date of the will, seven years before the testator's death, he had four daughters whose normal life expectancy exceeded 20 years. He knew the income and expenses incident to the estate were uncertain and variable but of the income he clearly intended that each of his girls should receive not more than $300 a month during the life of the trust. "It is equally plain that he desired his entire estate not consumed in paying his daughters the specified income and discharging expenses of the trust administration ultimately to go to said four daughters ... to the exclusion of other persons to whom he might have made legacies and bequests. The conclusion that the surplus income was to be accumulated and invested during the life of the trust is inescapable from the language used in creating the trust." Likewise, Mrs. Rice by using only $500 per month when she might have used more, and by empowering the trustee to "invest" income as though it had been corpus, could have intended not otherwise than that the accumulations of income should constitute part of the corpus of the trust.
Appellants argue fervently that the "last nine words" of article IX contemplate an element not present at this juncture in the life of the trust, namely, that "the principal thereof had to be going somewhere when the particular interest or estate ... terminated." Now the language of article IX could by a reasonable construction mean nothing else than that the income accrued at the date of trustor's death shall belong and go to the remaindermen who are entitled to the next eventual estate. The italicized phrase involves no mystery. While the word "eventual" has many meanings, that which appears to be most appropriate to its setting as used in article IX is that which will result ultimately or which will take place in a particular contingency. [fn. *] The "estate" means the corpus of the trust in the ownership of someone. The "next" estate refers to the status of such corpus when it *703 passes into the ownership of others. The word "eventual" emphasizes such meaning of "next," indicating that the trustor's thought was that the accrued income at the "termination of the trust hereunder shall belong and go to the beneficiaries" of the corpus which becomes in their hands the "eventual estate." Appellants as the life tenants could never by virtue of the declaration become owners of the estate, and the corpus cannot be an estate unless it is in the ownership of someone so that it has a status, a state, a permanent abode.
The trustor's plan and purpose evidently was to build up her estate for her eventual beneficiaries. To that end she designed as the method of accomplishing such purpose to transmit as an addition to the corpus of the trust such accrued profits of the trust as she might not have used in her lifetime.
The absence of an express stipulation in the instrument for the accumulation of income or for its being added to the trust estate does not hinder the interpretation that the declaration intended such behavior. Her purpose that such accumulated income should become principal is so clearly implied by her own acts as well as by the instrument itself that her meaning cannot be mistaken. Not a word indicates an intent that such cumulations may be paid to life tenants after trustor's death. If they are not to receive it, the only destination marked for it is the trust estate so that it may be finally divided among the remaindermen in the "same proportions" as the principal. By pursuing such course appellants will receive income on the "accumulated income" during their terms as beneficiaries and the remaindermen will receive it "eventually" as it was intended by the trustor.
Judgment affirmed.
McComb, J., and Wilson, J., concurred.
Lord Lyttleton: William aspired to secure to himself the eventual succession to the crown ... in case that Louis ... should die before his father.
Burke: Nothing is provided for it, but an eventual surplus to be divided. ...
Green's Short History: He offered to admit England to a share in the eventual partition of the Spanish monarchy.
Jefferson: A bill authorizing the president in case of a declaration of war ... to raise an eventual army of thirty regiments.
Buckle: As society advances, the eventual cessation of all such attempts is certain.
NOTES
[fn. *] *. The trust estate was conservatively worth $200,000.
[fn. *] *. Civil Code, section 733. "When, in consequence of a valid limitation of a future interest, there is a suspension of the power of alienation or of the ownership during the continuation of which the income is undisposed of, and no valid direction for its accumulation is given, such income belongs to the persons presumptively entitled to the next eventual interest."
[fn. *] *. Illustrations of this use given by the Oxford English Dictionary are as follows: | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1380318/ | 230 S.C. 174 (1956)
95 S.E.2d 879
MARTHA W. TWITTY, Appellant,
v.
G.M. HARRISON, Respondent.
17212
Supreme Court of South Carolina.
October 30, 1956.
*175 Messrs. A.F. Woods, of Marion, and Paulling & James, of Darlington, for Appellant.
*176 Messrs. James P. Mozingo, III, and John L. Nettles, of Darlington, for Respondent.
*177 Messrs. A.F. Woods, of Marion, and Paulling & James, of Darlington, for Appellant, in Reply.
October 30, 1956.
TAYLOR, Justice.
This appeal comes from the Court of Common Pleas for Darlington County where appellant brought an action to foreclose a mortgage of real estate. The defendant, respondent, pleaded payments to Samuel Want, who it is alleged was plaintiff's agent authorized to receive same. Judge Lewis, before whom the case was tried, found for the defendant on the issue of agency, held that the mortgage obligation had been paid in full, and ordered the mortgage cancelled of record. From that decree comes this appeal which will be determined by resolving the question of whether or not the evidence preponderately established Mr. Want's agency.
Except where the facts have been settled by a jury, whose verdict has not been set aside, it is the duty of this court in equity cases to review challenged findings of fact as well as matters of law. Const. 1895, Article V, Section 4; Bates v. Bates, 213 S.C. 26, 48 S.E. (2d) 612; Little v. Little, 215 S.C. 52, 53 S.E. (2d) 884; Gilbert v. McLeod Infirmary, 219 S.C. 174, 64 S.E. (2d) 524, 24 A.L.R. (2d) 60. But such duty on our part does not require that we disregard the findings below, or that we ignore the fact that the trial Judge who saw and heard the witnesses is in better position than this court to evaluate their credibility; nor does it relieve the appellant of the burden of *178 convincing this court that the trial Judge committed error in his findings of fact. Cogswell v. Cannady, 135 S.C. 365, 133 S.E. 834.
On December 31, 1952, respondent Harrison executed and delivered to Darlington County Bank & Trust Company his promissory note in the amount of $2,500.00 payable in ten consecutive quarterly installments of $250.00 each, the first being payable on March 31, 1953, together with interest on the principal balance remaining from time to time unpaid, at the rate of 6 per cent per annum, payable quarterly, from the date of the note. On the same date, as security for its payment, he executed and delivered to the said bank his mortgage of certain real estate in Darlington County. The note and mortgage provided that default in the payment of interest, or of any installment of principal, should render the whole amount of the obligation immediately due and payable at the option of the mortgagee; and further provided that the obligor should have the right "to pay the whole of the said indebtedness, or any part thereof in excess of the payments hereinabove stipulated, on any installment paying date." The mortgage was recorded on January 3, 1953.
The late Samuel Want, Esq., a prominent attorney of Darlington, was engaged extensively in handling loans on real estate; and at the time mentioned was President of Darlington County Bank & Trust Company. Mr. Harrison testified that he went to Mr. Want to borrow the money in question, and that the mortgage above mentioned was executed in Mr. Want's law office. On February 3, 1953, the said note and mortgage were assigned by the bank, without recourse, to the appellant Twitty. Thereupon the amount of the obligation was charged on the bank's records to the account of "Samuel Want, Attorney"; and opposite the ledger entry of the transaction appears a notation in the handwriting of Mr. D.W. Horton, then Cashier: "Taken up by Mr. Want," and another, also in Mr. Horton's handwriting, "Transferred to Martha W. Twitty." Mr. Horton testified *179 that he made the first of these notations on February 3, 1953, and the other at some later date.
Mrs. Twitty testified that the consideration for the assignment to her was the full amount of the obligation as of February 3, 1953, and that this consideration was paid by her cancellation of a prior mortgage which she held over the same property, and by her check for the difference between the balance owing her on the old mortgage and the amount of the new mortgage obligation, this check being in the amount of $1,563.34, dated February 7, 1953, drawn on her savings account in the Citizens Bank of Darlington, and made payable to the order of "Mr. S. Want."
The prior mortgage of Harrison to Twitty was dated September 22, 1951, and was in the amount of $2,250.00, payable $250.00 on the 22nd day of each third month, for twenty-one months, with a final payment of $500.00 two years from date, and interest was at 6 per cent, payable quarterly. This mortgage appears to have been originally made out to Darlington County Bank & Trust Company, and to have been purchased by Mrs. Twitty on November 21, 1951. Mr. Want's ledger record of the mortgage shows the following payments of principal and interest made by Harrison:
"12/22/51 Principal Paid by $250.00
Interest Harrison 33.75
250 retained on investment
22.13 int. deducted from $30 due
Mrs. Twitty $7.87 Rem.
3.75 to S.W.
3/19/52 Principal Paid by $250.00
Rem.
Interest Harrison 30.00
6/19/52 Principal Paid by 250.00
Rem.
Interest Harrison 26.25
9/20/52 Principal 500.00
Rem.
Interest 22.50
12/24/52 Principal 250.00
Rem.
Interest 15.00
Balance principal $750.00
Paid in full and rem."
*180 In reference to the mortgage here involved, Mrs. Twitty testified that on January 7, 1953, she told Mr. Want "that I am leaving the decision in regard to the Harrison mortgage in your judgment." She also testified that she received from Mr. Want three checks payable to her order, of the dates, in the amounts and bearing notations, as follows:
"April 1, 1953, $287.50, G.M. Harrison, Prin. $250.00
Int. 37.50
June 30, 1953, 33.75, G.M. Harrison, Int.
July 10, 1953, 250.00, G.M. Harrison, Prin."
Mr. Want's ledger record shows the following payments to him by Harrison:
"4/ 2/53, Pd. by Harrison, Prin. $250.00
Rem.
Int. 37.50 3 Mos.
6/30/53, Pd. by Harrison, Int. 33.75
Rem.
Only
7/10/53, Pd. by Harrison 250.00
Rem.
9/25/53, Pd. by Harriston to
S. Want 2030.00
Balance prin. 2,000.00
Int. 30.00"
It is undisputed that the payment of $2,030.00 above referred to was not remitted by Mr. Want to Mrs. Twitty.
Mrs. Twitty testified that Mr. Want had made collections on the Harrison mortgages and on other mortgages in which he had invested money for her, and had remitted such collections, of both principal and interest, to her; but she denied that he was her agent, and testified that she thought he was sending such payments to her as a matter of convenience for the borrowers, his clients. From the time of the delivery of the note and mortgage to her, in February, 1953, she kept them in her safe deposit box in the Citizens Bank of Darlington, and at no time after delivery to her were they in Mr. Want's possession. She had known Mr. Want for quite a long time and occasionally wrote him with regard to his making investments for her. He was very kind and helpful, *181 but she never considered him her agent. At no time did she have any business dealing directly with Mr. Harrison until February 15, 1954, after Mr. Want's death, when she wrote him requesting that future payments on the mortgage obligation be made to her. At the time of the delivery to her of the note and mortgage there appeared on the assignment a notation of its having been recorded; and through this notation diagonal lines had been drawn and a marginal note written by the Clerk of Court reading "Assignment entered in error." This notation and marginal note had been made without her knowledge or authority. The assignment was subsequently recorded on February 12, 1954.
Upon cross-examination, appellant testified in part as follows:
"Q. Did you ever give Mr. Want authority to collect any mortgage payment for you? A. Not that I you mean in writing?
"Q. Or orally, either one? A. Well he I thought he was
"Q. I'm asking you A. Paying me for his client, see?
"Q. I'm asking you this, Mrs. Twitty, did you ever give him any authority to collect at any time any payment from mortgagors for you? On mortgages held by you? A. I assume I did because the payments as a rule came from his office
"Q. Now, will you tell me do you recall which one you gave him that permission in? A. No, I don't.
"Q. How many mortgages has Mr. Want handled for you, Mrs. Twitty? A. Quite a few.
"Q. Do you have any idea the number? A. No.
* * *
"Q. Suppose you give me the details of the transaction between yourself and Mr. Want with reference to Mr. Harrison's second mortgage. A. Mr. Want wrote me a letter while I was visiting my son in which he asks me to make this additional loan to Mr. Harrison.
*182 "Q. You had personally written him asking him to make investments for you? A. Not at that time.
"Q. But over a period of years you had repeatedly written him, had you not? A. No, I don't think I had.
"Q. You don't think you had. A. I know that I did write him requesting investments.
"Q. And you were requesting any investments, or would you request particular investments? A. I requested particular investments and I always held the reins myself.
"Q. Did what? A. I passed on the investments myself.
"Q. You never left it up to Mr. Want's judgment? A. Well, in the case of Mr. Harrison's mortgage I did because that was an additional amount.
* * *
"Q. These mortgages that would come to you, how would you get them? A. Go to the office and pay for them and get them.
"Q. How did you know that Mr. Want had them? A. He wrote me that he had them.
"Q. Well, how did you find out that he had those mortgages for sale? A. Because I ask him for investments.
"Q. Because you ask him for investments? A. He was selling his clients' (securities) as I assumed, and I was in the capacity of lending the money.
"Q. Did you ever have your own attorney if Mr. Want represented the other mortgagors , did you ever have your own attorney check any titles for you? A. I had implicit faith in Mr. Want's judgment as to titles and as a rule he investigated.
"Q. And you had implicit faith in the way he handled your investments, is that correct? A. Well, I wouldn't have gone to him if I didn't have faith in him.
* * *
"Q. It never occurred to you then that you were letting that Mr. Want was collecting these mortgage payments for you? A. Well, of course I knew he was collecting.
"Q. For you? A. Yes.
*183 "Q. And knowing that you never notified anyone to make payments direct to you? A. Yes, I did as soon as I found out that Mr. Harrison didn't know that I held the mortgage then I wrote him to make payments to me.
"Q. And that was after Mr. Want's death, was it? A. Yes."
It is undisputed that the installments of principal and interest due on March 31, 1953, and June 30, 1953, respectively, were paid by Mr. Harrison to Mr. Want and remitted by the latter to Mrs. Twitty. It is further undisputed that on September 25, 1953, Mr. Harrison paid to Mr. Want $2,030.00, being the balance of principal, $2,000.00, plus interest for the quarter ending September 30, 1953, and that this payment was not remitted by Mr. Want to Mrs. Twitty.
The issue of whether, in the handling of payments made to him by Mr. Harrison on the latter's mortgage obligation to Mrs. Twitty, Mr. Want was the agent of Mr. Harrison or of Mrs. Twitty, is a factual one, to be resolved not from the opinions of the respective parties as to Mr. Want's agency, but from the circumstances of the transaction. As revealed by Mrs. Twitty's testimony before quoted, these circumstances in our opinion warranted the trial court's finding that in making these collections Mr. Want was in fact the agent of Mrs. Twitty; and in that finding we therefore concur.
There was testimony offered by the respondent, and admitted over appellant's objection, to the effect that during many years prior to the transaction here involved Mr. Want had made mortgage loans for Mrs. Twitty to numerous persons, and had collected and remitted to her payments made thereon. Objection to such testimony was upon the ground that these transactions were privileged communications; and it was, we think, properly overruled for two reasons: (1) The testimony was offered not for the purpose of proving the details of the transactions, but to prove the relationship of Mr. Want to Mrs. Twitty in them; *184 and (2) Mr. Want's handling of such collections was not a matter peculiarly within the province of an attorney at law, and consequently was not within the rule of privilege. 58 Am. Jur., Witnesses, Section 480, page 268. See also Branden & Nethers v. Gowing, 7 Rich. 459, 41 S.C.L. 459.
Appellant further contends that, since there is no evidence that Mr. Harrison knew of these transactions, he cannot claim that because of them Mrs. Twitty is estopped to deny Mr. Want's general authority as her agent to make collections on mortgage obligations held by her. But the issue as resolved by the lower court was of actual, not of apparent, agency; and hence Mr. Harrison's knowledge or ignorance of such other transactions was immaterial.
Unfortunate situations of the character here involved have occasioned many decisions by this court. Since each was, of necessity, based upon the facts of the particular case, they fall into no set pattern; and extended review of such decisions would serve no useful purpose. Brief reference to some of the cases will indicate the impossibility of drawing from them a categorical solution to the problems arising in others, including the one at bar, for the problems are essentially factual rather than legal.
There can be no doubt, as pointed out in Morris v. Carlisle, 128 S.C. 417, 122 S.E. 511, that the defense of payment is an affirmative one, and that in the case at bar, therefore, the burden is upon the mortgagor to prove that Mr. Want, to whom he made payment, was the mortgagee's agent. In Morris v. Carlisle, however, where the mortgagor relied upon payment made by him to the president of the bank to which the mortgage was originally given, but which had assigned it to the plaintiff without notice to the mortgagor, there was no claim that the bank president had actual authority from the holder of the mortgage, and the claim of apparent authority was based solely upon his agency to collect interest. It was there held that authority *185 to collect interest on the mortgage debt carried no implied authority to collect the principal.
In Bacot v. South Carolina Loan & Trust Co., 132 S.C. 340, 127 S.E. 562, this court considered itself bound to affirm, because of concurrent finding of fact by the master and the circuit Judge, that the delinquent attorney was not the agent of the mortgagee. In that case, too, the assignee of the bond and mortgage testified that he had never authorized the attorney to collect payments of principal; and the contention on appeal was based not upon actual, but upon the doctrine of implied, authority.
In Leaphart v. Selby, 135 S.C. 1, 133 S.E. 451, although, as here, the mortgagee kept in his possession continuously all of the numerous bonds and mortgages in which he had invested through a firm of attorneys, the lower court, affirming the Master's report, held that the general course of dealing between the mortgagee and that firm in relation to loans to the respondent and other borrowers, indicated a general agency of the firm to handle such mortgage loans, including authority to collect principal and interest. On appeal, this court, distinguishing the cases of Bacot v. South Carolina Loan & Trust Co., Supra, and Morris v. Carlisle, supra, on the facts, declined to disturb the concurrent finding below.
In Land v. Reese, 136 S.C. 267, 134 S.E. 252, 253, 255, another case arising from the defalcation of the attorney involved in Leaphart v. Selby, the Master reached a contrary result, but was reversed by the Circuit Judge, whose decree was adopted as the opinion of this court. On petition for rehearing, Mr. Justice Blease, speaking for a majority of the court, said: "I think, regardless of all presumptions, that if it is established that a person had authority to collect principal on a mortgage debt for the holder of the mortgage, it matters not who had possession of the papers. The agency to collect the principal is the question. That agency is a question of fact, depending upon the proof in the case."
*186 In Federal Land Bank of Columbia v. Ledford, 194 S.C. 347, 9 S.E. (2d) 804, this court, reversing the circuit decree, upheld the Master's finding that where an attorney had died without having remitted to the lender the proceeds of a draft sent to him by the borrower to be applied against the loan, the evidence was insufficient to establish agency by estoppel. In that case there was no proof that the attorney, in receiving payments from mortgagors and turning them over to the plaintiff's representative, had acted as the plaintiff's agent, or that any such holding out had come to the knowledge of the defendants.
As before stated, the determinative issue in the case at bar is whether or not Mr. Want, in collecting the payments of principal and interest on Mr. Harrison's mortgage obligation, was in fact acting as the agent of Mrs. Twitty. The court below having found actual agency, and such finding having, in our opinion, ample support in the evidence, the fact that Mr. Harrison may have been negligent in not requiring Mr. Want to produce the mortgage at the time of the final payment to him, is immaterial. Land v. Reese, supra. Nor are we persuaded that Mr. Harrison's failure to obtain and promptly record a satisfaction of the mortgage requires reversal here; for if Mr. Want was in fact Mrs. Twitty's agent empowered to receive the money from Mr. Harrison, its payment to him was as effectual, so far as she is concerned, as if it had been made to her personally.
A case at law is a serious effort to administer justice, keeping in mind the established rules of law and the prior decisions of the courts, and we are of the opinion that under the facts heretofore related, the judgment of the Circuit Court should be affirmed; and it is so ordered. Affirmed.
STUKES, C.J., and OXNER, LEGGE and MOSS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1380314/ | 198 Va. 509 (1956)
C. H. LAMB, COMMISSIONER, &C.
v.
JAMES HARRIS BUTLER, &C.
Record No. 4610.
Supreme Court of Virginia.
November 26, 1956.
D. Gardiner Tyler, Jr., Assistant Attorney General (J. Lindsay Almond, Jr., Attorney General, on brief), for the appellant.
Present, Hudgins, C.J., and Eggleston, Spratley, Buchanan, Miller and
1. Pursuant to the mandatory provisions of Code 1950, section 46-416.1, Commissioner Lamb revoked Butler's driving license for sixty days because he had been convicted of speeding in Richmond in October of 1952 and in Wilson County, North Carolina, in August of 1953. Butler secured a temporary injunction against enforcement of the order, contending the North Carolina conviction was invalid. Before final hearing the North Carolina Department of Motor Vehicles restored his driving privileges in that state, and the trial court subsequently made its injunction permanent on the ground the North Carolina conviction was void. This was error. The record showed that Butler was arrested for speeding, taken before the clerk of a court having jurisdiction to try him, that a warrant was issued and Butler informed of the charge, and that he, knowing he had to post bond or pay a scheduled amount as fine and costs to obtain his release, paid the amount and made no inquiry as to subsequent appearance or trial, and that the amount paid was forfeited to the state as a fine and judgment so entered by the judge. This forfeiture had the force of a conviction under Virginia and North Carolina statutes.
2. The restoration of Butler's privilege to drive in North Carolina did not have the effect of voiding his conviction, for the North Carolina Department of Motor Vehicles had no authority to invalidate the judgment of a court of competent jurisdiction.
3. Though the North Carolina proceeding lacked regularity to a degree, the court had jurisdiction and Butler was properly before it. His contention that he was not because no warrant of arrest had been served on him was without merit because the oral summons to appear was sufficient under the circumstances.
Appeal from a decree of the Hustings Court of the city of Richmond, Part II. Hon. M. Ray Doubles, judge presiding. The opinion states the case.
Emanuel Emroch, for the appellee.
SPRATLEY
SPRATLEY, J., delivered the opinion of the court.
James Harris Butler instituted this proceeding in equity, praying that C. H. Lamb, Commissioner of the Division of Motor Vehicles of Virginia, be enjoined from enforcing an order entered on September 16, 1953, which revoked for sixty days Butler's license to operate a motor vehicle in Virginia. The relief prayed for was awarded, and we granted the Commissioner an appeal.
The order of revocation was entered pursuant to the mandatory provisions of | 46-416.1, 1952 Supplement, Code of Virginia, 1950, Acts 1952, chapter 666, page 1117, because abstracts of conviction showed that Butler had been convicted of two offenses committed within twelve months of operating a motor vehicle at an unlawful speed.
One conviction was for an offense committed in the City of Richmond, Virginia, on October 19, 1952. The other offense occurred on August 15, 1953, in Wilson County, North Carolina. Notice of the suspension of Butler's license to drive in North Carolina for one year from August 15, 1953, was mailed to Butler on September 9, 1953, by the Department of Motor Vehicles of that State. A copy of that notice was forwarded by the North Carolina Department of Motor Vehicles to our Division of Motor Vehicles, and received by it on September 11, 1953.
On September 16, 1953, our Commissioner of Motor Vehicles notified Butler of the revocation of his license to drive in Virginia for sixty days from that date. Code of Virginia, | 46-454.
In appellee's original bill of complaint, verified by his oath, he challenged the validity of each of the above convictions. *511
Commissioner Lamb, in his answer, averred the validity of each conviction, and further asserted that appellee was estopped from denying their legality and not entitled to relief in equity.
On September 25, 1953, the trial court issued a temporary injunction restraining appellant from revoking the appellee's driving license. The case was continued from time to time, until July 16, 1954, at which time appellee, by leave of court, filed an amended bill of complaint. In the amended bill he alleged that in accordance with | 20-16, General Statutes of North Carolina, he had on June 9, 1954, requested the Department of Motor Vehicles of that State to grant him a hearing and to rescind its order suspending his driving privileges; that a hearing was granted and held on June 24, 1954; and that, in view of the facts shown at such hearing, and of the opinion of the Attorney General of North Carolina, the Department of Motor Vehicles of that State rescinded its order suspending his driving privileges. Exhibited with the amended bill was a photostatic copy of a letter, dated June 25, 1954, from the Director, Safety Division, State Highway Patrol, Department of Motor Vehicles of North Carolina, to appellee, notifying him that his driving privileges in that State had been "restored."
In answer to the amended bill, appellant denied that the action of the Department of Motor Vehicles of North Carolina in restoring the driving privileges of appellee in any wise affected the validity of appellant's order of September 16, 1953, revoking the driving privileges of appellee in Virginia. He further averred that appellee had been duly convicted as shown by a duly authenticated copy of the records of the General County Court of Wilson County, North Carolina; and that there was no equity in the contention of the appellee.
On July 15, 1954, Butler, after due notice, proceeded to take the depositions of C. R. Simons, a member of the State Highway Patrol of North Carolina, and James E. M. Miles, Judge of the General County Court of Wilson County, North Carolina. Appellant called as a witness, Miss Lucy Rogers, Assistant Clerk of the Superior Court of Wilson County. She refused to be sworn but was allowed to testify.
When the case was heard in the lower court, appellee abandoned his contention that he had not been lawfully convicted in the Traffic Court of the City of Richmond on November 26, 1952. At the hearing Butler testified and presented certain exhibits; but called no *512 other witness. He declined to offer in evidence the depositions taken on July 15th, and upon motion of the appellant, the court admitted and took them under consideration. Appellant presented an authenticated copy of the record of the proceedings of the General Court of Wilson County, North Carolina, against Butler, authenticated in accordance with the provisions of Virginia Code, || 8-271 and 8-272. The trial court took the case under advisement and on March 23, 1956, entered the following order:
"And the Court now being of opinion that under the laws of the State of North Carolina and the interpretation thereof by the Attorney General of that State, the complainant, James Harris Butler, was not validly convicted in that State of the offence of speeding alleged to have been committed on August 15, 1953; and the Court being of the further opinion that the communication from the State Highway Patrol of North Carolina dated June 25, 1954, addressed to the respondent is an effective recision and cancellation of the notice received by the respondent on September 11, 1953, purporting to suspend the operator's license of the complainant in North Carolina on the ground of the said alleged offence of speeding;"
"Wherefore the Court being of the further opinion that the Order of Revocation entered by the respondent on September 16, 1953, revoking the operator's license of the complainant for a period of sixty days is void, the Court doth so adjudge, order and decree."
"And the Court doth permanently enjoin the respondent from revoking the operator's license of the complainant if said purported revocation be based in whole or in part upon the aforesaid alleged conviction in North Carolina."
The controlling question is whether or not Butler had been lawfully convicted of two successive violations committed within a twelve months period of any provision of law "establishing the lawful rates of speed of motor vehicles and making the violation thereof punishable as a crime," within the meaning of Virginia Code, || 46-416.1, as amended, and 46-454.
Butler argues that his conviction in North Carolina was void because there was no citation or warrant served on him, no bond forfeited; no plea of guilty; no waiver of appearance; and no judicial proceeding pending against him on August 24, 1953, the day his case was called and the judge signed the docket book, or at any other time; and that the North Carolina trial court was without jurisdiction *513 over him and had no right upon his non-appearance to forfeit his deposit to the State of North Carolina.
Butler having abandoned his contention as to the Virginia offense, our discussion will be confined to the validity of the North Carolina conviction. In that connection, we will consider the procedure in this case, and the evidence relating to that conviction, in the light of the statutes involved.
At the hearing in the Virginia trial court, Butler, who is engaged in the "neon sign business," testified that he was on a trip from Virginia to Florida. He said that on August 15, 1953, while driving south of Wilson, North Carolina, he was stopped by a traffic officer, and told that he was speeding. At the direction of the officer, he drove to the Court House at Wilson. There, in the Court House, he was confronted by Miss Lucy Rogers, whom he later learned was the Assistant Clerk of the General County Court of Wilson County. He said the officer informed Miss Rogers that he, Butler, was speeding and she "got out a chart" and told him the fine and costs would be $41.85; and that he paid that amount to her, taking a receipt. While he was there he saw the traffic officer "writing on a yellow pad about the size of a salesbook;" that he was not given a copy of a warrant nor shown a copy; that he was not advised by anyone to be present in court at any particular date; that he signed no waiver of appearance; entered no plea of guilty or not guilty; and did not authorize any person to enter any plea on his behalf; that he paid the $41.85 because he wanted to get away and go on to Florida; and that nothing was said about the money being paid as bail for his later appearance in court or as a collateral deposit. He understood that he was under arrest and in custody; and that he was not paying a bribe. He admitted that the traffic officer told him that he was charged with driving at eighty-five miles an hour; and that he knew he would not get the $41.85 returned to him. He said he was in the office of the Clerk of the Court a total of about ten minutes, and that while he had a full opportunity to speak, he remained silent.
Introduced in evidence was a certified copy of the record in the case of "State v. James Harris Butler," in the General County Court of Wilson County. The copy certified to by Miss Rogers showed the issuance of the warrant against Butler for driving eighty-five miles per hour, upon complaint of Officer C. R. Simons. It "commanded" the officer forthwith to arrest and have Butler before the General County Court of Wilson County on August 15, 1953, "then and there *514 to answer the complaint and be dealt with as the law directs." On the back of the warrant there is shown a notation that the charge was for "Speeding, 85 MPH" and the payment of $25.00 and costs. There also appears the following notation: "Received the day of , 19 . Executed day of , 19 . (Signed) C. R. Simons, SHP." Attached thereto is this memorandum:
}"Judgment #23110 State v. James Harris Butler Speeding 8/15/53 D.P.G. $25.00 and costs."
A receipt dated August 15, 1953, showed that the Clerk of the Superior Court of Wilson County had accepted from Butler $41.85 for "Payment fine & costs."
The depositions of Officer Simons, Judge Miles and Miss Rogers show the following state of facts:
Simons, a State Highway Patrolman, testified that he "checked" Butler's car for speeding and "followed him for a distance of approximately fifteen miles at speeds at times higher than eighty-five;" that he was unable to stop Butler until he was in the City limits of Kenly, North Carolina; that he advised Butler of the speed he was traveling, of the speed limit in the State, told him that he was under arrest for speeding at the rate of eighty-five miles, and to follow him back to the Clerk's Office; that Butler accompanied him to the Court House in Wilson, and there, in the presence of Butler, he signed a warrant charging the latter with driving at eighty-five miles an hour; that after he signed the warrant, Miss Rogers, the Assistant Clerk, picked up the warrant and told Butler he was being charged with speeding eighty-five miles an hour; and that if he wished to plead guilty to the charge of eighty-five miles an hour, she would advise him what the fine and costs would be, or if he had rather come back to court at a later date, he could put up a bond; that he did not remember what Butler said in reply but that the amount of the fine and costs was paid by Butler "without any squabble or anything at all said about it;" that Butler knew what was going on and that if he did not put up the fine and costs or give bond, the only alternative was to put him in jail; that Butler paid the fine and costs "voluntarily", *515 and without any protest or inquiry as to whether he should return for trial at a later date.
Simons further said that after signing the warrant, he filled out a daily arrest report; but did not give Butler a copy of either. He declared that he again informed Butler of the charge against him when he signed the warrant and that Miss Rogers also did so; and that under the circumstances, he did not read the complete warrant to Butler.
In his deposition, Judge James E. M. Miles, of the General County Court of Wilson County, testified that during the course of a year his court handled more than 1,000 traffic cases, and that he had no recollection of the particular case of Butler. He said that a system had been devised in his court, whereby a person apprehended for violating the traffic laws of North Carolina could be brought before the Clerk of the Superior Court, which Clerk is also Clerk of the General County Court, and permitted to plead guilty to the charge if he so desired; that the person was to be warned not to plead guilty unless he was actually guilty, and informed that he could do one of three things: that is, pay the standardized fine established by the court, post bond, or go to jail and await trial; that he did not enter judgment on each warrant, but that at the conclusion of every session of the court he signed the minutes of the court; and that on the docket of his court, bearing his signature, there was an entry of the case of "State v. James Harris Butler," indicating a charge of unlawful speed, that the defendant pleaded guilty, and paid a fine of $25.00 and costs.
Judge Miles said his court meets Friday of each week; but where a defendant tenders a plea of guilty in advance and posts a sum of money, a docket sheet is prepared by the Clerk, and if the defendant's name is called, and he fails to answer, "a judgment of forfeiture or a judgment nisi is entered;" that the fund paid to the clerk, as in this case, is applied toward the payment of the fine which is used for school purposes; and that his records showed that the money deposited by Butler was so forfeited. He further said that a person who leaves the prescribed sum of money, according to a chart setting out standardized fines and costs for certain speeds, is allowed to proceed on his way and not return, unless he so chooses; but that the case is not closed until the judge has so indicated by signing the docket or minute book.
Miss Lucy Rogers, in her unsworn deposition, said that she had no recollection of this case. She remembers receiving a letter from counsel for Butler requesting a copy of any documents on file in her *516 office with reference to appellee's case; that while her signature was on the certified copy of the record forwarded to Butler, she did not prepare it. She explained the omission of the dates where notation of service should have been made by saying that "We have been known to make mistakes." Handed a photostatic copy of the warrant filed as an authenticated exhibit by the appellant, she also looked at the original warrant and said both bore exactly the same notations on the back in entirety. These notations were as follows: "James Harris Butler, 1001 Spring Road, Apartment 5, Richmond, 28, Virginia. W.M. 44, D.L. 2277129, speeding eighty-five miles per hour, C. R. Simons. Received the 15th day of August, 1953. Executed 15th day of August, 1953. Private C. R. Simons, SHP."
She identified the signature of Officer Simons, said that she had prepared the photostatic copy of the warrant and its notations at the request of appellant shortly after August 15, 1953, and that it was a true and correct copy of the warrant and notations thereon.
The letter of June 25, 1954, from the North Carolina Department of Motor Vehicles set out that the evidence at the June 24, 1954, hearing showed that "Butler was not served, in the formal sense with a warrant;" that no bond was posted or forfeited; that no waiver of appearance was signed; that Butler "simply paid to the Assistant Clerk of Court a sum of money as a fine and that entry was later made on the Court records to the effect that Mr. Butler entered a plea of guilty;" and that "In view of the facts, the Attorney General has advised the Department that there has been no legal conviction and that Mr. Butler's driving privileges should be restored."
The statutes of North Carolina provide that in each county of that State the General County Court "shall have jurisdiction in all criminal cases arising in the county which are now or may hereafter be given to a justice of the peace and in addition thereto shall have exclusive original jurisdiction of all other criminal offenses committed in the county below the grade of felony as now defined by law, and the same are hereby declared to be petty misdemeanors." Section 7-278, General Statutes of North Carolina of 1943.
Section 7-274 of the same General Statutes provides:
"The clerk of the Superior Court of the county shall be ex officio clerk of the General County Court, herein provided for, * * *. The clerk of said court or any deputy thereof, upon application and making of proper affidavit, as provided by law, shall have power and authority to issue any criminal warrant or warrants in said court and *517 make the same returnable before the judge thereof, at any time or times designated for the trial of criminal cases. * * *."
Section 15-47, General Statutes of North Carolina of 1943, provides:
"Upon the arrest, detention, or deprivation of the liberties of any person by an officer in this State, with or without warrant, it shall be the duty of the officer making the arrest to immediately inform the person arrested of the charge against him, and it shall further be the duty of the officer making said arrest, except in capital cases, to have bail fixed in a reasonable sum, and the person so arrested shall be permitted to give bail bond; and it shall be the duty of the officer making the arrest to permit the person so arrested to communicate with counsel and friends immediately, and the right of such persons to communicate with counsel and friends shall not be denied."
Section 15-102 provides:
"Officers before whom persons charged with crime, but who have not been committed to prison by an authorized magistrate, may be brought, have power to take bail as follows:"
"(1) Any justice of the Supreme Court or a judge of a Superior Court, in all cases."
"(2) Any clerk of the Superior Court, any Justice of the Peace, or any Chief Magistrate of any incorporated city or town, in all cases of misdemeanor and in all cases of felony not capital."
Section 20-16, 1951 Supplement, General Statutes of North Carolina, relating to its Department of Motor Vehicles, provides:
"(a) The department shall have authority to suspend the license of any operator or chauffeur without preliminary hearing upon a showing by its records or other satisfactory evidence that the licensee:"
* * *
"10. Has been convicted of operating a motor vehicle at a speed in excess of seventy-five (75) miles per hour."
* * *
(c) Upon suspending the license of any person as hereinbefore in this section authorized, the department shall immediately notify the licensee in writing and upon his request shall afford him an opportunity for a hearing as early as practical within not to exceed twenty *518 (20) days after receipt of such request in the county wherein the licensee resides unless the department and the licensee agree that such hearing may be held in some other county, and such notice shall contain the provisions of this section printed thereon. Upon such hearing the duly authorized agents of the department may administer oaths and may issue subpoenas for the attendance of witnesses and the production of relevant books and papers and may, except as provided in Section 20-231, require a re-examination of the licensee. Upon such hearing the department shall either rescind its order of suspension, or good cause appearing therefor, may extend the suspension of such license.""
Section 20-19(b), 1951 Supplement, General Statutes of North Carolina, provides:
"(b) When a license is suspended under paragraph 10 of | 20-16, the period of suspension shall be not less than six months and not more than one year."
Under | 20-24(c), 1951 Supplement, General Statutes of North Carolina, "'conviction' means a final conviction and a forfeiture of bail or collateral deposited to secure a defendant's appearance * * *." This is similar to | 46-387(4), Code of Virginia, 1950.
It will be noted that | 20-16(a), supra, merely gives the Motor Vehicle Department of North Carolina "authority to suspend" a driving license for certain violations of the traffic laws of that State. Its provisions are not mandatory, and, in that respect are unlike the mandatory provisions of Virginia Code, || 46-416.1, as amended, and 46-454. Nor does | 20-16(c), General Statutes, supra, provide a time limit within which the hearing therein provided for shall be held.
The letter of June 25, 1954, from the North Carolina Department of Motor Vehicles does not set out the evidence heard at the hearing mentioned; but states only the conclusions of that Department as to its effect, and that the action of the Department was based on advice from the Attorney General. A copy of the opinion of the Attorney General, if any was written, was not filed.
Butler was, of course, entitled to a formal trial before the General County Court and to raise before that court the question of his guilt or innocence, as well as any questions relating to the invalidities of which he now complains. He did not ask for such trial, nor raise any question of his guilt then or now.
The arresting officer's testimony, the original and authenticated records of the proceedings, the testimony of the appellee, and other *519 evidence clearly show that Butler was arrested for the offense of unlawful speeding; that he was orally summoned by the arresting officer to appear before the General County Court of Wilson County, a court having jurisdiction of the offense; that in response Butler appeared before an officer of that Court having authority to issue a criminal warrant for the offense alleged and to take bail for his appearance for trial; that a warrant was issued; that Butler was fully informed of the charge against him and the penalty for the offense, if guilty; that Butler knew he was in custody and that to obtain his release, he had to give bond for his appearance for trial, or deposit collateral therefor, or pay the prescribed fine and costs; that upon his failure to take one of these steps, he would be confined in jail to await trial; that informed of the amount of the fine and costs for the offense charged, Butler chose to pay that amount to the officer authorized to take bail or collateral, rather than to appear for trial and defend the charge against him. He thereby obtained his release, made no inquiry about a subsequent appearance or trial, and departed on his way.
It further appears that the collateral deposited was forfeited to the State as a fine and costs and judgment accordingly entered by the trial judge, and that no appeal has been taken from that judgment.
In "North Carolina, an accused may deposit cash in lieu of bail, and it is subject to forfeiture upon his non-appearance. White Ordille, 229 N.C. 490, 50 S.E.2d 499." Lamb Smith, 195 Va. 1053, 1057, 81 S.E.2d 768.
The facts in this case are, in many respects, similar to those found in Lamb Smith, supra, and in Nelson Lamb, 195 Va. 1043, 81 S.E.2d 762. See also Tate Lamb, 195 Va. 1005, 81 S.E.2d 743 and Lamb Lanzarone, 195 Va. 1038, 81 S.E.2d 760. They were sufficient to prove a valid forfeiture by the General County Court of Wilson County of the $41.85, deposit made by appellee with the Assistant Clerk of that County to avoid appearance for trial on a charge of speeding, providing only that the named court had jurisdiction, under the circumstances, to try Butler for the offense charged.
The above facts clearly show that the criminal action was pending when the criminal warrant was issued, and that the forfeiture of the collateral deposited with the officer authorized to admit Butler to bail had the force and effect of a conviction under | 46-387(4), Code of Virginia, 1950, and a like effect in North Carolina under | 20-24(c), 1951 Supplement, General Statutes of North Carolina. Lamb Parsons, *520 195 Va. 353, 357, 78 S.E.2d 707; Lamb Smith, supra, 195 Va. page 1053; Tate Lamb, supra; Lamb Lanzarone, supra.
The General County Court of Wilson County had jurisdiction of the offense, of the person charged with the offense and the subject matter involved. The act of Butler, under the circumstances recited, was in itself a plea of guilty and an acknowledgment of the pendency of the case and the jurisdiction of the court. Tate Lamb, supra; Dillon Joyner, 192 Va. 559, 66 S.E.2d 583. It would be naive, indeed, to believe that he did not know that the payment of the money to the Assistant Clerk of the Court would, upon his failure to subsequently appear for trial, be forfeited.
While | 20-16, supra, provides that the Department of Motor Vehicles of North Carolina "shall have authority to suspend" an operator's license under certain conditions, and upon a subsequent hearing "shall either rescind its order of suspension, or good cause appearing therefor, may extend the suspension of such license," it does not authorize that Department, or the Attorney General of that State, to review and invalidate the judgment of a court of competent jurisdiction. The action of the North Carolina Commissioner in revoking the suspension of Butler's license in that State goes no further than to void his former action in rescinding such license. It did not have the effect of voiding Butler's conviction, nor provide a refund of the fine and costs imposed. The conviction still stands on the records of North Carolina, and is on its face valid and outstanding in all respects.
The crucial question is whether the accused was, in fact, convicted in North Carolina of an offense therein which, "if committed in this State would be grounds for the suspension or revocation of the license granted to him * * *." Virginia Code, | 46-454; | 46-416.1, as amended.
It is true that the proceedings here lacked regularity and formality to a certain degree; but whether the procedure adopted and acquiesced in by Butler was regular in all particulars is of no moment. The important questions are whether the North Carolina Court had jurisdiction and whether Butler was properly before the Court.
The first question we have hereinbefore answered in the affirmative. The second question is based upon the claim of Butler that no warrant was served on him. The original record and the authenticated record and supporting evidence are amply sufficient to show that Butler was before the court. His oral summons to appear was, under *521 the circumstances, as good and sufficient as a written summons. His testimony alone denying service is insufficient to deny and impeach the issuance of the warrant, the officer's return and the judgment of the Court. Nelson Lamb, supra, 195 Va. 1043; Lamb Smith, supra, 195 Va. 1053. There was a valid forfeiture of the fund deposited by him, and the deposit was used as he intended and its forfeiture amounted to a conviction.
Appellee relies upon the case of In Re: Wright, 228 N.C. 301, 45 S.E.2d 370; affirmed on rehearing in 228 N.C. 584, 46 S.E.2d 696. The facts in that case are different from those here. In that case, it is clear that the North Carolina Court held the alleged "conviction" of the offense in South Carolina invalid because no warrant had been issued; and, therefore, there was no criminal action pending, and there could be no forfeiture of bail, in the absence of judicial proceedings.
The integrity of the judicial process would be set at stake if judgments valid on their faces should be voided by actions of administrative officers or by the opinions of executives or officers of the government to the effect that they are invalid.
It should be borne in mind that this is a proceeding in equity, that the purpose of equity is to render natural right or justice, and that the "Motor Vehicle Safety Responsibility Act of Virginia" is required to be liberally construed. In Virginia Code, | 46-388, it is provided: "It is the legislative intent that this chapter be liberally construed so as to effectuate as far as legally and practically possible and feasible its primary objective to promote and further greater safety in the operation of automotive vehicles in this State."
It is not our duty to undertake to indulge in refinements not warranted either by the language of a statute or its expressed purpose, nor search for legal loopholes through which a guilty person may escape the consequences.
For the foregoing reasons, the judgment of the trial court is reversed and set aside, and the appellant authorized to take such action as may be necessary to enforce against Butler his revocation order of September 16, 1953.
Reversed and final decree. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1058585/ | 145 S.W.3d 538 (2004)
BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE
v.
Edward A. SLAVIN, Jr.
Supreme Court of Tennessee, at Nashville.
February 11, 2004 Session.
August 27, 2004.
*541 Edward A. Slavin, Jr., St. Augustine, Florida, and David A. Stuart, Clinton, Tennessee, for the appellant, Edward A. Slavin, Jr.
Laura L. Chastain, Nashville, Tennessee, for the appellee, Board of Professional Responsibility.
Opinion
ADOLPHO A. BIRCH, JR., J., delivered the opinion of the court, in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON and JANICE M. HOLDER, JJ., joined. WILLIAM M., BARKER, J., not participating.
We have this case on direct appeal pursuant to Tennessee Supreme Court Rule 9, section 1.3, from an order of the Chancery Court suspending Edward A. Slavin, Jr., Esq., from the practice of law for three years. Slavin appeals, raising the following issues: (1) whether Chancellor Richard E. Ladd erred in refusing to recuse himself; (2) whether Slavin's in-court speech is protected by the First Amendment; and (3) whether the sanctions imposed by the Chancellor are excessive.
Upon careful review of the record and applicable authority, we conclude that Chancellor Ladd did not abuse his discretion in refusing to recuse himself and that the speech at issue does not fall within the protective ambit of the First Amendment. After a thorough examination of the sanctions, we impose a two-year suspension. Slavin may, however, apply for reinstatement pursuant to Tennessee Supreme Court Rule 9, section 19.3, at the expiration of one year from date of this opinion.
I. Facts and Procedural History
Edward A. Slavin, Jr., Esq., ("Slavin") was licensed to practice law in Tennessee in 1987, and he has represented many "whistle-blower" clients before federal agencies. Three judicial officers lodged complaints against Slavin with the Board of Professional Responsibility ("BPR"). The complaints, as summarized, are as follows: Dale Workman ("Workman"), Chancellor for the Sixth Judicial District, alleged that Slavin filed a motion for a new trial and for recusal. In these pleadings, Workman stated that Slavin accused him of rushing his consideration of the case on a day when he appeared to be preoccupied, taking a two-hour lunch for personal business, unfairly restricting the amount of time for cross-examination of the defendant's witness, refusing to allow a rebuttal witness to be called, taking an inadequate amount of time for a rushed reading of portions of the record, mocking and trivializing the medical treatment provided to the plaintiff, showing bias and prejudice by making pejorative remarks about "press releases," and being rude. According to Workman, Slavin stated that Workman "is apparently a chain smoker, who's [sic] smoke filled chambers Mrs. Campbell and the parties' counsel were obliged to enter" causing Mrs. Campbell restricted breathing in court. According to Workman, Slavin also stated that "[t]he trial court's life-style choice and personal opinions should not be permitted to deny Ms. Campbell a fair trial."
Additionally, Curtis L. Collier ("Collier"), Judge of the United States District Court (Eastern District, Tennessee), complained to the BPR about Slavin's conduct and speech during the trial of Lockheed *542 Martin Energy Systems, Inc. v. Slavin, 190 F.R.D. 449 (E.D.Tenn.1999). According to Collier, Lockheed Martin Energy Systems ("Lockheed") brought suit against Slavin to compel him to comply with a Department of Labor order to repay attorney's fees and expenses. In that case, Slavin filed a seventeen-page response "replete with unnecessary, baseless, irrelevant, and frivolous claims, defenses, and legal contentions." Lockheed's counsel, Wilson Horde, Esq., ("Horde") filed a petition for sanctions pursuant to Federal Rule of Civil Procedure 11. In response to the Rule 11 petition, Slavin repeated the substance of what he had included in his previous answer and "added more irrelevant allegations." As an attachment to the response, Slavin included a nine-page "declaration" from District Attorney General James Ramsey executed on April 27, 1994, in which Ramsey stated that he believed that his (Ramsey's) law license had been suspended by the Tennessee Supreme Court because of actions taken by Horde. Collier viewed this assertion as a further attack on Horde and Lockheed.
Collier included in his complaint that on the date of the scheduled Rule 11 hearing in the Lockheed case, Slavin requested a continuance. Then, on the date of the rescheduled hearing, Slavin failed to appear. Slavin's attorney offered no tenable explanation for Slavin's absence. The court found that "[i]t was faced with not just an attorney who has filed baseless, frivolous and unprofessional pleadings and responses to motions, but an attorney who has done so repeatedly, flagrantly, and in a manner which reflects a callous disregard for the proper and efficient functioning of the Court and also reflects a sense of disrespect for the authority of a judicial system and the obligations of the legal community." Also, the court ordered Slavin to provide additional informationan order with which Slavin did not comply. The court stated, "Thus, it appears even in the face of very serious sanctions and a direct order from the Court, Mr. Slavin continues to demonstrate a lack of respect for the Court and its authority."
The complaint of John M. Vittone ("Vittone"), Administrative Law Judge for the United States Department of Labor, alleged that Slavin had been unprofessional in appearances before the court and had used the peer review process to harass the judges. He stated that several judges had invoked their authority to permanently prevent Slavin from representing clients in cases in which they preside. Vittone cited instances in which Slavin asserted that the Administrative Review Board ("ARB")[1] decision in a matter "ranks with the Dred Scott decision among the injustices in American History" and is a "disgrace to the human race." He also stated that Slavin left voicemail messages calling opposing counsel a "red neck peckerwood" and describing counsel collectively as "Nazis." Vittone claimed that Slavin's activities went beyond criticism of the judiciary and were "transparent attempts to use the legal process to harass and/or punish judges who issued adverse rulings."
The above complaints provided the basis for a petition filed by the BPR against Slavin on August 4, 2000. On May 22, 2001, the BPR filed a "Supplemental Petition for Discipline" based on the complaint of Rudolf L. Jansen ("Jansen"), an Administrative Law Judge for the United States Department of Labor. According to the complaint, Jansen issued a recommended decision and order granting summary *543 judgment in a matter in which Slavin had represented two persons. On March 16, 1999, Slavin appealed to the ARB, and his pleading contained comments which Jansen found to be offensive. Those comments included: referring to Jansen as "[p]etty, barbarous and cruel"; "Recommended Decision is a stench in the nostrils of the Nation"; "Shows complete contempt for First Amendment Values"; "Jansen... is no better than Respondentshe is a retaliator"; and "Disgraces his judicial office." In its decision, the ARB noted that Slavin "has again engaged in personal and vitriolic attacks on a Department of Labor Administrative Law Judge." Slavin then requested that the Inspector General investigate Jansen's conduct in the case.
On August 30, 2001, the BPR filed a "Second Supplemental Petition for Discipline." This petition was based on complaints made by four clients Slavin had represented in a suit against their employer, the U.S. Department of Energy. The clients alleged that Slavin had been unprepared and had hindered their cases by failing to provide effective assistance of counsel. In addition, they alleged that Slavin had been antagonistic toward the judge in their case to the extent that the judge had barred him from appearing in cases before her. Moreover, they charged that Slavin filed an appeal for one client even though he had been instructed not to, had given false information to a judge about a client's health, had failed to return documents as requested, and had refused to follow the clients' directions regarding settlement.
The second supplemental petition included also the complaint of Debra Thompson, Esq., ("Thompson"), who stated that Slavin had made disparaging comments about her. She alleged that Slavin had called her a "harridan"[2] in the presence of her client and the court reporter. Thompson also alleged that Slavin had called her "condescending, hierarchical, uncivil, unkind, and uncooperative."
A hearing pursuant to Tennessee Supreme Court Rule 9, section 8, was conducted on February 12, 2002. The Hearing Committee sustained the complaint of Collier alleging that Slavin had failed to follow orders of the court as violations of Tennessee Supreme Court Rule 8, Disciplinary Rule[3] ("DR") 1-102(A)(1), DR 1-102(A)(5), DR 7-102(A)(8), DR 7-106(A), and DR 7-106(C)(6) (2002). Regarding DR 7-106(C)(6), the Hearing Committee found that Slavin, "by ignoring the Orders of Judge Collier engaged in undignified and discourteous conduct which is degrading to a tribunal."
The Hearing Committee also sustained allegations that Slavin had made false statements regarding a client's illness, had made false statements during a deposition with regard to a client's identity as an investigator, and had failed to communicate with clients and return their records. Consequently, Slavin was found to have violated DR 1-102(A)(1), DR 1-102(A)(4), DR 1-102(A)(5), DR 7-101(A)(2), and DR 7-102(A)(8). The Hearing Committee, however, dismissed the charge under DR 7-106(C)(6) because Slavin's expressions were protected by the right to free speech.
The Hearing Committee dismissed the complaints of Vittone, Workman, and Jansen in their entireties. Regarding the dismissal of the charges under DR 7-106(C)(6), *544 the Hearing Committee found that while Slavin's actions were "undignified and discourteous," the Board did not carry its burden of proving false statements, and thus, Slavin's expressions were protected by the First Amendment. Ramsey v. Bd. of Prof'l Responsibility, 771 S.W.2d 116 (Tenn.1989).
The Hearing Committee also dismissed Thompson's complaint in its entirety. Regarding the alleged violation of DR 7-106(C)(6), the Hearing Committee found that Slavin's expressions were protected by the First Amendment.
The Hearing Committee found as a mitigating factor that Slavin did not have a record of prior disciplinary action. It found as an aggravating factor that his violations of the Disciplinary Rules were multiple. The Hearing Committee concluded: "For violations of the provisions addressed above, the Hearing [Committee] finds that Respondent should be given a public censure."
On May 31, 2002, the BPR filed a "Petition for Writ of Certiorari" in the Chancery Court for Knox County pursuant to Tennessee Supreme Court Rule 9, section 1.3. The Chief Justice of this Court assigned Richard E. Ladd, Chancellor, Second Judicial District, to hear the case as required by Tennessee Supreme Court Rule 9, section 1.5. A hearing was conducted on December 10, 2002; Slavin did not attend the hearing but was represented by counsel. After a brief colloquy between Ladd and Slavin's attorney, David Stuart, Esq., ("Stuart"), the remainder of the hearing was consumed by discussion and the introduction of exhibits. No testimony was adduced during this hearing.
Following the hearing, Ladd issued a memorandum opinion. It appears that although Ladd agreed with the Hearing Committee's findings of facts, he disagreed with the Hearing Committee's legal conclusions drawn from those facts. He stated, "I find that the acts of Mr. Slavin are not protected by the First Amendment in this case."
Ladd disagreed with the Hearing Committee also with regard to the complaint of Jansen, finding "by a clear preponderance of the evidence, in fact uncontested evidence, a violation of Disciplinary Rules." Ladd stated that in the case underlying Jansen's complaint, the opposing side filed a motion for summary decision. Slavin filed nothing in response in that case, and Jansen granted a summary decision. According to Ladd, Slavin then filed "a 27 page document entitled: Complainant's Petition for Review, Motion for Summary Reversal, Motion for Oral Argument, with Motion to File 45 Page Opening Brief; Investigative Request, Disqualification Appeal by Today to the Administrative Review Board, with copies to many others, including the Inspector General, the Secretary of Labor, the Honorable John M. Vittone, Chief Administrative Law Judge." The ARB concluded that the case was frivolous.
Ladd referred to the ARB's Final Decision and Order in which the ARB "lists 18 examples of personal insults which Mr. Slavin used against Judge Jansen in his motion." Ladd stated, "Without even considering whether these representations are truthful or not, the so-called motion and brief ... to this Court, is a clear violation of DR 1-102(A)(5), engaging in conduct that is prejudicial to the administration of justice, and DR 7-106(C)(6), engaging in undignified or discourteous conduct which is degrading to a tribunal." Thus, Ladd concluded that "the acts of Mr. Slavin are not protected by the First Amendment in this case."
Regarding Vittone's complaint, Chancellor Ladd stated the following:
*545 Judge Vittone testified that four or five Administrative Law Judges had barred Mr. Slavin from appearing before them due to his conduct in various cases. Judge Vittone stated that Mr. Slavin in four to five instances has requested a Peer Review for Judge misconduct, similar to the Tennessee Court of Judiciary.
Judge Vittone advised Mr. Slavin twice that the conductthat his conduct was impermissible in using the Peer Review procedure to try to get a reversal on a question of law, an appealable issue. This is corroborated by Mr. Slavin's expert witness and good friend, Retired Judge Nahum Litt, who testified that he had told Mr. Slavin that he was improperly using the Peer Review process on appealable matters.
And yet being advised by the Chief Judge and his good friend who was a retired Chief Judge, he continued to do so. I find that Mr. Slavin, by using the Peer Review process in the manner in which he did, was systematically harassing and attempting to intimidate judges by his action. And in fact he was successful in that four or five judges barred him from appearing before them, which, apparently, Administrative Law Judges have the power to do, which resulted in getting rid of those judges on hearing any of his, Mr. Slavin's, cases.
The Court finds that the acts of Mr. Slavin violate Disciplinary Rule 1-102(A)5, engaging in conduct that is prejudicial to the administration of justice.
Ladd found by a preponderance of the evidence that the Hearing Committee erred in dismissing Workman's complaint. He stated that Slavin's conduct with regard to Workman violated DR 7-106(C)(6), engaging in undignified and discourteous conduct which is degrading to a tribunal, and is not protected free speech. He noted that Slavin's Corrected Motion for a New Trial in that case "pretty well speaks for itself on the Court's finding."
Regarding Thompson's complaint, Ladd found that Slavin violated DR 7-102(A)(1) because "his actions would serve merely to harass another person or a fellow lawyer." He agreed with the hearing panel's findings regarding Slavin's clients. He found that Slavin's most serious violation was that of DR 7-101(A)(4)(c) which provides that lawyers shall not prejudice or damage the client during the course of the professional relationship. He also referred to DR 1-102(A)(5) which provides that a lawyer shall not engage in conduct that is prejudicial to the administration of justice. He stated that "by [Slavin's] actions, he is stealing from the client." Ladd noted the testimony of Judge Nahum Litt ("Litt") who "described how Mr. Slavin takes cases with major elements missing." He referred to additional testimony by Litt in which he stated, "The Peer Review was to cover matters not appealable; however, in his opinion, most of what Mr. Slavin filed in Peer Review were appealable issues."
Ladd ordered that Slavin be suspended from the practice of law for three years and that before he applies to the Supreme Court for readmittance, he must "submit some kind of proof to the Supreme Court of a knowledge of how to properly represent a client and subordinate his own feelings in the practice of his law." He stated that Slavin's actions "could be grounds for disbarment," but he found "a glimmer of hope" in Slavin because he is industrious and has a good mind. However, he questioned Slavin's judgment.
II. Standard of Review
Slavin is before this Court as a matter of right pursuant to Tennessee Supreme Court Rule 9, section 1.3, which provides the following:
*546 Either party dissatisfied with the decree of the circuit or chancery court may prosecute an appeal direct to the Supreme Court where the cause shall be heard upon the transcript of the record from the circuit or chancery court, which shall include the evidence before the hearing committee.
In addition, "our review of this cause is de novo on the record of the trial court, and to the findings of the trial court there is attached a presumption of correctness unless the evidence preponderates against those findings." Sneed v. Bd. of Prof'l Responsibility, 37 S.W.3d 886, 890 (Tenn. 2000).[4]
III. Analysis
In this appeal, Slavin contends the following: (1) that Ladd erred by refusing to recuse himself; (2) that Slavin's in-court statements were protected by free speech; and (3) that Ladd erred by increasing the sanction imposed by the Hearing Committee.
A. Recusal
Concerning the recusal issue, whether recusal is warranted is left to the discretion of the trial judge, and such decision will not be reversed absent a clear abuse of discretion on the face of the record. Davis v. Liberty Mut. Ins. Co., 38 S.W.3d 560, 564 (Tenn.2001). The record in this case contains an exchange which occurred at the beginning of the hearing held on December 10, 2002, a hearing at which Slavin was not present.[5] The exchange, between Ladd and Slavin's attorney, was as follows:
THE COURT: And you are Mr. Stuart?
MR. STUART: Yes, Your Honor, David Stuart from the Anderson County Bar.
THE COURT: All right. Born and raised in Anderson County, Mr. Stuart... I was.
MR. STUART: Oh, you were. Really? Oh, okay.
THE COURT: Born in Oliver Springs, grew up in Norris.
MR. STUART: Is that right? Well, it is very nice to meet you.
THE COURT: My father was Purchasing Agent for a period of time.
MR. STUART: Oh, really?
THE COURT: In Anderson County.
MR. STUART: I met him. I was County Attorney for a long time, and he testifiedHe had just left Purchasing Agent when I became County Attorney, and he testified. I thought you looked familiar. That must be the reason why.
On December 16, 2002, six days after the hearing, Stuart sent Ladd a letter stating that Slavin intended to file a motion for Ladd's recusal. The letter suggested that Ladd may have residual bias because of Stuart's efforts to impeach *547 Ladd's father in a case tried in 1983.[6] The suggestion is based on Stuart's statement that Slavin had supplied documents to Stuart to be used in an effort to impeach Ladd's father, a witness in the case. Additionally, Stuart suggests in his letter that Ladd's impartiality may reasonably be questioned.
On December 30, 2002, Ladd filed an affidavit[7] in which he denied any personal knowledge of Slavin or of Stuart. Additionally, he stated that he had never heard of the Clinton Bus Co. case. He said, "In summary, prior to receiving the letter of December 16th, I had no knowledge whatsoever of anything mentioned about the case in Mr. Stuart's letter." Moreover, Ladd explained that his father was eighty-nine years old and due to a series of strokes and dementia could not recall any case in which he may have testified. Finally, he stated that prior to reading the letter of December 16, 2002, he had no knowledge of ever having seen or heard of a local weekly tabloid entitled the "Appalachian Observer" edited by Slavin.
On January 3, 2003, Slavin filed a motion requesting that Ladd recuse himself in this case.[8] He also filed a motion for a new trial. On February 28, 2003, Ladd entered an order denying the motion for a new trial and the motion for recusal.
On appeal, Slavin contends that Ladd erred in refusing to recuse himself. In response, the BPR contends that Slavin's failure to seek recusal in a timely manner has foreclosed this issue. Indeed, the BPR suggests that Slavin has attempted to manipulate the recusal issue to gain procedural advantage.
"Parties may lose the right to question a judge's impartiality if they attempt to manipulate the impartiality issue to gain procedural advantage." Davis v. Tenn. Dep't of Employment Sec., 23 S.W.3d 304, 313 (Tenn.Ct.App.1999). "[T]he failure to seek recusal in a timely manner results in a waiver of a party's right to question a judge's impartiality." Id. Even though there is evidence to support a finding that the recusal issue was waived for failure to *548 raise it in a timely manner, we nevertheless prefer to address the issue.
"The right to a fair trial before an impartial tribunal is a fundamental constitutional right." State v. Austin, 87 S.W.3d 447, 470 (Tenn.2002). Moreover,
Article VI, § 11 of the Tennessee Constitution provides that "no Judge of the Supreme or Inferior Courts shall preside on the trial of any cause in the event of which he may be interested." The purpose of this constitutional provision is to guard against the prejudgment of the rights of litigants and to avoid situations in which the litigants might have cause to conclude that the court had reached a prejudged conclusion because of interest, partiality or favor. Chumbley v. People's Bank & Trust Co., 165 Tenn. 655, 659, 57 S.W.2d 787, 788. (1933).
State v. Benson, 973 S.W.2d 202, 205 (Tenn.1998).
Tennessee has also recognized that "the preservation of the public's confidence in judicial neutrality requires not only that the judge be impartial in fact, but also that the judge be perceived to be impartial." Kinard v. Kinard, 986 S.W.2d 220, 228 (Tenn.Ct.App.1998). Thus, recusal is also appropriate "when a person of ordinary prudence in the judge's position, knowing all of the facts known to the judge, would find a reasonable basis for questioning the judge's impartiality." Davis v. Liberty Mut. Ins. Co., 38 S.W.3d at 564-65 (quoting Alley v. State, 882 S.W.2d 810, 820 (Tenn.Crim.App.1994)). "Hence, the test is ultimately an objective one since the appearance of bias is as injurious to the integrity of the judicial system as actual bias." Id. We note, however, that the mere fact that a judge has ruled adversely to a party or witness in a prior proceeding is not grounds for recusal. Id.
Ladd has included in the record an affidavit outlining the basis for his refusal to recuse himself. It is entirely adequate and, we think, dispositive of the issue. Accordingly, this issue is without merit.
B. First Amendment
Slavin next contends that the BPR, Department of Labor, and Department of Energy have sought sanctions against him for speech protected by the First Amendment. The Hearing Committee found that the in-court statements complained of, while "undignified and discourteous," were protected speech under First Amendment principles. The trial court, however, reached the opposite conclusion, ruling that Slavin's statements were not protected by the First Amendment.
Specifically, Ladd concluded that Slavin's speech with regard to Workman violated DR 7-106(C)(6) by Slavin's having engaged in undignified and discourteous conduct degrading to a tribunal. He concluded, as to Slavin's speech toward Jansen, that Slavin had violated DR 1-102(A)(5) and DR 7-106(C)(6). With regard to Vittone, Ladd concluded that Slavin had manipulated the Peer Review process to "systematically harass[] and attempt[] to intimidate judges" and by so doing, had violated DR 1-102(A)(5). Finally, Ladd found that Slavin's conduct toward Thompson constituted a violation of DR 7-102(A)(1) by his having engaged in conduct "when it is obvious that such action would serve merely to harass or maliciously injure another."
The free speech clause of the First Amendment to the United States Constitution is applicable to the states through the Fourteenth Amendment and provides that "Congress shall make no law ... abridging the freedom of speech." Article I, section *549 19, of the Tennessee Constitution similarly provides that "[t]he free communication of thoughts and opinions, is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty."
In the context of judicial proceedings,[9] an attorney's First Amendment rights are not without limits. Although litigants and lawyers do not check their First Amendment rights at the courthouse door, those rights are often subordinated to other interests inherent in the judicial setting. See Gentile v. State Bar of Nev., 501 U.S. 1030, 1071, 111 S. Ct. 2720, 115 L. Ed. 2d 888 (1991); United States Dist. Court v. Sandlin, 12 F.3d 861, 866 (9th Cir.1993); Koster v. Chase Manhattan Bank, 93 F.R.D. 471, 476 (S.D.N.Y.1982); State v. Carruthers, 35 S.W.3d 516, 560-61 (Tenn.2000). Thus, while we find that legitimate criticism of judicial officers is tolerable, "an attorney must follow the Rules of Professional Conduct when so doing." Shortes v. Hill, 860 So. 2d 1, 3 (Fla.Dist.Ct. App.2003). A lawyer is not free to "seek refuge within his own First Amendment right of free speech to fill a courtroom with a litany of speculative accusations and insults." United States v. Cooper, 872 F.2d 1, 3 (1st Cir.1989).
The United States Supreme Court stated:
It is unquestionable that in the courtroom itself, during a judicial proceeding, whatever right to "free speech" an attorney has is extremely circumscribed. An attorney may not, by speech or other conduct, resist a ruling of the trial court beyond the point necessary to preserve a claim for appeal.
Gentile, 501 U.S. at 1071, 111 S. Ct. 2720.
"The First Amendment does not preclude sanctioning a lawyer for intemperate speech during a courtroom proceeding." Jacobson v. Garaas (In re Garaas), 652 N.W.2d 918, 925 (N.D.2002) (emphasis added). Commenting on Gentile in a disciplinary proceeding, the Supreme Court of Missouri concluded:
An attorney's free speech rights do not authorize unnecessary resistance to an adverse ruling.... Once a judge rules, a zealous advocate complies, then challenges the ruling on appeal; the advocate has no free-speech right to reargue the issue, resist the ruling, or insult the judge.
In re Coe, 903 S.W.2d 916, 917 (Mo.1995).
In Kentucky Bar Association v. Waller, 929 S.W.2d 181, 183 (Ky.1996), the Supreme Court of Kentucky observed that the statements need not be false to pursue disciplinary action:
Respondent appears to believe that truth or some concept akin to truth, such as accuracy or correctness, is a defense to the charge against him. In this respect he has totally missed the point. There can never be a justification for a lawyer to use such scurrilous language with respect to a judge in pleadings or in open court. The reason is not that the judge is of such delicate sensibilities as to be unable to withstand the comment, but rather that such language promotes disrespect for the law and for the judicial system. Officers of the court are obligated to uphold the *550 dignity of the Court of Justice and, at a minimum, this requires them to refrain from conduct of the type at issue here.
Thus, an attorney's speech may be sanctioned if it is highly likely to obstruct or prejudice the administration of justice. "These narrow restrictions are justified by the integral role that attorneys play in the judicial system, which requires them to refrain from speech or conduct that may obstruct the fair administration of justice." Office of Disciplinary Counsel v. Gardner, 99 Ohio St. 3d 416, 793 N.E.2d 425, 428-29 (2003).
Accordingly, we conclude that Slavin's in-court remarks were not protected by the First Amendment. By this holding we intend to limit an attorney's criticisms of the judicial system and its officers to those criticisms which are consistent in every way with the sweep and the spirit of the Rules of Professional Conduct. See Fla. Bar v. Ray, 797 So. 2d 556, 560 (Fla.2001).
C. Sanctions
For his final issue, Slavin contends that Ladd erred by imposing a three-year suspension from the privilege to practice law. Having concluded that the violations found by Ladd were proper, we consider sanctions imposed in similar cases. In Farmer v. Board of Professional Responsibility, 660 S.W.2d 490, 491-93 (Tenn.1983), this Court found that the attorney should be disciplined for using "scurrilous and improper language in briefs which he himself filed." In that case, we concluded that the attorney "deliberately chose to use language and tactics which cannot be tolerated in the legal profession" and affirmed the Hearing Committee's decision to suspend the attorney for sixty days. Id. at 493.
Although this Court concluded that the attorney was not subject to sanctions for his out-of-court statements to the media in Ramsey v. Board of Professional Responsibility, 771 S.W.2d 116, 122-23 (Tenn. 1989), we did conclude that the attorney acted in a manner prejudicial to the administration of justice. In that case, the attorney failed to abide by court orders, failed to respond to questions from the court while appearing before the court, and slammed courtroom doors during hearings. Id. at 123. Thus, we imposed a sanction of 180 days, with all but 45 days suspended. Id.
In Galbreath v. Board of Professional Responsibility, 121 S.W.3d 660 (Tenn. 2003), we held that a thirty-day suspension was warranted for an attorney's misconduct that included attempts to subvert the legal process. In that case, the attorney, dissatisfied with a judge's rulings, began a calculated campaign through threats and intimidation to force the judge's recusal. Id. at 666.
Additionally, we note similar cases in other jurisdictions. In Kentucky Bar Association v. Waller, 929 S.W.2d 181, 183 (Ky.1996), the Supreme Court of Kentucky ordered a six-month suspension for an attorney's comments made in a written memorandum submitted to a trial court. The Supreme Court of Kentucky described the memorandum as follows:
After the appointment of Judge Harris, Waller filed a motion to set aside the earlier temporary injunction. On June 21, 1994, Waller filed a memorandum styled as "Legal Authorities Supporting the Motion to Dismiss" which contained the following introductory language: Comes defendant, by counsel, and respectfully moves the Honorable Court, much better than that lying incompetent ass-hole it replaced if you graduated from the eighth grade....
Id. at 181.
The Supreme Court of Ohio, in Office of Disciplinary Counsel v. Gardner, 99 Ohio *551 St.3d 416, 793 N.E.2d 425, 433 (2003), imposed a six-month suspension on an attorney for comments made in a written motion. The Court described the motion as follows:
In a motion seeking reconsideration or, in the alternative, certification of the case as a conflict to this court, respondent accused the panel that decided his client's appeal of being dishonest and ignoring well-established law. He declared that the panel had issued an opinion so "result driven" that "any fairminded judge" would have been "ashamed to attach his/her name" to it. He then added that the panel did not give "a damn about how wrong, disingenuous, and biased its opinion is."
Id. at 427. In upholding the six-month suspension, the Supreme Court of Ohio stated:
An attorney's speech may be sanctioned if it is highly likely to obstruct or prejudice the administration of justice.... These narrow restrictions are justified by the integral role that attorneys play in the judicial system, which requires them to refrain from speech or conduct that may obstruct the fair administration of justice.
Id. at 429.
As we continue our de novo consideration of the sanctions imposed, we note a dramatic increase in the punishment imposed by the trial court beyond that imposed by the Hearing Committee. We think this difference is easily explained by the fact that the trial court reinstated several violations that had been dismissed by the Hearing Committee.
Although we are much impressed with Slavin's intellect and legal skill, what does not impress us is his apparent defiance in refusing to respect the line separating, in the judicial context, tolerable criticism from unacceptable speech. He has trampled upon that line, and indeed by so doing has propelled himself into the quagmire of unacceptable speech.
Accordingly, we hereby suspend Slavin from the practice of law for a period of two years from date of this opinion. Slavin may petition for reinstatement under Supreme Court Rule 9, section 19.3, at the expiration of one year from date of this opinion. It is further ordered that Slavin shall comply in all respects with Tennessee Supreme Court Rule 9, and specifically with section 18 regarding the obligations and responsibilities of suspended attorneys. Costs of this review are taxed to the appellant, Edward A. Slavin, Jr., for which execution may issue, if necessary.
WILLIAM M. BARKER, J., not participating.
NOTES
[1] The Administrative Review Board of the United States Department of Labor has the authority of the Secretary of Labor and other deciding officials to issue final agency decisions under a broad range of federal labor laws.
[2] A shrewish woman. Webster's II New College Dictionary 506 (2001).
[3] The proceedings in this case are governed by the Code of Professional Responsibility previously set forth in Rule 8 of the Tennessee Supreme Court Rules (2002). The Code was replaced on March 1, 2003, by the Rules of Professional Conduct.
[4] As noted in Sneed v. Board of Professional Responsibility, 37 S.W.3d 886, 890 n. 14 (Tenn.2000), "Tennessee Supreme Court Rule 9, Section 1.3, does not explicitly provide for de novo review upon the record of the trial court, with a presumption of correctness unless the preponderance of the evidence is contrary to the findings." According to Sneed, this standard is inferred from the following sources: Tenn. R.App. P. 13(d); Murphy v. Bd. of Prof'l Responsibility, 924 S.W.2d 643, 647 (Tenn.1996); Gillock v. Bd. of Prof'l Responsibility of Supreme Court, 656 S.W.2d 365, 367 (Tenn.1983); and Scruggs v. Bracy, 619 S.W.2d 101, 103 (Tenn.1981). Essentially, we are reviewing the record of the Hearing Committee in that no testimony was adduced in the trial court.
[5] This hearing was, apparently, the appeal of right from the judgment of the hearing committee.
[6] Clinton Bus Co., et al. v. Anderson County Bd. of Educ., Anderson County Docket No. E-8362.
[7] The affidavit stated the following:
I. I had no personal knowledge of the respondent, Edward A. Slavin, Jr., Esquire or his counsel, David A. Stuart, Esquire, until I received the order appointing me to hear this case signed by Chief Justice Frank F. Drowota, III, that was entered on the 19th day of July, 2002.
II. My father, A.B. Ladd, was at one time purchasing agent for Anderson County, Tennessee and retired over 25 years ago. I have lived and practiced law or presided as Chancellor in Sullivan County since December 1963. I had never heard of the case Clinton Bus Company, et al, v. Anderson County Board of Education, Anderson County Chancery Court Docket No. E8352 prior to Mr. Stuart's letter to me dated December 16, 2002. I have no memory of my father A.B. Ladd ever mentioning the case nor the fact that he testified in the case, nor the nature of his testimony, nor the fact that he was cross-examined by Mr. Stuart. In summary, prior to receiving the letter of December 16th, I had no knowledge whatsoever of anything mentioned about the case in Mr. Stuart's letter.
III. My father, A.B. Ladd is now 89 years of age and due to a series of strokes and dementia, [he] cannot even tell me what year he retired, let alone recall any case in which he may have testified.
Thus, I have not been able to determine from him whether he ever told me about the case.
IV. I have no knowledge of ever seeing or hearing of a local weekly tabloid entitled the "Appalachian Observer" edited by Mr. Slavin until the letter of December 16, 2002.
[8] As stated, this motion was filed after Ladd had heard the appeal.
[9] We note that our Court held in Ramsey v. Board of Professional Responsibility, 771 S.W.2d 116, 122 (Tenn.1989) that an attorney who made out-of-court statements to the media regarding judicial proceedings was not subject to discipline, and the statements were protected by the First Amendment. That case, however, is distinguishable. In the case under submission, the statements at issue were made during in-court judicial proceedings. | 01-03-2023 | 10-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1380349/ | 230 S.C. 210 (1956)
95 S.E.2d 170
JOHN A. CHAPMAN, Administrator of Estate of Walter Benjamin Chapman, Respondent,
v.
SOUTHERN RAILWAY COMPANY, Appellant.
17220
Supreme Court of South Carolina.
November 8, 1956.
Messrs. Moss & Moss, of Orangeburg, and Frank G. Tompkins, Jr., of Columbia, for Appellant.
*211 Messrs. Marshall B. Williams, of Orangeburg, and Henry H. Edens and Henry Hammer, of Columbia, for Respondent.
November 8, 1956.
MOSS, Justice.
This action was commenced on October 12, 1955, by the respondent John A. Chapman, as administrator of the estate of Walter Benjamin, deceased, in the Court of Common Pleas for Orangeburg County, to recover damages for the death of respondent's intestate caused and occasioned by the negligence of the appellant, while the intestate was employed in its yards at Macon, Georgia. The action is based on the Federal Employer's Liability Act, 45 U.S.C.A. § 51 et seq.
John A. Chapman is the only surviving child of the deceased intestate and resides in Orangeburg County, South Carolina. He is the duly appointed administrator by the Probate Court of said County of the estate of the deceased. The appellant is a railroad corporation, maintaining tracks, roadbeds, yards and offices for transacting its business in Orangeburg County, South Carolina.
On March 2, 1955, the respondent instituted a similar action against the appellant in the United States District Court for the Eastern District of South Carolina, on the same cause, in which said action the appellant moved for a change of venue to the United States District Court for the Middle District of Georgia, pursuant to the provisions of the Federal Statute. 28 U.S.C.A. § 1404(a). At the time *212 fixed for the hearing of this motion before the Honorable Ashton H. Williams, District Judge of the Eastern District of South Carolina, the respondent moved for a voluntary nonsuit without prejudice of the action pending in said District Court, it being stated at the time that the instant action had been instituted on the previous day. The motion for a voluntary nonsuit was granted by the District Court.
The appellant moved in the court below to dismiss this action under the doctrine of forum non conveniens. The motion to dismiss was heard and refused by the Honorable C. Bruce Littlejohn, the presiding Judge of the Court of Common Pleas for Orangeburg County. The question for determination here is whether there was error in the refusal to dismiss the action on the ground stated.
The appellant asserts that the motion to dismiss forum non conveniens should have been granted, asserting that all witnesses, sources of proof with respect to the locus and the evidence giving rise to this cause of action are within the jurisdiction of the Courts of Georgia. The appellant also asserts that it intends to, and that it is necessary for it to produce eighteen witnesses to present its defense, and that the bringing of such witnesses from the State of Georgia to South Carolina would entail upon it added and additional expense, which could be avoided if the case was tried in the Courts of Georgia. It also asserts that it has no means of compelling the attendance of such witnesses in South Carolina; that it would be impracticable to try this case on depositions. In short, it asserts that the convenience of the parties and witnesses would be promoted by a trial of the case in Macon. The appellant has submitted an affidavit of its Claim Agent setting forth the names of the eighteen witnesses it intends to call in its defense. The affidavit also shows, in a limited fashion, what the testimony of the witnesses would be. An examination of this list shows that fifteen of such witnesses are in the employ of the appellant, one is a former employee of the appellant, and another is the Ordinary for Bibb County, Georgia. This leaves one other *213 witness who witnessed the accident and will testify thereabout. A careful examination of the substance of the testimony of the aforesaid witnesses shows that many of them will testify with respect to details leading up to and causing the death of respondent's intestate. Several of the witnesses were designated as being in the repair or inspection department and will testify as to the inspection of the train for defects immediately after the accident. Many of these witnesses will give cumulative testimony.
The appellant does not question the jurisdiction of the Common Pleas Court of Orangeburg to entertain this action nor can it do so. It is provided in Section 10-214 of the 1952 Code of Laws, as follows:
"An action against a corporation created by or under the laws of any other state, government or country may be brought in the circuit court:
"(1) By any resident of the State for any cause of action; * * *."
The construction of this statute was before this court in the case of Lipe v. Carolina, C. & O.R. Co., 123 S.C. 515, 116 S.E. 101, 103, 30 A.L.R. 248. In such case the plaintiff was a resident of this state, the defendant, a Virginia corporation, and the cause of action was for damages on account of the alleged wrongful death of the plaintiffs intestate, who was fatally injured in North Carolina while in the employ of the defendant as a conductor. The summons and complaint were served on agents of the defendant in this state. Upon motion to dismiss the service of the summons and complaint and the action on the grounds that the court committed error in holding that the defendant was doing business in South Carolina, this court, in disposing of appellant's exceptions, said:
"The language of the statute, conferring the right upon any resident to bring an action in the circuit court against a foreign corporation `for any cause of action,' and limiting the right of action of a nonresident, is too clear to require interpretive comment. The plaintiff, a resident of the state, *214 was entitled to sue upon her transitory cause of action arising in the state of North Carolina, and the circuit court was invested with jurisdiction to try the cause. Obviously, if the service of process was otherwise sufficient to give the circuit court jurisdiction of the person of the defendant, the service was not invalidated or rendered nugatory by reason of the fact that the plaintiff's cause of action arose without the state.
"The power of the state `to make the jurisdiction over the foreign corporation wide enough to include the adjudication of transitory action not arising in the state' is not open to question. See Mo. Pac. R. Co. v. Clarendon B.O. Co. [257 U.S. 533, 42 S. Ct. 210, 66 L. Ed. 354], supra; Best v. [Seaboard Air Line] Ry Co., 72 S.C. [479] 482, 52 S.E. 223; 14 C.J. 1384, § 4100. The state of Virginia has the same power to subject a South Carolina corporation doing business in Virginia to the jurisdiction of its courts, for the trial of a cause of action arising elsewhere, as South Carolina has to subject a Virginia corporation, doing business in this state, to the jurisdiction of its courts, for the trial of a cause of action arising elsewhere. Most of the great interstate carriers by railroad, telegraph, and telephone, for example, are foreign corporations, in a majority of the states through which they pass. To hold that a resident of South Carolina, injured in North Carolina, by a Virginia corporation, doing business and reachable by process in South Carolina, must seek redress either in the courts of North Carolina or of Virginia, would involve a conclusion that is neither in accord with authority nor consistent with sound public policy."
In the case of Thompson v. Queen City Coach Co., Inc., 169 S.C. 231, 168 S.E. 693, 697, this Court said:
"We can reach no other conclusion than that, in order for a circuit court of this state to have jurisdiction in a case against a foreign corporation where the cause of action arises without the state, it must be shown that the corporation is `doing business' within the state. To hold otherwise would *215 be inconsistent with the principles conceded and enunciated in the Lipe case, which, we may add, is cited with approval in Hodges v. Lake Summit Co., 155 S.C. 436, 152 S.E. 658."
It is most interesting that the Georgia Courts have refused to apply the doctrine of forum non conveniens under circumstances correspondingly similar to those presented in this case. In the case of Atlantic Coast Line R. Co. v. Wiggins, 77 Ga. App. 756, 49 S.E. (2d) 909, an action for wrongful death occurring in South Carolina was brought in the State of Georgia by a resident of said state, the administrator of the decedent was also a resident thereof, the defendant being a foreign corporation having a place of business in said state. It was held that the trial court was required to exercise jurisdiction and that the rule of forum non conveniens could not be invoked by the defendant in view of the provisions in the Georgia Constitution that no person shall be deprived of the right to prosecute or defend his own cause in any of the courts of Georgia. The court said that the constitutional provision referred to residents and applied to an action in a representative capacity as well as personal actions.
Under the 1895 Constitution of South Carolina, Article I, § 15, it is provided "All Courts shall be public, and every person shall have speedy remedy therein for wrongs sustained." This section of our constitution is comparable in intendment with that section in the Georgia constitution, which is construed in the case of Atlantic Coast Line R. Co. v. Wiggins, supra.
The conclusion is inescapable that when a resident of this state sues a foreign corporation upon a transitory cause of action, where such corporation is doing business in this state, it would not be consistent with sound public policy to deny such resident access to the courts of this state for the adjudication of his rights.
In this case we need not reject or adopt the doctrine of forum non conveniens. However, conceding the advisability *216 of adopting such doctrine, it should not be applied in this case when the plaintiff is a resident of South Carolina. Douglas v. New York N.H. & H.R. Co., 279 U.S. 377, 49 S. Ct. 355, 73 L. Ed. 747.
The exceptions must be overruled and the order of the Court below affirmed.
STUKES, C.J., and TAYLOR, OXNER and LEGGE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1380341/ | 232 P.2d 731 (1951)
STATE
v.
SAUTER, et al.,
No. 9012.
Supreme Court of Montana.
June 7, 1951.
Arthur R. Meyer and Wiggenhorn & Hutton, all of Billings, for appellant.
Arnold H. Olsen, Atty. Gen., Louis E. Poppler, Asst. Atty. Gen., Mr. Charles B. Sande, County Atty., Billings, for respondent.
FREEBOURN, Justice.
John Sauter, defendant and appellant, with George Schneider, was charged by information with the crime of rape, "by the use of force and violence, and threats of violence and great and immediate bodily harm," upon a female of the age of 22 years.
Sauter, tried separately, was convicted and sentenced to serve 25 years in the state prison. From this conviction he appeals.
Over objection, the prosecution was permitted to introduce in evidence statements of defendant tending to show he had committed rape upon another woman sometime prior to the commission of the act for which he was on trial.
Such statements and evidence of the previous rape were inadmissible in this case.
The general rule is found in 44 Am. Jur., Rape, sec. 79, p. 948, where it is said: "The courts universally refuse to admit evidence of the commission of other and distinct crimes where such evidence is not *732 otherwise relevant, and in the application of this rule it is well settled on a prosecution for rape that evidence of another rape or other sex crime committed at a different time and on or against another person, and having no connection with the crime charged, is not admissible. * * * The prosecution may not show that the defendant has had sexual intercourse with other young females, or that he has committed other sex crimes and immoral acts."
In 22 C.J.S., Criminal Law, sec. 682, pages 1084 and 1087, it is said: "The general rule, which is subject to exceptions stated in secs. 683-690, infra, is that, on a prosecution for a particular crime, evidence which shows or tends to show that accused has committed another crime wholly independent of, and unconnected with, that for which he is on trial, even though it is a crime of the same sort, is irrelevant and inadmissible, and such evidence of an independent crime is inadmissible for the reason, among others, that it ordinarily does not tend to establish the commission by accused of the offense charged, that accused must be tried for one offense at a time, and that, in accordance with the more extensive general rule, which applies to all cases, civil and criminal, the evidence must be confined to the point in issue."
The same general rule extends to a confession or admission by accused of the commission of another crime. 22 C.J.S., Criminal Law, sec. 682, page 1088. See also: Gunter v. State, 180 Miss. 769, 178 So. 472; Baygents v. State, 144 Miss. 442, 110 So. 114; Bartz v. State, 229 Wis. 522, 282 N.W. 562. It also applies to statutory rape. See 167 A.L.R., p. 588, and authorities cited.
In People v. Whalen, 70 Cal. App. (2d) 142, 160 Pac. (2d) 560, 562, the California court said: "The authorities are unanimous in holding that a defendant's right to a fair trial in this sort of case is violated by the receipt of evidence of the commission of acts similar to those charged, with a person or persons other than the prosecutrix. People v. Asavis, 1937, 22 Cal. App. (2d) 492, 71 Pac. (2d) 307, and cases cited."
In State v. Peterson, 102 Mont. 495, 59 Pac. (2d) 61, the evidence of other and similar acts were received to show corroboration, and confined to acts with the prosecutrix under identical circumstances. See also: State v. Paddock, 86 Mont. 569, 284 P. 549; State v. Gaimos, 53 Mont. 118, 162 P. 596.
There is nothing in the case before us which takes it out of the general rule herein announced and brings it within any exception thereto.
Defendant admitted having intercourse with the prosecutrix but contended it was not rape. Whether it was or was not was a question of fact for the jury. Neither defendant's identity nor intent was in question. The previous sexual act occurred with a woman, not the prosecutrix, and at another time and place than that charged in the information. Evidence thereof could not be res gestae. The evidence of the prior act had no connection with the act for which defendant was on trial. It did not tend to establish a systematic scheme or plan embracing the commission of two or more offenses so related to each other that proof of one tends to establish the other, or to connect the defendant with the commission of the offense charged. State v. Gaimos, supra.
Sexual acts, whether rape or no rape, originating in barroom pickups, powered by the urge, and consummated in automobiles, are entirely too common in this day and age to have much evidentiary value in showing a systematic scheme or plan.
In Walker v. State, 103 Tex. Cr. R. 555, 281 S.W. 1070, a forcible rape case, it appears "that the appellant came to the boarding house of the prosecutrix and represented to her that he desired to employ her to nurse his baby and act as companion for his wife, and, believing said representation, she went with him on the street car to the end of the line, and then walked with the appellant through a woods until they had reached a rather secluded spot, when appellant by drawing a pistol on her, forced her to have intercourse with him. The prosecutrix testified that appellant represented to her that he lived in the direction in which they were going, and that she thought he was taking her to his home for the purpose of giving her employment.
*733 "* * * a negro woman was permitted to testify that appellant came to her house on Gable street, in 1923, and told her he wanted somebody to work for him, and she consented to take the job, and went with the defendant to Independence Heights, at his instance and direction, and they got on a street car and later got out and went down the railroad track into the woods somewhere, and when they got in the woods, the appellant held a gun on the witness and forced her to have intercourse with him. Similar testimony was given by various other witnesses, as to assaults made on them by appellant. The learned trial court told the jury in his charge that if they believed the state had connected the defendant with collateral assaults before they could consider same, they must believe that said assaults had been committed by defendant, and if they found same had been so committed, then not to consider them for any purpose except to illustrate system, motive, and intent of the defendant, if said collateral assaults did illustrate system, motive, and intent in committing the offense for which the defendant was on trial. * * *
"Under the facts in this case, the testimony of the collateral transactions above mentioned was clearly inadmissible. Mr. Branch has correctly stated the rule as follows:
"`The fact that two or more distinct crimes may have been committed the same way does not show "system."'"
The evidence of the alleged previous acts by defendant and not involving the prosecutrix in any way could only tend to show his bad character and disposition. Since he had introduced no evidence of his good reputation such evidence so introduced by the state was clearly inadmissible.
R.C.M. 1947, section 93-1901-11, provides: "A witness may be impeached by the party against whom he was called, by contradictory evidence or by evidence that his general reputation for truth, honesty, or integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of a felony."
This court said in State v. Popa, 56 Mont. 587, 185 P. 1114, 1115: "Evidence given either in support or impeachment of the character of one accused of crime must, as a rule, be confined to general reputation, and cannot be extended to particular acts. State v. Shadwell, 22 Mont. 559, 57 P. 281."
In State v. Jones, 48 Mont. 505, 139 P. 441, 445, we said: "Extrinsic evidence of particular wrongful acts is therefore not admissible, because it violates the rule against proof of particular facts to establish reputation, declared by the statute. Rev. Codes, sec. 8024 [Rev. Codes 1907, now R.C.M. 1947, sec. 93-1901-11, supra]; Wigmore on Evidence, sec. 988; Underhill on Criminal Evidence, sec. 82; 1 McClain on Criminal Law, sec. 307."
In Williams v. State, 68 Okl. Cr. 348, 98 Pac. (2d) 937, 940, a rape case, the Oklahoma court said, quoting from the leading case of State v. Lapage, 57 N.H. 245, 24 Am. Rep. 69: "`To make one criminal act evidence of another, a connection between them must have existed in the mind of the actor, linking them together for some purpose he intended to accomplish; or, it must be necessary to identify the person of the actor by a connection which shows that he who committed the one must have done the other. Without this obvious connection, it is not only unjust to the prisoner to compel him to acquit himself of two offenses instead of one, but it is detrimental to justice to burden a trial with multiplied issues that tend to confuse and mislead the jury. * * * Proof of the first crime would show that the respondent was a very bad man would perhaps show a tendency or disposition to commit that particular crime; but it would go no further, and in fact would amount to little more than an attack upon the respondent's character, which is inadmissible unless he puts it in issue, and an attack upon his character by showing particular acts, which is also inadmissible. * * * I mention this case to illustrate the necessity of extreme caution not to admit such testimony unless there can be seen some distinct logical connection, such as the law requires, between the fact proposed to be proved and the fact in issue.'"
*734 In State v. Williams, 36 Utah 273, 103 P. 250, 252, wherein defendant was prosecuted for rape on a child of 10, evidence of prosecutrix, that after assault had been completed, defendant stated there were other female children that had come to his home with whom he had committed the same offense, was admitted. The Supreme Court of Utah said in holding such evidence inadmissible and its introduction error: "The authorities uniformly hold in this class of cases that where a defendant is on trial for a particular crime evidence that he on some other occasion committed a separate and distinct crime wholly disconnected from the crime charged on some person other than the one mentioned in the information or indictment is never admissible. `Proof of a distinct substantive offense is never admissible unless there is some logical connection between the two from which it can be said that proof of the one tends to establish the other. Thus in a prosecution for rape testimony would not be competent that at a time not comprehended within the res gestae the defendant had committed a rape on another woman.' Gillett, Ind. & Col. Ev. sec. 57. In Wharton's Am. Crim. Law, sec. 635, the author says: `It is under no circumstances admissible for the prosecutor to put in evidence the defendant's general bad character, or his tendency to commit the particular offense charged, nor is it admissible to prove independent crimes, even though of the same general character, except when falling strictly within the exceptions stated.' The evidence under consideration does not fall within the exceptions referred to by the author. In 10 Enc. Ev. 597, the rule is stated as follows: `In a prosecution for rape it is not competent for the state to introduce evidence tending to show that the defendant attempted to commit a similar offense upon a female other than the prosecutrix.'"
In Walker v. State, 23 Ariz. 59, 201 P. 398, 400, the Supreme Court of Arizona said: "The appellant was being prosecuted for the crime of rape committed against the person of Ruthie May Brakebill, and the perpetration of other crimes of a similar nature against other persons than she was wholly beside the issue, the crime charged forcible rape not being one in which the similar offense rule obtains. There could have been, therefore, no purpose in asking these questions other than to get before the jury certain statements in the guise of questions, that would be highly prejudicial to the appellant but which the assistant county attorney must have known were inadmissible for any purpose, even though he may have been convinced they were true."
Proof that accused committed other crimes, even if they were [3] of like nature to that charged, is not admissible to show his depravity or criminal propensities, or the resultant likelihood of his committing the offense charged; nor may such evidence be offered if it only tends to create a prejudice against accused in the minds of the jury. 22 C.J.S., Criminal Law, sec. 682, pages 1088, 1089.
The general rule should be strictly enforced in all cases where applicable, because of the prejudicial effect and injustice of such evidence, and should not be departed from except under conditions which clearly justify such a departure. The exceptions should be carefully limited, and their number and scope not increased. 22 C.J.S., Criminal Law, sec. 683, page 1091.
Defendant's motion that the state be required to elect the act of alleged rape for which defendant was to be tried, should have been granted, and by appropriate instruction the court should have directed the jury that defendant was on trial and could be convicted for that offense only.
An information can charge but one offense. R.C.M. 1947, [4] sec. 94-6407. It naturally follows that a defendant can be tried for and convicted of but one offense, that charged in the information. State v. Gaimos, supra.
Every act of sexual intercourse constituting rape is a separate and distinct offense, since R.C.M. 1947, section 94-4101, provides that "Rape is an act of sexual intercourse" accomplished under the conditions set out in such statute.
Although the information charged Sauter and Schneider jointly with accomplishing "an act of sexual intercourse" under conditions amounting to rape, the prosecution *735 knew, from the testimony of the prosecutrix, that each defendant had indulged in a separate act of sexual intercourse with the prosecutrix. The prosecution further knew that there was evidence which, if believed, showed defendant to have assisted Schneider in accomplishing his act of sexual intercourse, by placing a hand on the shoulder of the prosecutrix and by pressing some metallic object against her neck, thereby putting her in fear.
The court should have directed the prosecution to say whether it was prosecuting defendant for the offense consisting of accomplishing intercourse with the prosecutrix by himself, or if it was prosecuting defendant for the offense of aiding and assisting Schneider in consummating Schneider's act of sexual intercourse with the prosecutrix.
The right to compel this election is a personal right of the defendant. State v. Duncan, 82 Mont. 170, 266 P. 400.
For the reasons stated the judgment of the lower court is reversed and the cause remanded to the lower court for a new trial.
ADAIR, C.J., and BOTTOMLY, J., concur.
ANGSTMAN, Justice (dissenting).
I think the court did not err in permitting proof that defendant admited he committed another act of rape upon another girl about a month prior to the act charged in the information under circumstances very similar to those shown in the act charged. I concede the general rule to be as stated in the majority opinion, but I think this case is ruled by a well established exception to the general rule.
The record shows that defendant and his companion, defendant Schneider, met the prosecutrix in a barroom. They bought her some drinks. They persuaded her to get into their automobile on the promise that they would take her to a town where she desired to go to apply for a position as a singer. They took her on a country road and after defendant's companion had first raped her and reduced her to an hysterical condition, defendant took over and committed an act of intercourse with her without her consent.
The other act with the other girl was committed under strikingly similar circumstances. It occurred one month earlier. The events that led to that act were these: This defendant, his confederate Schneider, and two other men struck up a conversation with a girl in a barroom. They offered her a ride home. They drove her to an isolated location. Defendant and two of the other men left the car. The one man left in the car raped the girl. After he had done so, one of the others had intercourse with her and then defendant, finding the girl limp in the front seat of the car had intercourse with her and did not know whether she was conscious at the time.
I think the evidence relating to the prior offense was admissible to show the scheme, design, plan, pattern and course of action of the defendant, and hence comes within an exception to the general rule.
This case is practically the same as that of People v. Sullivan, Cal. App., 225 Pac. (2d) 645, 647, wherein the court said: "The testimony of B.R. concerning the other offense was properly admitted. Appellant's conduct upon that occasion bore such similarity in significant respects to his conduct in connection with the crime charged herein as to indicate a general plan and that his conduct was directed by design. It was admissible for precisely the same reason that the testimony of R.W. concerning the offense herein charged was deemed admissible upon the trial of appellant for the offense concerning which B.R. testified herein, in People v. Sullivan, 96 Cal. App. (2d) 742, 216 Pac. (2d) 558." Other cases supporting this view are the following: Suber v. State, 176 Ga. 525, 168 S.E. 585; Taylor v. State, 55 Ariz. 13, 97 Pac. (2d) 543; State v. Jenks, 126 Kan. 493, 268 P. 850, citing State v. Stitz, 111 Kan. 275, 206 P. 910 and State v. Bisagno, 121 Kan. 186, 246 P. 1001; People v. Cosby, 137 Cal. App. 332, 31 Pac. (2d) 218; People v. Cassandras, 83 Cal. App. (2d) 272, 188 Pac. (2d) 546; State v. Shtemme, 133 Minn. 184, 158 N.W. 48; State v. Cupit, 189 La. 509, 179 So. 837; Note in 167 A.L.R. 594; 1 Wharton, Criminal Evidence, 11th Ed., *736 sec. 252, p. 298; II Wigmore, Evidence, 3rd Ed., sec. 357, p. 265, where the author points out that such evidence may carry great significance as a specific design or plan of rape and said, "Courts have shown altogether too much hesitation in receiving such evidence." And when a defendant is charged with a sex offense the law is more liberal in admitting proof of similar sex offenses than in admitting evidence of similar offenses when a defendant is charged with a non-sexual crime. Commonwealth v. Kline, 361 Pa. 434, 65 A. (2d) 348.
In Bracey v. United States, 79 U.S. App. D.C. 23, 142 F. (2d) 85, 88, the court pointed out that in trials for sexual offenses, evidence is admissible concerning acts of intercourse between the accused and prosecutrix prior to the specific act upon which the defendant was being tried. The court pointed out that the District of Columbia had not decided whether evidence would be admissible that defendant had committed sex offenses upon other victims than the one named in the complaint. The court however said: "Logically the exception would seem to include such other offenses. The emotional predisposition or passion involved in raping one little girl would seem to be the same as that involved in raping another. Evidence of such a crime committed upon one little girl shows a disposition to commit the same crime upon another, and the probability that the emotional predisposition or passion will continue is as great in one case as the other. The better reasoned cases in other jurisdictions also support the admission of such evidence, within the exception to the general rule."
The court however reserved ruling on the point until it was briefed and argued in another case, since the testimony in question in that case was admissible on a different theory and for a different purpose. The court however indicated clearly that both reason and authority support the view that such evidence is admissible.
We have repeatedly held that evidence is admissible to show that defendant has committed other acts of rape of prosecutrix before or after the commission of the act charged. State v. Peres, 27 Mont. 358, 71 P. 162; State v. Vinn, 50 Mont. 27, 144 P. 773; State v. Harris, 51 Mont. 496, 154 P. 198; State v. Keeler, 52 Mont. 205, 156 P. 1080, L.R.A. 1916E, 472, Ann. Cas. 1917E, 619.
Likewise it is well settled in this state that evidence of other crimes similar to that charged and committed at about the same time may be shown for the purpose of showing intent, plan, scheme, pattern, or course of action on the part of the accused. State v. Pippi, 59 Mont. 116, 195 P. 556; State v. Cesar, 72 Mont. 252, 232 P. 1109; State v. Hughes, 76 Mont. 421, 246 P. 959; State v. Simanton, 100 Mont. 292, 49 Pac. (2d) 981; State v. Simpson, 109 Mont. 198, 95 Pac. (2d) 761; State v. Knox, 119 Mont. 449, 175 Pac. (2d) 774. In the last cited case former cases were modified so far as they hold that evidence of other offenses is admissible to show intent in a larceny case, but the rule still applies when the evidence of the other offenses shows design, plan or system of operations.
I think the court was right in permitting the evidence complained of to be received. The court, it should be noted, properly restricted the purpose of the evidence by an instruction to the jury.
I disagree also with the majority opinion so far as it leaves the impression that the court did not grant the motion requiring the state to elect which of the offenses committed against the prosecuting witness it would rely on for a conviction. The record shows that an election was made sufficient to satisfy counsel then representing defendant, being counsel other than those representing him on the appeal. The record shows the following:
"Mr. Felt: If the court please, while this witness is on the stand the witness George Schneider, he being one of the codefendants in this case to be tried for this offense I think it is proper at this time to require the State to elect which act disclosed by the evidence is the basis for this prosecution.
"Mr. Sande: I think the evidence particularly shows the act being charged with.
"Mr. Collins: There is only one act for each of the defendants. No choice is to be made.
*737 "The Court: As counsel has pointed out, the only one that could possibly be proved with reference to this defendant, he would be charged with.
"Mr. Felt: Well, I do not care to be technical about it, but I want it definitely understood that it is the offense, or the act, committed by John Sauter rather than the act committed by George Schneider.
"The Court: Intent been pleaded?
"Mr. Felt: That has been done. I have looked into that.
"The Court: Well, I
"Mr. Felt: I do not care to discuss
"Mr. Collins: There is only one crime, the crime of rape, whichever act it was. We do not have to choose between them. There was only one crime committed, the crime of rape.
"The Court: By this particular defendant?
"Mr. Collins: Yes, this defendant.
"The Court: Very well.
"Mr. Collins: Which would apply to the whole thing.
"The Court: That is what
"Mr. Felt: That is sufficient."
I think the jury understood what charge the state relied on as did also defendant and his counsel.
In my opinion the judgment should be affirmed.
METCALF, Justice.
I concur in the foregoing dissenting opinion of Mr. Justice ANGSTMAN. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1380438/ | 104 Cal. App. 2d 771 (1951)
232 P.2d 510
PHALANX AIR FREIGHT, INC. (a Corporation), Respondent,
v.
NATIONAL SKYWAY FREIGHT CORPORATION (a Corporation), Appellant.
Docket No. 14447.
Court of Appeals of California, First District, Division Two.
June 15, 1951.
*772 Burns & McKeever and James E. Burns for Appellant.
Dudley Harkleroad and Rudolph J. Scholz for Respondent.
DOOLING, J.
Plaintiff had judgment against defendant for damages for breach of contract. Defendant was operating airplanes as an uncertified carrier, i.e., it was not authorized to hold itself out as a common carrier but was authorized only to operate as a contract carrier. Being thus unable to solicit freight in less than plane-load shipments defendant arranged with plaintiff to engage in the business of freight forwarding, whereby plaintiff would enter into contracts with individual shippers for the shipment by air of less than plane-load lots and after combining such individual shipments into plane-load lots forward them by defendant's planes. Pursuant to this arrangement plaintiff engaged in the business of freight forwarding in San Francisco using the facilities of defendant for the air transportation.
On November 15, 1946, the parties reduced their contract to writing and it is for the breach of this written contract that plaintiff recovered, based on the fact that on January 10, 1947, defendant ceased its operations by air to and from San Francisco.
[1] On this appeal defendant argues that the written contract did not bind it to maintain air operations to and from *773 San Francisco and that the contract was illusory because of lack of mutuality. By the terms of the writing defendant bound itself "to transport said shipments for Forwarder (plaintiff), all upon and subject to and in accordance with provisions set forth in this contract.... Air Carrier (defendant) shall load said merchandise on the airplanes of Air Carrier at the times and at the originating airports mutually agreed upon by the parties." Attached to the agreement as an exhibit was a schedule of rates which included rates "San Francisco and New York" and "San Francisco and Chicago." The evidence further showed that both before and after the execution of this writing plaintiff's business with defendant was in San Francisco. The conduct of the parties fully supports the finding that the San Francisco airport was an "originating airport mutually agreed upon by the parties" within the meaning of that language as used in the contract. It is hornbook law that a contract is to be construed to give it a reasonable effect (Civ. Code, § 1643; 6 Cal.Jur., Contracts, § 169, p. 271) and any other construction of the contract here in question would do violence to this salutary rule.
[2] The contract contained a provision making it terminable by plaintiff "at any time by giving Air Carrier at least thirty (30) days notice." This did not render the contract illusory as contended by defendant. While a provision for termination by one party at will has that effect a provision for termination after notice for a fixed period does not. (Brawley v. Crosby etc. Foundation, Inc., 73 Cal. App. 2d 103, 113 et seq. [166 P.2d 392]; 1 Williston on Contracts, rev. ed., § 105, p. 365; 17 C.J.S., Contracts, § 100(g), p. 453.) Plaintiff bound itself to ship by defendant's planes "all freight over which it has control" and it was bound to do this until notice of termination and for thirty days thereafter. It thus agreed to confer a benefit and suffer a prejudice which afforded consideration for defendant's promises to it. (Civ. Code, § 1605.)
[3] By paragraph eleventh of the writing: "The rates which are enumerated on Schedule A and the volume guaranteed by Forwarder will be renegotiated monthly; but this renegotiation does not affect any provision set forth in this contract." Defendant argues that "it is clear that if no rate or volume guarantees were negotiated for a specific point, as none were negotiated for San Francisco after January, 1947, plaintiff cannot recover for any damages purported (sic) caused by defendant's termination of the instant contract, *774 since, in effect, we have here a contract which was to be renegotiated monthly and no renegotiations having occurred no binding contract existed for subsequent months."
We were impressed with this argument of counsel for appellant and made it the basis of our first opinion in this case in which we ordered the judgment reversed. On rehearing, however, we are convinced from an examination of the record that by reason of the conduct of counsel in the trial court this question is not open to the appellant on this appeal. It seems necessary to quote rather extensively from the reporter's transcript to make clear the position there taken by appellant's counsel. During the cross-examination of plaintiff's only witness the following occurred:
"Q. They didn't enter into a new contract every month with you? A. No.
"Q. They just sent you a new sheet with the new rates on it, did they not? A. That's right.
"Q. And they asked you to select from those sheets the volume by weight you thought you would tender to them for the month, is that so? A. That's right.
"Q. So the contract was signed November the 16th, (sic) and that is the only contract you entered into ...
"THE WITNESS: That was the rider which you call your supplemental month to month contract.
"MR. BURNS: Q. Rider, yes, but not contract. Will you stipulate, Mr. Harkleroad, there was only one contract and it was entered into on November 15, 1946? A. Well, there was a preliminary negotiation for the contract, which we have not raised any question on. So, with the exception of that.
"MR. HARKLEROAD: We will stipulate that the November 15, 1946 contract constitutes the only contract we are relying on, subject to the supplemental monthly statements. Is that satisfactory?
"MR. BURNS: Yes. I think it is the only contract you can rely on, because it is the only one you have sued for breach of. Q. So the testimony will be straight in the record, there is only the one contract and that sets forth the terms under which you agreed to act as freight forwarder, and those terms were substantially in accordance with your agreement with the Flying Tiger line? A. Yes." (Italics ours.)
In view of counsel's insistence that the November 15 contract was the only contract between the parties and that the parties did not enter into a new contract every month, his rejection of the suggestion of the witness that there was a *775 "supplemental month to month contract" and finally his express request for a stipulation, which he received, that "there was only one contract and it was entered into on November 15, 1946" appellant is bound by the theory of the case, not only consented to but persistently insisted upon by its counsel at the trial. It is elementary law in the appellate procedure of this state that "the theory upon which a case is tried in the court below must be adhered to on appeal." (2 Cal. Jur. 237.)
[4] The contention that plaintiff cannot in any event recover because its operations were illegal under the Civil Aeronautics Act was not urged in the trial court and depends on questions of fact which are raised for the first time on appeal. For this reason we will not consider that question. (Levitt v. Glenn L. Clark & Co., 91 Cal. App. 2d 662 [205 P.2d 747]; Svistunoff v. Svistunoff, 94 Cal. App. 2d 651 [211 P.2d 352]; Gelb v. Benjamin, 78 Cal. App. 2d 881 [178 P.2d 476]; Grimes v. Nicholson, 71 Cal. App. 2d 538 [162 P.2d 934].)
Damages were awarded by the court for the following items in the following amounts: Sales literature, tariffs, placards, notices to the trade and calling cards, office stationery, invoices and envelopes containing reference to defendant as the carrier of the freight, rendered valueless by defendant's action $378.40; advertising as defendant's forwarder in newspapers and trade journals, likewise rendered valueless $500; anticipated gross profit lost $2,500; expenses of operation subsequent to breach while plaintiff was unable to earn revenue $2,750; purchase of new stationery eliminating reference to defendant $345; cost of advertising and notices to trade with reference to cessation of operations through defendant $175; loss of good will $3,000.
[5] It is obvious that plaintiff should not recover $2,500 for loss of anticipated gross profit and $2,750 for expenses of operation of the business during the period when that gross profit would have been received. The loss of gross profit is a proper item of damage since plaintiffs are out of pocket that amount through the defendant's breach, but their expenses of operating the business would as well have continued if the contract had not been breached. [6] It is equally clear that while loss of stationery, etc., bearing reference to defendant as the carrier is a direct damage caused by the breach, plaintiff cannot have both the cost of stationery rendered useless and the cost of stationery to replace it. It must have stationery if it continues in business whether it represents defendant or *776 some other carrier. The items of $2,750 cost of operation and $345 for new stationery, totalling $3,095, should not have been allowed.
[7, 8] Appellant attacks the allowance of any damage except loss of net profit, citing section 3358 Civil Code: "no person can recover a greater amount in damages for the breach of an obligation than he could have gained by the full performance thereof on both sides." The primary measure for breach of contract is section 3300 Civil Code: "For the breach of an obligation arising from contract, the measure of damages ... is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom."
The two sections must be read together. As a result of the breach plaintiff is out of pocket $2,500 anticipated gross profit, $3,000 loss of good will, $500 advertising rendered valueless, $378.40 stationery, etc., rendered valueless and $175 necessarily expended in advertising the cessation of its business as a forwarder for defendant. If the contract had been fully performed plaintiff would "have gained" (§ 3358) the value of all of these items. It would have gained $2,500 gross profit which would have offset its expense of operation by that amount; it would have gained the useful value of the advertising and stationery, etc., which were rendered valueless; it would have gained the benefit of its good will which was damaged to the extent of $3,000; and it would have gained the $175 which it was compelled to expend in advertising that it no longer represented defendant. (Cf. Henderson v. Oakes-Waterman, Builders, 44 Cal. App. 2d 615 [112 P.2d 662].)
The Supreme Court said in Zinn v. Ex-Cell-O Corp., 24 Cal. 2d 290, 297-298 [149 P.2d 177]: "One whose wrongful conduct has rendered difficult the ascertainment of damages cannot escape liability because the damages could not be measured with exactness."
Future profits and the value of the good will of a recently established business which has not yet begun to operate at a net profit may be difficult to estimate. The difficulty is not of plaintiff's, but of defendant's making. "`In determining the amount of damages ... the jury was entitled to estimate as best they could from the evidence before them ... the good will.... Undoubtedly, in cases like this, entire accuracy is impossible, and some difficulty is encountered in accurately assessing the damages ... but it must not be forgotten that *777 such difficulty would have been avoided had appellant taken care that no occasion should arise through his tort requiring such assessing of damages.'" (Johnson v. Snyder, 99 Cal. App. 2d 86, 89-90 [221 P.2d 164], quoting from Schuler v. Bordelon, 78 Cal. App. 2d 581, 586 [177 P.2d 959].)
We conclude that the judgment should be reduced from $6,628.40 to $3,533.40. The judgment is so modified and as modified is affirmed; each party to bear its own costs on appeal.
Nourse, P.J., and Goodell, J., concurred.
Appellant's petition for a hearing by the Supreme Court was denied August 9, 1951. Schauer, J., voted for a hearing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/730283/ | 101 F.3d 692
St. Paul Fire and Marine Insurance Company a/s/o Braha Industries, Inc.v.Polaris Corporation d/b/a Hageman Roofing
NO. 95-5879
United States Court of Appeals,Third Circuit.
Oct 11, 1996
Appeal From: D.N.J., No. 94-cv-01823,
Barry, J.
1
AFFIRMED. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2266733/ | 269 A.2d 244 (1970)
STATE of Delaware
v.
Iven O. FISCHER.
STATE of Delaware
v.
Hubert R. GOLDSBERRY.
Superior Court of Delaware, New Castle.
July 31, 1970.
Francis A. Reardon, State Prosecutor, for the State.
Stephen B. Potter, Wilmington, for defendants.
*245 OPINION ON DEFENDANTS' MOTIONS TO DISMISS INDICTMENTS; MOTIONS WILL BE GRANTED
QUILLEN, Judge.
Both defendants have moved to dismiss the indictments because the case was finally and previously disposed of in Municipal Court and because of a denial of a speedy trial. At oral argument, it was agreed by counsel that there was no dispute of facts and the Court could decide the case on the factual record made by the Court's file including several affidavits.
The defendant Fischer was arrested on January 19, 1970, for sale and disposition of lottery tickets. Prosecution was commenced in the Municipal Court where bail was posted. The case was put on the trial list for January 21, 1970. On January 21, 1970, Fischer appeared with counsel in Municipal Court, pleaded not guilty, and asked for trial. The case was rescheduled to January 22, 1970, when Fischer again with counsel requested trial. The case was then rescheduled to February 26, 1970. Fischer appeared with counsel and demanded trial on that date as well. The case was nolle prossed by the State through a City Prosecutor. By Municipal Court order, money seized from Fischer was returned to him the same date. On May 5, 1970, the State reinstituted prosecution on the same charge in the Superior Court by Grand Jury indictment. There had been Grand Jury meetings in March and April. A Rule 9. Del.C.Ann., summons issued for Fischer and, on its return on May 15, 1970, Fischer was permitted to sign his own $500.00 bond. On May 15, 1970, the defendant Fischer through counsel moved to dismiss the indictment.
The defendant Goldsberry was arrested on January 20, 1970, for sale and disposition of lottery tickets. Prosecution was commenced in the Municipal Court where bail was posted. The case was put on the trial list for January 21, 1970. Goldsberry appeared that day and asked for trial. Due to the absence of the prosecution witnesses, the case was continued to February 26, 1970. Goldsberry appeared on that date and demanded trial. The case was nolle prossed by the State through a City Prosecutor. By Municipal Court order, the money seized from Goldsberry was returned to him the same date. On May 5, 1970, the State reinstituted prosecution on the same charge in Superior Court by Grand Jury indictment. A Rule 9 Summons issued for Goldsberry and, on its return on May 15, 1970, Goldsberry was permitted to sign his own $500.00 bond. On May 15, 1970, the defendant Goldsberry through counsel moved to dismiss the indictment.
The State notes that on February 16, 1970, a police recruit, who had been active in an investigation, which included these cases, received information by telephone which relayed to the recruit an overheard threat to the recruit or his family. The State has not related the threat to these particular defendants but the incident was evidently tied to their cases. For this reason a member of the City police requested the City Prosecutor to enter a nolle prosequi in the two pending cases. The police incident report concerning this alleged threat was dated February 16, 1970. After subsequent review by superior police officials, the City Solicitor's Office requested the Department of Justice to reinstitute the charges by indictment. This was accomplished in May.
It seems clear that there is nothing to bar the State from indicting in the Superior *246 Court after nolle prossing the case in Municipal Court. State v. Dennington, 1 Storey 322, 145 A.2d 80 (Super.Ct.1958). The defendants particularly argue that any reinstitution of a criminal charge must be done during the same Term of Court. In this regard, no Delaware case has been cited which places any significance on the formal and arbitrary concept of Court Terms and this is certainly not the time to introduce the term concept in this area of the law since the whole significance of Court terms is gradually disappearing. This is especially true since different Courts have different terms timewise and since the term concept has no necessary relation to the actual time involved between the nolle prosequi and the reinstitution of the charge.
Moreover, the case of Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967) has no relevance to Delaware. Under North Carolina law, a nolle prosequi with leave to reinstate permitted the State to prosecute at any time for an indefinite period, the statute of limitations being tolled. Although not necessary to the decision here, it appears clear that a nolle prossed Municipal Court case is terminated and in effect a nullity insofar as tolling the statute of limitations is concerned. A subsequent indictment would have to be within the statutory period.
Turning to speedy trial concepts, there are two related doctrines. The first is constitutional, having the sanction of constitutional mandate under the Fourteenth Amendment of the Federal Constitution, which now incorporates the Federal Sixth Amendment, and under Article 1, Section 7 of the Delaware Constitution, Del.C.Ann. The second is by rule, whereby the Court under Rule 48(b) may in its discretion dismiss an indictment if there is "unnecessary delay" in bringing the defendant to trial. It is clear that the later discretionary power is not circumscribed by Sixth Amendment concepts. 3 Wright, Federal Practice and Procedure, § 814.
It is not necessary to reach the constitutional question in this case, but the Court notes in passing that only six months have elapsed since the arrest and it seems highly unlikely that any constitutional violation has occurred.
But the time factor coupled with the complete interruption of prosecution for over two months and the annoyance of switching courts does give the Court pause. The delay here was over the repeated requests of the defendants for trial and solely the result of the deliberate choice of the prosecution. This fact is not altered by the suspicious circumstances relied on by the State which, at least to my mind, merely support the necessity of a prompt disposition by trial.
The circumstances are further aggravated by the history of judicial comments concerning the "transfer case" procedure. One possible abuse was noted in the Dennington case and the Court's power to intervene was also recognized. More recently, in State v. Pepe, 1245 Criminal Action 1967 (December 29, 1967), Judge Christie took great pains to recognize the shortcomings of the transfer procedure. That decision must be read in its entirety to capture its full design. Independent of these decisions, the transfer practice has been repeatedly condemned by the Judges of this Court.
It is perhaps true that the defendants here have not established prejudice or harrassment in the traditional sense of those words. No missing witnesses or loss of evidence is cited. And, indeed, for the purpose of preventing unnecessary interference with individual liberty, this Court has instituted a policy of issuing summons instead of arrest warrants where possible in transfer cases. But the defendants have had to go to Court on numerous occasions, retain a lawyer for two proceedings, and *247 supply a bond in two Courts. They have been the subject of additional publicity due to the reinstitution of the charges by indictment. They were charged as criminals after they, for good reason, believed the State had dropped all charges against them. In strictly a time sense, their trial has not been delayed for a long period. But, the delay has been over their repeated request for trial and at the deliberate choice of the prosecuting authorities for no valid reason. It is not a case where there are difficulties with the discovery or availability of evidence. Moreover, it is not a case of unavailability of prosecutors, crowded dockets, inadvertence, or even prosecution negligence. It is a case of conscious prosecution choice which gives the impression, perhaps unwarranted, of unfair manipulation of the criminal process.
We live in a time when the processes of our Courts are under constant public scrutiny and I think this is fortunate. The public feels, and I think rightly so, that the judicial system has at times both overprotected the criminal and failed to recognize legitimate interests of individuals accused of crime. We must develop a system which is just as well as firm in its protection of the overall public interest.
In my opinion, in view of all of the circumstances in these cases, and each circumstance is necessary to support the decision, it is just for the State of Delaware to delay unnecessarily the trial of these defendants in the manner in which it did. The State of Delaware should not be permitted by criminal prosecution to treat Delaware citizens as the two defendants in this case were treated. Delaware, at least, should strive to do better. I think this Court's discretion in this instance should be exercised to that end. Compare State v. Wahl, Del.Supr., 263 A.2d 297 (1970).
Defense counsel should present, on notice to, or approval as to form by, the prosecutor, an order dismissing the two indictments pursuant to Rule 48(b). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266750/ | 57 N.J. 71 (1970)
269 A.2d 529
IN RE STATE OF NEW JERSEY IN THE INTEREST OF A.R., JUVENILE-APPELLANT.
The Supreme Court of New Jersey.
Argued September 14, 1970.
Decided October 13, 1970.
*72 Mr. John M. Cannel, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).
Mr. Archibald Kreiger, Assistant Prosecutor, argued the cause for respondent (Mr. George A. Cluff, Assistant Prosecutor, on the brief; Mr. Joseph D.J. Gourley, Passaic County Prosecutor, attorney).
PER CURIAM.
The complaint against this 14-year-old juvenile alleged that she and five others were apprehended sniffing Carbona fluid. The child was adjudged a delinquent and the Appellate Division affirmed. She appealed to us as of right, claiming a substantial constitutional issue within R. 2:2-1(a)(1).
The constitutional challenge is that the complaint failed to give due notice of the charge because there was no reference in the complaint to the subsection of N.J.S.A. 2A:4-14 offended by the conduct alleged. The juvenile sought to raise the issue by a motion to dismiss the complaint.
The criticism is frivolous. Counsel could have had no difficulty in understanding the charge and preparing to meet it. The factual allegations were precise. The charge came easily within subsection "m" of N.J.S.A. 2A:4-14 which speaks of "Deportment endangering the morals, health or general welfare of said child." That the conduct might also come within other subsections could hardly have hindered counsel in his preparation or at the hearing, for a *73 violation of one subsection suffices for an adjudication of delinquency and the consequences to the juvenile do not depend upon whether the conduct charged might also violate another subsection.
Complaints in juvenile matters are frequently prepared by persons who are not members of the bar. The purpose of the complaint is to communicate, and if that end is met, due process is satisfied even though the allegations might have been more artistically phrased. Uncertainties may be readily resolved by a demand for specifics, and the case should be rare in which a court is burdened with such a problem, for counsel can easily resolve it if they remain mindful of the object of the juvenile proceeding.
At the time these proceedings were instituted, the rules required only that the complaint be "a written statement of the essential facts upon which the allegation of delinquent conduct of a juvenile is founded." R.R. 6:8-1. The present rule, R. 5:8-1(a), provides:
"* * * The complaint in a juvenile matter * * * shall be a written statement of the essential facts upon which the charge of juvenile delinquency is founded * * *. If the delinquency charged would constitute a substantive offense if committed by an adult, the laws so violated by the juvenile shall be specified in the complaint; but failure so to specify or error in so specifying is not ground for dismissal of the complaint if the juvenile has not been misled thereby to his prejudice."
Although the rule speaks of a statutory citation only if the conduct would be a substantive offense if committed by an adult, the rule of course does not foreclose a citation of a specific provision of the juvenile statute. Such a reference should ordinarily be made, but the end sought is fair notice and neither a failure to cite nor a miscitation will be fatal if the juvenile is not misled to his prejudice.
As we have said, there was no basis for the motion to dismiss in this case. The constitutional question is strained. The appeal could well be dismissed for want of a substantial constitutional issue, R. 2:2-1(a)(1), but since we have dealt *74 with the issue, the appeal will be disposed of by an affirmance of the judgment.
For affirmance Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR, HALL, SCHETTINO and HANEMAN 7.
For reversal None. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266755/ | 269 A.2d 437 (1970)
Carolyn DANIELS, Petitioner,
v.
Winifred G. THOMPSON, Director, District of Columbia Department of Public Welfare, Respondent.
No. 5195.
District of Columbia Court of Appeals.
Argued May 19, 1970.
Decided October 8, 1970.
Bruce J. Terris, Washington, D. C., for petitioner.
Richard W. Barton, Asst. Corp. Counsel, with whom Charles T. Duncan, Corp. Counsel, Hubert B. Pair, Principal Asst. Corp. Counsel, and Ted D. Kuemmerling, Asst. Corp. Counsel, were on the brief, for respondent.
Before HOOD, Chief Judge, and FICKLING and NEBEKER, Associate Judges.
*438 HOOD, Chief Judge:
Petitioner is a 17-year-old mother who is currently receiving public assistance under Aid to Families with Dependent Children (AFDC). She is a full-time student in high school and is also employed in a "stay-in-school" program. The "home" in this case comprises only the petitioner and her son.
After originally being denied any AFDC benefits, petitioner was afforded a hearing on the merits of her claim. Respondent, the Director of the District of Columbia Department of Public Welfare, issued an order retroactively applying the AFDC program to petitioner. In determining the amount of benefits to be paid petitioner, a certain portion of her income was counted as a resource available to the family unit to meet current needs.[1] Petitioner claims that it was error not to disregard all of her income in determining the amount of benefits to which she and her son are entitled.
Our review of respondent's order is based on D.C.Code 1967, § 1-1510 (Supp. III, 1970), a section of the District of Columbia Administrative Procedure Act. We are presented solely with a question of law; i. e., an interpretation of relevant statutory and regulatory provisions and the application of such to this review.
The District of Columbia AFDC program, D.C.Code 1967, § 3-202 et seq., is authorized by the Social Security Act of 1935, as amended, 42 U.S.C. § 601 et seq. (Supp. IV, 1968). The District, through its Welfare Department, participates in this "scheme of cooperative federalism." King v. Smith, 392 U.S. 309, 316, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968). The Welfare Department has promulgated a "Handbook of Public Assistance Policies and Procedures" (HPA-2) to administer the program.
Our review in the present case concerns the interpretation of one section in HPA-2.[2] Petitioner urges that, by any reading of RS 3.2 III A (1), she is entitled to a total disregard of her earned income. The problem with petitioner's argument is that she reads this one provision in a total vacuum. We cannot accept this approach. Any valid interpretation of this provision must be made in light of both the underlying Social Security Act and other regulations in HPA-2.
The income disregard regulation in question is clearly founded on 42 U.S.C. § 602 (a).[3] Under this section, petitioner is allowed *439 a $30 and one-third disregard (which she is currently receiving) and not a total exclusion of her income. This conclusion is further compelled when the definition of the term "dependent child" in the Social Security Act[4] is read into the income disregard section.
Petitioner argues, however, that the "plain language" of the District of Columbia regulation cannot be altered to fit the language in the Social Security Act; that the term "child"[5] cannot be interpreted to mean "dependent child". Petitioner's argument is twofold: (1) that the Social Security Act and the Supreme Court's interpretation of that Act clearly show that the District has the right and responsibility to set the "standard of need" and the "level of benefits" applicable to its welfare recipients, and that the amount of income disregarded is a part of that function; and (2) that, even if the Department of Welfare regulation is substantially different from the Federal Act, it complies with the overall purpose of the Social Security Act.
As to the first argument, there is no doubt that in establishing the "standard of need" and determining the "level of benefits" to be paid, "Congress has always left to the States a great deal of discretion." Rosado v. Wyman, 397 U.S. 397, 408, 90 S.Ct. 1207, 1216, 25 L.Ed.2d 442 (1970).[6] It is equally as obvious that the States' or District's discretion in this regard is limited to fixing an amount needed by variously composed recipient units and to determining how much the State or District of Columbia is able to pay. See Rosado v. Wyman, supra; Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); see also King v. *440 Smith, supra.[7] Thus, at least in its role of determining standard of need and level of benefits, a determination of what income is to be regarded and what disregarded as a resource available to the recipient unit is not within the District's discretion.
Petitioner urges, nevertheless, that the District can and has in fact broadened the language in 42 U.S.C. § 606(a),[8] and that such action complies with the overall spirit of the AFDC program. In the initial section of the Act dealing with this program, 42 U.S.C. § 601, two of the ultimate goals are set forth as: "to help maintain and strengthen family life and to help such parents or relatives to attain or retain capability for the maximum self-support and personal independence consistent with the maintenance of continuing parental care and protection".[9]
We cannot dispute petitioner's assertion that her actions, both staying in school and working part time, are the optimum course she can take to most expeditiously remove herself and her son from the welfare rolls. And, Congress has provided petitioner with some incentive to take such a course.[10] But, Congress and not the District of Columbia has determined the precise method by which this incentive operates. The method employed allows a total income disregard to certain dependent children, while a partial disregard is allowed to others in the recipient unit. "Consequently, to the extent that Congress has dictated the terms and conditions of AFDC payments, the [District is] required to administer the program accordingly." Williford v. Laupheimer, 311 F.Supp. 720, 722 (E.D.Pa.1969) (citations omitted).[11]
The petitioner is a full-time student and, under District of Columbia law, she is a child. However, under the structure of the AFDC program she is a parent or "welfare mother", especially when viewed within the context of this welfare recipient unit (petitioner and her dependent son); and, she certainly is not a "dependent child", by definition.[12] The distinction to be made in determining income disregard in the present case is between that incentive afforded a parent and that afforded a dependent child; not between that afforded a parent and all children.[13] Thus, petitioner comes within the provisions of 42 U.S.C. § 602(a) (8) (A) (ii) and HPA-2, RS 3.2 III A (4), entitling her to a $30 and one-third disregard, and not within the provisions of 42 U.S.C. § 602(a) (8) (A) (i) and HPA-2, RS 3.2 III A (1), entitling her to a total disregard.[14]
We are not faced, in the present review, with a regulation or interpretation which is even claimed to be contrary to the Social Security Act,[15] nor are we faced *441 with any claim of constitutional deprivation.[16] What we are faced with is an interpretation of a regulation by the Welfare Department which complies with the precise terms and structure of the underlying Federal Statute.
There is no error, and the order of the Director of the District of Columbia Department of Public Welfare is
Affirmed.
NOTES
[1] The first $30 of petitioner's income and one-third of the remainder were disregarded, and the amount left was counted as an available resource.
[2] RS 3.2 III provides in pertinent part:
A. Recipients
In determining the need of families who are receiving AFDC:
1. Disregard all of the monthly earned income of a child who is a full-time student, or is a part-time student provided he is not employed full time.
* * * * *
4. Disregard the first $30 and one-third of the remainder of the total gross monthly income earned by the family, then subtract the amount of mandatory deductions. The remainder is net income to be considered a resource in determining need of the assistance unit. Total earned family income means income earned by the parent or relative whose requirements are included in the assistance payment and of children receiving AFDC not included in items 1 and 2 [under the age of 14 years] above.
This formula for disregarding earned income is also applied to the earned income of children under the age of 21 who are living in the home and not included in the assistance payment. * * *
No challenge has been made to the validity of the promulgation of the regulation in question. See Robinson v. Washington, 302 F.Supp. 842 (D.D.C.1968).
[3] The statute reads in pertinent part:
(a) A Statute plan for aid and services to needy families with children must * * * (7) except as may be otherwise provided in clause (8), provide that the State agency shall, in determining need, take into consideration any other income and resources of any child or relative claiming aid to families with dependent children, or of any other individual (living in the same home as such child and relative) whose needs the State determines should be considered in determining the need of the child or relative claiming such aid, as well as any expenses reasonably attributable to the earning of any such income; (8) provide that, in making the determination under clause (7), the State agency
(A) shall with respect to any month disregard
(i) all of the earned income of each dependent child receiving aid to families with dependent children who is (as determined by the State in accordance with standards prescribed by the Secretary) a full-time student or part-time student who is not a full-time employee attending a school, college, or university, or a course of vocational or technical training designed to fit him for gainful employment, and
(ii) in the case of earned income of a dependent child not included under clause (i), a relative receiving such aid, and any other individual (living in the same home as such relative and child) whose needs are taken into account in making such determination, the first $30 of the total of such earned income for such month plus one-third of the remainder of such income for such month. * * * (Emphasis supplied.)
[4] 42 U.S.C. § 606(a) provides:
The term "dependent child" means a needy child (1) who 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, and who is living with his father, mother, grandfather, grandmother, brother, sister, stepfather, stepmother, stepbrother, stepsister, uncle, aunt, first cousin, nephew, or niece, in a place of residence maintained by one or more of such relatives as his or their own home, and (2) who is (A) under the age of eighteen, or (B) under the age of twenty-one and (as determined by the State in accordance with standards prescribed by the Secretary) a student regularly attending a school, college, or university, or regularly attending a course of vocational or technical training designed to fit him for gainful employment. * * * (Emphasis supplied.)
[5] Under District of Columbia law, except as defined by statute, a child is anyone under 21 years of age. See, e. g., Koonin v. Hornsby, D.C.Mun.App., 140 A.2d 309 (1958).
[6] Citing King v. Smith, 392 U.S. 309, 318, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968).
[7] For the standard of need and level of benefits in the District of Columbia see HPA-2, RQ 1.0 et seq. (requirements); PT 1.0 et seq. (payments).
[8] See n. 3 supra.
[9] See also HPA-2, PA 1.0 I(2), which is to the same effect.
[10] 42 U.S.C. § 602(a) (8). See also S.Rep.No.744, 90th Cong., 1st Sess. (1967) contained in 1967 U.S.Code Cong. & Admin.News, pp. 2834, 2861, 2994-96.
[11] "As Mr. Justice Cardozo stated, speaking for the Court in Helvering v. Davis, 301 U.S. 619, 645, 57 S.Ct. 904, 81 L.Ed. 1307 (1937): `When [federal] money is spent to promote the general welfare, the concept of welfare or the opposite is shaped by Congress, not the states.'" Rosado v. Wyman, 397 U.S. 397, 423, 90 S.Ct. 1207, 1223, 25 L.Ed.2d 442 (1970) (citation omitted).
[12] See n. 4 supra.
[13] This result is compelled not only by the Social Security Act, but by a total reading of the District's welfare regulations. See, e. g., and compare HPA-2, RS 3.2 III A(4) with EL 8.1 I.
[14] See notes 1 & 2 supra.
[15] E. g., Lewis v. Martin, 397 U.S. 552, 90 S.Ct. 1282, 25 L.Ed.2d 561 (1970); Rosado v. Wyman, supra n. 11; King v. Smith, supra n. 6.
[16] E. g., Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266771/ | 259 Md. 232 (1970)
269 A.2d 593
WHEELER ET AL.
v.
UNSATISFIED CLAIM AND JUDGMENT FUND
[No. 22, September Term, 1970.]
Court of Appeals of Maryland.
Decided October 15, 1970.
*233 The cause was argued before HAMMOND, C.J., and BARNES, McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.
Thomas B. Yewell for appellants.
James T. Wharton, with whom were Francis B. Burch, Attorney General, William E. Brannan, Assistant Attorney General, and McCarthy & Wharton on the brief, for appellee.
McWILLIAMS, J., delivered the opinion of the Court.
Code, Art. 66 1/2, Sec. 154 (a) (1967 Repl. Vol.) requires one who intends to make a claim against the Unsatisfied Claim and Judgment Fund (Fund), "as a condition precedent" to his right thereafter to apply for payment from the Fund, to "give notice" to the Unsatisfied Claim and Judgment Fund Board (Board) of such intention within 180 days after the accident or "within 30 days" of receiving a disclaimer of liability from the insurer of the person who "caused him to suffer damages." The Board says it received no such notice from the appellants. They say they mailed a proper notice to the Board before the expiration of the 30 day period and that it makes no difference that the notice was not received by the Board. There is little if any dispute about what happened.
On 13 August 1966 the appellants were injured when the car in which they were riding was struck by a car owned by Williams and driven by Brady. Williams, at the time, was asleep on the rear seat. Suit was filed on 22 November 1966. On 16 January 1967 Williams' insurer notified the appellants that there was "no coverage under its policy contract with Williams for the defendant Brady." It suggested the appellants might "feel it advisable *234 to put the uninsured motorist fund on notice in this case." Appellants introduced a carbon copy of a letter dated 9 February 1967 the original of which they say was mailed on that date to the Board and which, it is conceded, might have been proper notice, had it been received by the Board. The letter was neither registered nor certified.
In September 1967 the appellants obtained a substantial verdict against both Williams and Brady. The ensuing judgment against Williams was reversed by this Court. Williams v. Wheeler, 252 Md. 75 (1969). Since Brady, a minor, was both uninsured and indigent, appellants sought payment from the Fund. The Fund opposed appellants' application claiming noncompliance with Sec. 154 (a) in respect of notice. The trial judge denied appellants' application.
It is true, as appellants point out, that the Maryland statute (1957) "was patterned after the earlier [1952] New Jersey law." Maddy v. Jones, 230 Md. 172, 176 (1962). Appellants are quite correct also in suggesting that "from time to time [we have] looked to the New Jersey decisions for enlightenment as to the meaning and effect of the [Maryland] Statute"; Unsatisfied Claim and Judgment Fund v. Hamilton, 256 Md. 56, 59 (1969); Goad v. Fisher, 255 Md. 131, 136 (1969); Unsatisfied Claim and Judgment Fund Board v. Holland, 241 Md. 294, 299 (1966); but it must be observed that we have declined to follow the New Jersey decisions whenever they seemed to us to be contrary to the plain and unambiguous language of the statute. Mullins v. Thorne, 254 Md. 434, 438 (1969); Mundey v. Unsatisfied Claim and Judgment Fund Board, 233 Md. 169, 173 (1963). Mindful of our occasional rapport with the New Jersey courts, appellants make much of Gervolino v. Porter, 75 N.J. Super. 246 (1962). Since they seem to lean upon it so heavily, we shall take a look at it.
The New Jersey statute requires the applicant to "give notice to the Board * * * within 90 [180 days in Maryland] days after the accident." The accident (in Gervolino) *235 happened on 25 December 1957; the notice was mailed to the Board on 25 March 1958; it was received at the office of the Board on 26 March 1958. We quote from the court's opinion:
"Some of the considerations pertinent in determining the question here presented were discussed in the recent decision of another part of this court in Szczesny v. Vasquez, 71 N.J. Super. 347 (App. Div. 1962). There the accident occurred July 31, 1957; plaintiffs' proofs purported to establish a mailing of the notice August 20, 1957; but when, on inquiry of the plaintiffs' attorney March 24, 1958 as to why he had received no acknowledgment of the filing of the claim, a search of the records of the Board was made, it indicated no notice was ever received there. The court dealt with the contention of the claimants that they were entitled to a presumption of receipt of the notice by the Board from evidence of its proper mailing. However, the court found the evidence of the fact of such mailing to lack probative force and therefore ruled against the plaintiffs. The strict holding of the case is thus compatible either with the legal hypothesis that mailing within the 90 days is adequate giving of notice (but not established to have been the fact) or that receipt of the notice by the Board within the 90 days is legally necessary (a fact not established by aid of the presumption of receipt of mail in ordinary course because the mailing itself was not satisfactorily proven). What the court would have decided had it been satisfied as a fact that the notice had been properly mailed within the period, as alleged, although in fact never received, is not indicated. The only clue afforded by the opinion is the court's distinguishment of Delaware Twp. v. Neeld, 52 N.J. Super. 63 (App. Div. 1958), on the ground that there the statute dealt with complaints *236 `made within' a certain number of days, implying a legislative intention to require a filing of the complaint. From this it may be inferred that the Szczesny court was not persuaded that the giving of notice required by the present statute necessarily called for its receipt by the Board." Id. at 248-49. (Last emphasis added.)
Appellants seem to extract much comfort from the concluding italicized language quoted above. But it is obvious dictum; indeed a more equivocal statement would be hard to concoct. Any doubt in this regard is dispelled by the following excerpt from the succeeding paragraph of the opinion:
"* * * The facts before us do not present, and we do not here decide, the question whether receipt of the notice by the Board at some time must at all events be established by the claimant in order for him to be deemed to have performed the statutory condition precedent. Here the notice was concededly received by the Board, and at a time sufficient to enable it to give due protection to the Fund. The State's interests in respect of the Fund were not prejudiced. See Giacobbe v. Gassert, supra (29 N.J., at p. 426). The question for our determination is simply whether the claimant has, on her part, timely complied with the legislative intent, as articulated by the language, and illuminated by the objects and purposes, of the act, that she give notice of the claim to the Board within 90 days after the accident, when she mailed such notice to the Board on the 90th day after the accident and it was in fact received." Id. at 249-50. (Emphasis added.)
The court concluded that the notice of the claim was "timely given." It should be observed, however, that in doing so, it said:
*237 "Weighing the possible disadvantages to the Board ensuing from a rule that the date of mailing, rather than of receipt, determines the timeliness of the notice, as against the potential harm to mailing claimants of the contrary rule, we conclude that the balance of policy considerations favors acceptance of the rule that the date of mailing controls." Id. at 250-51. (Emphasis added.)
Appellants rely also on Montgomery County Board of Education v. Glassman Construction Co., 245 Md. 192 (1967). As we see it, however, there is about Glassman much that distinguishes it from the case at bar. There the notice was mailed on either Friday, 25 October or Saturday, 26 October, and it was received on Monday, 28 October. The significance of these dates, other relevant facts, and the rationale of the Court's holding in this regard are clearly and succinctly set forth by Judge Oppenheimer, who delivered the Court's opinion:
"We find more difficult the question of whether, under the statute [Code, Art. 90, § 11 (1964 Cum. Supp.)], the contractor must receive notice within the 90 day period, or whether the notice is timely if it is mailed within that period by certified or registered mail. There are no Maryland cases on the subject. * * *."
* * *
"The statute provides that a claimant shall have a right of action upon the bond `upon giving written notice to the contractor within ninety (90) days from the date' the last of the labor was performed or the last of the material furnished or supplied. It does not state that the contractor must receive the notice within the 90 days. The notice `shall be served' by mailing it by registered or certified mail, postage prepaid. The appellees argue that if the Legislature had intended that the mailing of the letter is to be *238 sufficient to satisfy the requirement that written notice is to be given, the statute would have provided that the notice `shall be given' instead of `shall be served.' However, we think it at least equally logical that by the use of the phrase `shall be served' the Legislature intended that the notice should be regarded as legally served upon the contractor when it was mailed in the prescribed manner.
"We regard it as significant in the question of statutory construction that the manner in which the notice is to be mailed is carefully set forth. Not only must postage be prepaid, but ordinary mail is not sufficient; the notice must be sent by registered or certified mail. The Legislature has eliminated claims of alleged oral notice as fulfilling the 90 day requirement and has provided, in effect, that receipt of the written notice by the contractor is essential to prove the mailing. * * *." Id. at 201-202. (Emphasis added.)
It is at once apparent that Glassman deals with a statute the raison d'etre of which is somewhat different from § 154 (a) of Art. 66 1/2. Appellants seem to be enchanted by Judge Oppenheimer's observation that the statute "does not state that the contractor must receive the notice * * *." But he added the words "within the 90 days" which, we think, clearly connote the need for the receipt of the notice at some time. Indeed we find nothing in Glassman which might suggest that we ever considered, directly or indirectly, the concept that receipt of the notice was either unnecessary or unimportant. We have found no case so holding nor has any such case been brought to our attention.
The plaintiffs in Szczesny v. Vasquez, 71 N.J. Super. 347 (App. Div. 1962), discussed in Gervolino, supra, contended "that their proof of mailing notices of intention to the Unsatisfied Claim and Judgment Fund Board *239 raised a presumption of receipt which was not rebutted by the Board." The court referred to a general rule that, absent a legislative enactment or a contract provision respecting the method of giving notice "there is a presumption that mail matter correctly addressed, stamped and mailed was received by the party to whom it was addressed, which presumption is rebuttable and may be overcome by evidence that the notice was never in fact received." While the court found the plaintiffs' evidence of mailing to be insufficient to raise a presumption that the notice had been received, probably it can be inferred from what was said that in a proper case the presumption would be allowed by the New Jersey courts. The appellants in the case at bar do not claim the presumption; they argue that proof of mailing is proof of notice. Perhaps the reasons they have looked askance at claiming the presumption are that their proof of mailing is somewhat shaky and that the Board's evidence of nonreceipt appears to be irrefutable. In any event we reject the notion that such a presumption is available to those required to give the notice described in § 154 (a).
Rule I A 3 of the Rules and Regulations of the Fund is as follows:
"A notice properly addressed to the Fund bearing a postmarked date within the period required by law shall be deemed timely, even though received by the Fund beyond such period." (Emphasis added.)
We think the above rule reflects the holdings of both Glassman and Gervolino and we hold that it reflects the requirement of the statute as well. It must not be supposed that in so holding we have shirked our duty to afford this remedial legislation a liberal construction, but we are obliged also to be mindful of the fact that the statute affords no substitute for the proof necessary for compliance with its terms and conditions and that due regard must be given to the protection of the Fund. It was not the intention of the Legislature to make access to the *240 Fund easy and every provision designed for its protection should be given full consideration and effect. Maddy v. Jones, supra; Hawks v. Gottschall, 241 Md. 147, 153 (1966); Szczesny v. Vasquez, supra; Re Sinclair v. Woodward, [1952] 1 D.L.R. 398 (Ont. Ct. App. 1951).
Order affirmed.
Costs to be paid by appellants. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266780/ | 440 Pa. 552 (1970)
Gro Appeal.
Mills Appeal.
Supreme Court of Pennsylvania.
Argued January 15, 1970.
October 9, 1970.
Before BELL, C.J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Franklin J. Seyfert, with him Seyfert & Emuryan, for appellants.
*553 Donald J. Orlowsky, with him ReDavid, Orlowsky, Natale & Anderman, for appellee.
OPINION BY MR. JUSTICE O'BRIEN, October 9, 1970:
This is a zoning appeal from a decision of the lower court granting a variance to permit the erection of fifty-nine apartment units. The appellants, a group of residents in the Township of Upper Darby, are opposed to the construction of such apartments.
The property has frontage of 353 feet along Ashurst Avenue and a depth of 120 feet along the northerly side of the property and a depth of 123 feet along the southerly side.
Ashurst Avenue is currently only partially paved and in poor condition and is not a through street along the subject property, with a dead end at the Pennsylvania Railroad tracks along the south side of the property, and ending on the north side at Primos Avenue.
The entire rear portion of the property, varying from five to eight feet in depth, is currently zoned Manufacturing-Industrial (M) and the remainder of the tract is zoned R-2 Residential under the Upper Darby Zoning Ordinance.
Under Section 203 of the Upper Darby Zoning Ordinance, when a zoning district boundary line divides a property held in single and separate ownership, the regulations as to the use in the less restricted district are permitted to extend an additional 50 feet into the more restricted district.
As a result of the aforesaid boundary tolerance provision, approximately 46 percent of the subject property can be legally developed under the Manufacturing-Industrial regulations, and under said regulations, apartment use is permitted by special exception.
All of the property abutting the rear or east side of the subject property is zoned "M" all the way out *554 to Oak Avenue, a distance of approximately 1,200 feet. In this area are located the industrial concerns of Franklin Printing, Crucible Steel, Building Units, Clifton Builders Supply, and other industrial uses.
To the south side, the subject property is bounded by the Penn Central Railroad tracks, elevated about eight feet, which carry approximately 70 scheduled commuter trains per day on the Philadelphia-West Chester Branch.
On the opposite side of the railroad tracks is located a shopping center, zoned B-Business, running all the way out to Providence Road.
On the northside of the subject property is located the Primos-Secane Swim Club.
On the west or front side, the subject property is bounded by Ashurst Avenue along the side of which flows the Muckinipates Creek, and on the opposite side of the creek is located unimproved ground.
Because of the topography of the ground, and its adjoining Muckinipates Creek, extensive grading, roadwork, retaining walls and other improvements would be required to prepare the site for either single family residential or apartment development, the cost of site improvements alone being estimated at a minimum of $44,000.
Because of the irregular shape of the ground and its topography, a maximum of six single-family dwellings could be constructed on the property. Appellee testified that he paid $40,000 for the property. Therefore, after adding together the $40,000 appellee paid for the land and the approximate $44,000 cost of improvements and dividing by six, the court found that the cost of ground and improvement costs would be $14,000 per lot.
Based on expert testimony that a five-to-one ratio usually exists in the real estate industry between cost *555 of home and cost of ground and site improvement, the court found that the site and improvement costs would require the construction of homes in the $70,000 price range. The court found that there would be no marketability for single family homes in the $70,000 price range in the immediate area of the appellee's property because of the adjoining industrial use, railroad tracks, and neighboring residential area which was composed of homes in the $18,000 price range. Therefore, the court concluded that the property involved is subject to a unique and unnecessary hardship, thereby justifying the granting of a variance.
If those were all the facts in the case, we might agree with the lower court.
In Richman v. Zoning Bd. of Adj., 391 Pa. 254 at 259-60, 137 A. 2d 280 (1958), we said: "The sole justification for the grant of a variance is that a strict application of the terms of the zoning statute will result in an `unnecessary hardship,' and, even then, the variance can be granted only if `the spirit of the ordinance shall be observed; the public health; the public safety; and the general welfare secured; and substantial justice done' . . . . He who seeks a variance has the burden of proving justification for its grant. . . . The `hardship' which must be proven must be an `unnecessary,' not a `mere' hardship, . . . as well as `unique or peculiar to [the property involved] as distinguished from the impact of the zoning regulations on the entire district.'"
Although it frequently has been stated that economic or financial hardship is not in itself sufficient to sustain the granting of a variance, Cooper v. Board of Adjustment, 412 Pa. 429, 195 A. 2d 101 (1963); Jasy Corp. v. Board of Adjustment, 413 Pa. 563, 198 A. 2d 854 (1964), this doctrine has only been applied where it is a question of more profits from one type of development as opposed to another type of development.
*556 In the instant case, there was evidence that appellee could not develop this land for residential purposes at a profit because there would be no market for homes in the price range he would need to construct in order to make a profit on his $84,000 investment. Thus, the case is similar to the situation in Garbev Zoning Case, 385 Pa. 328, 122 A. 2d 682 (1956), where we emphasized the following facts:
"Appellant's land is not suited for residential purposes because of the difficult problems presented by Naylor's Run, the storm and sanitary sewers crossing part of it, the heavy traffic along Garrett Road, the railroad which borders the property, the railroad freight area adjoining the property on the east, the unsightly elevated trolley bridge along the north side of Garrett Road with almost constant noise from passing trains, and the limited access to the tract.
"It would not be economically feasible or practical to build houses on this tract."
Similarly, in the case of Ferry v. Kownacki, 396 Pa. 283, 152 A. 2d 456 (1959), we upheld the granting of a variance to permit the construction of a gas station where the record showed that the property in question could not be developed for residential purposes because there was no market at all because of the prohibitive costs imposed by the terrain.
However, unlike the situations in Garbev or Ferry, appellee purchased the subject premises in April of 1968 with full knowledge that the area in which the subject premises were situated was zoned for residential use. Moreover, the record indicates the property was worth $40,000, the price appellee paid, only if the property was granted the anticipated variance. The following colloquy is quoted from the cross-examination of Mr. deGrouchy, appellee's expert witness: "Q. From your examination of this could you state any particular *557 attributes that this property would have that would bring the forty thousand instead of the eighteen that similar properties in the area would bring? A. Yes sir. I consider this a most logical property to be rezoned in that that is what every bit of evidence shows, that this abuts industrial, it abuts a piece used as commercial, it abuts a railroad, it is separated naturally, just like drawing a square to show that it is included in the industrial part of the place there. That is what the man paid for."
The zoning power is one of the tools of government which, in order to be effective, must not be subjected to judicial interference unless clearly necessary. For this reason, a presumption of validity attaches to a zoning ordinance which imposes the burden to prove its invalidity upon the one who challenges it. Nat. Land & I. Co. v. Easttown Bd. of A., 419 Pa. 504, 215 A. 2d 597 (1965), and cases there cited.
Under such circumstances, that which we said in Crafton Borough Appeal, 409 Pa. 82, 185 A. 2d 533 (1962), is apposite: "When [the purchaser] acquired the property he did so with the conditions of [the now claimed] economic hardship staring [him] in the face, and [he] cannot now be heard to complain [citing cases]."
In order for a hardship to be unnecessary, it cannot be self-inflicted. Here, the appellee, by paying $40,000 for the land, created circumstances which made it impossible profitably to construct single family residences upon the property for a price at which they could be sold. He gambled that he could obtain a variance which would make his purchase profitable. The case is, therefore, somewhat similar on its facts to the situation existing in Edwards Zoning Case, 392 Pa. 188, 140 A.2d 110 (1958), where we said:
*558 "Because of the expenditure of $28,000 paid for the land, Edwards is unable profitably to construct single-family houses upon the property for a price at which they could be sold. He therefore contends that he requires a variance in order to develop his land.
"When property is purchased pursuant to a plan of development for uses unauthorized by an existing zoning ordinance, and the plan miscarries, the purchaser is not entitled to a variance to permit his land to be used for other unauthorized purposes, even though he will otherwise suffer financial loss, if the property can reasonably be used for purposes permitted by the ordinance.
"Appellee bought the property with full knowledge of the terms of the ordinance. At the time he made his purchase, at a highly inflated price, he should have investigated whether he could recoup his investment in the event that his plans to erect an office building for the hospital physicians did not materialize. Instead, Edwards chose to gamble that the hospital would agree to use the proposed building and that the commissioners would rezone the area to permit the construction thereof. It now appears that his gamble has been lost, and Edwards seeks to avoid the adverse financial consequences. However, neither his present loss nor his prospective financial advantage are sufficient justification for authorizing a departure from the Lower Merion Zoning Ordinance. See Fleming v. Prospect Park Board of Adjustment, 318 Pa. 582, 178 Atl. 813 (1935).. . . One who acquires property intending to circumvent the use restrictions of a zoning ordinance does so at his financial peril." See also Crafton Borough Appeal, supra; Upper St. Clair Twp. Grange Zoning Case, 397 Pa. 67, pp. 71, 72, 152 A. 2d 768; Best v. Zoning Board of Adjustment, 393 Pa. 106, at 109, 141 A. 2d 606 (1958); Cooper v. Board of Adj., supra; Pyzdrowski *559 v. Pgh. Board of Adj., 437 Pa. 481, 263 A.2d 426 (1970).
An important reason for this rule is apparent from a comparison of the facts of one of the cases cited by appellee, Ferry v. Kownacki, supra, with the facts in the instant case. In Ferry, the owners, before seeking a variance for the erection of a gas station, attempted to sell the property for residential purposes. The following testimony is quoted from the opinion: "In addition, there is the evidence of value given by the witness King, a disinterested real estate broker. He testified that he offered it for residential sale and got no takers, and that he even tried offering it at a throwaway price in order to test the market. He said: `A. Well, it has been going on for almost a year, and I offered the property at a ridiculous figure to try to sell it, but they were not interested. And if you have a piece of property which the contractors recognize to be at a ridiculous figure, they would take it real quick. Q. How much did you ask for it? A. Well, we started at $3,500 and had it down to $2,500, but nobody was interested. . . . Q. Has it any value for residential purposes that you would put dollars and cents into? A. In my opinion and experience it doesn't."
In the instant case, there was no evidence of the purchase price of the subject premises if it were to be restricted for residential use.
Assuming that the land was purchased solely for residential development, there was, therefore, no evidence of the requisite price range for the construction of homes purchased at that site. Following from this, there was no evidence of whether there would be a market for such homes. As such, it is impossible to determine whether residential zoning imposes an unnecessary hardship on the property. It would surely be unfair for an owner to prove he was entitled to a variance *560 merely by paying an inflated purchase price for the property if the purchase price were inflated solely in the expectation of a variance.
Appellee argues that if we hold that because appellee purchased the property knowing its condition, and knowing its existing zoning classification, even though the property may be subject to an unnecessary hardship, he has no right to assert it; we are proposing an unconstitutional restriction on the free alienability of property. However, our holding does not have this effect.
We have frequently held that an equitable owner under a sales agreement for a piece of property, with the sale conditioned on the granting of a variance, qualifies as a party in interest in applying for a variance. Nat. Land & I. Co. v. Easttown, supra, at 514, and cases cited therein. Moreover, the original owner can test the restriction by showing he cannot sell the property because of the zoning restrictions. Ferry v. Kownacki, supra.
When a case seeking a variance is brought in either of these postures, it is possible to determine whether the existing restriction imposes an unnecessary hardship on the subject property. Only in a case such as this, which arises after the property has been sold to a new owner who has paid a high price for the property because he assumed that a variance which he anticipated would justify his price, do we hold that the owner cannot prove that the hardship which burdens his land was unnecessary rather than self-inflicted.
Order reversed.
CONCURRING OPINION BY MR. JUSTICE COHEN:
I join in the opinion of Justice O'BRIEN but I am impelled to write this concurrence to observe that the dissenting opinion seeks to advocate a new legal concept *561 in the grant of variances, namely that self-imposed economic hardship is a justification for the grant of a variance. The acceptance of such a principle would completely undermine all of our zoning legislation.
Mr. Chief Justice BELL joins in this concurring opinion.
DISSENTING OPINION BY MR. JUSTICE ROBERTS:
The majority holds today that the appellee is not entitled to a variance because he inflicted the hardship upon himself. I cannot agree, and hence I must dissent.
The trial court found that the cost to prepare the site in question for residential development would be $44,531.50. In addition, the court found that a maximum of six single-family homes could be erected on the parcel. Since the parcel cost $40,000, the cost of improvements plus the land for each of the six homes would be approximately $14,000. In order to make a profit on this investment, the homes should cost five times the cost of the land plus site improvements i.e., $70,000 each.
The majority does not dispute these figures. The majority holds, however, that the property was worth $40,000 only if apartments could be built on it. The majority then concludes that by paying what the land would be worth only if a variance were granted, the developer brought the hardship upon himself. He therefore cannot claim that his hardship was unnecessary, and is not entitled to a variance.
Admittedly there is no evidence as to the value of the land were it restricted to residential use, although the township's expert witness testified that it would be "substantially less" than $40,000. But even if we assume *562 that the developer paid absolutely nothing for the land, the land would still be unusable for single-family residences. Dividing the cost of just the site improvements by six, we find that each lot would cost $7,421.91 to develop. Multiplying this by the five-to-one ratio necessary, each house would have to sell for $37,109.55. These expensive homes would be located in a neighborhood surrounded by $18,000 homes, with adjoining industrial uses, and backing onto railroad tracks. I cannot believe that homes in this price range would be any more marketable than the $70,000 homes projected by the developer and the trial court.
The developer did not bring this hardship upon himself. Single-family dwellings cannot profitably be erected on this parcel regardless of the price paid for the land, or even if the land cost nothing as demonstrated above. Accordingly the land is subject to a unique and unnecessary hardship, and I would affirm the trial court's finding that appellee is entitled to a variance. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266784/ | 110 N.H. 389 (1970)
GEORGE H. BAKER & a.
v.
HUDSON SCHOOL DISTRICT & a.
No. 6115.
Supreme Court of New Hampshire.
August 31, 1970.
*390 Leonard, Leonard, Prolman & Prunier and Richard W. Leonard, for the plaintiffs.
Sulloway, Hollis, Godfrey & Soden and Franklin Hollis, for the defendants.
KENISON, C.J.
Petition for a temporary and permanent injunction brought by the plaintiffs, a six-member majority of the Hudson Budget Committee, against the Hudson School District, its school board and chairman, and the Superintendent of Schools. The petition seeks to enjoin the defendants from expending any money or incurring liabilities on matters included in the appropriation made for the support of schools at the April 29, 1970 meeting of the school district, pending a determination of the validity of the appropriation.
At the hearing on the petition for temporary injunction the Superior Court (Leahy, C.J.) on an agreed statement of facts reserved and transferred to the supreme court without ruling all questions of law relating to the validity of the actions of the Budget Committee of the Town of Hudson and the validity of the actions taken at the special meeting of the Hudson School District held on April 29, 1970 pursuant to a school board request granted by the superior court. RSA 197:3.
The case was filed in the supreme court on August 11, 1970. The briefs of the parties were submitted on August 11 and August 27, 1970.
The question in this case is whether the legislature in granting authority under the Municipal Budget Law (RSA 32:8 (supp) and 9) to the voters at an annual or special meeting to increase the budget by not more than 10% of the total amount specified in the budget recommended by the Budget Committee, intended that the voters at the meeting (within the limitations imposed by statute) share the responsibility with the Budget Committee *391 in appropriating funds by exercising a judgment independent of and unfettered by the judgment of the Budget Committee as to what the maximum total budget shall be. For the reasons stated hereafter we think the answer to this question is "yes."
The Budget Committee majority recommended a smaller school budget than requested by the School Board. The majority of the Budget Committee in its report stated that they "are of the honest opinion that the budget present, $1,760,000.00, with the allowable increase of $176,000.00, is a fair and just budget and urge the School District voters to adopt said budget with the increase." (Emphasis added). The budget recommendations did not recommend sufficient funds to pay fully statutory obligations, such as the payment of principal on debt. The recommendations of the Budget Committee had been rejected decisively by the voters at the annual school district meeting on March 4, 1970 by a vote of 301 to 155, and were again rejected at the special meeting on April 29, 1970 by a vote of 230 to 105.
After rejecting the Budget Committee's recommendation of the total budget of $1,936,000 ($1,760,000 + 10%) the voters adopted a total budget of $1,932,000 with the understanding that the Tax Commission would add $170,055, which was the amount owed for the payment of principal debt. This resulted in a total appropriation of $2,102,055. This was a valid appropriation, as it was within the amount authorized by RSA 32:9 on these facts and was within the total budget figure provided as a maximum figure in the warrant posted for the special school district meeting of April 29, 1970.
The present controversy arises from a common problem. A school board is charged with managing a local school system to the best of its ability. Since almost every improvement costs money, there is an increasing burden on the local taxpayer. This same taxpayer must also support other municipal services with each department attempting to increase its budget to perform as well as possible. An arbiter, such as the Budget Committee, is given power by the legislature to reconcile these appropriation requests to maintain the tax load within manageable proportions.
Some jurisdictions, apparently fearing the penurious nature of officials unfamiliar with school requirements, have given the school board the final say on the size of appropriations. See Day v. City of Newton, 342 Mass. 568, 174 N.E.2d 426. Other jurisdictions have given a supervisory committee the final say as *392 to the size of the appropriation but left the distribution of the appropriation entirely within the hands of the school board. See Board of Education v. Board of Finance, 127 Conn. 345, 16 A.2d 601; Fowler v. Town of Enfield, 138 Conn. 521, 86 A.2d 662; Board of Education v. Rogers, 278 N.Y. 66, 15 N.E.2d 401. Some jurisdictions provide for appeal to a state education commission to settle such disputes. Cliffside Park Borough Bd. of Ed. v. Mayor & Council, 100 N.J. Super. 490, 242 A.2d 649.
"`In any particular instance the degree of control to be exercised by either schoolboard members or municipal officers must be ascertained by reference to statutory and charter provisions. Under no circumstances, however, will municipal officers be permitted to exercise any greater degree of control over school finance than that clearly intended by the legislature.' Edwards, The Courts and Public Schools 106 (rev. ed. 1955). In New Hampshire the extent to which school finances are subject to municipal control in each city is determined by its charter. Toussaint v. Fogarty, 80 N.H. 286; Wilcox v. Burnham, 98 N.H. 64, 65." Franklin v. Hinds, 101 N.H. 344, 345-46, 143 A.2d 111, 113.
The New Hampshire cases have recognized a policy favoring financial independence for school districts wherever possible. Nashua Board of Education v. Vagge, 102 N.H. 457, 159 A.2d 158. This is in line with the recommendations of the Report of the [Legislative] Commission to Study the State Education System (1946) quoted in Franklin v. Hinds, supra at 346, 143 A.2d at 113; "The kind of education the district wants to buy, for it comes down to just that, had better be the responsibility of their elected representatives, the school board, and the people of the district themselves." (Emphasis added).
RSA 32:4 through 32:9 evidences a legislative scheme to allow the voters, who must bear the burden of taxation, to override the judgment of the Budget Committee by appropriating up to 10% more than the Budget Committee honestly believes is appropriate. Although the Budget Committee does put an upper limit on appropriations, it should also function as an information agency with special fiscal knowledge to assist the electorate in voting intelligently on budget problems. Hecker v. McKernan, 105 N.H. 195, 197, 196 A.2d 38, 40. The implication is that the voters will be left with some options which the Budget Committee *393 may not undermine through a subterfuge. See Attorney-General v. Littlefield, 78 N.H. 185, 98 A. 38. It is clear from the letter written to the School District Moderator by a majority of the Budget Committee that the Budget Committee was relying upon the voters to increase their recommendation by 10%. Only with this increase did the Budget Committee feel that the school budget would be "fair and workable." Nothing in RSA ch. 32 indicates that in formulating its recommendations, the Budget Committee is entitled to rely upon the power of the voters to increase the appropriation by 10%. Interpreting RSA ch. 32 in such a way would give the Budget Committee absolute control over the total expenditure for schools in contravention of the policy in this state of allowing the voters to control appropriations.
"[V]otes passed at town meetings should be liberally construed, and if they fall within the authorized power of the town, subtle distinctions will not be made to defeat the plain intent of the voters. Amey v. Pittsburg School District, 95 N.H. 386, 388. Where two constructions of a statute are permissible, the one which preserves the validity of the vote must prevail." Hecker v. McKernan, 105 N.H. 195, 196, 196 A.2d 38, 39.
We conclude that the school district made a valid appropriation of $1,932,000, plus $170,055; that the total amount to be raised by taxation shall be the sum of these two items ($2,102,055), minus the total of such amounts of revenue as shall be finally approved by the State Tax Commission.
Judgment for the defendants.
All concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266796/ | 218 Pa. Superior Ct. 43 (1970)
Commonwealth
v.
Dasch, Appellant.
Superior Court of Pennsylvania.
Argued June 10, 1970.
September 18, 1970.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.
*44 Roger B. Reynolds, with him Roger B. Reynolds, Jr., for appellant.
Stewart J. Greenleaf, Assistant District Attorney, with him Paul W. Tressler, Assistant District Attorney, Parker H. Wilson, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
OPINION BY WATKINS, J., September 18, 1970:
This is an appeal from the judgment of sentence of the Court of Common Pleas of Montgomery County, by the defendant-appellant, Harry Dasch, after conviction of having "in his possession and under his control certain dangerous or narcotic drugs"; from the denial of post-trial motions; and from the denial of a motion to suppress evidence.
The Abington Township Police Department, on information, began the surveillance of one Roger Whinney who was suspected of drug activity, in particular, marijuana. On September 26, 1967, at about 3:00 p.m., he was apprehended by the police in the parking lot of a Hot Shoppe restaurant. At the time, he was a passenger in a Plymouth convertible automobile operated by the defendant and owned by the defendant's mother, Mary Dasch. There was another unidentified passenger in the car. The police told Whinney that they had a warrant for his arrest, searched him and found nothing. They then took Whinney and the defendant to the police station.
At the police station, Whinney was thoroughly searched and again nothing was found on him. He was later discharged for lack of evidence. The police then searched the defendant and found nothing. According to the defendant, he was helping Whinney move to a new apartment. His clothing and a piece of furniture was in the car.
*45 The police then secured a search warrant for the car. It was a 1965 Plymouth Convertible, purchased second hand by his mother on February 27, 1967. It was a two-door model so that the front seats had to be pushed forward to get into the rear seats.
The search did not disclose any marijuana cigarettes, nor in fact, any amount of marijuana alone or in any container or package or in bulk. The search uncovered an old, tin, tobacco can under the back seat, in which there were two, as described by the police, homemade cigarettes, with the Commonwealth expert testifying that they were the remains of two Marlboro cigarettes and two other commercial cigarettes. There was no marijuana in the can.
From the crevices where the front seats were pushed forward, they gathered the debris in a cellophane packet which was identified as C(1); the contents of the ashtray were placed in a cellophane packet and marked C(2); and from the floor of the car under the rear seat, they collected dirt and refuse which was placed in a cellophane packet identified as C(3).
The Commonwealth expert testified that a chemist under his direction examined the contents of the small packets "attempting to separate out any material which might be marijuana" and then examined that under a microscope to see whether marijuana was present in that material.
As to C(1), taken from the crevices under the back of the front seats he found the refuse contained "seeds, crushed leaves and other debris but among that matter we did find marijuana and marijuana seeds" and also straw, hair, stones, and gravel.
As to C(2), the expert testified that the packet contained debris and no marijuana.
As to C(3), taken from the floor under the rear seat of the car he "found a small amount of marijuana in this material".
*46 The defendant was indicted in that he did "feloniously have in his possession and under his control certain dangerous or narcotic drugs." This is in violation of Section 4 of the Act of September 26, 1961, P.L. 1664, 35 P.S. Section 780-4(q).
The defendant moved to suppress the evidence taken from the car on the ground that it was seized by virtue of an illegal search warrant. The motion was denied. At the trial, the motion was again raised and again denied.
Upon the evidence related above, the jury found the defendant guilty as charged. Post-trial motions were denied. The defendant was sentenced to pay a fine of $200 and costs of prosecution and undergo imprisonment of not less than fifteen days nor more than 24 months in the Montgomery County Prison.
The contentions of the defendant are (1) the evidence is insufficient to support a verdict of guilty of possession and control of marijuana; and (2) that the court below erred in refusing to sustain the motion to suppress the evidence.
The proof of the possession and control of marijuana by the defendant presented by the Commonwealth was entirely circumstantial. As Mr. Justice EAGEN said in Commonwealth v. Simpson, 436 Pa. 459, 260 A. 2d 751 (1970), at pages 463-64: "It is true that circumstantial evidence, in itself, may be sufficient to establish the commission of a crime and the accused's connection therewith . . . But before a conviction will be sustained `the facts and circumstances proved must be of such a character as to establish guilt beyond a reasonable doubt.' . . . And, where a conviction is based entirely on circumstantial evidence, `the theme of guilt must flow from the facts and circumstances proved, and be consistent with them all.' . . . If the conviction is based wholly on inferences, suspicion and conjecture, it cannot stand. . ." (Citing cases)
*47 In Commonwealth v. Clinton, 391 Pa. 212, 137 A. 2d 463 (1958), it was held that in a criminal prosecution, "the reasonable inference of guilt must be based on facts and conditions proved; it cannot rest solely on suspicion and surmise."
In Commonwealth v. Townsend, 428 Pa. 281, 286-87, 237 A. 2d 192 (1968), the Supreme Court said: ". . . in a prosecution based upon circumstantial evidence, conviction may not be based upon suspicion or conjecture, but rather the evidence must be such `as reasonably and naturally to justify an inference of the guilt of the accused . . . and of such volume and quality as to overcome the presumption of innocence. . .'"
In Townsend, the Supreme Court reversed a conviction of the crime of possession of a firearm. The only evidence was that two weapons were in the car in which he was riding. The Court pointed out that there was evidence to sustain a finding of power to control under the theory of control set forth in Commonwealth v. Whitman, 199 Pa. Superior Ct. 631, 186 A. 2d 632 (1962), but the element of knowledge on the part of the defendant of the weapon being in the car was not present.
In the recent case of Commonwealth v. Tirpak, 216 Pa. Superior Ct. 310, 263 A. 2d 917 (1970), now before the Supreme Court on allocatur, this Court sustained a conviction of possession on the ground that the evidence placed marijuana, in the form of cigarettes, still warm from use, in the defendants' possession and control. The location of the marijuana cigarettes and the position of the defendants provided the elements of knowledge, possession, and control.
The Commonwealth has the burden of proving beyond a reasonable doubt all of the essential elements of the crime charged. Commonwealth v. Johnston, 438 Pa. 485, 263 A. 2d 376 (1970). In the instant case, *48 therefore, the burden of proving beyond a reasonable doubt that he knew there were particles of marijuana mixed with dirt and debris on the rear floor of his mother's automobile, under the rear seat or under the back of the front seats of the car and that he intended to control these particles of marijuana. This proof can be inferred from all the surrounding circumstances but cannot be based upon conjecture or suspicion.
There are no marijuana cigarettes involved as in Tirpak (supra), only particles of marijuana found among debris taken from the defendant's mother's car. There are no facts and circumstances that reasonably and naturally lead to the conclusion of possession, knowledge and control. It was a second-hand car of the vintage of 1965 purchased second hand and owned by his mother. How many intervening circumstances may reasonably have been responsible for the particles of marijuana found in this car? Were they there when the mother purchased the car or even before that? Where is the evidence of knowledge by the defendant of its presence in his mother's car?
As to possession, it is difficult to conceive of any one having possession of the scraps of marijuana contained in the refuse swept from the car. It is even more difficult to conceive of any one controlling this marijuana and there is no evidence of knowledge except the fact that he had driven his mother's car. If, in fact, he had knowledge of the existence of the marijuana described by the Commonwealth, in order to exercise possession and control he would have to have an expert on drugs to separate it from the refuse as was done by the Commonwealth. There is no evidence that this defendant had that expertise.
The Commonwealth relies on the presence of small particles of marijuana in the car leaving the proof of possession, control, and knowledge to inference that *49 can only be based on conjecture and suspicion. This is clearly insufficient to establish the defendant's guilt beyond a reasonable doubt.
The judgment is reversed and the defendant discharged. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266801/ | 269 A.2d 538 (1970)
Raymond R. ST. PIERRE
v.
Theresa HOUDE.
Supreme Judicial Court of Maine.
October 14, 1970.
John A. Platz and John D. Griffin, Lewiston, for plaintiff.
John G. Marshall, Lewiston, for defendant.
Before WILLIAMSON, C. J., and WEBBER, MARDEN, DUFRESNE and WEATHERBEE, JJ.
WEBBER, Justice.
Plaintiff's action for recovery of damages suffered in an automobile accident resulted in a jury verdict of $5,000. Liability was admitted and trial was on damages only.
In the course of his argument to the jury, counsel for the defendant stated:
"Now, I say this to you, and I believe this is correct, that Mrs. Houde is liable. She will have to pay the damages out of her own pocket, and that is proper, but it is damages that are properly chargeable to this case." (Emphasis ours)
*539 Plaintiff's attorney then interrupted the argument and entered his objection. Colloquy ensued in the absence of the jury in the course of which plaintiff's counsel contended the statement was not the truth and was improper argument suggestive to the jury that defendant was not insured. It was not disputed that defendant was in fact covered by liability insurance. The presiding Justice, weighing the alternative methods by which the prejudicial effect of the statement might be corrected, first concluded that any attempted instruction to the jury would be inadequate. He then offered to permit defendant's counsel to retract the statement in further argument to the jury. This counsel declined to do. Thereupon the presiding Justice ruled that the plaintiff might elect either to have a mistrial or to state the true fact to the jury. This ruling is challenged on appeal.
Plaintiff's attorney elected not to request a mistrial but to undertake correction of the misstatement in his concluding argument to the jury. In the course of his statement to the jury, plaintiff's counsel said:
"And although the law is very clear in this state, the precedent and the practice before this bar, that it matters not from what source funds are obtained to pay a judgment that is awarded, although that is the practice and the law, you will recall full well that only some ten minutes ago, or so, Mr. Marshall stood before this bar and addressed this very jury, and he said to you substantially and in effect, as best I can quote him, that any judgment which you render, and a judgment you must render against his client, in the case in point, that any judgment you render must be paid for out of the pocket of the defendant. You will remember his words. * * * And now I am authorized, with the approval of the presiding justice here, to say to you here and now that the statement that Mr. Marshall made to you, which I have just quoted, is not true in fact."
An objection was then noted by defendant's counsel. Plaintiff's counsel then continued:
"So my last, concluding statement to you is, members of the panel, that I have just made the statement to you that the judgment which you will render, will not be taken out of the pocket of the defendant."
Defendant's counsel in the absence of the jury immediately moved for a mistrial. The presiding Justice, deeming that the defendant's counsel had opened the door, denied the motion. This ruling is the object of the defendant's second point of appeal.
The plaintiff had special damages of $364, lost no wages and had no permanent injuries. As her third point of appeal, defendant asserts that a verdict of $5,000 six months after the accident was excessive and must have been the product of prejudice engendered by the trial incidents above described.
The rule has long been established that in cases where the wealth or poverty of a party is not a proper issue in the case, references by counsel to these matters constitute improper argument. The impropriety of mentioning insurance or the lack of it in such cases has its origin in that rule. The guidelines were made crystal clear in the case of Deschaine v. Deschaine (1958) 153 Me. 401, 406, 140 A.2d 746, 748, wherein we said:
"The reasons for excluding reference to poverty or wealth of parties are equally applicable in the case of insurance. In Mizula and Cherepowitch v. Sawyer, 130 Me. 428, at page 430, 157 A. 239, at page 239, an automobile accident case, the Court said: `The special motion presents a peculiar situation. It appears that counsel for Sawyer, in closing the case to the jury, dwelt on her age and limited financial ability. Just exactly what he said is not agreed upon, but very plainly his argument was irrelevant, improper, *540 and prejudicial. References to the wealth or poverty of parties, unless the issues involved make such references admissible, may constitue reversible error.'
We leave the rule as it has existed since at least 1897; that is to say, insurance in negligence cases is immaterial, prejudicial and not admissible. Sawyer v. J. M. Arnold Shoe Co., supra. [90 Me. 369, 38 A. 333] The rule obviously applies with equal force to arguments of counsel."
We add only that words used by counsel which by clear implication suggest the presence or absence of insurance, even though the word itself may not be used, can be violative of the rule and constitute improper argument. Such was the case here. Plaintiff's counsel did not sleep upon his rights as was the case in Patterson v. Rossignol (Me.1968) 245 A.2d 852. He moved promptly by way of objection and requested some appropriate relief from prejudice. It thus became the duty of the presiding Justice, in the exercise of a sound discretion, to determine the prejudicial effect of the argument and what corrective measures might be taken.
Several courses of conduct are open to consideration in such circumstances, all of which were weighed by the presiding Justice here. He may conclude that a retraction by the counsel whose argument has created the problem may suffice. A counsel who has, perhaps by inadvertence, misstated a fact will often welcome the opportunity to select the words by means of which the misstatement is corrected. The trial court may conclude that an appropriate instruction to the jury will or will not effectively remove the risk of prejudice. He is in a peculiarly advantageous position to gauge the impact of the offending language. He has heard the tone and inflection of counselhe has seen the visible reaction of the jury, if any, as the words were spokenin short, he has the benefit of sensory reactions which cannot be transmitted through printed pages to the reviewing court. In the instant case we find no abuse of discretion on the part of the Justice below either when he concluded that an instruction to the jury would not adequately protect the rights of the plaintiff, or when he offered defendant's counsel an opportunity to retract.
The presiding Justice may in such a case permit opposing counsel to offer counter argument or make a corrective statement if there is good reason to believe that such a method is best adapted to assure a fair and just verdict. See Mizula and Cherepowitch v. Sawyer, supra. He may on request of the aggrieved party, or upon his own motion if the circumstances so require, order a mistrial.
In the instant case the Justice below considered all possible alternatives. He took into account the fact that the door should not be opened to defendants to gain successive mistrials which could effectively prevent plaintiffs from securing final judgments. He had no request from plaintiff's counsel that a mistrial be granted. Under the peculiar and difficult circumstances then existing, we are satisfied that it was proper for the Justice below to conclude that he should not order a mistrial sua sponte but should permit plaintiff's counsel to include a correction with respect to the misstated fact in his argument to the jury. So also, there was no error in denying defendant's motion. Counsel for the defendant had unfortunately opened the door and, having declined to make the necessary correction himself, could not be heard to complain if it was then fairly made by his opponent, so worded as to stay within limits imposed by the Court.
As a further ground of appeal, the defendant contends that the evidence will not support the verdict which therefore must be set aside as grossly excessive. We recognize that this issue must be treated entirely apart from issues related to the improper argument of defense counsel. The Court cannot sustain an excessive verdict merely in order to express condemnation *541 of the conduct of counsel in the trial of a case no matter how vigorously the Court may disapprove of that conduct. Accordingly, we have examined the evidence, viewing it in the light most favorable to the plaintiff, to ascertain whether the verdict exceeds permissible limits.
At this point we are confronted by a partial and what seems to us inadequate record. If we consider such factors as special damages in the amount of only $364, no hospitalization, no lost wages and no permanent injuries, the verdict appears to be clearly excessive. On the other hand, we glean from the briefs that there was other evidence, omitted from the record on appeal, as for example the entire testimony of the plaintiff himself, which might have cast further light on the extent and continuation of plaintiff's pain and suffering. We are not furnished any explanation as to why the appellee did not designate additional portions of the record under M.R.C.P., Rule 74 if they were essential to a full review, but under the exceptional circumstances of this case we are unwilling to risk possible injustice to the plaintiff by ordering remittitur.
We conclude that as the case is now postured the verdict cannot stand. We further conclude that fairness and justice will be best assured by a new jury trial in an atmosphere freed of possible sources of prejudice which, in spite of the best efforts of the presiding Justice, may have affected the verdict. Since liability is admitted, there will be no occasion to try that issue.
Appeal sustained. New trial ordered on damages only.
POMEROY, J., did not sit.
WILLIAMSON, C. J., sat at argument but retired before the decision was rendered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1380695/ | 133 Ga. App. 960 (1975)
213 S.E.2d 87
ATLANTA TRANSIT SYSTEM, INC.
v.
BIGGS.
50090.
Court of Appeals of Georgia.
Submitted January 14, 1975.
Decided February 13, 1975.
*961 Hansell, Post, Brandon & Dorsey, Dent Acree, for appellant.
Rex T. Reeves, R. John Boemanns, for appellee.
DEEN, Presiding Judge.
1. Error is enumerated on the refusal on the trial court to allow in evidence certain hospital records predating the injury, offered for purposes of impeachment. Four records were offered and one admitted. Two of the others showed hospital visits on entirely unrelated ailments. The fourth referred to a visit on April 23, 1963, for a breast examination. After a question relating to this, the plaintiff was asked whether she recalled telling them back then that she "had lost about 10 pounds in 6 months, and having chills, fever and night sweats," to which she replied that she had chills and fever from a kidney infection. "Q. Do you remember on such occasion you might have told them that your head hurts all the time and your eyes are blurry and dizzy...? A. No, sir, I do not recall. Q. That your ears were infected most of the time? A. No, sir. I don't recall. Q. That your tonsils were bad, you had frequent sore throats, and your heart was often stifled? A. I never had any trouble with *962 my heart other than when I take a lot of aspirin my heart would flutter."
On the six pages of proffered hospital records, this is the only testimony of the plaintiff pertinent to statements, which were shown on the report of April, 1963, as follows: "Head: `Hurts all the time.' Eyes: `Blurring and dizziness in a. m. Ears: `Infected most of the time.' Cardiac: Often `stifled.'" The remaining material was clearly inadmissible. Cassano v. Pilgreen's, Inc., 117 Ga. App. 260 (2) (160 SE2d 439). As to that above quoted, it is noted that the witness replied only that she did not recall; that if the notes are interpreted as statements by the plaintiff they were made some seven years before the present injury and eleven years before the trial, the statements were not read to her or, indeed, positively identified. It was established long ago that where contradictory statements are offered for impeachment purpose the mind of the witness should be called to them with as much certainty as possible, and if they are in writing they should either be shown or read to him. Estil v. C & S Bank, 153 Ga. 618, 627 (113 S.E. 552). We recognize that under the authority of McDaniel v. Gangarosa, 126 Ga. App. 666 (191 SE2d 578) medical records otherwise inadmissible may on occasion be admitted for purposes of impeachment. In that case the irrelevant portions had been obliterated prior to admission. The offer of the entire hospital record here covering a number of years and of completely unrelated ailments, such as breast examination for cancer, varicose veins, kidney infection, etc., and without calling the witness' attention to the purported quotations from her delineation of symptoms, failed to lay a proper foundation for the medical reports, other than the one admitted in evidence.
2. The fact that injuries which occurred several years prior to the trial are still disabling in character is itself sufficient to authorize a jury to find that such injuries are permanent. National Upholstery Co. v. Padgett, 111 Ga. App. 842, 846 (143 SE2d 494). In the present case there was affirmative testimony to the same effect, and the court charged the jury that sympathy should play no part in their deliberations, and that the plaintiff, to be entitled to recover, must show the *963 defendant's negligence to be a contributing proximate cause of her injuries, "that which, in a natural and continuous sequence, unbroken by any new cause, produces an event." Diminution of capacity to labor, as well as future pain and suffering, are elements of damage, the amount of which is entirely within the enlightened conscience of the jury. There is no fixed rule for estimating them. Ga. Pac. R. Co. v. Freeman, 83 Ga. 583 (10 S.E. 277); Atlantic C. L. R. Co. v. Hansford, 85 Ga. App. 507 (69 SE2d 681); Cohen v. U. S., 389 F2d 689. Even an estimate of lost future earnings involves a number of problematical factors such as their future increase or decrease in the market place, and all the other vicissitudes of life such as illness and old age. City Council of Augusta v. Drawdy, 75 Ga. App. 543, 547 (43 SE2d 569). Therefore, an instruction that no damages relating to the future may be awarded unless it is proved "what their extent, if any, will bee" might well confuse the jury into believing that a monetary value would have to be shown by a preponderance of the evidence. In view of the charge as a whole, the failure to instruct the jury on future damages in the language requested was not error. Nor was it error, in view of the testimony as to elapsed time and continuance of symptoms, to permit a medical witness to state as an opinion that the plaintiff would need future medical treatment. Central Truckway v. Harrigan, 79 Ga. App. 117 (53 SE2d 186).
3. A question to a medical witness whether he would relate present depressive symptoms to the 1970 accident was objected to on the ground that the record does not reveal the situation prior to 1970. The doctor's eventual response was, "The only clue that we would have to this would be her job function capability." The plaintiff testified generally that she had no disability prior to the accident. Disregarding this latter fact, it is obvious that the witness to some extent avoided the question, limiting his criterion to job function, and in fact not stating any specific comparison. A medical witness may state a conclusion after indicating the facts on which it is based. Pollard v. Page, 56 Ga. App. 503 (3) (193 S.E. 117). When he does so, if the opinion is founded on an insufficient factual basis, this does not make it inadmissible but only goes to *964 its credit. Williams Bros. Grocery Co. v. Blanton, 105 Ga. App. 314 (2c) (124 SE2d 479). There was in fact no answer to the hypothetical question as posed, and no objection to the answer elicited. Thus no error harmful to the movant appears.
Judgment affirmed. Evans and Stolz, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1380699/ | 233 Ga. 775 (1975)
213 S.E.2d 607
FRIER
v.
CITY OF DOUGLAS; and vice versa.
29198, 29199.
Supreme Court of Georgia.
Argued September 11, 1974.
Decided February 12, 1975.
Farrar & Farrar, Curtis Farrar, for appellant.
Preston & Preston, Robert H. Preston, for appellee.
HILL, Justice.
This case comes before us on appeal by James David Frier, plaintiff below, and cross appeal by the City of Douglas, defendant below. From the verified pleadings and findings of the trial court, the facts appear as follows:
On August 15, 1973, plaintiff acquired from a contractor, and since has resided in, a residence located on Par Street in the City of Douglas. Construction of the house had commenced in December, 1972, at which time the contractor requested temporary electric service from the city.
The Georgia Territorial Electric Service Act was approved and became effective on March 29, 1973. Ga. L. 1973, pp. 200, 220. (Its validity has now been upheld in City of Calhoun v. North Georgia Electric Membership Corp., 233 Ga. 759). On April 30, 1973, electrical supply by the city to the residence in question was converted from temporary to permanent service at the contractor's request.
By letter dated June 8, 1972 (sic) plaintiff requested the city to remove its power lines, as plaintiff desired to choose REA service which was, according to the letter, *776 within 300 feet of the residence and closer than the city's power source. In his letter plaintiff referred to the March Act, presumably Sec. 5 thereof.
By letter dated June 15, 1973, the Satilla Rural Electric Membership Corporation notified the city that plaintiff had made application for service and that it intended to serve him.
As noted, plaintiff acquired his deed on August 15, 1973. His suit to enjoin the city from furnishing electricity to his house was filed May 17, 1974. He alleges his continuous efforts to stop the city from furnishing electricity. The city answered and defended on the grounds, inter alia, that the complaint should be dismissed for failure to state a claim for relief in that plaintiff has an adequate legal remedy and has failed to exhaust his administrative remedies under the Territorial Electric Service Act, supra, and on the further ground that Sec. 9 (b) thereof gives the city the exclusive right to serve plaintiff's premises. At the hearing, the city sought to preserve its right to challenge, in other cases, the constitutionality of the Act.
At the commencement of the interlocutory hearing, the trial court overruled the city's motions and later denied injunctive relief to plaintiff, basing the latter decision upon a November, 1973, city ordinance providing that "Every dwelling shall be wired for electric lights ... Every habitable room ... shall contain at least two ... outlets ... Every such outlet ... shall be maintained in good and safe working condition, and shall be connected to the source of electric power in a safe manner."
Plaintiff has appealed the denial of injunctive relief and the city, on certificate, has cross appealed the denial of its motions.
The complaint seeks only the termination of electric service, not substitution of service by another electric supplier. Plaintiff's brief in this court poses the issue as follows: Does the city have the right or power to furnish electricity to plaintiff against his will, or does a person have a right to live in the city without electrical current? Plaintiff's counsel observes that this may well be a case of first impression. To prove that statement, no decisions directly in point are cited. He assures that this is not a suit *777 to determine which supplier shall serve his client. He argues that a person should not have to go to the Public Service Commission to get his electricity disconnected.
Counsel for the city view the plaintiff's case as being one to change suppliers. They point to the two letters referred to above attached to the city's answer.
1. We deal with the city's motions to dismiss first, for if they were good, the denial of the injunction should be affirmed. A complaint challenged by a motion to dismiss for failure to state a claim for which relief may be granted is to be construed in the light most favorable to the plaintiff with all doubts resolved in his favor even though unfavorable constructions are possible. Tri-City Sanitation v. Action Sanitation Service, 227 Ga. 489 (181 SE2d 377).
Although the city contends that the plaintiff has not exhausted his administrative remedies before the Public Service Commission under the Territorial Electric Service Act, the complaint alleges that plaintiff has exhausted his administrative remedies. Thus a question of fact is presented, preceded perhaps by a question of law as to whether administrative remedies under the Act are applicable to plaintiff. In any event, plaintiff's allegation that he has exhausted his administrative remedies cannot be refuted by a mere motion to dismiss.
The city's contention that plaintiff has an adequate remedy at law apparently is based also on the Territorial Service Act. Plaintiff represents to this court that the Act is not involved in his suit, that all he seeks is a termination of that continuous trespass created by having the city's unwanted electric current in his house. Based upon these positive assurances made in this court and arising from a suit filed in May 1974, we cannot, on motion to dismiss, look to letters, attached to the city's answer, written a year earlier to impugn plaintiff's motives.
Finally, the city cites Sec. 9 (b) of the Act as authority that the city has the exclusive right to provide electricity to plaintiff. As we read that section applied to the facts of this case, the city may well be correct if this were a suit between competing electric suppliers, or if plaintiff were seeking to change suppliers. However, that section does *778 not empower the city to supply electricity to one who does not want any electricity at all, as plaintiff states is his only desire. Nowhere in that Act is it provided that plaintiff must have electricity in his home.
It should perhaps be kept in mind that here the city merely defended by motion to dismiss on the basis of the Territorial Service Act. The city did not file a counterclaim for injunction based upon that Act, in which event entirely different questions might arise.
The trial court did not err in overruling the city's motions to dismiss. We turn now to the plaintiff's appeal of the denial of injunctive relief.
2. The court below denied injunctive relief based on a city ordinance requiring each dwelling to be wired for electric lights, each room to have at least two outlets, and each outlet to be maintained in safe working condition and be connected to the source of electric power in a safe manner. The trial judge's findings of fact do not show that plaintiff's house was not wired, or that it lacked any required number of outlets, or that any of them were unsafe. If they had been inadequate or unsafe, it would appear that the injunction should have issued.
It therefore appears that the basis of the denial was the requirement of the ordinance that each outlet "shall be connected to the source of electric power in a safe manner." Had the city fathers omitted the words "in a safe manner" the question might be more difficult. However, like statutes, the cardinal rule in construing ordinances is to carry into effect the intent of the legislative body (Lewis v. City of Smyrna, 214 Ga. 323 (104 SE2d 571)), and that intent must be determined from a consideration of it as a whole (Williams v. Bear's Den, 214 Ga. 240 (104 SE2d 230)), including the words "in a safe manner."
As we read the ordinance in question it is a safety measure as opposed to a monopoly enactment, which would violate Art. IV, Sec. IV, Par. I (Code Ann. § 2-2701) of the Constitution. Macon Ambulance Service v. Snow Properties, 218 Ga. 262 (127 SE2d 598). Or so it should be construed, if susceptible of two constructions. Fordham v. Sikes, 141 Ga. 469 (81 S.E. 208).
Thus construed, the ordinance in question requires that if electricity is used, it shall be connected to the *779 source in a safe manner. It does not, however, require that electricity be furnished. If it were otherwise, the city could terminate service for non-payment and then charge the debtor with violation of this ordinance. Such an unconscionable result could not be tolerated.
The court below erred in denying injunctive relief on the basis it expressed. However, if its decision were correct for another reason, it should be affirmed.
3. Plaintiff's representations by verified complaint and to this court through counsel are that he wants no electricity. Counsel for the city concede that in the absence of the Territorial Service Act, plaintiff would be entitled to the relief sought. As seen above, in view of the allegations of the complaint, that Act is not applicable to this case as it stands.
Certainly in this day where citizens are fearful of further erosion of their rights, and absent some compelling public health or other valid reason, a man who wants to live without electricity in the wires of his house should have the right to do so, whether or not our Constitution says he has a freedom from electricity.
The court below erred in denying temporary injunctive relief.
Judgment reversed on the main appeal; affirmed on the cross appeal. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1380712/ | 44 Cal. App. 2d 572 (1941)
THE PEOPLE, Respondent,
v.
EDWIN B. HARSCH, Appellant.
Crim. No. 3438.
California Court of Appeals. Second Dist., Div. One.
April 29, 1941.
Gladys Towles Root for Appellant.
Earl Warren, Attorney-General, and Burdette J. Daniels, Deputy Attorney-General, for Respondent.
YORK, P. J.
Appellant was charged in an information with the crime of robbery, together with a prior conviction of felony. At the trial appellant appeared in propria persona and was found guilty as charged, the jury fixing the crime as robbery in the second degree. This appeal is prosecuted from the judgment of conviction and from the order by which appellant's motion for a new trial was denied, upon the grounds: (1) The verdict is contrary to the evidence; (2) Errors of law committed by the court during the trial; and (3) Prejudicial misconduct on the part of the deputy district attorney, who prosecuted the cause.
The alleged robbery took place at about 1:40 o'clock in the morning of April 25, 1940, when appellant entered the Avalon Coffee Shop at 5957 Avalon Boulevard in the city of Los Angeles, stepped to the counter, pointing a gun at Charles McKinnon, a waiter, in the presence of a customer named William Le Doux, and said: "All right, let's have it"; referring to the money in the cash register which was resting on the counter nearby. The witness McKinnon testified that he handed appellant the contents of the cash register which was later checked and found to be the sum of $31.50, consisting of $20 in change, a $5 bill and some $1 bills. The said robber then took a wallet from the pocket of Le Doux and finding it empty threw it on the counter. During all the time appellant was in the cafe, he held his gun partly concealed by a handkerchief pointing either at McKinnon or at Le Doux. Appellant was arrested in the morning of April 25th in an automobile parked in front of 918 West 2nd Street, Los Angeles, in which automobile he was found lying in an intoxicated condition on a bag of coins.
At the trial the silver coins enclosed in a light brown paper envelope were offered in evidence and marked for identification, the denominations of the coins being noted as follows: one 50 piece, twenty-four 25 pieces, ninety-six dimes, sixty *574 nickels and five pennies, totaling $19.15. There was also placed in evidence a $5 bill and three $1 bills which were found on appellant's person at the time of his arrest.
[1] In connection with his first point, appellant urges that the evidence is insufficient to justify his conviction for the reason that he was not identified beyond a reasonable doubt as the person who robbed the coffee shop.
The witness McKinnon positively identified appellant as the man who committed the robbery at the time and place in question. He selected appellant from a group of men at a police "show-up", and upon cross-examination conducted by appellant in propria persona, said witness testified with regard to the subject of identification as follows:
"Q. Yet you were able to study the man, were you, being nervous? A. I can't say that I studied him. I would know the man if I ever saw him again, yes. ... Q. Did you actually see him? A. I saw you there, if that is what you mean. Q. You did not see me at all. A. You are a damned liar. (Spoken very low.) ... Q. When you got over to jail with Mr. Olson, what occurred there? A. They lined the persons up in the hall and I went down and picked you out. ... Q. You thought I resembled the man that held you up? A. I didn't think; I knew. Q. You could not be mistaken? A. I would know you ten years from now, as far as that goes. ... Q. Did you at the preliminary trial say that when the man told you to produce the money out of the cash register that you laid it on the counter, that you did not hand it to him? A. Personally, I did as you told me to, 'Put your hands up' and the rest of it, and I put the rest of it in your hands and you put it in your coat pocket. Q. In speaking of the robber in the future, speak of him as the robber, and not as me. A. There is no doubt you are the man. Mr. HARSCH: I am here to prove you are wrong. When you say I resemble the man that held you up you are wrong, and I am here to prove it. Mr. BRANDLER (Dep. District Attorney): I think the witness has the right, when he is questioned concerning the similarity of the suspect and the defendant, I think he has the right to identify that person as the defendant. The COURT: That is correct. ... Q. When you saw me in jail with what you think was wrong with me, black eye or something, did I still resemble the man that robbed you? A. You are the man! Q. The question *575 is, did I still resemble the man? A. Yes. Q. I still resembled him? A. Yes. Q. Even though there might have been something wrong with my face? A. Yes. ... Q. By Mr. HARSCH: Do you recall exactly what there was about my face that made you think perhaps I had been in a fight, as you put it? A. No, I really don't. Q. Do you think now that your identification then was absolutely infallible? A. I am sure it was you. Q. Sure it was me? A. I am sure you are the man who held me up. Q. Despite anything that might have been wrong with my face? A. That's right. ... Mr. HARSCH: Q. Did you notice at the time that the robber had a tooth missing or a prominent scar on his face? A. No. Q. Didn't notice anything like that? A. No. Q. And yet I have those defects and yet you claim I look like the man? A. You don't look like the man, you are the man."
In addition, William Le Doux identified appellant as the person who committed the robbery in question.
The claimed inconsistencies in the testimony of these witnesses are of such a trivial nature that they are ineffective to weaken the positive testimony as above outlined. As stated in People v. Farrington, 213 Cal. 459, 463 [2 PaCal.2d 814]: "The strength or weakness of the identification, the incompatibility of and discrepancies in the testimony, if there were any, and the uncertainties of witnesses in giving their testimony were matters solely for the observation and consideration of the jurors in the first instance, and for the consideration of the trial court on motion for a new trial. It has approved the finding of the jury, and on appeal this court may not disturb such finding and the action of the trial court unless we can say, as a matter of law, that there was no evidence to support the conviction. (People v. Erno, 195 Cal. 272, 283 [232 P. 710].) On the record before us, we cannot say that this is such a case." See, also, People v. Hightower, 40 Cal. App. 2d 102, 106 [104 PaCal.2d 378].
The evidence with respect to identification of appellant as the man who committed the robbery was amply sufficient to sustain the conviction herein.
[2] Appellant claims that the court erred in admitting into evidence the money and coins found in his car and on his person at the time of his arrest, for the reason that such *576 money was not identified nor connected in any way with the robbery.
While it is true that the coins were not capable of identification, and appellant said he obtained them in a crap game, nevertheless, it was definitely established by the testimony of the two men, who were held up, that the money taken from the cash register consisted mainly of small change, consequently, the coins found in appellant's car at the time of his arrest were "admissible in evidence, not as being sufficient in themselves to warrant or sustain his conviction, but as a circumstance which it was proper to place before the jury for their consideration in passing upon the guilt or innocence of the defendant. (People v. Lang, 142 Cal. 482 (76 P. 222 [232]).)" (People v. Ferns, 27 Cal. App. 285, 287 [149 P. 802].)
[3] There is no merit in appellant's final point that the statement of the deputy district attorney concerning appellant's failure to take the stand constituted prejudicial error. Article I, section 13, of the Constitution of this state authorizes the court or counsel to comment to the jury upon defendant's failure to explain or deny by his testimony any evidence of facts in the case against him. (People v. Cowling, 6 Cal. App. 2d 466, 473 [44 PaCal.2d 441].)
For the reasons stated, the judgment and order appealed from are, and each of them is, affirmed.
Doran, J., and White, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1380735/ | 233 Ga. 845 (1975)
213 S.E.2d 693
CORLEY et al.
v.
PARSON.
29582.
Supreme Court of Georgia.
Submitted January 17, 1975.
Decided February 25, 1975.
Strother, Hicks, Deming & Wallace, Glenn H. Strother, Crawford E. Hicks, for appellants.
Fudger & Foster, Arthur W. Fudger, for appellees.
HALL, Justice.
At issue in this appeal is the proper construction to be given certain language in a deed. The pertinent part of the deed is set out here, with the normal type representing the words of the printed form; the italicized words representing those handwritten; and the stricken words representing those printed words struck by the maker's pen.
"...[P]arty of the first part ... does grant, bargain, sell and convey unto the said party of the second part his heirs and assigns, all that tract or parcel of land [description follows]... It is hereby understood and agreed between the party of the first part and the party of the second part that at the death of J. W. Johns [grantee] should he die first the above described lot of land is to revert to the estate of G. W. Johns the party of the first part. To have and to hold the said bargained premises ... [for the benefit of] the said party of the second part, only so long as he lives heirs and assigns forever, in fee simple."
This appeal follows the grant of summary judgment for the heirs of the grantee, in a suit brought by heirs of the grantor seeking to recover the land upon the termination of what they urge was grantee's life estate.
Under Code § 29-109 "If two clauses in a deed are utterly inconsistent, the former shall prevail; but the intention of the parties, from the whole instrument, should, if possible, be ascertained and carried into effect." See also, Floral Hills Memory Gardens v. Robb, 227 Ga. 470, 471 (181 SE2d 373); Ward v. Ward, 176 Ga. 849 (3) (169 S.E. 120).
We must first decide whether there is a repugnancy between the granting and the habendum clauses. See 8 EGL 584, Deeds, § 140 (1964). Examining first the former, it is apparent that the grantor created a fee simple in J. W. Johns, grantee, subject to the limitation that the estate should revert automatically to grantor[1] should J. W. Johns predecease him. See Moseley v. Pattillo, 162 Ga. 428 *846 (134 S.E. 49). Because no act of intervention was required to terminate the estate, but the same was said to terminate automatically upon the happening of the stated event, this was a fee simple upon a limitation and not upon a condition subsequent (see Franks v. Sparks, 217 Ga. 117, 121 (121 SE2d 27)); but this distinction is unimportant here because the terminating event never occurred, the grantee outliving the grantor by some 30 years.
Turning to the habendum clause, the same is internally inconsistent, referring to grantee's holding the property "only so long as he lives," followed immediately by the words "forever, in fee simple." This confused statement is also inconsistent with the granting clause, the legal import of which is plain. Moreover, the intention of the maker should be ascertained from the whole instrument. Shepherd v. Tennessee Chemical Co., 147 Ga. 365, 366 (94 S.E. 237); Collinsville Granite Co. v. Phillips, 123 Ga. 830, 841 (51 S.E. 666). The granting clause appears best to embody the intention of the parties gathered from the whole instrument, including the stated consideration of $400 for this land, which was one of two parcels of land grantor acquired earlier the same year at a sale before the courthouse door for a total consideration of $705.
Under both of the alternative commands of Code § 29-109, the granting clause prevails, and the superior court correctly determined that upon the non-occurrence of the limiting condition (that is, when grantee outlived grantor) grantee acquired a fee simple estate in the contested land. Therefore, appellants' motion for summary judgment was properly overruled and appellees' properly granted.
*847 Judgment affirmed. All the Justices concur.
NOTES
[1] The actual language of the granting clause refers to a reversion to the "estate" of the grantor, in the event grantee predecease grantor. Were we to give the word "estate" its usual technical meaning, the provision would be hopelessly inconsistent internally. The record contains no indication that this deed was drafted by an attorney, and the parties agree that aside from the scant indications now in the record, no extrinsic evidence of the parties' intent is available. Given these facts, we conclude that the word "estate" was not intended in its technical sense, but was used to mean "ownership." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1380723/ | 354 F. Supp. 1342 (1972)
Andres Gil PEREZ, Plaintiff,
v.
SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant.
Civ. No. 417-71.
United States District Court, D. Puerto Rico.
December 20, 1972.
Benito Gutierrez-Diaz, Hato Rey, P. R., for plaintiff.
Julio Morales-Sanchez, U. S. Atty., for defendant.
ORDER
TOLEDO, District Judge.
This cause is before the Court upon plaintiff's complaint of June 15, 1971, wherein it is stated that after the plaintiff was awarded disability benefits by the defendant, he received an undated letter from the defendant informing him that he had been overpaid $746.00, in view of the fact that the law requires the defendant to reduce payments for he was receiving since April 1968, workmen's compensation payments; and that, accordingly, in order to reduce the overpayment, the defendant was withholding benefits payable to him April 1968 through February 1971, at which time, the balance of the overpayment would be *1343 $521.00. The letter informed him further, that if he refunded $521.00, the defendant would resume his monthly benefits effective March 1971.
Plaintiff requested a reconsideration of defendant's determination and the defendant, on reconsideration, upheld its primary determination. He requested a hearing, which hearing was held on November 9, 1970. Three issues were submitted by the plaintiff herein to the hearing examiner; which issues were: (1) whether a waiver of overpayment should be made by the Secretary; (2) whether the suspension of plaintiff's disability benefits, without adequate notice and before a hearing was held on the issue, was constitutionally permissible under the doctrine of Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970); and (3) whether the offset or deduction of the social security benefits because of an award of benefits under the Puerto Rico Workmen's Compensation Law, as permitted by Section 224 of the Social Security Act, Title 42, United States Code, Section 424, is constitutionally permissible.
The hearing examiner entered a decision holding: that although plaintiff had been overpaid, nevertheless, the overpayment was subject to waiver under Section 204 of the Act, Title 42, United States Code, Section 404; that plaintiff's disability insurance benefits were properly reduced pursuant to Section 224 of the Act; that he had no authority under the law to pass on the constitutionality of the Act which he is called upon to administer; and that he could not find that plaintiff had a constitutional right to a pre-termination hearing. After a timely request, the Appeals Council, on April 19, 1971, denied plaintiff's request for review, thereby rendering the decision of the hearing examiner the final decision of the Secretary subject to judicial review herein under Section 205(g) of the Act, Title 42, United States Code, Section 405(g).
On November 2, 1971, the defendant filed its answer to the complaint and on April 24, 1972, filed a brief in support of its allegations in the answer to the complaint.
Defendant contends that the workmen's compensation benefits offset provided by Section 224 of the Act, Title 42, United States Code, Section 424, is constitutional; that any contention that it is unconstitutional was laid to rest by the Supreme Court in Richardson v. Belcher, 404 U.S. 78, 92 S. Ct. 254, 30 L. Ed. 2d 231 (1971).
Defendant further contends that the issue of plaintiff's alleged right to a hearing prior to the reduction of his disability insurance benefits pursuant to the workmen's compensation offset or prior to any recovery of a resulting overpayment, is not before the Court. This contention is predicated upon defendant's assertion that plaintiff has mooted this issue by having a full hearing after the reduction of benefits became operative, citing Rodriguez v. Finch (Order of July 1, 1971, entered on Civil 2291 by the U. S. District Court for the District of Colorado) for since plaintiff had a hearing on this issue, there is no issue as to his right to a hearing at an earlier point in time. In this respect, defendant further asserts that in view of the decision of Richardson v. Belcher, supra, the determination in this case cannot be changed administratively; thereby, there being no relief that could be granted to the plaintiff if he were to be afforded a second hearing. In relation to the above, the defendant further asserts that this Court should not reach this constitutional issue for the administrative process has already taken its course and its fairness is manifest, citing Richardson v. Wright, 405 U.S. 208, 92 S. Ct. 788, 31 L. Ed. 2d 151 (1972) and Messer v. Richardson, 400 U.S. 987, 91 S. Ct. 455, 27 L. Ed. 2d 435 (1971). Furthermore, in relation to this issue, the defendant asserts that plaintiff is not entitled to such a hearing in this cause, for it asserts Goldberg v. Kelly, supra, does not apply to Title II cases; citing this Court's decision in the case of Vega v. Secretary of Health, Education and Welfare, D.C., 321 F. *1344 Supp. 553 (1970). Defendant also asserts that in this case, with respect to the workmen's compensation offset, only an issue of law is involved and that Goldberg v. Kelly, supra, does not require a hearing where there is no issue of fact, but merely an issue of law; citing Russo v. Kirby (2 Cir. 1971), 453 F.2d 548.
Finally, the defendant contends that the issue of whether or not plaintiff is entitled to a hearing prior to the recovery of an overpayment is likewise not before this Court, for the issue it asserts, was also mooted by the hearing given to the plaintiff on this issue which hearing also included the issue of the waiver of such overpayment; issue which was decided on plaintiff's favor. Being it so, defendant contends that there is no case or controversy before the Court in relation to this issue. Accordingly defendant argues, since the overpayment amount was waived, said portion of the prayer has become moot.
Concluding, the defendant asserts the issue of plaintiff's alleged right to a pre-reduction or pre-recoupment hearing has been mooted because (1) a hearing on both issues has been held, and (2) no relief is possible as to the reduction issue, because the Supreme Court has upheld the constitutionality of the offset and because relief has been granted as to the recoupment issue, in the form of waiver of recovery of the overpayment; there being no actual justifiable controversy. It finally asserts that at this point, the plaintiff merely attempts to secure an abstract determination of the validity of the statutes involved; a thing this Court may not do, for relief cannot be granted where the alleged controversy is hypothetical.
On May 24, 1972, the plaintiff filed a brief in reply to the brief submitted by the defendant, wherein he concedes that the offset provisions of Section 224 of the Act are constitutional in view of the decision to that effect entered by the Supreme Court in Richardson v. Belcher, supra; but that with regard to his due process rights in relation to a suspension of his benefits, the situation is otherwise. In this respect, plaintiff alleges that we should follow Wright v. Finch (D.C.D.C.1971), 321 F. Supp. 383, vacated and remanded, Richardson v. Wright, 405 U.S. 208, 92 S. Ct. 788, 31 L. Ed. 2d 151 (1972), since the Supreme Court by majority decided not to reach the constitutional issue in view of the fact that they were advised before the hearing of the cause that the Secretary of Health, Education and Welfare, had adopted new regulations, at that time effective, governing the procedures to be followed by the Social Security Administration in determining whether to suspend or terminate disability benefits.
The plaintiff also concedes that no additional hearing is now required because he, eventually, had a hearing on all the issues, except the issue of his right to present his case before suffering a suspension of disability benefits, which issues were disposed of; but that said disposition does not preclude this Court in making a judgment with respect to the way in which his benefits were terminated and the fact that it took many months from the time his social security disability benefits suddenly stopped until he could present his case in an adequate manner before the hearing examiner. Accordingly, plaintiff requests that this Court issue a declaratory judgment indicating that plaintiff's disability benefits should not have been suspended in the summary manner in which they were in fact suspended, and declaring that he should have had an earlier opportunity to participate, present his case and obtain the relief eventually determined proper by the hearing examiner.
In relation to the waiver, by the Secretary, of the overpayment involved in this cause, plaintiff contends in his reply brief, that it is still at issue, for it is open to review by this Court because of the pendency of the present action. In this respect, plaintiff requests this Court to approve the waiver of the overpayment by the hearing examiner and order the defendant to effectuate this *1345 decision operationally by making appropriate recalculation with regard to the resumption of plaintiff's benefits; and acting upon such a recalculation, by resuming plaintiff's disability benefits when due.
The defendant, on July 28, 1972, filed a second memorandum of law, reasserting the position it adopted in its first memorandum in support of allegations in the answer to the complaint, and further arguing that this Court may not grant the relief requested by the plaintiff, in view of a lack of jurisdiction to so do. Defendant states this is so because Title 28, United States Code, Section 2201, authorizing declaratory judgments, by its term requires a "case or actual controversy" before a court may issue such a judgment; and that, accordingly, a court may not render a declaratory judgment where the issue allegedly before it is moot. Likewise, defendant argues that this Court is not free to follow the district court decision in Wright v. Finch, supra, as plaintiff alleges, and that the disposition given by the Supreme Court on its appeal, Richardson v. Wright, supra, is not available herein, for the plaintiff has here exhausted all his remedies and had a hearing on his claim, and that moreover, there are no new procedures which would apply to the processing of his claim. Lastly, defendant asserts that since it granted the plaintiff full relief in relation to the waiver of the overpayment, said issue, notwithstanding plaintiff's assertion, is not before the Court.
The Court, after fully considering the allegations of the parties, is of the opinion that it cannot enter into the considerations of the merits of the declaratory judgment's petition plaintiff makes, in view of the fact that at this point, the facts of this case do not show there is a substantial controversy between the parties of sufficient immediacy and reality to warrant the issuance of a declaratory judgment, for the issues of law now before the court are moot. Accordingly, it is our opinion that the complaint should be dismissed.
In Golden v. Zwickler, 394 U.S. 103, 89 S. Ct. 956, 22 L. Ed. 2d 113 (1969), the Supreme Court, stated that for a federal court to entertain a declaratory judgment petition[1] there must be a controversy before it, as required by the statute, and that the proper inquiry is to determine whether a "controversy" exists at the time the action is for disposition and not at the time it was initiated. The Supreme Court further stated, at page 108, 89 S.Ct. at page 959, the following:
"The federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues, `concrete legal issues, presented in actual cases, not abstractions,' are requisite. This is as true of declaratory judgments as any other field." United Public Workers of America v. Mitchell, 330 U.S. 75, 89, 67 S. Ct. 556, 564, 91 L. Ed. 754 (1947). "The difference between an abstract question and a `controversy' contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S. Ct. 510, 512, 85 L. Ed. 826 (1941)."
A petition for a declaratory judgment is not an exception to the rule that *1346 mootness is to be judged at the present moment and not at the time of the filing of the complaint. Merced Rosa v. Herrero (1 Cir. 1970), 423 F.2d 591.
We concede that at the time this action was filed, there was a genuine controversy, substantial and immediate, before this Court. But, now, the facts as our previous elaboration reveal, does not warrant that we may enter into the merits of the declaratory judgment petition. A declaratory judgment is limited to cases of actual controversy, (as distinguished from differences or disputes of a hypothetical, abstract, or moot quality) which are real and substantial, admitting specific relief through a decree of conclusive character. Shank v. National Labor Relations Board (7 Cir. 1958), 260 F.2d 444, Note 2. Likewise, a declaratory judgment is improper when a cause is moot[2] in view of the fact that the question presented for decision seeks a judgment upon a matter which, even if the sought judgment were granted, could not have any practical effect upon the parties. Flight Engineer's International Association v. Trans World Airlines (8 Cir. 1962), 305 F.2d 675.
Were we to grant plaintiff's request and consider the merits of the issues he insists are still before the Court, we would be issuing an advisory opinion and we would be deciding a question that cannot now affect the rights of the parties herein, Oil Workers Union v. Missouri, 361 U.S. 363, 367, 80 S. Ct. 391, 4 L. Ed. 2d 373 (1960), in view of the fact that plaintiff was given a hearing on this cause and there is nothing the defendant could do but what it has already done. Furthermore, we would find ourselves deciding an abstract proposition, North Carolina v. Rice, 404 U.S. 244, 246, 92 S. Ct. 402, 30 L. Ed. 2d 413 (1971), when we can only exercise judicial power when there is a case or controversy before the Court.
In view of the foregoing, the Court hereby
Orders, adjudges and decrees that plaintiff's complaint be dismissed.
NOTES
[1] Although this cause was filed under Title 42, United States Code, Section 405(g), as a final decision of the defendant, subject to review by this Court, it properly presents a request for a declaratory judgment, action which is authorized by Title 28, United States Code, Section 2201.
[2] Moot questions are not to be judicially determined through a declaratory judgment, for it would be a determination of a non-justiciable issue. A declaratory judgment will only be entered in cases and controversies which are such in the constitutional sense. 6 Moore's Federal Practice, Section 57.13, at 3071 (2d ed. 1965). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381175/ | 586 F.3d 1025 (2009)
Thomas WHITE, Petitioner-Appellee,
v.
Carol R. HOWES, Respondent-Appellant.
No. 08-1458.
United States Court of Appeals, Sixth Circuit.
Submitted: June 19, 2009.
Decided and Filed: November 20, 2009.
*1026 ON BRIEF: Brad H. Beaver, Office of the Michigan Attorney General, Lansing, Michigan, for Appellant. C. Mark Pickrell, Waller Lansden Dortch & Davis, LLP, Nashville, Tennessee, for Appellee.
Before: McKEAGUE and WHITE, Circuit Judges; MARBLEY, District Judge.[*]
OPINION
WHITE, Circuit Judge.
Respondent Carol Howes, Warden of the correctional facility at which Petitioner Thomas White is serving Michigan state court sentences, appeals from the district court's order granting habeas relief. We reverse.
I
This court reviews de novo a district court's decision to grant a writ of habeas corpus, as well as the court's legal conclusions. Ruimveld v. Birkett, 404 F.3d 1006, 1010 (6th Cir.2005); Armstrong v. Morgan, 372 F.3d 778, 781 (6th Cir.2004).
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d), a federal court may not grant a writ of habeas corpus unless it finds that the state court's decision (1) "was contrary to, or involved an unreasonable application of, clearly established Federal law ..." or (2) "was based on an unreasonable determination of the facts...." Armstrong, 372 F.3d at 781, quoting 28 U.S.C. § 2254(d)(1). Only the first clause is at issue here.
II
The district court's Opinion and Order granting in part Petitioner's Petition for Writ of Habeas Corpus sets forth the underlying facts and procedural history:
* * * Petitioner was convicted of (1) felon-in-possession of a firearm, MICH. COMP. LAWS § 750.224F, (2) carrying a concealed weapon ("CCW"), MICH. COMP. LAWS § 750.227, and (3) possession of a firearm during the commission of a felony-second offense, MICH. COMP. LAWS § 750.227B, in the Oakland County, Michigan, Circuit Court. On February 15, 2005, Petitioner pleaded guilty to the above-stated charges, in addition to the charge of driving while license suspended. Petitioner also pleaded guilty to being a habitual offender fourth offense.
* * *
In his pleadings, Petitioner challenges his convictions for both felon-in-possession of a firearm and felony-firearm....
II. Statement of Facts
*1027 Petitioner's convictions arise from a traffic stop in the city of Troy, Michigan. After stopping Petitioner for speeding, the police officers conducted a LEIN check, which showed that Petitioner's driver's license was suspended. Petitioner was placed under arrest for driving with a suspended license. The police then searched Petitioner's car and found a loaded shotgun and a loaded handgun in the trunk.
* * *
On March 2, 2005, the trial judge sentenced Petitioner to the five years on the felony-firearm-second offense, to run consecutive to the convictions of felon-in-possession, CCW, and driving while license suspended. The trial court then imposed a fourteen-months-to-twenty year term of imprisonment on the felon-in-possession and carrying a concealed weapon convictions, with ninety-five (95) days credit as time served for the remaining conviction. The felon-in-possession, CCW, and driving-while-license-suspended sentences were to run concurrent to each other and consecutive to the felony-firearm-second-count sentence.
Following sentencing, Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals asserting the following:
I. [Petitioner's] sentence for carrying a concealed weapon cannot be consecutive to the sentence for felony-firearm.
II. [Petitioner's] convictions of both felon-in-possession of a firearm and felony-firearm violate double jeopardy.
On August 29, 2005, the Michigan Court of Appeals agreed with Petitioner's first claim, and remanded the case for a correction of Petitioner's sentences, but denied the application for leave to appeal in all other respects.... People v. Thomas Clifford White, No. 263988 (Mich.Ct.App. Aug. 29, 2005).
Subsequently, Petitioner filed an application for leave to appeal to the Michigan Supreme Court, raising claim II from the Michigan Court of Appeals' direct appeal, and adding an additional claim regarding the ineffective assistance of counsel[.]
* * *
The Michigan Supreme Court denied the application because "we are not persuaded that the questions presented should be reviewed by this Court." People v. Thomas Clifford White, 474 Mich. 1020, 708 N.W.2d 386 (2006) (Cavanagh and Kelly, JJ., would grant leave to appeal). Petitioner has not filed a motion for relief from judgment under M.C.R. 6.500 et. seq. [sic]
Petitioner filed the present habeas petition, on February 17, 2006, raising the same claims as raised in the Michigan Supreme Court. (Docket # 1.)....
A
The district court analyzed the Double Jeopardy issue as follows:
b) Multiple Punishments for an Offense
The doctrine regarding the Double Jeopardy Clause draws a crucial distinction between multiple punishments for the same conduct (permissible) and multiple punishments for the same offense (impermissible). While the issue can be confusing, it is clear to this Court that a conviction under both the felon in possession statute and the felony firearm statute constitutes multiple punishment for the same offense, and is therefore in violation of the Double Jeopardy Clause.
It is well established that the Double Jeopardy Clause does not prohibit a state from defining conduct to constitute two separate criminal offenses. Missouri *1028 v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983) (finding that when "a legislature specifically authorizes cumulative punishments under two statutes, ... a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishments under such statutes in a single trial")....
In the case at hand, the Michigan Supreme Court, applying the expressio unis est exclusio alterius [sic] canon of construction to the language of the statute, has concluded that "the Legislature's intent in drafting the felony-firearm statute was to provide for an additional felony charge and sentence whenever a person possessing a firearm committed a felony other than those four explicitly enumerated in the felony-firearm statute." People v. Mitchell, 456 Mich. 693, 575 N.W.2d 283, 285 (1998).... However, a focus on legislative intent is misguided, as this case does not involve multiple convictions arising out of the same "conduct," Hunter, 459 U.S. at 368, 103 S.Ct. 673, but instead involves multiple punishments on a single offense.
The felon in possession statute states, in pertinent part, that:
"(1) Except as provided in subsection (2), a person convicted of a felony shall not possess, use, transport, sell, purchase, carry, ship, receive, or distribute a firearm in this state [unless certain circumstances are met]." MICH. COMP. LAWS § 750.224f.
The felony-firearm statute states, in pertinent part, that:
"A person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony, except a violation of section 223 [unlawful sale of a firearm], section 227 [carrying a concealed weapon], 227a [unlawful possession by licensee] or 230 [alteration of identifying marks on a weapon], is guilty of a felony." MICH. COMP. LAWS § 750.227b(1).
Under § 750.224f, Petitioner was found guilty because (1) he was a felon (2) in possession of a firearm. Under § 750.227b, Petitioner was found guilty because he was (1) a person in possession of a firearm (2) while committing a felony (the felony being the same § 750.224f. After substituting the elements of § 750.224f, we find that Petitioner was convicted under § 750.227b for being (1) a person in possession of a firearm (2) while he was a felon (3) in possession of a firearm. Considering that (3) is redundant, this is exactly the same charge as § 750.224f. Therefore, anyone convicted of "felon in possession" is always guilty of felony-firearm. This is double punishment at its most basic, as it constitutes multiple punishments for the same offense. Pearce, 395 U.S. at 717, 89 S.Ct. 2072; Ohio v. Johnson, 467 U.S. 493, 500, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) (holding that the double jeopardy clause protects against "cumulative punishments for convictions on the same offense").
Federal court rulings upholding multiple convictions have involved convictions for felony predicate crimes (such as felony murder) and their underlying felonies. See Hunter, (finding that double jeopardy does not prohibit a conviction of Missouri's "felony with a deadly weapon" statute and the underlying felony of armed robbery); Brimmage v. Summer, 793 F.2d 1014, 1015 (9th Cir. 1986) (finding that double jeopardy does not prohibit a conviction of both felony murder and the underlying felony or robbery).... The case at hand, however, does not involve multiple crimes arising out of a single act, but rather a double prosecution of the same offense. That is, the conviction of felon in possession *1029 and felony firearm is not the logical equivalent of a conviction of robbery and felony murder it is the logical equivalent of a conviction of murder and felony murder. Such a conviction would be entirely circular and would constitute convicting the defendant of the same crime twice in violation of the Double Jeopardy Clause. See United States v. Wilson, 420 U.S. 332, 339, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975) (holding that the underlying premise of double jeopardy was "that a defendant should not be twice tried or punished for the same offense"). The facts in the case at hand are distinguishable from the Hunter/Whalen line of cases, as this case involves multiple punishment of the same offense, rather than the same conduct.
B
The issue is clearly drawn. The district court acknowledged the Supreme Court's holding in Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), that where "a legislature specifically authorizes cumulative punishment under two statutes, ... a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishments under such statutes in a single trial." The Hunter Court further stated:
With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.
* * *
[ ] simply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger[1] test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes....
[Hunter, 459 U.S. at 365-66, 368, 103 S.Ct. 673.] The district court also accurately observed that the Michigan Supreme Court's decision in People v. Mitchell, 456 Mich. 693, 575 N.W.2d 283 (1998), is a clear determination by that court that the Michigan Legislature intended to include felon-in-possession as a predicate felony for purposes of the felony-firearm statute.[2] The district court further recognized that the Michigan Supreme Court's determination in Mitchell is binding on a federal habeas court. See Banner v. Davis, 886 F.2d 777, 780 (noting that "once a state court has determined that the state legislature intended cumulative punishments, a federal habeas court must defer to that determination").
The district court continued its inquiry beyond this point, concluding that because the two statutes do not simply punish the same conduct, but the same exact offense, a "focus on legislative intent is misguided," *1030 and the Michigan court's denial of relief constituted an unreasonable application of federal law. In support of the district court's conclusion, White argues that this court must reconcile two different lines of Supreme Court cases the Blockburger/Pearce[3] line of cases that recognize that a person may not receive multiple punishments for the same offense, and the Whalen/Hunter[4] line of cases that appear "on the surface to limit Blockburger and Pearce by transmogrifying the Blockburger test into a rule of mere statutory construction." [Appellee Br. p. 9.] White argues that "the Supreme Court's decisional language in Whalen and Hunter is [in]applicable in a situation in which two separate statutes, with separate penalties, each define the same criminal offense." [Appellee Br. p. 10.]
The question then is whether the Michigan Legislature can constitutionally provide that a felon who possesses a firearm shall be convicted of and punished for violating two criminal statutes: felon in possession of a firearm, and possession of a firearm while being a felon in possession of a firearm. We have no quarrel with the district court's determination that this case presents a rather unusual circumstance in that the two offenses are really the same offense (one cannot commit felon in possession of a firearm without simultaneously violating the felony-firearm statute), but the highest state court has found a legislative intent to punish under both statutes.[5] Nevertheless, White has cited no cases, and we have found none,[6] where a state legislature was found to have violated the *1031 double jeopardy bar against multiple punishment by imposing multiple punishment for the same offense.[7]
In Banner, 886 F.2d at 780-81, this court addressed the question whether the Tennessee offenses of aggravated assault, in violation of Tenn.Code § 39-2-101, and shooting into an occupied dwelling, in violation of Tenn.Code § 39-2-115, are the same offense for double jeopardy purposes. Like the district court in the instant case, we recognized that:
Whether punishments are multiple under the double jeopardy clause is essentially a question of legislative intent. Id. [Ohio v. Johnson, 467 U.S. 493] at 499, 104 S.Ct. at 2540, 81 L.Ed.2d 425; Missouri v. Hunter, 459 U.S. 359, 366-68, 103 S.Ct. 673, 678-79, 74 L.Ed.2d 535 (1983).
When assessing the intent of a state legislature, a federal court is bound by a state court's construction of that state's own statutes. See Missouri v. Hunter, 459 U.S. at 368, 103 S.Ct. at 679; O'Brien v. Skinner, 414 U.S. 524, 531, 94 S.Ct. 740, 744, 38 L.Ed.2d 702 (1974). Under the double jeopardy clause, when evaluating whether a state legislature intended to prescribe cumulative punishments for a single criminal incident, a federal court is bound by a state court's determination of the legislature's intent. See Ohio v. Johnson, 467 U.S. at 499, 104 S.Ct. at 2541.....
Thus, for purposes of double jeopardy analysis, once a state court has determined that the state legislature intended cumulative punishments, a federal habeas court must defer to that determination. See Smith v. Sowders, [848 F.2d 735 (6th Cir.1988)], (Kentucky Court of Appeals determination binding); Hall v. Wainwright, [493 F.2d 37 (5th Cir. 1974)].
[Banner, 886 F.2d at 780.] Banner had urged this court to apply the Blockburger test to determine whether the two offenses are one for double jeopardy purposes. The court declined to do so, noting the Supreme Court's statement in Ohio v. Johnson, 467 U.S. at 493, n. 8, 104 S.Ct. 2536:
It should be evident from our decision in Missouri v. Hunter, however, the Blockburger test does not necessarily control the inquiry into the intent of a state legislature. Even if the crimes are the same under Blockburger, if it is evident that a state legislature intended to authorize cumulative punishments, a court's inquiry is at an end.
[Banner, 886 F.2d at 780-81.] Nevertheless, the Banner panel continued its inquiry in light of this court's en banc decision in Pryor v. Rose, 724 F.2d 525 (6th Cir. 1984), explaining:
In Pryor, a habeas case involving the question of multiple punishments, our en banc court independently interpreted the scope of Tennessee criminal statutes for purposes of double jeopardy analysis. While indicating that the views of the Tennessee Supreme Court on the double jeopardy issue were entitled to consideration, id. at 530, relying upon Whalen v. United States, 445 U.S. 684, 692, 100 S.Ct. 1432, 1438, 63 L.Ed.2d 715 (1980), and its application of Blockburger, we held that multiple punishment was forbidden under the double jeopardy clause. In evaluating Pryor's claim *1032 and holding that the Tennessee legislature did not intend cumulative punishments, we stated: "We therefore hold that the Tennessee legislature has not clearly indicated that consecutive sentences are proper in the situation presented by this case." 724 F.2d at 531 (emphasis supplied). Analysis in prior Tennessee cases, we held, was "wholly unacceptable under Whalen, which requires that the legislature `clearly indicate' that consecutive sentences are permissible for offenses which are the same under the Blockburger test." Id.
Thus, in evaluating Banner's claim in light of Blockburger, there is a tension between: (1) adherence to the multiple punishment determination made by the Tennessee Court of Criminal Appeals and Tennessee Supreme Court and (2) application of the Blockburger test (which is used as a gauge for determining legislative intent) as it was interpreted in Whalen and applied in Pryor. This ambiguity is underlined by the Supreme Court's statement in Ohio v. Johnson that "The Blockburger test does not necessarily control the inquiry into the intent of a state legislature." 467 U.S. at 493 n. 8, 104 S.Ct. at 2541 n. 8 (emphasis supplied). To resolve this tension, we must determine whether a state court judgment must establish that the state legislature clearly intended cumulative punishment before a federal court is bound by that determination for purposes of double jeopardy analysis, as is apparently indicated by Pryor.
[Banner, 886 F.2d at 781.] The Banner panel discussed its uncertainty over the scope of Blockburger, id. at 782, distinguished Pryor as "limited to a narrow situation in which the state courts below had failed to give a clear expression on the issue of cumulative punishment," id., and ultimately concluded that because the Tennessee courts had already held that the Tennessee Legislature intended cumulative punishments, further analysis under Blockburger would be improper.[8]
In the instant case, although we agree with the district court that the two statutes at issue here punish the same offense under Blockburger, we can find no basis upon which to make the distinction drawn by the court in granting the habeas petition. While this may be the case that prompts the Supreme Court to refine its analysis, the Court has never held or intimated that the constitutional bar against double jeopardy circumscribes the legislative prerogative to define crimes and prescribe punishment in the context of a single prosecution. While no case is directly on point in upholding multiple punishments under two statutes that define the same offense as these do here, the Supreme Court has repeatedly described the third aspect of the Double Jeopardy Clause the protection against multiple punishments for the same offense imposed in a single proceeding as protecting only against the imposition of punishment in excess of that authorized by the legislature.[9]
*1033 Indeed, in the face of repeated assertions of this principle in majority opinions of the Supreme Court, only Justice Marshall (joined by Justice Stevens, in Missouri v. Hunter, 459 U.S. at 369-71, 103 S.Ct. 673), and Justice Stewart (joined by Justices Marshall and Stevens, in Albernaz, 450 U.S. at 344, 101 S.Ct. 1137), have expressed the view that the multiple-punishment aspect of the Double Jeopardy Clause limits a legislature's power to define offenses and prescribe punishment.[10]*1035 More recently, Justice Scalia has expressed the view that the prohibition against multiple punishment is not "a free-standing constitutional prohibition implicit in the Double Jeopardy Clause," but rather, "an aspect of the Due Process Clause requirement of legislative authorization." Dep't of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 798, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994) (Scalia, J., dissenting, joined by Thomas, J.); Hudson v. United States, 522 U.S. 93, 106, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997) (Scalia, J., concurring, joined by Thomas, J.). Neither Justice Marshall's nor Justice Scalia's view has been adopted by a majority of the Court. The current jurisprudence allows for multiple punishment for the same offense provided the legislature has clearly indicated its intent to so provide, and recognizes no exception for necessarily included, or overlapping offenses.
We therefore REVERSE.
NOTES
[*] The Honorable Algenon L. Marbley, United States District Judge for the Southern District of Ohio, sitting by designation.
[1] Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Under Blockburger, "The test to be applied to determine whether there are two offenses or only one [and thus whether multiple punishments are permissible under the double jeopardy clause of the fifth amendment], is whether each provision requires proof of a fact which the other does not." Id. at 304, 52 S.Ct. 180.
[2] Mitchell addressed the double jeopardy issue in the context of dual convictions of receiving or concealing a stolen firearm or ammunition and felony-firearm. The court's analysis focused on what it determined to be a clear statement of legislature intent to except only the four enumerated felonies from serving as predicate felonies for the felony-firearm charge. The court's decision in Mitchell squarely addresses the controlling issue of legislative intent here. The Michigan Court of Appeals found Mitchell controlling with respect to the convictions at issue here in People v. Dillard, 246 Mich.App. 163, 631 N.W.2d 755 (2001).
[3] Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).
[4] Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), and Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983).
[5] Most similar situations end with a judicial determination that the legislature did not intend to authorize multiple punishment. For example, in Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985), the Supreme Court determined that Congress did not intend that a felon possessing a firearm be convicted under 18 U.S.C. § 922(h)(1), for receiving that firearm, and also under 18 U.S.C. § 1202(a)(1) for possessing the same weapon. Similarly, in Whalen, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), the Supreme Court held that Congress did not intend to authorize multiple punishments for killing in the course of a rape and rape.
[6] The cases cited by the district court do not address the issue either. See North Carolina v. Pearce, 395 U.S. 711, 723, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (holding that neither the Double Jeopardy Clause nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon reconviction, thus affirming defendant's higher sentence on being reconvicted, after he had been tried and convicted, appealed, and won a new trial); Ohio v. Johnson, 467 U.S. 493, 499, 500-502, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984) (where multiple charges were brought in a single indictment, holding that permitting the State to pursue the greater charges of murder and aggravated robbery, even after defendant pleaded guilty to the lesser charges of manslaughter and theft, did not implicate the Double Jeopardy Clause, and noting "[b]ecause the substantive power to prescribe crimes and determine punishments is vested with the legislature, the question under the Double Jeopardy Clause whether punishments are `multiple' is essentially one of legislative intent," citing Missouri v. Hunter); Schiro v. Farley, 510 U.S. 222, 229-30, 114 S.Ct. 783, 127 L.Ed.2d 47 (1994) (holding that an initial sentencing proceeding is not a successive prosecution and does not violate the Double Jeopardy Clause where defendant argued he could not be sentenced to death based on the intentional murder aggravating circumstance, because the sentencing proceeding amounted to a successive prosecution for intentional murder); and United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975) (discussing "the policies underlying the [Double Jeopardy] Clause in order to determine more precisely the boundaries of the Government's appeal rights in criminal cases" and holding that the Clause does not bar a government appeal from a ruling in the defendant's favor after a guilty verdict).
[7] Relying on Banner, this court has previously determined, in a Rule 34 case decided by unpublished opinion without argument, that a defendant's convictions of felon in possession of a firearm and felony-firearm did not violate the prohibition against double jeopardy. Rodgers v. Bock, 49 Fed.Appx. 596 (2002).
[8] The court concluded:
Contrary to Banner's assertion, then, we may not use the Blockburger test-a rule of statutory construction for federal statutes to independently evaluate the scope of the Tennessee statutes here, the Tennessee Court of Criminal Appeals and Supreme Court having already held that the legislature intended cumulative punishments. Accordingly, Banner has not been assessed cumulative punishments in violation of the double jeopardy clause.
[9] In Jones v. Thomas, 491 U.S. 376, 109 S.Ct. 2522, 105 L.Ed.2d 322 (1989), the Supreme Court explained:
Our cases establish that in the multiple punishments context, that interest is "limited to ensuring that the total punishment did not exceed that authorized by the legislature." United States v. Halper, 490 U.S. 435, 450, 109 S.Ct. 1892, 1903, 104 L.Ed.2d 487 (1989); see Johnson, supra, 467 U.S. at 499, 104 S.Ct., at 2540; Missouri v. Hunter, 459 U.S. 359, 366-367, 103 S.Ct. 673, 678-679, 74 L.Ed.2d 535 (1983). The purpose is to ensure that sentencing courts do not exceed, by the device of multiple punishments, the limits prescribed by the legislative branch of government, in which lies the substantive power to define crimes and prescribe punishments. See, e.g., Johnson, supra, 467 U.S. at 499, 104 S.Ct., at 2540. In this case, respondent's conviction of both felony murder and attempted robbery gave rise to a double jeopardy claim only because the Missouri Legislature did not intend to allow conviction and punishment for both felony murder and the underlying felony. E.g., Hunter, supra, 459 U.S. at 368, 103 S.Ct., at 679; see also Morgan, supra, 612 S.W.2d, at 1; [State v.] Olds, supra, 603 S.W.2d [501], at 510 [(Mo. 1980)] (construing Missouri statute).
Given that, in its application to the case before us, "the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended," Hunter, supra, 459 U.S. at 366, 103 S.Ct., at 678, the state-court remedy [vacating the attempted-robbery conviction and sentence and giving credit against the felony-murder sentence] fully vindicated respondent's double jeopardy rights.
[10] In Missouri v. Hunter, the Missouri Supreme Court had repeatedly interpreted the Blockburger test as precluding convictions of armed criminal action and armed robbery based on the same conduct, notwithstanding that the Missouri legislature had expressed its clear intent that a defendant should be subject to conviction and sentence under both statutes. The Missouri Supreme Court had stated:
"Until such time as the Supreme Court of the United States declares clearly and unequivocally that the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution does not apply to the legislative branch of government, we cannot do other than what we perceive to be our duty to refuse to enforce multiple punishments for the same offense arising out of a single transaction." 619 S.W.2d, at 51.
[Hunter, 459 U.S. at 364-65, 103 S.Ct. 673.] The Hunter majority responded:
This view manifests a misreading of our cases on the meaning of the Double Jeopardy Clause of the Fifth Amendment; we need hardly go so far as suggested to decide that a legislature constitutionally can prescribe cumulative punishments for violation of its first-degree robbery statute and its armed criminal action statute.
III
* * * Particularly in light of recent precedents of this Court, it is clear that the Missouri Supreme Court has misperceived the nature of the Double Jeopardy Clause's protection against multiple punishments. With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.
In Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980), we addressed the question whether cumulative punishments for the offenses of rape and of killing the same victim in the perpetration of the crime of rape was contrary to federal statutory and constitutional law. A divided Court relied on Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), in holding that the two statutes in controversy proscribed the "same" offense.....
In Whalen we also noted that Blockburger established a rule of statutory construction in these terms:
The assumption underlying the rule is that Congress ordinarily does not intend to punish the same offense under two different statutes. Accordingly, where two statutory provisions proscribe the `same offense,' they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent." 445 U.S., at 691-692, 100 S.Ct., at 1437-1438 (emphasis added).
We went on to emphasize the qualification on that rule:
"[W]here the offenses are the same ... cumulative sentences are not permitted, unless elsewhere specially authorized by Congress." Id., at 693, 100 S.Ct., at 1438 (emphasis added).
It is clear, therefore, that the result in Whalen turned on the fact that the Court saw no "clear indication of contrary legislative intent."....
In Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981), we addressed the issue whether a defendant could be cumulatively punished in a single trial for conspiracy to import marihuana and conspiracy to distribute marihuana. There, in contrast to Whalen, we concluded that the two statutes did not proscribe the "same" offense in the sense that "`each provision requires proof of a fact [that] the other does not.'" 450 U.S. at 339, 101 S.Ct. at 1142, quoting Blockburger, supra, 284 U.S., at 304, 52 S.Ct., at 182. We might well have stopped at that point and upheld the petitioners' cumulative punishments under the challenged statutes since cumulative punishment can presumptively be assessed after conviction for two offenses that are not the "same" under Blockburger. See, e.g., American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946). However, we went on to state that because:
"[t]he Blockburger test is a `rule of statutory construction,' and because it serves as a means of discerning congressional purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent." Albernaz v. United States, supra, 450 U.S., at 340, 101 S.Ct., at 1143 (emphasis added).
We found "[n]othing ... in the legislative history which ... discloses an intent contrary to the presumption which should be accorded to these statutes after application of the Blockburger test." Ibid. We concluded our discussion of the impact of clear legislative intent on the Whalen rule of statutory construction with this language:
[T]he question of what punishments are constitutionally permissible is no different from the question of what punishment the Legislative Branch intended to be imposed. Where Congress intended, as it did here, to impose multiple punishments, imposition of such sentences does not violate the Constitution." Id., at 344, 101 S.Ct., at 1145 (emphasis added) (footnote omitted).
Here, the Missouri Supreme Court has construed the two statutes at issue as defining the same crime. In addition, the Missouri Supreme Court has recognized that the legislature intended that punishment for violations of the statutes be cumulative. We are bound to accept the Missouri court's construction of that State's statutes. See O'Brien v. Skinner, 414 U.S. 524, 531, 94 S.Ct. 740, 743, 38 L.Ed.2d 702 (1974). However, we are not bound by the Missouri Supreme Court's legal conclusion that these two statutes violate the Double Jeopardy Clause, and we reject its legal conclusion.
Our analysis and reasoning in Whalen and Albernaz lead inescapably to the conclusion that simply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes. The rule of statutory construction noted in Whalen is not a constitutional rule requiring courts to negate clearly expressed legislative intent. Thus far, we have utilized that rule only to limit a federal court's power to impose convictions and punishments when the will of Congress is not clear. Here, the Missouri Legislature has made its intent crystal clear. Legislatures, not courts, prescribe the scope of punishments.
[Hunter, 459 U.S. at 365-68, 103 S.Ct. 673.] Justice Marshall, in dissent, responded:
* * * For the reasons stated below, I do not believe that the phrase "the same offence" should be interpreted to mean one thing for purposes of the prohibition against multiple prosecutions and something else for purposes of the prohibition against multiple punishment.
First-degree robbery and armed criminal action constitute the same offense under the test set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). To punish respondent for first-degree robbery, the State was not required to prove a single fact in addition to what it had to prove to punish him for armed criminal action. The punishment imposed for first-degree robbery was not predicated upon proof of any act, state of mind, or result different from that required to establish armed criminal action. Respondent was thus punished twice for the elements of first-degree robbery: once when he was convicted and sentenced for that crime, and again when he was convicted and sentenced for armed criminal action.
A State has wide latitude to define crimes and to prescribe the punishment for a given crime. For example, a State is free to prescribe two different punishments (e.g., a fine and a prison term) for a single offense. But the Constitution does not permit a State to punish as two crimes conduct that constitutes only one "offence" within the meaning of the Double Jeopardy Clause. For whenever a person is subjected to the risk that he will be convicted of a crime under state law, he is "put in jeopardy of life or limb." If the prohibition against being "twice put in jeopardy for "the same offence is to have any real meaning, a State cannot be allowed to convict a defendant two, three, or more times simply by enacting separate statutory provisions defining nominally distinct crimes. If the Double Jeopardy Clause imposed no restrictions on a legislature's power to authorize multiple punishment, there would be no limit to the number of convictions that a State could obtain on the basis of the same act, state of mind, and result. A State would be free to create substantively identical crimes differing only in name, or to create a series of greater and lesser-included offenses, with the first crime a lesser-included offense of the second, the second a lesser-included offense of the third, and so on.
[Missouri v. Hunter, 459 U.S. at 369-71, 103 S.Ct. 673 (Marshall, J., dissenting, joined by Stevens, J.) footnotes omitted.] | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1380964/ | 646 P.2d 558 (1982)
Curt BLUDSWORTH, Judi Bludsworth, Appellants,
v.
The STATE of Nevada, Respondent.
No. 13100.
Supreme Court of Nevada.
June 18, 1982.
J. Gregory Damm, State Public Defender, Robert Bork, Deputy Public Defender, Carson City, for appellant Judi Bludsworth.
Daniel U. Smith, Belli & Choulos, San Francisco, Cal., Gary Logan, Las Vegas, for appellant Curt Bludsworth.
Richard H. Bryan, Atty. Gen., William A. Maddox, Dist. Atty., Carson City, for respondent.
OPINION
SPRINGER, Justice:
This is a case of child abuse which tragically ended in the death of two-year old Eric Johnson, the son of appellant Judi Bludsworth and stepson of appellant Curt Bludsworth. Eric died after sustaining severe head injuries. Following Eric's death, the state instituted criminal proceedings against the appellants. Curt was convicted by a jury of child abuse and second-degree *559 murder. Judi was convicted by the same jury of child abuse.
Appellants assert that numerous errors were committed in the trial below. Curt's principal argument is that the state failed to prove beyond a reasonable doubt that Eric died as a result of his criminal act. At trial, the defense had claimed that Curt accidentally injured Eric by dropping him as Eric and he climbed the stairs in the family home. Appellants argue that all evidence presented at trial was consistent with the theory that Eric's injury was accidental. We disagree.
There was ample evidence to support the criminal convictions. A number of expert witnesses testified that Eric was a victim of the battered child syndrome, an accepted diagnosis signifying serious and persistent physical abuse. The expert opinion that the victim was a battered child, coupled with some additional proof, has been held sufficient to permit a jury to conclude that the child injury occurred "at the culpable hands of its parents." People v. Henson, 33 N.Y.2d 63, 349 N.Y.S.2d 657, 665-66, 304 N.E.2d 358, 366-67 (N.Y. 1973); accord People v. Barnard, 93 Mich. App. 590, 286 N.W.2d 870 (1979).
Curt was alone with Eric at the time of the fatal injury, and he admitted involvement in the purported accident. In addition to the overwhelming evidence that Eric was a battered child, there was other important evidence to refute Curt's explanation of the event. Expert medical testimony, including evidence of the unusual placement and severity of bruises on the top of Eric's head contradicted the accident theory. The combined evidence was sufficient to establish the corpus delicti for each criminal conviction.
During the trial, considerable evidence was presented that Eric had sustained numerous bruises, including a bite mark on his scrotum, prior to the day of his fatal injury.
Appellants claim prejudicial error from the admission of this evidence. Appellants first assert that expert medical testimony concerning the bite mark was incompetent because it was based upon inadequate and inconclusive evidence.
The trial court properly admitted expert opinion testimony that the bruise on Eric's scrotum resulted from a human bite. Prior to the presentation of the evidence to the jury, the court held an in camera hearing to determine the competence of the evidence. The court found the expert, a forensic odontologist, to be properly qualified. The expert witness acknowledged the inherent limitations in his investigation. Because the bite mark was located on pliable tissue, the expert testified that it was impossible to make an ideal comparison between the bite mark and a dental impression of either appellant; however, the expert was able to testify, based on a reasonable dental certainty, that the bruises on Eric's scrotum were caused by human teeth. The trial court properly concluded that any dispute over the evidence went to its weight and not its admissibility.
Appellants also erroneously argue that the bite mark evidence and evidence of other bruises were incompetent because there was no prior establishment, by clear and convincing evidence, that either Curt or Judi was responsible for each of the prior injuries.[1] Admissibility of the bite mark and other bruise evidence does not depend on connecting either defendant to the infliction of the injury. It is independent, relevant circumstantial evidence tending to show that the child was intentionally, rather than accidentally, injured on the day in question. Proof that a child has experienced injuries in many purported accidents is evidence that the most recent injury may not have resulted from yet another accident. See Barnard, supra.
*560 Appellants also claim that the trial court committed prejudicial error in refusing to sever the trials on the murder and child abuse charges.[2] Both appellants base their arguments on the assumption that certain evidence which was admissible on one count was inadmissible on the other count. Curt argues that the evidence of prior injuries, if admissible at all, was admissible only on the child abuse count and was therefore prejudicial on the murder count. Judi argues the opposite.
We cannot agree with either appellant. The child abuse and murder counts were properly joined since they arose out of the same series of acts. NRS 173.115 permits joinder in such instances.[3] The information clearly limited the charge of child abuse to the events occurring on September 3, 1979, the date of the fatal injury. The trial court repeatedly advised the jury that the evidence was not admissible to prove separate prior acts of child abuse; it was admissible only as circumstantial evidence to prove culpability for the events of September 3. The evidence was clearly relevant to both the murder and child abuse charges. Since both charges related to the same transaction and since the allegedly prejudicial information was admissible on both counts, the trial court did not err in refusing to sever the counts.
Appellants next claim that the Nevada child abuse statute is unconstitutionally vague. Both appellants were convicted under NRS 200.508, which authorizes criminal penalties for any adult "who willfully causes or permits a child ... to suffer unjustifiable physical pain or mental suffering as a result of abuse or neglect... ." Appellants charge that the phrase "unjustifiable physical pain or mental suffering" is unconstitutionally vague.
Our statute, as applied to these appellants, is clearly constitutional. A criminal statute is unconstitutionally vague only if one cannot reasonably understand that contemplated conduct is proscribed. United States v. National Dairy Corp., 372 U.S. 29, 32-33, 83 S. Ct. 594, 597-98, 9 L. Ed. 2d 561 (1963). The state alleged and proved that appellants either struck Eric on the head or permitted him to be struck. In light of the evidence concerning the violence or force used against Eric and the severity of his injuries, it is untenable for appellants to claim that they could not have reasonably known their conduct was criminal.
We have considered the other assignments of error presented by appellants and find them to be without merit.[4] The convictions of both appellants are affirmed.
GUNDERSON, C.J., and MANOUKIAN, MOWBRAY and STEFFEN, JJ., concur.
NOTES
[1] With respect to the bite mark, the forensic odontologist testified that although the scrotal tissue was too pliable to permit a perfect comparison, he was able to determine that the bite mark was not made by Judi; and while he could not be certain that Curt Bludsworth was responsible for the injury, the expert concluded that Curt's dentition was consistent with the mark.
[2] NRS 174.165 provides that trials on separate counts may be severed if either party would be prejudiced by joinder.
[3] NRS 173.115 provides as follows:
NRS 173.115 Joinder of offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are:
1. Based on the same act or transaction; or
2. Based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
[4] Appellant Curt Bludsworth has also questioned whether child abuse might be a lesser included offense of murder. To determine whether punishment on two charges would constitute double jeopardy, the applicable test is "whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), See also Litteral v. State, 97 Nev. 503, 634 P.2d 1226 (1981). There is at least one element in each offense which is not present in the other. Conviction for murder requires, of course, that the victim die. Conviction for child abuse requires, among other things, that the victim be under the age of eighteen. Child abuse thus is not a lesser included offense of murder. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1380886/ | 130 F. Supp. 59 (1955)
Alfred G. NELSON, Sr. and Alfred G. Nelson, Jr., partners, trading as Nelson Piling Company, Plaintiffs,
v.
PETER KIEWIT SONS' CO. (Inc.), S. J. Groves & Sons Company (Inc.), Al Johnson Construction Co., (Inc.), and Condon-Cunningham, Inc., corporations, joint venturers, trading as North Atlantic Constructors, Defendants.
Civ. A. No. 71-54.
United States District Court, D. New Jersey.
April 6, 1955.
*60 Koehler, Augenblick & Freedman, Bernard Freedman, Newark, N. J., for plaintiffs.
Raymond Del Tufo, Jr., U. S. Atty., Charles H. Hoens, Jr., Asst. U. S. Atty., Newark, N. J., for petitioners.
HARTSHORNE, District Judge.
This suit on book account was instituted in the Superior Court of New Jersey, Law Division, Essex County, by plaintiffs, citizens and residents of Essex County, New Jersey, against defendants as joint venturers, trading as North Atlantic Constructors. Only defendants S. J. Groves & Sons Company (Inc.) Groves and Peter Kiewit Sons' Co. (Inc.) Kiewit were served, by service upon their agents for the service of process. Such defendants filed a petition for removal of the cause to this Court, alleging as grounds therefor diversity of citizenship, in that Groves was a citizen and resident of Minnesota, with its principal place of business in Minneapolis, and Kiewit was a citizen and resident of Nebraska, with its principal place of business in Omaha. The petition further alleged, as to the defendants not served, that the Johnson corporation was a citizen and resident of Delaware, while the Condon-Cunningham corporation was a Nebraska corporation.
*61 The petition was not verified, nor signed by any of the defendants, the signature thereto reading:
William F. Tompkins
United States Attorney
Attorney for Petitioners
Charles H. Hoens, Jr.
Assistant U. S. Attorney
Nor was any removal bond filed.
Plaintiff was served with notice of the filing of the petition. On stipulation shortly thereafter, an order was obtained extending time to answer. Plaintiff now moves to remand the cause to the Superior Court of New Jersey, on the grounds that (1) the petition for removal was not verified, (2) some of the defendants did not join in the petition, and (3) no removal bond was filed, despite the elapsing of the time for filing the removal petition.
(1) While the removal statute[1] calls for the filing of a "verified petition" and a bond, the courts have established the rule that mere details in the steps for removal, without substantial effect on the rights of the parties, are but "modal and formal", irregularities in the pursuit of which are not fatal, let alone jurisdictional, and are consequently either subject to waiver, or are curable, even after the time to file petition for removal has expired. In Kramer v. Jarvis, D.C.Neb.1948, 81 F. Supp. 360, Judge Delehant has cited many decisions in that regard, though reaching the conclusion that the removing defendant there had simply failed utterly to follow the statutory requirements, so that a remand followed.
Of course, the time for filing the petition and its substantial nature are important. But these are covered by the petition itself, not the verification, the latter being but formal, whose purpose, at best, is to give some assurance as to the verity of the facts stated in the petition, for the protection of the plaintiff whose case has been removed. But this protection of the plaintiff is furnished primarily by the removal bond. Hence the lack of a verification is not fatal, but is curable, with reasonable promptitude.
(2) As to the fact that all defendants named in the complaint did not join in the petition, but only those who have been served as defendants, it is well settled that defendants named, but not yet made parties, need not join in removing a suit in which they are not yet concerned. Driscoll v. Burlington, etc. Bridge Co., D.C.N.J.1949, 82 F. Supp. 975, 985. Further, even if the stipulation for the extension of time to answer constituted an appearance on behalf of the defendants not served, since this joint stipulation and order was not filed till after the petition for removal was filed, it cannot affect the validity of the petition, which speaks as of the time it was filed.
(3) However, the lack of the filing of any removal bond whatever, within the time limited for removal, raises a more serious question. As to such bond, the statute[2] provides "Each petition for removal of a civil action or proceeding, except a petition in behalf of the United States, shall be accompanied by a bond with good and sufficient surety, conditioned that the defendant or defendants will pay all costs and disbursements * * *" in case of remand. The statute further provides "Promptly after the filing of such petition and bond the defendant or defendants shall give written notice thereof to all adverse parties and shall file a copy of the petition with the clerk of such State court, which shall effect the removal * * *." The bond therefore has the important purpose of protecting plaintiff in case the removal is wrongful. Not only does the statute also indicate that the filing of the bond, among other things, is essential to "effect the removal", but should the removing defendants perchance be unable thereafter to procure "a bond with good and sufficient surety", plaintiff would be wronged, and left without the important *62 remedy that Congress intended he should have. In situations where a removal bond is requisite, no case has been cited to the Court, or found, where the lack of a removal bond after the expiration of the time for removal, has been held curable, if not waived. The utmost the courts have done is to waive irregularities in a properly filed bond, or to permit its filing after the petition, provided it is filed before the time for removal has expired. Tucker v. Kerner, 7 Cir., 1950, 186 F.2d 79, 23 A.L.R. 2d 1027.[3]
Thus, because of the important protective purposes which the removal bond serves, the total failure to file it timely would not seem a mere irregularity, curable after the time for removal has expired provided, of course, such a bond is requisite at all.
The point is now pressed by the "United States Attorney, Attorney for Petitioners" such petitioners being solely Groves and Kiewit that no removal bond is requisite under the statute, because of the provision therein that "a petition in behalf of the United States" need not be accompanied by a bond that "defendants will pay all costs and disbursements". Plaintiff denies that the removal petition is one filed "in behalf of the United States". The solution of this issue thus depends on the petition itself and the proper construction of the removal statute in the light of its purpose.
The prime purpose of the removal bond is to be sure that, if the removal turns out to be wrongful, plaintiff, thus wronged, shall be assured of the collection of his "costs and disbursements", as ordered by the Court to be paid. But of course these "costs and disbursements" can be ordered by the Court to be paid, only by a party to the suit, specifically, the removing defendant. On general principles, the Court is powerless to order costs paid by one not a party to the suit, and over whom it thus has no jurisdiction and this quite regardless of the terms of the statute. Hence one who removes a cause, and is subject to the imposition of costs by the Court if the removal is wrongful, must be a party to the suit.
Turning to the petition, we find (a) the United States is not even mentioned in the petition itself, (b) the sole petitioners are the two defendant corporations, Groves and Kiewit, (c) the grounds of the petition are not those which concern the United States in any wise, but on the other hand the diversity of citizenship of Groves and Kiewit from that of plaintiffs, (d) the U. S. Attorney who signs, after describing himself as United States Attorney, and without reference to any connection of the United States with the removal petition, adds that he is "Attorney for Petitioners" Groves and Kiewit. There is not the slightest basis, therefore, to hold that the United States itself has, by the petition, become a party subject to the jurisdiction of the Court, and subject therefore to the imposition of removal costs and disbursements. Thus, if the removal is wrongful, this petition gives plaintiff not the slightest protection, as intended by the Congress, to collect costs and disbursements, as imposed by order of the Court. The United States is here not a party, against whom costs can be ordered (even where Congress has granted such authority), and the actual removal petitioners have furnished no bond.
True, the United States and its officers and agencies, when representing the sovereignty, can have costs imposed on them by the courts only when Congress permits. F.R.C.P. 54(d), 28 U.S. C.A. In cases where this can be done, it obviously can be done only as to a party to the suit, on the general principles alluded to above. But in cases where costs can not be imposed, even as to the United States, when a party to the suit, the plaintiff, whose suit is wrongly removed *63 by the United States itself, is stripped of the limited protection which Congress intended to give him normally in the form of the removal bond. He cannot obtain an order for costs against the United States, since the Congress has not authorized it by other legislation than the removal statute. He cannot obtain it against the individual defendants under the removal statute, since not they, but the United States, have filed the removal petition. This of itself is a hardship. Nor can it be presumed that Congress intended to increase this hardship, by lessening its limited protection to plaintiff more often than the words of the statute reasonably require. In fine, a removal petition filed "in behalf of the United States" can only mean the normal petition filed by the United States as a party to the cause. It can not fairly be construed to cover the relatively numerous additional petitions, filed in the name of a private party, where some remote interest of the United States, of policy or otherwise, has been a motivating factor in its filing. Such cases often arise, where removal petitions are filed in the names of some of the countless employees of the United States, whom the United States Attorney normally appears in court to protect, as a matter of governmental policy. If these latter cases were to be considered as included in the petitions filed "in behalf of the United States," in none of them could plaintiff require a bond either of the United States or of the private party who filed the removal petition, and thus the Congressional intent to give limited protection to the plaintiff would be largely thwarted. Indeed, the statute hereafter alluded to (see footnote 4), in effect for many years, so far as here pertinent, used very different words than "in behalf of the United States" in speaking of the requirement of security for costs in the class of cases last referred to. This, of itself, goes far to show that Congress did not intend to cover this latter class of cases the situation in the case at bar when it spoke of petitions filed "in behalf of the United States".
The suggestion is made solely in the briefs and without a word in the petition or the rest of the record that, in any event, the United States will ultimately pay Groves and Kiewit, or plaintiff, for any costs and disbursements assessed against Groves and Kiewit and even though they have filed no bond, as required by the statute because the instant cause of action is based upon their contract with the United States, to do work for it in Greenland. But, even if this Court should be controlled by off-the-record facts, these facts give this Court no right to impose removal costs and disbursements on the United States for a wrongful removal, even assuming the United States to be subject to costs otherwise. Nor do they give any right to a plaintiff so wronged to recover such costs and disbursements from the United States. His right, and this Court's right, so to do, lie only against Groves and Kiewit, the sole removing petitioners. It is suggested that the present situation is similar to that of a casualty insurance company which, by its contract with the insured, is authorized to have the company attorney take up the defense of a suit against the insured. But even if this be a correct analogy, it is well settled that normally that contract gives the insurance company itself no standing in the suit. Any action by its attorney must be in the name of the insured here the corporate defendants, who have given no bond. Since the United States is in no wise mentioned in the petition itself, and is not a party subject to the jurisdiction of the Court, the above situation, even if true, does not make the petition one filed "in behalf of the United States," against whom costs and disbursements can be ordered. Nor is this situation at all changed by the fact that the United States Attorney describes himself as such, when, in the next breath, he states that he is acting as "Attorney for Petitioners" Groves and Kiewit. Of course, *64 it is to be assumed that the United States Attorney is not acting wrongfully, but in some way to protect the interests of the United States, unstated, and remote from the case itself, though they be. This is his right, not to say his duty, as where, for instance, he represents an official under attack, such as the Chief Justice of the Court of Claims of the United States, as in Booth v. Fletcher, 1938, 69 App.D.C. 351, 101 F.2d 676, or, as is more usual, a subordinate employee, such as a mail truck driver. But in either case, when, as here, the petitions for removal are in the name of the individual, the petition is not one filed "in behalf of the United States," but in behalf of the individual, the removing petitioner, the party defendant against whom alone costs and disbursements on removal may be ordered by the Court. Hence the removal statute itself does not relieve the removing petitioners, Groves and Kiewit, from the duty of filing the removal bond.
However, subsequent to the oral argument, it was, for the first time, suggested in a supplemental brief that no removal bond need be filed by reason of an entirely different statute.[4] It is stated solely in this brief, and without support in the record, that Groves and Kiewit were "acting under the direction of" a department or agency of the United States in filing the removal petition, and thus no "security for * * * costs" could be required of such corporate defendants themselves. Again this Court cannot base its action upon an off-the-record statement. But of course this statute is in pari materia with the removal statute, and a bond for costs can hardly be required of a party not subject to costs.
This latter statute was a part of the revision of the entire old Judicial Code, specifically of its Section 870.[5] Wherever this revision was of substance, and other than of phraseology, the revisers were careful to note same in writing under the respective sections, these notes being before the Congress at the time of the adoption of the new Code. Therefore they were presumptively adopted by the Congress in the light of such notes, and in accord with the intention of the revisers. Ex parte Collett, 337 U.S. 55, 61 (1948). Section 870 provided that security for costs should not be required from the same parties stated in the present statute "either to prosecute said suit, or to answer in damages or costs." In other words, the old statute prevented the requirement of costs from such parties, including "any party acting under the direction * * * of any department" of the Government, whether such party was plaintiff or defendant. While the revisers note carefully all other changes in substance made by them in Section 870, they note no change in substance as to changing this protection of such party defendants from the requirement of security for costs, though they do note that there were other changes made in mere phraseology. Since the present statute covers the requirements of "security for damages or costs" generally, without allusion to whether such party is acting as plaintiff or defendant, it is therefore clear that the revisers intended, and consequently the Congress intended, to retain, by the above general language in the new statute, as a mere change in phraseology, the substance of Section 870, in relieving the same parties from furnishing security for costs, when acting as defendants, as well as plaintiffs. Thus the new statute applies to Groves and Kiewit in the removal petition here, if, in such removal, they were "acting under the direction of any such department or agency". Furthermore, since *65 the removal statute does not require any such proof to appear in the petition, it may be made later than the removal, if made with reasonable expedition.
It would therefore seem that the removing defendants, Groves and Kiewit, should be given an opportunity to establish on the record that they were, in filing the removal petition, "acting under the direction of" some Government "department or agency". Further, the present removal petition should be verified with reasonable expedition.
An order may accordingly be entered continuing the motion for remand, pending prompt action by the removing defendants Groves and Kiewit consistent with this opinion.
NOTES
[1] Title 28 U.S.C.A., Judiciary, § 1446(a).
[2] Title 28 U.S.C.A., Judiciary, § 1446, subsections (d) and (e).
[3] Such is the general purport of the reasoning in the many cases gathered in 45 A.J., Removal of Causes, pages 914 and 915, Bond for Removal, and 76 C.J.S., Removal of Causes, § 216.
[4] Title 28 U.S.C.A., Judiciary, § 2408.
"Security for damages or costs shall not be required of the United States, any department or agency thereof or any party acting under the direction of any such department or agency on the issuance of process or the institution or prosecution of any proceeding. * * *"
June 25, 1948, chapter 646, 62 Stat. 972 (italicizing this Court's).
[5] Title 28 U.S.C.A., Judicial Code, § 870 (1928 ed.) R.S. § 1001. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381002/ | 646 P.2d 1243 (1982)
98 N.M. 179
Lawrence KING, Plaintiff-Appellee,
v.
James E. LUJAN, Frank Stockton, Roy B. Olguin, and Golden Tee, Inc., a New Mexico corporation, Defendants-Appellees,
v.
Arthur TANUZ, Defendant-Appellant.
No. 13910.
Supreme Court of New Mexico.
June 14, 1982.
*1244 Thomas J. Clear, Jr., Albuquerque, for appellant.
Edward G. Parham, Albuquerque, for appellees.
OPINION
FEDERICI, Justice.
On May 8, 1970, plaintiff-appellee agreed to sell to defendant-appellant a cocktail lounge, equipment, fixtures and a liquor license. Upon appellant's failure to pay according to their agreement, appellee filed suit on November 17, 1971, for a return of the lounge, equipment, fixtures, inventory and liquor license, or in the alternative, specific performance of the purchase agreement.
On August 5, 1974, the trial court entered an order waiving the three-year rule under N.M.R.Civ.P. 41(e), N.M.S.A. 1978 (Repl. Pamp. 1980), thereby continuing the suit. On July 8, 1975, an order for dismissal without prejudice for lack of prosecution was entered sua sponte by the court under N.M.R.Civ.P. 41(b), N.M.S.A. 1978 (Repl. Pamp. 1980). On August 17, 1979, an order reinstating the suit was entered. Appellant subsequently filed a motion to dismiss. This motion was denied. The trial court held for the appellee, finding that:
3. The Defendant assumed the mortgage in the amount of $52,914.00, and signed the promissory note for $17,085.88. The Defendant, however, only paid $1,000 as down payment, which left a balance owing of $14,000.
* * * * * *
8. At a later hearing on the merits * * the Defendant * * * testified that he had paid the entire balance of $15,000.00 and that he had the cancelled checks and receipt. The Defendant, however, did not have the cancelled checks or receipts in his possession, and he asked leave of the Court for time to produce evidence of payment.
Following a series of hearings at which the court permitted appellant to provide evidence showing payment of the $14,000 balance, the court concluded that appellant had provided no such evidence and that the appellee was entitled to entry and enforcement of judgment in this amount.
The issue raised on appeal is whether, under these circumstances, the trial court had jurisdiction to reinstate this case nearly eight years after the suit was originally filed. We hold that the trial court was without jurisdiction to reinstate the case. In addressing this issue, we must consider the effect of the applicable statute of limitations as well as the effect of the dismissal without prejudice for lack of prosecution on the status of this lawsuit.
The appropriate statute of limitations is Section 37-1-3(A), N.M.S.A. 1978, which requires that actions "founded upon any * * * promissory note * * * or other contract in writing * * * [must be brought] within six years." Filing of the complaint is commencement of the action which generally tolls the applicable statute of limitations. Prieto v. Home Ed. Livelihood Program, 94 N.M. 738, 616 P.2d 1123 (Ct.App. 1980). In deciding this case, we must necessarily decide whether the statute of limitations is tolled by a suit which is dismissed without prejudice, or whether we treat a dismissal without prejudice as actually leaving the situation as though suit had never been brought and the statute of limitations never tolled.
After a consideration of the purpose and policies underlying Rule 41, we adopt the view that even though the filing of a suit ordinarily tolls the applicable limitations period, when an action is dismissed *1245 without prejudice because of a failure to prosecute, the interruption is considered as never having occurred. Suppeland v. Nilz, 128 Ariz. 43, 623 P.2d 832 (1981). See Owens v. Weingarten's, Inc., 442 F. Supp. 497 (W.D.La. 1977); Barrentine v. Vulcan Materials Company, 216 So.2d 59 (Fla.App. 1968); Keel v. Parke, Davis & Co., 72 A.D.2d 546, 420 N.Y.S.2d 726 (1979); Fittro v. Alcombrack, 23 Wash. App. 178, 596 P.2d 665 (1979).
As the court stated in Moore v. St. Louis Music Supply Co., Inc., 539 F.2d 1191 (8th Cir.1976), we hold that a dismissal without prejudice operates to leave the parties as if no action had been brought at all. Following such dismissal the statute of limitations is deemed not to have been suspended during the period in which the suit was pending.
A party who has slept on his rights should not be permitted to harass the opposing party with a pending action for an unreasonable time. Rule 41(e) specifically addresses this concern. Holding that a Rule 41(b) dismissal without prejudice tolls the statute for the time the case was pending could conceivably extend the time for bringing suit indefinitely; the plaintiff could continuously refile but never act to bring the case to its conclusion. Furthermore, the courts should not distinguish between a plaintiff who takes no action before the limitations period expires and a plaintiff who files a complaint before the period expires but who thereafter takes no action. A plaintiff who files near the end of the limitations period benefits from being able to prosecute his claim after the period has expired, but if he fails to take advantage of that opportunity, and suffers dismissal for failure to prosecute, there is no reason to let him have an extended period in which to sue.
It is not necessary for us to determine the exact date that appellee's cause of action accrued; it had certainly accrued by the date appellee filed suit, November 17, 1971. As we held above, the statute of limitations is not deemed to have been suspended during the period in which the suit was pending. The statute had run continuously at least since the suit was filed in November of 1971, and this cause of action was time barred as of November 1977. Accordingly, the trial court's reinstatement of this case in 1979 was improper. Where the period of limitations has run, a dismissal without prejudice is tantamount to dismissal with prejudice. 5 J. Moore, Moore's Federal Practice § 41.11[2] at 41-145 (2d ed. 1981).
The trial court is reversed. This cause of action is hereby dismissed with prejudice and the trial court shall enter an order to this effect.
IT IS SO ORDERED.
EASLEY, C.J., and PAYNE, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381233/ | 244 Ga. 157 (1979)
259 S.E.2d 90
CITY OF MACON
v.
SMITH.
35111.
Supreme Court of Georgia.
Submitted July 6, 1979.
Decided September 6, 1979.
J. Michael Carpenter, Andrew W. McKenna, for appellant.
Paul C. Myers, for appellee.
HILL, Justice.
This appeal raises the question of the constitutionality of the City of Macon's disorderly conduct ordinance.
The defendant reentered a motel lounge in blue jeans and barefooted after "happy hour" ended and the motel dress code had gone into effect. When she was asked to leave, she gestured to the doorman with her hand, retracting the first, third and little fingers and leaving the second finger prominently extended, denominated by the arresting officer as "shooting a bird." Although she also expressed herself orally to the doorman, the arresting officer testified clearly that the disorderly conduct he arrested and charged her for was "shooting a bird."
Based on the foregoing evidence, the defendant was found guilty of violating section 9-6006 of the Macon code. That section provides as follows: "It shall be unlawful for any person to act in a violent, turbulent, boisterous, indecent or disorderly manner or to use profane, vulgar, or obscene language in the city, tending to disturb good order, peace, and dignity in said city."
At the outset of the municipal court trial, the defendant had attacked the ordinance as being too vague, indefinite and uncertain to give the defendant reasonable notice of the prohibited conduct in violation of her right to due process of law under the state and federal constitutions. Following her conviction (a fine of $75, suspended), defendant sought certiorari to the superior court raising the above constitutional challenge. Citing Charmichael v. Allen, 267 FSupp. 985 (N. D. Ga. 1967), the superior court held the ordinance unconstitutional. The city appeals.
Although the city ordinance in question does prohibit certain speech, it is not automatically invalid under the first amendment.[1] The United States Supreme *158 Court has held that certain well-defined and narrowly limited classes of speech are not protected by the first amendment. Chaplinsky v. New Hampshire, 315 U. S. 568, 571-72 (62 SC 766, 86 LE 1031) (1942). Among the unprotected classes of speech are "`fighting' words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Chaplinsky, supra.
However, state legislation which prohibits speech is unconstitutionally vague if the language is so broad or indefinite as to permit the application of the statute to speech that is protected by the first and fourteenth amendments. To withstand constitutional attack, a statute or ordinance which prohibits speech "must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression." Gooding v. Wilson, 405 U. S. 518, 522 (92 SC 1103, 31 LE2d 408) (1972).
In Gooding v. Wilson, supra, the United States Supreme Court held unconstitutional Code Ann. § 26-6303, which prohibited "opprobrious words or abusive language, tending to cause a breach of the peace..." In that case the Supreme Court held the statute unconstitutionally overbroad after finding that the Georgia appellate courts had not narrowed and limited the application of the statute to fighting words. The implication is clear that had there been such a narrowing construction, the language of the statute itself would be constitutionally permissible. Gooding, supra at 524.
The city clearly has a legitimate interest in prohibiting as disorderly conduct speech which falls into the category of fighting words. The city should not be powerless to act until after the fight begins. It is true that the ordinance on its face may be susceptible to a broad construction and hence application to speech which is protected under the first amendment. However, legislative enactments should be construed, where susceptible to more than one meaning, so as to be constitutional rather than being construed so as to be unconstitutional. Forrester v. Culpepper, 194 Ga. 744, 749 (22 SE2d 595) (1942).
We note that the words "good order, peace and *159 dignity" are joined conjunctively thereby necessitating that a disturbance of the peace be shown. We interpret the conduct "tending to disturb... peace" as modifying the forepart of the ordinance as well as the latter part and as tending to incite an immediate breach of the peace; i.e., as tending to incite an immediate fight. In other words, we construe this ordinance to prohibit only those words, expressions or acts which have a direct tendency to cause immediate acts of violence by the person to whom the speech or act is addressed. Construed as being applicable only to fighting words or acts, the ordinance is not unconstitutional on its face.[2]
Turning to the application of the statute to the defendant in this case, the record does not indicate that her conduct was sufficiently belligerent to incite an immediate breach of the peace. While we do not condone her action, which was vulgar and offensive, it cannot fairly be characterized as "fighting words" under the circumstances of this case. Accordingly, the application of the ordinance to this defendant was unconstitutional and her conviction cannot stand.
Judgment affirmed. All the Justices concur, except Undercofler, P. J., Jordan and Bowles, JJ., who dissent.
NOTES
[1] Symbolic acts are treated as speech. Tinker v. Des Moines School Dist., 393 U. S. 503, 505 (89 SC 733, 21 LE2d 731) (1969).
[2] The very similar ordinance held to be unconstitutional in Charmichael v. Allen, 267 FSupp. 985, supra, had not been and could not be narrowly construed in that case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381235/ | 151 Ga. App. 222 (1979)
259 S.E.2d 207
DAVIS
v.
THE STATE.
58126.
Court of Appeals of Georgia.
Argued July 2, 1979.
Decided September 5, 1979.
*224 J. Douglas Willix, for appellant.
Lewis R. Slaton, District Attorney, Joseph J. Drolet, Benjamin H. Oehlert, III, Assistant District Attorneys, for appellee.
CARLEY, Judge.
Davis was convicted of criminal attempt to commit armed robbery, carrying a pistol without a license, and carrying a concealed weapon. After denial of his motion for new trial, Davis appeals and enumerates here as in *223 his motion for new trial only the general grounds.
The state's evidence showed that Davis, along with co-defendant Love, entered the victim's place of business appearing to be prospective customers. When Love sought to purchase a soft drink, the victim took Love's money and, as he proceeded to the cash register to make change, both defendants approached him. Hearing one of the defendants state, "This is it," the victim looked up to see a gun in the hands of Davis. Reacting with indignation rather than fear, the victim successfully took the weapon from Davis and fired at Davis and Love, at which time both defendants attempted to exit the victim's premises and were apprehended in an alley adjacent to the victim's place of business.
Although Davis did not testify, he relied upon evidence offered by Love depicting a scenario wherein the victim was engaged in illegal gambling with the defendants entering the victim's establishment solely for the purpose of collecting a winning lottery ticket. On this basis, defendants sought to convince the jury that the victim was the aggressor. However, the guilty verdict indicates that the jury was unpersuaded; and this verdict must be upheld if there was evidence supporting the state's version of the occurrence. Harris v. State, 149 Ga. App. 374 (254 SE2d 518) (1979); Walker v. State, 146 Ga. App. 555 (246 SE2d 737) (1978); Bethay v. State, 235 Ga. 371 (219 SE2d 743) (1975). While the jury can and must weigh and analyze the evidence, an appellate court, in reviewing on the general grounds, is restricted to determining if there is sufficient evidence to support the verdict of the jury. Kendrick v. State, 146 Ga. App. 513 (246 SE2d 505) (1978); Minor v. State, 139 Ga. App. 168 (228 SE2d 33) (1976). Here the evidence was sufficient to authorize the jury to find, beyond a reasonable doubt, that Davis was guilty of the crimes charged and, therefore, his convictions must be affirmed.
Judgment affirmed. Deen, C. J., and Shulman, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381245/ | 151 Ga. App. 252 (1979)
259 S.E.2d 493
BUCK
v.
THE STATE.
57980.
Court of Appeals of Georgia.
Submitted June 11, 1979.
Decided September 7, 1979.
Frank L. Derrickson, for appellant.
H. R. Thompson, District Attorney, for appellee.
QUILLIAN, Presiding Judge.
In this appeal from defendant's conviction for armed robbery and aggravated battery, the sole issue presented is whether the defendant was deprived of his constitutional rights by the systematic exclusion of blacks from the grand and traverse jury rolls. Held:
1. The defendant did not raise his constitutional attack until after judgment when he filed his motion for new trial. "It has long been the requirement in this state that a criminal defendant must raise any challenge that he has to the jury lists at the time the jury is `put upon him' or else he waives his right to object ... Ordinarily the issue as to whether a particular segment of citizens eligible for jury duty has been systematically excluded from the jury box of the county cannot be raised for the first time after the trial, verdict of guilty and imposition of sentence by motion for new trial." Collins v. State, 143 Ga. App. 583, 585 (239 SE2d 232). Accord, Paul v. State, 144 Ga. App. 106 (8) (240 SE2d 600).
However, the defendant has raised an issue as to whether there was a knowing waiver of his rights. Where a defendant seeks to excuse a failure to timely challenge the composition of a jury he must show that he had no knowledge of the illegal composition prior to indictment. Estes v. State, 232 Ga. 703, 708 (2) (208 SE2d 806); Durham v. State, 239 Ga. 697, 701 (b) (238 SE2d 334). In this regard an affidavit by the trial attorney was introduced which, as summarized by the trial judge, recited in part "(1) [he] never seriously considered bringing a jury challenge; (2) he was aware such a challenge could be made; (3) he had little or no idea of the actual racial or sexual demographics of Washington County; (4) he did not intentionally waive the right to a jury challenge; and, (5) his failure to make the challenge was not made for any tactical reason."
Since vital rights are involved, we assume arguendo that the defendant has made such showing as will permit a post judgment attack and consider the issue presented on its merits.
2. The defendant had the burden of showing jury *253 discrimination. The requirements for making out a prima facie case for discrimination in the composition of a grand or petit jury are met when the defendant establishes "that an opportunity for discrimination existed from the source of the jury list and that use of the infected source produced a significant disparity between the percentages found present in the source and those actually appearing on the grand and traverse jury panels." Fouts v. State, 240 Ga. 39, 41 (239 SE2d 366). Accord, Davis v. State, 241 Ga. 376, 378 (247 SE2d 45).
In Pass v. Caldwell, 231 Ga. 192 (1) (200 SE2d 720) the Supreme Court considered a factual situation similar to the case sub judice and there held: "It appears from the evidence that 5.13% of the grand jury venire from which appellant's grand jury was drawn consisted of blacks. It also appears that the percentage of blacks in DeKalb County is 11%. This is not the percentage of those eligible to be selected, but the total percentage in the county. The number of presumptively eligible jurors of the black race in DeKalb County is not known from the record in this proceeding. Under Wright v. Smith, [474 F2d 349] supra, the showing required is a large disparity between those eligible and those chosen, and proof that there was purposeful discrimination in the selection process." Accord, Johnson v. Caldwell, 228 Ga. 776, 780 (6) (187 SE2d 844).
Here the defendant relies on the 1970 census as the source for the black population of the county and the jury lists for 1974 and 1976. The defendant contends the lists were marked to designate the race and sex of each juror to wit: BM, BF, WM & WF (presumably black male, black female, white male and white female respectively). However, the prosecution did not concede the designations accurately reflect the racial composition of the jury lists and the trial judge did not so find. The trial judge noted that in 1971 the Fifth Circuit upheld the Federal District Court's ruling that there was no showing of racial discrimination as to the Washington County jury composition. See Wiggins v. Haynes, 439 F2d 848 (5th Cir. 1971).
The defendant did not establish a prima facie case since he failed to show a significant disparity between the *254 eligible black jurors and those chosen. Hence, the trial judge did not err in denying the defendant's motion for new trial.
Judgment affirmed. Smith and Birdsong, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381247/ | 151 Ga. App. 353 (1979)
259 S.E.2d 736
BUCK
v.
BUCK.
58220.
Court of Appeals of Georgia.
Submitted July 10, 1979.
Decided September 14, 1979.
Charles A. DeVaney, for appellant.
David S. Wilkin, for appellee.
QUILLIAN, Presiding Judge.
Appeal was taken from a judgment awarding the plaintiff $2,536 for child support for the period from August, 1975 to August, 1976 predicated on a New Jersey divorce decree. Held:
"A litigant in the courts of this State relying on the judgment of a sister State in support of or in defense to an action is in general entitled to have such a judgment accorded the same full faith and credit, and no more, as it would receive in the State where rendered, and such a judgment by a court of competent jurisdiction of another State is to this extent conclusive on its merits in the courts of this State." Kelly v. Kelly, 115 Ga. App. 700, 701 (155 SE2d 732).
In our consideration of the issues herein involved we have examined thoroughly the New Jersey cases which were cited in the trial court and to this court. In Slep v. Slep, 43 N. J. Super. 538, 542 (129 A2d 317) the following principles are enunciated: "As there is no vested right to recover unpaid arrearages of alimony or maintenance, for it is always within the power of the court to modify its original order with retroactive effect, and thus to reduce the amount of unpaid arrearages or to extinguish same entirely, it follows that the court has authority to decline to make orders facilitating collection of such unpaid *354 arrearages. In all such matters the court exercises a sound discretion based upon equitable principles." See Tancredi v. Tancredi, 101 N. J. Super. 259 (244 A2d 139) and Biddle v. Biddle, 150 N. J. Super. 185 (375 A2d 285).
Georgia has recognized the maxim that "A decree for alimony in future monthly installments granted in a sister State is enforceable in this State as to all sums due and unpaid thereunder upon which recovery issought, and does not lack the quality of finality because not first reduced to a judgment in the foreign state stating the total accrued amount sought to be recovered." Napier v. Napier, 119 Ga. App. 143 (166 SE2d 583). Accord, McLendon v. McLendon, 66 Ga. App. 156 (17 SE2d 252); Roberts v. Roberts, 174 Ga. 645 (163 SE 735). Nevertheless, in Ryle v. Ryle, 130 Ga. App. 680, 685 (204 SE2d 339) this court cited the Supreme Court decision of Sistare v. Sistare, 218 U. S. 1, 16 (30 SC 682, 54 LE 905) for the proposition "[G]enerally speaking, where a decree is rendered for alimony and is made payable in future installments the right to such installments becomes absolute and vested upon becoming due, and is therefore protected by the full faith and credit clause, provided no modification of the decree has been made prior to the maturity of the installments ... [T]his general rule, however, does not obtain where by the law of the State in which a judgment for future alimony is rendered the right to demand and receive such future alimony is discretionary with the court which rendered the decree, to such an extent that no absolute or vested right attaches to receive the installments ordered by the decree to be paid, even although no application to annul or modify the decree in respect to alimony had been made prior to the installments becoming due."
Since under the New Jersey law as interpreted by the appellate courts of that state the payments involved in this case could have been modified by the New Jersey Court of Chancery retroactively and in its discretion based on equitable principles, it is therefore clear that the judgment herein involved lacked the requisite finality and was not entitled to full faith and credit. Hence, in the absence of a final judgment from the New Jersey courts which could be enforced by the courts of this state it was *355 error to award payments to the plaintiff.
Judgment reversed. Smith and Birdsong, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1380969/ | 233 Ga. 919 (1975)
213 S.E.2d 879
WHITE
v.
FIREMAN'S FUND INSURANCE COMPANY et al.
29503.
Supreme Court of Georgia.
Submitted December 30, 1974.
Decided March 6, 1975.
Weltner, Kidd, Crumbley & Tate, R. Alex Crumbley, F. Carter Tate, for appellant.
Glaze & Glaze, George E. Glaze, Thomas K. McWhorter, for appellees.
HILL, Justice.
This appeal challenges the constitutionality of that portion of Code Ann. § 56-1202 (4) (Ga. L. 1960, pp. 289, 500, as amended by Ga. L. 1969, p. 740), which fixes the venue for a suit on the bond of a sheriff or other arresting or law enforcement officer in the county of residence of such officer.
The action arose when appellant Miriam T. White filed suit in Fulton Superior Court for the alleged wrongful death of her husband occurring on March 12, 1973, in the Clayton County jail. Named as defendants were Fireman's Fund Insurance Company (FFIC) and Robert A. Deyton, the Sheriff of Clayton County, as surety *920 and principal on the sheriff's public official bond, certain deputy sheriffs and a policeman with the Lake City police department, each a resident of Clayton County, and the John Doe Surety Company (the names of the sureties on the public official bonds of the deputy sheriffs and police officer being unknown to the plaintiff at the time of filing her suit).
Admitting and conceding that FFIC's principal place of business was in Fulton County, the defendants filed defenses and motions to dismiss asserting that proper venue for the action was in Clayton County, because under Code Ann. § 56-1201 (4) a suit against a surety can only be brought in the county of residence of the law enforcement officer.
The plaintiff filed responses to the motions to dismiss contending that FFIC was subject to suit in Fulton County and since the other defendants were joint obligors or joint trespassers with the named surety and its principal, the sheriff, venue was properly in Fulton County under the Georgia Constitution (Art. VI, Sec. XIV, Par. IV; Code Ann. § 2-4904); and that Code Ann. § 56-1201 (4), being in conflict therewith, was unconstitutional. Art. VI, Sec. XIV, Par. IV (Code Ann. § 2-4904), supra, provides that "Suits against joint obligors, joint promissors, co-partners, or joint trespassers residing in different counties, may be tried in either county."
After hearing, the Fulton Superior Court dismissed the complaint for improper venue as to all the defendants, holding that Code Ann. § 56-1201 (4) was controlling and not unconstitutional for any of the reasons urged. Plaintiff appeals.
1. The FFIC bond on Sheriff Deyton provides in part that "we bind ourselves ... jointly and severally." In 1937, in Carlan v. Fidelity & Cas. Co., 183 Ga. 715 (3) (189 S.E. 527), this court held that: "The sheriff and his bondsman are such joint contractors or obligors that they may be sued in the county of the residence of either, for a violation of the bond," citing Code §§ 3-204 and 56-601. Code § 3-204 is the statutory counterpart of the constitutional provision here in issue. Code Ann. § 2-4904.
Thus, the sheriff and his bondsman are joint obligors within the meaning of Code Ann. § 2-4904, which provides *921 that suits against joint obligors residing in different counties may be tried in either county.
However, the other Code section cited in Carlan, § 56-601, has since been amended.
2. The Georgia Insurance Code of 1960 (Ga. L. 1960, pp. 289-764; Code Ann. Title 56), enacted the following (p. 500, Code Ann. § 56-1201 (4)): "[F]or the purpose of bringing suit under this subsection a company ... which has become surety for the performance of an obligation in a particular county shall be deemed to be transacting business in such county and shall be deemed to be a legal resident of such county: Provided further that any action or suit on the bond of a sheriff, or other arresting or law enforcement officer ... upon which any guaranty or surety company or fidelity insurance company is bound and obligated as surety, shall be instituted in the county of the residence of such officer, and not in any other county; and the county of the residence of such officer is hereby fixed as the venue of any action or suit on such bond."
Appellant correctly argues that this court did not consider sheriffs' bonds in Dependable Ins. Co. v. Gibbs, 218 Ga. 305 (127 SE2d 454), where the validity of Code Ann. § 56-1201 (4) was upheld against the constitutional attacks made there.
Appellant concedes, as she must, that (except in certain circumstances not material here) the General Assembly may declare a corporation to be a resident of a county for venue purposes under Code Ann. § 2-4906, the general venue-residence provision. Dependable Ins. Co. v. Gibbs, 218 Ga. 308-309, supra, and cits. If, as conceded, the General Assembly may fix the residence of a corporation under Code Ann. § 2-4906, we know of no reason it cannot also fix the residence of a corporation under Code Ann. § 2-4904.
Appellant contends, however, that the General Assembly did not declare in subsection 4 of Code Ann. § 56-1201 that a surety on a sheriff's bond is a resident of the county of the sheriff. It is true that in the "Provided further" part of subsection 4, which declares that suits on bonds of sheriffs, etc., shall be brought in the county of residence of the officer and no other, the General Assembly did not declare the residence of the sheriff's *922 bonding company to be that of the sheriff.
However, the General Assembly had already fixed the residence of such sureties when it provided in the forepart of subsection 4 that "for the purpose of bringing suit under this subsection a company ... which has become surety for the performance of an obligation in a particular county ... shall be deemed to be a legal resident of such county."
Appellant's argument that the General Assembly is without authority to provide that a corporation cannot be sued in the county of its traditional residence (the county where its office is located), was decided adversely to appellant in Gilbert v. Ga. R. & Bkg. Co., 104 Ga. 412 (2,4) (30 S.E. 673).
The General Assembly has provided that the residence of FFIC for purpose of this suit, on the bond of the sheriff of Clayton County, is Clayton County.
The residence of the joint obligors under this bond being in the same county, Art. VI, Sec. XIV, Par. IV (Code Ann. § 2-4904) of the Constitution is not violated in this case by Code Ann. § 56-1201 (4).
The trial court properly dismissed the action for lack of venue in the Superior Court of Fulton County.
Judgment affirmed. All the Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381284/ | 151 Ga. App. 257 (1979)
259 S.E.2d 664
COX
v.
DEPARTMENT OF HUMAN RESOURCES.
58099.
Court of Appeals of Georgia.
Submitted July 2, 1979.
Decided September 7, 1979.
Joseph M. Todd, for appellant.
Larry A. Foster, Arthur K. Bolton, Attorney General, Carol Atha Cosgrove, Assistant Attorney General, for appellee.
CARLEY, Judge.
Appellant, the natural father of a two-year-old child, appeals from the order of the juvenile court terminating his parental rights to the child.
1. Appellant complains of the trial court's overruling of his objection to testimony of the representative of the Department of Human Resources concerning the representative's discussions with the natural mother of the child with regard to the conditions in the home. The department's representative explained that as the result of these discussions, further investigation ensued and culminated in the filing of the petition to terminate appellant's parental rights. Code Ann. § 38-302 provides that "[w]hen, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence, not as hearsay, but as original evidence." Since the testimony to which objection was made explained the conduct of the representative in connection with the subsequent investigation and the institution of this proceeding and was not offered for the purpose of showing the truth or falsity of any of the statements made, the same was admissible as original evidence. Johnson v. State, 149 Ga. App. 775, 776 (256 SE2d 51) (1979); Lundy v. State, 130 Ga. App. 171, 174 (4) (202 SE2d 536) (1973); Farley v. State, 145 Ga. App. 98, 102 (243 SE2d 322) (1978).
*258 2. We likewise find non-meritorious appellant's contention that the trial court erred in allowing the department's representative to testify as to her opinion concerning appellant's ability to care for the two-year-old child. The representative whose opinion was attacked testified that she had known appellant for about ten years and that she had personally observed him many times including at least five separate occasions during the year immediately preceding the hearing in this case. This court has held that "it is well settled that when the subject matter of any inquiry relates to numerous facts perceived by the senses, from a series of instances passing under the observation of a witness, or to a variety of circumstances and a combination of appearances, which, under the limitation of language, cannot be adequately described and presented to the jury with the same force and clearness as they appeared to the witness, the witness may state his impressions drawn from, and opinions based upon, the facts and circumstances observed by him or the effect which they produced upon his mind." In the interest of Gwen Smith, 143 Ga. App. 358, 360 (238 SE2d 725) (1977). The representative's testimony was properly admitted.
3. The appellant contends that the findings of the juvenile court terminating appellant's parental rights are without foundation "in fact and in law" and that there is no evidence to support the order terminating appellant's parental rights. The order appealed from reveals that the juvenile court found "that in spite of constant intervention of the agencies, [appellant and his wife] have been unable to learn even the basic skills necessary to provide for the child." There was evidence that the child was often filthy, was given spoiled milk, was brought to a hospital in a sick condition and abandoned at the hospital by the natural mother who subsequently voluntarily released her parental rights. The caseworker who conducted the investigation testified that the home of appellant was often dirty, had no indoor plumbing and that the exterior looked like a junkyard. The department's representative further stated that, in her opinion, appellant could not care for a child without outside help.
*259 Although it is indisputable that termination of parental rights is a severe measure, the record is replete with evidence supporting the trial court's conclusion that the appellant, "because of his age, his physical condition, and because of his inability to understand basic parental skills, would be unable to provide the child with proper parental care and control, and the proper subsistence necessary for his physical, mental and emotional health." See Wynn v. Dept. of Human Resources, 149 Ga. App. 559 (254 SE2d 883) (1979).
We are constrained to observe that this is the second appeal before this court involving this appellant and placing in issue the termination of his parental rights. In Cox v. Dept. of Human Resources, 148 Ga. App. 43 (250 SE2d 839) (1978), we affirmed the juvenile court's termination of the rights of appellant and his wife to an older daughter. Although this case is separate, the issue distinct and the justification for termination necessarily confined to the merits sub judice, we think that the record demands affirmance of the trial court's order because, as before, "[i]t is clear from the record in this case that the trial court applied the appropriate standards of Code Ann. §§ 24A-401 (h) and 24A-3201 (a) (2). The determination of the trial court that the child here involved is deprived and that the cause and conditions of that deprivation are likely to continue was supported by the evidence and will not be disturbed. Roberts v. State of Ga., 141 Ga. App. 268 (233 SE2d 224)." Cox v. Dept. of Human Resources, supra, 47. The findings and conclusions of the juvenile court are adequately supported by the record and we find no error. Wynn v. Dept. of Human Resources, supra.
Judgment affirmed. Deen, C. J., and Shulman, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381288/ | 259 S.E.2d 356 (1979)
43 N.C. App. 541
STATE of North Carolina
v.
Palmer Junior COFFEY.
No. 7924SC437.
Court of Appeals of North Carolina.
November 6, 1979.
*357 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Isham B. Hudson, Jr., Raleigh, for the State.
Charlie R. Brown, Blowing Rock, for defendant-appellant.
CLARK, Judge.
The defendant groups his assignments of error into three arguments as follows: (1) the essential element of intent is not shown by the evidence in the assault charge; (2) the trial court failed to instruct the jury as requested on his defense of intoxication; and (3) the trial court erred in charging on the defense of unconsciousness.
Clearly, intent is an essential element of the crime of assault, including an assault with an automobile, but intent may be implied from culpable or criminal negligence, State v. Eason, 242 N.C. 59, 86 S.E.2d 774 (1955), if the injury or apprehension thereof is the direct result of intentional acts done under circumstances showing a reckless disregard for the safety of others and a willingness to inflict injury. See Annot. 92 A.L.R.2d 635, 650 (1963); 61A C.J.S. Motor Vehicles § 597 (1970).
The evidence for the State was sufficient to show that defendant was operating the automobile in a dangerous and reckless manner and in complete disregard for the rights and safety of others. The negligence was culpable and criminal. State v. Weston, 273 N.C. 275, 159 S.E.2d 883 (1968). *358 The evidence was also sufficient to show that defendant could have reasonably foreseen that death or bodily injury would be the probable result of his actions. State v. Agnew, 202 N.C. 755, 164 S.E. 578 (1932).
Defendant's motion for nonsuit was properly denied. The evidence was sufficient to support the verdict and judgment.
The defendant submitted in writing a request that the court instruct the jury, in part, "that intoxication may negate the existence of such intent; that is if you find that the defendant [was intoxicated] to a degree that he was unable to form the specific intent to assault Dennis Miller . . then it would be your duty to return a verdict of not guilty."
The requested instructions are erroneous. Generally, voluntary intoxication is no defense to a charge of crime. State v. Hairston, 222 N.C. 455, 23 S.E.2d 885 (1943); State v. Couch, 35 N.C.App. 202, 241 S.E.2d 105 (1978). Intoxication is not a defense unless the crime charged requires a specific intent, such as first-degree murder. State v. Absher, 226 N.C. 656, 40 S.E.2d 26 (1946). See 21 Am.Jur.2d, Crim. Law § 107; Annot. 8 A.L.R.3d 1236 (1966). A specific intent is not a necessary element of either of the crimes charged in the case before us. There is no merit in this argument.
Defendant next contends that the trial court erred in giving the following instruction on unconsciousness as a defense:
"Unconsciousness is a complete defense to a criminal charge, but this rule of law does not apply to a case in which the mental state of the person in question is due to insanity or a mental defect or voluntary intoxication resulting from the use of drugs or intoxicating liquor. . ."
Defendant's objections are twofold. First, defendant contends that the record is left wanting of any testimony of evidence that the defendant Coffey was unconscious within the legal meaning of that term. However, in his own testimony defendant stated that he and several others went down to the creek and:
"[W]e smoked six or seven joints and that's all I know. I don't know what happen [sic] after that.
I felt drunk. I was out of it; drunk enough to be out of it.
The next thing I remember is waking up on the Roby Greene road the next, I guess, it was the next day. . . . I do not remember anything else between the time I was down at the river and the next morning."
We think this evidence is sufficient to support an instruction to the jury on unconsciousness.
Defendant's second contention is that the charge given on unconsciousness tended to equate intoxication with unconsciousness and, in effect, completely eliminated intoxication as a substantial feature of defendant's case. We disagree. We note that the language in the instruction is almost identical to language in People v. Wilson, 59 Cal.Rptr. 156, 427 P.2d 820 (1967), which was quoted by our Supreme Court in State v. Mercer, 275 N.C. 108, 118, 165 S.E.2d 328 (1969). In addition, it is common knowledge that a person may become so intoxicated as to reach a state of unconsciousness. It was entirely appropriate for the trial judge to explain to the jury that unconsciousness may be a complete defense but not in cases where the unconsciousness was produced by voluntary, excessive consumption of intoxicants or drugs. State v. Williams, 296 N.C. 693, 252 S.E.2d 739 (1979). This assignment of error is overruled.
The defendant's post-verdict motions were properly denied.
No error.
HEDRICK and HARRY C. MARTIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381293/ | 244 Ga. 163 (1979)
259 S.E.2d 94
MAPLES et al.
v.
CITY OF VARNELL et al.
34874.
Supreme Court of Georgia.
Argued June 11, 1979.
Decided September 7, 1979.
McCamy, Minor, Phillips & Tuggle, James H. Phillips, Carl P. Rollins, for appellants.
*165 James H. Bisson, III, for appellees.
HILL, Justice.
The City of Varnell was incorporated in 1968. It was located within Land Lots 208 and 225, 11th district and 3rd section, Whitfield County, Georgia. Ga. L. 1968, pp. 3065, 3067. By amendment, the corporate limits were enlarged in 1972. Ga. L. 1972, p. 2408.
Plaintiff landowners brought an action for declaratory judgment to determine whether their property was within or without the annexed area. The trial judge found the 1972 amendment to be so indefinite as to be wholly inoperative. The Court of Appeals reversed, holding that the amendment annexed 12 land lots into the City of Varnell. City of Varnell v. Maples, 149 Ga. App. 81, 82 (253 SE2d 413) (1979). We granted certiorari.[1]
The 1972 amendment should be read in its entirety. Nevertheless, as it is rather lengthy, we will summarize it here. The 1972 Act provides that the city limits shall also include the following property: Beginning at a point in land lot 207 on the south right of way line of Georgia Highway 2 where the highway intersects the present limits of the city [in land lot 208]; thence southeast along the south side of the highway to the Dalton-Cleveland Highway; continuing east along the south side of Highway 2 a distance of 1,500 feet; thence north 1,152.4 feet and west 1,500 feet around lands of Whitfield County Board of Education; thence south along the Dalton-Cleveland Highway to the intersection of the north right-of-way line of Highway 2; thence west along the north right of way line of Highway 2; to the present limits of the City of Varnell; and thence south across Highway 2 to the point of beginning; "and all that area located in land lot no's. 208, 207, 226, 227, 228, 241, 229, 205, 192, 169, 156 and 170 in said County, District and Section included with [sic] the boundaries aforesaid shall *164 be incorporated in said City, and said City limits are hereby extended to include all such area and parts of lots aforesaid within the said City of Varnell."
The record in this case shows that the area described by metes and bounds (the Board of Education property and Highway 2) lies in Land Lots 207, 226, 227, 228, and 229, but not in the other land lots.
Whenever possible, the legislative intent should be effectuated rather than declare the Act as a whole inoperative. See Carroll v. Ragsdale, 192 Ga. 118 (15 SE 2d 210) (1941); compare Warren v. Branan, 109 Ga. 835 (2) (35 SE 383) (1899). In Carroll v. Ragsdale, supra, 192 Ga. at 120, the court said: "While all parts of the statute should be preserved, yet a cardinal rule of construction is that the legislative intent shall be effectuated, even though some verbiage may have to be eliminated. The legislative intent will prevail over the literal import of the words."
As we read the legislative intent of the Act in question, it was "stem" or "spoke annexation"; that is, it sought to annex the school board property by attaching it to the existing city limits by means of the highway (the spoke). See City of Gainesville v. Hall County Bd. of Ed., 233 Ga. 77 (209 SE2d 637) (1974). If the intent of the legislature had been to annex the entirety of the twelve specified land lots, that could have been done by reference to the land lots themselves, and without reference to and description of the school board property and without the careful delineation along both sides of Highway 2. See Belk v. Nance, 232 Ga. 264, 266 (1) (206 SE2d 449) (1974) and cits.
The City of Varnell, as created in 1968, was located within two land lots. We do not find that it was the intent of the legislature in 1972 to add twelve land lots to the city.
Judgment reversed. All the Justices concur.
NOTES
[1] We do not consider Ga. L. 1979, p. 3243 (H. B. 844), to have rendered this case moot because it cannot resolve any tax questions for the years 1973-1979. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381294/ | 259 S.E.2d 771 (1979)
43 N.C. App. 721
John J. OSMAR
v.
CROSLAND-OSMAR, INC., a corporation.
No. 7926SC91.
Court of Appeals of North Carolina.
November 20, 1979.
*773 Reginald L. Yates, Charlotte, for defendant-appellant.
No brief for plaintiff-appellee.
HILL, Judge.
Two questions were raised by J. Miller Crosland on appeal:
1. Did the trial judge err in finding that J. Miller Crosland wilfully and without legal justification violated the order of Judge Fred Hasty entered 19 December 1977?
2. Did the acts of J. Miller Crosland constitute indirect criminal contempt?
The evidence is undisputed that the second sales contract for the sale of the PTL property was entered into prior to 19 December 1977, the date of the appointment of the receiver. Although Mr. Crosland contended that he resigned as an officer and director effective 9 December 1977, there was no notice before the court prior to 25 April 1978, the date on which Mr. Crosland gave formal notice to both the corporation and Mr. Samuel A. Wilson III as receiver. Mr. Crosland had retained the records concerning the South Carolina property in his personal files and had refused to divulge the contents thereof until ordered by the court to do so several weeks after the appointment of the receiver. By doing so, he failed to fully cooperate with the receiver in the performance of his duties to determine what were the assets of the corporation.
Although the order entered 19 December 1977 prohibited any person, firm or corporation from interfering in any manner with the property or assets of the corporation or with the receiver in the exercise of his duties and further restrained and enjoined persons, firms and corporations from suing the receiver or foreclosing upon any property of the defendant corporation except by permission first obtained from this court, Mr. Crosland attempted to do indirectly that which he could not do directly. In spite of the direct order of the North Carolina superior court denying Mr. Crosland's motion that the receiver be required to notify the closing attorney in South Carolina that Mr. Crosland was the owner of the commissions, he immediately went outside the jurisdiction of the North Carolina courts and brought a suit to accomplish the same result.
No longer was the dispute over the commission one between interested parties on equal footing. The order of 19 April 1978 denying Mr. Crosland's motion made it clear that the receiver had some claim to the proceeds. No determination on the merits had been made. Mr. Crosland certainly had the right to claim property that he alleged *774 was his, but Mr. Crosland also had a duty to cooperate with the receiver. Mr. Crosland had signed the consent order of 19 December 1977, and by its terms it applied to him. Once the North Carolina court determined that the receiver had a claim to the proceeds, Mr. Crosland was bound to comply with the order. Admittedly, Mr. Crosland did not make the receiver a party to the South Carolina action, but the very act of instituting the action constituted interference and a failure to fully cooperate with the receiver in the performance of his duties. At this point, it is evident that Mr. Crosland was in violation of G.S. 5A-11(a)(3).
The question before this Court is not whether Mr. Crosland is entitled to the commissions but rather whether there was a wilful disobedience, resistance to, or interference with the court's lawful process, order, direction or instructions or its execution. We hold that there was.
Had Mr. Crosland paid the commissions so received into court and then sought permission of the court to sue the receiver to determine ownership thereof, perhaps the judgment of this court would have been different. Rather, he chose to bypass the North Carolina court by going to South Carolina and doing indirectly what he had been ordered not to do directly.
For the reasons set out above, the order entered by the Honorable Frank W. Snepp is in all respects
Affirmed.
VAUGHN and ERWIN, JJ., concur in the result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381218/ | 646 P.2d 579 (1982)
98 N.M. 152
Jane BARTLETT and Floyd Bartlett, her husband, Plaintiffs-Appellees,
v.
NEW MEXICO WELDING SUPPLY, INC., a New Mexico corporation, Defendant-Appellant.
No. 5361.
Court of Appeals of New Mexico.
March 2, 1982.
Certiorari Denied June 17, 1982.
*580 Lowell Stout, Stout & Stout, Hobbs, and Sarah M. Singleton, Singleton & Roberts-Hohl, Santa Fe, for defendant-appellant.
B.G. Davis, Dick A. Blenden, Paine, Blenden, Diamond & Davis, Carlsbad, for plaintiffs-appellees.
OPINION
WOOD, Judge.
This comparative negligence case presents two issues: (1) whether a tortfeasor is liable for all of the damages caused by concurrent tortfeasors under a theory of joint and several liability; and (2) whether the percentage of fault of a nonparty concurrent tortfeasor is to be determined by the fact finder.
The automobile accident involved three vehicles. The car in front of plaintiffs' car signaled a right hand turn. This lead car turned into and then pulled out of a service station in a very fast motion. Plaintiff Jane Bartlett slammed on her brakes to avoid hitting the lead car. Defendant's truck was behind plaintiffs' car. Defendant's driver applied his brakes; however, the truck skidded into the rear of plaintiffs' car.
The driver of the lead car is unknown. Plaintiffs sued defendant on a theory of negligence. Defendant contended that the negligence of the unknown driver "caused or contributed to cause" the accident and resulting damages.
The trial court instructed the jury:
If you find for the plaintiff but also find that the negligence of the plaintiff and/or the unknown third party contributed to cause the accident and resulting damages, then you must decide how much each party was at fault. The defendant is liable only for defendant's percentage of fault in causing the accident and any resulting damages and the total amount of damages to which plaintiff would otherwise be entitled shall be reduced in proportion to the percentage of plaintiff's negligence and/or the negligence of the unknown third party.
The jury answered "special questions." It determined that plaintiffs' damages were $100,000.00, that plaintiffs were not negligent, that defendant was negligent, that defendant's negligence contributed to the accident and plaintiffs' damages to the extent of 30%, that the unknown driver was negligent and this negligence contributed to the accident and plaintiffs' damages to the extent of 70%.
Plaintiffs moved that judgment be entered in their favor in the amount of $100,000.00. This motion was not granted. Instead, the trial court ordered a new trial. The trial court was of the view that: (a) the above quoted instruction should not have been given; (b) that the case should not have been tried between plaintiffs, defendant, and the unknown driver; (c) that defendant is jointly and severally liable for the damages to plaintiffs caused by defendant and the unknown driver; and (d) "that a different result would have occurred had the jury known that this Defendant would have been responsible for the total damages under joint and several liability."
We granted defendant's application for an interlocutory appeal.
*581 Joint and Several Liability
In this case, in using the term "joint and several liability," we mean that either of two persons whose concurrent negligence contributed to cause plaintiffs' injury and damage may be held liable for the entire amount of the damage caused by them. See, Salazar v. Murphy, 66 N.M. 25, 340 P.2d 1075 (1959); Trefzer v. Stiles, 56 N.M. 296, 243 P.2d 605 (1952). It is not disputed that this is a common law rule which existed in New Mexico prior to Scott v. Rizzo, 96 N.M. 682, 634 P.2d 1234 (1981), which adopted the opinion of the Court of Appeals in Claymore v. City of Albuquerque. In Claymore, this Court adopted pure comparative negligence. Claymore is reported immediately following the Supreme Court opinion in Scott and without a separate citation. Our references to Scott and Claymore are to be found in the opinion reported under the above citation. It is not disputed that defendant and the unknown driver were concurrent tortfeasors.
The question is whether, in a comparative negligence case, a concurrent tortfeasor is liable for the entire damage caused by concurrent tortfeasors. In answering this question, we do not consider situations where one of the tortfeasors would not be subject to any liability; such situations might arise under either statutory or common law provisions. See, Fitzgerald v. Valdez, 77 N.M. 769, 427 P.2d 655 (1967); Beal v. Southern Union Gas Company, 62 N.M. 38, 304 P.2d 566 (1956); Downing v. Dillard, 55 N.M. 267, 232 P.2d 140 (1951); Compare, City of Artesia v. Carter, 94 N.M. 311, 610 P.2d 198 (Ct.App. 1980); Howell v. Burk, 90 N.M. 688, 568 P.2d 214 (Ct.App. 1977). The premise for the question to be answered is that, under the common law rule, either the defendant or the unknown driver could be held liable for the damage caused by their combined negligence.
The question has been answered in several states; most of these decisions are not helpful because the answer depended upon the contents of a comparative negligence statute. As an example, compare Fitzgerald v. Badger State Mut. Cas. Co., 67 Wis.2d 321, 227 N.W.2d 444 (1975), and Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105 (1962), with Stannard v. Harris, 135 Vt. 544, 380 A.2d 101 (1977). See also, Simonsen v. Barlo Plastics Co., Inc., 551 F.2d 469 (1st Cir.1977). As to the variety in results reached, see generally, Schwartz, Comparative Negligence, ch. 16 on Multiple Parties.
Claymore, supra, footnote 11, cites four states which have adopted pure comparative negligence. Each of those states has considered whether joint and several liability should continue to apply. We examine their decisions.
(a) Florida
Lincenberg v. Issen, 318 So.2d 386 (Fla. 1975), held that the Uniform Contribution Among Joint Tortfeasors Act, enacted during the pendency of the appeal, "retains the full, joint, and several liability of joint tortfeasors to the plaintiff, and provides for contribution between" the joint tortfeasors. Such reasoning cannot be applied to the New Mexico statute.
The Commissioners' Prefatory Note to the 1955 revision of the Uniform Act, 12 Uniform Laws Annotated (Master ed. 1975), p. 59, points out that New Mexico adopted the Act in 1947, and that the Act applied to persons whose liability was established. The Act does not purport to determine whether a person is jointly and severally liable to a plaintiff. The prefatory note states: "This uniform act establishes the right of a person liable for damages for an unintentional wrong to compel others, who are liable with him for the same damages, to share in discharging the common liability. * * * This act would distribute the burden of responsibility equitably among those who are jointly liable[.]" (Our emphasis.)
Section 41-3-1, N.M.S.A. 1978, defines joint tortfeasors to mean "persons jointly or severally liable in tort for the same injury"; Section 41-3-1 does not state when a person is jointly or severally liable. New Mexico's statute involves the relationship among joint tortfeasor defendants and not the relationship between defendants *582 and plaintiffs. Commercial U. Assur. v. Western Farm Bur. Ins., 93 N.M. 507, 601 P.2d 1203 (1979). The goal of New Mexico's statute is equity among tortfeasors. Aalco Mfg. Co. v. City of Espanola, 95 N.M. 66, 618 P.2d 1230 (1980).
The issue is whether defendant, responsible for 30% of the damage, must pay 100% of the damage. The right to contribution between defendant and the unknown driver does not answer that issue.
(b) Michigan
Weeks v. Feltner, 99 Mich. App. 392, 297 N.W.2d 678 (1980), held that the doctrine of comparative negligence did not mandate the abandonment of joint and several liability. Defendants contended "that comparative negligence requires that a defendant only be liable to the extent of his own wrongdoing, not only in relation to the plaintiff, but in relation to other defendants as well." The response, in Weeks, supra, was:
This argument ignores the fact that the comparative negligence doctrine also seeks to assure fair and adequate compensation for injured plaintiffs. Unlike the concept of contributory negligence, it avoids unduly penalizing a plaintiff for his own fault. While some unfairness exists when one defendant is held liable for the fault of his codefendants, this is equally true of cases where the plaintiff is not at fault.
The Weeks, supra, decision, in favoring a plaintiff, seems to disregard statements in the Michigan opinion adopting comparative negligence, Placek v. City of Sterling Heights, 405 Mich. 638, 275 N.W.2d 511 (1979). Those statements are (1) that pure comparative negligence most nearly accomplishes the goal of a fair system of apportioning damages, and (2) "[w]hat pure comparative negligence does is hold a person fully responsible for his or her acts and to the full extent to which they cause injury. That is justice." (Our emphasis.) To hold a person liable for an amount greater than the extent that person caused injury is contrary to the statements in Placek, supra.
Discussing the Kansas comparative negligence statute, Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978), states:
The legislature intended to equate recovery and duty to pay to degree of fault. Of necessity, this involved a change of both the doctrine of contributory negligence and of joint and several liability. There is nothing inherently fair about a defendant who is 10% at fault paying 100% of the loss, and there is no social policy that should compel defendants to pay more than their fair share of the loss. Plaintiffs now take the parties as they find them. If one of the parties at fault happens to be a spouse or a governmental agency and if by reason of some competing social policy the plaintiff cannot receive payment for his injuries from the spouse or agency, there is no compelling social policy which requires the codefendant to pay more than his fair share of the loss. The same is true if one of the defendants is wealthy and the other is not. Previously, when the plaintiff had to be totally without negligence to recover and the defendants had to be merely negligent to incur an obligation to pay, an argument could be made which justified putting the burden of seeking contribution on the defendants. Such an argument is no longer compelling because of the purpose and intent behind the adoption of the comparative negligence statute.
The reasoning in Placek, supra, is consistent with the reasoning in Brown, supra. More is involved in pure comparative negligence than the removal of contributory negligence as a bar to recovery. Weeks, supra, is not persuasive because it departs from the concept on which pure comparative negligence is based that fairness is achieved by basing liability on a person's fault.
(c) Alaska
Arctic Structures, Inc. v. Wedmore, 605 P.2d 426 (Alaska 1979), followed the Florida view, Lincenberg v. Issen, supra, that a statute providing for contribution among *583 joint tortfeasors showed a legislative intent that a plaintiff could collect his entire judgment from one concurrent tortfeasor, regardless of the extent of fault. We have pointed out that New Mexico's statute does not support this view.
Arctic Structures, supra, followed California in retaining joint and several liability. We discuss the California decision subsequently. Arctic Structures, supra, candidly stated: "In abandoning the rule of contributory negligence in favor of comparative negligence, this court was primarily concerned with the inequity of requiring an injured plaintiff to bear damages far in excess of his or her own measure of fault simply because the plaintiff was less than completely free of negligence." Thus, Alaska, as Michigan in Weeks v. Feltner, supra, was not concerned with fairness among all participants in the injury-causing event; rather, its concern was to make things more favorable to a plaintiff.
(d) California
California adopted pure comparative negligence in Li v. Yellow Cab Company of California, 13 Cal.3d 804, 119 Cal. Rptr. 858, 532 P.2d 1226 (1975). A California Court of Appeal, in Am. Motorcycle Ass'n v. Super. Ct., Etc., 65 Cal. App.3d 694, 135 Cal. Rptr. 497 (1977), held:
[T]he adoption of the rule of pure comparative negligence in Li abrogates the preexisting rule of joint and several liability of concurrent tortfeasors. Where the Li rule applies liability among concurrent tortfeasors must be apportioned according to their respective degrees of negligence with each liable to the plaintiff only for his proportion.
The California Supreme Court, in American Motorcycle Ass'n v. Superior Court, 20 Cal.3d 578, 146 Cal. Rptr. 182, 578 P.2d 899 (1978), reversed the Court of Appeal's decision and retained joint and several liability. Oklahoma, in Laubach v. Morgan, 588 P.2d 1071 (Okl. 1978), considered both California decisions and found the rationale of the Court of Appeal's decision to be "very persuasive." We agree with Oklahoma's appraisal.
Adams, "Settlements After Li: But is it `Fair'?", 10 Pac. L.J. 729 (1979), at pp. 739-740, states:
The California Supreme Court gave three reasons for the retention of joint and several liability. First, it was noted that the ability of a court to apportion fault on a comparative fault basis does not make an "indivisible injury `divisible' for purposes of the joint and several liability rule." Second, it was observed that while a plaintiff may be partially at fault for his or her own injury, the plaintiff's conduct is not the same as that of the defendant since the plaintiff's negligence consists of a failure to use due care to protect himself or herself while the negligence of the defendant relates to a failure to use due care to protect others. The third basis * * * was a pragmatic policy determination that joint and several liability must be retained to allow an injured plaintiff to receive adequate compensation for his or her injuries. * * * Thus, the notion of Li that each tortfeasor should bear his or her fair proportion of the loss was overridden by the fear that a plaintiff may not be able to collect all the damages awarded.
Li, supra, stated: "[T]hat logic, practical experience, and fundamental justice" required that the doctrine of contributory negligence "be replaced * * * by a system under which liability for damage will be borne by those whose negligence caused it in direct proportion to their respective fault." (Our emphasis.) Li, supra, adopted "pure" comparative negligence, and stated that the "`pure' form of comparative negligence, apportions liability in direct proportion to fault in all cases." (Our emphasis.) Li, supra, observed that in a system in which liability is based on fault, the "primal concept that * * * the extent of fault should govern the extent of liability remains irresistible to reason and all intelligent notions of fairness."
The reasons given by the California Supreme Court in the American Motorcycle Ass'n, supra, case are answered by the language *584 of Li, supra. After American Motorcycle Ass'n, supra, the California view is that comparative negligence is to be applied between a plaintiff and a single defendant, and among joint tortfeasors, but is not to be applied between a plaintiff and multiple defendants.
The foregoing discussion shows that joint and several liability, for concurrent tortfeasors, has been retained by judicial decision in pure comparative negligence states. We recognize that this retention accords with 2 Restatement of Torts, Second (1965), § 433A. See, Comment h to § 433A. Retention also accords with the Uniform Comparative Fault Act, § 2. This proposed uniform act appears in 12 ULA, supra, (1981 pocket supp.).
The retention of joint and several liability ultimately rests on two grounds; neither ground is defensible.
The first ground is the concept that a plaintiff's injury is "indivisible." The California Supreme Court, in American Motorcycle Ass'n, supra, followed this ground when it stated:
[T]he simple feasibility of apportioning fault on a comparative negligence basis does not render an indivisible injury "divisible" for purposes of the joint and several liability. * * * In other words, the mere fact that it may be possible to assign some percentage figure to the relative culpability of one negligent defendant as compared to another does not in any way suggest that each defendant's negligence is not a proximate cause of the entire indivisible injury.
Thus, under the California Supreme Court decision, a concurrent tortfeasor, 1% at fault, is liable for 100% of the damage caused by concurrent tortfeasors, on the basis that the tortfeasor, 1% at fault, caused the entire damage. A practical answer, in this case, is that the jury found that defendant was 30% at fault and caused 30% of the damage.
Prosser, Law of Torts, 4th Edition, § 41, p. 241, states: "The law of joint tortfeasors rests very largely upon recognition of the fact that each of two or more causes may be charged with a single result."
Prosser, "Joint Torts and Several Liability," 25 Cal.L.Rev. 413 (1936-37), states that the rule holding a concurrent tortfeasor for the entire loss "grew out of the common law concept of the unity of the cause of action; the jury could not be permitted to apportion the damages, since there was but one wrong." The "unity" concept, in turn was based on common law rules of pleading and joinder. Prosser, Law of Torts, supra, ch. 8. The article "Torts Liability of Joint Tort-Feasors Apportionment of Damages Between Joint Tort-Feasors by Verdict of Jury," 14 Va.L.Rev. 677 (1927-28), at p. 680-81, states that the cases which retain joint and several liability under relaxed American rules of joinder and in cases where causes of injury are concurrent, rather than concerted:
seem to consider the question, not from the standpoint of whether it is just and reasonable to hold a person liable for all the damages occasioned by a joint tort in which his individual part may have resulted in little or no damage, but rather from the viewpoint of the unity of a cause in the old technical common law sense. That as the tortfeasors committed the tort together, and a single writ was brought against them, and they were sued in a single action and found guilty, then the damages should be rendered in a single sum. For, as the action was a unit and all found guilty of the same wrong, they must be equally guilty of the same amount of wrong * * *. But with the broadening in modern times of the legal conceptions regarding real consistency in the law as distinguished from mere technicality, the reasoning which appeared so persuasive to the old English jurists has lost much, if not all, of its force.
The article states that the doctrine "cannot be said to be based on any sound reason." "The few attempts by American authorities to justify the rule on reason cannot be said to be absolutely satisfactory."
The California Court of Appeal stated in American Motorcycle Ass'n, supra: "Li [where pure comparative negligence was *585 adopted] accepts the ability of the fact finding process to apportion degrees of negligence. In so doing, it eliminates the previously assumed inability to apportion fault among tortfeasors as the foundation of joint and several liability." We are unwilling, as was the California Supreme Court, to say that although fault may be apportioned, causation cannot. If the jury can do one, it can do the other. See, 14 Va.L.Rev., supra, p. 682.
Joint and several liability is not to be retained in our pure comparative negligence system on a theory of one indivisible wrong. The concept of one indivisible wrong, based on common law technicalities, is obsolete, and is not to be applied in comparative negligence cases in New Mexico. See, Scott v. Rizzo, supra.
The second ground is that joint and several liability must be retained in order to favor plaintiffs; a plaintiff should not bear the risk of being unable to collect his judgment. We fail to understand the argument. Between one plaintiff and one defendant, the plaintiff bears the risk of the defendant being insolvent; on what basis does the risk shift if there are two defendants, and one is insolvent? In our case, the risk factor arises because the concurrent tortfeasor, 70% at fault, is unknown.
We agree with Adler, "Allocation of Responsibility After American Motorcycle Association v. Superior Court," 6 Pepperdine L.Rev. 1 (1978), when, in reference to the California Supreme Court decisions, it states:
In this final quarter of the twentieth century, it seems startling to find that plaintiffs, as a class, have a greater claim upon the court's sympathy than defendants. In contrast, the court in Li had mandated that each person's allocable responsibility for an incident would be determined by the finder of fact, whether that tortfeasor is labeled a "plaintiff" or a "defendant."
Participants in an accident contribute to its occurrence in various ways. The consequences of their negligence intertwine. Their moral blameworthiness as actors in the drama, however, is not predicated upon their respective roles in subsequent litigation as "plaintiffs" or "defendants." Irrespective of the amount of injury, the first to sue becomes "the plaintiff." Those initially hailed into the action are called "defendants." Frequently, a "defendant" becomes a "plaintiff" by way of cross-complaint. The fact-finding process by jury use of a special verdict or interrogatory to allocate responsibility strips the judicial process to its foundation the transfer of money from one person caused by his wrongdoing to pay for the loss he has caused another. Before and after Li, a plaintiff injured by an insolvent defendant could recover nothing regardless of the latter's blameworthiness. That fundamental reality has not been changed by either Li or American Motorcycle. Similarly, the respective blameworthiness of two (or more) defendants concurrently causing an accident is unchanged by Li and American Motorcycle. The supreme court, in simultaneously approving a joint and several verdict and the allocation procedure, has indicated that it will predicate liability for a defendant upon the solvency of his co-defendant, not upon blameworthiness.
That the judicial system could sanction such a result in certain cases prior to Li was due to a lack of proper basic principles and an inadequate procedure. Prior to Li, the courts would not allocate responsibility between defendants; moreover, the doctrine of contributory negligence cast a moral stone against the "guilty" tortfeasor by the completely "innocent" plaintiff. Today there is no such justification for laying the entire burden of an accident caused by one tortfeasor labelled as "defendant," whether or not served, upon another "defendant." Fairness dictates that the blameworthiness of all actors in an incident be treated on a consistent basis.
Claymore, supra, states:
Our purpose is to emphasize that if negligence or negligence-related concepts are *586 a basis for liability, the comparative negligence doctrine applies, and common sense will assist in its fair application.
The thrust of the comparative negligence doctrine is to accomplish (1) apportionment of fault between or among negligent parties whose negligence proximately causes any part of a loss or injury, and (2) apportionment of the total damages resulting from such loss or injury in proportion to the fault of each party. * * * In multiple party cases, interrogatories will address the question of liability between each plaintiff and each defendant, to reflect such apportionment.
* * * * * *
Pure comparative negligence denies recovery for one's own fault; it permits recovery to the extent of another's fault; and it holds all parties fully responsible for their own respective acts to the degree that those acts have caused harm.
Scott v. Rizzo, supra, adopted Claymore, supra, which states damages are to be apportioned on the basis of fault.
Joint and several liability is not to be retained in our pure comparative negligence system on the basis that a plaintiff must be favored.
We hold that defendant is not liable for the entire damage caused by defendant and the unknown driver. Defendant, as a concurrent tortfeasor, is not liable on a theory of joint and several liability.
Non-Party Concurrent Tortfeasor
Heft and Heft, Comparative Negligence Manual (1978), § 8.131, states:
It is accepted practice to include all tortfeasors in the apportionment question. This includes nonparties who may be unknown tortfeasors, phantom drivers, and persons alleged to be negligent but not liable in damages to the injured party such as in the third party cases arising in the workmen's compensation area.
See, Hensley, "Multiple Party Litigation in Comparative Negligence: Incomplete Resolution of Joinder and Settlement Problems," 32 Sw.L.J. 669 (1978), at p. 679.
Brown v. Keill, supra, stated in connection with the Kansas statute that:
[T]he intent and purpose of the legislature * * * was to impose individual liability for damages based on the proportionate fault of all parties to the occurrence which gave rise to the injuries and damages even though one or more parties cannot be joined formally as a litigant or be held legally responsible for his or her proportionate fault.
Claymore, supra, had the same intent and purpose.
"The jury must ascertain the percentage of negligence of all participants to an occurrence." Bd. of Cty. Com'rs of Cty., Etc. v. Ridenour, 623 P.2d 1174 (Wyo. 1981). See also, Bowman v. Barnes, 282 S.E.2d 613 (W. Va. 1981).
The trial court properly instructed the jury to consider the negligence and damage resulting from the negligence of the unknown driver.
The order granting a new trial is reversed. The cause is remanded with instructions to enter judgment in favor of plaintiffs, against defendant, for the 30% of plaintiffs' damages caused by defendant.
IT IS SO ORDERED.
WALTERS, C.J., and LOPEZ, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381221/ | 231 Kan. 489 (1982)
646 P.2d 493
STATE OF KANSAS, Appellee,
v.
JIM W. HARRISON, Appellant.
No. 53,590
Supreme Court of Kansas.
Opinion filed June 11, 1982.
Kenneth C. Kimmel, of Wichita, argued the cause and was on the brief for the appellant.
Cris Senseman, assistant district attorney, argued the cause, and Robert T. Stephan, attorney general, and Clark V. Owens, district attorney, were with her on the brief for the appellee.
The opinion of the court was delivered by
FROMME, J.:
Jim W. Harrison appeals from a conviction of aggravated robbery and a sentence entered under the provisions of the mandatory sentence statute, K.S.A. 21-4618. On a first offense appellant was sentenced to a period of five to twenty years and probation or suspension of sentence could not be granted by reason of the court's finding at the sentencing hearing that a firearm was used in the commission of the crime.
The appellant admitted that he entered a liquor store in Wichita, Kansas, and robbed it. He told Peggy L. Thomas, the clerk at the store, that he had a gun. However, during the sentencing procedures, he denied having a gun. The main, if not the only, factual dispute in the case concerned whether a gun was used by *490 Harrison in the commission of the robbery. He was charged by information with aggravated robbery while armed with a handgun.
During the preliminary hearing it became apparent that Ms. Thomas had not seen the gun Mr. Harrison was professed to have. Defense counsel determined at that time he would defend the case by establishing no gun was used, thereby sparing his client, a first offender, from a mandatory sentence under 21-4618.
Just prior to trial plea bargain negotiations occurred and the assistant district attorney then learned that Ms. Thomas would not testify a gun was used by Harrison. Pursuant to discussions with Ms. Thomas and after a review of the police reports which were in the State's file, the following agreement was reached as shown by the statements of counsel in front of the sentencing judge:
"MR. MOSES [assistant district attorney]: ... In addition to dismissing count one in the complaint/information, the State has also agreed to recommend that the defendant be sentenced to the minimum sentence in this case, that being not less than five years and not more than twenty years. The State has also agreed to advise the Court that the evidence presented at trial would show that neither one or excuse me, that the victim in count two did not actually see a handgun in the possession of the defendant; however, the threat and suggestion that he did have a handgun was made, and on the basis of that we would recommend or suggest to the Court that the mandatory minimum under K.S.A. 21-4618 would not apply.
....
"MR. KIMMEL [defense counsel]: It's my understanding, Your Honor, that since on trial it's our belief that the evidence would not disclose any gun was used, that this defendant would enter a plea to aggravated robbery and the Court would consider making the finding, as the jury would be asked to make the finding, that no gun was used." Emphasis supplied.
Judge Helsel thoroughly advised defendant about the effects of entering a plea. The judge read the charges to the defendant who indicated to the court that he understood them. Judge Helsel explained to Mr. Harrison that by entering a plea he was waiving his right to a jury trial and the right to confront the witnesses against him. He advised defendant of the burden of proof the State would have to meet in a trial; the right of appeal from a jury trial; and the right not to incriminate himself. The court pointed out to Mr. Harrison that "if you plead guilty you admit that you did what the State says that you did," to which defendant replied he understood. Judge Helsel advised the defendant that he was *491 not bound by the recommendation of the State made pursuant to plea bargain negotiations. The defendant understood that his sentence could be "five to twenty or fifteen to life," and a fine could be imposed. The defendant then entered a plea of guilty, explaining:
"THE DEFENDANT: I went into the liquor store and I did tell the clerk that I had a gun. I still don't know why I did it; I know it was a terrible mistake, but I did do it.
"THE COURT: Did you take some money then?
"THE DEFENDANT: Yes, I did, Your Honor."
Judge Helsel accepted defendant's plea, finding that Mr. Harrison had "voluntarily, knowingly, understandingly and intelligently waived his Constitutional rights and entered a plea of guilty to the charge, that there is a factual basis for the plea and that he has done this understanding the nature of the charge and the consequences of such a plea." The court ordered the preparation of a presentence investigation.
The defendant was scheduled to be sentenced on July 9, 1981, at which time the State was represented by Assistant District Attorney James E. Puntch, Jr., as Mr. Moses was unavailable. Mr. Kimmel and Mr. Harrison were present as well. Judge Helsel indicated that it was his belief from the police reports he had reviewed that a gun had been used in the commission of the crime. Judge Helsel sentenced the defendant to serve a term of from five to twenty years in the custody of the Secretary of Corrections. The question of whether or not a firearm was used in the commission of the crime was reserved until later that day, presumably so Mr. Moses could be present.
At 1:30 p.m. on July 9, 1981, Mr. Moses, Mr. Kimmel and the defendant appeared before Judge Helsel. After the morning session in court, defendant wished to withdraw his plea. Request by counsel for defendant to withdraw the guilty plea entered June 22, 1981, was made part way through the 1:30 p.m. court appearance. The court overruled the defendant's oral motion to withdraw the plea, noting that it was not going to require a written motion under the circumstances. Under K.S.A. 22-3210(7) a plea of guilty may be withdrawn for good cause shown and within the discretion of the sentencing court on motion filed prior to the sentence adjudication. Burden v. State, 225 Kan. 549, Syl. ¶ 1, 592 P.2d 451 (1979).
*492 Throughout the 1:30 p.m. hearing, defense counsel persistently and vehemently objected to the court's finding that a gun had been used during the commission of the robbery. Mr. Kimmel advised the court that the plea agreement had been based on the State's recommendation to the court on the sentence and their interpretation of what the evidence would show. The defendant objected to the court's use of police reports in making a determination that a gun was used. Defense counsel argued that there had been a mutual mistake of the facts in the case. Mr. Kimmel admitted that he did not ask the district attorney to dismiss the charge against defendant and then refile it after excising all references to the use of a gun.
Refusal to follow recommended charge and sentence concessions is not in itself sufficient to constitute good cause for withdrawal of a guilty plea entered before sentence, provided the defendant was clearly advised by the court prior to entering his plea that the court was not bound by any charge and sentence concessions, and defendant was then offered a chance to withdraw said plea. Burden v. State, 225 Kan. 549, Syl. ¶ 2.
Assistant District Attorney Moses iterated his understanding of the plea agreement and candidly explained that upon further reflection he had not reviewed his evidence as completely as perhaps he should have prior to making the plea agreement. For the purposes of determining any factual issue that might arise during the sentencing, Mr. Moses had arranged to have the investigating officer that had interviewed the defendant following his arrest, Detective Bruce, present in the courtroom and available for questioning that afternoon.
The court remained steadfast in its decision, pointing out to the defendant that it is the duty of the sentencing court and not the jury to determine if a firearm has been used in the commission of a crime for the purposes of K.S.A. 21-4618. Judge Helsel iterated that plea agreements reached between the State and the defendant are not binding on the court, and reminded the defendant that he had been so advised at the time the plea was entered. The court sentenced the defendant to a term of from five to twenty years in the care and custody of the Secretary of Corrections, as he had earlier in the day, and found that a firearm was used in the commission of the crime and so invoked the mandatory sentencing provision. This appeal followed.
*493 Evidence that a gun was used in the commission of the crime was scanty. This court is asked to determine there was insufficient competent evidence to support a finding that the defendant used a firearm in the commission of the crime. In the present case no trial was had and no witnesses testified to the facts and circumstances surrounding the crime. Pursuant to the plea negotiations the defendant entered a plea of guilty, the prosecutor stated to the court that the victim did not actually see a handgun, and that the State recommended or suggested to the court that the mandatory minimum sentence requirements not be applied. The defendant and his attorney stated that no gun was used, but no evidentiary hearing was afforded defendant to enable him to attempt to establish that fact at sentencing. When it became apparent the judge was going to impose the mandatory provision, counsel for Harrison immediately moved to withdraw the plea. The motion was summarily denied.
The rules concerning the imposition of mandatory minimum sentences under K.S.A. 21-4618 were summarized in State v. Mack, 228 Kan. 83, 85, 612 P.2d 158 (1980), as follows:
"For the statute to be applicable, the State must establish, and the sentencing court must find, that the firearm was an instrumentality of the crime. State v. DeCourcy, 224 Kan. 278, 281, 580 P.2d 86 (1978). The State is not obligated to charge, or to prove during trial, that the defendant used a firearm in the commission of the offense. Whether a defendant used a firearm in the commission of an Article 34 offense is a matter to be determined by the trial judge at the time of sentencing. It need not be submitted to the jury. State v. McCarty, 224 Kan. 179, 180-81, 578 P.2d 274 (1978); State v. Mullins, 223 Kan. 798, 800-01, 577 P.2d 51 (1978). We emphasized in State v. Quick, 226 Kan. 308, 318-19, 597 P.2d 1108 (1979), that the sentencing judge should make a finding which specifies who used the firearm. On appeal, the scope of review of sentencing under 21-4618 is limited to whether there was competent evidence to support a finding that the defendant used a firearm in perpetrating the crime. State v. Bryant, 227 Kan. 385, 388, 607 P.2d 66 (1980); State v. Taylor, 225 Kan. 788, 795, 594 P.2d 211 (1979)."
In State v. Mack it was held the failure of the sentencing judge to hold an evidentiary hearing did not constitute prejudicial error when in the trial of the case the evidence introduced clearly indicated the use of a gun. However, when sentencing is based on a plea of guilty and the defendant denies using a gun in committing the crime, the trial court should be required to hold an evidentiary hearing on the record so that this court may review the sufficiency of that evidence. In the present case reference has been made to police investigation reports which were not made a *494 part of the record before us. Further reference is made to a presentence report obtained by the judge prior to sentencing. We cannot speculate as to its contents. No officer testified at the time of sentencing, although the record indicates one was present in court.
The question of allowing or denying a motion to withdraw a plea of guilty so as to proceed to trial is never an easy question. The question of when withdrawal should be permitted was addressed in Burden v. State, 225 Kan. 549, 551, where it is said:
"Our statute on withdrawal of pleas, K.S.A. 22-3210(7), provides;
"`A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged. To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.'
"It should be noted that the withdrawal of a plea of guilty before sentence is `for good cause shown and within the discretion of the court.' After sentence the court may set aside the judgment of conviction and permit the defendant to withdraw his plea `[t]o correct manifest injustice.'"
In our present case the motion to withdraw the plea was filed during the sentencing proceeding. The judge had accepted the plea and adjudged a sentence covering a period from five to twenty years, but had recessed the proceedings until after lunch when Mr. Moses could be present. The decision had not been made as to imposition of the mandatory minimum sentence. Under these circumstances the motion for withdrawal must be considered as made before sentence. When withdrawal of the plea is requested before sentence it may be allowed for good cause shown and within the discretion of the court. The burden is less in such case than when the request is made after sentence. After sentence the court may set aside the judgment of conviction and permit withdrawal of the plea only to correct manifest injustice.
Under the facts and circumstances of this case we believe good cause was shown to permit withdrawal of the guilty plea and the trial court abused its discretion in refusing the same. The sole witness, the victim of the crime, would have testified if called that she saw no gun used by defendant. The defendant would have testified no gun was used. On the basis of these known facts the prosecutor advised the court and recommended that the mandatory minimum sentence provision of the statute not be applied. This recommendation as well as the plea was pursuant to plea *495 negotiations. Of course, such a recommendation is not binding on the court. However, at sentencing the judge did not hold an evidentiary hearing and no evidence as to use of a gun was in the record. When the sentencing judge was advised of the reason for requesting withdrawal of the plea of guilty, he summarily denied the motion and adamantly adhered to his previous opinion, formed in the absence of any sworn evidence that a firearm had been used in committing the crime.
The judgment of conviction is reversed, the motion to withdraw the plea of guilty is granted, and the case is remanded for further proceedings.
McFARLAND, J., concurring:
I concur in the result reached by the majority but not as to its rationale.
Inasmuch as there has been no trial in this case, the facts are rather sketchy. Defendant went into the store and told the clerk he had a gun. There is some indication the threat was accompanied with a gesture indicating the location of the firearm on defendant's person. The clerk apparently did not actually see the gun, but turned over the money after being advised defendant was armed with a gun. Defendant was arrested shortly thereafter in possession of a gun and advised the arresting officers he had used a gun in the robbery. Defendant was charged with aggravated robbery. Defendant pled guilty to aggravated robbery, admitting to the judge he had told the clerk he had a gun.
Aggravated robbery is defined by K.S.A. 21-3427 as follows:
"Aggravated robbery is a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery."
The clerk was not the victim of bodily harm. Therefore the defendant, to be guilty of aggravated robbery, must be armed with a "deadly weapon." The only possible deadly weapon herein is a gun. Without a deadly weapon or bodily harm, the defendant's plea could only have been accepted for simple robbery (K.S.A. 21-3426). A gun need not actually be displayed to a victim in order to constitute aggravated robbery or use of a firearm for mandatory sentencing purposes. State v. Robertson, 225 Kan. 572, 574, 592 P.2d 460 (1979); State v. Harrison, 228 Kan. 558, 561, 618 P.2d 827 (1980). By pleading guilty to aggravated robbery, which specifically charged defendant was *496 armed with a gun, defendant legally admitted both possession and use of a firearm.
This case may be distinguished from State v. Mack, 228 Kan. 83, cited in the majority. The Mack case involved two robbers, only one of whom had a gun. For conviction purposes it mattered not which robber had the gun. For mandatory sentencing purposes, however, it was necessary to determine which robber had the gun. Such determination must be made by the trial court upon sentencing. This additional finding requires evidence unnecessary to the conviction itself. In the case before us there is no issue of which of two robbers used the gun. If defendant is guilty of aggravated robbery at all, he used a firearm in the commission of the crime.
The majority opinion holds:
"[W]hen sentencing is based on a plea of guilty and the defendant denies using a gun in committing the crime, the trial court should be required to hold an evidentiary hearing on the record so that this court may review the sufficiency of that evidence."
This reasoning leads to the interesting result that one can plead guilty to aggravated robbery based on being armed with a gun, but deny the presence of the gun for sentencing purposes. The trial court then is required to try the gun question before the mandatory sentence may be imposed. If the trial court finds no gun was used, where does that leave the aggravated robbery plea? Defendant stands at that point convicted of aggravated robbery, not involving a deadly weapon or bodily harm an impossibility under Kansas law.
I believe the better rationale to be as follows. Clearly, a mutual mistake existed at sentencing as to the plea bargain agreement reached by the two counsel and defendant. All three went before the trial court assuming mandatory sentencing was no longer a court option. The questioning of the defendant by the trial court relative to defendant's understanding of the effects of the plea bargain did not reach the mandatory sentencing issue. The ostensible removal of defendant's exposure to mandatory sentencing was a major factor in defendant's acceptance of the plea bargain, and it is likely defendant would not have pled guilty in its absence.
To borrow a phrase from civil cases, defendant did not make an "informed consent" to the plea bargain. In the name of basic *497 fairness, the unique circumstances herein require that defendant be permitted to withdraw his plea of guilty. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381226/ | 151 Ga. App. 176 (1979)
259 S.E.2d 177
POYTHRESS
v.
WALLS et al.
58256.
Court of Appeals of Georgia.
Argued July 3, 1979.
Decided September 4, 1979.
Guerry R. Thornton, Jr., for appellant.
Frank W. Seiler, Joseph P. Brennan, for appellees.
DEEN, Chief Judge.
Alan Walls, a 16-year-old, took a golf putter of unknown origin from his father's unlocked tool shed and carried it while snake hunting. Passing a neighbor's house where children were playing with a semi-deflated volley ball he invited it to be thrown to him and hit at it with the club. On the second hit the putter either broke or the end slipped from the wooden frame and flew clear, *177 striking a child in a nearby driveway and inflicting serious facial injuries.
The resulting damage suit is in three counts. Count 1, directed against Alan Walls for negligence, and Count 3, relating to damages, are not here involved, but the appeal is from the sustaining of a summary judgment as to Count 2 in favor of the primary defendant's parents.
1. Count 2 of the complaint sought to hold the parents liable on the theories of negligent entrustment and negligence in failing to restrain the alleged known reckless propensities of the youth. The appellant contends there is evidence to raise a jury question on the parents' negligence in maintaining a utility room unlocked and unsupervised; allowing their son to take out golf clubs, not inspecting the clubs, knowing the son had previously inflicted injury with a golf club on another neighbor, that "Appellee had knowledge or should have known that his son swung golf clubs on or about the paved streets where appellant was injured; that appellee had personal knowledge of his son's use, possession and acquisition of the golf club which caused the injury and thus his son's improper use thereof; that the father should have known that the son had on numerous occasions hit golf clubs up against hard and inert objects, i.e. pavement on the street, trees and concrete steps and thus should have known that on one particular occasion after his son borrowed a club from a neighbor it came back without a head on it." The last incident refers to the account of another 16-year-old that young Watts on one occasion hit a club against the "brick part" of the Clubhouse, fracturing the wood, and that as to the prior infliction of injury at some previous time the boy was swinging the club and a neighbor "might have" walked into his swing. There is disputed evidence that the father heard of this latter incident, but no testimony at all that any other dereliction had been brought to his attention. The boy and his father frequently played golf together. The golf putter did not belong to the family, the father did not know it was in the shed, and no one could explain its origin.
The depositions and affidavits submitted here demand a finding that Walls' parents knew nothing of the club in question and had no reason to believe their son *178 would put a golf club to a reckless use. The negligent entrustment theory must fail as there is no evidence of parental negligence in furnishing the club or permitting the child access to it with knowledge that it would be likely in his hands to injure a third party. Cf. Scarboro v. Lauk, 133 Ga. App. 359, 361 (210 SE2d 848) (1974); Herrin v. Lamar, 106 Ga. App. 91 (126 SE2d 454) (1962).
2. As to negligence in failing to restrain or limit the son's activity, this must rest on actual knowledge by the parent of prior dangerous propensities or improper use of golf clubs, and again it must be held that none has been shown. Some evidence suggests that the neighborhood children frequently carried golf clubs around, that sometimes these hit hard objects and broke, and that Walls had previously fractured or broken a club. There is no evidence of knowledge of known reckless propensities on the part of the adult defendants. In this the case resembles Dunaway v. Kaylor, 127 Ga. App. 586 (194 SE2d 264) (1972), where summary judgment for the defendants was upheld, Chester v. Evans, 115 Ga. App. 46 (153 SE2d 583) (1967) where a motion to dismiss was erroneously denied, and Gilbert v. Floyd, 119 Ga. App. 670 (168 SE2d 607) (1969) where the grant of summary judgment was affirmed. All of these cases turn on lack of knowledge by the parents of alleged dangerous propensities of the child. The same rule applies here. The trial court properly granted summary judgment to the defendant parents as to Count 2 of the complaint.
Judgment affirmed. Birdsong and Carley, JJ., concur. Shulman, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381242/ | 259 S.E.2d 829 (1979)
STATE of West Virginia
v.
Joseph DOBBS.
No. 13985.
Supreme Court of Appeals of West Virginia.
November 6, 1979.
Dissenting Opinion November 14, 1979.
*830 Franklin D. Cleckley, Morgantown, for plaintiff in error.
Chauncey H. Browning, Atty. Gen., Richard L. Earles, Asst. Atty. Gen., Charleston, for defendant in error.
HARSHBARGER, Justice:
In the early afternoon of Sunday, November 4, 1974, Alfred Stewart was in his office at the May Company in Fairmont, West Virginia. His wife telephoned him at about 1:00 p. m. and he exclaimed that he was being robbed, whereupon she called the police, and friends who owned a sandwich shop near the office. They found Stewart dead with a bullet wound in his chest.
On January 27, 1975 at 1:00 a. m. two Clarksburg patrolmen noticed Joseph Dobbs driving an automobile with unique markings that attracted their attention, and watched him park it and enter a hotel. An hour later they were called to police headquarters because a young man had reported that he was molested by Dobbs. He said Dobbs offered him marijuana and had a revolver in his car. When the officers accompanied the young man to the hotel Dobbs attempted to hide, but the policemen stopped and searched him. They found a bag protruding from his pocket and smelled marijuana. Dobbs gave them the bag and was arrested for possession of a controlled substance.
As the police were taking Dobbs to headquarters, they passed the parked car and one patrolman saw a similar bag on the car floor.
At the police station Dobbs telephoned his niece in Fairmont, who owned the car, advising her to come for it, and by 3:00 a. m. two men arrived to get it. In the meantime, a narcotics agent had been summoned and while the two men were sent to the county jail for the auto's keys, the agent and a patrolman searched the car. The bag they had seen was empty; but they found a pistol under the front seat. The weapon was later identified by a ballistics expert as the weapon used to kill Alfred Stewart.
Joseph Dobbs was indicted for Stewart's murder and was found guilty of first degree murder with recommendation of mercy by a Marion County jury. He was sentenced to life in prison and we granted his motion for a writ of error and supersedeas.
The evidence essentially was this: the deceased's sister testified that, based upon her familiarity with May Company records through employment there as a bookkeeper, $464.00 was missing from the daily balance. Police photographs of the scene showed Stewart's body, and papers strewn about the office. However, the only two identifiable fingerprints obtained were Stewart's.
The State also presented three witnesses who were waiting for a bus in front of the office building when Stewart was killed. They had seen two black men enter and leave the building, and described articles of the men's clothing with particularity. One said the taller man was clean-shaven with an African hair style, and the shorter had a thin mustache. None of the three could positively identify Dobbs.
Several defense witnesses testified that they saw defendant on various occasions during 1974 and early 1975, and that during that time he was bearded. The defense introduced a photograph of the bearded defendant taken in August, 1974 by his niece who testified that the photograph represented his general appearance during that year. On rebuttal the State called a witness who testified to having seen Dobbs at 5:00 a. m. on November 5, 1974, without a beard, and a photograph which the witness had taken at that time and which portrayed defendant as beardless, was introduced.
The niece, owner of the car, testified that she loaned it to Dobbs around January 27, 1975; that she loaned it to various relatives and friends from time to time; that she did *831 not consistently lock her car; and, that she had not cleaned it nor looked under the seats since July, 1974. Her husband testified that he had never placed nor seen anyone else place a gun in the car.
Three young men testified they were involved in an incident with defendant in July of 1974, wherein one of the men who lived and worked with him took his pistol. The other two saw it before it was returned to Dobbs. The witness who had taken it testified that it was the murder weapon, but recanted on cross-examination, stating that it "looked like" the murder weapon but that defendant's piece had less rust on it. One of the other witnesses testified that the guns were the same, the third testified that it "looked like" the same one but qualified his testimony by advising that it was dark when he saw it.
Another prosecution witness testified that he had seen the "butt part" of a pistol that defendant had told him was "my .38" in January of 1975, and that it "looked like" the murder weapon.
The evidence about the weapon and about defendant's race and beard is that upon which the State relied for conviction.
The burden is always on the state to establish by sufficient evidence, guilt beyond a reasonable doubt. State v. Scurlock, 99 W.Va. 629, 130 S.E. 263 (1925). As this Court wrote in Pinkerton v. Farr, W.Va., 220 S.E.2d 682, 688 (1975), "A lesser standard does not afford an accused due process of law under the Fourteenth Amendment."
In West Virginia, the standard guiding review of sufficiency of evidence is:
In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done. Syllabus Point 1, State v. Starkey, W.Va., 244 S.E.2d 219 (1978).
This standard applies to trial courts' consideration of motions for directed verdicts and to this Court. See Addair v. Majestic Petroleum Co., Inc., W.Va., 232 S.E.2d 821, 824 (1977).
Moreover, in cases involving sufficiency of circumstantial evidence, there is an additional standard set in State v. Noe, W.Va., 230 S.E.2d 826 at 829 (1976):
[C]ircumstantial evidence will not support a guilty verdict unless the fact of guilt is proved to the exclusion of every reasonable hypothesis of innocence; and circumstances which create a mere suspicion of guilt but do not prove the actual commission of the crime charged, are not sufficient to sustain a conviction. See State v. Allen, 139 W.Va. 818, 82 S.E.2d 423 (1954); State v. Clay, 135 W.Va. 618, 64 S.E.2d 117 (1951); State v. Cutlip, 131 W.Va. 141, 46 S.E.2d 454 (1948); State v. Hudson, 128 W.Va. 655, 37 S.E.2d 553 (1946); State v. Kapp, 109 W.Va. 487, 155 S.E. 537 (1930); State v. Snider, 106 W.Va. 309, 145 S.E. 607 (1928); State v. Ison, 104 W.Va. 217, 139 S.E. 704 (1927); State v. Whitehead, 104 W.Va. 545, 140 S.E. 531 (1927); and State v. Hunter, 103 W.Va. 377, 137 S.E. 534 (1927).
In Noe, we emphasized the necessity for caution in circumstantial evidence cases.
The record here is long; there were many witnesses. But there is a paucity of relevant, probative evidence. Ten witnesses testifying to a fact that has little or no probative value, do not by their repetitions make it more important. Here defendant's guilt pends upon proof of a material issue his identification, or more particularly, his presence at the scene of the crime. An infinite number of witnesses testifying to having seen two black men near the scene at the time of the shooting could not improve the value of this evidence as identification of this particular defendant. And proof of his ownership/possession of the murder instrument does not carry the State's heavy burden.
*832 The State must prove that a defendant was present at the place and time a crime was committed, if personal presence is essential to proof of the act. See State v. Pendry, W.Va., 227 S.E.2d 210 (1976); State v. Withrow, 142 W.Va. 522, 96 S.E.2d 913 (1957). Evidence that black men (whether bearded or not) were at the scene was not enough. Evidence that a black owned the murder weapon is not enough to put him at the scene.
State v. Bailey, 151 W.Va. 796, 155 S.E.2d 850 (1967), provides another construct through which to view this evidence, holding in Syllabus Point One "If, on a trial for murder, the evidence is wholly circumstantial, but as to time, place, motive, means and conduct, it concurs in pointing to the accused as the perpetrator of the crime, he may properly be convicted." When this standard is applied, the State's evidence is again dismally deficient: there was no probative evidence of "time", nor of "place", nor of "conduct"; "motive" is to be inferred from testimony concerning missing money; and "means" was attempted to be proved by the discovery of the murder weapon in a car of which the defendant had non-exclusive possession months after the murder.
Proof of opportunity to commit a crime is not sufficient to establish guilt; the evidence must exclude all reasonable opportunity by others to have committed it. See 23 C.J.S. Criminal Law § 907 (1961) and cases collected therein.
A review of other jurisdictions reveals not a single case in which such circumstantial evidence has been held sufficient. For example, in Commonwealth v. Prado, 481 Pa. 485, 393 A.2d 8, 10 (1978), the supreme court found these facts insufficient to establish a prima facie case:
Appellee did emerge from an alley after the shooting, but no witnesses to the shooting were presented and no evidence of the murder weapon was presented. The prosecution did introduce testimony that the wound was "probably" caused by a high velocity weapon. The only link between this and the appellee is that he once owned such a weapon. The prosecution introduced testimony to establish a motive from an altercation between appellee and . . . [victim]; however, such altercation occurred a year prior to the murder. The prosecution introduced remarks made by appellee to a sporting goods salesman that "you didn't sell any bullets to me." . . . and, to a detective that "you ain't never going to find my rifle, Turkey," . . . and asks us to infer that appellee was "conscious of his guilt."
The Court of Criminal Appeals of Texas held more substantial evidence than we have, insufficient in Flores v. State, Tex.Crim., 551 S.W.2d 364 (1977). Three "Latin Americans" were seen with the victim in the back seat of his car while he was being issued a speeding ticket. The defendant, a Latin American, was shown to have been in possession of the deceased's car about twenty-four hours later. Six weeks later defendant still had the car, at which time it bore license plates and inspection stickers issued to other cars. Clothing and other items belonging to the victim were found in a suitcase in another car trunk where they had been left by defendant and a companion to be retrieved later. Human blood stains that could not be typed were on the seat of victim's car and on defendant's shirt. An expert testified that the deceased was killed with a gun of the same caliber as one which the deceased owned and had with him (although it was never found).
The court held that because (1) the three Latin Americans observed in the car with the victim were not further identified; (2) the record was silent as to time of death (although Flores and another were seen with the victim's car, but without the victim in it, the day after the speeding ticket was issued); (3) only an inference could be drawn that the victim was killed with his own gun because it was never found; (4) it was not shown when human bloodstains were made on the victim's car seat and appellant's shirt; and (5) the stains could not be typed, there was therefore ". . . no showing that the appellant was at or near the scene of the crime and *833 no showing as to actual time of the deceased's death." 551 S.W.2d at 369. The court concluded that the evidence amounted to a strong suspicion only and did not ". . . exclude to a moral certainty every other reasonable hypothesis except the appellant's guilt." Id. at 369.
We conclude that the trial court should have directed a verdict of acquittal due to insufficient evidence at the close of the State's case in chief because the circumstantial evidence presented did not prove guilt to the exclusion of every reasonable hypothesis of innocence, creating only a suspicion of guilt. The judgment is reversed and defendant unconditionally discharged from custody. Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).
Reversed.
NEELY, Justice, dissenting:
I respectfully dissent on the grounds that the evidence in this case is sufficiently strong to present a prima facie case of guilt. The State proved that the defendant had possession of the murder weapon both before and after the commission of the murder.
The preeminent authority for holding the evidence here sufficient is the California case of People v. Tolbert, 70 Cal.2d 790, 76 Cal.Rptr. 445, 452 P.2d 661 (1969) cert. denied, 406 U.S. 971, 92 S.Ct. 2416, 32 L.Ed.2d 671 (1972) where the defendant was convicted of murder based primarily upon his possession of the murder weapon. While in Tolbert the defendant lived next door to the victim and was seen in the neighborhood, nonetheless no eye witness placed the defendant at the scene of the crime and his presence on his own front porch near the time of the murder was not inconsistent with innocence. In Tolbert the only probative evidence was possession of the murder weapon 6 days after the murder.[1]
The proper standard of review in California is no different from our own; the California court applied it in Tolbert by saying:
The rule on review of the sufficiency of the evidence is that the weight of the evidence is for the jury to determine in the first instance, and the trial court after the verdict in the second instance. If, as in the present case, the circumstances reasonably justify the verdict, an opinion of this court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury. 76 Cal.Rptr. at 450, 452 P.2d at 666.
The evidence in the case before us is even stronger than it was in Tolbert; here we have definite proof that the defendant had the weapon in his possession both before and after the murder. The record reveals that four witnesses for the prosecution stated that they had seen the defendant with a gun, and three of the witnesses identified the murder weapon as the gun they recalled. While the majority contends that the leading witness for the prosecution, Lloyd Buby, "recanted" his testimony that the defendant had the weapon before the murder, upon closer examination the testimony demonstrates that the witness only qualified his identification to the extent that he said that the gun admitted into evidence had more rust on it than the weapon he remembered seeing in the defendant's possession. His testimony was still that he had observed that the defendant had an uncommon looking gun before the murder which looked like the murder weapon presented at trial. The witness, who lived and worked with the defendant for a while, testified that on one occasion he stole the pistol in question because he feared the defendant might use it against him. His *834 testimony demonstrates that he had ample opportunity to study and to become familiar with the weapon while it was in his possession.[2]
*835 The murder weapon itself was not a commonplace, everyday 38 caliber pistol. Lloyd Buby testified that he had seen other .38s but he had never seen one exactly like the murder weapon. This particular .38 had several distinctive features: chrome or liquid plating, a black handle, and a loading mechanism similar to that used for a shotgun, in that it split apart. All of these features combined to make this a memorable weapon, not just a typical .38 caliber pistol. Once the ownership of the pistol before and after the murder had been proven, the State had established a prima facie case.
We must concede at the outset that any time a conviction is procured on circumstantial evidence there is a possibility of error. Some circumstantial evidence is stronger than other circumstantial evidence; nonetheless, a conviction is seldom procured on evidence sufficiently strong to be beyond all possibility of error. Consequently, a reviewing court must make some subjective determination of the actual probability of error first, and then proceed to work backward from its conclusion about probabilities to the application of some general rule about sufficiency. This determination is inherently a subjective process; regardless of what we say to the contrary, an appellate court will always reverse where it strongly disagrees with the conclusion of the jury regardless of the technique it selects to disguise this simple process. See, for example, Cannellas v. McKenzie, W.Va., 236 S.E.2d 327 (1977).
There are thousands of random results throughout the American jurisdictions which attempt to apply the simple standard of review quoted above from the California court in Tolbert, supra with little attempt to illuminate the reasoning process by which courts conclude that certain evidence satisfies the rule while other evidence does *836 not. What circumstantial evidence excludes all reasonable hypotheses of innocence? I suspect that there is such a paucity of illumination on the subject because an honest analysis brings a reviewing court squarely into an apparent conflict with Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965) which holds that no unfavorable inference may be drawn from the defendant's failure to testify. Nonetheless, it is possible to explain how courts have applied the sufficiency standard only with reference to the ease or difficulty which the defendant would have in rebutting the circumstantial evidence against him. The whole rationale for appellate review of sufficiency is to foreclose defendants from becoming victims of circumstances in a very literal sense. Why should defendants who have the peculiar ability to rebut apparently prima facie cases with evidence which is within their own knowledge be accorded the same reluctance to convict as those who are totally at the mercy of the sufficiency test?
Where circumstantial evidence is incapable of being rebutted by the defendant courts should apply a significantly higher standard for determining sufficiency than in cases where the defendant can easily rebut the circumstantial evidence. In the case before us only the defendant knew the history of his weapon; if it were not in his possession at the time of the murder then he and he alone had the capacity to demonstrate its whereabouts.
Even while paying sincere deference to the holding of Griffin v. California, supra, that neither comment by prosecution nor instructions to the jury may permit the inference that the silence of the accused is evidence of guilt, it is not inconsistent or illogical to recognize a certain elasticity in the standard for evaluating sufficiency of evidence based exclusively upon a high resolve to assure that no innocent defendant be unjustly convicted. If the gun had been found in the possession of the defendant twenty minutes after the robbery would that have been sufficient? One day? One week? What if in addition to the murder weapon the police had discovered clothes in the possession of the defendant which were similar to those worn by the assailant? If it is agreed that a conviction could be had in any of these hypothetical examples, it must then be conceded that sufficiency is basically predicated upon probabilities and is not absolute. Even in a case where the defendant had the gun and similar clothes twenty minutes after the murder there would not be proof beyond all possibility of mistake. The very recognition of a standard of review based on probabilities leads ineluctably to a recognition of the legitimacy of elasticity in that standard. Appellate court relief for insufficiency should be predicated upon the ease or difficulty which the defendant would have in rebutting the circumstantial evidence against him.
Where, for example, a defendant is convicted upon evidence which shows that he was driving a motor vehicle similar to the one in which an assailant fled, was wearing clothes similar to those worn by the assailant, and was close to the scene of the crime within a few hours of its perpetration, the standard should be higher than in the case before us because all of the evidence in our hypothetical example is consistent with innocence and there is absolutely no evidence other than alibi which the defendant can produce to rebut the inferences to be drawn from his unlucky circumstances. Absent an alibi the defendant may be a victim and there is nothing which he could reasonably be expected to know which would exonerate him or cast any light on the real perpetrator. In the case before us, however, the defendant knows everything; he and he alone can explain where his weapon was, whether it was lost, whether it was stolen, how he came to repossess it, and possibly who the real perpetrator is.
The majority is wrong to gainsay the conclusions of the trial judge and jury in this case. The unexplained possession of a murder weapon both before and after the murder is sufficient circumstantial evidence to make out a prima facie case. The use of the term "unexplained" possession does not magically invoke the spectre of Griffin because at some point the evidence will be so *837 compelling that the defendant must take the stand. Would the defendant need to take the stand if he had been caught with the weapon five minutes after the murder? What constitutes a prima facie case is always a subjective determination so that regardless of the threshold of sufficiency for a particular judge, the unexplained existence of certain circumstances when that particular threshold is met will cause the defendant to take the stand or suffer a conviction. Our fear of appearing cavalier about the rights of defendants to require the State to prove its case leads courts universally to eschew any analysis of the ease or difficulty with which a defendant can rebut circumstantial evidence lest we run afoul of Griffin, supra, yet this unarticulated consideration must lurk in the dark recesses of every judge's mind. The difficulty with unarticulated criteria is that they ultimately cloud the thinking process. While appellate judges may know the distinction between what they do and what they say they do, trial judges cannot be expected to be mind readers.
The results of most cases on sufficiency stand for the proposition that defendants are entitled to more protection in the form of appellate review of sufficiency when circumstances are beyond their power of explanation than when the incriminating circumstances can be easily explained. To accept any other view will either lead to inadequate protection for those unlucky enough to be victims of circumstances by reciting a mechanical rule which leaves everything to the discretion of the jury as long as there is "some evidence" or, alternatively, will lead to the freeing of the obviously guilty because we are unwilling to exercise our minds to a sufficient extent to reconcile the defendant's right to remain silent with the related problem of a proper standard for appellate review of sufficiency which takes account of relative degrees of likelihood of erroneous convictions dependent on the nature of the circumstantial evidence.
In this regard it would appear that the mere possession of a murder weapon two and a half months after the murder, i. e. November 4, 1974 to January 27, 1975 would not constitute a prima facie case because it could not logically be concluded that the defendant would have it in his power to rebut the evidence to show where the gun was before he bought it; however, possession both before and after the murder would lead reasonable minds to conclude that if it were not the defendant's gun and the defendant had not used it to commit the murder, the likelihood of an erroneous conviction would be very small as the defendant had it exclusively in his power to show the jury where the gun was at the time of the crime. Like all other circumstantial evidence ownership and possession of a murder weapon before and after the murder does not exclude all hypotheses of innocence, but the jury were entitled to conclude that it excluded all reasonable hypotheses of innocence. That, of course, is the proper standard. State v. Knotts, 156 W.Va. 748, 197 S.E.2d 93 (1973).
NOTES
[1] Similarly, in Robinson v. State, 18 Md.App. 678, 308 A.2d 734 (1973), the only probative evidence was possession of the murder weapon before and after the murder, hairs found on the victim that were the same color as the defendant's, unexplained blood stains on the shoes and jacket of the defendant, and ownership of a vehicle which emitted large quantities of carbon similar to the quantity and composition of the carbon found at the murder scene.
[2] The record states:
Q. Did you go into the house . . your apartment?
A. Yeah, I went in and got a coat.
Q. What else then did you at that time take from the house?
A. The gun over the vent and my jacket.
Q. Where, if anyplace, then did you go after you had taken the gun and your jacket?
A. I went through the woods way to Dean Goodnight's house on Cleveland Avenue.
Q. What was the purpose of your going to Dean Goodnight's place?
A. To get some shells for the gun.
Q. What type shells were you at that time looking for?
A. .38s.
Q. Did Dean Goodnight have any .38 ammunition?
A. No.
Q. Did you at that time have an opportunity to observe the gun more closely then?
A. Yeah, I held it around and clicked it open and looked at it.
Q. Was it a .38 cal? Would you describe it the best you can now for us, please after you then saw it?
A. It was chrome or liquid plated and it had a black handle and was five shot and it dropped down like a shotgun.
Q. In other words, the cylinder popped open when you loaded it? By looking at the Cylinder you saw five holes and you could load it?
A. Yes.
Q. How long did you keep the gun?
A. Around two hours.
Q. Then what happened? Did you see Joe Dobbs later?
A. Yes.
Q. Where did you first see him after that?
A. I was at Dean Goodnight's house and he came there.
Q. And what was his purpose of being there at that time?
A. He was looking for me.
Q. What, if anything, did he ask you for? Did you talk with him?
A. Yes.
Q. What did Joe want?
A. Just wanted me.
Q. What did he want you for at that time?
A. I guess just to talk to me.
Q. How about in reference to the gun, did you have conversation about that?
A. After we got in the car.
Q. What, if anything, was your conversation with respect to the gun?
A. He said, did you steal my gun?
Q. Meaning the .38?
A. Yes.
Q. What did you do in reply to his question?
A. I said what gun.
Q. Then what?
A. He said, the gun over the vent.
Q. Then what did you respond and what did you do with the gun?
A. I pulled it out of my coat pocket and handed it to him.
Q. Did you then give him the gun?
A. Yeah.
Q. Did he take it?
A. Yeah.
Q. Did you then continue to see Joe at any time after you gave him the gun?
A. Well, we drove around that night.
Q. Did you at any time after that take the gun back?
A. No.
Q. Do you know what, if anything, happened to the gun after you gave it to Joe?
A. No.
Q. Did you ever make any observation as to how Joe maintained the gun or what he kept it in and that sort of thing while you were staying there at the apartment and that sort of thing?
A. It was wrapped in a rag over the vent as far as I know.
Q. Let me show you what has been marked as State's Exhibit Number 18 and in talking of the gun you made mention to, how do you compare this item with the one that you had seen at that time? (Handing gun to witness)
A. This is it.
Q. You say that is it?
A. Yes.
MR. MASCARA: No further questions.
CROSS EXAMINATION BY MR. CLECKLEY
Q. Mr. Buby, where are you living now?
A. Forestry Camp at Davis.
Q. You are convicted of a crime, is that right?
A. Yes.
Q. What crime is that?
A. Breaking and entering.
Q. How about . . have you ever been charged or convicted with the larceny of a vehicle?
A. No, the charges were dropped as far as I know.
Q. The charges were dropped of a vehicle. Whose vehicle was that?
A. There was in two cases, one was a `57 Chevy. There was another one that belonged to Joe Dobbs.
Q. As I understand it, when was the last day you had seen the gun?
A. It was sometime near the middle of August.
Q. Near the middle of August?
A. Yes. (By nod of head)
Q. How long have you been in Forestry Camp?
A. Six months and a half.
Q. That would be about December, is that right when you went?
A. No, I went in November.
Q. And would this be since the middle of August would today be the first time you have seen that gun since then? Between the middle of August and today, is this the first time you have seen the gun?
A. Yeah.
Q. You indicated after looking at it saying that this is it. Please, with as much particularity as you can in due time, how do you draw the conclusion that this is the gun.
A. It looks just about like the gun I seen.
Q. It looks about like it?
A. Except for the rust on it.
Q. The gun that you had seen didn't have any rust on it?
A. Right.
Q. Other than this particular gun that you claim you saw there, were there any other guns in this apartment?
A. No.
Q. What caused you to take the gun?
A. It was afraid of Dobbs.
Q. You took it for protection, I guess?
A. Yes.
Q. And you kept it for about two hours?
A. Yeah.
Q. When he came along to get the gun back, where were you again?
A. At Dean Goodnight's house.
Q. And that is where he found you?
A. Yes.
Q. As I understand it, this was in the middle of August too, wasn't it?
A. Whenever I had the gun?
Q. Yes.
A. No, this was some time near the middle of July maybe the end of July.
Q. The middle of July or about the end of July?
A. Yes. (by nod of head)
Q. How long had the gun been over the vent that you were talking about?
A. I couldn't say for sure. It was a week or so since when I noticed it and took it.
Q. Have you ever seen a .38 gun like that before?
A. Not exactly like that one.
Q. Have you seen other .38s?
A. Yes.
Q. Where have you seen these?
A. A friend of mine had one in Barrackville.
Q. That's the only one you've seen. Have you seen others other than the one your friend had?
A. A western pistol my cousin has.
Q. That wasn't a .38 though or was it a .38?
A. A western, yes, .38.
Q. Let me make sure I understand it. You had first seen the gun that Joe Dobbs had in his possession. It wasn't in the apartment at this time, but you had seen it before, that is before the gun was placed in the vent in the apartment, is that right?
A. Yes, but it was in the apartment when I seen it.
Q. Where was that?
A. This was in my bedroom.
Q. Who else was present at this time?
A. Me and Joe Dobbs.
Q. Were you the only two there?
A. Yes.
MR. CLECKLEY: No further questions of this witness. I would like to recall him for my case.
MR. MASCARA: No questions.
Whereupon, the witness was excused. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381261/ | 259 S.E.2d 348 (1979)
43 N.C. App. 419
Arida Anderson YOUNG
v.
Curtis YOUNG, George Dewey Young and wife, Jennie May Young.
No. 7828SC38.
Court of Appeals of North Carolina.
November 6, 1979.
*349 George B. Hyler, Jr., Asheville, for plaintiff-appellant.
John A. Powell, Asheville, for defendants-appellees.
PARKER, Judge.
"When a verdict is set aside for error or errors in law, committed during the trial, and not as a matter of discretion, the party thereby aggrieved may appeal, provided the error or errors are specifically designated." Akin v. Bank, 227 N.C. 453, 455, 42 S.E.2d 518, 519 (1947); accord, Wells v. Bissette, 266 N.C. 774, 147 S.E.2d 210 (1966); McNeill v. McDougald, 242 N.C. 255, 87 S.E.2d 502 (1955); Powers v. City of Wilmington, 177 N.C. 361, 99 S.E. 102 (1919). Here, the supposed errors which induced the court's action in setting aside the verdict were specifically stated by the court as (1) error in failing to submit to the jury an issue as to whether plaintiff's claim was barred by laches and (2) error in failing to submit an issue as to whether defendants have acquired title by adverse possession under color of title. The order setting aside the verdict in plaintiff's favor is, therefore, appealable.
The question presented for our review on this appeal is whether the court was correct in its determination that there was error in failing to submit either of the two additional issues to the jury. We hold that under the pleadings and evidence in this case neither of the two additional issues were properly raised for jury determination, that the single issue answered by the jury was determinative of the rights of the parties, and that the court erred in setting aside the verdict. Accordingly, we reverse the court's order, reinstate the verdict, and remand the case for entry of judgment on the verdict rendered.
First, we hold that there was no error in failing to submit an issue as to laches. In so holding we find it unnecessary to decide whether the present action is in essence one in ejectment and thus so legal in its nature and origin as to make untenable the equitable defense of laches, *350 see Poultry Co. v. Oil Co., 272 N.C. 16, 157 S.E.2d 693 (1967); Coppersmith v. Upton, 228 N.C. 545, 46 S.E.2d 565 (1948); or whether it is essentially an action to quiet title and thus sufficiently equitable in nature to make the defense here tenable. See 65 Am.Jur.2d, Quieting Title, § 2, pp. 142-43, § 57, pp. 188-89. Additionally, we find it unnecessary to inquire how far the rule recognizing laches as a defense only against equitable and not against legal claims has been adhered to in the past, see McRorie v. Query, 32 N.C.App. 311, 232 S.E.2d 312 (1977), or how far such a rule should be enforced in the future. This is so because, even if the present action be recognized as one in equity and thus one in which laches could be an appropriate defense, the defendants, for reasons quite apart from the nature of this action as being either legal or equitable, have not shown that the defense is available to them under the pleadings or evidence in this case.
Laches is an affirmative defense which must be pleaded, G.S. 1A-1, Rule 8(c), and the party pleading it bears the burden of proof. Taylor v. City of Raleigh, 290 N.C. 608, 227 S.E.2d 576 (1976); Harris & Gurganus v. Williams, 37 N.C.App. 585, 246 S.E.2d 791 (1978). G.S. 1A-1, Rule 8(c) expressly provides that "[i]n pleading to a preceding pleading, a party shall set forth affirmatively. . . laches . . . . Such pleading shall contain a short and plain statement of any matter constituting an avoidance or affirmative defense sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved." Here, defendants did not raise an issue of laches in their answer. Nothing in their pleadings gives notice of any transactions or occurrences intended to be proved which would present an issue as to whether plaintiff's claim should be barred by laches. Moreover, even had the defense of laches been properly pled, the evidence was insufficient to raise any issue concerning it. In this regard the evidence shows the following:
Prior to 1961 plaintiff and her husband, Curtis Young, lived and worked in Washington, D.C. Curtis's parents lived in Buncombe County. They expressed the desire that Curtis and plaintiff come back to Buncombe County to live and raise their children, and indicated they would give Curtis and plaintiff a portion of defendants' home tract if they would agree to come back, build a home on the property, and live and raise their children there. In 1961 plaintiff and Curtis moved back to Buncombe County, defendants executed and delivered the deed under which plaintiff now claims, and Curtis and his father began building a house on the property. A basement was constructed of block and covered by sub-flooring, and four rooms and a bath were started in the basement. At that time plaintiff and Curtis intended to stay and live on the property, but shortly after the 1961 deed was executed they separated for the first time and did not thereafter again live on the property. Between 1961 and 1968 plaintiff and Curtis alternately separated and lived together, but not on the property in question, and during that period four children were born of their marriage, their respective birthdates being 25 March 1962, 8 December 1963, 15 September 1965, and 17 May 1967. In 1968 plaintiff and Curtis were divorced. Plaintiff testified that she kept the 1961 deed in a box among her valuable papers from 1963 until 1968 and that she did not record it until the time of her divorce in 1968, when she was advised by a lawyer to do so. Defendant George Dewey Young testified that "Curtis said Arida [plaintiff] had lost it." Following the initial separation between plaintiff and Curtis, the defendant, George Dewey Young, continued to work on the house, finishing the sub-flooring and building a second story, paying for or doing all of this work himself. In 1965, after the upstairs was completed, defendants moved into the house, where they continued to live until the time of the trial, paying all taxes and making all repairs. Plaintiff did not pay any money for the construction of the house. She did not commence this action to establish her interest in the property until 1976.
*351 In our opinion the foregoing facts furnish no basis for a finding that plaintiff's right to assert her claim in this action is barred by laches. "`Laches' has been defined as such neglect or omission to assert a right, taken in conjunction with lapse of time and other circumstances causing prejudice to an adverse party, as will operate as a bar in equity." 27 Am.Jur.2d, Equity, § 152, p. 687. Delay which will constitute laches depends upon the facts and circumstances of each case. "The doctrine of laches applies only when circumstances have so changed during the lapse of time it would be inequitable and unjust to permit the prosecution of the action." Rape v. Lyerly, 287 N.C. 601, 620, 215 S.E.2d 737, 749 (1975). In McRorie v. Query, supra, Morris, Judge (Now Chief Judge), discussed the relative importance of lapse of time in connection with laches as follows:
Lapse of time is not, as in the case when a claim is barred by a statute of limitation, the controlling or most important element to be considered in determining whether laches is available as a defense. The question is primarily whether the delay in acting results in an inequity to the one against whom the claim is asserted based upon ". . . some change in the condition or relations of the property or the parties." 27 Am.Jur.2d, Equity, § 163, p. 703. Also to be considered is whether the one against whom the claim is made had knowledge of the claimant's claim and whether the one asserting the claim had knowledge or notice of the defendant's claim and had been afforded the opportunity of instituting an action. Id. at § 162, p. 701.
McRorie v. Query, 32 N.C.App. 311, 323, 232 S.E.2d 312, 320 (1977).
Applying these principles to the facts disclosed by the evidence in the present case, we find no basis for submitting an issue as to laches. To avail themselves of that defense defendants were required to show not merely that plaintiff unreasonably delayed asserting her claim but that they have been so prejudiced by the delay that it would now be inequitable to permit plaintiff to prosecute her action. This they have failed to show. It is true that defendants expended their labor and money to complete the house, but this was accomplished by 1965. At that time plaintiff remained married to defendants' son, her interest in the property was that of a feme tenant by the entirety, and plaintiff's husband rather than the plaintiff had the right to control the use of the property. Davis v. Bass, 188 N.C. 200, 124 S.E. 566 (1924). Manifestly plaintiff could not be guilty of laches for failing to bring an action until she had the right to maintain one. Moreover, defendants completed the house fully aware that they had previously executed and delivered the 1961 deed under which plaintiff claims. That they may have believed, mistakenly as it turned out, that the deed was lost and would never be found, furnishes no basis for holding plaintiff guilty of laches.
Finally, such delay in bringing this action after 1968, when as a result of her divorce plaintiff first acquired the right to maintain an action as a tenant in common, benefited rather than harmed the defendants. During that period they enjoyed the use of the property at the cost only of paying for taxes and repairs.
We hold, therefore, that the trial court erred in ruling that the issue of laches should have been submitted to the jury. McRorie v. Query, supra, which the trial court apparently felt required submission of the issue, is distinguishable on its facts.
We also hold that no issue as to adverse possession was raised by the evidence in this case. From the date the 1961 deed was delivered until plaintiff and her husband were divorced in 1968, they owned the property as tenants by the entirety. That status was not changed by the 1962 deed which defendants gave to plaintiff's husband alone, since at the time the 1962 deed was given the defendants no longer had anything to convey. This brings us to a consideration of the effect of the 1963 deed from plaintiff's husband to defendants in which plaintiff did not join. At the time this deed was given the title was still vested in plaintiff and her husband as tenants by *352 the entirety. The estate by the entirety as it existed at common law remains virtually unchanged in North Carolina to this date. Lee, Tenancy by the Entirety in North Carolina, 41 N.C.L.R. 67 (1962). [For minor modifications not here pertinent, see G.S. 39-13.3 and 39-13.5] "An estate by the entirety is an estate where the husband and wife are neither `joint tenants' nor `tenants in common', since they are considered one person in law. They cannot take the estate by moities but both are seized per tout and non per my, thus neither can dispose of any part without the assent of the other, but the whole must remain in the survivor." Gas Co. v. Leggett, 273 N.C. 547, 550, 161 S.E.2d 23, 26 (1968). Although neither the husband nor the wife can separately deal with the estate so as to affect the survivorship rights of the other, "[d]uring the existence of the tenancy by the entirety, the husband has the absolute and exclusive right to the control, use, possession, rents, income and profits of the lands, and he does not have to account to his wife for the rents and income received from the property." Board of Architecture v. Lee, 264 N.C. 602, 610, 142 S.E.2d 643, 648-49 (1965). "In the exercise of this control, use and possession, he may, without joinder of the wife, lease the property, mortgage the property, grant rights-of-way, convey by way of estoppel qualified in all these instances by the fact that the wife is entitled to the whole estate unaffected by his acts if she survive him." Gas Co. v. Leggett, supra, at p. 551, 161 S.E.2d at pp. 26-27. Thus, when plaintiff's husband, who was then the sole usufructuary, executed the 1963 deed to the defendants, the deed was effective to transfer his rights to the possession, and it is manifest, that defendants' possession of the property under that deed during the period before plaintiff and her husband were divorced in 1968 could not have been adverse to plaintiff's survivorship rights nor could the 1963 deed serve to defeat those rights. Harris v. Parker, 17 N.C.App. 606, 195 S.E.2d 121 (1973).
Upon their divorce in 1968, the estate by the entirety of plaintiff and her former husband was converted into a tenancy in common. Davis v. Bass, supra, McKinnon v. Caulk, 167 N.C. 411, 83 S.E. 559 (1914). Where the husband conveys the land held by him with his wife as tenants by the entirety by warranty deed without the joinder of the wife, the conveyance may operate by way of estoppel. Harrell v. Powell, 251 N.C. 636, 112 S.E.2d 81 (1960); Hood v. Mercer, 150 N.C. 699, 64 S.E. 897 (1909). Therefore, at the time the 1968 divorce was entered, the 1963 deed previously given to defendants by plaintiff's husband without her joinder operated by way of estoppel to vest defendants with ownership of Curtis Young's one-half undivided interest in the property as tenant in common with the plaintiff.
Because defendants were tenants in common with the plaintiff, their possession for a period of less than twenty years could not be adverse to the plaintiff, absent an actual ouster of the plaintiff. This is so because a tenant in common has the right to possess the property and is presumed to be holding under his true title. Winstead v. Woolard, 223 N.C. 814, 28 S.E.2d 507 (1944). The possession of a tenant in common is not considered adverse to his cotenant unless he ousts his cotenant "by some clear, positive, and unequivocal act equivalent to an open denial of his [cotenant's] right." Dobbins v. Dobbins, 141 N.C. 210, 214, 53 S.E. 870, 871 (1906). If the tenant in common gives a deed which purports to convey the whole estate, the grantee therein merely steps into his grantor's shoes. As a result, the deed is not color of title as against the grantor's cotenants, and seven years' possession under the deed will not ripen title to the whole estate in the grantee. Cox v. Wright, 218 N.C. 342, 11 S.E.2d 158 (1940). "In the absence of actual ouster, the ouster of one tenant in common by a cotenant will not be presumed from an exclusive use of the common property and the appropriation of its profits to his own use for a less period than twenty years . . . ." Morehead v. Harris, 262 N.C. 330, 343, 137 S.E.2d 174, 186 (1964). When these principles are applied in the present case, it can be seen that the evidence presented at trial did not raise *353 the issue of adverse possession. The defendants have not effected an actual ouster of the plaintiff and were in possession of the property less than the twenty years required to raise a presumption of ouster.
The order of the trial court setting aside the verdict is reversed, the verdict is reinstated, and this cause is remanded for entry of judgment on that verdict declaring plaintiff to be a tenant in common with a one-half undivided interest in the property.
Reversed and remanded.
ROBERT M. MARTIN and HARRY C. MARTIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381262/ | 132 Ariz. 414 (1982)
646 P.2d 299
Nora J. SLOANE, Petitioner/Appellee,
v.
Donald Sol SLOANE, Respondent/Appellant.
No. 2 CA-CIV 4184.
Court of Appeals of Arizona, Division 2.
March 31, 1982.
Rehearing Denied May 12, 1982.
Review Denied June 8, 1982.
*415 Schorr, Leonard & Felker, P.C. by Franklin O. Eldridge, Monroe, Wilson & Collins by Mark L. Collins, Tucson, for petitioner/appellee.
Donald Estes, Tucson, for respondent/appellant.
OPINION
HOWARD, Chief Judge.
The parties were married on March 7, 1976. Appellant's separate funds were used to purchase a house which was taken by the parties in joint tenancy with the right of survivorship. Appellant testified that he was advised by a real estate agent to place the house in joint tenancy and to contact his lawyer. His lawyer advised him that if he intended a gift to his wife he would have to file a gift tax return and pay the gift tax, but if a gift was not intended he could place the title in joint tenancy as a testamentary device until an estate plan could be prepared by the lawyer. According to the appellant, the parties went to see the lawyer and they discussed putting the house in a revocable trust with the wife as the beneficiary of the trust. However, the wife denied that they discussed placing the house in the trust although they did talk about creating a trust. The lawyer intended to make it clear in the trust document that the house was the separate property of appellant, but the record does not disclose that this intention was ever communicated to the wife.
Nothing was ever done as far as the estate plan was concerned and on December 26, 1978 appellee filed for divorce. The trial court treated the property as joint tenancy property and awarded each party one-half. Appellant contends this was error. We do not agree.
Where real property is paid for by the husband and taken jointly in both names, the law presumes a gift from the husband resting upon the presumption that the husband is discharging his duty to provide for his wife. Becchelli v. Becchelli, 109 Ariz. 229, 508 P.2d 59 (1973); Ivancovich v. Ivancovich, 24 Ariz. App. 592, 540 P.2d 718 (1975). The burden of proof is upon the husband to establish, by clear and convincing evidence, a resulting trust rather than a gift. Ivancovich v. Ivancovich, supra. There was no testimony here that there was ever any agreement or understanding between the parties that the property was not in reality a joint tenancy and that there was no intent to make a gift. Can the hidden intention of one of the parties negate the presumption? We think not. Machado v. Machado, 58 Cal.2d 501, 25 Cal. Rptr. 87, 375 P.2d 55 (1962) states:
*416 "... The presumption created by the deed cannot be overcome by testimony of the hidden intentions of one of the parties, but only by evidence tending to prove a common understanding or an agreement that the character of the property was to be other than joint tenancy. Since there was no evidence of a common understanding or an agreement the presumption was not overcome. [citations omitted]" 25 Cal. Rptr. at 90, 375 P.2d at 58.
A similar decision was arrived at by the Florida court in Hart v. Hart, 377 So.2d 51 (Fla.App. 1979) where the court states:
"Here, this presumption was not rebutted by the husband's simple assertion that he put the lot in joint names upon the estate planning advice of his accountant, particularly where there was never any discussion between him and his wife with respect to title to the property. [citation omitted] ..." 377 So.2d at 53.
And in Blaine v. Blaine, 63 Ariz. 100, 159 P.2d 786 (1945), the court, in discussing the defendant's evidence that it was not his intention to acquire this real estate as community property or to make a gift of one-half interest to his wife, stated:
". . This was the only evidence showing or tending to show that the Polk Street property was not in fact bought with the intention of giving the plaintiff a one-half interest therein.
We are not unmindful of the rule that where there is reasonable evidence to support the finding of the trial court, such finding will be upheld. We think that the statement made by the defendant five years after the purchase that he did not intend to vest any interest in this property in his wife, is not reasonable evidence within the rule.... If deeds not involving trusteeships, executed and delivered in the joint names of parties and treated as their joint property for years, may be overturned simply on the testimony of one of the grantees, long subsequent to the execution of the instrument, that he did not intend the conveyance to operate as a grant to his cograntee, no title would be safe. We cannot assent to such a rule...." 159 P.2d at 791.
While here only two years elapsed, we believe that the rule enunciated in Blaine v. Blaine, supra, applies as does the rule in Machado v. Machado, supra. There was no evidence here tending to prove a common understanding or agreement between the parties.
Affirmed.
HATHAWAY and BIRDSALL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381306/ | 259 S.E.2d 271 (1979)
298 N.C. 529
STATE of North Carolina
v.
Whalen CLARK.
No. 45.
Supreme Court of North Carolina.
November 6, 1979.
*273 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Thomas F. Moffitt and Sp. Deputy Atty. Gen. David S. Crump, Raleigh, for the State.
Keith M. Stroud, Charlotte, for defendant.
CARLTON, Justice.
The sole question presented on this appeal is whether the trial court committed error in denying defendant's motion for mistrial after a police officer testified that he had retrieved a photograph of defendant from police records, the defendant not having testified. We find no prejudicial error.
Investigator Thomas A. Gaughen of the Charlotte Police Department, while testifying as one of the State's lead witnesses, was describing the procedure he followed when he showed photographs of various men to Jim Ellis. Ellis was attempting to identify the man he had seen searching for the T.V. set the Monday after the rape. During the photographic lineup, the officer testified that Ellis had pointed to the picture of the defendant and stated that he was reasonably certain this was the individual he had seen but that he would not make a positive identification unless he was able to see a photograph that showed more of defendant's body. After this testimony, the prosecuting attorney asked Officer Gaughen what he had done at that point and Gaughen replied, "I was able to secure a second photograph from the police files of the defendant." (Emphasis added.)
Defendant's counsel immediately objected, and made motions to strike and for a mistrial. The jury was excused from the courtroom and the trial judge heard arguments from counsel. Upon the jury's return to the courtroom, the trial judge stated to them, "The jury is to disregard the last remark made by this witness with respect as to retrieving a photo of the defendant. You are not to give that any weight or consideration in your deliberations in this matter."
Defendant now argues that the trial court's failure to allow his motion for mistrial violates the rule enunciated in State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954), and reiterated in numerous decisions, that the State may not, over objection of defendant, introduce evidence that accused has committed another independent criminal offense. As more completely stated by Justice Lake in State v. Duncan, 290 N.C. 741, 228 S.E.2d 237 (1976):
The general rule is that in a prosecution for a particular crime the State, prior to the defendant's taking the witness stand and thus placing his general character and credibility in issue, cannot offer evidence tending to show that the accused has committed another distinct, independent, or separate offense. . . . However, as there noted, numerous exceptions to this rule are also well established. One is that such evidence may be admissible to identify the defendant as a perpetrator of the crime with which he is presently charged. Another is that such evidence of other crimes is admissible when it tends to establish a common plan *274 or scheme embracing the commission of a series of crimes so related to each other that proof of one or more tends to prove the crime charged and to connect the accused with its commission.
Id. at 744-45, 228 S.E.2d at 239.
Defendant argues that allowing the testimony in question was tantamount to testifying that defendant had committed another distinct, independent, or separate offense and that the statement does not fall within any of the exceptions hereinabove noted.
We agree with the defendant that the facts here presented do not fall within any of the exceptions noted. However, we disagree that the questioned testimony violated the rule. We do not find that the testimony tended to show "that the accused has committed another distinct, independent, or separate offense." The jury was already aware that a second photograph of defendant existed because Ms. Alexander had previously referred to it in her testimony. At no time in his testimony did Officer Gaughen intimate that the photograph was obtained during the investigation of another criminal offense. The jury had no more reason to believe that the police had the second photograph of defendant as a result of a prior crime committed by him than that the police had simply made an additional photograph in the investigation of the crimes for which he was being tried.
The situation here presented is not unlike that presented in State v. Pitt, 248 N.C. 57, 102 S.E.2d 410 (1958). There, a State probation officer was allowed to testify both that he was a probation officer and that a certain admission was made to him by the defendant. The defendant moved for a mistrial on the ground that allowing such testimony was equivalent to telling the jury that defendant had been convicted of another criminal offense and presumably was on probation for that crime. The Court in Pitt rejected the defendant's contention. We agree with their reasoning that to conclude that the jury would assume that the defendant had a prior criminal conviction as a result of the questioned testimony would be "entirely speculation."
Furthermore, even if the jury, by some stretch of the imagination, had inferred the photograph came from a file of a separate crime, numerous decisions of this Court sustain our view that defendant suffered no prejudicial error by the admission of the challenged testimony when the trial court properly instructed the jury to disregard the testimony. In State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721 (1974), death sentence vacated, 428 U.S. 903, 96 S.Ct. 3205, 49 L.Ed.2d 1206 (1976), an F.B.I. witness inferred in his testimony that the defendant had escaped from prison. Defendant's counsel immediately moved for mistrial and the motion was denied. This Court found no prejudicial error because the trial court, as here, properly instructed the jury not to consider the statement.
In State v. McKethan, 269 N.C. 81, 152 S.E.2d 341 (1967), defendant was on trial for rape and kidnapping. A witness, in answer to defense counsel's question about his knowledge of defendant prior to the incident, replied that he had known the defendant "for other sex offenses." Again, the court promptly instructed the jury not to consider the statement and this Court held the occurrence afforded no grounds for a mistrial.
In State v. Robbins, 287 N.C. 483, 214 S.E.2d 756 (1975), death sentence vacated, 428 U.S. 903, 96 S.Ct. 3208, 49 L.Ed.2d 1208 (1976), a police officer testified that he went to the Charlotte Police Department to obtain the defendant's address. He stated that the address was obtained "from an arrest record of [defendant]." Defendant objected and the court, sustaining the objection, instructed the jury to disregard any mention of the arrest record. Again, this Court found no prejudicial error, citing the rules that
"[O]ur system for the administration of justice through trial by jury is based upon the assumption that the trial jurors are men of character and of sufficient intelligence to fully understand and comply with the instructions of the court, and are presumed to have done so." State v. *275 Ray, 212 N.C. 725, 194 S.E. 482 (1938).. . . "Ordinarily where the evidence is withdrawn no error is committed." State v. Strickland, 229 N.C. 201, 49 S.E.2d 469 (1948).
Nothing in the record before us indicates these jury members were other than people of character and intelligence. Furthermore, even if the judge had failed to properly instruct them, we do not feel the testimony would have been prejudicial error. The record before us discloses an overwhelming case of guilt. Both Ms. Alexander and Mr. Ellis promptly and positively identified the defendant. Blood type, hair samples, license tags and circumstances pointed unerringly to his guilt. It is inconceivable to us that the jury could have reached a different result had the inadvertent statement by the witness not been made. We therefore find beyond a reasonable doubt that the evidence, even if it had been improperly admitted, would have been harmless error. See, e. g., Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); State v. Robbins, supra. We have consistently held that technically incompetent evidence is harmless unless it is made to appear that the defendant was prejudiced thereby and that a different result likely would have ensued had the evidence been excluded. State v. Barbour, 278 N.C. 449, 180 S.E.2d 115 (1971), cert. denied, 404 U.S. 1023, 92 S.Ct. 699, 30 L.Ed.2d 673 (1972), and authority cited therein. Defendant's sole assignment of error is overruled.
We deem it appropriate to comment that the investigative techniques employed by the Charlotte Police Department in this case were of the finest professional quality, that the case was tried, prosecuted and defended according to the highest professional legal standards, that defendant's constitutional rights were fully accorded at every stage of the proceeding and that the diligence of the prosecutrix's neighbors was laudable.
In the trial below, defendant had a fair trial, free from any prejudicial error.
No error. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381328/ | 151 Ga. App. 298 (1979)
259 S.E.2d 695
SELF
v.
EXECUTIVE COMMITTEE OF THE GEORGIA BAPTIST CONVENTION OF GEORGIA, INC.
57754.
Court of Appeals of Georgia.
Argued May 2, 1979.
Decided September 12, 1979.
Roy E. Barnes, for appellant.
Daryll Love, Anthony L. Cochran, for appellee.
UNDERWOOD, Judge.
This is an appeal from a summary judgment granted defendant, doing business as Georgia Baptist Hospital, in an action alleging the wrongful death of plaintiff's husband who was a patient at the hospital. We affirm.
On August 22, 1977, plaintiff's husband was admitted to the hospital suffering from acute leukemia. Two days later members of his family noticed water leaking from one of the fixtures in the bathroom. Hospital personnel were notified of the leak and an effort was made to repair the fixture. Subsequent to the attempt to repair the leak, Mr. Self went to the bathroom where he slipped and fell and according to the affidavit of a family member "hit his head." Near midnight on the day of his fall, Mr. Self died. Affidavits of various family members contend that Mr. Self's condition prior to the fall was improved over his condition at the time he was admitted to the hospital and deteriorated after the fall. The complaint alleges that the fall was the result of the hospital's negligence in failing properly to repair the bathroom fixture and thus contributed to Mr. Self's death.
In support of its motion for summary judgment, the hospital presented expert medical testimony through the deposition of Dr. Steven Bondell, who performed an autopsy on the deceased. Dr. Bondell testified that there was no causal connection between Mr. Self's fall and his death; that there was no evidence of injury to the head or brain of the deceased; that the fall could not have accelerated his death; that a blow to Mr. Self's head could not have caused the intracerebral hemorrhages causing *299 his death; and that the type of intracerebral deep-seated hemorrhages causing Mr. Self's death are characteristic of and most common in persons who have acute leukemia, and are uncharacteristic of, and do not indicate, trauma to the head or brain. The death certificate prepared and executed by another physician lists the cause of death as "massive right sided intracerebral hemorrhage with cerebral edema and herniation of cerebellar tonsils" due to acute leukemia.
The decision of the trial court in granting summary judgment was based upon the Supreme Court's holding in Howard v. Walker, 242 Ga. 406 (249 SE2d 45) (1978) that "[i]n those cases where the plaintiff must produce an expert's opinion in order to prevail at trial, when the defendant produces an expert's opinion in his favor on motion for summary judgment and the plaintiff fails to produce a contrary expert opinion in opposition to that motion, then there is no genuine issue to be tried by the jury and it is not error to grant summary judgment to the defendant." p. 408 citing Anderson v. Crippen, 122 Ga. App. 27 (176 SE2d 196) (1970) and Dickerson v. Hulsey, 138 Ga. App. 108 (225 SE2d 464) (1976).
On appeal Self contends the trial court erred in granting the hospital's motion for summary judgment as there is a conflict in the evidence and there is no authority requiring Self, under the facts of this case, to present expert opinion testimony to rebut the testimony of the expert witness for the defense. Thus, the sole issue is whether Howard, supra, is controlling in this case, or whether it falls within the ambit of Ginn v. Morgan, 225 Ga. 192, 195 (167 SE2d 393) (1969), relied on by appellant, in which the Supreme Court held "[t]hat even though the movant supported its motion by opinion evidence, summary judgment was unauthorized, because a jury might lawfully find that the conclusions were not authorized." It should be noted that in Howard, supra, the Supreme Court stated specifically "Ginn v. Morgan, supra, and its progeny continue to be correct insofar as nonexpert opinion cases are concerned and insofar as motions for summary judgment in favor of plaintiffs are concerned." p. 408.
In order for plaintiff to prevail at trial it would be *300 necessary to overcome Dr. Bondell's testimony that a blow to the head such as one allegedly sustained by Mr. Self when he fell did not and could not cause intracerebral hemorrhage of the nature which resulted in his death. Such expert opinion testimony would be mandatory to establish that the death of plaintiff's husband resulted from the negligence of the hospital as required in an action for wrongful death brought under Code §§ 105-1301 and 105-1302 rather than from the acute leukemia for which he was hospitalized as concluded by an expert witness, Dr. Bondell. Accordingly, we find the principle of Howard v. Walker, supra, applicable here. Since no expert witness testimony was submitted by plaintiff in opposition to that presented by defendant in support of its motion for summary judgment, and since plaintiff could not prevail without such expert witness testimony, the trial court correctly granted summary judgment to the defendant.
Judgment affirmed. McMurray, P. J., concurs in the judgment only. Banke, J., concurs specially.
BANKE, Judge, concurring specially.
1. I am constrained to concur fully in the judgment and in the court's opinion only because we are compelled to follow Howard v. Walker, 242 Ga. 406 (249 SE2d 45) (1978).
2. I find it difficult to believe the Supreme Court intended the dire consequences of its broad, sweeping language in Howard v. Walker, supra. The circumstances of some cases will render it impossible to have experts for both sides of an issue. Dr. Bondell, in this case, was a pathologist employed by Georgia Baptist Hospital to perform the autopsy. After the autopsy was performed and the deceased buried, an elementary question may be asked as to how the appellant could produce a contrary *301 expert opinion as now required by Howard v. Walker, supra. Justice Jordan, in his dissenting opinion, joined by Presiding Justice Undercofler, in Howard v. Walker, supra, said "The majority opinion has confused an area of law which had become settled by a long line of cases." While this area of law may have been confused by Howard v. Walker, supra, I think more importantly this decision frustrates the efforts of litigants who legitimately seek access to our courts. In my opinion whenever we favor one class of witnesses over another, our judicial system is in trouble. Following Howard, how soon will it be that we hear contentions that policemen or clergymen should be believed over common citizens? Hopefully, never. I do not believe that we discharge our constitutional duty fairly, or properly service our constituencies who depend on our guidance, when we favor one class of citizens over another. This is not equal justice under the law. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381329/ | 259 S.E.2d 784 (1979)
44 N.C. App. 59
STATE of North Carolina
v.
Robert Lee SPELLER.
No. 792SC528.
Court of Appeals of North Carolina.
November 20, 1979.
*785 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Benjamin G. Alford, Raleigh, for the State.
Griffin & Martin by Clarence W. Griffin, Williamston, for defendant-appellant.
VAUGHN, Judge.
Defendant contends that his entry was lawful and that, therefore, he cannot be convicted of felonious breaking or entering. Felonious entry is a statutory crime. G.S. 14-54(a). "[A] person cannot be convicted of felonious entry into a store or place of business during normal business hours through a door open to the public because there has not been an unauthorized or unpermitted entry." State v. Boone, 39 N.C.App. 218, 219, 249 S.E.2d 817, 819 (1978), modified and affirmed, 297 N.C. 652, 256 S.E.2d 683 (1979). Defendant entered the building during normal business hours. Thereafter, however, without the consent of the owner, he went into an area not open to the public and there secreted himself. He remained concealed until well beyond the closing of business hours for the store for the purpose of participating in a theft. These acts voided any consent to the entry. Going into an area not open to the public and remaining hidden there past closing hours made the entry through the front door open for business unlawful. See State v. Boone, 297 N.C. 652, 659, n. 3, 256 S.E.2d 683, 687 n. 3 (1979).
Defendant also contends the larceny charge should not have reached the jury because, he argues, the State failed to show a taking of the goods. The handguns were removed from a locked case and placed in a cardboard box which was found hidden behind the gun case. In State v. Carswell, 296 N.C. 101, 249 S.E.2d 427 (1978), a defendant and a companion took an air conditioning unit from a motel window and moved it to the floor four to six inches towards the door. The court held this sufficient evidence of a taking and asportation to support a conviction of larceny, Quoting from 4 W. Blackstone, Commentaries *231, the Court said "`[a] bare removal from the place in which he found the goods, though the thief does not quite make off with them, is a sufficient asportation, or carrying away.'" Id. at 103, 249 S.E.2d at 428. In this case, the thieves took the guns from the gun case and placed them in a box behind the case. During that interval, the guns were under the control of the thieves and severed from the possession of the owner. The crime of larceny was thereby completed. We find no error in defendant's trial.
No error.
ERWIN and HILL, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381337/ | 259 S.E.2d 398 (1979)
43 N.C. App. 611
Billy Ray ANDERSON
v.
E. L. GOODING, Executor of Will of Elizabeth Gooding Hardy, J. W. Brewer, and Great American Insurance Company.
No. 793SC57.
Court of Appeals of North Carolina.
November 6, 1979.
*399 Johnson, Patterson, Dilthey & Clay by Robert M. Clay and Robert W. Sumner, Raleigh, White, Allen, Hooten, Hodges & Hines by John R. Hooten, Kinston, for defendants-appellants.
James, Hite, Cavendish & Blount by Robert D. Rouse III, Greenville, for plaintiff-appellee.
HILL, Judge.
Did the judge err in allowing the plaintiff's motion for partial summary judgment? We hold that he did under the prevailing statute.
G.S. 28A-19-3(a) provides in clear and unambiguous terms that all claims arising before the death of the decedent with specific exceptions which are not presented to the personal representative or collector pursuant to G.S. 28A-19-1 within six months after the day of the first publication or posting of the general notice to creditors as provided for in G.S. 28A-14-1 are forever barred against the estate, the personal representative, the collector, the heirs, and the devisees of the decedent. (Emphasis added.)
The 1977 amendments to G.S. 28A-14-3 do not apply, for such amendments are limited to matters beginning 1 September 1977. See Sections 5 and 6, Chapter 446 of the North Carolina Session Laws. The decedent died 25 March 1977. Hence, there was no need for the executor to give notice of disallowance of claim to the claimant by registered or certified mail as provided in the 1977 amendment above.
It is a well settled rule that G.S. 28A-19-3(a) is a statute of limitations which must be complied with by creditors of *400 an estate. Mallard v. Patterson, 108 N.C. 255, 13 S.E. 93 (1890); Love v. Ingram, 104 N.C. 600, 10 S.E. 77 (1888).
The court has no discretion in considering whether a claim is barred by the statute of limitations. It is equally clear that the statute of limitations operates to vest a party with the right to rely on the statute of limitations as a defense, and a judge may not interfere with the vested rights of parties when pleadings are concerned. Congleton v. City of Asheboro, 8 N.C.App. 571, 174 S.E.2d 870 (1970).
Plaintiff contends that J. W. Brewer made certain representations to him which led him to believe that his claim would be paid, and as a result thereof, it was not necessary for him to present his claim to Mr. Gooding, as executor of the estate; that the estate is estopped to deny the claim.
Insurance companies and their agents like Mr. Brewer do not act as agents for the insured when settling claims. An insurance company, if it admits that its insured is liable, without its insured's knowledge or consent, is acting in its own interest, and not as the agent of the insured. Lampley v. Bell, 250 N.C. 713, 110 S.E.2d 316 (1959); Foremost Dairies, Inc. v. Campbell Coal Company, 57 Ga.App. 500, 196 S.E. 279 (1938).
The trial court should have granted summary judgment against the plaintiff since the record shows that this civil action is barred as a matter of law by the provisions of G.S. 28A-19-3(a).
This Court does not decide the merits of any claim by the plaintiff against J. W. Brewer and Great American Insurance Company.
For the reasons set out above, the decision of the trial court is
Reversed and remanded to the trial court with instructions that summary judgment be entered against the plaintiff in favor of the defendant estate.
Reversed and Remanded.
ERWIN, J., concurs.
VAUGHN, J., dissents.
VAUGHN, Judge, dissenting:
I would hold that plaintiff is entitled to attempt to prove his claim and recover an amount not in excess of that available under the policy of liability insurance issued by Great American Insurance Company. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381349/ | 151 Ga. App. 167 (1979)
259 S.E.2d 169
PADOVA
v.
THE STATE.
58227.
Court of Appeals of Georgia.
Argued July 3, 1979.
Decided September 4, 1979.
James E. McAleer, for appellant.
Andrew J. Ryan, III, District Attorney, Robert M. Hitch, III, Assistant District Attorney, for appellee.
DEEN, Chief Judge.
The defendant, admitted father of an illegitimate son born August 6, 1969, entered into a formal contract with the child's mother, an adult wage earner represented by counsel, to pay the mother the sum of $750 in settlement of all claims, the mother agreeing that the release act as a complete estoppel in any action growing out of the birth of the child. The money was paid. In 1977 demand was made on the defendant to pay child support, and at about the same time an accusation was taken out against him, resulting in a trial, a finding of guilty of abandonment, and this appeal.
1. The first defense was that the stipulated evidence (offered in lieu of a record in this case) showed the child was not in a destitute condition, the mother testifying that "the child has adequate support, clothing and housing ... furnished by herself and her present husband." Code Ann. § 74-9902 was amended (Ga. L. 1965, p. 197) to provide in part: "If any father or mother shall wilfully and voluntarily abandon his or her child, either legitimate or illegitimate, leaving it in a dependent condition, he or she, as the case may be, shall be guilty of a misdemeanor... A child thus abandoned by the father or mother shall be considered to be in a dependent condition when the father or mother charged with the offense does not furnish sufficient food, clothing, or shelter for the *168 needs of the child." The statutory scheme relating to the enforcement of rights of illegitimate children, including Code Ann. § 74-9902, has been held constitutional. Hudgins v. State, 243 Ga. 798. The section refers to both parents, and makes it obvious that it is no defense as to one of them that the other has met the duties of support which he has failed to assume.
2. Nor is the contract entered into between the parents of this child a defense to the charge of abandonment. It is the child, not the parent, who is entitled to the support, and "the parents cannot bargain away, the child's right to seek increases in child support payments." Forrester v. Buerger, 241 Ga. 34 (244 SE2d 345) (1978).
This, however, is a concept of recent birth. Prior to the numerous amendments to the section, particularly the rewritten 1965 statute, settlement of parental duties where illegitimate children were involved was frequently approved as a matter of contract. In Jones v. Peterson, Lott & Paulk, 117 Ga. 58, 59 (41 SE 417) (1902) it was held: "The mother of a bastard child has a right, under the law, to settle with the father on such terms as may be agreed on." Although the position of the state is correct and the right of a child, legitimate or illegitimate, cannot be waived by the action of either parent or settled without court approval at the present time, this contract was entered into in 1969, at a time when the parents could enter into a contract for the support of the illegitimate child without court approval. Thus the defendant had a right to rely on the contract at the time it was made as not constituting an abandonment, providing he paid the sum stipulated therein, which was done. The abandonment to be criminal must be "wilfully and voluntarily" done. We cannot say that reliance on the prior contract (highly inadequate though it is) as a defense was wilful in the sense necessary to subject the defendant to criminal sanctions in view of the fact that the situation here presented appears to make a case of first impression in this state. In other words, the defendant must first be apprised that the contract is no defense. Abandonment is of course a continuing offense and for this reason the defendant could not, on a subsequent trial for the same *169 offense, rely upon the contract as an absolute defense, since the issue would be whether he wilfully continued to "not furnish sufficient food, clothing or shelter for the needs of the child."
Judgment reversed. Shulman and Carley, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381623/ | 145 S.W.3d 732 (2004)
Kenna WITTAU, Appellant,
v.
Gary STORIE, Appellee.
No. 2-04-055-CV.
Court of Appeals of Texas, Fort Worth.
August 26, 2004.
*734 Dickinson & Associates, P.C., D. Bradley Dickinson, Robert Wood, Dallas, for Appellant.
Law Firm of G. David Heiman, G. David Heiman, Lewisville, for Appellee.
PANEL F: CAYCE, C.J.; GARDNER and WALKER, JJ.
OPINION
PER CURIAM.
Kenna Wittau appeals from a nunc pro tunc order modifying Gary Storie's child support obligations. In five issues, Wittau contends that the nunc pro tunc order is void because it corrected a judicial error after the trial court's plenary power over the original child support order had expired. She contends there was no evidence or factually insufficient evidence to support the trial court's implied finding that the original child support order contained a clerical error.[1] We will vacate the trial court's nunc pro tunc order and render judgment denying the motion for judgment nunc pro tunc.
Wittau and Storie are the parents of two minor children. They were divorced in 1990, and Storie began paying Wittau $350 per month in child support. In September 2001, Wittau filed a motion to modify Storie's child support obligations. In addition to increased support, Wittau sought reimbursement for the children's medical expenses and attorney's fees. Wittau also asked that any increase in child support be made retroactive to the date Storie was served with process or entered an appearance in the modification proceeding, whichever was earlier.
On February 10, 2003, the trial court held an evidentiary hearing on Wittau's motion, after which it made the following ruling:
Okay. The court grants [the] motion to modify and sets child support at $533.40, grants judgment for $239.31 medical expenses, and orders respondent to pay $2,000 in attorney's fee[s].
The trial court's docket entry for the February 10 hearing stated: "Child sup. *735 modification granted ($533.40) + jdgment for $239.31 med exp. + $2000 atty fee."
The trial court asked Wittau's attorney to prepare an order, which the court signed on March 5, 2003. The order required Storie to pay Wittau child support of $533.40 per month beginning on March 1, 2003, plus the medical expenses and attorney's fees that the trial court had awarded at the February 10 hearing. In addition, the order provided that the increased child support obligation was retroactive to September 28, 2001 so that an arrearage of $3,136.14 had accrued between September 28, 2001 and March 1, 2003 for which Storie was liable.
On January 8, 2004, after the trial court's plenary power had expired,[2] Storie filed a motion for judgment nunc pro tunc, in which he alleged that the March 5, 2003 order was incorrect because it awarded Wittau $3,136.14 in retroactive child support that the trial court had not awarded at the February 10 hearing. After a hearing on Storie's motion, the trial court signed a nunc pro tunc child support order that omitted the arrearage award. This appeal followed.
In her appellate issues, Wittau argues that the nunc pro tunc order is void because the March 5 order was not erroneous. In the alternative, she contends that, if the March 5 order did contain an error, the error was judicial and not subject to change outside the trial court's plenary period.
A judgment routinely goes through three stages: (1) rendition, (2) signing, and (3) entry. Gen. Elec. Capital Auto Fin. Leasing Servs., Inc. v. Stanfield, 71 S.W.3d 351, 354 (Tex.App.-Tyler 2001, pet. denied); Oak Creek Homes, Inc. v. Jones, 758 S.W.2d 288, 290 (Tex.App.-Waco 1988, no writ). A judgment is rendered when the trial court officially announces its decisioneither in open court or by written memorandum filed with the clerkon the matter submitted for adjudication. S & A Rest. Corp. v. Leal, 892 S.W.2d 855, 857 (Tex.1995); Reese v. Piperi, 534 S.W.2d 329, 330 (Tex.1976). In the case of an oral rendition, the judgment is effective immediately, and the signing and entry of the judgment are only ministerial acts. Dunn v. Dunn, 439 S.W.2d 830, 832 (Tex.1969); Gen. Elec. Capital Auto Fin. Leasing Servs., 71 S.W.3d at 354; Oak Creek Homes, 758 S.W.2d at 290; Verret v. Verret, 570 S.W.2d 138, 140 (Tex.Civ.App.-Houston [1st Dist.] 1978, no writ); see also TEX.R. CIV. P. 306a(2). But if the trial court signs a judgment on an issue without first making an oral pronouncement in open court, the act of signing the judgment is the official act of rendering judgment. Dikeman v. Snell, 490 S.W.2d 183, 184 (Tex.1973) (orig.proceeding); Comet Aluminum Co. v. Dibrell, 450 S.W.2d 56, 58 (Tex.1970) (orig.proceeding).
Once a trial court loses plenary power over a judgment, it can correct clerical, but not judicial, errors by judgment nunc pro tunc. Escobar v. Escobar, 711 S.W.2d 230, 231 (Tex.1986); see also TEX.R. CIV. P. 316. A clerical error is an error in the entry of a judgment; it is a mistake or omission that prevents the judgment as entered from accurately reflecting the judgment that was rendered. Escobar, 711 S.W.2d at 231; Univ. Underwriters Ins. Co. v. Ferguson, 471 S.W.2d 28, 29-30 (Tex.1971); Butler v. Cont'l Airlines, Inc., 31 S.W.3d 642, 647 (Tex.App.-Houston [1st Dist.] 2000, pet. denied). In contrast, a judicial error arises from a mistake of law or fact that results from *736 judicial reasoning or determination. Andrews v. Koch, 702 S.W.2d 584, 585 (Tex.1986); LaGoye v. Victoria Wood Condo. Ass'n, 112 S.W.3d 777, 783 (Tex.App.-Houston [14th Dist.] 2003, no pet.). A judicial error occurs in the rendition, as opposed to the entry, of a judgment. Escobar, 711 S.W.2d at 231.
Whether the trial court previously rendered judgment and the content of the judgment are fact questions for the trial court, but whether an error in the judgment is judicial or clerical is a question of law. Id. at 232; Butler, 31 S.W.3d at 647. Where, as here, no findings of fact or conclusions of law were filed, the trial court's judgment implies all findings of fact necessary to support it. Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex.1996). Because a record was made of the nunc pro tunc hearing, however, these implied findings are not conclusive, and Wittau may challenge them by raising both legal and factual sufficiency of the evidence issues. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex.1989). We review the trial court's implied factual determinations under traditional legal and factual sufficiency standards,[3] but are not bound by the trial court's legal determination regarding the nature of any error in the original judgment. Roberson, 768 S.W.2d at 281; Escobar, 711 S.W.2d at 232; Finlay v. Jones, 435 S.W.2d 136, 138 (Tex.1968) (orig.proceeding).
In this case, it is undisputed that the trial court rendered judgment at the February 10 hearing. Thus, we turn to the evidence regarding the content of the February 10 order. Both the trial court's oral rendition of judgment and its docket entry support the court's implied finding that the February 10 order only rendered judgment on the amount of the increased child support, the amount of reimbursable medical expenses, and attorney's fees.
Wittau contends that the trial court's statement, "[t]he court grants [the] motion to modify," preponderates against this finding because it shows that the court orally rendered judgment granting her entire motion on February 10, including her request for retroactive child support, and not just the relief the court specifically enumerated. But the motion to modify also sought other relief, such as a modification of the children's health insurance coverage and premiums, applied retroactively, that was not awarded in either the February 10 or March 5 order. Accordingly, applying the appropriate standards of review,[4] we hold that the evidence is legally and factually sufficient to support the trial court's implied finding that the contents of the oral judgment rendered at the February 10 hearing were limited to the three *737 things specifically enumerated by the trial court.
The trial court's finding regarding the content of the February 10 order does not, however, support the court's legal conclusion that the award of retroactive child support in the March 5 order was a clerical error. When a trial court orally renders a judgment that disposes of some of the issues in a party's pleading, but is silent on others, a later signed judgment that disposes of an additional issue, while only a "written memorandum" of the oral judgment, is a rendition of judgment on the issue addressed for the first time in the written judgment. Comet Aluminum Co., 450 S.W.2d at 58-59. The later rendition of judgment on the additional issue, if erroneous, is a judicial error, not a clerical one. Id. at 59.
Storie contends that the trial court's oral rendition of judgment on February 10 is presumed to have disposed of all issues raised in Wittau's motion to modify, including her request for retroactive child support, because the rendition occurred after trial of the motion on the merits, there was no order for a separate trial of any issues, and the written March 5 order was not intrinsically interlocutory. In light of the supreme court's holding in Comet Aluminum Co. regarding the rendition of judgment, this argument fails.[5] Moreover, because the trial court's March 5 written order rendered judgment awarding Wittau retroactive child support, it is immaterial that denial of such support would have been implied if the March 5 order had been silent on the issue. See Comet Aluminum Co., 450 S.W.2d at 59.
In summary, because the trial court first rendered judgment on the retroactive child support issue in the March 5 written order, that order did not contain a clerical error, and the trial court erred in so concluding. Further, because the March 5 order did not contain a clerical error, the trial court's nunc pro tunc order is void. See id. Accordingly, we sustain Wittau's issues, vacate the trial court's nunc pro tunc order, and render judgment denying the motion for judgment nunc pro tunc.
NOTES
[1] As we discuss herein, this ruling was actually a legal conclusion, not a fact finding.
[2] Storie did not file a motion for new trial; therefore, the trial court's plenary power over the March 5 child support order expired on April 4, 2003. See TEX.R. CIV. P. 329b(d).
[3] Several intermediate courts of appeals have held that the trial court should not grant a judgment nunc pro tunc unless the evidence is "clear, satisfactory and convincing" that a clerical error was made. See, e.g., Davis v. Davis, 647 S.W.2d 781, 783 (Tex.App.-Austin 1983, no writ); Mobley v. Rheem Mfg. Co., 410 S.W.2d 320, 322 (Tex.Civ.App.-Houston 1966, writ ref'd n.r.e.); Stauss v. Stauss, 244 S.W.2d 518, 519 (Tex.Civ.App.-San Antonio 1951, no writ). Based on these cases, Wittau urges us to apply a clear and convincing evidence standard of review to the trial court's factual determination regarding the content of the judgment the trial court originally rendered. We decline to do so because the supreme court has only applied traditional evidentiary standards of review to this determination. Escobar, 711 S.W.2d at 232. Moreover, as we have noted, whether an error is clerical or judicial is a question of law. Id.
[4] See Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996) (setting out legal sufficiency standard); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965) (setting out factual sufficiency standard).
[5] The cases on which Storie relies are not on point because they deal with the finality of judgments for purposes of appeal. See Moritz v. Preiss, 121 S.W.3d 715, 718-19 (Tex.2003); John v. Marshall Health Servs., Inc., 58 S.W.3d 738, 740 (Tex.2001); N.E. ISD v. Aldridge, 400 S.W.2d 893, 897-98 (Tex.1966). The trial court's child support order was not final for purposes of appeal until it was signed on March 5, 2003. See TEX.R.APP. P. 26.1 (providing that appellate deadlines run from date judgment is signed). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381634/ | 259 S.E.2d 342 (1979)
43 N.C. App. 482
Rosa CANNADY, Employee,
v.
GOLD KIST, Employer, Aetna Life and Casualty Insurance Company, Carrier.
No. 7910IC148.
Court of Appeals of North Carolina.
November 6, 1979.
*344 Carolyn McAllaster, Durham, for plaintiff-appellee.
Spears, Barnes, Baker & Hoff by Alexander H. Barnes, Durham, for defendants-appellants.
HEDRICK, Judge.
It is the duty of the Industrial Commission to make findings of fact and conclusions of law to determine the issues raised by the evidence in a case before it. G.S. § 97-84; Beach v. McLean, 219 N.C. 521, 14 S.E.2d 515 (1941). Specific findings covering the crucial questions of fact upon which a plaintiff's right to compensation depends are required, Morgan v. Thomasville Furniture Industries, Inc., 2 N.C.App. 126, 162 S.E.2d 619 (1968), and the importance of this responsibility cannot be overstated. As our Supreme Court has observed,
It is impossible to exaggerate how essential the proper exercise of the fact-finding authority of the Industrial Commission is to the due administration of *345 the Workmen's Compensation Act. The findings of fact of the Industrial Commission should tell the full story of the event giving rise to the claim for compensation. They must be sufficiently positive and specific to enable the court on appeal to determine whether they are supported by the evidence and whether the law has been properly applied to them. It is obvious that the court cannot ascertain whether the findings of fact are supported by the evidence unless the Industrial Commission reveals with at least a fair degree of positiveness what facts it finds. It is likewise plain that the court cannot decide whether the conclusions of law and the decision of the Industrial Commission rightly recognize and effectively enforce the rights of the parties upon the matters in controversy if the Industrial Commission fails to make specific findings as to each material fact upon which those rights depend.
Morgan v. Thomasville Furniture Industries, Inc., supra at 132, 162 S.E.2d at 623 [quoting from Thomason v. Cab Co., 235 N.C. 602, 70 S.E.2d 706 (1952)].
The critical issue raised by the evidence in the present case is whether the calcification of tendons and ligaments in plaintiff's shoulders, resulting in a ten percent permanent partial disability to both arms, is an occupational disease within the meaning of G.S. § 97-53(13). This issue engenders two distinct findings of fact which must be made: (1) an explicit description of plaintiff's duties in performing her occupation, and (2) a determination of whether such duties caused the calcification and resulting disability to either or both of plaintiff's arms. With respect to the resolution of this issue, the Commission, by adopting as its own the findings and conclusions embodied in Deputy Commissioner Denson's opinion and award, made the following relevant findings:
FINDINGS OF FACT
1. Plaintiff was reemployed by defendant employer in the early part of 1975 as a draw hand. Her job was to reach into chickens which were hanging on a line and pull out the insides. This involved repetitive reaching overhead, primarily with her right arm.
2. When plaintiff began her employment, the line on which the chickens moves was not automated. Sometime before Christmas 1975, the line became automated. The machine was supposed to remove the insides of the chickens so the number of employees used as draw hands was reduced. In point of fact, however, the machine often failed to remove all the insides and, in addition, made the line much faster. The rapidity of plaintiff's repetitive overhead reaching increased. The situation was aggravated by the fact that plaintiff was training other draw hands and felt responsible for the thoroughness of their work as well. Although using primarily her right arm for the work, plaintiff also was frequently using her left.
. . . . .
9. Plaintiff's calcification of both arms was caused by her employment and the rapid, repetitive overhead reaching.
The reaching plaintiff was required to do in her employment is characteristic of and peculiar to her occupation. [Emphasis added.]
The difficulty with these findings is that the record is devoid of any evidence that plaintiff's duties required "rapid, repetitive overhead reaching." This error is compounded by the fact that the doctor who testified as to causation originally based his opinion on the assumption that the plaintiff, in performing her duties, was required to repeatedly reach overhead. Thus, his opinion as to causation was rendered feckless and accordingly invalidated the deputy commissioner's finding that the calcification of the ligaments and tendons in plaintiff's arms was caused by her performance of her duties as a draw hand.
Apparently aware of the deficiencies in the findings and conclusions made by the hearing officer in the opinion and award dated 15 September 1977, the Commission, when the matter came before it for the first *346 time, remanded the case "for additional testimony" because the evidence before it "lacks sufficient clarity. . . ." Specifically and significantly, the Commission requested a clarification of the evidence regarding the nature of the reaching plaintiff was required to do. At the subsequent hearing, both Dr. Urbaniak and the personnel manager of the defendant Gold Kist were examined extensively on that issue. Clearly, the evidence adduced at this final hearing was sufficient to support a finding that the calcification in one or both of plaintiff's arms was caused by the "intermittent pressure" or the "chronic stress" of repeatedly reaching out with her arms.
However, when the matter came back before the full Commission after the hearing it ordered, it inexplicably chose to ignore the plain evidence of how plaintiff performed her job. That evidence is manifest throughout this record; yet, the final opinion and award of the Commission contains the same infirmities as it apparently recognized when it remanded the case for a clarification of the evidence regarding the manner in which the plaintiff did her job. In short, the Commission has failed to make findings and conclusions sufficient to determine the critical issue raised by the evidence.
While there is evidence in this record to support a conclusion that this plaintiff has sustained an occupational disease because of the calcification in her shoulders, Booker v. Duke Medical Center, 297 N.C. 458, 256 S.E.2d 189 (1979); 3 Larson, Workmen's Compensation Law § 79.52 (1976), it is not for the appellate court to tell the Commission what findings to make upon remand. But, it is for this Court to require the Commission to carry out its duties with respect to making definitive findings required by the statute. For the reasons stated, the opinion and award of the Commission dated 30 October 1978 is vacated, and the cause is remanded for more definitive findings and conclusions based on the evidence in the present record.
Vacated and remanded.
CLARK and HARRY C. MARTIN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381674/ | 259 S.E.2d 275 (1979)
298 N.C. 535
Barry T. HARRINGTON
v.
Joseph Bright COLLINS.
No. 57.
Supreme Court of North Carolina.
November 6, 1979.
*277 Bowen & Lytch by Wiley F. Bowen, Dunn, Woodall & McCormick, Edward H. McCormick, Lillington, for plaintiff-appellee.
Bryan, Jones & Johnson by Robert C. Bryan, Dunn, for defendant-appellant.
BRANCH, Chief Justice.
The question presented by this appeal is whether the Court of Appeals erred in reversing the trial court's ruling granting defendant's motion for a directed verdict.
Defendant contends that the Court of Appeals erred in holding that ordinary contributory negligence on the part of plaintiff does not bar recovery as against defendant's willful or wanton conduct. He argues that this rule should not be applied in cases of prearranged racing in which a passenger has acquiesced by failing to take steps for his own protection, or alternatively, that plaintiff's acquiescence should amount to *278 willful or wanton conduct as a matter of law and thus bar recovery. We disagree.
This Court considered the law of contributory negligence as a defense to the defendant's willful or wanton conduct in Pearce v. Barham, 271 N.C. 285, 156 S.E.2d 290 (1967). There, Justice Bobbitt (later Chief Justice) speaking for the Court stated:
"`Ordinarily, where willful or wanton conduct for which defendant is responsible is a proximate cause of the injuries complained of, contributory negligence does not bar recovery.'" [Citations omitted.] In [Brendle v. R.R., 125 N.C. 474, 34 S.E. 634 (1899)], Douglas, J., for the Court states: "`It is well settled that contributory negligence, even if admitted by the plaintiff, is no defense to willful or wanton injury.'"
"`While there is some authority to the contrary, it has been held that no recovery can be had for an injury willfully and wantonly inflicted, where willful or wanton conduct for which plaintiff is responsible contributed as a proximate cause thereof.'" [Citations omitted.] . . .
The error in the quoted instruction relating to the contributory negligence issue is that the court instructed the jury the mere failure of plaintiff to protest and remonstrate and ask the driver to stop and let her get out of the car would be such contributory negligence as would bar recovery. Such conduct on the part of plaintiff would be no more than ordinary negligence and would not be a bar to recovery if plaintiff were injured as a result of Calvin's wilful or wanton conduct.
Id. at 289-90, 156 S.E.2d at 294.
Pearce stands for the proposition that ordinary negligence on the part of a plaintiff will not defeat his recovery from a defendant whose willful or wanton negligence proximately caused plaintiff's injury. Furthermore, it is the majority rule, and we think the better reasoned rule, that plaintiff's willful or wanton negligence is a defense in an action seeking recovery for injuries caused by defendant's willful or wanton conduct. Hinkle v. Minneapolis, Anoka, & Cuyuna Range Railway, 162 Minn. 112, 202 N.W. 340 (1925); see also Annot., 41 A.L.R. 1379 (1926) and cases cited therein.
In cases where defendant is guilty of simple negligence, this Court has held that under certain circumstances it becomes the duty of the gratuitous passenger in the exercise of due care for his own safety to protest, remonstrate the driver and, if his warning is disregarded, to request that the automobile be stopped and he be permitted to leave the car. Samuels v. Bowers, 232 N.C. 149, 59 S.E.2d 787 (1950), petition for rehearing dismissed, 232 N.C. 522, 61 S.E.2d 448 (1950); Bogen v. Bogen, 220 N.C. 648, 18 S.E.2d 162 (1942); 5 Blashfield Automobile Law and Practice § 215.20 (3d ed. 1966). However, in such cases whether the guest passenger should remonstrate, protest or even leave the automobile is ordinarily a question for the jury to be decided according to the particular circumstances of each case and upon the standard of what an ordinarily prudent person in the exercise of due care would have done under similar circumstances. Beam v. Parham, 263 N.C. 417, 139 S.E.2d 712 (1965); Dinkins v. Carlton, 255 N.C. 137, 120 S.E.2d 543 (1961); Bell v. Maxwell, 246 N.C. 257, 98 S.E.2d 33 (1957); Samuels v. Bowers, supra.
Defendant further contends that plaintiff acquiesced in the race and thus is barred from recovery as a matter of law. He relies on Boykin v. Bennett, 253 N.C. 725, 118 S.E.2d 12 (1961). That case involved a speed competition which caused the death of the plaintiff's intestate, a gratuitous passenger. In overruling the trial court's sustaining of demurrers to the complaint, this Court held that the defendants, in claiming contributory negligence, had failed to allege that the plaintiff's intestate either knew or should have known before the race was underway that the defendants would engage in a speed competition. In holding that the defendants were concurrently liable, the Court stated:
All who wilfully participate in speed competition between motor vehicles on a public highway are jointly and concurrently negligent and, if damage to one *279 not involved in the race proximately results from it, all participants are liable, regardless of which of the racing cars actually inflicts the injury, and regardless of the fact that the injured person was a passenger in one of the racing vehicles. Of course, if the injured passenger had knowledge of the race and acquiesced in it, he cannot recover.
Id. at 731-32, 118 S.E.2d at 17 (emphasis added). Defendant in the instant case relies on the italicized portion of the above-quoted statement and contends that plaintiff is consequently barred by his own acquiescence to the race. However, in Boykin the question of acquiescence was not before the Court, the sole issue being whether the complaint was sufficient to state a cause of action. The statement relied upon by defendant was merely a general observation which did not attempt to define "acquiescence" or apply it to the facts of the case. In our opinion, this statement is dictum and therefore not authoritative.
"Acquiescence" has been construed by the courts in many different contexts. It has been described as passive compliance as distinguished from avowed consent on one hand and open opposition on the other. Paul v. Western Distributing Co., 142 Kan. 816, 52 P.2d 379 (1935). In addition, it has been defined as a failure to make objections, Scott v. Jackson, 89 Cal. 258, 26 P. 898 (1891), and as submission to an act of which one has knowledge. Pence v. Langdon, 99 U.S. 578, 25 L.Ed. 420 (1878). Conversely, "acquiescence" is conduct recognizing the existence of a transaction and intended, in some extent at least, to carry it into effect. De Boe v. Prentice Packing & Storage Co., 172 Wash. 514, 20 P.2d 1107 (1933). See also Black's Law Dictionary 40 (4th ed. rev. 1968). The difficulty in defining "acquiescence" stems from the fact that its meaning varies according to the context in which it is used. It is clear, however, that in the legal context of whether or not a plaintiff who is a gratuitous passenger has acquiesced in defendant's acts which constitute willful or wanton conduct, plaintiff's acquiescence must be more than ordinary negligence to bar his recovery. The mere failure to protest, remonstrate or request that he be allowed to leave the car is no more than simple negligence. Pearce v. Barham, supra. Under the circumstances of this case, whether or not plaintiff's conduct amounted to more than simple negligence is a question for the jury.
In ruling upon a motion for a directed verdict in favor of defendant on grounds of contributory negligence, it is the general rule that such a motion may only be granted when the evidence, taken in the light most favorable to the plaintiff, establishes his negligence so clearly that no other reasonable inference or conclusion may be drawn therefrom. Contradictions or discrepancies even arising from plaintiff's own evidence must be resolved by the jury rather than the trial judge. Clark v. Bodycombe, 289 N.C. 246, 221 S.E.2d 506 (1976); Bowen v. Rental Co., 283 N.C. 395, 196 S.E.2d 789 (1973). This same rule applies in cases involving willful or wanton conduct.
We turn to an application of the above-stated rules of law to the evidence in this case. Here, defendant pleaded guilty to willfully engaging in a prearranged speed competition in violation of G.S. 20-141.3(a). The Court of Appeals correctly held that this constituted willful or wanton conduct and was a proximate cause of plaintiff's injuries. The evidence, taken in the light most favorable to plaintiff, discloses that plaintiff had no notice of an agreement to race when he entered the Salmon car or before the automobiles left the grill. Only when the cars were stopped at the crossroads for approximately one minute did the eighteen-year-old plaintiff become aware of a plan for a prearranged speed competition. We hold that plaintiff's failure to remonstrate or to leave the car at a rural crossroads minutes past midnight on a cold Christmas Eve does not constitute willful or wanton conduct as a matter of law. Accordingly, the trial court erred in granting defendant's motion for a directed verdict.
*280 The decision of the Court of Appeals is AFFIRMED.
CARLTON, J., did not participate in the consideration or decision of this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381545/ | 259 S.E.2d 843 (1979)
298 N.C. 380
STATE of North Carolina
v.
John Roswell REYNOLDS, Jr.
No. 5.
Supreme Court of North Carolina.
November 6, 1979.
*849 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Grayson G. Kelley, Raleigh, for State appellee.
Melzer A. Morgan, Jr., Reidsville, for defendant-appellant.
CARLTON, Justice.
On appeal, defendant presents five contentions for our review: (1) That his rights were denied under principles established by the United States Supreme Court in Dunaway v. New York, ___ U.S. ___, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); (2) That his right to be taken promptly to a magistrate was denied violating principles established by the United States Supreme Court in McNabb v. United States, 318 U.S. 322, 63 S.Ct. 608, 87 L.Ed. 819 (1943), and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), and by our own legislature in G.S. 15A-501 and G.S. 15A-511; (3) That the trial court did not properly find that defendant had freely and voluntarily waived his right to counsel; (4) That the trial court erred in finding that defendant freely and voluntarily consented to the taking of hair samples, and (5) That the three offenses charged merged and only one life term would be the appropriate sentence.
We reject defendant's contentions and affirm the trial court. We discuss the contentions in order.
I. THE CONTENTION UNDER DUNAWAY V. NEW YORK
In Dunaway, supra, the proprietor of a pizza parlor in Rochester, New York was killed during an attempted robbery. A Rochester detective was told by another officer that a jailed informant had supplied a possible lead implicating the defendant. The detective questioned the jail inmate but learned nothing sufficient to get a warrant for defendant's arrest. Nevertheless, he ordered other detectives to "pick up" defendant and "bring him in." Three detectives located defendant and he was taken under custody but was not told he was under arrest. Police testified, however, he would have been physically restrained if he had attempted to leave. He was driven to police headquarters in a police car and placed in an interrogation room where he was questioned by officers after having been given his Miranda warnings. He waived counsel and eventually made statements and drew sketches that incriminated him in the crime. At trial, defendant moved to suppress the statements and sketches and the motion was denied. Defendant was convicted as charged. The United States Supreme Court granted certiorari "to clarify the Fourth Amendment's requirements as to the permissible grounds for custodial interrogation . . . ." 99 S.Ct. at 2253, in a situation when there is less than probable cause for a full-fledged arrest.
The Court then held that police officers violated defendant's fourth and fourteenth amendment rights.
The Court first noted that defendant was "seized" in the fourth amendment sense when he was taken involuntarily to the police station. The State had readily conceded that the police lacked probable cause to arrest defendant before his incriminating statement during interrogation. The Court rejected the State's argument that the seizure of defendant did not amount to an arrest and was permissible under the fourth amendment because the police had a "reasonable suspicion" that defendant possessed "`intimate knowledge about a serious and unsolved crime.'" 99 S.Ct. at 2254. The Court noted that detention of defendant was in important respects indistinguishable from a traditional arrest. Defendant was not questioned briefly where he was found, but was taken from a neighbor's home in a police car, transported to a police station, and placed in an interrogation room. The Court noted that defendant was never informed that he was free to leave and, in fact, police testified that he would have been physically restrained if he had attempted to leave. The Court emphasized the central importance and historical guarantee of the fourth amendment's probable *850 cause requirement and refused to adopt the New York Court's balancing test of "`reasonable police conduct under the circumstances'" to cover all seizures that do not amount to technical arrests. The Court concluded that "detention for custodial interrogation regardless of its labelintrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest." 99 S.Ct. at 2258.
The Court then addressed the question whether the connection between the unconstitutional police conduct and the incriminating statements and sketches obtained during the illegal detention was nevertheless attenuated to permit the use at trial of the statements and sketches. The Court held, citing Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), that although a confession after proper Miranda warnings may be found to be "voluntary" for purposes of the fifth amendment, this type of "voluntariness" is merely a "threshold requirement" for fourth amendment analysis. The Court stated:
If Miranda warnings, by themselves, were held to attenuate the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment violation, the effect of the exclusionary rule would be substantially diluted. . . . Arrests made without warrant or without probable cause, for questioning or "investigation," would be encouraged by the knowledge that evidence derived therefrom could well be made admissible at trial by the simple expedient of giving Miranda warnings.
99 S.Ct. at 2258-59, citing Brown v. Illinois, supra 422 U.S. at 602, 95 S.Ct. at 2261, 45 L.Ed.2d at 426.
While this decision by our United States Supreme Court clearly has major ramifications with respect to the question of the legality of custodial questioning on less than probable cause, we do not believe that it controls the case at bar. First, this case is significantly distinguishable on the facts and, second, defendant effectively waived any rights he might have had under Dunaway by failing to notify either the state or the court during plea negotiations that he intended to appeal denial of his suppression motion.
Dunaway and the case at bar differ significantly in the following respects:
(1) In Dunaway, three detectives went to get the defendant on the basis of a tip. The Court specifically stated that defendant involuntarily went with the police. Here, defendant initiated the contact with the sheriff's office by calling the dispatcher on the telephone. This defendant voluntarily accompanied the deputies.
(2) In Dunaway, the evidence clearly established that defendant would not have been allowed to leave had he attempted to do so. Here, there is no evidence that defendant would not have been allowed to leave. Moreover, Judge Kivett found as a fact at the suppression hearing that defendant, during the period prior to his arrest, was free to leave the dispatcher's room and the sheriff's office at the Caswell County Jail. There is sufficient evidence in the record to support the trial court's finding and we are bound by it on this appeal. State v. Freeman, 295 N.C. 210, 221, 244 S.E.2d 680, 686 (1978); State v. Jones, 293 N.C. 413, 424, 238 S.E.2d 482, 489 (1977); State v. Thompson, 287 N.C. 303, 317, 214 S.E.2d 742, 751 (1975), death sentence vacated, 428 U.S. 908, 96 S.Ct. 3215, 49 L.Ed.2d 1213 (1976).
(3) In Dunaway, the Court found that the detention of defendant was indistinguishable from a traditional arrest because petitioner was not questioned briefly where he was found but was instead taken from a neighbor's home to a police car and transported directly to an interrogation room. Here, however, petitioner volunteered his availability, and was obtained from his home because he had called in information to the sheriff. He was taken by car to the yard of the crime scene to be available to provide further information to the sheriff but arrived in the midst of a busy investigation and promptly made himself unavailable for coherent questioning by falling asleep.
*851 (4) In Dunaway, there is some evidence of physical coercion by the police at the time of the pickup. See People v. Dunaway, 61 A.D.2d 299, 305-06, 402 N.Y.S.2d 490, 495 (1978) (Cardamone, J., dissenting). Here, there is no evidence of any physical coercion by the police at any time.
(5) In Dunaway, the Court, citing Brown, supra, identified several factors to be considered "`in determining whether the confession is obtained by exploitation of an illegal arrest[:]'" (a) the temporal proximity of the arrest and the confession (less than two hours elapsed between the arrest and the confession), (b) the presence of intervening circumstances (the Court found none), and (c) the purpose and flagrancy of the official misconduct (the arrest without probable cause had a "quality of purposefulness" in that it was an "expedition for evidence" admittedly undertaken "`in the hope that something might turn up'"). 99 S.Ct. at 2259, citing Brown v. Illinois, supra 422 U.S. at 603-05, 95 S.Ct. at 2261-62, 45 L.Ed.2d at 427-28. Here (a) over ten hours elapsed between the time defendant left his home with the deputies and the confession, (b) there was a significant "intervening event" of defendant sleeping from 3:30 a. m. until 9:00 a. m. at his own request as well as ample evidence defendant could have left at any time including the stop at the convenience store, and (c) there certainly was no evil purpose or "expedition for evidence" on the part of the deputies in originally going for the defendant for defendant himself had called to offer information about the crime and to volunteer his help. Indeed he was so eager to help that he didn't even wait for police to come to his door but came out when they sounded the car horn.
In summary, we do not think that the principles regarding detention for custodial interrogation promulgated by Dunaway contemplate the factual situation disclosed by the record before us. Certainly these facts do not "trigger the traditional safeguards against illegal arrest." Defendant here originally confronted police on his own volition for the purpose of providing additional information. He then elected to sleep several hours in the police car in which there is no evidence to indicate that he was restrained. Before being questioned, the police had developed adequate probable cause to suspect defendant of the crimes from the result of their investigation and defendant was accorded all of his constitutional rights.
With respect to the claim under Dunaway, we add this final note. As indicated supra, since there is evidence to support it, we are bound by the trial court's finding that the defendant was not under arrest until he was advised of his rights and questioning commenced. We would simply note that there also was sufficient evidence to have supported a trial court finding that defendant was restrained beginning at approximately 10:00 a. m. when he and the deputies left the crime scene by car and started toward Yanceyville. Even under that finding, however, defendant's reliance on Dunaway would be misplaced because at that time sufficient probable cause existed to detain defendant.
The record reveals that by the time the investigation was nearly completed (sometime just prior to 10:00 a. m.) the police had established the following links between defendant and the crime:
(1) Bare footprints were found in and about the house and defendant was wearing no shoes at the time he came to the scene.
(2) A man's T-shirt, blood stained, was found in the house and defendant was shirtless.
(3) There was evidence of a vigorous struggle and defendant was scratched about his face and torso.
(4) The only unsecured entrance to the house police found was the window defendant had said he used to break into the house. All other exits were still locked.
Based on such a series of facts "`the facts and circumstances within their [the officers'] knowledge, and of which they had reasonably trustworthy information, [were] sufficient in themselves to warrant a man of reasonable caution in the belief that' an *852 offense [had] been . . . committed" by the defendant. Brinegar v. U. S., 338 U.S. 160, 175-76, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879, 1890 (1949) quoting Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed.2d 543, 555 (1925).
Moreover, assuming arguendo that the facts of this case are embraced by the holding in Dunaway, we believe that defendant effectively waived any fourth amendment rights by failing to give notice of appeal during his negotiated plea of guilty.
The rule is well established that a guilty plea, intelligently and voluntarily made with the aid of counsel, bars the latter assertion of constitutional challenges to the plea negotiation proceeding. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970).
This rule was reiterated by the United States Supreme Court in Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). There, the Court said:
When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.
Id. at 267, 93 S.Ct. at 1608, 36 L.Ed.2d at 243.
The Court characterized the guilty plea as "a break in the chain of events which has preceeded it in the criminal process." Therefore, a person complaining of such "antecedent constitutional violations" is limited in a federal habeas corpus proceeding to attacks on the voluntary and intelligent nature of the guilty plea, through proof that the advice received from counsel was not "within the range of competence demanded of attorneys in criminal cases."
More recently, in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), the Court held that the principles established by the Brady trilogy and Tollett is not applicable to preclude a defendant's appeal when the constitutional claim relied upon by defendant goes to the very power of the state to bring the defendant into court to answer the charge brought against him. In Blackledge the State had improper jurisdiction over the defendant because it denied him due process of law when it brought a felony charge against him in a North Carolina superior court after his appeal from a misdemeanor conviction for the same conduct. Blackledge was distinguished from the Brady trilogy and Tollett on the ground that the constitutional claims presented by the former went to the ability of the State to bring the defendant into court to answer the charge brought against him. Accord, Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) (per curiam).
Here, another dimension is added to the general rule because our legislature has decided to permit a defendant to appeal from an adverse ruling in a pretrial suppression hearing despite the fact that defendant's conviction is based on a guilty plea. G.S. 15A-979(b) provides: "An order finally denying a motion to suppress evidence may be reviewed upon an appeal from a judgment of conviction, including a judgment entered upon a plea of guilty."
Several states, most notably New York, California and Wisconsin, have similar statutes. See Cal.Penal Code § 1538.5(m) (West Supp.1978); N.Y.Crim.Proc.Law § 710.70(2) (McKinney 1977); Wis.Stat.Ann. § 971.31(10) (West 1971).
The reasons given for the adoption of such laws vary. In some courts it is said that allowing an appeal from a guilty plea by statute where defendant has only a single constitutional challenge reduces the unnecessary waste of time involved when a defendant proceeds to trial to preserve the issue. See People v. Paris, 48 Cal.App.3d 766, 122 Cal.Rptr. 272 (1975). Other courts assert that such statutes provide a speedy remedy for a defendant in a readily accessible court. See People v. Enos, 34 Cal. App.3d 25, 109 Cal.Rptr. 876 (1973). Indeed, *853 the idea has become a model standard of both the American Bar Association, and the National Conference on Uniform Rules of Criminal Procedure. See A.B.A. Project on Minimum Standards for Criminal Standards, Standards Relating to Criminal Appeals 31-32 (Approved Draft 1970), and the National Conference on Uniform Rules of Criminal Procedure, Rule 444(d). However, at least one New York court has found the practice burdensome. See People v. Navarro, 61 A.D.2d 534, 403 N.Y.S.2d 80 (1978).
The United States Supreme Court has also dealt with this issue. In Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975), the Court held that when a state law permits a defendant to plead guilty without forfeiting his right to judicial review of specified constitutional issues, the defendant is not foreclosed from pursuing those constitutional claims in a federal habeas corpus proceeding. The narrow holding in Lefkowitz, however, was made on the basis that "[t]he plea [was] entered with the clear understanding and expectation by the State, the defendant, and the courts that it will not foreclose judicial review of the merits of the alleged constitutional violations." Id. at 290, 95 S.Ct. at 890, 43 L.Ed.2d at 202. In Lefkowitz, the Court emphasized that Newsome had indicated his intention to appeal both his conviction and the denial of his motion to suppress at the time of his sentencing proceeding. Such a clear understanding and expectation are lacking in the case sub judice. There is absolutely no evidence in the record that the State or the Court were aware at the sentencing hearing that defendant intended to appeal the denial of his suppression motion. Indeed, the sentencing hearing was before a different judge some three months after the suppression motion hearing and Judge Seay's order indicates that he did not anticipate such an appeal. We do not believe that our statute, nor the holding in Lefkowitz, contemplates a factual pattern such as that disclosed hereone which would cause the State to be trapped into agreeing to a plea bargain in a case as gruesome as this and then have the defendant contest that bargain.
As stated by the United States Supreme Court, "Once the defendant chooses to bypass the orderly procedure for litigating his constitutional claims in order to take the benefits, if any, of a plea of guilty, the State acquires a legitimate expectation of finality in the conviction thereby obtained." Lefkowitz v. Newsome, supra at 289, 95 S.Ct. at 889, 43 L.Ed.2d at 202.
The plea bargaining table does not encircle a high stakes poker game. It is the nearest thing to arm's length bargaining the criminal justice system confronts. As such, it is entirely inappropriate for either side to keep secret any attempt to appeal the conviction. We therefore hold that, when a defendant intends to appeal from a suppression motion denial pursuant to G.S. 15A-979(b), he must give notice of his intention to the prosecutor and the court before plea negotiations are finalized or he will waive the appeal of right provisions of the statute. We cannot believe that our legislature, in adopting G.S. 15A-979(b), intended any less fair posture for appeal from a guilty plea.
II. CLAIM OF RIGHT TO BE TAKEN BEFORE A MAGISTRATE
Defendant next contends that the trial court committed error in failing to grant his motion to suppress by virtue of that portion of G.S. 15A-974(2) which requires that evidence must be suppressed if "[i]t is obtained as a result of a substantial violation of the provisions of this Chapter." (Emphasis added.) He contends that there was a "substantial violation" of certain requirements of G.S. 15A-501 and G.S. 15A-511.
G.S. 15A-501(2), upon which defendant relies, provides that upon the arrest of a person, a law enforcement officer "[m]ust. . . take the person arrested before a judicial official without unnecessary delay."
G.S. 15A-511 provides in pertinent part as follows:
(a) Appearance before Magistrate.
(1) A law-enforcement officer making an arrest with or without a warrant *854 must take the arrested person without unnecessary delay before a magistrate as provided in G.S. 15A-501.
. . . . .
(b) Statement by the Magistrate.The magistrate must inform the defendant of:
(1) The charges against him;
(2) His right to communicate with counsel and friends; . . .
. . . . .
(c) Procedure When Arrest Is without Warrant; Magistrate's Order.If the person has been arrested, for a crime, without a warrant:
(1) The magistrate must determine whether there is probable cause to believe that a crime has been committed and that the person arrested committed it, . . .
Defendant's essential contention here is that both the letter and spirit of these statutes illustrates the legislative intent that the right of counsel can, and should, be more effectively explained by a judicial officer. He further contends that failure to comply with these statutes was prejudicial to him because, during the two-hour period of questioning by the law enforcement officers, he gave hair samples and an incriminating confession.
Unquestionably, the failure of law enforcement personnel in complying with the provisions of these statutes can result in the violation of a person's constitutional rights. We reaffirm, however, our holding under the predecessor statutes to G.S. 15A-501 and G.S. 15A-511 that these statutes do not prescribe mandatory procedures affecting the validity of a trial. State v. McCloud, 276 N.C. 518, 531, 173 S.E.2d 753, 763 (1970); see also State v. Curmon, 295 N.C. 453, 457, 245 S.E.2d 503, 505 (1978); State v. Burgess, 33 N.C.App. 76, 234 S.E.2d 40 (1977).
Here, we perceive no prejudice against defendant on the basis of the record before us. As we have indicated, supra, defendant was not under arrest prior to the time of his initial questioning. Once questioning began around noon, defendant confessed his guilt within approximately 40 minutes. He was fully informed of his rights on two occasions within that 40 minutes and made an intelligent waiver of counsel. As soon as the confession was recorded, defendant was taken to a magistrate sometime between 2:00 p. m. and 3:00 p. m. at which time he was formally charged. We find that defendant was taken before a judicial official "without unnecessary delay."
Defendant also contends that failure of law enforcement personnel to take him before a magistrate sooner violates the decisions of our United States Supreme Court in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943) and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957). Defendant's reliance on these decisions is misplaced. In both those cases, confessions were suppressed by virtue of Rule 5(a) of the Federal Rules of Criminal Procedure. Those rules, of course, apply only to the federal courts and the holdings in McNabb and Mallory have expressly not been applied by state courts. See 29 Am.Jur.2d, Evidence § 547 at 600 (1967 & Cum.Supp.1979) and cases cited therein. The validity of this approach is bolstered by decisions of the United States Supreme Court to the effect that the McNabb-Mallory Rule is not binding on state courts, and holding that a confession is not inadmissible merely because of an undue delay on the part of police in taking defendant to the magistrate prior to his confession. See, Crooker v. California, 357 U.S. 433, 78 S.Ct. 1287, 2 L.Ed.2d 1448 (1958); Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953), ovrld. on other grounds, Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Gallegos v. Nebraska, 342 U.S. 55, 72 S.Ct. 141, 96 L.Ed. 86 (1951). We would further note that the holdings established by the decisions of the United States Supreme Court in McNabb and Mallory were greatly modified for federal courts by Title II of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 3501. This assignment of error is overruled.
*855 III. CLAIM OF INADEQUATE FINDINGS BY TRIAL COURT
Defendant next contends that the trial court erred in failing to make adequate findings as to whether defendant requested counsel during the time of his interrogation. He argues that there is some conflict in the testimony presented at the suppression hearing which was not addressed or resolved by the trial court's order. Defendant relies on the decision of this Court in State v. Fox, 274 N.C. 277, 163 S.E.2d 492 (1968) and State v. Waddell, 34 N.C.App. 188, 237 S.E.2d 558 (1977).
Defendant's reliance on these decisions is also misplaced. In both those cases, the evidence was sharply conflicting as to whether the defendant had requested an attorney prior to the time of making his confession. And in both cases, the trial court made no mention of counsel whatsoever in its findings of fact. Such omission was sufficient to remand each case for a new trial.
Here, however, the trial court did mention a request for counsel. While its order does not expressly find that defendant "did not request" counsel during the time of his interrogation, the court clearly found, in several instances, that defendant waived his right to counsel.
Indeed, under our decisions in State v. Siler, 292 N.C. 543, 549-50, 234 S.E.2d 733, 737 (1977) and State v. Biggs, 289 N.C. 522, 531, 223 S.E.2d 371, 377 (1976), the essential finding at voir dire is not that defendant "did not request" counsel but that defendant waived counsel. Here that essential finding was made.
We do not believe that Fox, supra, or Waddell, supra, require the use of any particular phrasing to express the trial court's clear and unmistakable finding that defendant did not request counsel but in fact waived it. This assignment of error is therefore overruled.
IV. CLAIM OF VIOLATION OF FOURTH AMENDMENT RIGHTS IN TAKING OF HAIR SAMPLES
Defendant next assigns as error the admission into evidence at the sentencing hearing of testimony of the results of an analysis of hair samples taken from his body. F.B.I. laboratory specialist Neil testified that "[b]ased upon my experience in the last 15 years, this is one of the few cases in which I was able to work with this many questioned hairs, all of which fell within the range of comparison characteristics exhibited in the samples." He added, "The hairs either originated from the person represented by the known sample, purportedly from the defendant, or from some other individual of the white race exhibiting the same range of microscopic characteristics and the latter possibility I consider as remote." The record discloses that, during the interrogation in the sheriff's office, the officers requested, and defendant consented to, the taking of head and pubic hairs from the defendant.
We have previously dealt with this issue in State v. Sharpe, 284 N.C. 157, 200 S.E.2d 44 (1973). We held there, and reaffirm here, that an official in-custody investigative technique designed to uncover incriminating evidence from a person's body is such a minor intrusion into or upon the individual's person that it is not an unreasonable seizure. In Grimes v. United States, 405 F.2d 477 (5th Cir. 1968), it was said that "the obtaining of hair samples after lawful arrest, where the means employed are reasonable, is not a violation of [one's] constitutional right." Id. at 479. See also, United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973) (voice exemplars); Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); United States v. D'Amico, 408 F.2d 331 (2d Cir. 1969).
We also note our prior holding that the provisions of the Criminal Procedure Act, G.S. 15A, Art. 14, relating to nontestimonial identification orders were not aimed at defendants in the custody of police officers. State v. Irick, 291 N.C. 480, 231 S.E.2d 833 (1977). There, as here, defendant was clearly in custody at the time of the police acts about which defendant complains. *856 Indeed, defendant concedes, "had there been no illegality in detaining [him] without bringing him before a magistrate, no question of consent could be legitimately raised." Brief for Defendant at 30. We have held in an earlier portion of this decision that there was no illegal arrest. Moreover, the record discloses the defendant clearly consented to the taking of the hair sample after the officers explained that he was not required to do so. Hence, this assignment of error is overruled.
V. CLAIM OF MERGER OF OFFENSES
Finally, defendant requests that we pass upon the question whether charges against him should merge. He argues that the killing was an unpremeditated "aberration" committed in the course of a rape. He notes that under cases such as State v. Boyd, 287 N.C. 131, 214 S.E.2d 14 (1975), had the State proceeded under the felony murder rule, at least two of the charges would have merged.
We are not inclined to discuss extensively the various combinations of guilt and the consequences thereof which might have resulted had the State proceeded to trial on the original indictments. Clearly, the merger doctrine, which is well established in North Carolina, would have arisen had a jury found defendant guilty of felony murder. State v. Squire, 292 N.C. 494, 234 S.E.2d 563, cert. denied sub nom. Brown v. N. C., 434 U.S. 998, 98 S.Ct. 638, 54 L.Ed.2d 493 (1977); State v. Williams, 284 N.C. 67, 199 S.E.2d 409 (1973); State v. Thompson, 280 N.C. 202, 185 S.E.2d 666 (1972). Here, however, the issue of merger is not before us. This is so because defendant entered into a negotiated plea of guilty to second degree murder, first degree rape and first degree burglary in specific exchange for a sentence of two consecutive life terms. Defendant has in no way, on this appeal, attacked the validity of the terms of his plea bargain and we find no impropriety with respect to it.
We further note that while, as stated above, we granted certiorari on the basis of G.S. 15A-979(b), we also treated the petition as one to bypass the Court of Appeals. G.S. 7A-27(a) provides that there is no appeal of right to this Court when a sentence is based on a plea of guilty even when that sentence is life imprisonment. The proper court to hear this appeal, if motion to bypass is not made and granted, is the Court of Appeals.
We have carefully examined all of defendant's assignments of error and find them devoid of merit.
We find no error in either defendant's suppression or sentencing hearing.
No error.
BROCK, J., took no part in the consideration or decision of this case.
EXUM, Justice, dissenting in part:
The majority opinion has tried mightily to distinguish this case from Dunaway v. New York, ___ U.S. ___, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), decided after the trial proceedings in the instant case had occurred and while it was on direct appeal.[1] I believe the attempt is unsuccessful and that Dunaway is not distinguishable from the case before us. I respectfully dissent from that portion of the opinion dealing with the Dunaway issue.
The majority argues defendant was not in custody of the sheriff at the time he made his confession and, even if he was, the sheriff had probable cause to arrest him prior to that time. The state concedes that defendant was in custody and there was no *857 probable cause to arrest him before he made his confession. We, of course, are not necessarily bound by these concessions; but, in the context of a fully adversarial proceeding as this is, they are entitled to some weight.
The majority says defendant was not in custody because (1) he voluntarily accompanied the deputy sheriffs when they were sent "to pick him up"; (2) no law officer testified that defendant would not have been allowed to leave had he attempted to do so; (3) defendant himself initiated the contact with the sheriff's office; and (4) Judge Kivett found that defendant was free to leave the sheriff's office "[up] until the time that [Sheriff Poteat] and the two S.B.I. agents began their interview." (Emphasis supplied.)
That defendant voluntarily accompanied the deputies and initiated contact with the sheriff's office in no way detracts from the crucial fact that he was taken into custody by the deputies at the direction of the sheriff for questioning. Judge Kivett found as a fact that defendant "had been picked up by [the deputies] . . . at the request of the sheriff so that they might possibly secure additional information from him" and that "he was not considered a suspect at the time." That no law officer testified defendant would not have been allowed to leave had he attempted to do so is immaterial. Neither did any officer testify that defendant would have been allowed to leave. Such testimony would at most have been the witness' opinion of the circumstances. As this Court decided today in State v. Perry (1979), 298 N.C. 502, 259 S.E.2d 496, determination of whether a suspect is in custody is made objectively by focusing on the actions of law officers. It is not based on whether defendant subjectively believed himself to be detained against his will or whether any particular officer might have so opined.
There can be no doubt that defendant here was taken into custody by the sheriff for the purpose of questioning and remained in such custody until he made his incriminating statements. Even if he had been somehow free to leave prior to the time the questioning began (and I find nothing in the record which supports this conclusion), Judge Kivett's findings establish by clear implication that at the time questioning itself began defendant would not have been free to leave. If, consequently, at that point there was no probable cause to detain defendant, his subsequent incriminating statements are rendered inadmissible by Dunaway.
I disagree also with the majority's alternative conclusion that the sheriff had probable cause to arrest defendant prior to the time interrogation began. The facts relied on by the majority to link defendant to the crime are consistent merely with defendant's initial admissions that he visited the crime scene and entered the victim's residence by breaking in a window. They are, in themselves, insufficient to constitute probable cause that defendant himself committed the crimes. After the investigation at the victim's residence had been completed and defendant was being taken by deputies to the sheriff's office, Judge Kivett found that defendant asked the deputies whether they suspected him. They replied, "No, they did not suspect him but they guessed that the sheriff might want to talk to him." Again the state concedes the absence of probable cause prior to defendant's making his incriminating statements.
I fully agree with the remainder of the majority opinion including its conclusion that defendant waived his Fourth Amendment rights by entering a negotiated guilty plea without notice that he was pleading guilty conditionally under G.S. 15A-979(b). The legislature did not intend a defendant to have it both ways. The state is entitled to rely on a negotiated plea, nothing else appearing, as being a full and final settlement of the entire matter. The sentencing judge should know whether defendant's plea will finally dispose of the matter or whether there is the immediate prospect of a new proceeding and a new sentence. Where a defendant negotiates a plea with the state and enters it without notice to the state or the court that he intends after all *858 to seek a new trial, he waives the procedure made available to him by G.S. 15A-979.
NOTES
[1] The majority assumes that Dunaway is sufficiently retroactive to apply to this case. An argument could be mounted that it is not. Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) (held, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) applicable only to trials begun after the date of its decision); see also Jenkins v. Delaware, 395 U.S. 213, 89 S.Ct. 1677, 23 L.Ed.2d 253 (1969). The argument would probably fail, however, because of Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) (held, Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) applies to cases in which appeals were not final on date of decision.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381563/ | 145 S.W.3d 246 (2004)
The STATE of Texas, State,
v.
Stephen John HOLCOMBE, Appellee.
No. 2-02-515-CR.
Court of Appeals of Texas, Fort Worth.
April 22, 2004.
Rehearing Overruled July 15, 2004.
*248 Tim Curry, Crim. Dist. Atty., Charles M. Mallin, Tanya S. Dohoney and Kim D'Avignon, Asst. Crim. Dist. Attys., Fort Worth, for State.
Stephen Gordon, Fort Worth, for Appellee.
Panel B: DAUPHINOT, HOLMAN, and McCOY, JJ.
OPINION
DIXON W. HOLMAN, Justice.
The State appeals the trial court's order granting Appellee Stephen John Holcombe's motion to suppress. We reverse and remand.
FACTUAL AND PROCEDURAL BACKGROUND
On May 19, 2002, at approximately 2:30 a.m., Bedford police officer Joseph Riley and his partner William Mack responded to a call regarding a loud-noise disturbance. According to Riley, the officers were responding for the second time that evening to complaints made about a loud party at a house located on Vicksburg Drive. Riley testified that since it was their second visit to the scene, the officers issued a citation for violating Bedford's noise ordinance, which states:
The following sounds are hereby determined to be specific noises which can constitute a noise disturbance, and violations of this article are hereby defined. A noise does not have to exceed the specifications for environmental sound levels contained in section 12-53 in order to constitute a violation of this section.
....
(2) Radios, television sets, musical instruments and similar devices. Operating or permitting to be operated any radio receiving set, musical instrument, television, phonograph, drum or other machine or device for the production or reproduction of sound in such a manner as to violate the sound levels of this article or to unreasonably disturb or interfere with the peace, comfort and repose of neighboring persons of ordinary sensibilities, *249 unless a permit of variance is first obtained.
BEDFORD, TEX., CODE OF ORDINANCES ch. 54, art. II, § 36 (2002).[1]
After issuing the citation, Riley stated that as he headed back to his patrol car, he noticed Appellee's white Mercedes approximately seventy-five yards away playing loud music. Riley testified that Appellee's music was louder than the noise at the party for which he had just written a citation and that the Bedford noise ordinance is a general noise ordinance that is not specific to residences. Mack testified that he was between one hundred twenty and one hundred fifty feet away from the car and described the music as "extremely" loud. Because the officers were called to the neighborhood in response to a loud noise disturbance call and Riley believed Appellee was violating the Bedford noise ordinance, Riley flagged down the car and asked Appellee to turn down his music. Riley, speaking to Appellee through the sunroof of the car because the other windows were rolled up, noticed a strong odor of an alcoholic beverage and that Appellee's speech was slurred. Riley also testified that Appellee's eyes appeared to be bloodshot. According to Riley, Appellee appeared to be under the influence of alcohol and he intended to keep speaking to him, but Appellee said he was sorry and drove off. Riley radioed ahead to Mack, who was about seventy-five yards down the street and asked him to stop Appellee. Appellee was arrested for driving while intoxicated.
After a hearing on November 21, 2002, the trial court granted Appellee's motion to suppress and announced on the record that the grounds for suppression were that the Bedford noise ordinance is unconstitutional because it is overbroad and does not place the public on sufficient notice. The trial court subsequently adopted the State's proposed order, which stated that the trial court's suppression was based on the fact that the ordinance is overbroad. This appeal ensued.
STANDARD OF REVIEW
A trial court's ruling on a motion to suppress evidence will not be set aside absent an abuse of discretion. Taylor v. State, 945 S.W.2d 295, 297 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd). We review a trial court's ruling on a motion to suppress using the bifurcated standard of review set forth in Guzman v. State. 955 S.W.2d 85 (Tex.Crim.App.1997). We defer to the trial court's determination of the historical facts and rulings on mixed questions of law and fact. Id. at 87-88; Morfin v. State, 34 S.W.3d 664, 666 (Tex.App.-San Antonio 2000, no pet.). However, we decide de novo whether the trial court erred in misapplying the law to the facts. Carmouche v. State, 10 S.W.3d 323, 327-28 (Tex.Crim.App.2000); Morfin, 34 S.W.3d at 666.
Imprecise laws can be attacked on their faces under two different doctrines. City of Chicago v. Morales, 527 U.S. 41, 52, 119 S.Ct. 1849, 1857, 144 L.Ed.2d 67 (1999). First, the overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when *250 "judged in relation to the statute's plainly legitimate sweep." Id.; Broadrick v. Oklahoma, 413 U.S. 601, 612-15, 93 S.Ct. 2908, 2916-18, 37 L.Ed.2d 830 (1973). Second, even if an enactment does not reach a substantial amount of constitutionally protected conduct, it may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests. Morales, 527 U.S. at 52, 119 S.Ct. at 1857; Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983).
OVERBREADTH
In the State's first four points of error, it argues that the trial court erred in concluding that the Bedford noise ordinance is constitutionally overbroad. It is within the State's police power to protect the tranquility, quiet enjoyment, and well-being of the community. Frieling v. State, 67 S.W.3d 462, 472 (Tex.App.-Austin 2002, pet. ref'd). This right of the State is limited only by individual constitutional rights, such as First Amendment free speech. Blanco v. State, 761 S.W.2d 38, 40 (Tex.App.-Houston [14th Dist.] 1988, no pet.). Consequently, in analyzing a facial challenge to the overbreadth of a law, we first determine if the statute reaches a substantial amount of constitutionally protected conduct. Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982); Blanco, 761 S.W.2d at 40. A statute will not be invalidated for overbreadth merely because it is possible to imagine some unconstitutional applications. Hoffman, 455 U.S. at 494, 102 S.Ct. at 1191. Rather, the wide-reaching effects of striking down a statute on its face, at the request of one whose own conduct may be punished despite the First Amendment, has caused the Supreme Court to recognize that the "overbreadth doctrine is `strong medicine'" and [courts should] employ it "with hesitation, and then `only as a last resort.'" New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 3361, 73 L.Ed.2d 1113 (1982) (quoting Broadrick, 413 U.S. at 613, 93 S.Ct. at 2916).
We have reviewed several federal and state cases dealing with the constitutionality of noise ordinances, first turning to the United States Supreme Court's decision in Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). That case involved equal rights protests by black students at a high school in Illinois during the 1960s. Id. at 105, 92 S.Ct. at 2297. One of the students, Richard Grayned, was found guilty of violating the city's noise ordinance. Id. at 106, 92 S.Ct. at 2298. The Rockford ordinance read:
No person, while on public or private grounds adjacent to any building in which a school or any class thereof is in session, shall willfully make or assist in the making of any noise or diversion which disturbs or tends to disturb the peace or good order of such school session or class thereof.
Id. at 107-08, 92 S.Ct. at 2298. Grayned raised claims of both vagueness and overbreadth to attack his conviction. Id. at 108, 114, 92 S.Ct. at 2298, 2302. In holding that the Rockford ordinance was not invalid on its face, the Grayned court noted that the city had a compelling interest in preserving "an undisrupted school session conducive to the students' learning." Id. at 119, 92 S.Ct. at 2305. The ordinance, although restrictive of expressive behavior during the school session, was not overbroad because:
Rockford punishes only conduct which disrupts or is about to disrupt normal school activities.... Peaceful picketing which does not interfere with the ordinary functioning of the school is permitted. *251 And the ordinance gives no license to punish anyone because of what he is saying.
Id. at 119-20, 92 S.Ct. at 2305. Similarly, the Bedford ordinance restricts only those noises that "unreasonably disturb or interfere with the peace, comfort and repose of neighboring persons of ordinary sensibilities"; it is neutral regarding content and location.
In Ward v. Rock Against Racism, the Supreme Court upheld New York City's volume control regulations for public outdoor concerts despite clear First Amendment protection for music because the city's interest in tranquility allowed it to impose reasonable restrictions. 491 U.S. 781, 790, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989). According to the Ward court, "A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Id. at 791, 109 S.Ct. at 2754. Under Ward, Bedford may impose reasonable restrictions on the time, place, or manner of constitutionally protected speech even in a public forum. Id. at 791, 109 S.Ct. at 2753. A valid time, place, and manner restriction, however, must be content-neutral. Id. A restriction is content-neutral so long as it is "justified without reference to the content of the regulated speech." Id. (quoting Clark v. Cmty. for Creative Non Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984)).
Bedford's stated policy is:
to minimize the exposure of citizens to excessive noise and to protect, promote and preserve the public health, comfort, convenience, safety and welfare. It is the express intent of the city to control the level of noise in a manner which promotes commerce; protects the sleep and repose of citizens; promotes the use, value and enjoyment of property; and preserves the quality of the environment.
BEDFORD, TEX., CODE OF ORDINANCES ch. 54, art. II, § 32 (2002). As we previously noted, the Bedford noise ordinance does not reference content. Bedford simply desires to protect the tranquility of its citizens; and it is well established that the government may, within reasonable bounds regulate audible expression in its capacity as noise. City of Ladue v. Gilleo, 512 U.S. 43, 48, 114 S.Ct. 2038, 2041, 129 L.Ed.2d 36 (1994) (citing Ward, 491 U.S. at 803, 109 S.Ct. at 2760; Kovacs v. Cooper, 336 U.S. 77, 89, 69 S.Ct. 448, 455, 93 L.Ed. 513 (1949) (Frankfurter, J., concurring)).
Texas courts have also addressed the constitutionality of noise ordinances. Thompson v. State, No. 04-00-00348-CR, 2001 WL 38111, at *2 (Tex.App.-San Antonio Jan.17, 2001, pet. ref'd) (not designated for publication), cert. denied, 534 U.S. 1129, 122 S.Ct. 1067, 151 L.Ed.2d 970 (2002) (holding that the Texas unreasonable noise statute does not threaten constitutional conduct); Schrader v. State, No. 03-99-00780-CR, 2000 WL 1227866, at *2 (Tex.App.-Austin Aug.31, 2000, no pet.) (not designated for publication), cert. denied, 532 U.S. 1040, 121 S.Ct. 2003, 149 L.Ed.2d 1005 (2001) (holding that city noise ordinance does not reach a substantial amount of constitutionally protected conduct); Blanco, 761 S.W.2d at 41 (holding that the Texas unreasonable noise statute does not reach a substantial amount of constitutionally protected conduct). In 1988, the Houston Fourteenth Court of Appeals upheld section 42.01(a)(5) of the Texas Penal Code, a disorderly conduct statute, which stated:
A person commits an offense if he intentionally or knowingly... makes unreasonable noise in a public place or in or *252 near a private residence that he has no right to occupy.
Act of May 23, 1983, 68th Leg., R.S., ch. 800, § 1, sec. 42.01, 1983 Tex. Gen. Laws 4641, 4641 (amended 1991) (current version at Tex. Penal Code Ann. § 42.01(a)(5) (Vernon 2003)); Blanco, 761 S.W.2d at 40, 42. The appeals court held that the statute fell within the State's police power to protect the tranquility of the community and that the breadth of the statute did not substantially impact constitutional rights. Blanco, 761 S.W.2d at 40.
Appellee argues that the Texas disorderly conduct statute can be distinguished from the Bedford ordinance because the scope of the Texas statute is limited in its encroachment on constitutionally protected conduct by a sister statute, which reads in pertinent part:
If conduct that would otherwise violate Section 42.01(a)(5)... consists of speech or other communication, of gathering with others to hear or observe such speech communication, or of gathering with others to picket or otherwise express in a nonviolent manner a position on social, economic, political, or religious questions, the actor must be ordered to move, disperse, or otherwise remedy the violation prior to his arrest if he has not yet intentionally harmed the interests of others which [42.01(a)(5)] seek[s] to protect.
TEX. PENAL CODE ANN. § 42.04 (Vernon 2003). According to Appellee, the Texas statute affords adequate safeguards for constitutionally protected conduct, amplified by the specific intent element incorporated into section 42.01, that the Bedford ordinance does not. Consequently, Appellee asserts that Blanco cannot be relied upon as precedent for upholding the Bedford ordinance. The court of appeals in Blanco, however, noted in its opinion that "[e]ven without the speech defense of § 42.04, courts have held that unreasonable noise is not protected speech." Blanco, 761 S.W.2d at 40 (citing Commonwealth v. Mastrangelo, 489 Pa. 254, 263, 414 A.2d 54, 58, appeal dismissed, 449 U.S. 894, 101 S.Ct. 259, 66 L.Ed.2d 124 (1980); Reeves v. McConn, 631 F.2d 377, 378 (5th Cir.1980); Pringle v. Court of Common Pleas, 778 F.2d 998, 999 (3rd Cir.1985)).
In 2000, the Austin Court of Appeals, in an unpublished opinion, addressed the constitutionality of Austin's noise ordinance, which provided in relevant part:
(A) It is unlawful for any person operating or controlling a motor vehicle in either a public or private place within the city to operate any sound amplifier which is part of, or connected to, any radio, stereo receiver, compact disc player, cassette tape player, or other similar device in the motor vehicle, in such a manner that, when operated, it is audible at a distance of thirty (30) feet or, when operated, causes a person to be aware of the vibration accompanying the sound at a distance of thirty (30) feet from the source.
(B) The provisions of this section do not apply to:
....
(2) Motor vehicle[s] used for business or political purposes, properly permitted, which in the normal course of business use sound making devices.
Schrader, 2000 WL 1227866, at *1 (quoting AUSTIN, TEX., MUNICIPAL CODE ch. 10-5, art. III, § 10-5-40 (1992)). In that case, Schrader was placed on two years' deferred adjudication after pleading guilty to possession of less than one gram of cocaine, which was discovered as a result of police enforcement of the Austin noise ordinance. The Austin Court of Appeals, recognizing that the question is whether the ordinance reaches a substantial *253 amount of constitutional conduct, declined to strike down the ordinance. Id. at *4. The court noted that the ordinance does not restrict any expression or communication beyond limiting its loudness. Id. The court reasoned that although the ordinance may restrict some First Amendment activity, the ordinance is justified by the city's interest in a peaceful environment. Id.
In 2001, the San Antonio Court of Appeals revisited the constitutionality of the Texas noise ordinance addressed in Blanco. Thompson, 2001 WL 38111, at *2. The court reiterated that other courts have held that unreasonable noise is not protected speech and concluded that section 42.01(a)(5) does not threaten constitutional conduct or speech. Id. (citing Blanco, 761 S.W.2d at 40-41).
We recognize that both Schrader and Thompson are unpublished and do not constitute binding precedent, but find their reasoning persuasive nonetheless-especially in light of other cases upholding noise ordinances as constitutional. See Grayned, 408 U.S. at 119-20, 92 S.Ct. at 2305; Kovacs, 336 U.S. at 83, 69 S.Ct. at 451; Reeves, 631 F.2d at 382. We therefore conclude that the Bedford noise ordinance does not reach a substantial amount of First Amendment activity and is not constitutionally overbroad. As with the ordinance addressed in Schrader, the Bedford noise ordinance is content-neutral and regulates only the volume of expression.
VAGUENESS
In the State's fifth and sixth points of error, it argues that the Bedford noise ordinance is not unconstitutionally vague. Although the State recognizes in its brief that the trial court granted Appellee's motion to suppress based only on a finding of overbreadth, the State addresses vagueness based on a case in which both the court of appeals and the court of criminal appeals considered a vagueness challenge to the penal code even though the trial court's decision turned on the overbreadth challenge. See State v. Markovich, 34 S.W.3d 21, 25 n. 2 (Tex.App.-Austin 2000), aff'd, 77 S.W.3d 274 (Tex.Crim.App.2002).
In addition to being limited by free speech protections, Bedford's police power to protect a peaceful environment is further limited by the requirement that a criminal statute must give a person of ordinary intelligence what conduct is prohibited. See Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972); Cuellar v. State, 70 S.W.3d 815, 822 (Tex.Crim.App.2002) (Cochran, J., concurring); Morgan v. State, 557 S.W.2d 512, 514 (Tex.Crim.App.1977). If a statute does not substantially implicate constitutionally protected conduct or speech, it is valid unless it is impermissibly vague in all applications. Hoffman Estates, 455 U.S. at 494-95, 102 S.Ct. at 1191. The vagueness doctrine is based on fairness and "is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited." Colten v. Commonwealth of Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 1957, 32 L.Ed.2d 584 (1972).
Vagueness may invalidate a criminal law for either of two independent reasons. First, the law may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement. See Kolender, 461 U.S. at 357, 103 S.Ct. at 1858. In order to pass a vagueness challenge, a criminal statute must give a person of ordinary intelligence *254 a reasonable opportunity to know what is prohibited. Grayned, 408 U.S. at 108, 92 S.Ct. at 2298-99; Long v. State, 931 S.W.2d 285, 287 (Tex.1996); Sisk v. State, 74 S.W.3d 893, 901 (Tex.App.-Fort Worth 2002, no pet.). Furthermore, where First Amendment freedoms are implicated, the law must be sufficiently definite to avoid chilling protected expression. Long, 931 S.W.2d at 287; Sisk, 74 S.W.3d at 901. A statute is not unconstitutionally vague merely because it fails to define words or phrases. Engelking v. State, 750 S.W.2d 213, 215 (Tex.Crim.App.1988); Ahearn v. State, 588 S.W.2d 327, 337-38 (Tex.Crim.App. [Panel Op.] 1979). If the statute affects communication protected by the First Amendment, a defendant has standing to challenge the statute as vague on its face, even if it does not affect his own First Amendment rights. Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 59-60, 96 S.Ct. 2440, 2447, 49 L.Ed.2d 310 (1976); Long, 931 S.W.2d at 287-88.
Appellee argues that the meaning of the phrase "unreasonably disturbs or interfere with the peace, comfort and repose of neighboring persons of ordinary sensibilities, unless a permit of variance is first obtained," which is included in the ordinance, is left to the imagination of the police, public, and the courts. Specifically, Appellee appears to challenge the terms "persons," "interfere," "repose," and "permit of variance."
Words defined in dictionaries with meanings so well known as to be understood by a person of ordinary intelligence have been held not to be vague and indefinite. Floyd v. State, 575 S.W.2d 21, 23 (Tex.Crim.App. [Panel, Op.] 1978), appeal dism'd, 442 U.S. 907, 99 S.Ct. 2817, 61 L.Ed.2d 272 (1979); Ex parte Anderson, 902 S.W.2d 695, 700 (Tex.App.-Austin 1995, pet. ref'd). What we must do, then, is "to find the meaning of some not very difficult words." N. Sec. Co. v. United States, 193 U.S. 197, 401, 24 S.Ct. 436, 468, 48 L.Ed. 679 (1904) (Holmes, J., dissenting). First, "person" is defined by section 54-31 of the Bedford municipal code as "any individual, firm, association, partnership, corporation or any other entity, public or private." BEDFORD, TEX., CODE OF ORDINANCES ch. 54., art. II, § 31 (2002). This definition is more than sufficiently clear to place a person of ordinary intelligence on notice of whose comfort and repose may not be unreasonably disturbed. Further, the term "persons" is limited to only those persons of ordinary sensibilities, i.e., an objective reasonable person standard.
As recognized by other Texas courts, the terms "interfere" and "repose" also have commonly understood meanings. Ex parte Hunter, 148 Tex.Crim. 462, 188 S.W.2d 162, 163 (1945) (stating, "We are unable to sustain the relator's contention that the ordinance is indefinite in that it does not define what is meant by `frequent or long continued noise,' `comfort and repose,' and `neighborhood.' Such terms are of general use and may be understood.") (orig.proceeding); Markovich, 34 S.W.3d at 25 (stating that term "interfere" has a commonly understood meaning); Morehead v. State, 746 S.W.2d 830, 837 (Tex.App.-Dallas 1988), rev'd on other grounds, 807 S.W.2d 577 (Tex.Crim.App.1991) (holding that term "interfere" in statute prohibiting the disruption of a lawful meeting was not vague); Winthrop v. State, 735 S.W.2d 545, 547 (Tex.App.-Houston [1st Dist.] 1987, pet. ref'd) (stating term "interfere" in child enticing statute was not so vague as to violate state and federal due process provisions).
Finally, Appellee argues that the ordinance is unclear as to the criteria for obtaining a "permit of variance." The Bedford municipal code, however, extensively describes the process and criteria *255 for obtaining a permit of variance. BEDFORD, TEX., CODE OF ORDINANCES ch. 54, art. II, § 38 (2002). For example, section 54-38 of the code authorizes the city manager to grant permits if it is found:
a. That additional time is necessary for the applicant to alter or modify the activity or operation to comply with this article; or
b. That the activity, operation or noise source will be of temporary duration and cannot be done in a manner that would comply with other provisions of this article; and
c. That no other reasonable alternative is available to the applicant; and
d. That the city may prescribe any conditions or requirements deemed necessary to minimize adverse effects upon the community or the surrounding neighborhood.
Id.
Appellee additionally argues that the Bedford noise ordinance contains no specific and objective criteria for determining if any particular noise was too loud. We disagree. The ordinance's reference to "neighboring persons of ordinary sensibilities" and ban against noise that is unreasonable establish an objective reasonable person standard. This objective standard ensures that those of ordinary intelligence have a reasonable opportunity to know what is prohibited. We conclude that the Bedford noise ordinance adequately describes the prohibited conduct and does not permit arbitrary or discriminatory enforcement. We sustain the State's fifth and sixth points of error.
THE REASONABLENESS OF THE STOP
In the State's seventh and final point of error, it argues that the trial court erred in granting the motion to suppress because the stop of Appellee's vehicle was reasonable. Because we sustain the State's overbreadth and vagueness points, we do not address the State's seventh point. See Tex.R.App.P. 47.1.
CONCLUSION
Having sustained Appellant's first six points, we reverse the trial court's judgment and remand this case for a trial on the merits.
DAUPHINOT, J. filed a dissenting opinion.
LEE ANN DAUPHINOT, Justice, dissenting.
Although the majority opinion is thoughtfully and carefully researched and written, I must respectfully dissent because the majority writes to reverse the well-founded decision of the trial judge.
In reviewing the trial judge's ruling, we apply a de novo standard of review as to questions of law and afford almost total deference to the trial judge's determination of facts.[1] Moreover, if the trial court's ruling on a matter of law is correct under any theory of law, even if the trial court gives the wrong reason for its ruling, we must affirm the trial court's decision.[2]
In May v. State,[3] the Texas Court of Criminal Appeals held that former section *256 42.07 of the Texas Penal Code, prior to its amendment in 1983, was unconstitutional. As the May opinion provides, that former statute read, in pertinent part:
(a) A person commits an offense if he intentionally:
...
(2) threatens, by telephone or in writing, to take unlawful action against any person and by this action intentionally, knowingly, or recklessly annoys or alarms the recipient or intends to annoy or alarm the recipient; or
(3) places one or more telephone calls anonymously, at an unreasonable hour, in an offensive and repetitious manner, or without a legitimate purpose of communication and by this action intentionally, knowingly, or recklessly annoys or alarms the recipient.[4]
The May Court, citing Kramer v. State,[5] concluded that the statute was void for vagueness because of its failure to 1) adequately define what annoys and alarms people and 2) specify whose sensitivities must be offended.[6]
The ordinance now before us provides in pertinent part that a "noise disturbance" is
[o]perating or permitting to be operated any radio ... in such a manner as to violate the sound levels of this article or to unreasonably disturb or interfere with the peace, comfort and repose of neighboring persons of ordinary sensibilities, unless a permit of variance is first obtained.[7]
The Bedford police officers variously described the music from Appellee's radio as "so loud," played at an extremely high level," and louder than the noise at the party. The officer who stopped Appellee's car said he stopped Appellee because he believed that Appellee was violating the Bedford noise ordinance.
Our sister court in Houston has pointed out:
All criminal laws must give fair notice to the populace as to what activity is made criminal so that individuals have fair warning of what is forbidden. Criminal statutes must provide an objective standard by which a person's conduct can be measured. A statute which forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.
To determine whether a law provides fair notice requires a two-step process. First, we must determine whether appellant, as an ordinary person, received sufficient information from the statute to understand exactly what conduct is prohibited so that she could act in a lawful manner. Second, we must determine whether [the law] provides sufficient notice of the prohibited conduct to law enforcement personnel, so that appellant is not arbitrarily or discriminatorily prosecuted by the State or convicted by the jury.[8]
The standard for determining the vagueness issue was established in City of Jacksonville, in which the United States Supreme Court held that a statute is void for vagueness when it fails to give a person of *257 ordinary intelligence fair notice that his contemplated conduct is forbidden, it encourages arbitrary and erratic arrests and convictions, makes criminal those activities which by modern standards are normally innocent, and places almost unfettered discretion in the hands of the police.[9]
In the case now before this court, the trial judge announced that the ordinance in question is unconstitutionally overbroad and void for vagueness. The findings of fact and conclusions of law that appear in the record address only the overbreadth holding. It is clear from reading the record as a whole that the trial judge was concerned that the ordinance was actually unconstitutionally vague for its failure to afford fair notice of the prohibited conduct and its failure to establish objective standards for determining whether a violation has occurred. The consequence of such failures is to leave to the police officers the unbridled discretion to judge whether a violation of the ordinance has occurred. We cannot tell from the record how loudly the radio was playing, except that it was so loud, played at an extremely high level, or could be heard at a particular distance. An ordinance that prohibits noise above a certain decibel level or that can be heard at a specific distance under specific circumstances provides objective standards. The Bedford ordinance does not. Whether a violation of the Bedford ordinance occurs depends only on the police officers' determination of what is too loud and what unreasonably disturbs or interferes with the peace, comfort, and repose of neighboring persons. Indeed, in the case before us, the police officers alone determined who were "neighboring persons."
The Bedford ordinance appears to be constitutionally infirm for the very reasons the Texas Court of Criminal Appeals held the telephone harassment statute void for vagueness in May, and for similar reasons supporting the Supreme Court's holding in City of Jacksonville. I would hold that the trial court did not err in declaring the Bedford ordinance unconstitutional and granting Appellee's motion to suppress. Because the majority holds that the trial court did err, I must respectfully dissent.
NOTES
[1] At the time of Appellant's arrest, a prior version of the Bedford noise ordinance was in effect. The current version, enacted only nine days later, differs only in its references to other "articles" within the ordinance whereas the prior version uses the term "chapters." For clarity, we will refer to the current version of the Bedford ordinance. See BEDFORD, TEX., CODE 1969 § 12-50-12-57 (recodified at BEDFORD, TEX., CODE OF ORDINANCES ch. 54, art. II (2002)).
[1] Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997).
[2] Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App.1990); Couchman v. State, 3 S.W.3d 155, 158 (Tex.App.-Fort Worth1999, pet. ref'd); Pettigrew v. State, 908 S.W.2d 563, 568 (Tex.App.-Fort Worth 1995, pet. ref'd); see also In re ExxonMobil Corp., 97 S.W.3d 353, 365 (Tex.App.-Houston [14th Dist.] 2003, orig. proceeding); Luxenberg v. Marshall, 835 S.W.2d 136, 141-42 (Tex.App.-Dallas 1992, orig. proceeding).
[3] 765 S.W.2d 438, 440 (Tex.Crim.App.1989) (op. on reh'g).
[4] Id. at 439.
[5] 605 S.W.2d 861 (Tex.Crim.App. [Panel Op.] 1980).
[6] May, 765 S.W.2d at 440.
[7] BEDFORD, TEX., CODE 1969 § 12-55 (recodified at BEDFORD, TEX., CODE OF ORDINANCES ch. 54, art. II, § 36 (2002)).
[8] Weyandt v. State, 35 S.W.3d 144, 155 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (citations omitted).
[9] Papachristou v. City of Jacksonville, 405 U.S. 156, 162-71, 92 S.Ct. 839, 843-48, 31 L.Ed.2d 110 (1972). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3344972/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION
The plaintiff, Tom M. Bjunes, Jr. ("Bjunes"), appeals from the final decision of the defendant, Commissioner of Motor Vehicles ("Commissioner"), suspending Bjunes' motor vehicle operator's license for a period of six months. The Commissioner. acted pursuant to General Statutes § 14-227b on the basis that Bjunes failed to pass a breath test of his blood alcohol content ("BAC") after having been arrested on the charge of driving while under the influence of alcohol. Bjunes appeals pursuant to General Statutes § 4-183. The court finds the issues in favor of the Commissioner.
The record reflects the following facts. On April 30, 1999, at approximately 2 a.m., officers of the West Hartford police department were participating in a DUI checkpoint near the intersection of New Britain Avenue and Shield Street.1 At that time Bjunes drove up in a 1988 Chevrolet Baretta and was stopped by an officer (Magao), who asked Bjunes if he had been drinking. The officer noticed the strong odor of alcohol on Bjunes. (Return of Record ("ROR"), Transcript, p. 14. Another officer (Baran) observed Bjunes' glazed eyes. (ROR, A-44 narrative.) Officer Baran: administered field sobriety tests to Bjunes, who performed poorly on them. (ROR, Transcript, pp. 28-29; A-44 narrative and attachments.)
Bjunes admitted drinking and advised the police that he had been previously arrested for DUI. (ROR, A44 attachments.) Officer Baran arrested Bjunes for DUI, General Statutes § 14-227a, and transported him to the West Hartford Police Department. There, Bjunes was advised of his Miranda rights and his implied consent rights. He was afforded the opportunity to contact an attorney, but declined to do so. Officer Baran offered the breath test to Bjunes and he accepted it, with the first test being administered at 2:24 a.m. with a result of .154% BAC and the second test administered at 3:48 a.m. with a result of .129% BAC. (ROR, A-44 attachments.)
The Commissioner subsequently suspended Bjunes' motor vehicle operator's license. Because Bjunes had a prior violation, the Commissioner issued a one-year suspension. Bjunes requested and received an administrative hearing on May 25, 1999. At this hearing counsel for Bjunes argued solely that the police check point was illegal and therefore under Field v. Goldberg, 42 Conn. Sup. 306 (1991), the suspension was not justified. The hearing officer ruled against Bjunes on May 25, 1999 and imposed a suspension of six months2. This appeal followed. CT Page 6689
During the course of the appeal, the Connecticut Supreme Court issued its opinion in Fishbein v. Kozlowski, 252 Conn. 38 (1999). The holding of that case is that the Commissioner's administrative hearing officers should not consider the legality of the initial arrest in suspension proceedings; such hearing officers are limited to the four factors set forth in General Statutes § 14-227b (g). The Supreme Court further ruled that evidence, even if illegally obtained, was admissible in the suspension hearings, to the degree that such a claim was made under the federal constitution. Bjunes then received permission to brief additional issues and submitted two supplemental briefs.
The initial issue of the right to raise the supposed illegal check stop at suspension hearings has been disposed of in Fishbein. In the first supplemental brief filed by Bjunes. he claims that the Fishbein case does not apply to his case, as this would apply a decision, other than Fieldv. Goldberg, retroactively.3 There is no indication that Field was the controlling precedent prior to the issuance of Fishbein. Cf Papa v.Department of Motor Vehicles, Superior Court, Judicial District of Tolland, Docket No. 44456 (October 16, 1991) (5 Conn.L.Rptr. 144); andScranton v. Department of Motor Vehicles, Superior Court, Judicial District of Tolland, Docket No. 44545, (October 15, 1991) (6 C.S.C.R. 982,5 Conn.L.Rptr. 601). As the Supreme Court noted in Fishbein, the Commissioner and the trial court assumed that Field governed, but there was no controlling ruling of the Supreme Court requiring this result.Fishbein v. Kozlowski, supra 252 Conn. 45. The matter was open for denovo review by the Supreme Court. Id., 46.
Bjunes has submitted, as a supplement to his brief, a stipulation concerning William D. Grady, a hearing officer with the Motor Vehicle Department. The purpose of the stipulation is to demonstrate that untilFishbein was decided, the Commissioner was accepting the defense of an illegal initial stop at the suspension hearing. Even Grady does not state conclusively that the Field rule was a matter of policy with the Commissioner. While the information in the stipulation is undoubtedly true and entitled to weight, Anderson v. Ludgin, 175 Conn. 545, 555
(1978), it is also true that the Fishbein court was aware of the Commissioner's practice at some or all of the hearings. Fishbein still did not consider that Field was settled law, but that the issue was subject to plenary review. Fishbein v. Kozlowski, supra, 252 Conn. 46.
Even if Fishbein announced new law, there is no reason why it should not be applied retroactively to Bjunes. As our Supreme Court declared inState v. Ryerson, 201 Conn. 333, 339 (1986):
As a rule, judicial decisions apply "retroactively.". . . CT Page 6690
Indeed, a legal system based on precedent has a built-in presumption. of retroactivity. . . . If a "new" constitutional doctrine is truly right, we should not reverse lower courts which have accepted it; nor should we affirm those which have rejected the very arguments we have embraced.
(Citations omitted; internal quotation marks omitted.) See also State v.DeFusco, 27 Conn. App. 248, 253, n. 4 (1992), aff'd 224 Conn. 627 (1993) (court must decide appeal under new precedent, notwithstanding that overruled precedent was controlling authority at time of search).
In State v. Bernier, 46 Conn. App. 350, 371 (1997), rev'd on other grounds, 246 Conn. 63 (1998), Judge Ronan speaks of the legal system having a "presumption of retroactivity." He sets forth a three part test for retroactivity as recognized in Neyland v. Board of Education,195 Conn. 174, 179 (1985), having its origin in Chevron Oil Co. v. Huson,404 U.S. 97 (1971). To have retroactivity, first, the decision must not have established a new principle of law, overruling clear past precedent; second, applying the rule of law as developed must further and not retard its purposes; and third, a holding of retroactivity must not produce substantial inequitable results. State v. Bernier, supra. 46 Conn. App. 371.
Following Bernier, the three part test is satisfied here. As indicated, the Field rule was assumed to apply prior to Fishbein, but there was no clear holding from any appellate court. Fishbein was the first time the Supreme or Appellate Court considered the issue directly. The second and third parts of the test are answered by the direction of Fishbein and cases cited therein that motor vehicle carnage due to drunk driving justified limiting the issues of the administrative hearing to the four factors. To continue to apply Field here would certainly not advance the applicability of the rule and would be inequitable as well.
In addition, Bjunes' argument is weakened by the case of Dolan v.Salinas, Superior Court, Judicial District of New Britain, Docket No. 0494202 (July 22, 1999). In Dolan, the driver was arrested for DWI on February 5, 1999, and took an administrative appeal from the suspension of his license, in part on the ground that the initial stop was illegal. Judge McWeeny upheld the Commissioner on July 22, 1999, before Fishbein
was decided. An appeal was taken to the Appellate Court. On March 29, 2000, Judge McWeeny's decision was affirmed by the Appellate Court in light of Fishbein. Dolan v. Salinas, Appellate Court, AC 19902 (March 29, 2000). This is a case where Fishbein was applied to an incident occurring before the date of the decision. The court does not believe it sufficient to show, as Bjunes has done by the filing of an affidavit, by Dolan's CT Page 6691 attorney, that the Appellate Court never had oral argument or briefs on the retroactivity issue. That Court's actions demonstrate that Fishbein
is the law and that it is applicable to incidents occurring before December, 1999.
The issue raised in Bjunes' second supplemental brief is one left open in Fishbein — whether the Connecticut Constitution mandates the application of the "exclusionary rule" of criminal procedure to license suspension hearings.4 Fishbein v. Kozlowski, supra, 252 Conn. 53, n. 10. Whether the exclusionary rule applies to administrative proceedings has long been unsettled. See, e.g., "Constitutional Law: The ExclusionaryRule in Administrative Proceedings," 2 Conn.L.R. 648 (1970). As most courts have indicated, the application of the exclusionary rule under the Connecticut Constitution (Article I, §§ 7, 9) to proceedings such as motor vehicle suspension hearings depends upon balancing "the interests of the parties with that of the police officers." Housing Authority ofCity of Stamford v. Dawkins, Superior Court, Judicial District of Stamford/Norwalk Housing Session at Norwalk, Docket No. SPNO-9502-16173 (May 10, 1995) (14 Conn.L.Rptr. 450); aff'd, 239 Conn. 793 (1997).
The Supreme Court in Fishbein concluded that under the federal constitution the application of the exclusionary rule to motor vehicle hearings is not required. Similarly, in Payne v. Robinson, 207 Conn. 565
(1988), the Supreme Court refused to apply the rule to probation revocation hearings. In finding the exclusionary rule inapplicable, the Court was obliged to look to the purpose of the rule — not to "redress the injury to the privacy of the search victim . . . [but to] deter future unlawful police conduct." Id., 570.
Bjunes argues that Article I, §§ 7, 9 of the Connecticut Constitution require the application of the exclusionary rule to motor vehicle suspensions. His argument to apply the exclusionary rule fails, however, in that he seeks privacy protections for those illegally stopped at check points, citing Article I, § 9 and State v. White, 229 U.S. 125
(1994). The issue of privacy, which is admittedly a central concern of the Fourth Amendment and also Article I, §§ 7, 9, has been resolved inFishbein. The operator is "not entitled to all of the procedural protections that would be available in a criminal proceeding." Fishbeinv. Kozlowski, supra, 252 Conn. 49.
As indicated above, the sole remaining issue from Fishbein is the application to suspension hearings of the state's criminal exclusionary rule, the purpose of which is "to deter future police misconduct by removing the principal inducement to that misconduct." State v. Brown,14 Conn. App. 605, 632 cert. denied, 208 Conn. 816 (1988). The purpose of deterrence is satisfied by applying the rule only to the criminal CT Page 6692 proceeding, and not to the administrative hearing. As Judge Tierney found in Dawkins in similar circumstances:
First the court finds that the application of the exclusionary rule to this . . . action would at best achieve only a marginal deterrent effect. Second it finds that the further exclusion of such seized evidence in this trial would not appreciably enhance the deterrent effect already created by the inadmissibility of the tainted evidence in a criminal trial. Third this court finds that the use of the seized evidence in this case falls outside the offending officer's zone of primary interest. The final finding is that the exclusion of such evidence will not significantly affect a police officer's motivation in conducting a search.
Housing Authority of city of Stamford v. Dawkins, supra, Superior Court, Docket No. SPNO-9502-16173.
Bjunes also relies upon the holding in State v. Marsala, 216 Conn. 150
(1990). In Marsala, the Connecticut Supreme Court refused to accept the federal good-faith exception to the exclusionary rule. Bjunes agues that such strict adherence to the original holdings of Fourth Amendment jurisprudence mandates that this court also apply the exclusionary rule to motor vehicle hearings.
The court in Marsala refused to give up the traditional view of the exclusionary rule — declining to say that a "close enough is good enough" standard applied instead of the "probable cause" standard — because of the effect it would have on the "warrant issuing process."State v. Marsala, supra, 216 Conn. 169. There was a fear that under a "good faith" exception, the police would not act with care in obtaining search warrants. Id.
This concern does not arise in the motor vehicle suspension process. Our Supreme Court has long emphasized a separation between the criminal drunk driving statutes and the administrative process. "On balance, we conclude that any deterrent purpose manifested by the legislative history of § 14-227b is incidental to its overall remedial purpose of removing from the highways those who have exhibited a propensity to drive while under the influence of alcohol." State v. Hickam, 235 Conn. 614,625 (1995). With this different purpose in the motor vehicle license suspension case, the concerns of Marsala may be relaxed.
This does not mean that the provisions of the federal and state CT Page 6693 constitutions may not be used in the criminal context. In this case Bjunes, according to his counsel at oral argument, moved to dismiss the criminal charge of DWI, citing State v. Mario P., No. 31 36 74 (1996) (setting forth standards for valid check stops) and was able to have his prosecution ended. We should not fear, as Bjunes suggests, that disallowing the exclusionary rule in the administrative context while allowing it in the criminal case will lead to police misconduct and overreaching. As the court in Fishbein declared: "In summary, we reject the plaintiffs argument envisioning wholesale arbitrary or discriminatory investigative stops." Fishbein v. Kozlowski, supra, 252 Conn. 55.
Bjunes has not pressed the arguments made in his original brief and the court has addressed those arguments made in his supplemental briefs. Therefore, the appeal is dismissed.
Henry S. Cohn, Judge | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3344973/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] RULING ON MOTION TO DISMISS
The issue presented is whether, on the facts of this case, the plaintiffs are required to have obtained a "release letter" from the Connecticut Commission on Human Rights and Opportunities ("CHRO") prior to bringing a cause of action in Superior Court. As there is no allegation of such a release in the complaint, the defendants have moved to dismiss those counts of the complaint which allege violations of § 46a-60 of the General Statutes. The plaintiff's claim that in the circumstances of this case it was impossible to obtain a release letter pursuant to §§ 46a-100 and 46a-101 of the General Statutes, so the prerequisite ought to be excused.
The plaintiffs' complaint alleges the following facts. The plaintiffs, Silvia and Cornel Calinescu, are husband and wife, and they are both originally from Romania. The defendant, Pegasus Management, Inc. (Pegasus), is a corporation doing business in CT Page 15484 the state of Connecticut, and is the parent company of the defendant, Olympus Healthcare Group, Inc. (Olympus). Olympus is a Massachusetts corporation which does substantial business in Connecticut.
On June 5, 1995, the plaintiffs began part-time, temporary employment with the Silver Springs Nursing Center (Silver Springs), as certified nursing assistants. Sometime in late 1997, or early 1998, Silver Springs merged or was purchased "by Pegasus and/or Olympus." (Pls' Cmplt ¶ 5.)
In September of 1995, the plaintiffs were made permanent employees of Silver Springs. Shortly thereafter, however, the plaintiffs allege that they began to be harassed by their coworkers. Particularly, both plaintiffs claim that they were harassed on the basis of their national origin, and Silvia Calinescu claims that she was harassed on the basis of her sex. The plaintiffs allege that they reported this harassment to their supervisors and union delegates, but no action was taken. In particular, the plaintiffs allege that "the defendants failed to act, investigate, warn, reprimand, and/or discipline the responsible parties with respect to the harassment." (Pls' Cmplt ¶ 9.)
Consequently, on September 11, 1997, Silvia Calinescu filed a complaint with the Connecticut Commission on Human Rights and Opportunities (CHRO) alleging claims of discrimination on the basis of her national origin and sex. The complaint, however, was rejected by the CHRO during its merit assessment review process. The plaintiff then filed a timely request for reconsideration. On February 23, 1998, however, the CHRO rejected the plaintiff's reconsideration request.
Thereafter, on April 28, 1998, the plaintiffs commenced this action against the defendants. The plaintiffs' nine count complaint alleges the following causes of action, respectively: (1) a violation of General Statutes § 31-49, or unsafe working environment; (2) breach of contract; (3) breach of the implied covenant of good faith; (4) a violation of Title VII (42 U.S.C. § 2000e et seq.) and General Statutes §§ 46a-60 and 46a-58, discrimination on the basis of sex (Silvia Calinescu only); (5) a violation of Title VII (42 U.S.C. § 2000e et seq.) and General Statutes §§ 46a-58 and 46a-60, discrimination on the basis of national origin (Silvia Calinescu only); (6) negligent infliction of emotional distress; (7) CT Page 15485 intentional infliction of emotional distress; (8) negligent supervision; and (9) wrongful discharge in violation of public policy.
Presently, the court is concerned only with the defendant's motion to dismiss the fourth and fifth counts of the plaintiff Silvia Calinescu's ("the plaintiff") complaint alleging claims for discrimination based upon her national origin and sex.
The defendants argue in support of their motion to dismiss that since the plaintiff has not pleaded that she received a release of jurisdiction from the CHRO to bring her private cause of action for discrimination, the court lacks subject matter jurisdiction over the fourth and fifth counts of the complaint. Specifically, the defendants argue that a release of jurisdiction from the CHRO to commence a civil action for discrimination, pursuant to General Statutes §§ 46a-100 and 46a-101, is a condition precedent to the commencement of such an action in superior court. Therefore, the plaintiff's failure to plead that she received such a release from the CHRO deprives this court of subject matter jurisdiction, and the defendants' motion to dismiss must be granted.
Additionally, the defendants' argue that the plaintiff has not received permission from the Equal Employment Opportunity Commission (EEOC) to bring her Title VII discrimination claims in counts four and five, and as such, the court lacks subject matter jurisdiction over both claims.
The plaintiff does not contend that she has alleged in her complaint that she received a release of jurisdiction from the CHRO. In fact, the plaintiff admits that she has never received a release of jurisdiction from the CHRO.1 Nonetheless, the plaintiff argues that this court has subject matter jurisdiction over her discrimination claims. The plaintiff claims that because she could not, prior to the commencement of this action, obtain a release of jurisdiction pursuant to General Statutes §§ 46a-100 and 46a-101, the two statutes are inapplicable to this action. Additionally, the plaintiff argues that pursuant to 42 U.S.C. § 2000e-5c, the CHRO, and not the EEOC, is afforded the initial opportunity to investigate complaints of discrimination. Thus, in the initial processing of discrimination complaints, the CHRO acts on its own behalf, as well as the EEOC's, in determining the merits of a discrimination claim. Therefore, the plaintiffs argue, a dismissal of a claim by the CT Page 15486 CHRO acts as a dismissal of a claim by the EEOC, and the plaintiff is not required to secure permission from the EEOC to commence this action in superior court with respect to her Title VII claims.
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Emphasis in original; internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 544,590 A.2d 914 (1991). "Jurisdiction of the subject-matter is the power [of the court] to hear and determine cases of the general class to which the proceedings in question belong." (Internal quotation marks omitted.) Konover v. Town of West Hartford, 242 Conn. 727,740, 699 A.2d 158 (1997). "[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented . . . and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Community Collaboration ofBridgeport, Inc. v. Ganim, 241 Conn. 546, 552, 698 A.2d 245
(1997).
I. Connecticut Fair Employment Practices Act
General Statutes § 46a-100 provides in pertinent part: "Discriminatory employment practices. Causes of action upon release from commission. Any person who has timely filed a complaint with the Commission on Human Rights and Opportunities in accordance with section 46a-82, alleging a violation of section 46a-60 and who has obtained a release from the commission in accordance with section 46a-101, may also bring an action in the superior court . . ." In the present action, there is no dispute that the plaintiff timely filed her complaint with the CHRO, or that she alleged violations of General Statutes § 46a-60 in her CHRO complaint. It is likewise undisputed that she did not receive a release.
Consequently, the court is concerned with the plaintiff's failure to obtain the requisite CHRO release of jurisdiction in accordance with General Statutes § 46a-101. General Statutes § 46a-101(b) provides in pertinent part: "The complainant, or his attorney, may request a release from the commissioner if his complaint with the commission is still pending after the expiration of two hundred ten days from the date of its filing." CT Page 15487
Here, the plaintiff filed her complaint with the CHRO on September 11, 1997. Although it is unclear precisely when the CHRO actually dismissed the plaintiff's complaint because it "violated [m]erit [a]ssessment," it appears that the dismissal occurred sometime in December, 19972 Thereafter, the plaintiff filed a timely request for reconsideration of the decision to dismiss the complaint. The CHRO, however, denied the plaintiff's request for reconsideration on February 23, 1998. (Pl.'s Cmplt ¶ 25.)3 Thereafter, on April 28, 1998, the plaintiffs commenced this action against the defendants.
It is well established in Connecticut that a party may not institute an action in the superior court without first exhausting available administrative remedies. Hyatt v. Milford,26 Conn. App. 194, 197, 600 A.2d 5, cert. dismissed,224 Conn. 441, 619 A.2d 450 (1993). "It is a settled principle of administrative law that, if an adequate administrative remedy exists, it must be exhausted before the Superior Court will obtain jurisdiction to act in the matter." (Emphasis added; internal quotation marks omitted.) Pet v. Dept. of HealthServices, 207 Conn. 346, 350-01, 542 A.2d 672 (1988).
There are exceptions, however, to this general rule.Sullivan v. Board of Police Commissioners, 196 Conn. 208, 216-17,491 A.2d 1096 (1985); see Conto v. Zoning Commission,186 Conn. 106, 115, 439 A.2d 441 (1982) (resort to administrative remedy not required when remedy plainly inadequate); Mathews v. Diaz,426 U.S. 67, 76-77, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976) (administrative remedy not required when issue presented beyond competency of the agency). Here, neither party contends that the plaintiff's discrimination claims fall into any recognized exception to the exhaustion doctrine.
Specifically, the plaintiff does not claim that her administrative remedy was inadequate. See Conto v. ZoningCommission, supra, 186 Conn. 115. Nor does she claim that the CHRO lacked expertise over her claims; Mathews v. Diaz, supra, 426 U.S. 76-77; or that the exhaustion of her administrative remedies would have been futile. Hunt v. Prior, 236 Conn. 421, 431-32, 673 A.2d 514 (1996). Instead, the sole issue before the court is whether a plaintiff who files a complaint with the CHRO in a timely fashion, but whose complaint is dismissed by the CHRO before the plaintiff may be statutorily eligible for a release and therefore has not obtained a release, is able to commence an original discrimination action in superior court. CT Page 15488
"The purpose of the exhaustion requirement is to encourage the use of grievance procedures, rather than the courts, for settling disputes. A contrary rule which would permit an individual employee to completely sidestep available grievance procedures in favor of a lawsuit has little to commend it." (Emphasis added; internal quotation marks omitted.) Hunt v.Prior, supra, 236 Conn. 431-32, 673 A.2d 514 (1996). "The exhaustion doctrine reflects the legislative intent that . . . issues be handled in the first instance by . . . administrative officials in order to provide aggrieved persons with full and adequate administrative relief, and to give the reviewing court the benefit of the [administrative official's] judgment." (Emphasis added; internal quotation marks omitted.) Simko v.Ervin, 234 Conn. 498, 504, 661 A.2d 1018 (1995).
Although this is not an action in which the plaintiff has sidestepped the administrative process by failing to first pursue her administrative remedies with the CHRO before commencing a civil action in superior court; see, e.g., Sullivan v. Board ofPolice Commissioners, supra, 196 Conn. 217-18 (plaintiff's failure to even pursue administrative remedies deprived court of subject matter jurisdiction); Dinegar v. University of New Haven, Superior Court, judicial district of New Haven at New Haven, Docket No. 378256 (October 16, 1997, Silbert, J.) (plaintiff did not file claim with CHRO before commencing civil action); Matejekv. New England Tech. Ins. of Conn., Inc., Superior Court, judicial district of New Haven at New Haven, Docket No. 404320 (April 7, 1998, Blue, J.) (plaintiff never filed complaint with CHRO); Amador v. City of Hartford, United States District Court, Docket No. 1736 (Dis. of Conn., February 10, 1998) ("[p]laintiffs do not dispute they failed to file a complaint with the CHRO"); it is nonetheless clear that a release, for whatever set of circumstances, has not been obtained.
In support of their arguments, the parties have identified two cases which appear to be somewhat on point and which reach apparently irreconcilable results. The defendants direct the court's attention to the case of Catalano v. Bedford Assoc.,Inc., United States District Court, Docket No. 1414 (Dis. of Conn., April 28, 1998). In Catalano v. Bedford Assoc., Inc., supra, the court held that a plaintiff who had commenced a civil action in district court, after his complaint was dismissed by the CHRO, had not met the plain requirements of General Statutes §§ 46a-100 and 46a-101(b) because he failed to obtain a CHRO CT Page 15489 release of jurisdiction.4 Thus, the court granted the defendant's motion to dismiss the plaintiff's discrimination claims for lack of subject matter jurisdiction.
Conversely, the plaintiff cites the decision of Denning v.Admarket International, supra, Superior Court, Docket No. 343964, 22 CONN. L. RPTR. 440, in support of her argument. In Denning v.Admarket International, supra, the court held that a plaintiff who had not obtained a release of jurisdiction from the CHRO, although the CHRO had dismissed her discrimination claims, had sufficiently exhausted her administrative remedies under the Connecticut Fair Employment Practices Act (CFEPA). Therefore, the court denied the defendant's motion to dismiss the plaintiff's discrimination claims.
Although neither decision is binding on this court, the court finds the analysis and reasoning of Catalano the more persuasive. In Catalano, the plaintiff, alleging a violation of CFEPA (specifically § 46a-60), asserted that a release letter was not required because his complaint to the CHRO was dismissed. He claimed that he had exhausted his administrative remedies, then, and was entitled to bring the original action in court. The court, Dorsey, U.S.D.J., succinctly stated that under Connecticut law, courts have subject matter jurisdiction over a CFEPA claim only if the plaintiff timely files a discrimination complaint with the CHRO and the plaintiff obtains a release from the commission to file suit (citing Luth v. Wal-Mart Stores, Inc., 1995 Conn. Super. LEXIS 2403, 1995 WL 506076 (Aug. 18, 1995). Judge Dorsey went on to hold, quite simply, that "[s]ubject matter jurisdiction does not exist where a plaintiff has not obtained a release from the CHRO and has `therefore hailed to comply with the clear and unambiguous statutory prerequisite embodied in [§ 46a-101] . . .'" (citing Mehta v.Wiremold Co., 1995 Conn. Super. LEXIS 834, 1995 WL 128222 (March 15, 1995).
The jurisdictional requirements set forth in §§ 46a-100 and 46a-101 are clear and unambiguous, and, in a closely related context, our Supreme Court has held that similar requirements are mandatory. Angelsea Productions, Inc. v. CHRO, 236 Conn. 681
(1996); see also Kinkade v. Wiseman, 1997 Conn. Super. LEXIS 3532 (December 30, 1997). As noted by Judge Blue in Matejak v. NewEngland Technical Institute of Connecticut, Inc., 1998 Conn. Super. LEXIS 998 (1998), "[n]o statute allows a complainant to file an original action in the Superior Court in the absence of such a release. The statutory scheme . . . makes it clear that CT Page 15490 the legislature neither contemplated nor authorized such a procedure."
Although it may or may not be true that in the circumstances of this case the plaintiff was unable to obtain a release and thus unable to file an original action in this court, there is no overwhelming injustice. The plaintiff presumably could have filed an appeal from the order dismissing the complaint. See, e.g.,Haylett v. CHRO, 207 Conn. 547 (1988). It would appear that a primary purpose of the release procedure is to allow plaintiffs a theoretically speedy redress if, because of administrative backlogs, the commission is not able to address complaints in an expeditious manner: if, therefore, a complaint has been languishing for the requisite time, the complaint, with the approval of the commission, may be "released" for judicial action. If the commission does act in an expeditious manner, there would seem to be no compelling reason why the matter should not be treated as any other administrative appeal. It indeed runs somewhat contrary to traditional notions of administrative law to allow a litigant to pursue the administrative forum, lose, and then start all over again in Superior Court. The motion to dismiss is granted as to the CFEPA claims.
II. Title VII
The defendants have also moved to dismiss the plaintiff's Title VII claims in counts four and five on the ground that the plaintiff has failed to obtain a release, or "right-to-sue" letter, from the EEOC. Therefore, the defendants argue that the plaintiff's failure to plead that she satisfied this statutorily prescribed condition precedent to bringing a Title VII claim, deprives the court of subject matter jurisdiction.
The plaintiff counters that pursuant to 42 U.S.C. § 2000e-5(c), the CHRO, not the EEOC, is afforded the initial opportunity to investigate complaints of discrimination. Consequently, since the CHRO acts on its own behalf, as well as the EEOC's in processing discrimination complaints, a dismissal of a claim by the CHRO acts as a dismissal of a claim by the EEOC. Therefore, the plaintiff was required to secure permission from the EEOC to commence this action in superior court with respect to her Title VII claims. Criales v. American Airlines,105 F.3d 93 (2d. Cir. 1997); Butler v. Knights of Columbus, 3 Conn. Ops. 1318 (D. Conn. 1997). I found no support for the plaintiff's proposition that simply because the CHRO dismissed CT Page 15491 the plaintiff's discrimination claims, she is not required to satisfy the Title VII requirements for bringing a federal discrimination claim. To the contrary, I found ample support for the proposition that in order for a claimant to bring a Title VII in action in civil court, the claimant must meet two requirements: (1) the claimant must timely file her claim with the EEOC, and (2) she must timely institute her action after receipt of a right-to-sue notice. See 42 U.S.C § 2000e-5(f)(1);Alexander v. Gardner-Denver Co., 415 U.S. 36, 47,94 S.Ct. 1011, 39 L.Ed.2d 147 (1974) (prerequisite to suit under Title VII includes EEOC right to sue letter); McDonnell Douglas Corp. v.Green, 411 U.S. 792, 798, 93 S.Ct. 1822, 36 L.Ed.2d 668 (1973) (prerequisite to suit under Title VII includes EEOC right to sue letter); Austin v. Ford Models, Inc., (2nd Cir. 1998) (claimant must file with EEOC and obtain right to sue letter);Criales v. American Airlines, Inc., 105 F.3d 93, 95 (2nd Cir. 1997) ("the prerequisites for a suit under Title VII include a timely filed . . . charge [to the EEOC] and timely institution of the suit after receipt of a right-to-sue notice"); Holt v.KMI-Continental, Inc., 95 F.3d 123, 127 (2nd Cir. 1996) ("[o]nce a claimant has received a right to sue letter from the EEOC, suit must be filed within ninety days").
Accordingly, the defendants' motion to dismiss the plaintiff's Title VII claims in counts four and five of the complaint is granted, as the plaintiff has not received a "right-to-sue" letter from the EEOC, as required by 42 U.S.C § 2000e-5(f)(1). Counts four and five are dismissed.
Beach, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2266775/ | 238 P.3d 812 (2008)
GALE
v.
MESFIN.
No. 51382.
Supreme Court of Nevada.
September 30, 2008.
Decision Without Published Opinion Dismissed-Stipulation. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381658/ | 259 S.E.2d 919 (1979)
44 N.C. App. 31
STATE of North Carolina
v.
Kirkwood Preston KING.
No. 7929SC542.
Court of Appeals of North Carolina.
November 20, 1979.
*920 Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. Charles J. Murray, Raleigh, for the State.
Ladson F. Hart, Brevard, for defendant-appellant.
ARNOLD, Judge.
The sole issue on this appeal is whether the court erred in allowing into evidence the objects seized in the search of defendant's residence. Defendant argues that they were inadmissible because the application underlying the search warrant was insufficient, both for failure to provide information to establish the reliability and credibility of the informants and for the staleness of the information it contained.
Deputy Sheriff Rickman's application of 24 August 1978 for a warrant to search defendant's residence contained the following allegations to establish probable cause: (1) A confidential informant, who had in the last two months given reliable information leading to a felony arrest, told Rickman on 17 July 1978 that the informant had been present at defendant's house in early July 1978 when a Gary Leatherwood bought controlled substances from defendant. (2)(a) On 29 July 1978, Mike and Gail Lawson told Rickman that David Hunnicutt, "a drug user," had told them he knew a fellow named Kirk who lived in Saluda, North Carolina, and who had 50 pounds of marijuana for sale in his house. (b) The Lawsons were present on 29 July when Hunnicutt called defendant and discussed a sale of Valium and speed. (3)(a) On 3 August 1978 Tommy Guin told Rickman that on 12 July 1978 he and Hunnicutt went to defendant's house, where he smoked marijuana defendant gave him and bought Valium tablets from defendant. (b) Hunnicutt wanted to buy 30 Valium tablets but didn't have the money. (4) Within the last two weeks, Rickman and other officers had seen a great many cars come to defendant's premises and stay a short while. (5)(a) Within the hour before Rickman applied for the search warrant, he saw many cars parked near defendant's residence and heard music coming from inside. (b) Rickman had received "confidential and reliable" information that defendant had drug parties at these premises.
The United States Supreme Court indicated in Aguilar v. Texas, 378 U.S. 108, 114-15, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723, 729 (1964), that an affidavit supporting an application for a search warrant must inform the magistrate of "some of the underlying circumstances from which the informant concluded that the [contraband was] where he claimed [it was], and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, [cite omitted] was `credible' or his information `reliable.'" The court referred to the affidavit found sufficient in Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), as an example. Defendant in the present case argues that none of the elements of Rickman's application meets the Aguilar test.
The information in allegation (1) of the application is sufficient to establish probable cause, at least in "early July 1978." (The "staleness" issue will be discussed later.) The informant personally observed the criminal activity, see United States v. Harris, 403 U.S. 573, 579, 91 S.Ct. 2075, 2079-80, 29 L.Ed.2d 723, 731 (1971), and he had furnished reliable information to Rickman in the past. See Jones v. United States, supra, 362 U.S. at 271, 80 S.Ct. at *921 736, 4 L.Ed.2d at 708. Allegation (3)(a) is also found sufficient, at least on 12 July, since it relates underlying circumstances discovered by the informant's personal observation, and since the information about drug buys from defendant was against the informant's penal interest. G.S. 90-92(a) 7; G.S. 90-95(a)(3) and (d)(2); Physician's Desk Reference 1416 (32d ed. 1978); see United States v. Harris, supra, 403 U.S. at 583-84, 91 S.Ct. 2082, 29 L.Ed.2d 734. The sufficiency of allegation 2(b), standing alone, might be questionable, but even if insufficient it may be considered in the magistrate's determination. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, (1969).
The test for "staleness" of information underlying a search warrant is whether the facts indicate probable cause at the time the warrant issues. Sgro v. United States, 287 U.S. 206, 53 S.Ct. 138, 77 L.Ed. 260 (1932). While allegations (1) and (3), describing as they do defendant's activities "in early July" and "on 12 July" might not support the issuance of a warrant on 24 August, when allegations (1), (2)(b), and (3) are considered together, they indicate on defendant's part a pattern of drug sales extending over some weeks and dealing with various controlled substances. Allegation (4), considered in conjunction with this pattern, allows the reasonable inference that the drug sales continued into the two weeks prior to the issuance of the warrant. The United States Supreme Court in United States v. Harris, supra, upheld a warrant where the application indicated that an informant had purchased illicit whiskey from defendant at his residence "within the past two weeks," saying "here the informant's admission that over a long period and currently he had been buying illicit liquor on certain premises, itself and without more, implicated that property and furnished probable cause to search." Id. 403 U.S. at 584, 91 S.Ct. 2082, 2082, 29 L.Ed.2d 734. Although the information in allegation (4) in the present case is not as specific as that in Harris, the Harris reasoning applies to the case now before us. We hold that Rickman's application provided adequate support for the magistrate's finding of probable cause, and that in the admission into evidence of the fruits of the search there was
No error.
WEBB and WELLS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2573846/ | 210 P.3d 726 (2007)
FUQUA
v.
DIST. CT. (WILLIAMS).
No. 48663.
Supreme Court of Nevada.
January 11, 2007.
Decision without published opinion. Petition Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3086598/ | Fourth Court of Appeals
San Antonio, Texas
JUDGMENT
No. 04-14-00188-CR
Mike DAVIS,
Appellant
v.
The STATE of Texas,
Appellee
From the 175th Judicial District Court, Bexar County, Texas
Trial Court No. 2011CR0287
Honorable Mary D. Roman, Judge Presiding
BEFORE CHIEF JUSTICE MARION, JUSTICE ANGELINI, AND JUSTICE ALVAREZ
In accordance with this court’s opinion of this date, the judgment of the trial court is
AFFIRMED, and appellate counsel’s motion to withdraw is GRANTED.
SIGNED January 28, 2015.
_____________________________
Sandee Bryan Marion, Chief Justice | 01-03-2023 | 10-16-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1726521/ | 970 So. 2d 473 (2007)
STATE of Florida, Appellant,
v.
Solomon BERNSTEIN, Appellee.
No. 4D06-4663.
District Court of Appeal of Florida, Fourth District.
December 12, 2007.
Bill McCollum, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellant.
John G. George of John G. George, P.A., Ft. Lauderdale, for appellee.
PER CURIAM.
Reversed. State v. Buttolph, 969 So. 2d 1209 (Fla. 4th DCA 2007).
POLEN, KLEIN and MAY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381782/ | 151 Ga. App. 171 (1979)
259 S.E.2d 172
WALLACE
v.
THE STATE.
58237.
Court of Appeals of Georgia.
Submitted July 3, 1979.
Decided September 4, 1979.
John Knight, for appellant.
William S. Lee, District Attorney, Hobart Hind, Assistant District Attorney, for appellee.
DEEN, Chief Judge.
Appellant was tried by a jury and convicted of child molestation. He brings this appeal contending that the trial court erred in permitting his wife to give hearsay testimony.
Appellant's daughter, a child about nine years of age, testified to defendant's acts in molesting her and was extensively cross examined. The state then called Mrs. Wallace who testified that on the date of the alleged crime she was taken to work by her husband, and about 3:55 that afternoon appellant, accompanied by their three children, picked her up at work. When she got in the car she observed that their daughter ". . . was looking real wild with . . . big eyes and her hair sticking out, and I said `what is wrong with your hair,' and Butler didn't give her a chance to answer; he said, `She's just been playing rough, you know how she is.'" She further testified that while on the way home her husband decided to stop at a friend's house for a drink and left her with the children in the car. After about 10 minutes, she went inside the house to get her husband. They finally arrived home about 4:20 and he left about 4:45 to go to a friend's house. After her father left, the child sought out her mother, gave her an account of the incident which occurred between one and two hours earlier, and repeated her father's threat to kill her if she told her mother.
Appellant objected to the child's statement to her mother as hearsay, but the trial court ruled that it was part of the res gestae, and the mother was allowed to repeat the statement at trial. Held:
Code Ann. § 38-305 defines res gestae testimony as follows: "Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of res gestae." However, "[n]o precise time can be fixed a priori when the res gestae ends, but each case must turn on its own circumstances, the inquiry being rather into events than to the precise time which has elapsed." Turner v. State, 212 Ga. 199, 200 (91 SE2d 501) (1956). It is not afterspeech that the law distrusts but afterthought. *172 Bunn v. State, 144 Ga. App. 879 (243 SE2d 105) (1978). In the present case, the statement was in narrative form rather than an outburst. "Where a statement is narrative rather than exclamatory, `the circumstances must be closely scrutinized, because narrative is generally the result of afterthought.' Southern R. Co. v. Brown, 126 Ga. 1, 4 (54 SE 911). Other cases have more generally condemned narrative statements: `The real test is: were the declarations a part of the occurrence to which they relate, or were they a mere narrative concerning something which had fully taken place and had therefore become a thing of the past?' Western & A. R. Co. v. Beason, 112 Ga. 553, 557 (37 SE 863); Peebles v. State, 236 Ga. 93 (2) (222 SE2d 376). Much of the case law on res gestae declarations is founded upon Justice Nisbet's interpretation in Mitchum v. State, 11 Ga. 615, 627: `If the declarations appear to spring out of the transaction if they elucidate it if they are voluntary and spontaneous, and if they are made at a time so near to it, as reasonably to preclude the idea of deliberate design, then they are to be regarded as contemporaneous.'" Clark v. State, 142 Ga. App. 851, 852 (237 SE2d 459) (1977). In Clark v. State, supra, the court applied the standards spontaneity, voluntariness, closeness in time, freedom from suspicion of device or afterthought and after closely scrutinizing the declaration's narrative character, found that the statement made by a boy to his father about forty minutes after a sexual assault by a third party did not come within the res gestae exception. The child had been brought home scared and crying to his parents and the father went looking for the perpetrator. The child calmed down while he was at home with his mother, but did not make any statement. Only after intense questioning by his father en route to the police station did the child give an account of the incident. The court recognized that "[t]he conclusion might very well be different had the child told what had happened in an immediate outcry or even shortly after being calmed down." Id at 853.
In the present case, the crime was allegedly committed by the father and not by a third party. The mother testified that she noticed something strange about the child the moment that she got in the car. Although *173 appellant argues that the child could have reported the crime to the mother during his ten-minute absence from the car, we do not believe this time interval is fatal; the father had threatened to kill the child if she reported the incident and she had no way of knowing when he would return to the car. The child, however, did report the incident to her mother as soon as she knew that the father had left the house.
If it is not error to admit the statement of a rape victim made to a police officer as a part of the res gestae when it was her first opportunity to tell a law enforcement officer of what had occurred, Jackson v. State, 225 Ga. 39 (165 SE2d 711) (1969), we do not believe that it is error to admit the statement of a child made to her mother shortly after an assault occurs when it is the child's first opportunity to report the offense outside the presence of the perpetrator. "`What is res gestae of a given transaction must depend upon its own peculiarities of character and circumstances. Courts must be allowed some latitude in the matter. [Cit.] Declarations of a party, to be admitted as part of the res gestae, must be at the time of the transaction they are intended to explain; must be calculated to unfold its nature and quality, and must harmonize with it.' [Cit.]" Standard Oil Co. v. Reagan, 15 Ga. App. 571 (2) (84 SE 69). "The admissibility of such declarations does not depend upon any arbitrary time or general rule for all cases, but is left to the sound discretion of the court in determining from the time, circumstances and statements in question, whether declarations meet the requirements of being free from `all suspicion of device or afterthought.' [Cit.]" Aetna Life Ins. Co. v. Jones, 80 Ga. App. 472, 479 (56 SE2d 305) (1949). It is also a well established rule of law that if the admissibility of evidence is doubtful, the rules of evidence require that the evidence be admitted and its weight and effect left to the jury. Purser v. McNair, 153 Ga. 405 (112 SE 648) (1922).
After carefully examining the testimony of the child and the mother we find no substantial discrepancy in the testimony of the two witnesses. Any slight deviation between the two accounts as to the sequence of the events merely goes to the credibility of the witnesses and not the admissibility of the evidence. See Leach v. State, 143 Ga. *174 App. 598 (239 SE2d 177) (1977).
Accordingly, this judgment must be affirmed.
Judgment affirmed. Birdsong and Carley, JJ., concur. Shulman, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266810/ | 4 F.Supp. 216 (1933)
UNITED STATES, for Use and Benefit of BELMONT,
v.
MITTRY BROS. CONST CO. et al. (TWIN FALLS NORTH SIDE INV. CO., Intervener).
UNITED STATES, for Use and Benefit of KRENGEL,
v.
HARKINS et al. (WILLIS et al., Interveners).
Nos. 1690, 1722.
District Court, D. Idaho, S. D.
June 20, 1933.
*217 H. B. Redford and H. A. Baker, both of Rupert, Idaho, for plaintiff Belmont and intervener Twin Falls North Side Inv. Co.
Ray D. Agee, of Twin Falls, Idaho, for plaintiff Krengel and interveners Willis and others.
Chapman & Chapman, of Twin Falls, Idaho, for defendants.
CAVANAH, District Judge.
These cases were consolidated for trial as they were brought by the United States for the benefit of persons who furnished labor and materials against Mittry Bros. Construction Company and the Fidelity & Deposit Company of Maryland in case No. 1690, and against Willam Harkins, Mittry Bros. Construction Company, and the Fidelity & Deposit Company in case No. 1722. They were tried and argued together, and may well be disposed of by the same opinion.
In case No. 1690 about October 1, 1929, Mittry Bros. Construction Company entered into a contract with the United States for the construction of the Millner Canal diverting water from Snake river. The work is known as "The Gravity Extension of the Minidoka Reclamation Project." The Fidelity & Deposit Company executed, under the act of Congress (40 USCA § 270), the standard government form of performance bond. The Twin Falls North Side Investment Company has intervened and seeks to recover for hay sold and on a number of assigned claims for labor and material used in the prosecution of the work. About July 1, 1930, William Harkins entered into a subcontract with Mittry Bros. Construction Company for the construction of a section of the canal across a depression requiring dirt to be hauled in, and which was situate a considerable distance from any town where adequate boarding facilities could be had for the men. Camp No. 2 was established where the men and horses employed were cared for and fed, and groceries for the camp were furnished from Longinberger & Belmont at Hazelton.
*218 In case No. 1722, the situation is practically identical with case No. 1690, except as to the different part of the canal that was under construction. The contract there between Mittry Bros. Construction Company and the United States was entered into on May 27, 1929, and the bond given by the Fidelity & Deposit Company to secure performance of the contract was on June 1, 1929. A number intervened seeking to recover for labor and materials furnished and used in the prosecution of the work which was carried on at camp No. 1. The work performed in that case was completed first, and then the same employees and horses used there were moved down on camp No. 2 and continued the work covered by the contract referred to in case No. 1690.
The defendants contend:
(a) In case No. 1722 the suit was not timely brought.
(b) If plaintiff and interveners are entitled to recover, they are only entitled to interest on their claims from date of suit.
(c) Materials and supplies furnished by claimants and used in the boarding house maintained by the subcontractor Harkins are not recoverable under the bond.
(d) Payments made by subcontractor Harkins must be applied to those claims covered by the bond.
(e) Only those who furnished labor and material that went into the construction covered by the bond come within the benefit of the act.
These contentions will be disposed of in their order.
A. Case No. 1722 was commenced on February 26, 1932, and the complaints in intervention were filed on March 5, 1932. There was one contract and bond covering all of the work, which was completed and finally settled on March 16, 1931. The contract and specification 489 are divided into Schedules 2, 3, 4, 8, and 9, which the United States paid Mittry Bros. for the work performed thereunder, on Schedule 2 on October 9, 1930, on Schedules 3 and 9 on November 4, 1930, on Schedule 4 on March 16, 1931, and on Schedule 8 on April 3, 1930. The last payment made by the United States for work done on that contract was for final settlement of Schedule 4, and was the last schedule to be completed and settled for under the contract. Thus the evidence discloses that the completion and final settlement of the contract was on March 16, 1931, as determined by the proper authority of the government, and the action was commenced on February 26, 1932, within a period of one year as required by the statute. The statute does not contemplate the running of it from the time the schedules are completed but from the date of the completion and final settlement of the entire contract, and those who have furnished materials and labor used in the construction of the work may bring their suit within the one-year period.
The statute we are considering (40 USCA § 270) provides: "That where suit is instituted by any of such creditors on the bond of the contractor it shall not be commenced until after the complete performance of said contract and final settlement thereof, and shall be commenced within one year after the performance and final settlement of said contract, and not later." The words "final settlement and complete performance" used in the statute relate to the time when the amount due under the contract is determined by the appropriate administrative authority and when the work covered by the contract has been finally completed. Illinois Surety Co. v. U. S., to Use of Peeler, 240 U. S. 214, 36 S. Ct. 321, 60 L. Ed. 609; Mandel v. U. S. (C. C. A.) 4 F.(2d) 629.
The defendants assert that, as bids were considered by the United States on all or any number of the schedules and bidders could make stipulations as they desired regarding combinations of schedules, and when each schedule was completed the work thereunder was paid for, shows that they were separate and distinct contracts as to each schedule, and that, as Harkins having performed all of his work upon Schedules 2, 3, 8, and 9, and having performed no work upon Schedule 4, suit was filed too late. This argument would, without doubt, prevail had the United States entered into separate contracts for each schedule, but that was not done, as there was but one contract entered into between the United States and Mittry Bros. Construction Company covering all of these schedules, which included Schedule 4 that was completed and final settlement made by the appropriate administrative authority of the government on March 16, 1931, and brings the commencement of the action within the statutory period of one year. We must not forget that the bond sued upon here was given to secure the entire contract between the United States and Mittry Bros. Construction Company covering all of the schedules and not a portion of them. The mere fact that the United States called for bids for each schedule and settled for the work done *219 under each as the work progressed would not justify the conclusion that there was a separate contract as to each schedule.
B. The theory upon which a surety on a bond is held liable for interest is determined by the laws of the state allowing interest at the rate of 7 per cent. per annum from the date the account becomes due. Section 26-1904, I. C. A. The Supreme Court has settled this question in the case of Illinois Surety Co. v. John Davis Co., 244 U. S. 376, 37 S. Ct. 614, 617, 61 L. Ed. 1206, where it is said: "The contract and bond were made in Illinois and were to be performed there. Questions of liability for interest must therefore be determined by the law of that state. Scotland County v. Hill, 132 U. S. 107, 117, 10 S. Ct. 26, 33 L. Ed. 261, 265. Under the law of Illinois the liability of a surety on a bond is extended beyond the penalty by way of interest from the date when the liability on the bond accrued. Holmes v. Standard Oil Co., 183 Ill. 70, 55 N. E. 647. See United States v. U. S. Fidelity Co., 236 U. S. 512, 530, 531, 35 S. Ct. 298, 59 L. Ed. 696, 704, 705." See, also, State v. Title Guaranty & Surety Co., 27 Idaho, 752, 152 P. 189; United States, to Use of Taylor v. Fidelity & Deposit Company (D. C.) 4 F. Supp. 211; 50 C. J. 90.
The surety company urges that the amount each claimant is to receive, if any, has at all times been in dispute, and could not have been made definite until it was actually decided by the court, and no demand was made upon it for payment until suit was commenced, and therefore should not bear interest until from the commencement of suit. This contention seems to have support in the cases of Illinois Surety Co. v. John Davis Company, supra; United States v. United States Fidelity & Guaranty Co., 236 U. S. 512, 35 S. Ct. 298, 59 L. Ed. 696; and United States, for Use of Baltimore Cooperage Co. v. McCay (D. C.) 28 F.(2d) 777, and whatever claims are recoverable under the bond will bear interest at the legal rate allowed by the state statute from the time of the commencement of the suit.
C. The work Harkins was engaged to do was located between the towns of Dietrich and Eden and about fifteen miles from Eden and ten miles from Dietrich. There was no boarding house at these towns, making it necessary for the subcontractor to provide board and lodging for the laborers. Groceries and provisions and feed for the horses were used in the prosecution of the work. The disputed question is whether the camps where the work was done were located at such distances from any place where these supplies for boarding the men and feeding the horses could be secured that they had to be transported. A boarding house conducted by the subcontractor as an independent enterprise, undertaken solely for an additional profit and not as an integral part of the work, and involving in it the furnishing of the groceries consumed by the men on the work and feed for the horses, would not be materials supplied and used in the prosecution of the work to establish the condition essential to liability on the bond. These camps were located in the desert and at the site of the work. Practically all of the work done was with horses, making it impractical to have driven them from these towns every day and return for care, feed, and water. The transporting of the men to and from the towns would have been costly, as they would have had to have been transported in trucks, and the supplies furnished under the circumstances were necessary and clearly used in the prosecution of the work.
D. The case is controlled by the federal act and the obligations of the bond which requires payment to all persons supplying labor and material in the construction of the work contemplated by the contract, and includes, not only the contractor and subcontractor, but any one who furnishes labor and material to the contractor or subcontractor used in the construction of the work contracted for. U. S., for Use of Hill v. American Surety Company, 200 U. S. 197, 26 S. Ct. 168, 50 L. Ed. 437; Mankin v. U. S. to Use of Ludowici-Celadon Company, 215 U. S. 533, 30 S. Ct. 174, 54 L. Ed. 315; Illinois Surety Company v. John Davis Co., 244 U. S. 376, 37 S. Ct. 614, 61 L. Ed. 1206.
It appears that Harkins had prior to July and August, 1930, done other work for Mittry Bros.; that payments on account were made at frequent intervals without indicating they were made for services rendered under any particular contract. In their dealings payments were applied to the payment of claims in the order of their accrual. The evidence is silent as to Mittry Bros. paying Harkins any of the money received from the government on the contract. Harkins was receiving money at the same time from Mittry Bros. under the Phillips subcontract. Mittry Bros. were unable to say where the money was used when they paid Harkins on the bonded contract. The creditors who were dealing with Harkins were unacquainted with the various dealings between Mittry Bros. and *220 Harkins. It will be remembered that Mittry Bros. had two contracts with the government which were insured by the defendant surety company and the same creditors furnished materials and performed labor on both jobs. It would therefore seem to make no difference so far as the liability of the defendant surety is concerned how the application of the payments are applied. If the creditors had applied the payments during July and August, 1930, to payment of bills for materials delivered at camp 2 during those months, and had treated bills for like amounts delivered to camp 1 unpaid, the defendants would still have been liable to the same creditors in the same amounts but under both contracts. If the surety is permitted to direct the application of the payments, it could only be to avoid a loss to it. Such would not be the case here, for the defendants were answerable for the obligations upon which the payments were applied. In a transaction like this, the surety had ample facilities for protecting itself. It could have reserved and exercised a surveillance over the disbursement of the proceeds of the contract for the performance of which it is surety. Those furnishing labor and materials could not do so. They have a right to rely upon the bond to protect them against such contention here made under the statute and conditions of the bond. The bond specifies that the contractor will pay all materials and labor claims, and, in the event they are not paid, the surety will respond. Maryland Casualty Co. v. City of South Norfolk (C. C. A.) 54 F.(2d) 1032; Standard Oil Co. v. Day, 161 Minn. 281, 201 N. W. 410, 41 A. L. R. 1291; Salt Lake City v. O'Connor, 68 Utah, 233, 249 P. 810, 49 A. L. R. 941; City of Marshfield v. United States Fidelity & Guaranty Co., 128 Or. 547, 274 P. 503; Grover v. Board of Education of Franklin Tp., 102 N. J. Eq. 415, 141 A. 81.
Under the evidence and in absence of agreement, the surety has no right to compel the application of payments which it has made, as the rule is that, "if the debtor designates the application of payments, his designation is controlling with respect to both the creditor and the surety. If the debtor does not designate the application of payments, the creditor may apply them to any portion of the indebtedness, and the surety has no right to insist on application to the debt for which he is liable." 50 C. J. 104.
"A debtor may control the application of his payments. If he fails to make the application, the power to do so devolves upon the creditor. If neither does so, it becomes the duty of the court to make the application, and in doing this it must be guided by a sound discretion. It is equitable that the entire debt be paid." Delaware Dredging Co. et al. v. Tucker Stevedoring Co. (C. C. A.) 25 F.(2d) 44, 46.
The payments here made were applied to the discharge of an obligation for the payment of which the defendants were liable.
E. We approach the consideration of what labor and materials went into the construction covered by the bond. Certain items are claimed by defendants in both suits as not lienable under the bond, and, after a consideration of them, the following conclusion is reached:
C. H. Krengel's claim in suit No. 1722 covers a large number of different kinds of materials. The question is as to the segregation of the items of this claim as to when materials and horses were furnished. It appears that some of the materials and horses were furnished and used prior to November 1, 1929, and some subsequent to that date. Harkins during that fall operated camp No. 1 under contract with Mittry Bros., and at the same time operated a camp under a subcontract that he had from John Phillips located about two miles from camp 1. In August he commenced work on the contract with Mittry Bros., and closed that work about Christmas. He finished the work on the Phillips contract on November 1. About two-thirds of the horses and equipment were used on the Phillips job and one-third on the Mittry Bros. job, so under the evidence the court can only prorate the items as between the contract direct with Mittry Bros. and the subcontract with Phillips. So the items should be so prorated between the Phillips subcontract and the contract with Mittry Bros. The claim is allowed for $222.57.
E. J. Hunt & Sons (intervener in suit No. 1722) claim covers purchase price of mules and horses and rental for five teams and dump wagon. The surety is not liable for the purchase of equipment, and therefore the item in this claim of $105 covering the purchase price of mules and horses is disallowed, and the items of $238.78 and $30 for rental of the teams of work horses and dump wagon are allowed, and, as there was paid on this claim the sum of $125, there is a balance allowed of $143.70.
H. K. Belmont (surviving partner of plaintiff in suit No. 1690) claim covers groceries used at camp 2. This claim is allowed *221 less the amounts charged for snuff, gloves, cigarettes, tobacco, and candy, amounting to $40.95 for the month of August, 1930, and $58.70 for July, 1930, leaving a balance owing of $246.87 for July, 1930, and $172.17 for August, 1930.
Jess Willis (intervener in suit No. 1722) claim for labor performed. Amount allowed $192.75.
Miller Tipton (intervener in suit No. 1722) claim covers labor performed. Amount allowed $73.75.
U. F. McCarley (intervener in suit No. 1722) claim covers labor performed. Amount allowed $18.88.
Fred Taylor (intervener suit No. 1722) claim covers labor performed. Amount allowed $228.25.
E. M. Willis (intervener suit No. 1722) claim covers labor performed. Amount allowed is $67.91, and the further sum of $186.29 for rental of horses.
J. T. Blankenship (intervener in suit No. 1722) claim covers labor performed. Amount allowed $125.
Joseph Houshka (intervener suit No. 1722) claim covers hay furnished. Amount allowed $56.
C. A. McMaster (intervener suit No. 1722) claim covers team hire. Amount allowed $265.
Twin Falls North Side Investment Company (intervener suit No. 1690) claim covers hay furnished. Amount allowed $150.
R. W. Talley (intervener suit No. 1690) claim covers hay furnished. Amount allowed $111.43.
E. R. Gage (intervener suit No. 1690) claim covers hay furnished and rental of horses. Amount allowed $395.
J. M. Biggs (intervener suit No. 1690) claim covers hay furnished. Amount allowed $45.
B. F. Badger (intervener suit No. 1690) claim covers supplies furnished boarding house at camp No. 2. Amount allowed $287.
Consolidated Wagon & Machine Company (intervener suit No. 1690) claim covers supplies furnished. Amount allowed $40.07.
William McCandless (intervener suit No. 1690). This claim is disallowed.
John A. Bennett (intervener suit No. 1690) claim covers labor performed. Amount allowed $165.50.
Paul Bryant (intervener suit No. 1690). Amount allowed $105.
M. Tipton (intervener suit No. 1690) claim covers labor performed. Amount allowed $177.50.
F. McCarley (intervener suit No. 1690) claim covers labor performed. Amount allowed $51.70.
Stanley Miller (intervener suit No. 1690) claim covers labor performed. Amount allowed $130.
Jacob Yeager (intervener suit No. 1690) claim covers work performed. Amount allowed $124.75.
E. M. Willis (intervener suit No. 1690) claim covers labor performed. Amount allowed $189.37.
Jess Willis (intervener suit No. 1690) claim covers labor performed. Amount allowed $60.13.
L. E. Foster (intervener suit No. 1690) claim covers labor performed. Amount allowed $100.
Fred Taylor (intervener suit No. 1690) claim covers work performed. Amount allowed $55.
D. A. Wright (intervener suit No. 1690) claim disallowed.
L. G. Kirkman (intervener suit No. 1690) claim covers labor performed and horses rented. Amount allowed $119.
A. M. Sande (intervener suit No. 1690) claim covers merchandise furnished. Amount allowed $449.65.
C. A. McMaster (intervener suit No. 1690) claim covers rental of teams and horses at camp No. 2. Amount allowed $225.
J. T. Blankenship (intervener suit No. 1690) claim covers labor performed. Amount allowed $97.50.
Preston Weiss (intervener suit No. 1690) claim covers labor and horse hire. Amount allowed $31.42.
Bryon Weiss (intervener suit No. 1690) claim covers labor performed and rental of horses. Amount allowed $88.50.
T. R. Weiss (intervener suit No. 1690) claim covers labor performed and rental of horses. Amount allowed $62.
In view of the conclusions thus reached, findings and decree may be prepared and presented in the above cases in which plaintiff and interveners are entitled to judgment in the amounts above stated, with interest thereon at the rate of 7 per cent. per annum from date of bringing suit and filing complaints in intervention. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266826/ | 165 Cal.App.4th 1445 (2008)
In re JESUS ESTEVEZ on Habeas Corpus.
No. F054515.
Court of Appeals of California, Fifth District.
August 14, 2008.
As modified September 8, 2008.
*1449 Jesus Estevez, in pro. per., for Petitioner Jesus Estevez.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Christopher J. Rench and Jennifer A. Neill, Deputy Attorneys General, for Respondent Anthony Hedgpeth, Warden.
Futterman & Dupree and Martin H. Dodd for Respondent J. Clark Kelso, Receiver.
*1450 OPINION
ARDAIZ, P. J.
On February 14, 2006, in conjunction with a class action lawsuit filed several years earlier (Plata v. Schwarzenegger, (N.D.Cal., No. C01-1351 TEH) (Plata)), the Honorable Thelton E. Henderson, Judge of the United States District Court for the Northern District of California, appointed a receiver (the Receiver) to "provide leadership and executive management of the California prison medical health care delivery system with the goals of restructuring day-to-day operations and developing, implementing, and validating a new, sustainable system that provides constitutionally adequate medical care to all class members as soon as practicable."[1] To this end, the Receiver was given the duty "to control, oversee, supervise, and direct all administrative, personnel, financial, accounting, contractual, legal, and other operational functions of the medical delivery component of" the California Department of Corrections and Rehabilitation (CDCR). While developing "a detailed Plan of Action designed to effectuate the restructuring and development of a constitutionally adequate medical health care delivery system," the Receiver was to "undertake immediate and/or short term measures designed to improve medical care...."
The order of appointment gave the Receiver "all powers necessary to fulfill [his] duties," including, but not limited to, "exercis[ing] all powers vested by law in the Secretary of the CDCR as they relate to the administration, control, management, operation, and financing of the California prison medical health care system," and it suspended the Secretary's exercise of such powers for the duration of the receivership. Expressly recognizing the receivership was "unprecedented in scope and dimension," the order further granted the Receiver the right to seek waiver of state laws, regulations, and contracts. Despite the nature of the remedy and breadth of the powers given the Receiver, no appeal was taken.[2]
As the focus of the federal court's order was the development and implementation of a systemic remedy, it did not expressly address the resolution of, or responsibility for, problems and disputes arising with respect to the medical care and treatment of individual inmates. This omission has had the consequence of creating a jurisdictional quagmire for courts of this state when attempting to address alleged deficiencies in the health care of individual prisoners. This in turn has created a conundrum for the very inmates whose health care the receivership exists to improve.
*1451 In this opinion, we hold that the appointment of the Receiver did not divest California courts of their constitutional jurisdiction over matters raised through habeas corpus, and that the Receiver is subject to that jurisdiction. We further hold that both the warden having physical custody of the inmate and the Receiver are necessary and proper parties to respond in such actions.
PROCEDURAL HISTORY
On January 14, 2008, Jesus Estevez (Estevez), an inmate at Kern Valley State Prison, filed a petition for writ of habeas corpus with this court, alleging that he was being denied adequate medical treatment and care due to delay in providing, and ultimately cancellation of, surgery that had been recommended to treat a painful, longstanding spinal condition diagnosed as degenerative disk disease. Supporting exhibits showed his (1) medical diagnosis and recommended treatment; (2) exhaustion of administrative remedies; (3) filing of a petition for writ of habeas corpus in the superior court for the county in which he was incarcerated, resulting in a finding that he was receiving adequate care; and (4) correspondence with the Prison Law Office (class counsel in Plata), which made inquires on his behalf but ultimately was unable to take action. Estevez requested that we issue a writ, compelling the warden or chief medical officer of the prison to provide the correct medical treatment, including prompt surgery, pain medication, and postsurgical care, as recommended by an appropriate specialist.
Following receipt of Estevez's petition, we directed the Attorney General, whose duties include representing the state, warden, and prison personnel in these matters (Gov. Code, § 11040, subd. (b)), to file an informal response addressing, inter alia, whether the recommended surgery had been performed and, if not, why not.[3] The Attorney General responded that the warden had no authority over inmate care and was not in a position to respond due to the receivership, and that, to the extent relief could be provided, the Receiver now controlled the prison medical system and so was the proper party to respond. In turn, the Receiver advised us that the Attorney General had recently begun to assert that state courts lack jurisdiction over habeas corpus claims involving inmate medical care and/or the Receiver is the proper respondent, leading to inconsistent jurisdictional findings among Courts of Appeal.[4] Explaining that he was appointed to address the systemic problems *1452 in the prison medical care system and not to defend individual claims, and suggesting state courts might indeed lack jurisdiction over such claims, the Receiver nonetheless "chose[] instead, after lengthy consideration, to address inmate medical habeas claims on the merits...." Following review of Estevez's petition and file by a physician, the Receiver submitted an informal response in which he proposed what he denominated a "corrective action plan" (CAP). Under the CAP, Estevez would receive lumbar spine surgery and adequate pain management.
We determined that the Attorney General's response did not comply with our order of January 30, 2008, in part because the Attorney General provided no support for his assertions.[5] We suggested CDCR might be required to fulfill its statutory and constitutional obligations to provide appropriate medical care and treatment in the event the Receiver did not do so, and noted: "At the very least, the CDCR remains the custodian of inmates and, therefore, the proper respondent and a necessary party in any proceeding on habeas corpus initiated by an inmate seeking medical services." Accordingly, we ordered CDCR, its directors, managers, and wardens to file an informal response to Estevez's petition, addressing the issues of jurisdiction and authority, as well as whether Estevez had had the recommended surgery. The Attorney General responded by (1) providing what it viewed as supporting authority for its assertions that "the Receiver has taken over day-to-day control over all aspects of CDCR's medical delivery system" and "the federal court has suspended the authority of CDCR to oversee its medical system and all operations are now under the control of the Receiver," and (2) stating that Estevez had surgery on February 21, 2008.
In an order filed March 7, 2008, this court recognized that Estevez's having had surgery might moot the need to resolve medical issues unique to him. Nevertheless, in our view issues remained that were important to other inmates who needed guidance concerning to whom to look for medical services and, if adequate services were not provided, whether they should seek relief in federal or state court, as well as evident confusion on the part of state trial courts regarding jurisdiction. Accordingly, we directed CDCR and the Attorney General to file a joint supplemental response, addressing the appropriate administrative and judicial remedies to be pursued by inmates needing medical treatment, and describing the efforts made by CDCR and the Receiver to make inmates aware of their remedies. We further determined that the Receiver's response was deficient, in that it ignored the concerns *1453 expressed in this court's order of February 15, 2008. Accordingly, we directed the Receiver to file a supplemental response, addressing the issues and concerns stated in that order; the arguments and exhibits in the Attorney General's response filed February 28, 2008; and additional questions we posed, on the assumption state courts lack jurisdiction over CDCR's medical system, concerning procedures for bringing medical habeas corpus petitions before the appropriate federal court(s).
The Attorney General's subsequent response explained the inmate appeals process, as set out in title 15 of the California Code of Regulations, together with the additional instructions inmates are given regarding medical appeals. Apparently anticipating that health care appeals would soon be separated from the current appeals process and placed under direct control of the Receiver, the Attorney General explained that as of March 2008, inmates should pursue health care grievances through the standard inmate appeals process. As for judicial remedies, the Attorney General noted it appeared the Receiver was not going to raise any jurisdictional defense he might have, and so inmates could continue to file habeas corpus petitions in state courts for response by the Receiver.
The Receiver responded that Estevez had had surgery, and would continue to be monitored for pain management. The Receiver concluded that prison staff did not follow up on Estevez's medical needs as thoroughly or aggressively as they should have, but that a CAP had been implemented to ensure Estevez henceforth would receive appropriate and timely treatment. With respect to the issues not specific to Estevez, the Receiver generally agreed with the Attorney General "that the Receiver, and the Receiver alone, has `jurisdiction' over both the provision of medical care to inmates and all functions in the CDCR that pertain to the delivery of medical care." Thus, "the Secretary of the CDCR and the custody officials no longer exercise any authority over the delivery of medical care in the prison."
The Receiver recognized that various courts have reached differing conclusions with respect to whether state courts retain jurisdiction over medical habeas corpus claims in light of the receivership, and found "compelling and persuasive arguments" to support both positions. Rather than "wade into the conceptual arguments," however, the Receiver announced his decision "instead to accede to state court jurisdiction so that the claims can be addressed on the merits," which he would do pursuant to his habeas corpus claims review procedure. The Receiver explained that inmates can informally correspond with his office (a specific unit of which responds to each inquiry, in some instances informing the inmate of the formal administrative appeal process or that he or she can contact the Prison Law Office for legal advice); participate in the administrative appeals ("602") process; or, once administrative remedies are exhausted, proceed to court. When a habeas corpus petition *1454 is received from a court, counsel, the Attorney General, or another source, it is processed according to procedures set up by the Receiver, which include review by a staff physician and initiation of a CAP that is submitted to the particular court for review and potential adoption as the order governing the case. The Receiver further advised that he anticipated consolidation of management and oversight of all medical-care-related claims and inquiries into a single unit by July 2008, and was also seeking to have third level appeals regarding medical care reviewed by health care analysts rather than custody officials.
In his replies to the Receiver's and Attorney General's supplemental responses, Estevez acknowledged having had surgery, but argued, inter alia, that his petition was not moot because he had not received postsurgical care, therapy, and consultations, as recommended by his surgeon. Estevez further asserted that nothing had been given to inmates to apprise them of possible judicial remedies, whether state courts have jurisdiction, or who is the proper respondent when health care is at issue.
We found that the Attorney General's and Receiver's supplemental responses created substantial uncertainty regarding the jurisdiction of state courts; the power of CDCR to evaluate and provide for the medical needs of its inmates, as required by pertinent constitutional and statutory provisions; and the appropriate remedies for inmates seeking to challenge the adequacy of their medical care. Concluding it was "essential to the health and welfare of inmates that such uncertainty be removed," we asked for further briefing specifically addressing whether the federal court's orders divested state courts of the jurisdiction to hear and rule upon habeas corpus petitions alleging inadequate medical care of state prisoners, together with related issues.
The Attorney General responded by clarifying that it was not the position of CDCR or the warden that the federal court's orders in Plata divested state courts of habeas corpus jurisdiction when inmate medical care is at issue, but rather that the Receiver, not the warden, is now the proper respondent in such actions. The Attorney General contended there is concurrent jurisdiction between state and federal courts over CDCR's medical system; while the federal court and Receiver have control over that system, state courts retain jurisdiction to hear individual actions brought by inmates, and the Receiver is subject to state court orders issued in response to habeas corpus petitions regarding medical care. While the warden would remain as respondent since he or she has physical custody of the inmate, the Attorney General argued, courts could seek a response from the Receiver by designating him as the real party in interest. The Attorney General noted that, although the executive management of the prison health care system has been transferred from CDCR to the Receiver, the individuals within each prison who provide *1455 medical care remain, for the most part, employees of the state, and Plata does not absolve them of their constitutional, statutory, and regulatory obligations to provide adequate medical care.
The Receiver also took the position that, subject to certain parameters established by federal statutory and Supreme Court authority, state courts retain jurisdiction to hear and rule upon petitions for habeas corpus based on alleged inadequate medical care of state prison inmates. In such actions, the Receiver or local medical staff would be either the respondent or the real parties in interest; state courts could properly request a response from the Receiver; and the Receiver would be subject to orders entered by the state courts in those cases. The Receiver further took the position that, unless a state law is waived by Judge Henderson or found by Judge Henderson to be inconsistent with the delivery of constitutionally adequate care, the duties and obligations imposed by state law upon CDCR to provide adequate medical care are preserved by the order appointing the Receiver. However, the responsibility for ensuring that those duties and obligations are met has been shifted exclusively to the Receiver and CDCR personnel that report to him, and any responsibility of the Secretary of CDCR and his custodial agents to comply with said duties and obligations has been suspended during the pendency of the receivership. The Receiver emphasized that CDCR continues to employ clinical and administrative staff necessary for the delivery of medical care to inmates at the local prison level and that, while such staff ultimately answers to the Receiver and his managerial team, the day-to-day delivery of medical care remains with CDCR employees at the state prisons.
Finding that the positions taken on some issues by the Attorney General and Receiver in their pleadings filed May 7, 2008, were in conflict with positions taken in earlier pleadings, that the jurisdictional issues have been the subject of conflicting decisions of various Courts of Appeal, and that it is essential to the health and welfare of inmates that uncertainty regarding the power of state courts over the Receiver and CDCR and the duties and obligations of the wardens and CDCR staff be removed, this court issued an order to show cause.
The Attorney General filed a return on behalf of the warden. In pertinent part, the warden again asserted that the Receiver, not he, is the proper respondent for challenges to prison medical care; however, the warden expressly stated he did not assert that California courts lack jurisdiction to hear and determine the merits of habeas corpus petitions challenging the adequacy of medical care in California prisons. The warden further asserted that the matter is moot, inasmuch as Estevez has received the requested surgery. He also claimed that, since Estevez's petition only challenged the fact he had not received recommended surgery, issues concerning the jurisdiction of state courts to hear medical habeas corpus matters in light of Plata, *1456 the validity of the orders in Plata, inmates' available administrative and judicial remedies, and whether the Receiver must comply with orders of California courts, are not currently before this court and should not be considered.
In his return, the Receiver also asserted that the petition is moot, since Estevez has received the surgery requested and is receiving adequate medical care, including pain management. The Receiver further claimed that this court's questions, stated in its order to show cause, go well beyond the allegations in the petition, so that the Receiver should not be required to respond to them. He asserted that Estevez has not challenged the authority of the federal court to appoint the Receiver or to issue orders related to same; has not questioned the jurisdiction of state courts to hear habeas corpus petitions in light of the receivership or claimed that the receivership divests such courts of jurisdiction over habeas corpus claims regarding inmate medical care; and has not suggested the Receiver has refused to follow any lawful order of this or any other state court.
Estevez submitted a separate traverse to each return. He disputed the notion that the case is moot, claiming (1) he is not receiving adequate postsurgical treatment because postsurgery orders are not being followed, and (2) he is not being monitored to ensure management of his back pain, as required by the CAP. Estevez agreed that California courts do not lack jurisdiction to hear habeas corpus actions concerning medical issues, but argued the various issues are properly before this court because "the door was open[ed]" by all involved. In a separate letter, Estevez requested an order of discovery that would allow him to review his medical records and obtain copies of specialist reports and recommendations to demonstrate the need for postsurgical care, and he requested an evidentiary hearing in the matter.
DISCUSSION
We turn first to the Attorney General's and Receiver's arguments that the instant petition is moot because Estevez has received his surgery, and that the questions of state court jurisdiction and related issues are not properly before us and so should not be addressed. We disagree on both points.
The relief requested in Estevez's petition included adequate postsurgical medical care. In his traverses, he alleged he is not receiving such care and treatment because postsurgery orders are not being followed and he is not being monitored to ensure proper management of his back pain. In light of these assertions, a factual dispute remains concerning whether Estevez has received the relief requested; hence, an actual controversy exists upon which this court remains capable of granting effectual relief. (See Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132 [41 Cal.Rptr. 468, 396 P.2d 924].)
*1457 (1) Moreover, this case presents an issue of great public import that transcends the interests of this particular petitioner (see In re Walters (1975) 15 Cal.3d 738, 744 [126 Cal.Rptr. 239, 543 P.2d 607]; In re Sodersten (2007) 146 Cal.App.4th 1163, 1217-1218 [53 Cal.Rptr.3d 572]): the jurisdiction of state courts, following institution of a federal receivership, over habeas corpus petitions filed by state prison inmates alleging deficient medical care, and the appropriate parties to respond thereto. It is axiomatic that a prisoner, who is required to exhaust his or her administrative remedies before bringing a grievance to court (In re Dexter (1979) 25 Cal.3d 921, 925 [160 Cal.Rptr. 118, 603 P.2d 35]; In re Muszalski (1975) 52 Cal.App.3d 500, 503, 508 [125 Cal.Rptr. 286]), must be aware of the administrative procedures through which to seek relief and, if they are unavailing, must know to which courtstate or federalto turn in order to vindicate his or her rights.
We are somewhat surprised that the Attorney General and Receiver now take the position that the jurisdictional issue is not before us. It is true that Estevez has never challenged our jurisdiction to act on his petition. The Attorney General and Receiver, however, both appeared to take the position, at least initially, that the jurisdiction of state courts in matters such as this is unclear, and that, while state courts might indeed lack jurisdiction, the Receiver would nevertheless "accede" to it. Although Estevez has not contended the Receiver has failed to comply with a lawful order of court (and our briefing orders did not intend to suggest such a scenario), the initial responses raised uncertainty as to whether a lawful order could in fact be made by a state court. Thus, while the Attorney General and Receiver may now agree state courts retain jurisdiction, their past positions have led to inconsistent findings on the issue among state appellate courts, and have left superior courtsthe courts that are, generally speaking, the courts of first resort for inmates who have exhausted their administrative remedies without guidance.
(2) We recognize that the parties' pleadings define the issues in habeas corpus proceedings. (Board of Prison Terms v. Superior Court (2005) 130 Cal.App.4th 1212, 1235 [31 Cal.Rptr.3d 70].) Thus, when an order to show cause issues, "`it is limited to the claims raised in the petition and the factual bases for those claims alleged in the petition.'" (People v. Duvall (1995) 9 Cal.4th 464, 475 [37 Cal.Rptr.2d 259, 886 P.2d 1252].) It has been held that, under this process, "the issues to be addressed may not extend beyond the claims alleged in the habeas corpus petition. Thus, respondent may not raise additional issues in its return. [Citation.]" (Board of Prison Terms, supra, at p. 1235.)
Here, of course, one of the issues is precisely who is "respondent." Moreover, as the question of jurisdiction is always fundamental *1458 (Kroneberger v. Superior Court (1961) 196 Cal.App.2d 206, 208 [16 Cal.Rptr. 339]), "a court has inherent power to inquire into jurisdiction of its own motion, regardless of whether the question is raised by the litigants. [Citations.]" (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 302-303 [109 P.2d 942].) Given the number of prisons within our territorial jurisdiction, the need to provide a uniform answer for the superior courts in our district, if not the state, with respect to state court habeas corpus jurisdiction vis-à-vis a federal receivership and in regard to the proper responsive party or parties, is manifest. To the extent possible, these issues simply should not require redetermination, or be subject to conflicting decisions and interpretations, every time a state prison inmate presents a petition for writ of habeas corpus alleging inadequate medical care.
(3) We asked the parties to address certain questions that went beyond strictly the jurisdictional issue. While requirements of ripeness "`prevent[] courts from issuing purely advisory opinions, or considering a hypothetical state of facts in order to give general guidance rather than to resolve a specific legal dispute' [citation]" (In re Joshua S. (2007) 41 Cal.4th 261, 273 [59 Cal.Rptr.3d 460, 159 P.3d 49]), our questions related to the issues before us (see Turner v. Fouche (1970) 396 U.S. 346, 353, fn. 10 [24 L.Ed.2d 567, 90 S.Ct. 532]). Additionally, they were asked in order to help us understand the interplay between state habeas corpus jurisdiction and federal receiverships, concerning which, as the parties recognize, case authority is virtually nonexistent.
We turn now to an assessment of that interplay, and the effect of a federal receivership on our jurisdiction.
(4) "Pursuant to its equity jurisdiction [(U.S. Const., art. III, § 2, cl. 1)], a federal court has power to take broad remedial action to effectuate compliance with its orders. This equitable power includes the power to appoint a receiver. [Citations.]" (Dixon v. Barry (D.D.C. 1997) 967 F.Supp. 535, 550; see, e.g., Morgan v. McDonough (1st Cir. 1976) 540 F.2d 527, 533.) "While traditionally courts appoint receivers to protect tangible property of a business pending a judicial determination of a related lawsuit, various courts have appointed receivers to protect constitutional and statutory rights in a variety of circumstances. [Citations.] [¶] ... [A] court may appoint a receiver to force public officials to comply with court orders. [Citations.] Courts have used receivers to coerce public officials to comply with legal mandates in a number of factual settings, including public schools, housing, highways, nursing homes, and prisons." (Dixon v. Barry, supra, 967 F.Supp. at p. 550; see, e.g., Morgan v. McDonough, supra, 540 F.2d at pp. 533-535 [school district]; Judge Rotenberg Educ. Ctr., Inc. v. Commissioner of the Dep't of Mental Retardation (No. 1) (1997) 424 Mass. 430 [677 N.E.2d 127, 131, 151] *1459 [state Dept. of Mental Health]; Crain v. Bordenkircher (1988) 180 W.Va. 246 [376 S.E.2d 140, 143] [prison]; Perez v. Boston Housing Authority (1980) 379 Mass. 703 [400 N.E.2d 1231, 1248-1251] [city housing authority].) Nevertheless, "the substitution of a court's authority for that of elected and appointed officials is an extraordinary step warranted only by the most compelling circumstances." (Morgan v. McDonough, supra, 540 F.2d at p. 535.)
(5) Receivers are officers of the court appointing them. (Hosford v. Henry (1951) 107 Cal.App.2d 765, 772 [238 P.2d 91]; United States v. Smallwood (8th Cir. 1971) 443 F.2d 535, 539.) They have no judicial powers per se (Hosford v. Henry, supra, 107 Cal.App.2d at p. 772), but act under the authority of the appointing court and possess those powers conferred by the order of appointment and the course and practice of that court (Atlantic Trust Co. v. Chapman (1908) 208 U.S. 360, 371 [52 L.Ed. 528, 28 S.Ct. 406]; In re San Vicente Medical Partners Ltd. (9th Cir. 1992) 962 F.2d 1402, 1409). It is sometimes said that a receiver "stands in the shoes of the entity as to which a receivership has been instituted. (See, e.g., Ledo Financial Corp. v. Summers (9th Cir. 1997) 122 F.3d 825, 829; Gaskill v. Gordon (7th Cir. 1994) 27 F.3d 248, 251.) Whatever the general accuracy of this description, especially in cases involving business or property concerns, "an equity receiver does not merely inherit an owner's rights; the receiver is an officer of the court entrusted with administration of the property. [Citations.]" (Gaskill v. Gordon, supra, at p. 251.) The receiver's possession of the propertyor, in this case, his operation of the medical delivery component of CDCR "`is that of the court.... [Citations.]'" (Pacific Indem. Co. v. Workmen's Comp. App. Bd. (1968) 258 Cal.App.2d 35, 40 [65 Cal.Rptr. 429], fn. omitted.)
(6) A receiver appointed by a federal court must manage and operate the property in his or her possession according to the requirements of the valid laws of the state in which the property is situated, in the same manner the owner or possessor of the property would be bound to do if in possession of it. (28 U.S.C. § 959(b); 65 Am.Jur.2d (2008) Receivers, § 135.) The effect of this statute on a receiver appointed to oversee compliance with constitutional mandates is unclear, except that it does not apply where state law provisions conflict with federal laws or the United States Constitution. (See Gillis v. California (1934) 293 U.S. 62, 65 [79 L.Ed. 199, 55 S.Ct. 4].) Moreover, while a federal court's powers, as implemented through a receiver, may be at once broader than, and more limited than, the powers of the public authority in whose place and stead the receiver acts (see Swann v. Board of Education (1971) 402 U.S. 1, 16 [28 L.Ed.2d 554, 91 S.Ct. 1267]), "[o]nce a right and a [constitutional] violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad...." (Id. at p. 15.)
*1460 (7) In the present case, the federal court expansively gave the Receiver "all powers necessary" to fulfill his duties under the order appointing him. These seemingly extensive powers are not, however, unlimited. We are not called upon to determine those limits or to decide whether, or to what extent, the Receiver can lawfully act outside the processes established under state constitutional or statutory law, whether budgetary or otherwise. Such questions are not before us in the present proceeding, and we leave them for determination in an appropriate case. It needs no citation to authority, however, to say that a federal court cannot grant to a receiver powers it does not itself possess. A receiver's authority does not exist independent of the authority of the appointing court, and he or she cannot act in derogation of fundamental constitutional principles of due processnotice and an opportunity to be heardany more than a federal judge can. Notwithstanding the supremacy clause (U.S. Const., art. VI, cl. 2), there are limits on a federal court's power to override state constitutional and statutory provisions; principles of comity and state sovereignty require that such action be undertaken by a court only in exceptional circumstances. (See In re Thompson (10th Cir. 1990) 894 F.2d 1227, 1232-1233 ["`federal courts are not licensed to disregard interests created by state law when that course is not clearly required to effectuate federal interests ...'"].) It cannot be inferred, from a broad grant of general authority, that a receiver is permitted to override state law, absent the explicit direction, arrived at pursuant to procedures comporting with due process, of the appointing court.
(8) "[U]nder our federal system, the States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause. Under this system of dual sovereignty, [the United States Supreme Court has] consistently held that state courts have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the United States. [Citations.]" (Tafflin v. Levitt (1990) 493 U.S. 455, 458 [107 L.Ed.2d 887, 110 S.Ct. 792].) We are thus competent to adjudicate claims arising under the Eighth Amendment to the United States Constitution, which is violated by "deliberate indifference to serious medical needs of prisoners." (Estelle v. Gamble (1976) 429 U.S. 97, 104 [50 L.Ed.2d 251, 97 S.Ct. 285].)
(9) "The right to file a petition for a writ of habeas corpus is guaranteed by the state Constitution (Cal. Const., art. I, § 11), and regulated by statute ([Pen. Code,] § 1473 et seq.)." (In re Harris (1993) 5 Cal.4th 813, 824-825 [21 Cal.Rptr.2d 373, 855 P.2d 391].) Article VI, section 10 of the California Constitution gives the state Supreme Court, Courts of Appeal, superior courts, and their judges original jurisdiction in habeas corpus proceedings. "The function of the writ of habeas corpus is solely to effect `discharge' from unlawful restraint, though the illegality in respect to which the discharge from restraint is sought may not go to the fact of continued detention but may be *1461 simply as to the circumstances under which the prisoner is held...." (In re Chessman (1955) 44 Cal.2d 1, 5-6 [279 P.2d 24].) Thus, alleged violations of the Eighth Amendment arising from inadequate medical care may be brought to courts' attention in California by means of a petition for writ of habeas corpus.[6]
(10) "Habeas corpus may not be suspended unless required by public safety in cases of rebellion or invasion." (Cal. Const., art. I, § 11.) In light of the importance the United States Supreme Court recently has placed on the similarly worded suspension clause contained in the federal Constitution (Boumediene v. Bush (2008) 553 U.S. ___, ___ - ___ [128 S.Ct. 2229, 2246-2247, 171 L.Ed.2d 41]); the fact "[i]t is difficult to imagine an activity in which a State has a stronger interest, or one that is more intricately bound up with state laws, regulations, and procedures, than the administration of its prisons" (Preiser v. Rodriguez (1973) 411 U.S. 475, 491-492 [36 L.Ed.2d 439, 93 S.Ct. 1827]); and the constraint principles of federalism and comity place upon federal court interference with state court proceedings (see International Ass'n of Mach. & Aero. Wkrs. v. Nix (5th Cir. 1975) 512 F.2d 125, 129 [construing 28 U.S.C. § 2283]), we conclude any ouster of state courts' constitutionally given jurisdiction must be explicit, unambiguous, and express, to the extent it may be accomplished by a federal court at all. Absent a specific and explicit order by the federal district court that suspends state constitutional habeas corpus authority as being inconsistent with the appropriate protection of the constitutional and statutory rights of inmates, we know of no authority by which a federal judgemuch less a receivercan suspend the powers of this court. (11) Accordingly, we hold that, despite the receivership, California courts retain jurisdiction over the state prison system in general and inmates' claims of inadequate medical care in particular. It necessarily follows that, since the Receiver is now in charge of the California prison medical health care delivery system, California courts also have jurisdiction over him.[7]
(12) In our view, both the Receiver and the warden of the prison at which the individual petitioner is incarcerated (through his or her counsel, the *1462 Attorney General) are necessary and proper parties to respond to a petition for writ of habeas corpus alleging inadequate medical carethe Receiver, because he controls the delivery of medical care within the prison system; and the warden, because he or she controls the person of the inmate, i.e., has physical custody.[8] Although perhaps immaterial since habeas corpus pleadings are generally captioned "In re [Petitioner's Name] on Habeas Corpus," inasmuch as Penal Code section 1477 requires that the writ of habeas corpus "be directed to the person having custody of or restraining the person on whose behalf the application is made," the warden would appear to be the respondent, while the Receiver would appear to be the real party in interest. (See Cal. Rules of Court, rule 4.551(b)(1) [permitting court to request informal response in habeas corpus action from real party in interest].) Regardless of what these parties are called, each should be served with a copy of all pleadings in a medical habeas corpus proceeding.
Having established our jurisdiction over the instant proceeding and the proper parties thereto (all of whom are before this court), we turn at last to what, if any, relief should be granted in the present case. It is undisputed that Estevez has had the recommended surgery, but, as previously described, he alleges that he is not receiving adequate postsurgical care and treatment as requested in his petition. We will direct the Receiver and warden to investigate Estevez's postsurgical care and treatment, including pain management, and make a report regarding same to the Kern County Superior Court. That court will then conduct further proceedings and make further orders as appropriate. (See West v. Keve (3d Cir. 1978) 571 F.2d 158, 161.)
By way of a petition for rehearing, the Attorney General, on behalf of the warden, requests that we modify our opinion to provide that the warden is only a necessary and proper party, and need only respond in the instant action, to the extent necessary to establish the legality of the inmate's *1463 physical custody. The Attorney General asserts that the Receiver is the sole and proper party to respond to medical claims.
(13) We decline to make the requested modification. To the extent that the warden does not have control over an inmate's medical care due to specific restraints imposed by statute or court order, the warden may defer to such party as is legally mandated to provide the requisite careat this juncture, the Receiver. However, we do not read the orders in Plata so broadly that we can conclude, with certainty, that responsibility for all inmate medical care has been removed from the state, regardless of the adequacy of care provided by a delegated authority. In part, we so conclude because the state, and through its appointed representative the warden, cannon abdicate its constitutional responsibility to provide adequate medical care, concomitant with which is the duty to assure said care is not dispensed without any regard for the effect on the prison system as a whole. That responsibility is uniquely that of the warden as representative of the state, as opposed to being that of the Receiver. In short, the existence of the orders in Plata, and the appointment of the Receiver, do not relieve the state of its constitutional responsibility to determine whether adequate care is in fact being provided, or whether the proposed medical care or actions to facilitate that care are inconsistent with the state's overall constitutional responsibility for public safety and welfare.
Further, we reject the Attorney General's assertion that, if the warden and Receiver have conflicting conclusions regarding the adequacy of an inmate's medical care, the warden's position on the merits will be irrelevant because he is powerless to make any decision relative to such care or to direct the Receiver to provided care. The warden presently may be powerless in this regard, but this does not render his position on the merits irrelevant: as previously discussed in our opinion, the courts of this state retain power, pursuant to their habeas corpus jurisdiction, to make orders with respect to inmate medical care and, assuming no conflict between those orders and the Receiver's developing health care delivery system, to impose those orders upon the Receiver. Thus, at the very least, any disagreement between the warden and the Receiver regarding the adequacy of an inmate's medical care, should be fully aired before the court in question so that it may be fully informed in determining the appropriate course of conduct with respect to the issues before it. Taken to its logical conclusion, the Attorney General's position would obligate the warden to accecpt unquestioningly any decision of the Receiver, regardless of its impact on the entire system, and would require courts to render habeas corpus decisions on medical care issues without input from the one party who is legally required to consider the effect on the entire prison itself and, by extension, the state prison system as a whole.
*1464 DISPOSITION
Let a writ of habeas corpus issue directing the Kern County Superior Court to (1) vacate the order dated December 19, 2007, and filed in Kern County Superior Court action No. HC10332A denying the petition for writ of habeas corpus, (2) conduct further proceedings pursuant to California Rules of Court, rule 4.551, and (3) make further orders as appropriate.
The Receiver and warden are directed to investigate whether Estevez is receiving adequate postsurgical medical care and treatment and to file a summary of their investigations and conclusions with the Kern County Superior Court on or before 30 days from the date of this opinion or such other date as may be set by the Kern County Superior Court in Kern County Superior Court action No. HC10332A.
To the extent it seeks relief other than that set out in this opinion, the petition for writ of habeas corpus is denied. The order to show cause is discharged.
Cornell, J., and Kane, J., concurred.
NOTES
[1] We take judicial notice of the order appointing receiver filed February 14, 2006, in Plata. According to its terms, it does not encompass Pelican Bay State Prison, which is subject to the district court's jurisdiction in a separate case.
[2] An order appointing a receiver, although interlocutory, is appealable. (28 U.S.C. § 1292(a)(2).)
[3] We refer, at times, to the Attorney General instead of the warden or particular personnel. We recognize that the Attorney General appears as counsel for such parties, and not as a party in his own right.
[4] We take judicial notice of the docket (register of actions) entries and orders in In re Wilkinson (petn. for review den. Aug. 8, 2007, D051080), Barker v. The People (petn. for review den. Sept. 26, 2007, B196985), and In re Goldstein (petn. for review den. Oct. 2, 2007, A118925).
[5] In his reply to the Attorney General's response, Estevez observed that, before state inmates can file a habeas corpus petition, they must exhaust all administrative remedies. Their only means of appealing any policy or action is through the "602" appeal process, pursuant to which the warden can grant or deny relief. Estevez suggested this showed the warden was, in fact, in a position to respond.
[6] The function of habeas corpus in California differs somewhat from the function of the federal writ in this regard. In the federal system, habeas corpus proceedings are the mechanism whereby a prisoner can challenge the legality or duration of his or her confinement. Conditions of confinement, on the other hand, are more appropriately challenged by means of a civil rights action brought pursuant to 42 United States Code section 1983. (Badea v. Cox (9th Cir. 1991) 931 F.2d 573, 574; see Wilkinson v. Dotson (2005) 544 U.S. 74, 78-82 [161 L.Ed.2d 253, 125 S.Ct. 1242]; Nelson v. Campbell (2004) 541 U.S. 637, 643 [158 L.Ed.2d 924, 124 S.Ct. 2117].)
[7] Were we to conclude otherwise, the practical effect would be the suspension of our habeas corpus power, contrary to the express provisions of article I, section 11, of the California Constitution, without the requisite specific finding necessary to exercise such extraordinary authority.
[8] In asserting jurisdiction over the Receiver, we recognize that, generally speaking, a receiver may not be sued without leave of the court that appointed him or her. (Barton v. Barbour (1881) 104 U.S. 126, 128 [26 L.Ed. 672].) As the Receiver recognizes, however, 28 United States Code section 959(a), which provides an exception "with respect to any of [a receiver's] acts or transactions in carrying on business connected with" the property under receivership, appears to permit the litigation in state courts of medical habeas corpus cases without permission of Judge Henderson. (See Carter v. Rodgers (11th Cir. 2000) 220 F.3d 1249, 1254 [statute permits actions redressing, torts committed in furtherance of business].)
We leave for another day issues that might arise should there be a conflict between state court orders regarding inmate medical care and the health care delivery system the Receiver is in the process of developing, recognizing that principles of federal supremacy (U.S. Const., art. VI, cl. 2; see, e.g., Free v. Bland (1962) 369 U.S. 663, 666 [8 L.Ed.2d 180, 82 S.Ct. 1089]; U.S. v. Napier (6th Cir. 2000) 233 F.3d 394, 404), as well as limitations on the power of federal courts (see, e.g., 28 U.S.C. § 2283; Atlantic C. L. R. Co. v. Engineers (1970) 398 U.S. 281, 294-295 [26 L.Ed.2d 234, 90 S.Ct. 1739]) may come into play. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/485390/ | 815 F.2d 74Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.In re Bob E. BAILES, Petitioner.
No. 87-6001.
United States Court of Appeals, Fourth Circuit.
Submitted Jan. 29, 1987.Decided March 23, 1987.
Before WIDENER, PHILLIPS,and ERVIN, Circuit Judges.
Bob E. Bailes, petitioner pro se.
PER CURIAM:
1
Bob Bailes, a/k/a Robert E. Bales, a/k/a Robert E. Bailes, has petitioned this Court for a writ of mandamus or a writ of prohibition compelling the district court "to vacate all Orders entered in Criminal Case No. 86-142-A, and that the same be stricken from the docket, and that all other matters be expunged from all records." Petitioner also demands that he be released at once from confinement at the federal prison at Petersburg, Virginia.
2
Petitioner was convicted in 1986 on charges arising from false bank loan applications. He was sentenced to one fiveyear term and five two-year terms, all to run concurrently, to pay a fine of $10,000, and to make restitution to the defrauded bank in the amount of $7,729.68. See United States v. Bailes, No. C/R 86-142-A(Ol)a(E.D.Va., Sept. 26, 1986).
3
Since this court, as contrasted with a judge thereof, does not have authority to issue a writ of habeas corpus, 28 U.S.C. Sec.2241(a); since no application for relief under 28 U.S.C. Sec.2255 has been made as there required; and since the paper styled "writ of habeas corpus" describes itself as "ammend[ing] his petition for a Writ of Habeas Corpus, which includes the previous Writs", obviously referring to the petition for mandamus or prohibition mentioned above, we treat the paper styled "writ of habeas corpus" as an amendment to the petition for mandamus and prohibition and not separately as a petition for relief under 28 U.S.C. Sec.Sec. 2241, 2254 or 2255.
4
Following the receipt of the papers with respect to mandamus, prohibition, and habeas corpus above referred to we received from Baile's attorney, a paper styled "Suggestion to Correct the Record" in case No. 86-5646, the direct appeal above referred to, but she requests that those papers be filed as an amendment in case No. 87-6001 and No. 86-8036 (No. 86-8036 is the same case as 87-6001, our clerk's office having renumbered the same for administrative purposes). This motion to amend is granted. The "Suggestion to correct the Record" has been separately referred to the panel which has under consideration the district court appeal in case No. 86-5646.
5
All of these papers, however, concern matter which either was, or might have been considered in the course of the direct appeal. There is nothing so unusual in the said papers which would justify a departure from disposing of the questions in these cases in the regular course of business which will insure that if there is merit in any of Baile's various contentions, properly raised, it will be considered on its merits.
6
As noted, this court currently has under consideration petitioner's direct appeal from the preceding conviction. See United States v. Bales, No. 86-5646 (4th Cir. filed Sept. 30, 1986). A petition for a writ of mandamus or prohibition may not be used as a substitute for the appellate processes. In re United Steel Workers, 595 F.2d 958, 960 (4th Cir. 1977). Accordingly, the petition for a writ of mandamus or prohibition and the related request for immediate release are denied and the petition is denied.
7
WRIT DENIED. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1381767/ | 200 S.W.3d 618 (2005)
STATE of Tennessee
v.
Wanda G. AYERS.
Court of Criminal Appeals of Tennessee, at Nashville.
Assigned on Briefs June 21, 2005.
October 11, 2005.
Application for Permission to Appeal Denied March 27, 2006.
*619 Paul G. Summers, Attorney General & Reporter; Elizabeth B. Marney, Assistant Attoney General; John H. Carney, District Attorney General; and Dan Brollier, Assistant District Attorney General, for the appellant, State of Tennessee.
Peter Olson and Tim Wallace, Clarksville, Tennessee, for the appellee, Wanda G. Ayers.
Application for Permission to Appeal Denied by Supreme Court March 27, 2006.
OPINION
GARY R. WADE, P.J., delivered the opinion of the court, in which JOSEPH M. TIPTON and J.C. McLIN, JJ., joined.
In March of 2002, the defendant, Wanda G. Ayers, was indicted for first degree murder, a class X felony, a crime which allegedly occurred in 1983. See Tenn. Code Ann. § 39-2-202 (1982). The trial court granted a defense motion in limine to exclude expert testimony regarding the manner of death of the deceased. In this extraordinary appeal by the state, the single issue is whether the trial court properly excluded the testimony. Because it is our view that the trial court erred, the order is reversed and the cause is remanded for trial.
In 1983, Robbin C. Cooper, who was then married to the defendant, Wanda Gail Ayers, died of a gunshot wound to his abdomen. Cooper, an off-duty police officer, and the defendant had just returned to their home following a party at the residence of a friend. According to the defendant, she went to the bedroom of their two-year-old child, who was not at home at the time, while the deceased walked to another room. She claimed that she heard a gunshot and immediately fled the residence in order to call for help. It was her contention that she and the deceased had a good relationship that night and that there were no indications that he might commit suicide.
Soon after the death, Dr. James Bellenger, the medical examiner of Montgomery County, examined the body. Although he was unable to determine the manner of death, he did describe the type of death as "suspicious, unusual or unnatural." It was his opinion that the death could have been accidental, homicide, or suicide. A coroner's inquest was conducted and, after the examination of several witnesses, the jury found that "there was insufficient evidence presented to determine if the death was self-inflicted or inflicted by a person or persons unknown." See Tenn.Code Ann. §§ 38-5-101 to -121.
In March 2002, almost twenty years after the deceased's death, the defendant was indicted, the body was exhumed, and a second autopsy was performed. Dr. Bruce Levy conducted the second autopsy and concluded that the death occurred as a result of homicide. In a motion in limine, the defense argued that the state intended to rely upon Dr. Levy's opinion, which was not grounded in fact or scientific principles.
At the hearing on the motion, Dr. Levy, a forensic pathologist and chief medical examiner for the state, testified that he had conducted approximately 3,500 autopsies and supervised several thousand more. He recounted his extensive education, training, and experience in the field of forensic pathology. He stated that in connection with the autopsy in this case, he had examined twelve photographs taken of the deceased at the time of his death, he had read the coroner's inquest transcript, and he had reviewed the report prepared by Dr. Bellenger. Dr. Levy, who had been asked to investigate the circumstances of *620 the deceased's death by the Tennessee Bureau of Investigation, stated that the body of the deceased was in an "excellent state of preservation" and that he was able to visualize the stippling around the wound to the abdomen. He made the following observations with regard to the damage done by the gunshot:
Stippling in terms of clothing would be small defects in the clothing and in terms of the skin it would be small abrasions or tears, lacerations of the skin caused by fragments of burning gunpowder, unburnt gunpowder and any other type of debris that might be in the weapon that is propelled out at the same time as the bullet. Grease or dirt or things of that nature . . . .
Dr. Levy estimated that the deceased had been shot from a distance of six inches to two feet but more likely closer to six inches. It was his opinion that the manner of death was homicide. He explained his opinion as follows:
First, the injury was clearly not an injury that was a contact range. It was an intermediate range [wound] of six inches or greater from the body at the time that the gun was fired. The location of the wound was a location that is very unusual in cases of suicide, fewer than about one-half of one percent of all handgun suicides are shots to the abdomen. About one percent of suicidal handgun wounds are also not contact. So those were two factors of physical evidence that spoke against this being a self-inflicted wound.
The position of the body from the photographs [ ] of the scene, the pattern of blood on Mr. Cooper's shirt was [consistent] with him being in a lying position at the time that he was shot. The presence of the weapon from underneath his left hand on the floor when he was right-handed is also an unusual finding in self-inflicted gunshot wounds. There was no[ ] reported history anywhere in the records of depression or suicide ideation, which are softer factors, but again, factors that I did consider.
And based on all that, it was my opinion that Mr. Cooper did not shoot himself and therefore, he was shot by another person and that would make it by definition of a medical examiner, a homicide.
Dr. Levy testified that his opinions were based upon recognized principles within the forensic pathology community. He stated that he relied on statistical information published in three textbooks used by forensic pathologists throughout the country.
When asked on cross-examination whether he would be able to rule out accidental death or suicide without the studies referenced in the textbooks, Dr. Levy contended that his opinion was also based upon his "own experience in thousands of autopsies." He explained that he had never seen anyone commit suicide by a shooting in the abdomen from such a distance.
The trial court excluded the evidence. Its basis for exclusion were Rules 403, regarding the exclusion of relevant but unfairly prejudicial or confusing evidence, and 702, which relates to expert testimony, of the Tennessee Rules of Evidence.
Generally, the admission of expert testimony is largely entrusted to the sound discretion of the trial court. State v. Ballard, 855 S.W.2d 557, 562 (Tenn. 1993). On appeal, "[t]he abuse of discretion standard contemplates that before reversal the record must show that a judge `applied an incorrect legal standard, or reached a decision which is against logic or reasoning that caused an injustice to the party complaining.'" State v. Coley, 32 S.W.3d 831, 833 (Tenn.2000) (quoting State *621 v. Shirley, 6 S.W.3d 243, 247 (Tenn.1999)); see also State v. Shuck, 953 S.W.2d 662, 669 (Tenn.1997).
The admissibility of expert testimony is governed by Rules 702 and 703 of the Tennessee Rules of Evidence. McDaniel v. CSX Transp., Inc., 955 S.W.2d 257, 264 (Tenn.1997). Rule 702 addresses the need for expert testimony and the qualifications of the expert:
If scientific, technical, or other specialized knowledge will substantially assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise.
Tenn. R. Evid. 702.
Its counterpart, Rule 703, focuses on the reliability of expert opinion testimony:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. The court shall disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack of trustworthiness.
Tenn. R. Evid. 703.
In McDaniel, our supreme court concluded that to determine "the standard of admissibility of scientific evidence requires an analysis of the unique language found in Rules 702 and 703 of the Tennessee Rules of Evidence." 955 S.W.2d at 264. Our high court observed that Rule 702 requires that the evidence "substantially assist the trier of fact," while the federal rule requires only that the evidence "assist the trier of fact." Id. The court concluded that the probative force of expert testimony must be stronger in this state's courts than under the federal rules. Id. Rule 703 provides that trial courts "`shall disallow testimony in the form of an opinion or inference if the underlying facts or data indicate a lack of trustworthiness.'" Id. (quoting Tenn. R. Evid. 703). Even if expert testimony tends to provide substantial assistance to the jury, the testimony is admissible only if it is based upon reliable facts or data. Shuck, 953 S.W.2d at 668.
"To give expert testimony, one must be particularly skilled, learned or experienced in a science, art, trade, business, profession or vocation. The expert must possess a thorough knowledge upon which he testifies that is not within the general knowledge and experience of the average person." Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 443 (Tenn. 1992) (citing Kinley v. Tennessee State Mut. Ins. Co., Inc., 620 S.W.2d 79, 81 (Tenn.1981)). Evidence regarding statistical probabilities is outside the common understanding of the jury. State v. Ward, 138 S.W.3d 245, 275 (Tenn.Crim.App.2003). Further, Tennessee Rule of Evidence 704 provides that "testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." Tenn. R. Evid. 704.
As indicated, Rule 403 pertains to the relevance of testimony:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or *622 needless presentation of cumulative evidence.
Tenn. R. Evid. 403.
Here, the trial court's primary concerns were the trustworthiness of the statistical studies relied upon by Dr. Levy and whether the testimony would substantially assist the trier of fact to understand the evidence or to determine a fact in issue, as required by Tennessee Rule of Evidence 702. The trial court's sole ground for excluding the testimony under Rule 403 was that the probative value of the testimony was substantially outweighed by the danger of misleading the jury.[1] Again, the court's concern was with the statistical studies referenced by Dr. Levy.
When deciding to exclude Dr. Levy's opinion that death was the result of homicide, the trial court relied upon our decision in State v. Ward. In Ward, two doctors, including Dr. Levy, testified as to the manner of death. Their testimony was rooted in a theory known as the "rule of three." According to that theory, whenever three or more deaths of children under the care of a single caretaker occur where there is no known disease, trauma, or explanation for the deaths, the deaths are ruled homicides. The first death would initially be classified as sudden infant death syndrome (SIDS); upon a second death, although a SIDS classification would be appropriate if it were the first death, the death would be classified as uncertain or undetermined; but in a third death and subsequent deaths, the manner of death would be homicide, and the manner of death determined in the previous two deaths would be reclassified to homicide. Holding that the "rule of three" was not a proper foundation for expert opinion testimony, the trial court in a pre-trial hearing prohibited the experts in the case from mentioning the "rule of three" at trial but allowed the experts to render opinions as to cause of death. On appeal, however, this court found that the "rule of three" was "[c]ritical to the basis and foundation of each expert witness's conclusion" at trial even though neither of them made specific reference to the term. 138 S.W.3d at 268. Because the opinions offered at trial were based solely upon an improper foundation, the convictions were reversed and the case was remanded for a new trial. Id. at 272.
Here, the circumstances are distinguishable. The threshold question is whether death was the result of homicide. In that regard, the testimony would provide substantial assistance to the trier of fact. Moreover, Dr. Levy's testimony is not entirely dependent upon statistical studies as was his testimony in Ward. He specifically contended that his observations, skill, training, and experience were a separate basis for his opinion. As a basis for his opinion, Dr. Levy explained, "The photographs which showed his hands, wrists and forearm area, showed an absence of any gun powder residue or any stip[p]ling caused by the cylinder gap in a revolver and that indicated . . . that the weapon was not in his hands at the time that it was fired." He testified that he had studied many still shots of weapons just after having discharged a bullet and that he had always observed a cloud of soot that is discharged simultaneously with the bullet. It was his conclusion, based upon experience and training, that soot would have *623 been visible on Mr. Cooper's forearms, wrists, and hands had he shot himself. That there would be some amount of residue on Mr. Cooper's arms is not an opinion dependent on any statistical probabilities.
Furthermore, although experts' opinions must be based on trustworthy information, experts are permitted to rely on the work of others in the field. See Tenn. R. Evid. 702, 703. Experts are not required to have personally reproduced the results of every study upon which they rely, nor are they required to validate every aspect of each study. During intense cross-examination, Dr. Levy stated as follows:
I would repeat that these studies have been subjected to peer review. They're in journals published by professional organizations in the forensic sciences; they are text books that are accepted and used by every forensic pathologist in the United States, and it would be impossible for any forensic pathologist to have to independently validate every single paper that has ever been published in forensic pathology before they could use it for their information. That would mean we would spend all of our time just reviewing everybody else[']s work. We would never be able to do our own work.
Testimony is excluded, based on Rule 703, only when the underlying facts indicate a lack of trustworthiness. Id. Our supreme court in McDaniel listed the following nonexclusive factors that trial courts may consider when determining whether the data and facts underlying expert opinion testimony indicate a lack of trustworthiness:
(1) whether scientific evidence has been tested and the methodology with which it has been tested; (2) whether the evidence has been subjected to peer review or publication; (3) whether a potential rate of error is known; (4) whether . . . the evidence is generally accepted in the scientific community; and (5) whether the expert's research in the field has been conducted independent of litigation.
McDaniel, 955 S.W.2d at 265.
Dr. Levy testified that the studies upon which he relied are published in textbooks "used by every pathologist in the United States." It was also his view that the studies had survived the scrutiny of peer review and that the studies were of the type relied upon by other experts in the field of forensic pathology. Furthermore, the research leading to the criteria for distinguishing between homicides and suicides was obviously conducted independently of this prosecution. These considerations lead us to conclude that the studies relied upon are trustworthy. Nothing in the record indicates otherwise.
"[T]he weight to be given [expert testimony] is a question for the jury under careful instruction of the trial judge." Mullendore v. State, 183 Tenn. 53, 62, 191 S.W.2d 149, 152 (1945); see also State v. Sparks, 891 S.W.2d 607, 616 (Tenn.1995); State v. Anderson, 880 S.W.2d 720, 732 (Tenn.Crim.App.1994). The trial court's concern with a jury "find[ing] guilt based on probabilities and odds rather than on the mandated standard of proof beyond a reasonable doubt" may be resolved with appropriate jury instructions or by exclusion of the foundation testimony. "If the bases of expert testimony are not independently admissible, the trial judge should either prohibit the jury from hearing the foundation testimony or should deliver a cautionary instruction." Tenn. R. Evid. 702, Advisory Commission Comment. The defendant, of course, will have an opportunity at trial to thoroughly cross-examine Dr. Levy on his expert opinion, as well as present experts of her own. The ultimate question, in our view, is one for the jury.
*624 Accordingly, the judgment of the trial court is reversed and the cause is remanded.
NOTES
[1] "[T]he rule suggests that the evidence is to be admitted unless the other listed considerations greatly outweigh the probative value of the evidence. This approach means that Rule 403 `is an extraordinary remedy that should be used sparingly.' If the balance is close, the evidence should be admitted. By adopting the `substantially outweighed' test, Rule 403 places a significant burden on the party who wants evidence excluded." Neil P. Cohen et al., Tennessee Law of Evidence § 4.03[4], at 4-54 (4th ed.2000) (footnote omitted). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381769/ | 27 Cal.2d 496 (1946)
In re THOMAS JAMES JINGLES, on Habeas Corpus.
Crim. No. 4686.
Supreme Court of California. In Bank.
Jan. 4, 1946.
Edward D. Mabson for Petitioner.
Robert W. Kenny, Attorney General, and David K. Lener, Deputy Attorney General, for Respondent.
SPENCE, J.
Petitioner, who is in the custody of the sheriff of Contra Costa County, seeks his release on habeas corpus.
Petitioner was charged in the Police Court of the City of Richmond with a misdemeanor to wit: a violation of section 5 of the Dangerous Weapons' Control Law of 1923 (Stats. 1923, p. 695; Deering's Gen. Laws, 1944, Act 1970), in that on or about August 15, 1945, in the city of Richmond, he had in his possession a revolver, a deadly weapon, capable of being concealed on his person. Upon his plea of guilty, entered on August 16, 1945, the imposition of sentence was suspended and he was placed on probation for a period of one year upon the condition, among others, that he serve six months in the county jail.
The writ was issued by this court upon the filing of a petition in which petitioner alleged: (1) that he "was not represented by, nor did he have the assistance of, counsel, nor did he competently, intelligently, completely, or at all, waive the assistance of counsel on his said trial, nor was he given the opportunity of obtaining the aid and assistance of counsel" (Art. I, 13, Constitution of the State of California); (2) that a trial by jury was not waived in open court "by defendant and his counsel" (Art. I, 7, Constitution of the State of California); (3) that the court pronounced judgment forthwith and in less than six hours after the plea of guilty was entered contrary to the provisions of section 1449 of the Penal Code; and (4) that petitioner was convicted and is now confined "for the commission of an act which is not a crime."
A return was filed herein which included a certified copy of the entries in the "Criminal Docket of the Police Court of the City of Richmond" relating to the proceedings on the above-mentioned charge against petitioner. The pertinent portions of these entries read: "Arraigned and instructed. Plea--Guilty. Defendant requested that judgment be pronounced forthwith." Upon the return day, petitioner and Judge Leo G. Marcollo, who presided in the police court, testified regarding the proceedings there. While there was *498 some conflict in the testimony, we are satisfied that prior to petitioner's entry of his plea of guilty, he was fully instructed as to his right to be represented by counsel and as to his right to enter a plea of not guilty and to be tried by a jury.
Petitioner's precise claim under his first point is not entirely clear as his several allegations with respect to that point are made in the disjunctive and the authorities cited by petitioner deal only with the general right of the accused to the aid of counsel. [1] There can be no doubt that petitioner had the right to be represented by counsel for the constitutional guarantee extends to criminal prosecutions "in any court whatever." (Art. I, 13, Constitution of the State of California.) And while the right of an accused person to be represented by counsel should be jealously guarded, petitioned concedes that it is a right which may be waived. (In re Connor, 16 Cal.2d 701 [108 P.2d 10].) In this connection, we may state that it is a matter of common knowledge that it is a right which is very commonly waived in prosecutions for misdemeanors in justices' and police courts. If, therefore, under the facts as determined from the evidence, there was a valid waiver by petitioner of his right to be represented by counsel, it is of no moment that he "was not represented by, nor did he have the assistance of, counsel."
[2] As above indicated, we are satisfied that petitioner was fully instructed as to his rights and we are further satisfied that petitioner made no request at any time for an "opportunity of obtaining the aid and assistance of counsel." The question involved in petitioner's first point is therefore narrowed to his allegations that he did not "competently, intelligently, completely, or at all, waive the assistance of counsel." With respect to these allegations, petitioner states in his brief that he was "unfamiliar with court procedure and the legal rights of persons charged with crime." He testified to that effect on the return day, but if an accused person is fully instructed concerning his rights and thereafter, and with full knowledge of those rights, waives his right to be represented by counsel, the mere fact that he may not previously have been familiar with those rights or with court procedure is not determinative. Petitioner's testimony demonstrated that he is a man of average intelligence and that he was as capable as the average person of "competently, intelligently, and completely" waiving his right to be represented by counsel. There remains only the question of whether petitioner waived that right "at all." *499
[3] Under the facts as determined by this court, we are of the opinion that petitioner impliedly waived his right to counsel. It is true that there was no express waiver, but the authorities clearly indicate that an implied waiver is sufficient. (Cundiff v. Nicholson, 107 F.2d 162; McDonald v. Hudspeth, 108 F.2d 943; Franzeen v. Johnston, 111 F.2d 817.) [4] Having been fully advised concerning his right to be represented by counsel, petitioner's implied waiver of that right resulted from his act of voluntarily entering his plea of guilty, without having the aid of counsel and without requesting the aid of counsel, after being thus fully advised.
[5] Petitioner's second point appears to be that as he was not represented by counsel, there could be no valid waiver of a trial by jury by "defendant and his counsel." (Art. I, 7, Constitution of the State of California.) It is a sufficient answer to this point to state that after petitioner entered a valid plea of guilty, no question of the right to trial by jury or of the manner of waiving such right remained. (People v. Hough, 26 Cal.2d 618 [160 P.2d 549].)
Petitioner's third point was apparently abandoned upon the oral argument as the testimony showed without conflict that petitioner waived time for pronouncing judgment.
[6] Petitioner's fourth point is entirely without merit. The complaint was clearly sufficient "to give the accused notice of the offense of which he is accused" (Pen. Code, 952) and it was not necessary for the complaint to negative the exceptions specified in the statute. (In re Lord, 199 Cal. 773 [250 P. 714]; Ex parte Hornef, 154 Cal. 355 [97 P. 891].) [7] Furthermore, as was said in In re Leach, 215 Cal. 536 [12 P.2d 3], in quoting with approval from 13 California Jurisprudence at page 232: "The scope of inquiry upon habeas corpus into the sufficiency of an indictment or information is limited, for, although the petitioner may be discharged if the pleading totally fails to charge an offense known to the law, if there is attempted to be stated an offense of a kind of which the court assuming to proceed has jurisdiction, the question whether the facts charged are sufficient to constitute an offense of that kind will not be examined into." (See, also, In re Wilson, 196 Cal. 515 [238 P. 359]; In re Kavanaugh, 180 Cal. 181 [180 P. 533].)
The writ is discharged and the petitioner is remanded to custody.
Gibson, C.J., Shenk, J., Edmonds, J., Carter, J., Traynor, J., and Schauer, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381773/ | 72 Cal.App.2d 844 (1946)
THOMAS FLINT, JR., Appellant,
v.
BOARD OF MEDICAL EXAMINERS OF THE STATE OF CALIFORNIA et al., Respondents.
Civ. No. 13051.
California Court of Appeals. First Dist., Div. Two.
Feb. 4, 1946.
Lionel Browne and Franklyn M. O'Brien for Appellant.
Robert W. Kenny, Attorney General, J. Albert Hutchinson and F. Walter French, Deputies Attorney General, for Respondents.
DOOLING, J.
The respondents moved to dismiss this appeal for appellant's failure to perfect or present any record on appeal. The motion is supported by a certificate of the clerk of the superior court as required by rule 42, Rules on Appeal. From this certificate it appears that judgment was entered on June 6, 1944; motion for new trial denied June 30, 1944; notice of appeal filed September 5, 1944; a preliminary stipulation under rule 6(b), Rules on Appeal filed September 14, 1944; notice to the clerk to prepare clerk's and reporter's transcripts filed November 4, 1944; and that no further steps for the preparation of either record have ever been taken.
Appellant made no counter showing but at the time set for hearing the motion counsel for appellant called to the attention of the court the fact that the clerk's certificate did not show that the clerk of the superior court had ever given to appellant the notifications of his estimates of the cost of preparing the reporter's and clerk's transcripts as provided in rules 4(c) and 5(c), Rules on Appeal. The two provisions are counterparts of one another and it will suffice to quote rule 5(c):
"The notice (to prepare transcript) given by the appellant under the foregoing provisions of this rule shall not be effective for any purpose unless, within 10 days after notification from the clerk of his estimate of the cost of preparing the transcript ... the appellant shall make arrangements with the clerk for the payment thereof."
Rules 4(d) and 5(d) make the time within which the transcripts shall be completed start only after the appellant has arranged for the payment of the cost of their preparation as required by rules 4(c) and 5(c).
[1] It is appellant's position, as stated on oral argument, that until he received the notifications of the estimates of the clerk of the cost of preparing the two transcripts no duty was *846 cast on him by the rules to do anything, and since it is not shown that such notifications were ever given the time to prepare neither transcript has ever started to run.
In this argument appellant overlooks the fundamental rule of appellate procedure that the burden is always upon an appellant to use reasonable diligence to perfect and prosecute his appeal. Where some step is required by the rules to be taken by an officer of the court and such officer delays unreasonably the appellant cannot sit by indefinitely and do nothing. He must exercise a reasonable amount of diligence to investigate any unwarranted delays and if necessary take steps to see that the legal duty is performed. (Caminetti v. Edward Brown & Sons, 23 Cal.2d 511 [144 P.2d 570]; Leeper v. Ginsberg, 58 Cal.App.2d 591 [137 P.2d 859]; Harris v. Burt, 47 Cal.App. 480 [190 P. 1058].)
[2] On the showing before us the notice to prepare the transcripts was filed on November 4, 1944. It is not shown that in the period of over one year between that date and the time that the motion to dismiss was presented appellant took any step of any sort to procure from the clerk the estimates provided for in rules 4(c) and 5(c); and we cannot assume, in the absence of a showing to that effect, that the clerk would wilfully refuse to perform his duty if the matter was called to his attention.
While rule 10(a) of the Rules on Appeal excuses an appellant for delays which are the fault of court officers, it makes him responsible for delay which "is the fault of the appellant." The unexplained delay of more than a year in procuring or attempting to procure the estimates required of the clerk by rules 4(c) and 5(c) can only be attributed to appellant's complete lack of diligence and is "the fault of the appellant" within the meaning of rule 10(a).
The appeal is dismissed.
Nourse, P. J., and Goodell, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381783/ | 200 S.W.3d 762 (2006)
Ronnie COLE, Jr., Appellant,
v.
The STATE of Texas, Appellee.
No. 06-05-00183-CR.
Court of Appeals of Texas, Texarkana.
Submitted May 30, 2006.
Decided July 21, 2006.
Rehearing Overruled August 16, 2006.
*763 Rick C. Shumaker, Texarkana, for appellant.
Adam O. Fellows, Asst. Dist. Atty., Texarkana, for state.
Before MORRISS, C.J., ROSS and CARTER, JJ.
OPINION
Opinion by Chief Justice MORRISS.
The search warrant and its underlying probable-cause affidavit, used to justify a search for, and seizure of, cocaine in the possession of Ronnie Cole, Jr.,[1] are both independently signed and dated by Justice of the Peace Gibson "Hoot" Hadaway on a separate page attached to the main body of the respective document. But in each case, the separate signature page is in the form of a magistrate's verification of another's signature; obviously, language intended to be attached only to the affidavit, not to the warrant itself. In the trial court, Cole unsuccessfully sought to suppress the use of cocaine as evidence, evidence which is obviously key in Cole's conviction. The sole issue on Cole's appeal is whether the search warrant is valid in light of the signature requirements of Article 18.04(4) of the Texas Code of Criminal Procedure. We affirm the trial court's judgment because, regardless of the questionable language preceding the magistrate's separate signature on the warrant, the good-faith exception applies here to uphold the trial court's decision to admit the seized evidence.
At a hearing on a motion to suppress, the trial court is the sole trier of fact and evaluates witness testimony and credibility. Estrada v. State, 154 S.W.3d 604, 607 (Tex.Crim.App.2005). When reviewing a trial court's denial of a motion to suppress, we employ a bifurcated standard of review. Id. We afford great deference to the trial court's determination of historical facts and application of law to fact questions, which turn on an evaluation of credibility and demeanor of the witnesses. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim.App.1997). We review de novo the trial court's rulings on mixed questions of fact and law when those questions do not center on an evaluation of credibility and demeanor. Id. In the absence of explicit findings of fact, we review the evidence in a light most favorable to the trial court's ruling. Estrada, 154 S.W.3d at 607. We will uphold the trial court's ruling on a motion to suppress if it is reasonably supported by the record and is correct on any theory of law applicable to the case. Id.
The Texas Code of Criminal Procedure sets out specific requirements with which a valid search warrant must comply. See TEX.CODE CRIM. PROC. ANN. art. 18.04 (Vernon 2005). The requirement at issue here is that the search warrant be signed and dated by a magistrate. See TEX.CODE CRIM. PROC. ANN. art. 18.04(4); Gish v. State, 606 S.W.2d 883, 885 (Tex.Crim.App. 1980).
*764 Cole's contention centers on the use of the same signature form attached to both the affidavit and the search warrant. The clerk's record demonstrates that the two pages bearing the magistrate's signature are identical, except for the actual signatures and the dates added by hand to those pages. That was confirmed by the testimony of Coy Murray, the police officer who swore to and signed the probable-cause affidavit. The signature and date on the search warrant's signature page are not merely photocopied from the signature page of the affidavit, though the rest of the page appears to be simply a duplicate of the unsigned and undated signature page attached to the affidavit. So, while the same form was usedand doing so added incongruous language to the search warrantwe clearly have two magistrate signatures and dates.
Because the signature page on the search warrant uses the same language as the one found on the affidavit in support of the search warrant, Cole argues that Hadaway signed both documents only in his capacity as an officer authorized to administer oaths and that, therefore, the search warrant was not signed and dated by a magistrate as required by Article 18.04, meaning that no valid warrant supported the search and seizure by which officers obtained the cocaine.
In support of his position, Cole relies exclusively on Miller v. State, 703 S.W.2d 352 (Tex.App.-Corpus Christi 1985, pet. ref'd). The affidavit in support of the search warrant against Miller was on one side of a single piece of paper, on the reverse side of which was the search warrant which bore no signature. See id. at 353. The appellate court concluded the magistrate signed the affidavit in "his capacity as an officer ... authorized to administer an oath, not for the purpose of signing a search warrant." Id. That single signature on the affidavit was not deemed a compliance with the warrant signature requirements of Article 18.04. See id.
We find Miller distinguishable in that, in Miller, the search warrant was not signed at allthe only signature appeared on the supporting affidavit on the opposite side of the page. Here, the affidavit bears the magistrate's signature as an official authorized to administer an oath, and the search warrant bears a separately written date and signature by the magistrate, albeit on the same form as was used for the signature on the affidavit.
Murray, who prepared the affidavit and search warrant, concedes that the same forms were used in connection with both documents. Nevertheless, Article 18.04(4) requires only that the search warrant be signed and dated by a magistrate. See TEX.CODE CRIM. PROC. ANN. 18.04(4); Gish, 606 S.W.2d at 885. The only signature in Miller appeared on the side of the paper bearing the affidavit. See Miller, 703 S.W.2d at 353. The Miller court determined that the single signature could not serve a dual purpose. See id. Here, the record shows that, in apparent compliance with a literal application of the language of Article 18.04, Hadaway did, in fact, sign and date the warrant. In Miller, such was not the case.
Notwithstanding this literal application of Article 18.04, there remains the problem of that incongruous language which precedes Hadaway's signature attached to the warrant. As Cole suggests, the language on that form literally indicates that Hadaway signed the warrant for the purpose of administering an oath, a nonsensical result since there was no other signature to verify on the warrant. But whether this verification language necessarily limits the magistrate's signature and, thus, invalidates the warrant because of its resulting failure to comply with Article 18.04's signature *765 requirement is an issue we need not decide here.
Evidence, which otherwise should be excluded as being obtained in violation of some legal requirement,[2] should be admitted if "the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause." TEX.CODE CRIM. PROC. ANN. 38.23(b) (Vernon 2005); see Curry v. State, 808 S.W.2d 481, 482 (Tex.Crim.App.1991).
We hold that Article 38.23(b)'s good-faith exception applies to this instance of arguable noncompliance with Article 18.04. In this holding, we are guided principally by Dunn v. State, 951 S.W.2d 478, 479 (Tex.Crim.App.1997). See Miller, 703 S.W.2d at 354.
In Dunn, the magistrate had been presented with twenty pages of related affidavits and proposed warrants. Dunn, 951 S.W.2d at 479. The magistrate determined probable cause existed for all the warrants, including Dunn's arrest warrant, and signed nineteen of the twenty pages, inadvertently failing to sign Dunn's arrest warrant. Id. Police arrested Dunn, performed a search incident to his arrest, and obtained a confession from Dunn. Id. The magistrate's omission was noticed and remedied hours after Dunn was taken into custody. Id.
Just as probable cause is not an issue in this case, probable cause was not at issue in Dunn.[3] Instead, Dunn, arguing that the statement he made to police following his arrest was inadmissible under Article 38.23(a), challenged whether the arrest warrant ever issued when there was no compliance with Article 15.02(3)'s requirement that a magistrate sign an arrest warrant. See TEX.CODE CRIM. PROC. ANN. art. 15.02(3) (Vernon 2005). That is, Dunn argued, the magistrate's failure to sign the arrest warrant page meant that no arrest warrant ever issued and that the subsequent statement was illegally obtained. See Dunn, 951 S.W.2d at 478-79.
Despite the fact that Dunn's arrest warrant did not comply with Article 15.02's requirementssince there was no signature on itthe Texas Court of Criminal Appeals ruled that Article 38.23's good-faith exception allowed the technically defective warrant to support admission of Dunn's custodial statement. See id. at 479. There the record supported the conclusion that the officer acted in good faith reliance on the Dunn warrant, which had been issued was based on probable cause. Id. The Dunn court wrote that such a situation was tailor-made for the good-faith exception:
This appears to be exactly the type of situation intended to be covered by article 38.23(b). Evidence obtained by a police officer acting in good faith reliance upon a warrant based upon a magistrate's determination of probable cause should not be rendered inadmissible due to a defect found in the warrant subsequent to its execution.
Id.
Dunn, we think, controls the disposition of this case and directs us to uphold *766 the trial court's ruling on Cole's motion to suppress.[4] Given that Officer Murray witnessed Judge Hadaway sign both documents and that the search warrant, on its face, appears to meet the statutory requirements, the record reasonably supports the conclusion that the officers executing the search warrant acted in objective good faith reliance on the warrant issued by Hadaway based on probable cause. See TEX.CODE CRIM. PROC. ANN. art. 38.23(b).
We are to uphold the trial court's decision if reasonably supported by the record and if correct on any theory of law applicable to the case. See Estrada, 154 S.W.3d at 607. On that basis, we uphold the denial of Cole's motion to suppress based on the application of the statutory good-faith exception provided by Article 38.23 of the Texas Code of Criminal Procedure. See TEX.CODE CRIM. PROC. ANN. art. 38.23(b).
Accordingly, we affirm the trial court's judgment.
NOTES
[1] With the admission into evidence of the cocaine seized through the authority of the warrant, Cole was convicted of possession of cocaine and sentenced to fifty years' imprisonment. See TEX. HEALTH & SAFETY CODE ANN. § 481.115 (Vernon 2003).
[2] TEX.CODE CRIM. PROC. ANN. art. 38.23(a) (Vernon 2005); see Polk v. State, 738 S.W.2d 274, 276 (Tex.Crim.App.1987).
[3] We note this fact in recognition of authority that characterizes Article 38.23(b)'s good-faith exception as more limited than the federal constitutional good-faith exception to the exclusionary rule. See Curry, 808 S.W.2d at 482 (reiterating that "Art. 38.23(b) requires a finding of probable cause, while the exception enunciated in [United States v. Leon, 468 U.S. 897, 922-24, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)] appears more flexible in allowing a good faith exception if the officer's belief in probable cause is reasonable."). Since probable cause is not challenged in this case, we need not apply the distinction here.
[4] We note, too, that our sister court in Corpus Christi has suggested that, on the facts before us, a good-faith exception would apply. In Miller, the case on which Cole relies, the good-faith exception was not applied since the completely unsigned search warrant in Miller was so facially deficient. The Miller court addressed the constitutional good-faith exception as explained in Leon, 468 U.S. at 922-24, 104 S.Ct. 3405. See Miller, 703 S.W.2d at 354. Here, however, we have a search warrant which is not "so facially deficient." In fact, Cole's contention centers on the concept of the capacity in which Hadaway signed the search warrant, a concept not as apparent on the face of the search warrant as the total absence of a signature. The search warrant here was signed unlike the search warrant in Miller. So, from Miller, we find support for our disposition, contrary to Cole's position. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381808/ | 200 S.W.3d 805 (2006)
Alan Toves HIPOLITO, Appellant,
v.
Tracy Jeanne HIPOLITO, Appellee.
No. 05-05-01553-CV.
Court of Appeals of Texas, Dallas.
August 15, 2006.
Rehearing Overruled September 21, 2006.
Michael A. Barragan, Michael A. Barragan, P.C., Dallas, for appellant.
Roger A. Jacobsen, Legal Aid of Northwest Texas, Dallas, for appellee.
Before Justices MORRIS, O'NEILL, and MAZZANT.
OPINION
Opinion by Justice MORRIS.
In this divorce action, Alan Toves Hipolito appeals from the trial court's final divorce decree awarding spousal maintenance to Tracy Jeanne Hipolito. In four interrelated issues, appellant generally asserts *806 the trial court erred in awarding appellee spousal maintenance because she did not meet the Texas Family Code's eligibility requirements for such maintenance. Appellant specifically contends that because the parties' marriage was less than ten years in duration, appellee was ineligible for maintenance under section 8.051(2) of the family code. Concluding appellant's issues lack merit, we affirm the trial court's judgment.
The undisputed evidence reveals the parties were married on May 30, 1995. At trial, on July 27, 2005, both parties admitted they were currently married to each other. After the trial, the trial court signed a divorce decree awarding appellee spousal maintenance of $1000 per month for twelve months beginning September 2005 and $800 per month for six months beginning September 1, 2006.
In four issues, appellant generally complains the trial court erred in awarding appellee spousal maintenance because the parties (1) were married less than ten years at the time the petition for divorce was filed and (2) lived together as husband and wife less than ten years.[1] Underlying appellant's arguments is his contention that section 8.051(2) of the family code requires a couple to be married for at least ten years at the time the divorce action is filed or, alternatively, living together as husband and wife for at least ten years before a spouse becomes eligible for maintenance. We do not agree with appellant's contention.
We will not reverse a trial court's award of spousal maintenance unless it is shown that the trial court abused its discretion in making the award. See Pickens v. Pickens, 62 S.W.3d 212, 214 (Tex.App.-Dallas 2001, pet. den'd). A trial court abuses its discretion when it acts arbitrarily, unreasonably, without regard for guiding legal principles, or without supporting evidence. Id.
Section 8.051 of the Texas Family Code sets forth the eligibility requirements for spousal maintenance. Section 8.051(2) permits maintenance if "the duration of the marriage was ten years or longer" and other prerequisites, not at issue here, are satisfied. TEX. FAM.CODE ANN. § 8.051(2) (Vernon 2006). When construing a statute, our primary objective is to give effect to the legislature's intent. Sheshunoff v. Sheshunoff, 172 S.W.3d 686, 692 (Tex.App.-Austin 2005, pet. denied). To discern that intent, we look first to the plain and common meaning of the statute's words. Id. We also consider the statute as a whole rather than focus on isolated portions. Tex. Dep't. of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004). We presume every word in a statute is used for a purpose and must be given effect if reasonable and possible. Tex. Workers' Comp. Ins. Fund v. Del Indus., Inc., 35 S.W.3d 591, 593 (Tex.2000). Likewise, every word excluded from a statute must be presumed to have been excluded for a purpose. City of Austin v. Quick, 930 S.W.2d 678, 687 (Tex.App.-Austin 1996), aff'd, 7 S.W.3d 109 (Tex.1999).
Appellant urges us to measure the statute's ten-year requirement from the date of marriage to the filing of the divorce petition or, alternatively, to the date the parties ceased living together as husband and wife. Under either of these constructions, the duration of appellant's marriage *807 would be less than required for spousal maintenance under section 8.051(2). The plain language of the statute, however, does not support appellant's construction.
The definition of "duration" in Webster's Dictionary includes "the portion of time during which something exists." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 730 (1993). Consequently, the statute merely requires the marriage to be in existence for ten years or longer before a spouse can be eligible for maintenance. The parties' marriage still existed at the time the petition for divorce was filed and when they stopped living together as man and wife. If the legislature intended to limit eligibility for spousal maintenance to only those who had been married for ten years before the date of filing the petition for divorce or those who had lived together as husband and wife for ten years or longer, it could have easily done so. In fact, the legislature used the filing date of the divorce petition when it conditioned eligibility for spousal maintenance under subsection 8.051(1)(A). Eligibility under that section permits maintenance if the potential payor spouse has a criminal conviction constituting an act of family violence within two years before the date of filing of the divorce. See TEX. FAM.CODE ANN. § 8.051(1)(A) (Vernon 2006). We therefore conclude a spouse is eligible for maintenance under section 8.051(2) if the marriage has been in existence for at least ten years. Because there was evidence that the parties had been married at least ten years at the time of the trial, the trial court did not err in awarding appellee spousal maintenance on this basis. We resolve all four of appellant's issues against him.
We affirm the trial court's judgment.
NOTES
[1] Appellant's specific issues are as follows: (1) appellee was not eligible for spousal maintenance under section 8.051; (2) the parties were married less than ten years at the time the petition for divorce was filed; (3) the parties lived together as husband and wife less than ten years; and (4) the trial court abused its discretion in awarding spousal maintenance. Because the disposition of all of these issues ultimately require us to construe the relevant portion of section 8.051(2), we analyze these issues together. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381804/ | 200 S.W.3d 469 (2004)
May MORGAN, Appellant
v.
SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, Appellee.
No. CA 04-95.
Court of Appeals of Arkansas, Divisions II, III.
December 15, 2004.
Phil Stratton, Conway, for appellant.
*470 Andy Lee Turner, Little Rock, for appellee.
SAM BIRD, Judge.
In a previous opinion, May Morgan v. Farm Bureau Mutual Ins. Co. of Arkansas, (Ca 04-95), 88 Ark.App. 52 (October 6, 2004), we considered Morgan's appeal from the Faulkner County Circuit Court, which had granted summary judgment in favor of the appellee. We reversed the trial court, concluding that summary judgment was inappropriate because there was a fact issue remaining as to whether the appellant, May Morgan, had a criminal record. Appellee has now filed a petition for rehearing, in which it makes an argument that our original decision was erroneous. After carefully reconsidering the issues, we find that appellee's argument is persuasive. Therefore, we grant the petition for rehearing and issue this substituted opinion affirming the trial court's grant of summary judgment.
As a preliminary matter, although appellant's notice of appeal and the record filed with the clerk of this court show that the appellee is Farm Bureau Mutual Insurance Company of Arkansas (Farm Bureau Mutual), it is obvious from the parties' pleadings and the court's orders filed in the case, and it appears to be agreed by the parties, that the intended appellee is Southern Farm Bureau Casualty Insurance Company (Southern Farm Bureau), a fact also recognized in this court's previous opinion. To briefly explain, this action was originally commenced by May Morgan to recover benefits under an automobile insurance policy alleged to have been issued to her by Farm Bureau Mutual. When Farm Bureau Mutual answered, alleging that it did not issue the subject policy, but that it was issued, instead, by Southern Farm Bureau, Morgan amended her complaint to make Southern Farm Bureau the defendant and, simultaneously, moved to dismiss her complaint against Farm Bureau Mutual. Thereafter, Southern Farm Bureau filed its motion for summary judgment, and the court eventually entered its order granting summary judgment in favor of Southern Farm Bureau. Morgan appeals from that order. Therefore, in this substituted opinion, we take this opportunity to correct the style of the case to be "May Morgan v. Southern Farm Bureau Cas. Ins. Co." and to delete the name Farm Bureau Mutual Insurance Company of Arkansas as a party to this appeal. In this opinion, reference will be made to Southern Farm Bureau as the sole appellee, regardless of what name formerly identified the appellee.
In Cox v. Keahey, 84 Ark.App. 121, 128, 133 S.W.3d 430, 434 (2003), we recounted the well-settled standard of review for summary-judgment cases:
The moving party is entitled to summary judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is not a genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. [Alberson v. Automobile Club Interins. Exch., 71 Ark.App. 162, 27 S.W.3d 447 (2000)]. All proof submitted with a motion for summary judgment must be viewed in the light most favorable to the party resisting the motion, and any doubts and inferences must be resolved against the moving party. McWilliams v. Schmidt, 76 Ark. App. 173, 61 S.W.3d 898 (2001). Summary judgment is not appropriate where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable minds might differ. Lee v. Hot Springs Village Golf Schs., 58 Ark.App. 293, 951 S.W.2d 315 (1997).
*471 The facts giving rise to this appeal are that on September 25, 2002, May Morgan made application to Southern Farm Bureau for a policy of automobile insurance, insuring an automobile owned by her.[1] The application contained questions asking whether the applicant or any member of her household had ever been arrested or convicted of a felony. Morgan answered both of those questions "No." Several months later, when Morgan made a claim for damages to the automobile resulting from a single-car collision, Southern Farm Bureau notified her that, because of her "misrepresentation of a material fact," the policy for which she applied would not be issued. Southern Farm Bureau also tendered to Morgan a check for the premium she had paid with her application. Morgan filed suit alleging a cause of action under the policy for damages to her car and a cause of action for damages on account of Southern Farm Bureau's bad faith in refusing to issue the insurance policy.
Southern Farm Bureau answered the complaint, alleging that Morgan had made material misrepresentations in her application for the insurance policy. Thereafter, Southern Farm Bureau filed its motion for summary judgment to which it attached, as exhibits, the depositions of May and Tommy Morgan and the affidavit of its underwriter.
The Morgans' depositions established that May knew that Tommy had an extensive criminal record, including a number of arrests, and at least one felony conviction for which he served a term in prison. In her deposition, Morgan admitted that she knew about Tommy's record when she completed the insurance application, but she stated that she "wasn't thinking about it." Tommy Morgan was more succinct in his deposition, stating that his felony record was "none of their business," and that it was "something we don't go around telling" because it presented problems that he eliminated by "just keep[ing] it to myself." The underwriter's affidavit stated that questions posed to applicants for insurance policies seek information that Southern Farm Bureau considers highly significant to the risk, that Southern Farm Bureau relies upon the answers given by the applicants in evaluating whether to accept the risk, and that Southern Farm Bureau would not have issued the policy "had the truth of the criminal records of Tommy and May Morgan been revealed."
Morgan's response to the motion alleged that because the underwriter was not a disinterested witness, his affidavit could be considered disputed, and that the materiality of the alleged misrepresentation was a genuine issue of material fact.
The trial court granted Southern Farm Bureau's motion for summary judgment, finding that Morgan intentionally and falsely misrepresented that she and her husband, Tommy Morgan, had never been arrested and that her husband had never been convicted of a felony, whereas their depositions revealed that both had been previously arrested and that Tommy Morgan had "an extensive criminal record which included several felony convictions." The court relied on Ferrell v. Columbia Mut. Casualty Ins. Co., 306 Ark. 533, 816 S.W.2d 593 (1991) (an applicant's misrepresentations about an authorized driver's record of moving traffic violations were material to the issuance of an automobile insurance policy) as authority for the proposition that misrepresentations about one's *472 arrest or criminal records are material to the risk.
Morgan appeals the trial court's grant of summary judgment, raising two points: (1) the trial court erred in accepting the affidavit of appellee's employee as uncontroverted; and (2) the trial court erred in finding a material misrepresentation of fact in the absence of proof of materiality.
Morgan is clearly wrong on her first point for reversal, that the trial court erred in accepting the agent's affidavit as uncontroverted. It is well settled that uncontroverted affidavits filed in support of a motion for summary judgment are accepted as true for purposes of the motion. Alexander v. Flake, 322 Ark. 239, 910 S.W.2d 190 (1995); Inge v. Walker, 70 Ark.App. 114, 15 S.W.3d 348 (2000). Morgan cites two cases, Motors Ins. Corp. v. Tinkle, 253 Ark. 620, 488 S.W.2d 23 (1972) and Old Republic Ins. Co. v. Alexander, 245 Ark. 1029, 436 S.W.2d 829 (1969), for the proposition that the testimony of an interested witness is never considered to be uncontroverted. Those cases are distinguishable, however, because there the supreme court was considering the weight to be given to the testimony of an interested witness at trial and not in the context of an affidavit in support of a motion for summary judgment.
We also disagree with Morgan on her second point, that the trial court erred in finding a material misrepresentation of fact in the absence of proof of materiality. As already noted, the underwriter's affidavit established that, in assessing the risk and deciding whether to issue a policy, Southern Farm Bureau relied upon the information provided by applicants in their responses to questions about their arrest and criminal records. Except for her unsupported assertion that there exists a genuine issue as to a material fact, Morgan presented to the trial court neither a contradictory affidavit nor authority for her argument that such misrepresentations are not material.
Morgan cites Brooks v. Town & Country Mut. Ins. Co., 294 Ark. 173, 741 S.W.2d 264 (1987), in arguing that the materiality of a misrepresentation is a question of fact. However, Morgan's reliance on Brooks is misplaced. In Brooks, the supreme court held that the trial court, sitting as fact-finder, had erred in finding, in the absence of any evidence, that a material misrepresentation of fact had occurred when Mrs. Brooks failed to reveal in her homeowner policy application that she had experienced a previous fire loss. Unlike the case now before us, Brooks involved an appeal from a verdict after trial and was not an appeal from a grant of summary judgment. But more importantly, in the case at bar, which is a summary-judgment case, there was proof before the court in the form of the underwriter's affidavit that the false information that Morgan provided was significant to Southern Farm Bureau in its assessment of the risk to be assumed, and material to its decision of whether to issue the policy.
Finding no merit in either of appellant's points on appeal, we hold that the trial court's grant of summary judgment was appropriate.
Affirmed.
VAUGHT, CRABTREE, and ROAF, JJ., agree.
STROUD, C.J., and HART, J. would deny the petition for rehearing.
NOTES
[1] Simultaneously with May Morgan's application for the automobile insurance policy with Southern Farm Bureau, an application to Farm Bureau Mutual was being completed by her husband, Tommy Morgan, for a homeowner's insurance policy on their home. However, this appeal relates only to the automobile policy. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381813/ | 200 S.W.3d 453 (2004)
WASTE MANAGEMENT AND TRANSPORTATION INSURANCE COMPANY, Appellants
v.
Jack ESTRIDGE, Appellee.
No. CA 04-1241.
Court of Appeals of Arkansas, En Banc.
December 15, 2004.
PER CURIAM.
Motion for Rule on the Clerk is denied.
SAM BIRD, Judge, dissenting.
Appellants, Waste Management and Transportation Insurance Company, have filed a motion for rule on the clerk, seeking an order directing the clerk to docket the record tendered in connection with this appeal. The facts giving rise to this motion are certainly unique and, considering the state of the law, I can understand that there would be a difference of opinion as to whether the motion should be granted. This court has voted to deny the motion. I would grant it.
Appellants' motion presents two propositions bearing on the question of whether the clerk should be directed by us to file the record. As one ground for their motion they allege that the record was not tendered late because the ninety day period for filing the record in a workers' compensation case commences on the day that the fifteen dollar "appeal processing fee" called for by Ark.Code Ann. § 11-9-711 is actually paid to the Commission by an appellant, instead of on the day that the notice of appeal is filed. Appellants argue that although their notice of appeal was "submitted to" the Commission on August 5, 2004, the notice could not be considered as having been "filed" for jurisdictional purposes until they paid the mandatory processing fee on August 9. Thus, they argue that the record tendered to the court clerk on November 8, being within ninety days of August 9, was timely filed.
I would not grant appellants' motion on that basis. The documentation appellants have submitted to us with their motion establishes that their notice of appeal was received in the office of the Commission on August 5 or 6, 2004[1]. The Commission responded with a letter dated August 6, 2004, acknowledging receipt of the notice and advising that payment of a $15 processing fee was required "prior to our compiling and certifying the record." Ark. Code Ann. § 11-9-711(b)(1)(C) (Supp. 2003) provides that "[t]he commission may assess and collect an appeal processing fee not to exceed fifteen dollars ($15.00) from the appellant and, if cross appealed, the cross appellant."[2] I discern no language *454 in this statute that can reasonably be interpreted to mean that a notice of appeal that is received by the Commission is not to be considered as "filed," or that the Commission is empowered to decline to file a notice of appeal until the appeal processing fee is paid. Rather, it is more logical, and consistent with the statute, that the notice of appeal is considered to be filed when received at the Commission, but that the Commission will not process (i.e., compile and certify) the record until the fee is paid. Thus, I find no merit in appellants' argument that their delay in paying the processing fee also delayed the filing of their notice of appeal and, thereby, extended the ninety-day period within which to file the record with our court clerk.
On the other hand, I do find merit in appellants' other argument. They argue that although their record may have been tendered to the court clerk more than ninety days after the notice of appeal was filed, the untimely filing was caused by the "extraordinary circumstances relating to the misleading, affirmative actions and words of the Clerk of the Commission[,] coupled with the Commission's failure to follow its notification procedures or procedures outlined by statute."
Arkansas Code Annotated section 11-9-711(b)(1)(A) provides:
The appeal to the court may be taken by the filing in the office of the commission,. . . a notice of appeal, whereupon the commission under its certificate shall send to the court all pertinent documents and papers, together with a transcript of evidence and the findings and orders, which shall become the record of the cause.
Instead of sending the record to the court after it has been completed, as required by the statute, the Commission long ago adopted a practice, well known to practitioners, of notifying appellants, by certified mail, when the record has been certified and is ready to be picked up, specifying the hours between which the record may be received at the Commission office, and advising counsel that he or she will be presented with the record, which is to be hand delivered to the court clerk with a check for $100. The Commission apparently has not attempted to formalize this alternative practice for lodging the record by the adoption of a rule.
In the present case, the documentation reflects that after appellants paid the $15 processing fee, the clerk of the Commission responded by letter dated August 10, 2004, to "Ms. Judy Wilber," appellants' counsel, acknowledging receipt of the fee, and advising her that she "will receive written notice of the transcript completion." The record was apparently compiled and certified by the Commission on October 14, 2004, because on that date the Commission clerk sent a notification letter, by "Certified Mail Return Receipt." However, that letter was addressed not to appellants' counsel, but to "Mr. Floyd Thomas," appellee's counsel (who, under the Commission's practice, had no duty to see to the record's filing), notifying him that the record was ready to be picked up and filed with the court clerk. Although it is reflected on the letter to Thomas that a copy was being also sent to Ms. Wilber, Ms. Wilber states to us that the copy was never received, a proposition I find entirely credible in view of the Commission clerk's flagrant error in sending the certified letter to the wrong party, notwithstanding *455 an abundance of correspondence before her indicating that the appellants in the case were Waste Management and Transportation Insurance Company, represented by Judy Wilber.
Therefore, appellants argue that, in this instance, the Commission has not only failed to follow the statutory requirement that it send the certified record to the court clerk, but that the Commission has adopted an alternative practice of notifying appellants' attorney, by certified mail, to pick up the record from the Commission and hand deliver it to the court clerk, which alternative practice the Commission has also failed to follow, because it sent the certified notice to counsel for the wrong party. I agree with this argument.
We have often held that the timely filing of the appeal record is an essential prerequisite to our jurisdiction to consider the appeal. In Novak v. J.B. Hunt Transp., 48 Ark.App. 165, 892 S.W.2d 526 (1995), appellant filed a timely notice of appeal from a decision of the Commission but was so late mailing her filing fee that the Commission received it on the last day that it could have been lodged with the clerk of this court; the Commission routed the fee and record to the clerk on the following day, which was one day past the ninety-day filing deadline. We denied appellant's motion for rule on the clerk, noting the supreme court's ruling in Morris v. Stroud, 317 Ark. 628, 883 S.W.2d 1 (1994), that the filing of the record on appeal is jurisdictional and that an appeal must be dismissed where the record is not timely filed.
In Davis v. C & M Tractor Co., 2 Ark. App. 150, 617 S.W.2d 382 (1981), we held that the ninety-day time period provided by Rule 5 of our Rules of Appellate Procedure applied to the filing of a record on appeal from the Workers' Compensation Commission, and that it is the responsibility of the appellant (or appellant's attorney should there be one) to see that the record is timely filed.
In Evans v. Northwest Tire Service, 21 Ark.App. 75, 728 S.W.2d 523 (1987), we called specific attention to the obligation of the attorney for an appellant to see that the record on appeal is filed within the proper period of time, and we placed the public on notice that variance from the ninety-day rule would no longer be permitted.
In Hilligas v. Potashnick Constr. Co., 51 Ark.App. 207, 912 S.W.2d 945 (1995), we noted that the failure to timely file the record in Novak and some other cases had resulted from appellant's reliance upon the Commission, after preparing the record, to file it within the required period of ninety days from the filing of the notice of appeal. We noted that, because the method for obtaining an extension of the filing time under Arkansas Rule of Appellate Procedure 5(b) does not apply to appeals from the Commission, the only way to extend the filing deadline in those cases, for all practical purposes, is a petition for writ of certiorari filed about three weeks before the record is required to be filed in the appellate court. Id. at 208-9, 912 S.W.2d at 946.
We have also recognized exceptions and have permitted an untimely filing in extraordinary circumstances. In Thomas v. Ark. State Plant Bd., 254 Ark. 997-A, 497 S.W.2d 9 (1973), the supreme court held that a devastating tornado, which damaged the attorney's home and law office and substantially increased his responsibilities as city attorney, fell within the category of forces of nature or act of God characterizing an unavoidable casualty productive of the most extraordinary circumstances to justify our permitting the tardy lodging of an appeal.
*456 Although it is clear from our rulings in previous cases that the neglect of an attorney in failing to timely file the record cannot be shifted to the clerk of the Commission, the documents provided to us in this case show that appellants' counsel exercised an appropriate degree of tenacity to ensure that the record was being compiled. For example, on September 24, 2004, email correspondence indicates that counsel's secretary contacted the Commission's clerk about the status of the record and was advised that "we just need to wait until she sends a letter stating that the transcript is ready to be picked up."
In my opinion, the case now before us falls somewhere between those in which we have declined to permit an untimely filing, and Thomas v. Arkansas State Plant Bd., supra, where we permitted an untimely filing because of extraordinary circumstances. None of the cases that I have found where we refused to permit an untimely filing involved circumstances such as exist here, where the Commission failed to fulfill its statutory obligation or to follow its long standing practice that was at variance with the statute.
I share the sentiment expressed by Justice George Rose Smith in his dissenting opinion in West v. Smith, 224 Ark. 651, 660, 278 S.W.2d 126, 132 (1955), where he said:
To dismiss a case other than on its merits is repugnant to any one's sense of justice. . . . The requirement of completely unavoidable casualty has been read into the law without, as far as I can see, any basis except a strong reverence for outworn technicalities. . . .
and the view of Judge James R. Cooper in Kissinger v. Turner, 49 Ark.App. 1, 894 S.W.2d 614 (1995), in which he said:
This question should be distinguished from the issue presented in the case . . . [of] Morris v. Stroud, 317 Ark. 628, 883 S.W.2d 1 (1994), which dealt with the authority of the trial court to extend the time for filing the record. Unquestionably, the trial court lacks authority to do so. This does not, however, speak to the authority of the appellate court to hear the appeal. If the timely lodging of the record on appeal was truly an element of the appellate court's jurisdiction, then it would follow that cases such as Thomas v. Arkansas State Plant Board (citation omitted), where the late filing of the record was permitted due to the Jonesboro tornado, the appellate court derived its jurisdiction from a natural calamity. I cannot believe that our jurisdiction is dependent upon the whims of the weather....
Kissinger, 49 Ark.App. at 2, 894 S.W.2d at 615 (Cooper, J., dissenting).
It appears to me that the circumstances of this case are sufficiently extraordinary to permit an exception to the rule. It is clear that the untimely filing would have been avoided if the Commission had either followed the requirement of the statute that it forward the record to the court clerk or followed its usual practice of sending a certified letter to appellant's attorney, informing her the record was ready to be picked up. I would grant appellant's petition and direct the clerk to file the record.
NOTES
[1] It appears most likely that the notice was mailed by appellants' counsel on August 5, and received by the Commission on August 6. The difference of one day is immaterial for the purposes of appellants' arguments.
[2] By Rule 18 IV of the Rules of the Arkansas Workers' Compensation Commission, the Commission exercised its authority to assess the appeal processing fee permitted by § 11-9-711, stating, "Any party who files an appeal from a compensation order or award made by the Full Commission shall be assessed a fifteen dollar ($15.00) processing fee. Such fee shall be paid by appellant and/or cross-appellant with the filing of appeal. The record shall not be compiled and certified until such time as the fee has been received and acknowledged by the Clerk of the Commission." While this rule sets a time for payment of the fee, it does not provide (and I do not believe the Commission would be authorized to provide by rule) that filing of the notice of appeal is to be delayed until the fee is received. Rather, it logically provides that the appeal record will not be processed until the processing fee is paid. Thus, an appellant who files a notice of appeal but does not pay the processing fee runs the risk of not having an appeal record to timely tender to the court clerk. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381806/ | 73 Cal. App. 2d 1 (1946)
RICHARD ATTEBURY, as Special Administrator etc., Appellant,
v.
ADA B. WAYLAND, Respondent.
Civ. No. 12947.
California Court of Appeals. First Dist., Div. Two.
Feb. 7, 1946.
John H. Leonard for Appellant.
Rankin, Oneal, Luckhardt & Hall and Stanford G. Smith for Respondent.
NOURSE, P. J.
Plaintiff, as special administrator of the estate of his deceased wife, Lina Attebury, brought this action against their daughter to quiet title to certain real property and to recover personal property in which he alleged a community interest.
The evidence presented to the trial court indicated that in 1910 plaintiff Richard Attebury with his wife and ten children moved from Kansas to Oregon where he engaged in the livestock business on a small scale. There was testimony to the effect that Mrs. Attebury also earned money and that one of her sons gave her some calves which she raised into a small herd and sold. In February, 1915, Louis Attebury, the family's eldest son, conveyed a house and lot in Standfield, Oregon, to "R. Attebury and Lina Attebury, husband and wife." Subsequently by deed dated April 1, 1915, plaintiff conveyed this property to his wife; it was stated in the instrument that the reason for the conveyance was that the property "should have been deeded directly to the said Lina Attebury, as she paid the entire consideration therefor, and this grantor herein had no interest thereto. Hence this deed from him to his said wife to place the title of record where it properly belongs." Finally, by a deed dated March 9, 1923, Lita Attebury and R. Attebury conveyed the property to one Virgie *3 Ball. Certified copies of the three deeds were admitted into evidence over plaintiff's general objection.
The evidence showed that decedent, who had received the monetary consideration for the sale of the Oregon property, left her husband and moved to Yuba City, California, with her son, Theodore. She received no support from plaintiff while living there. Mrs. Attebury purchased a partially completed house in Yuba City in her own name and her son finished the interior of the dwelling for her. The purchase price of approximately $650 was paid by the decedent from money she brought from Oregon, although its exact origin is left in doubt by the record. In 1927 Lina Attebury sold the Yuba City property for $1,250 and moved to San Jose where she resided with various of her children for a period of about five years.
In 1932 Mrs. Attebury moved to Santa Cruz and purchased the property which is the subject of this litigation for $550. The deed, dated September 21, 1932, conveyed the small house to her in her own name. She resided there until her death in 1943. In 1937 plaintiff lived with his wife for six months, after which time they separated again. Finally, by a deed dated December 15, 1938, and recorded on December 21, 1943, the decedent conveyed the Santa Cruz property to her daughter, Ada B. Wayland, defendant herein. The deed described the grantor as "Lina Attebury, a single woman."
Plaintiff commenced this suit to recover the Santa Cruz property from his daughter on the ground that it was purchased out of community funds and therefore was community property. He also prayed for the recovery of certain personal property which Mrs. Attebury's children had distributed among themselves. The trial court found that the house was the separate property of the decedent, that it had been conveyed to defendant and hence concluded that Mrs. Wayland is the owner of that property. The judgment awarded the real property to defendant and allowed plaintiff the sum of $150 as the value of his interest in the personalty. A motion for new trial was denied and plaintiff appeals from the judgment.
[1] The first contention on appeal is that the court committed prejudicial error in admitting the three Oregon deeds into evidence over appellant's objection. It is now claimed that they were not properly authenticated and that no proper foundation was laid for their admission. The record on appeal *4 shows that at the conclusion of the trial below the court instructed counsel to communicate with a searcher of records or an attorney at Pendleton, Oregon, for the purpose of checking the conveyance from Louis Attebury to his parents in 1915. Counsel for defendant agreed to carry out the court's instruction and plaintiff's attorney offered no objection. Subsequently when the three certified copies of the Oregon deeds were obtained they were offered in evidence by defendant. The record before us shows only that plaintiff objected on the ground that the deeds were incompetent, irrelevant and immaterial. However, the instruments were marked "court's exhibits" and were received in evidence. In view of the record showing only a general objection the specific objections raised by appellant at this time cannot be considered on appeal. It is well settled that an objection to evidence or to the introduction of exhibits into evidence during the trial of an action on the ground of incompetency, irrelevancy and immateriality is too general to be considered on appeal and that specific objections not urged below will not be considered on appeal. (Saecker v. Cohn, 180 Cal. 151, 153 [179 P. 890]; Crocker v. Carpenter, 98 Cal. 418, 421 [33 P. 271]; Bell v. Central Bank, 89 Cal. App. 551, 553 [265 P. 551]; French v. Atlas Milling Co., 17 Cal. App. 226, 227 and 228 [119 P.203].) The reason for this rule of law becomes apparent in a situation such as this. If, at the time the deeds were offered in evidence, counsel had objected to their admission on the specific ground that they had not been authenticated or proved as required by law it would have been a relatively simple procedure to have returned them to the state and county of their origin for the certification under subdivision 7, section 1918, Code of Civil Procedure, that the recorder of conveyances, who certified that they were true copies of the deeds recorded in his files, was actually in office at the time he attached his seal to such certificate. A specific objection would have allowed the party offering the evidence to have remedied the defect in the technical manner of the certification. But having failed to point out the error to the trial court, particularly where the vice is latent, a party cannot for the first time on appeal have the specific objection considered (2 Cal.Jur. 269).
[2] Appellant argues that the evidence did not support the finding of the trial court to the effect that the property was not purchased out of community funds and was the separate *5 property of the decedent. From the time Mrs. Attebury separated from her husband and came to California she entered into all real estate transactions in her name alone. The Santa Cruz property which is the subject of this action was conveyed to her alone and she subsequently deeded the property as "a single woman" to the defendant. Since 1889 section 164 of the Civil Code has provided that "... whenever any real or personal property, or any interest therein or encumbrance thereon, is acquired by a married woman by an instrument in writing, the presumption is that the same is her separate property. ..." Except as against a bona fide purchaser for value the presumption set forth in that code provision is disputable (Gilmour v. North Pasadena Land & Water Co., 178 Cal. 6, 8 [171 P. 1006]; Pabst v. Shearer, 172 Cal. 239, 242 [156 P. 466], but in order to overthrow the presumption the husband must establish by clear and convincing proof that the property was paid for with community funds. (Stafford v. Martinoni, 192 Cal. 724, 738 [221 P. 919]; Thompson v. Davis, 172 Cal. 491, 494 [157 P. 595]; Alferitz v. Arrivillaga, 143 Cal. 646, 649 [77 P. 657]; Vandervort v. Godfrey, 58 Cal. App. 578, 582 [208 P. 1017].) It is for the trier of facts to determine whether the evidence is sufficient to overcome the presumption. Stafford v. Martinoni, supra, and cases cited.
[3] Conceding the proposition that respondent was not a bona fide purchaser for value the evidence presented to the trial court was sufficient to support the finding now under attack. The testimony in support of appellant's claim was to the effect that Mrs. Attebury had no separate funds when the family arrived in Oregon and that any money subsequently acquired was community property. There was, however, substantial evidence to the contrary. It was shown that the decedent had sold a small herd of her own cattle. One son testified that the property in Standfield, Oregon, was purchased by decedent with her separate money and that testimony was substantiated by documentary evidence. The deed dated April 1, 1915, showed that appellant conveyed the Oregon property to his wife. That evidence would tend to establish that the real property in California was purchased by Mrs. Attebury with her separate money and hence would constitute her separate property. (3 Cal.Jur. 10-Yr.Supp. 521 and cases cited.) The testimony taken before the trial court in support of appellant's claim was vague and conflicting. *6 It is apparent that the evidence was sufficient to sustain the court's finding that the property was separate since the appellant failed to sustain his burden of overcoming the statutory presumption by clear and convincing proof.
[4] Appellant finally argues that the finding to the effect that there was community property in the value of $150 only was not supported by the evidence. This contention cannot be sustained. The amount and value of the personal property which Mrs. Attebury took with her when she moved to California is most uncertain. However, the evidence showed that, except for the period of six months in 1937 when appellant resided with his wife, all of her support was derived from a small pension and occasional gifts from her children. Decedent gave her daughter $425 prior to her death which was used for the burial expenses. The remainder of her property consisted of a few household items and preserves which were divided between the heirs. In view of the small value of the property the court's estimate of $150 was reasonable and the finding on that issue is supported by the evidence.
The judgment is affirmed.
Goodell, J., and Dooling, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381819/ | 27 Cal. 2d 627 (1946)
ERIC G. WARNER et al., Petitioners,
v.
ROBERT W. KENNY, as Attorney General, etc., Respondent.
S. F. No. 17274.
Supreme Court of California. In Bank.
Feb. 6, 1946.
J. Wesley Cupp and Robert E. Sease for Petitioners.
Robert W. Kenny, Attorney General, Charles W. Johnson, Suervising Deputy Attorney General, and Robert O. Curran, Deputy Attorney General, for Respondent.
CARTER, J.
Petitioners seek a writ of mandate to compel the respondent attorney general to forthwith issue a title and summary for a proposed initiative measure.
On October 15, 1945, petitioners submitted to the attorney general a draft of their proposed measure together with the required fee of $200, and requested the preparation of a title and summary (Elec. Code, 1401). No action was taken by the attorney general until January 2, 1946, when petitioners were notified by letter of his refusal to issue a title and summary on the ground that the measure was substantially the same as a measure which had been duly entitled and summarized in May, 1945, but on which no petitions had been *629 filed within the prescribed 90-day period thereafter (Elec. Code, 1407). Petitioners thereupon instituted the present proceeding.
The question presented is that of proper interpretation of section 1407, supra, of which the pertinent portion provides that "No petitions for a proposed initiative measure shall be circulated for signatures prior to the official summary date. First petitions with signatures on a proposed initiative measure shall be filed with the clerk or registrar of voters not later than 90 days from the 'Official summary date' of such proposed initiative measure, and no clerk or registrar of voters shall accept first petitions on such proposed intiative measure thereafter."
The position taken by the attorney general is that if he were to issue a title and summary for a measure which is substantially the same as a previously entitled and summarized measure which has lapsed by reason of the failure of its proponents to qualify it for a place on the ballot, the effect would be to nullify the above quoted provision of section 1407 prohibiting the acceptance for filing of any first petition on a measure later than 90 days from the official summary date.
[1] Unquestionably the Legislature has authority to supplement the constitutional provisions for the initiative (Const., art. IV, 1) with statutes designed to further its purpose and safeguard the process from abuse (see Elec. Code, div. IV), and any reasonable legislative regulation which is in furtherance of and not a limitation upon the power reserved in the Constitution to the people is valid and enforceable. (Chesney v. Byram, 15 Cal. 2d 460 [101 P.2d 1106]; Uhl v. Collins, 217 Cal. 1 [17 P.2d 99, 85 A.L.R. 1370]; Gray v. Kenny, 67 Cal. App. 2d 281 [153 P.2d 961]; Gage v. Jordan, 23 Cal. 2d 794 [147 P.2d 387].) [2] However, any doubt as to the construction of a pertinent provision is to be resolved in favor of the initiative and such legislation is to be given the same liberal construction as that afforded election statutes generally. [3] The interpretation adopted must be reasonable, and where the language is fairly susceptible of two constructions, one which, in application, will render it reasonable, fair, and harmonious with its manifest purpose, and another which would be productive of absurd consequences, the former construction will be adopted. (Gage v. Jordan, 23 Cal.2d supra, at pp. 799- 800.) *630
[4] Testing the questioned provision of section 1407 in the light of these rules of construction, it at once appears that the plain wording neither expressly nor impliedly manifests any legislative intent to bar from the ballot a proposed measure merely because it is substantially similar to or identical with a previously submitted and lapsed measure. The statute reads as a purely procedural provision designed to aid an orderly administration of necessary ministerial duties leading up to the preparation of the ballot. The prohibition against accepting first petitions after 90 days obviously refers to petitions on the proposed measure itself, not petitions on the same subject matter when covered by some later measure.
Under the meaning attributed to the language by respondent, the provision would limit and restrict the initiative power reserved to the people by the Constitution, and it would therefore be invalid. It would lead to absurd consequences. An opponent, learning of a measure in course of preparation and desiring to defeat it would need only to prepare and first submit a similar measure, and then permit it to lapse. The true proponents would be barred. Or a proponent of a submitted measure, discovering some defect of language and desiring to draft and submit a similar and properly worded bill, would find himself barred. The statute was never intended to have this drastic effect and no such meaning may be read into its provisions.
The constitutional plan and the enabling legislation clearly connote that qualified measures shall go on the ballot at the next succeeding general election, and if a measure does not qualify, that the entire proceedure may be instituted anew. A subsequent similar or identical bill may be proposed either by the proponents of the prior lapsed measure or by different proponents. Any possible imposition upon the public officials which might result from too numerous demands for titles and summaries for successive similar measures is met by the provision requiring payment of an adequate fee for this service (Elec. Code, 1401).
[5] The attorney general in his return challenges the good faith of petitioners in demanding a title and summary for the proposed measure and contends that he has the right to exercise a discretion in determining the validity of the proposed enactment before preparing a title and summary therefor. *631 We think it is clear that the duties of the attorney general in this respect are purely ministerial. No showing has been made to justify his refusal to prepare a title and summary for the proposed measure, and since it is in proper form and was submitted to him in accordance with the constitutional and statutory requirements as to procedure, petitioners are entitled to have furnished to them a title and summary therefor.
Let a peremptory writ issue forthwith.
Gibson, C.J., Shenk, J., Edmonds, J., Traynor, J., Schauer, J., and Spence, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8312919/ | 3. J.P. Morgan's Compensation from Akorn
All three plaintiffs sought disclosures regarding J.P. Morgan's compensation from Akorn and Fresenius. As to J.P. Morgan's "specific compensation figures,"5 Akorn disclosed that information in the original proxy:
J.P. Morgan received a fee from the Company of $3 million, paid upon the public announcement of the merger, which will be credited against any Services Fee (as defined below). For services rendered in connection with the merger, the Company has agreed to pay J.P. Morgan an additional fee equal to 1.0% of the total amount of cash paid to the Company's common stockholders...immediately prior to the consummation of the merger (the "Service Fee"), which in this case amounts to approximately $47 million.
R. 65-1 at 55 (p. 45). Plaintiffs argue that this quote is taken out of context and does *621not specifically indicate whether the fee is contingent on the consummation of the merger. See R. 65 at 14 & n. 13. The Court has reviewed the context of this quote and finds that it does not change its meaning. The amount of potential compensation ($47 million) is abundantly clear.
The revised proxy added language expressly stating that J.P. Morgan's fee was "contingent and payable upon the closing of the merger." R. 85-2 (17 C 5016) at 22 (p. 45). But Plaintiffs did not seek this information in their complaint. And in any case, although the fact that J.P. Morgan's fee is contingent on consummation was not expressly stated in the original proxy, such an arrangement is certainly customary, and can be inferred from the fact that the amount of the fee will ultimately be measured only "immediately prior to consummation" and is defined as a percentage of the amount to be paid in the transaction. Even if Plaintiff had sought this information in their complaint, it is not plainly material.
4. J.P. Morgan's Compensation from Fresenius
Although Plaintiffs do not address it in their current briefing, they also sought disclosure of "the exact amount of money J.P. Morgan received and may continue to receive from [Fresenius] while acting as Akorn's financial advisor."6 The Court finds the exact historical payments are not material. See Bushansky , 262 F. Supp. 3d at 753 ("Additionally, Plaintiffs have not presented any evidence or case law establishing that the inclusion of historical fees in similar situations is material."). And the proxy does not indicate that J.P. Morgan was "continuing" to receive payments from Fresenius in any event.
5. "Upside" of the "Stand-Alone Strategic Plan"
Plaintiff Carlyle sought four additional disclosures not sought by Plaintiffs House or Pullos. First, Carlyle sought the following disclosure:
The Proxy also refers to "the potential upside in the Company's stand-alone strategic plan," which the Board purportedly considered in determining to recommend approval of the Proposed Transaction. Proxy at 39. Yet, the Proxy fails to disclose any further information concerning that "stand-alone strategic plan" or its "potential upside" or exactly why the Board determined it would be in the best interest of the Company and its shareholders to pursue potential strategic alternatives rather than a stand-alone strategic plan.
17 C 5022, R. 1 ¶ 46; see also id. ¶ 45. It is apparent from context that "stand-alone" means Akorn not merging with another company. The "upside" of that scenario is also readily apparent, in that avoiding merger means avoiding the costs and the relinquishment of control inherent to the merger. The proxy explains that the Board believed "that the Company's stand-alone strategic plan involved significant risks in light of the industry and competitive pressures the Company was facing and the Board's concerns with respect to the risks relating to the Company's ability to execute on its strategic plan including the possibility that the strategic plan may not produce the intended results on the targeted timing or at all." R. 65-1 at 47 (p. 37). Although the proxy does not detail what "industry risks" and "competitive pressures" the company faced, it is sufficient for the Board to express such concerns *622generally. Moreover, the Board translated those concerns into financial projections that were provided in the proxy. While it may have been helpful or interesting for shareholders to learn greater detail about how management perceived the industry landscape, such information was not necessary for shareholders to evaluate the merger. Furthermore, Carlyle settled the case without receiving this information. That fact casts significant doubt on whether this information was truly material.
6. "Substance" of the March 2017 Projections
Carlyle also sought disclosure of "complete information concerning the substance of the March 2017 [projections] or the assumptions, analysis, projections, or conclusions reflected therein," 17 C 5022, R. 1 ¶ 48, and the "financial analyses and forecasts" J.P. Morgan reviewed, id. ¶ 50. But "completeness" is not the standard. See Brody v. Transitional Hosps. Corp. , 280 F.3d 997, 1006 (9th Cir. 2002) ("incomplete" statements are not necessarily "misleading"). Further, there is presumably a great deal of information underlying the March 2017 projection on which the proxies rely. Carlyle does not identify what information in particular was necessary for shareholders to be able to evaluate the merger. And again, Carlyle settled without receiving this information, casting doubt on its materiality.
7. Other Potential Buyers
Carlyle contends that the proxy should have detailed the other potential buyers the Board considered and why the Board determined that "it was highly unlikely that any of those counterparties would be interested in an acquisition of the Company at that time due to competing strategic priorities and recent acquisitions in the industry." 17 C 5022, R. 1 ¶¶ 58-59. But this statement speaks for itself regarding why the Board rejected other companies in the industry as potential buyers. And as Carlyle notes, the proxy gives much greater detail regarding the one other company ("Company E") Akorn actually considered. Detailed information about potential buyers Akorn did not actually consider is not material.
8. Pending Litigation
Finally, Plaintiff Pullos alleges that "the Board may be using the Proposed Merger as a vehicle to salvage their professional reputations and potentially absolve themselves of liability arising from federal securities and related derivative litigation currently pending in the Northern District of Illinois." 17 C 5026, R. 1 ¶ 47. Pullos claims that the proxy improperly "fails to disclose whether these lawsuits were discussed by the Board and whether the Board took them into account when deciding to undertake the sales process and enter into the Merger Agreement." Id. But the lawsuits were public record prior to issuance of the original proxy, and Pullos's allegation that the Board had ulterior motives for the merger related to the lawsuits is unfounded and does not seek "information" relevant to the merger. To the extent the Board might have had ulterior motives, that is not information that is "disclosable" in the sense required here. The proxy in its entirety is a refutation of Pullos's allegation in that the proxy gives reasons unrelated to the lawsuits for supporting the merger. Pullos's unfounded speculation about the Board's motives does not constitute an information request. And similar to Carlyle's claims, the fact that Pullos settled without provision of information related to this claim indicates that it was not material.
Conclusion
Therefore, the Court finds that the disclosures sought in the three complaints *623at issue were not "plainly material" and were worthless to the shareholders. Yet, Plaintiffs' attorneys were rewarded for suggesting immaterial changes to the proxy statement. Akorn paid Plaintiffs' attorney's fees to avoid the nuisance of ultimately frivolous lawsuits disrupting the transaction with Frensenius. The settlements provided Akorn's shareholders nothing of value, and instead caused the company in which they hold an interest to lose money. The quick settlements obviously took place in an effort to avoid the judicial review this decision imposes. This is the "racket" described in Walgreen , which stands the purpose of Rule 23's class mechanism on its head; this sharp practice "must end." 832 F.3d at 724.
Plaintiffs' cases should have been "dismissed out of hand." See id. at 724. Since the Court failed to take that action, the Court exercises its inherent authority to rectify the injustice that occurred as a result. See Dale M., ex rel. Alice M. v. Bd. of Educ. of Bradley-Bourbonnais High Sch. Dist. No. 307 , 282 F.3d 984, 986 (7th Cir. 2002). The settlement agreements are abrogated and the Court orders Plaintiffs' counsel to return to Akorn the attorney's fees provided by the settlement agreements. Plaintiffs' counsel should file a status report by July 8, 2019 certifying that the fees have been returned.
17 C 5018 (House), R. 1 ¶ 45; 17 C 5022 (Carlyle), R. 1 ¶ 56; 17 C 5026 (Pullos), R. ¶ 44; see also 17 C 5022 (Carlyle), R. 1 ¶ 54.
See 17 C 5018 (House), R. 1 ¶ 46; 17 C 5022 (Carlyle), R. 1 ¶ 55; 17 C 5026 (Pullos), R. 1 ¶ 46. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/1726536/ | 970 So. 2d 836 (2007)
COOPER
v.
STATE
No. 3D07-52.
District Court of Appeal of Florida, Third District.
August 1, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381866/ | 72 Cal. App. 2d 626 (1946)
FRANCIS HENRY PALMER, Appellant,
v.
AMELIA KATE BURNHAM, Executrix etc., Respondent.
Civ. No. 12986.
California Court of Appeals. First Dist., Div. Two.
Jan. 22, 1946.
David P. Hatch for Appellant.
George N. Foster for Respondent.
NOURSE, P. J.
Plaintiff sued to impress a trust upon real property. The trial court held that the property was the separate property of the decedent Elizabeth Gibbs and that plaintiff had no interest therein other than as devisee under Mrs. Gibbs' will by which he and Mrs. Burnham each took an undivided one-half interest. In his appeal from the judgment *627 the plaintiff attacks the conclusions of law only. He makes no attack upon the findings of fact, and states that there is no conflict in the evidence.
The case is founded on the theory that plaintiff and Elizabeth Gibbs opened a joint tenancy bank account through which the property was purchased, title having been taken in the name of Elizabeth Gibbs, and that she therefore held the property in trust. The trial court found from the evidence that all the material allegations of plaintiff's complaint were untrue. The evidence supporting these findings may be stated briefly. Plaintiff was the brother of Mrs. Gibbs and of the defendant Mrs. Burnham. He was a seafaring man who made his home with Mrs. Gibbs. In January, 1926, he and Mrs. Gibbs opened a joint tenancy bank account with a deposit of approximately $880. In February, 1926, Mrs. Gibbs initiated the purchase of the lot in question by paying $700 by check drawn on one joint tenancy account and $300 on another. At the same time Mrs. Burnham paid $500 from her own funds. In December, 1926, Mrs. Burnham advanced $1,921 which Mrs. Gibbs used to make a payment of $3,000 on the property. In May, 1929, Mrs. Burnham advanced the balance of $2,200. Her contributions were thus approximately $4,600, those of the joint tenancy account possibly $700, while Mrs. Gibbs contributed the balance. It is not possible to state what amount plaintiff contributed because his testimony on that issue was more than evasive. The trial court rejected it in whole or in part and found that it was not true, as alleged in his complaint, that he contributed $750 of the down payment; that it was not true that he agreed to furnish one-half of the purchase price, or to receive a one-half interest in the property or any fractional portion thereof, that it was not true that plaintiff contributed any portion of the subsequent payments; that it was not true that Elizabeth Gibbs agreed to hold the title or any portion of the same in trust for plaintiff; and that Elizabeth Gibbs never repudiated any trust in the property because no trust on any portion thereof had been made.
[1] Bearing in mind that this is an action in equity to impress a trust on real property after the death of the alleged trustee we may refer to the settled rules of decision as to the burden of proof. In Harris v. Harris, 136 Cal. 379, 384 [69 P. 23], it was said: "The rule is well settled that one who would claim the ownership of property of which the legal title *628 stands of record in another, or that the same is held by such person in trust for the one so claiming, must establish such claim by evidence that is clear, satisfactory, and convincing. (Woodside v. Hewel, 109 Cal. 481 [42 P. 152]; Plass v. Plass, 122 Cal. 3 [54 P. 372].) Whether the evidence in any particular case is of this character must be determined by the trial court, and its determination thereon will be accepted by this court as conclusive." In accord are 25 Cal.Jur. p. 348; Bollinger v. Bollinger, 154 Cal. 695, 703 [99 P. 196]; Noble v. Learned, 153 Cal. 245, 251 [94 P. 1047]; Lefrooth v. Prentice, 202 Cal. 215, 227 [259 P. 947]; Taylor v. Bunnell, 211 Cal. 601, 606 [296 P. 288]. [2] Following these principles it must be held that, in view of the findings of the trial court and appellant's tacit concession that they are supported by the evidence, this court may not hold that, contrary to those findings, any trust was created in the property. It is a reasonable conclusion from the record that the joint tenancy bank account was created as alleged but that when the real property was being purchased through moneys advanced by Mrs. Burnham that account was merely used for the temporary purpose of depositing her money in the account to enable Mrs. Gibbs to draw her own checks for the payments due on the purchase. All this was done with the knowledge and consent of appellant; the purchase was completed in 1929, the bank account was closed in 1931, and Mrs. Gibbs held undisputed possession of the realty until her death in 1941.
For these reasons all the questions raised by appellant relating to the respective rights of joint tenants in property purchased by funds deposited in a joint tenancy account are beside the issues because the trial court found that appellant failed to prove that such funds were used in the purchase. It is also unnecessary to decide whether appellant is bound by his election to take under the will. The trial court held that he was not so bound. By the will he takes an undivided one-half interest in the property in the purchase of which he may have contributed one-tenth. The respondent takes a one-half interest and contributed four-sevenths of the purchase price. The trial court may have concluded that the equities were administered by the will. In any event he found no equity in appellant's complaint and that concludes the controversy.
The judgment is affirmed.
Goodell, J., and Dooling, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381861/ | 27 Cal. 2d 529 (1946)
VEGA AIRCRAFT (a Corporation), Petitioner,
v.
INDUSTRIAL ACCIDENT COMMISSION and WILLIAM E. NIELSEN, Respondents.
L. A. No. 19305.
Supreme Court of California. In Bank.
Jan. 29, 1946.
Syril S. Tipton for Petitioner.
E. A. Corten and R. C. McKellips for Respondents.
SCHAUER, J.
Petitioner, Vega Aircraft, a corporation, seeks annulment of an award of increased compensation made by respondent Industrial Accident Commission in favor of respondent William E. Nielsen. Section 4553 of the Labor Code provides that "The amount of compensation otherwise recoverable shall be increased one-half where the employee is injured by reason of the serious and willful misconduct of any of the following: ... (c) If the employer is a corporation, on the part of an executive, managing officer, or general superintendent thereof." The commission found that the "injury was proximately caused by the serious and willful misconduct of the employer." Petitioner contends that there is not sufficient evidence that the conduct complained of was that of an executive, managing officer, or general superintendent, *531 or was serious and willful misconduct, or was the proximate cause of injury. It further argues that the quoted finding is insufficient and amounts only to a conclusion of law. We have concluded that petitioner's contentions cannot be sustained.
At the time Nielsen was injured he was employed in the experimental department of Vega. He worked an overtime shift; that is, he started work with the swing shift at 4:30 p.m., the swing shift went off at 12:30 a.m., and he worked with the graveyard shift until 5:30 a.m. One Brown, who, at the time Nielsen started to work in the experimental department was a group leader (swing shift) and Nielsen's immediate superior, assigned Nielsen to the work of testing an airplane-engine radiator for leaks and instructed him as to the method of testing and the use of the apparatus furnished for such work. A few days before Nielsen was injured Brown was made a supervisor in the same department.
The method of testing was as follows: To one of the two openings of the experimental radiator was attached a duct at the end of which was a rubber hose. A disc of plywood three-quarters of an inch thick and about six inches in diameter, with a bolt in the center, was inserted in the hose as a plug and a metal band was clamped around the neck of the hose to keep the plug in place. To the other opening of the radiator was attached a duct through which air was forced into the radiator under a pressure of 15 to 20 pounds per square inch. At the time Nielsen was assigned to the work of testing the radiator such testing had been in progress for "one or two weeks." During this period and prior to the injury the plug had blown out "several" times (twice to the knowledge of the witnesses; on other occasions according to conversations which the witnesses had heard) with such force that it traveled from 30 to 60 feet upward and 75 to 100 feet horizontally. No one was hit by the plug on these occasions. After the first blowout the plug was beveled. The purpose of this change in design, according to the testimony of petitioner's chief safety engineer, was to make the metal clamps hold the plug more securely. After the plug blew out again, safety wire was fastened around the bolt of the plug and onto the adjusting bolts of the clamp.
At the time he assigned Nielsen to the work, Brown instructed him to wrap safety wire about the plug-bolt and clamps as an extra precaution and stated that the plug had *532 previously broken the wire when it blew out. Nielsen had worked on the radiator for about a week and had performed the test above described three or four times prior to the night of the 19th to 20th of January, when he was injured. On the evening of January 19, while he was working on the radiator, the wired plug blew out, broke the wire, "flew approximately 30 feet in the air and on an angle of about 60 degrees from the bench--about 30, 35 feet in the air ... [and] horizontally across the department about 75 to 100 feet" and struck a railing which surrounded the office of the assistant foreman of the department, one Hauck. Hauck came to the railing and, according to the testimony of Nielsen and a fellow employee, said, "Blow it higher the next time." Hauck denied that he made such statement.
Brown testified that just before he left work at 12:30 a.m. on January 20 he warned Nielsen to "Be sure and put the wire on and not to get in front of the plug." Nielsen testified that he did not recall being told not to go in front of the plug. The safety engineer testified that Nielsen "wouldn't have to be in front of the plug to get hit" (meaning, apparently, not directly in front).
Nielsen also testified that after Brown and Hauck left work one Roberts, group leader (graveyard shift), "looked at the mechanism that was on the radiator and remarked what a poor condition and what a poor outfit it was for holding the air pressure in the radiator ... and said, 'You better wire this a little bit better.' And I did wire it a little bit better."
Just before he was injured, Nielsen testified, he "put the clamps on and plugged up the ducts with apparatus and filled it with air pressure. That the last thing I remember. ... I don't remember putting the air pressure--I don't remember who put the air pressure into the ducts. ... The last thing [I] remember was putting in the plugs and putting on this piece of broken wire." (The safety wire in use at the time Nielsen was injured had been previously broken and twisted together again.) The plug blew out and struck Nielsen in the face. As a result of the injuries sustained the right eye some months later was necessarily enucleated.
The evidence as to who initiated and carried out the measures intended to make the equipment safe is as follows: Brown testified that, after the plug blew out despite its changed design, he discussed with his immediate superior, Hauck, and with Nielsen methods of preventing another blowout *533 and they determined to use the safety wire; that he did not discuss the problem with the department foreman, one Coverly, or with the safety engineer; "they were on the day shift and I was on the swing shift; I didn't see them but very seldom." As stated above, Roberts, group leader on the graveyard shift, also discussed the problem with Nielsen and advised the use of safety wire. Hauck, assistant foreman and Brown's immediate superior, testified that he knew the plug had blown out on two previous occasions; that after each of these blowouts additional precautions were taken. The chief safety engineer testified that after the first blowouts occurred he discussed the situation with Coverly, foreman of the experimental department, and with "one or two supervisors" but he did not examine the equipment; that the design of the plug was changed and the safety wire was added in attempts to meet the problem; and that he did not know that the safety wire had broken on any occasion previous to Nielsen's injury.
Hauck, as stated, was assistant foreman. "On the swing shift he was in charge of the department. His superior, on days, was Mr. Coverly," who "was supreme so far as the shop was concerned." Hauck's own testimony that on the swing shift he "was in complete charge of the department" makes it appear that he was invested with general discretionary power of direction and control of the experimental department on that shift. (See Bechtel etc. Corp. v. Industrial Acc. Com. (1944), 25 Cal. 2d 171, 174 [153 P.2d 331], and cases there cited.)
[1] This court, in the Bechtel case, supra, has recently rejected the view that any employee who has authority to give orders to other employees is necessarily, by virtue of such authority, an executive or managing officer or general superintendent. We must now reject the view that because a corporation's business is carried on in many departments, both night and day, the corporation is insulated from responsibility for the serious and willful misconduct of a supervisory employee to whom it has delegated general discretionary power of direction of a relatively small but integrate department during one shift. The showing made here meets the test declared in the Bechtel case.
[2] Serious and willful misconduct is conduct which the employer knew, or should have known, was likely to result in serious injury or which evinced reckless disregard for the *534 safety of the employee. (Parkhurst v. Industrial Acc. Com. (1942), 20 Cal. 2d 826, 829-830 [129 P.2d 113], and cases there cited.) [3] The commission did not exceed its jurisdiction (the legally sustainable import of the evidence) by impliedly finding that Hauck should have known that the plug probably, or at least possibly, would again blow out with great force, that he failed to take reasonable action to substantially alleviate the danger, and that in so doing he evinced a reckless disregard for the safety, not only of Nielsen, but also of the other employees of the department.
Although Hauck testified that, so far as he knew, the plug had not blown out after it was wired until the occasion on which Nielsen was injured, it appears from other testimony that the plug was wired when it blew out and struck Hauck's office a few hours before the injury occured. After the inadequacy of the plug as then arranged was thus forcibly demonstrated to Hauck, he did nothing whatsoever to protect the workers. So far as appears, he left work without informing the assistant foreman in charge of the department on the graveyard shift of the danger incident to the use of the plug. The inadequacy of the precautions of beveling and wiring the plug was obvious to Roberts, group leader on the graveyard shift, who "remarked what a poor condition and what a poor outfit it was." Yet the only attempt at additional precaution was Roberts' suggestion, adopted by the employee, to wire the plug "a little bit better." Further wiring, in the circumstances, could well have been found to be a precaution not reasonably commensurate with the danger incident to the blowing out of the plug. And even the suggestion to "wire it a little bit better" apparently came from a minor supervisory employee.
Petitioner argues that the evidence shows that "the very work being done was of an experimental nature. No custom had been established as to how the work was to be done. It was a procedure of trial and error." The evidence indicates that in production departments certain radiators were tested under air pressure of 12 pounds per square inch, using an unwired metal plug designed for such purpose because "they do it all the time"; in testing other radiators, smaller than the one on which Nielsen was working, water rather than air pressure was used. The safety engineer testified that no standard technique had been developed for the testing work which Nielsen did. We fully realize that to *535 require an employer, in order to avoid responsibility for willful misconduct, to, in effect and under all circumstances, ensure the safety of employees engaged in experimental work would tend to limit research and development, and we imply no such requirement. But we are satisfied that the evidence here is sufficient to warrant the commission's conclusion that the existence of a danger which, by the use of reasonable precautions, could have been largely, if not entirely, eliminated was demonstrated to petitioner and that substantially nothing was done to guard against such danger.
The evidence above summarized supports the finding that the injury was proximately caused by the omission of the petitioner to provide a secure plug. "It is well settled that the question whether serious and willful misconduct of the employer caused the employee's injury is essentially one of fact, and that if there is any substantial evidence to support the findings of the commission its award will not be disturbed." (Parkhurst v. Industrial Acc. Com. (1942), supra, 20 Cal. 2d 826, 831.) [4] The negligence, if any, of Nielsen in failing to procure new safety wire and in getting in the path of the plug, is not not material to this inquiry. (Lab. Code, 3600; Western Pac. R. Co. v. Industrial Acc. Com. (1924), 193 Cal. 413, 421 [224 P. 754]; Associated Indem. Corp. v. Industrial Acc. Com. (1941), 18 Cal. 2d 40, 44 [112 P.2d 615]; Smith v. Industrial Acc. Com. (1941), 18 Cal. 2d 843, 850-851 [118 P.2d 6].)
[5] Petitioner relies upon Taylor v. Industrial Acc. Com. (1940), 38 Cal. App. 2d 75, 80-81 [110 P.2d 511], wherein it is declared that a finding that " 'Said injury was caused by the serious and willful misconduct of the employer' ... is totally inadequate, and does not amount to a finding at all. It is a mere conclusion of law. Fndings should be so framed that the defeated party can specify intelligently the particulars in which they are not supported by the evidence, where such point is made. ... The findings must disclose the theory upon which they are grounded when the issue is controverted." In the Taylor case, however, as pointed out in Dawson v. Industrial Acc. Com. (1942), 54 Cal. App. 2d 594, 600 [129 P.2d 479], "Several distinct acts were alleged and relied upon by the petitioners as proof of willful misconduct" and the finding "left an uncertainty as to what particular alleged acts or conduct were deemed to constitute willful misconduct." In the instant case the sole act on which the employee *536 relies as constituting serious and willful misconduct and on which evidence was introduced is, as alleged in his claim for increased compensation, "putting a plug in the radiator duct ... although it was known by said employer that the plug was faulty and would likely blow out." The finding is sufficient because it can be made certain by reference to the record. (Ethel D. Co. v. Industrial Acc. Com. (1934), 219 Cal. 699, 708 [28 P.2d 919]; Dawson v. Industrial Acc. Com. (1942), supra.)
For the reasons above stated the award is affirmed.
Gibson, C.J., Shenk, J., Carter, J., Traynor, J., and Spence, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381920/ | 538 S.E.2d 101 (2000)
245 Ga. App. 456
NANTHABOUTHDY
v.
The STATE.
Vongthong
v.
The State.
Nos. A00A1377, A00A1378.
Court of Appeals of Georgia.
August 3, 2000.
*102 Jerry B. Harkness, Sr., Demorest, Earle W. Angell, Toccoa, for appellants.
Michael H. Crawford, District Attorney, Earnest J. McCollum, Assistant District Attorney, for appellee.
BARNES, Judge.
Monday Nanthabouthdy and Bounmy Vongthong were convicted of multiple crimes including armed robbery, kidnapping with bodily injury, kidnapping, aggravated assault, and theft by taking. Nanthabouthdy contends on appeal that the trial court erred in denying his motion to sever, by giving an incorrect jury charge, and by not directing a verdict in his favor. Vongthong contends on appeal that the trial court erred in denying his motion for an interpreter and in denying his motion for new trial, made because potential jurors saw him in the presence of a shackled prisoner. Finding no errors, we affirm.
The evidence established that Nanthabouthdy, Vongthong, and three other men waited until closing time outside a convenience store, planning to steal guns and money. The store owner explained that he had just finishing closing the store and setting the alarm when the assailants arrived armed with guns and wearing masks. One of the assailants, later identified as Nanthabouthdy, fired a pistol into the air to draw the crowd's attention. Another assailant, later identified as Vongthong, pointed a shotgun at the owner, screamed at him to unlock the door, and issued orders.
Nanthabouthdy forced the owner's wife and son from their car and herded them into the store along with the owner and five other people who had been in the parking lot. While the victims were going into the store, the store alarm went off. Vongthong fired a single shotgun blast at the crowd, wounding the owner and an employee, and turned away.
Meanwhile the intended getaway driver became frightened when the alarm sounded and drove off. Nanthabouthdy, armed with a Glock automatic pistol, fired his weapon at the building numerous times, then fled on foot. Vongthong and two others drove away in the owner's car.
The would-be getaway driver and one other participant pleaded guilty to conspiracy to commit armed robbery, and the third participant pleaded guilty to armed robbery and theft by taking of a motor vehicle. They testified in detail against Nanthabouthdy and Vongthong, explaining the anticipated purpose of the robbery, describing the robbery's botched execution, and narrating when and by whom shots were fired.
The victims as well as the three co-defendants identified Nanthabouthdy as the gunman firing the 9 mm pistol and wearing a bandanna mask. According to the witnesses, it was Nanthabouthdy who fired the first and last shots during the armed robbery. After the shotgun blast, while beginning to flee, Nanthabouthdy fired several 9 mm bullets *103 into the occupied store where the victims crouched and hid in terror.
Case No. A00A1377
1. Nanthabouthdy contends the trial court erred in denying his motion and renewed motion to sever. He claims that he was entitled to a separate trial because no evidence linked him to the two aggravated assault counts, the armed robbery, the kidnapping with bodily injury, and the theft by taking of the Jeep but he was convicted as a result of the substantial evidence adduced against his co-defendant. We disagree that the evidence showing Nanthabouthdy's participation in these crimes was minimal.
In a noncapital case, whether to sever defendants' trials lies within the trial court's discretion, which will not be disturbed unless it is abused. OCGA § 17-8-4; Slaughter v. State, 240 Ga.App. 758, 759(1), 525 S.E.2d 130 (1999).
In exercising its discretion, the court must consider three factors: (1) [w]hether a joint trial will create confusion of evidence and law; (2) whether there is danger that evidence implicating one defendant will be considered against the other, despite cautionary instructions to the contrary; and (3) whether the co-defendants will press antagonistic defenses.
Dennard v. State, 263 Ga. 453, 455(5), 435 S.E.2d 26 (1993).
The record shows that Nanthabouthdy and Vongthong were indicted for the same crimes and that they acted in concert in committing them. The witnesses consistently identified Nanthabouthdy as the participant who wielded a Glock automatic pistol, who fired the first shot that drew the victims' attention, and who fired the final shot as the perpetrators left the scene. While Nanthabouthdy argued in his motion that Vongthong was going to assert an antagonistic alibi defense, no such defense was presented; in fact, neither defendant presented any evidence.
2. Nanthabouthdy contends that the trial court erroneously charged the jury on knowledge. The trial court charged:
On the other hand, should you find beyond a reasonable doubt that either defendant had knowledge of the crime that was being committed, or that either defendant knowingly and intentionally participated or helped in the commission of a crime, then you would be authorized to convict the defendant.
The State concedes that the charge does not accurately state the law. It should have been phrased in the conjunctive rather than disjunctive, so that the jury had to find both knowledge and participation in order to convict, and thus did not accurately state the law. See Suggested Pattern Jury Instructions, Vol. II: Crim. Cases (2nd ed. 1991), p. 21.
However, we must consider the charge to the jury as a whole in determining whether one incorrect charge constitutes reversible error. Gardner v. State, 263 Ga. 197, 199(7)(a), 429 S.E.2d 657 (1993). The record indicates that the jury was correctly charged that if it found that the defendant had no knowledge and did not participate, it had a duty to acquit. The trial court also properly charged the jury on intent, mere presence, mere association, and party to a crime, as well as the elements of each offense alleged in the indictments. Having reviewed the charge as a whole, we conclude that the trial court's charge did not mislead or confuse the jury so as to constitute reversible error. Horner v. State, 240 Ga.App. 1, 2(1), 522 S.E.2d 483 (1999).
3. Nanthabouthdy contends that the trial court erred in refusing to direct a verdict of acquittal on several charges. He claims that no evidence proved he committed kidnapping with bodily injury, theft by taking, or robbery; Vongthong, not he, had the shotgun, shot the victims, and took the car. Nanthabouthdy points out that he fled on foot even before the car was stolen.
However, direct participation in a particular crime is not required for a conviction when a person is a party to a crime. OCGA § 16-2-21. By intentionally aiding, abetting, advising, or encouraging another to commit a crime, one is a party to that crime. Raines v. State, 186 Ga.App. 239, 240-241(2), 366 S.E.2d 841 (1988). Further, after persons have associated themselves together to *104 do an unlawful act, any act done in furtherance of that association by any one of them is considered the act of each of them. Ford v. State, 163 Ga.App. 745, 746, 296 S.E.2d 85 (1982).
Nanthabouthdy was no innocent bystander to this incident. Armed with an automatic pistol and wearing a mask, Nanthabouthdy accompanied the others to the target of their intended robbery. During the robbery, Nanthabouthdy fired his pistol numerous times. Although the evidence established that another defendant shot the two victims and that three other defendants stole the car, Nanthabouthdy was a party to all the crimes that occurred during the implementation of the armed robbery. Ford v. State, supra, 163 Ga.App. at 746, 296 S.E.2d 85. The trial court did not err in denying Nanthabouthdy's motion for a directed verdict of acquittal on any of the charges.
Case No. A00A1378
4. Vongthong contends the trial court erred by denying him an interpreter. Several months before trial, Vongthong filed a motion seeking an interpreter, but the record indicates that this issue was not raised at the pretrial motion hearing or at any time during trial. Vongthong's failure to obtain a ruling by the trial court waived the issue on appeal. Tanthongsack v. State, 265 Ga. 88(1), 453 S.E.2d 468 (1995). Additionally, when asked at the motion for new trial hearing whether he thought Vongthong's case was prejudiced by his not having an interpreter, Vongthong's trial counsel testified only that it "probably would have helped to have an interpreter, just in general." He further testified that he thought Vongthong understood the trial proceedings. We find no error. See Choi v. State, 269 Ga. 376, 377(3), 497 S.E.2d 563 (1998) (no error where defendant failed to point to specific errors in interpretation).
5. Vongthong contends the trial court erred in denying his motion for new trial because some jurors saw him in the presence of a shackled prisoner and an armed deputy.
Before the selection of the jury, counsel noted for the record that several potential jurors saw Vongthong being brought into the courtroom along with a shackled prisoner, escorted by an armed county deputy. After counsel argued that Vongthong's right to a fair trial may have been prejudiced, the court then offered to let counsel explore the issue in voir dire. The prosecutor then noted for the record that neither defendant wore prison garb or shackles, and the court observed that the defendants were "nicely dressed in oxford shirts, and one of them has on a tie, and they are not restrained in any fashion."
Subsequently, defense counsel elected not to explore the possibility of bias during voir dire. In the absence of evidence showing a taint, Vongthong cannot satisfy his burden of establishing prejudice that would require a new trial. Casey v. State, 237 Ga.App. 461, 462(1), 515 S.E.2d 429 (1999). The trial court did not err in denying Vongthong's motion for new trial.
Judgment affirmed.
BLACKBURN, P.J., and ELDRIDGE, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/484992/ | 814 F.2d 351
22 Fed. R. Evid. Serv. 847
UNITED STATES of America, Plaintiff-Appellee,v.Fermin P. CASTILLO, Defendant-Appellant.
No. 85-2996.
United States Court of Appeals,Seventh Circuit.
Argued May 9, 1986.Decided Feb. 26, 1987.As Amended March 10, 1987.
1
Kim L. Kelly, Peoria, Ind., for defendant-appellant.
2
Mark D. Stuann, U.S. Atty., Springfield, Ill., for plaintiff-appellee.
3
Before POSNER, Circuit Judge, EASTERBROOK, Circuit Judge, and CAMPBELL, Senior District Judge.*
4
WILLIAM J. CAMPBELL, Senior District Judge.
5
Defendant-appellant Fermin P. Castillo was convicted by a jury on 14 counts of mail fraud as well as conspiring to commit mail fraud, in violation of 18 U.S.C. Secs. 1341 and 371. He was given multiple sentences amounting to a six year term of imprisonment to be followed by a five year probationary period. Defendant appeals along several grounds. We affirm.
6
The record is rather convoluted and we shall attempt to refrain from a recital of picayune detail. Defendant was a wheeler-dealer type of character. His main business partner, at least concerning matters relevant to this appeal, was G. Dean Cooper. James H. Miller served as an important foot soldier. The jury found that by the late 1970's defendant and Cooper had created two limited partnerships, Castillo-Cooper Venture # 1 (Venture 1) and Midwest Investor Limited Partnership (Midwest). Initially, a primary purpose of these two partnerships was to secure investors and capital to acquire a controlling interest in another company, United Savings Life Insurance Company (United Savings). Real estate was also discussed. James Miller was hired as a sales agent for Venture 1 (and later for Midwest as well) to secure investors for the above purposes.
7
Defendant and Cooper also held close to 90% of the stock in Continental National Corporation (Continental). In either late 1978 or early 1979 Continental became embroiled in litigation of significant cost with United Savings, the very company Midwest and Venture 1 were attempting to acquire (although there is evidence the attempt was stopped a year before the litigation). The government set out to prove, and the jury apparently believed, that defendant and Cooper orchestrated a scheme to defraud investors in Venture 1 and Midwest. James Miller was a sales agent of primary import for Venture 1 and Midwest. (He would later be made senior vice-president of Continental). He, Cooper and defendant did the selling for Venture 1 and Midwest. Miller testified, under a grant of immunity, that when first hired he was told his sales pitch to investors would be that their money would be reinvested (to gain control over United Savings or in real estate) at a great return rate (approximately 20% per annum) and that beneficial tax consequences would also result. However, Miller stated that soon after being on the job, during his second and third conversations with defendant, he was told the investment capital acquired from Venture 1--Midwest investors was being directed to Continental accounts in order to aid that company's cash flow, which was suffering due to the expenses incurred from the United Savings litigation. (See Castillo brief p. 10). There was (at best) conflicting evidence as to whether investors were ever told their money was being invested in Continental's ongoing legal dilemma. Most investors never thought their money was being funneled into this festering problem. Most were generally given the impression they were investing and building for a future of the kind dreams are made of. There was also conflicting evidence as to whether Venture 1--Midwest investors were ever told their money was being put into a risky venture. Defendant claims he told investors there was risk involved. Some witnesses testified otherwise, claiming solid rates of returns and tax advantages were emphasized. (See, for example, Castillo brief pp. 12 and 15).
8
Defendant's first argument is that the statements of James Miller, as admitted as hearsay through the testimony of witness Lyle Bidner, were erroneously let into evidence as admissions of a co-conspirator under Rule 801(d)(2)(E) of the Federal Rules of Evidence (FRE). Castillo claims there was insufficient evidence to establish he was involved in a conspiracy at that point in the trial. When statements of an alleged co-conspirator are asked to be admitted through the hearsay exception found at FRE 801(d)(2)(E) the trial judge must first make the determination required by United States v. Santiago, 582 F.2d 1128 (7th Cir.1978). The government bears the burden of proving a conspiracy existed by the preponderance of the evidence. Santiago, 582 F.2d at 1135; United States v. Gironda, 758 F.2d 1201, 1217 (7th Cir.1985). It must then be shown defendant and the declarant were members of the conspiracy. "Once the government proves the existence of a conspiracy, the government need only offer 'slight evidence' to prove that an individual was a member of the conspiracy." Gironda, 758 F.2d at 1217; United States v. West, 670 F.2d 675, 685 (7th Cir.1982). Finally, it must be demonstrated that any admitted statements were made in the course of and furtherance of the conspiracy. United States v. Andrus, 775 F.2d 825, 835 (7th Cir.1985). Defendant in the instant case only challenges the ruling that there was evidence sufficient to establish a conspiracy existed.
9
At the Santiago hearing, the district judge stated:
10
"Well, I will try to keep this short and at the same time cover the grounds that I think need to be covered for purposes of the record. The government has the burden of establishing, by a preponderance of the evidence, that a conspiracy existed, when it existed and who was a party to the conspiracy. I will say at the outset that without the documentary evidence here, there is no question what my decision would be. It would be to rule that the government had not established its burden of proof. There is not only a smoking gun here, but, if anything, some of the testimony in Mr. Cooper would appear to operate to the advantage of the defendant as opposed to being accusatory in nature."
11
The documentary evidence the judge referred to is found in the appendix to this opinion. Castillo claims there is no way it could be deemed to establish that, more likely than not, a conspiracy existed. We disagree.
12
The documentary evidence reveals Castillo deeply involved in business endeavors with Cooper and Miller. All had significant financial dealings with Continental and Castillo's cash receipts from Continental, even if they represent reimbursements of loaned money to Continental as he claims, are sizable enough to lead one to conclude Castillo was fatally involved.
13
In addition, just because the district court claimed that without the documentary evidence the government would not have proven a conspiracy existed by the preponderance of the evidence, this does not mean the documentary evidence was necessarily the only evidence the judge relied on, as Castillo suggests (see Castillo brief p. 25). Several witnesses testified before the Santiago hearing was conducted. Indeed the first witness to testify was Cooper, who was charged in the same indictment as Castillo and plead guilty to mail fraud a few months before the trial. By the time of the Santiago hearing there were widespread allegations of the defrauding of investors. Cooper blamed the fraud on Miller. While Cooper's testimony, at face value, tended to exculpate Castillo, it is also quite possible the judge did some reading between the lines, so to speak, and, when presented with the documentary evidence found in the appendix along with the witness' allegations of fraud, it is hardly inconceivable, as Castillo claims, that the judge could believe that more likely than not Castillo had a role in a conspiracy. "The standard of review of a determination that a statement is admissible as a co-conspirator's declaration is the clearly erroneous standard." Andrus, 775 F.2d at 840; United States v. Williams, 737 F.2d 594, 609 (7th Cir.1984). We see no clear error.1
14
Defendant argues the district court erred in failing to direct a verdict in its favor at the close of the prosecution's case because the government had failed to prove he was a member of the conspiracy. Defendant elaborates that Cooper, one of the government's key witnesses, denied he ever agreed with defendant to commit mail fraud or defraud potential investors. Further, Miller never testified as to any agreements reached between him and defendant. Miller claimed he had limited contact with defendant. Defendant asserts the only evidence tying him to any agreement with Cooper or Miller was the cash flow chart found in the appendix to this opinion. He claims the money he received from Continental was only a repayment of money he had loaned to that corporation. He adds most of the investors and Miller testified he was not present at most of the sales or even cognizant of Miller's sales representations.
15
On a related front, defendant claims the government never established that he intended to engage in a conspiracy, even if he was involved with members of a conspiracy to defraud. He argues Cooper, the government's main witness, never testified that he, Castillo, had the requisite intent. Rather Cooper testified at one point that defendant suspected Miller of dishonest sales tactics and wanted him fired. Additionally, defendant asserts several people advised him that United Savings, once acquired, would be a "gold mine" and that Continental's litigation would be successfully resolved and the corporation returned to profitability. Defendant argues he may have been involved in business affairs with these men, but had no idea he was part of a conspiracy to defraud. Finally, defendant points to the fact that once the diversion of investor funds was discovered, he was forthright with the investors and filed his own petition for bankruptcy, revealing the financial statements of the limited partnerships.
16
We must reject all of these arguments. Viewing the conflicting evidence and inferences to be drawn from the record in a light most favorable to the government (see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942)) we find sufficient evidence to support the jury's verdict. First and foremost, on page 10 of defendant's brief, defendant admits James Miller testified that in his second and third conversations with defendant, defendant informed him that investors' money was being diverted to Continental, not being put toward acquiring United Savings or real estate. This incriminating testimony of Miller's goes to defendant's participation or "membership" in the conspiracy as well as his intent to become part of the conspiracy by defrauding investors. Further, the cash flow chart defendant is quick to reject as lacking any probative value is hardly as benign as defendant would like one to believe. If funds were being improperly diverted to Continental, as at least Miller's testimony suggests, the flow chart reveals defendant receiving over $28,000 from this tainted corporation. Defendant claims this money was in repayment of loaned money to the corporation. Regardless, a jury was entitled to believe, for example, that defendant had an interest in diverting investor monies to Continental in order to revitalize that corporation's cash flow and secure the repayment of his loan money previously advanced. Yet, we need not speculate as to how the jury could have found defendant to have been a member of this conspiracy. The point is there is sufficient evidence for a reasonable jury to conclude defendant was intentionally involved, and that is all our concern is on appellate review.2
17
On a related front, defendant claims the government never established that he formulated an intent to commit mail fraud and therefore the district court erred in failing to direct a verdict in his favor as to the mail fraud counts. Yet defendant admits 18 U.S.C. Sec. 1341 allows someone to be convicted of mail fraud if he knowingly caused another to use the mails for a fraudulent scheme (see Castillo brief p. 10) (citing United States v. Pearlstein, 576 F.2d 531 (3rd Cir.1978)). Castillo does not argue, as the government points out, that the mailings were not a part of the scheme (certain investors' life insurance companies would mail checks to the investors who had cashed in their policies to invest in defendant's various limited partnerships). Any member of a conspiracy is liable for the acts of another co-conspirator if done in furtherance of the agreed upon conspiracy, even if acts may have been performed before the member joined the conspiracy. United States v. Shelton, 669 F.2d 446, 454 (7th Cir.1982). Hence since we believe a jury was capable of finding Castillo a wilful and knowing participant in the conspiracy at issue, there was nothing inappropriate about convicting Castillo under the various federal mail fraud counts since everyone admits the mails were used to further the conspirators' goals.
18
Defendant argues the district court erred when it held inadmissible certain testimony from witness Elaine Clavey. Clavey bought interests in Venture 1 in 1976 and defendant sought to elicit her testimony that she believed his sales tactics had been forthright and honest. The district court excluded the evidence as too remote to be relevant as to defendant's state of mind in the conspiracy of the instant case, alleged to have commenced in 1979. The district court ruling here will only be reversed upon "a clear showing of abuse of discretion." United States v. Jackson, 780 F.2d 1305, 1314 (7th Cir. 1986). United States v. Harris, 761 F.2d 394, 398 (7th Cir.1985). We see no abuse here. Defendant could quite conceivably have had a different state of mind or modus operandi when selling Venture 1 interests or units in 1976 as opposed to 1979. The district court could have quite properly concluded the Clavey testimony too remote and not probative. Indeed, similar testimony was held inadmissible in tape recorded conversation defendant sought to admit which occurred two years after the scheme at issue at trial. 780 F.2d at 1315. We note defendant was still able to use Clavey for rehabilitative purposes. She was allowed to testify positively as to defendant's reputation for honesty and integrity. We see no reversible error.
19
Defendant's final argument is that he was denied effective assistance of counsel.
20
"Conflict of interest claims aside, actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice ... Even if a defendant shows that particular errors of counsel were unreasonable ... the defendant must show that they actually had an adverse effect on the defense ... (a) court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been reached absent the errors."
21
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2067-69, 80 L.Ed.2d 674 (1984).
22
Defendant claims that his attorney, pressed for time due to an impending three day weekend, chose not to present the testimony of certain witnesses or the defendant himself. Yet defendant does not reveal who the witnesses of such import were and what exactly they would have had to offer that would be so material. Defendant's assertions in this area are simply unsubstantiated and, having failed to show prejudice under Strickland criteria, there is no reason for reversal.
23
For the reasons set forth above, the ruling of the district court is hereby
24
AFFIRMED.
APPENDIX
MIDWEST INVESTORS LIMITED PARTNERSHIP
DIVISION OF PROCEEDS
25
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
*
The Honorable William J. Campbell, Senior District Judge of the Northern District of Illinois, is sitting by designation
1
Defendant claims the district court erred in considering "non-evidentiary matters" in using the document found in the appendix to reach his ruling. Yet he also admits FRE 104(a) allows inadmissible evidence to be considered in ruling on this question. (Citing United States v. Petrozziello, 548 F.2d 20, 23 (1st Cir.1977))
2
The jury was also instructed that any good faith, unfulfilled promises made by defendant to investors could not be used to reach a guilty verdict. With this in mind, we note the negative inferences a jury was capable of drawing from defendant's presence and participation in sales of limited partnership interests to witnesses William Janssen and Dorothy Botts | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/899316/ | Filed 9/25/12 by Clerk of Supreme Court
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2012 ND 193
In the Matter of the Application of
Shantel Covert,
On Behalf of K.H.F.
For a Change of Name to:
K.H.C.
Shantel Covert, Appellant
v.
Jeremy Ferderer, Respondent
No. 20120174
Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Bruce A. Romanick, Judge.
AFFIRMED.
Per Curiam.
Kent Morrow, 411 North Fourth Street, P.O. Box 2155, Bismarck, N.D. 58502-2155, for appellant; submitted on brief.
Jeremy Ferderer, respondent; no appearance.
Application of Covert
No. 20120174
Per Curiam.
[¶1] Shantel Covert appeals from a district court order denying a petition to change her daughter’s last name. Covert argues the district court order was clearly erroneous. We summarily affirm under N.D.R.App.P. 35.1(a)(7).
See
Petition of Berger
, 2010 ND 28, 778 N.W.2d 579.
[¶2] Gerald W. VandeWalle, C.J.
Dale V. Sandstrom
Daniel J. Crothers
Mary Muehlen Maring
Carol Ronning Kapsner | 01-03-2023 | 06-09-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2158996/ | 387 Mass. 291 (1982)
439 N.E.2d 760
RAMADAN S. SHABAZZ[1]
vs.
COMMONWEALTH.
Supreme Judicial Court of Massachusetts, Suffolk.
May 4, 1982.
August 27, 1982.
Present: HENNESSEY, C.J., WILKINS, NOLAN, LYNCH, & O'CONNOR, JJ.
Daniel F. Featherston, Jr. (Susan S. Riedel with him) for Ramadan S. Shabazz.
Robert A. Marra, Jr., Legal Assistant to the District Attorney (Michael J. Traft, Assistant District Attorney, with him) for the Commonwealth.
*292 WILKINS, J.
The plaintiff (Shabazz) is serving two concurrent life sentences for murder in the first degree of one Thorn and of one Jeffreys, and a sentence of life imprisonment for armed robbery of Thorn, to be served from and after the other life sentences. These crimes all arose out of a single incident. Commonwealth v. Hall, 369 Mass. 715 (1976). Shabazz argues that the convictions of murder could have been based on the theory of felony-murder and that, therefore, the "from and after" sentence for armed robbery is constitutionally barred under the Fifth Amendment to the Constitution of the United States. We agree with this conclusion, although we note the result is the same under the law of the Commonwealth. See Commonwealth v. Wilson, 381 Mass. 90 (1980). The question then arises whether this court can and should order the restructuring of Shabazz's sentences so as to make the life sentences for murder in the first degree consecutive and the armed robbery sentence concurrent with the first life sentence for murder. We conclude that we should not do so.
The case is before us on reservation and report by a single justice of this court, on an amended petition for a writ of error (see now Mass. R. Crim. P. 30, 378 Mass. 900 [1979]), cross motions for summary judgment, and an "Agreed Statement of Facts." We summarize the facts agreed to by the parties. Shabazz was convicted on March 21, 1972, of all three crimes. The evidence would have supported convictions of murder in the first degree under either a theory of felony-murder or deliberately premeditated murder, and the judge so charged the jury. There is no indication on the trial record as to which theory the jury relied on in returning guilty verdicts on the murder indictments. The judge sentenced Shabazz to death on each murder indictment and to life imprisonment on the armed robbery indictment, the latter sentence to run from and after the death sentences. In Commonwealth v. Hall, 369 Mass. 715, 737 (1976), this court affirmed Shabazz's convictions but remanded the murder indictments to the Superior Court for imposition of sentences of life imprisonment, leaving the question whether *293 the sentences should be concurrent or consecutive to the discretion of the trial judge. The judge imposed consecutive life sentences on the murder indictments, the armed robbery sentence to remain from and after the expiration of the sentences on the murder indictments.
Shabazz then appealed his consecutive sentence on one murder indictment to the Appellate Division of the Superior Court which, on November 29, 1976, amended the sentence to make it run concurrently with the other life sentence for murder. Subsequently, Shabazz unsuccessfully appealed the length of his sentence for armed robbery to the Appellate Division of the Superior Court. In May, 1979, after entry of this petition for a writ of error in the Supreme Judicial Court for the county of Suffolk and the appointment of counsel, Shabazz obtained a rehearing before the Appellate Division on the constitutionality of having the armed robbery sentence served consecutively with his life sentences for murder. The Appellate Division without opinion denied Shabazz's appeal on November 27, 1979.
Because Shabazz is serving two concurrent life sentences without the possibility of parole (unless those sentences are commuted, see G.L.c. 265, § 2), one might wonder as to the significance to Shabazz of a consecutive sentence for armed robbery. It is agreed that, because of the consecutive life sentence for armed robbery, Shabazz is denied the benefit of rehabilitative programs for which he would otherwise be eligible.[2]
1. We consider first the question whether it is permissible for Shabazz to be sentenced to life imprisonment for the murders of Thorn and Jeffreys and to be sentenced to a consecutive term of life imprisonment for the armed robbery of Thorn. In Commonwealth v. Wilson, 381 Mass. 90, 124 (1980), we held that such a consecutive sentence could not stand where there was a possibility that the conviction of *294 murder in the first degree rested on the underlying felony for which the consecutive sentence was imposed. We relied on the long-standing rule in the Commonwealth that "where convictions are returned under two statutes, unless `each statute requires proof of an additional fact which the other does not,' consecutive sentences may not be imposed." Id., quoting from Morey v. Commonwealth, 108 Mass. 433, 434 (1871). In short, the "same evidence" rule bars the imposition on Shabazz of a consecutive sentence for the armed robbery. See Commonwealth v. Stewart, 375 Mass. 380, 392-393 (1978).
Our determinations have not been based on the double jeopardy clause of the Fifth Amendment to the Constitution of the United States (applicable to the States through the Fourteenth Amendment) or on whatever comparable principle may be found in the Constitution of the Commonwealth (there being no explicit double jeopardy clause). It appears, however, that our conclusions have been consistent with the views expressed by the Supreme Court of the United States concerning double jeopardy. See Brown v. Ohio, 432 U.S. 161, 165-166 (1977); Blockburger v. United States, 284 U.S. 299, 304 (1932).
The Commonwealth points to dicta in Albernaz v. United States, 450 U.S. 333, 344 (1981), which suggest that double jeopardy principles are not violated where there is a clear indication that the legislative branch intended to impose multiple punishments for two offenses, even where each statutory offense does not require proof of a fact not involved in the other offense. See Whalen v. United States, 445 U.S. 684, 689-690 (1980); Brown v. Ohio, supra at 165. Admittedly, the crimes of murder and armed robbery are distinct crimes, but we find no "clear indication" (Albernaz v. United States, supra at 340) of a legislative intent, contrary to our general common law rule, to impose multiple punishments for these two crimes. Only when there is such a clear expression of intent would the common law rule, and perhaps any constitutional bar to multiple punishments, not apply.
*295 We thus agree that Shabazz's consecutive sentence for armed robbery cannot stand. It is inconsistent with the common law rule in this Commonwealth and with the double jeopardy clause of the Fifth Amendment to the Constitution of the United States.
2. We come then to the Commonwealth's argument that the case should be remanded to the Appellate Division for the imposition of a life sentence on the armed robbery conviction to run concurrently with the life sentence for the murder of Thorn and for the imposition of a consecutive life sentence on the other murder conviction. We are not dealing here with sentences that are, by statute, subject to judicial reconsideration during a certain period of time and thus not final for double jeopardy purposes. See Aldoupolis v. Commonwealth, 386 Mass. 260, 274-275 (1982); United States v. DiFrancesco, 449 U.S. 117, 138-139 (1980). The sentences on all three convictions were final once the Appellate Division of the Superior Court acted with respect to them. G.L.c. 278, § 28B.[3] There are suggestions that a reopening of such final and unappealed sentences to increase them would run afoul of the double jeopardy clause. See McHoul v. Commonwealth, 365 Mass. 465, 469 (1974); Chandler v. United States, 468 F.2d 834, 837 (5th Cir.1972); Walsh v. Picard, 446 F.2d 1209, 1211 (1st Cir.1971). There may be a procedural question whether this court has the authority to reopen the unchallenged sentences for redetermination, quite apart from any double jeopardy question. There is authority, however, supporting the view that a successful challenge to one sentence imposed at the same time as other sentences (as is the case here),[4] opens up all the *296 interdependent, lawful sentences for reconsideration without violating the double jeopardy clause, at least if the aggregate of the original sentences is not to be increased. See United States v. Busic, 639 F.2d 940, 947-948, 951 n. 12 (3d Cir.), cert. denied, 452 U.S. 918 (1981); United States v. Hodges, 628 F.2d 350, 353 (5th Cir.1980); McClain v. United States, 527 F. Supp. 209, 219-223 (S.D.N.Y. 1981).
We need not decide whether, on a successful challenge to the legality of one sentence, this court may properly order reconsideration of all lawful, interdependent sentences to which a defendant raised no challenge. Here, the Commonwealth proposes a restructuring of Shabazz's sentence that would result in the imposition of a more severe aggregate punishment than was in place when Shabazz brought this challenge to the unlawful sentence for armed robbery. If two consecutive life sentences without the possibility of parole were now imposed, as the Commonwealth urges, Shabazz would be worse off than he was when he had two concurrent life sentences without the possibility of parole followed by a life sentence (for armed robbery) subject to parole. We are aware of no authority, in the face of a double jeopardy challenge, supporting an increase in aggregate punishment by adjustment of unchallenged, final sentences upon the invalidation of another interdependent sentence. Such a possibility would chill the exercise of a defendant's right to challenge an unlawful sentence. To increase Shabazz's aggregate sentence would be essentially unfair. It would violate the double jeopardy clause and would be contrary to the common law of this Commonwealth.[5]
*297 An order shall be entered in the Supreme Judicial Court for the county of Suffolk vacating the sentence on the armed robbery indictment (indictment 58887). Shabazz shall be resentenced in the Superior Court to a life sentence on the armed robbery indictment, the sentence to be served concurrently with the two life sentences on the two murder indictments.
So ordered.
NOTES
[1] Also known as James Hall.
[2] These programs include hospital volunteer programs and the Department of Correction's programs in State schools. He has "reached the limits as to school programs at MCI-Norfolk."
[3] This court has no general power to review the severity or leniency of a sentence that falls within the range permitted by statute. See Commonwealth v. Wilson, 381 Mass. 90, 125 (1980); Commonwealth v. Appleby, 380 Mass. 296, 312 (1980).
[4] The sentences were imposed on all indictments at the conclusion of the trial. The sentences of death were vacated by order of this court in Commonwealth v. Hall, 369 Mass. 715, 737 (1976), but, for the purposes of this case, the sentences may fairly be regarded as imposed at the same time and as interdependent.
[5] One might argue that Shabazz has been permitted to "beat the system." It may be fairly inferred that the Appellate Division concluded that Shabazz should serve two concurrent life sentences for murder, to be followed by a life sentence for armed robbery. However, in the sense of the aggregate amount of time Shabazz must serve, the change resulting from this challenge to his armed robbery sentence should make no difference. Shabazz may not be released on parole without receiving a commutation of his sentences for murder in the first degree. His only prospect of release on parole depends on his receiving pardons by the Governor by and with the advice of the Council. See Part 11, c. 2, § 1, art. 8, of the Constitution of the Commonwealth, as amended by art. 73 of the Amendments; G.L.c. 127, § 152. All the circumstances relating to the various sentences imposed on Shabazz will be known to the appropriate authorities if the question of a pardon or pardons is considered. Shabazz has not "beaten the system." He has been given his rights under the law, and the system will still function to do justice to him and to the Commonwealth. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266851/ | 165 Cal.App.4th 1592 (2008)
THE PEOPLE, Plaintiff and Respondent,
v.
RICHARD LEIGH WYATT, Defendant and Appellant.
No. C056249.
Court of Appeals of California, Third District.
August 19, 2008.
CERTIFIED FOR PARTIAL PUBLICATION[*]
*1594 John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette and Michael P. Farrell, Assistant Attorneys General, Carlos A. Martinez and Marcia A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.
*1595 OPINION
SIMS, J.
Following the denial of his motion to suppress evidence, a jury found defendant Richard Leigh Wyatt guilty of possessing paraphernalia (a syringe) and possessing or manufacturing a weapon (a metal shank) while in jail. (Pen. Code, §§ 4573.6, 4502, subd. (a); undesignated section references are to the Penal Code.) In a bifurcated proceeding, the trial court found true allegations defendant served two prior prison terms (§ 667.5, subd. (b)) and had two serious or violent felony convictions within the meaning of the three strikes law (§ 1170.12).
The trial court refused to dismiss either of defendant's prior strike convictions and sentenced him to an aggregate term of 50 years to life in prison, consisting of 25 years to life for possessing the syringe and 25 years to life for possessing or manufacturing the shank. The court stayed defendant's sentence on the two prior prison term enhancements.
Defendant appeals, contending the trial court erred in (1) denying his motion to suppress statements he made to a Shasta County Sheriff's deputy while in jail, (2) failing to instruct the jury that it must find "each element of a crime" true beyond a reasonable doubt, and (3) denying his motion to dismiss one or both of his prior strike convictions. Finding no error, we shall affirm.
DISCUSSION
I
A. Procedural Background and Facts
Defendant moved in limine to suppress statements he made during an interview with Deputy Mark Davis on January 15, 2007. (§ 1538.5.) Viewed in the light most favorable to the trial court's denial of the motion (People v. Jenkins (2000) 22 Cal.4th 900, 969 [95 Cal.Rptr.2d 377, 997 P.2d 1044]), the evidence introduced at the suppression hearing was as follows: On January 8, 2007, defendant was incarcerated at the Shasta County jail. Deputies searched his cell and found a syringe and a metal shank. Defendant was "accused of violating the following rule(s) or regulation(s): poss[ession] of syringe, shank, [and] contraband, extortion, gambling, [and] fighting." He was advised of the charges against him and that he may be subject to a variety of penalties, including criminal prosecution, as a result of the charges. He was also *1596 advised of the "INMATE RIGHTS IN DISCIPLINE PROCEDURE," which included the right to "receive 24 hour prior notice of" a disciplinary hearing, the right to "receive a copy of the Incident Report within 24 hours of the completed report," the right to be present at the hearing, the right to call witnesses at the hearing, and the right to represent oneself or be represented by a staff member at the hearing.
According to the hearing report, defendant declined to waive a disciplinary hearing, and one was held on January 10, 2007. Defendant was present at the hearing and indicated he "wish[ed] to have [an] attorney present in case criminal proceedings [we]re brought forth." The hearing officer noted defendant "refuse[d] [to make a] statement due to being in [a] criminal investigation" and found defendant "guilty by report." The hearing officer recommended defendant spend 30 days in "lockdown" and lose all privileges.
Five days later, on January 15, 2007, Deputy Davis brought defendant into an interview room at the jail and read defendant his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602] (Miranda)). Defendant agreed to waive his rights, and Davis questioned him about the items found in his cell. Defendant admitted possessing the syringe and shank.
In his motion to suppress, defendant argued his request to have counsel present at the disciplinary hearing on January 10, 2007, constituted an invocation of his Fifth Amendment right to counsel under Miranda, and thus, Deputy Davis was precluded from "re-questioning" defendant on "the same set of facts" on January 15, 2007, pursuant to Edwards v. Arizona (1981) 451 U.S. 477 [68 L.Ed.2d 378, 101 S.Ct. 1880] (Edwards). The People opposed the motion, arguing the disciplinary hearing was not a "custodial interrogation" for purposes of Miranda, and thus, Deputy Davis was not precluded from questioning defendant on January 15, 2007. Alternatively, the People argued defendant did not have a Fifth Amendment right to counsel at a disciplinary hearing, and thus, could not have invoked that right. The trial court tentatively ruled the disciplinary hearing was an administrative hearing and not a custodial interrogation. The court also found defendant did not invoke his right to counsel at the hearing because he did not have a right to counsel at the hearing. Thus, the court concluded, "the [January 15, 2007] interview was properly conducted, provided ... defendant was then provided all his Miranda rights." The court later affirmed its tentative ruling and denied the motion to suppress.
At trial, Deputy Davis testified he spoke to defendant on January 15, 2007, and after being advised of and waiving his Miranda rights, defendant admitted the syringe recovered from his cell was his and said he used it to *1597 inject methamphetamine. Defendant also stated he obtained a piece of metal from another cell, sharpened it into a shank, and had it for protection.
Defendant testified in his own defense. He had approximately five bunkmates during the time he was housed in the cell in which the items were found. He admitted telling Deputy Davis the syringe was his. He did so because he thought the deputies might "give [him] a special visit" with his fiancée and to avoid being labeled a "snitch." He denied telling Davis the shank was his. Rather, he told Davis, "That's definitely not mine. I don't know nothing about that shank."
On appeal, defendant contends the disciplinary hearing constituted a custodial interrogation for purposes of Miranda because his "alleged possession of the syringe and the shank could readily subject him to criminal prosecution in addition to jail sanctions." He claims he invoked his Fifth Amendment rights to counsel and to remain silent when he requested an attorney at the hearing and thereafter refused to make a statement. Having invoked those rights, he asserts Deputy Davis was precluded from questioning him on January 15, 2007, even after advising him of his Miranda rights. As we will explain, his argument fails on the merits.
B. Legal Analysis
"In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant's rights under Miranda ..., we accept the trial court's resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. (People v. Kelly (1990) 51 Cal.3d 931, 947 [275 Cal.Rptr. 160, 800 P.2d 516].) Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained (ibid.), we `"give great weight to the considered conclusions" of a lower court that has previously reviewed the same evidence.' (People v. Jennings (1988) 46 Cal.3d 963, 979 [251 Cal.Rptr. 278, 760 P.2d 475], quoting Miller v. Fenton (1985) 474 U.S. 104, 112 [88 L.Ed.2d 405, 412, 106 S.Ct. 445]; accord, People v. Kelly, supra, 51 Cal.3d at p. 947.)" (People v. Wash (1993) 6 Cal.4th 215, 235-236 [24 Cal.Rptr.2d 421, 861 P.2d 1107], followed in People v. Whitson (1998) 17 Cal.4th 229, 248 [70 Cal.Rptr.2d 321, 949 P.2d 18].)
Defendant contends his statements to Deputy Davis were obtained in violation of the rights guaranteed him by Edwards, supra, 451 U.S. 477 [68 L.Ed.2d 378]. For reasons that follow, we disagree.
*1598 The facts in Edwards are described by the Supreme Court as follows:
"On January 19, 1976, a sworn complaint was filed against Edwards in Arizona state court charging him with robbery, burglary, and first-degree murder. An arrest warrant was issued pursuant to the complaint, and Edwards was arrested at his home later that same day. At the police station, he was informed of his rights as required by Miranda .... Petitioner stated that he understood his rights, and was willing to submit to questioning. After being told that another suspect already in custody had implicated him in the crime, Edwards denied involvement and gave a taped statement presenting an alibi defense. He then sought to `make a deal.' The interrogating officer told him that he wanted a statement, but that he did not have the authority to negotiate a deal. The officer provided Edwards with the telephone number of a county attorney. Petitioner made the call, but hung up after a few moments. Edwards then said: `I want an attorney before making a deal.' At that point, questioning ceased and Edwards was taken to county jail.
"At 9:15 the next morning, two detectives, colleagues of the officer who had interrogated Edwards the previous night, came to the jail and asked to see Edwards. When the detention officer informed Edwards that the detectives wished to speak with him, he replied that he did not want to talk to anyone. The guard told him that `he had' to talk and then took him to meet with the detectives. The officers identified themselves, stated they wanted to talk to him, and informed him of his Miranda rights. Edwards was willing to talk, but he first wanted to hear the taped statement of the alleged accomplice who had implicated him. After listening to the tape for several minutes, petitioner said that he would make a statement so long as it was not tape-recorded. The detectives informed him that the recording was irrelevant since they could testify in court concerning whatever he said. Edwards replied: `I'll tell you anything you want to know, but I don't want it on tape.' He thereupon implicated himself in the crime." (Edwards, supra, 451 U.S. at pp. 478-479 [68 L.Ed.2d at pp. 382-383], fns. omitted.)
(1) The Supreme Court held that defendant Edwards's statements should have been suppressed. (Edwards, supra, 451 U.S. 477, 487 [68 L.Ed.2d at p. 388].) The court held that "it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel." (Id. at p. 485 [68 L.Ed.2d at p. 387] (second italics added).)
As is obvious, Edwards applies only where defendant has "clearly" asserted his right to counsel.
(2) "The applicability of the `"rigid" prophylactic rule' of Edwards requires courts to `determine whether the accused actually invoked his right *1599 to counsel.' Smith v. Illinois, [(1984) 469 U.S. 91,] 95 [83 L.Ed.2d 488, 105 S.Ct. 490] (emphasis added), quoting Fare v. Michael C, [(1979)] 442 U.S. 707, 719 [61 L.Ed.2d 197, 99 S.Ct. 2560]. To avoid difficulties of proof and to provide guidance to officers conducting interrogations, this is an objective inquiry. See Connecticut v. Barrett, [(1987) 479 U.S. 523,] 529 [93 L.Ed.2d 920, 107 S.Ct. 828]. Invocation of the Miranda right to counsel `requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney.' McNeil v. Wisconsin, [(1991)] 501 U.S. [171,] 178 [115 L.Ed.2d 158, 111 S.Ct. 2204]. But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning. See ibid. (`[T]he likelihood that a suspect would wish counsel to be present is not the test for applicability of Edwards'); Edwards ..., supra, at 485 [68 L.Ed.2d 378, 101 S.Ct. 1880] (impermissible for authorities `to reinterrogate an accused in custody if he has clearly asserted his right to counsel') (emphasis added).
"Rather, the suspect must unambiguously request counsel." (Davis v. United States (1994) 512 U.S. 452, 458-459 [129 L.Ed.2d 362, 371, 114 S.Ct. 2350] (Davis); see People v. Simons (2007) 155 Cal.App.4th 948, 957-958 [66 Cal.Rptr.3d 571].)
(3) Moreover, for purposes of Miranda and its progeny, a request for counsel "requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police." (McNeil v. Wisconsin, supra, 501 U.S. 171, 178 [115 L.Ed.2d 158, 169] (McNeil).)
(4) Here, to be sure, defendant requested counsel at the disciplinary hearing, but the circumstances of the request made the request ambiguous with respect to whether it would apply to a subsequent, independent custodial interrogation. This is so because the United States Supreme Court has squarely held that a prisoner is not entitled to representation by either retained or appointed counsel at prison disciplinary hearings. (Baxter v. Palmigiano (1976) 425 U.S. 308, 315 [47 L.Ed.2d 810, 819, 96 S.Ct. 1551].) Moreover, the in-prison disciplinary hearing was not a custodial interrogation within the meaning of Miranda and McNeil, supra, 501 U.S. 171, for the simple reason that, so far as the record discloses, defendant was not asked any questions and remained silent. Accordingly, when defendant requested counsel at the disciplinary hearing, he asserted a right that did not exist in that setting.
(5) Did defendant's request for counsel at the disciplinary hearing constitute a request for counsel in the altogether different setting of a custodial *1600 interrogation? In our view, the situation was, at best, objectively ambiguous, particularly as the law enforcement authorities must have viewed it. Law enforcement authorities are lawfully permitted to "clarify" whether a suspect intends to remain silent, and to invoke his Miranda rights, where a defendant's request for counsel is ambiguous. (Davis, supra, 512 U.S. at p. 461 [129 L.Ed.2d at p. 373]; People v. Simons, supra, 155 Cal.App.4th at p. 958.) This is precisely what Deputy Davis did on January 15, 2007, when he summoned defendant to an interview room and read him his Miranda rights. At that time, the deputy advised defendant, inter alia, that he had the right to remain silent and the right to have an attorney appointed for him and to have the attorney present during questioning. Defendant waived his Miranda rights.
By advising defendant of his Miranda rights, and by obtaining a knowing and voluntary waiver of the same, Deputy Davis lawfully clarified the ambiguous request for counsel that defendant had made at the disciplinary hearing. This was lawful and did not violate the rule of Edwards, supra, 451 U.S. 477 [68 L.Ed.2d 378]. (People v. Simons, supra, 155 Cal.App.4th at p. 958.)
Viewing this case from a distance, as one might look at it from a satellite, we are confident that our result is just. There is simply no objectionable police conduct in this case. Unlike in Edwards, supra, 451 U.S. 477, defendant did not object to meeting with Deputy Davis on January 15. Unlike in Edwards, defendant was not told that he had to talk to Deputy Davis. Application of the Edwards rule in this case would elevate form over substance and would constitute a miscarriage of justice. We will not do it.
The trial court did not err in denying defendant's motion to suppress the statements he made to Deputy Davis.
II
The trial court instructed the jury in the language of Judicial Council of California Criminal Jury Instructions (2008) CALCRIM No. 220 (reasonable doubt), in pertinent part as follows: "A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove the defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt."[1]
*1601 Defendant claims this instruction was insufficient because it failed to inform the jury that it was required to find "each element of a crime" true beyond a reasonable doubt. We disagree.
(6) Under the United States Constitution and California law, the government must prove each element of a charged offense beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5 [127 L.Ed.2d 583, 590, 114 S.Ct. 1239]; People v. Cole (2004) 33 Cal.4th 1158, 1208 [17 Cal.Rptr.3d 532, 95 P.3d 811]; § 1096.) Whether an instruction correctly conveys this standard must be determined by examining the instruction in the context of all the instructions given the jury. (Victor v. Nebraska, supra, 511 U.S. at p. 5; see People v. Cain (1995) 10 Cal.4th 1, 36 [40 Cal.Rptr.2d 481, 892 P.2d 1224].)
Under these standards, we see no instructional error. In giving CALCRIM No. 220, the trial court told the jury: "Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt." The jury also received versions of CALCRIM Nos. 2745 and 2748, which define the elements of possession or manufacture of a weapon in a penal institution and possession of paraphernalia in a penal institution. Each instruction states, "To prove that the defendant is guilty of this crime, the People must prove that:" and then lists the separate elements of the offense. In addition, the jury received CALCRIM No. 361, which concerns the evaluation of a defendant's failure, if any, to explain or deny adverse evidence against him, and states: "The People must still prove each element of the crime beyond a reasonable doubt." Accordingly, CALCRIM No. 220, viewed together with other instructions, correctly informed the jury that the prosecutor was obliged to prove each element of the crimes beyond a reasonable doubt.
III[*]
.......................................................
*1602 DISPOSITION
The judgment is affirmed.
Scotland, P. J., and Robie, J., concurred.
NOTES
[*] Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of part III of the Discussion.
[1] As given to the jury, CALCRIM No. 220 states in its entirety: "The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be bias[ed] against the defendant just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This persumption requires that the People Prove a defendant quilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonabel doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. the evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he's entitled to an acquittal and you must find him not guilty."
[*] See footnote, ante, page 1592. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266863/ | 4 F.Supp. 580 (1933)
UNITED STATES
v.
LADLEY (STATE OF IDAHO, Intervener).
No. 1147.
District Court, D. Idaho, N. D.
August 26, 1933.
*581 J. A. Carver, U. S. Dist. Atty., and Sam S. Griffin, Asst. U. S. Dist. Atty., both of Boise, Idaho.
James F. Ailshie, of Cur d'Alene, Idaho, for defendant.
Bert H. Miller, Atty. Gen., and D. Worth Clark, Asst. Atty. Gen., for the State of Idaho.
CAVANAH, District Judge.
The complaint presents the case to quiet title to property formerly the bed of "Mission Lake" in Boundary county, Idaho, brought by the United States as trustee for certain Indian allottees of the Kootenai Indian Tribe upon the theory that the lake at the time of statehood was nonnavigable, and therefore belonged to the riparian lands allotted to the Indians, the legal title to which was retained by the United States in trust for the use and benefit of the allottees.
The defendant asserts that in July, 1890, at the time of statehood, the lake was a navigable body of water, and by virtue thereof the title to the bed of it was in the state of Idaho, and he, having complied with the laws of the state in September, 1927, has acquired the state's rights; that, should the conclusion be reached that the lake was not a navigable one, the title to it was in the United States in its sovereign capacity, and, as it did not include it in its patents to the allottees, title did not pass to the allottees under the Idaho laws, which recognized riparian owners take only to the high-water mark, and therefore the United States as trustee for the patentees cannot maintain the action; and, further, should it be determined that title was in the United States, he has a ninety-day preference right as a settler on unappropriated public domain.
The state of Idaho intervened for the purpose of asserting rights to the bed of the lake in opposition to both the United States and the defendant, on the ground that the lake was a navigable body of water as far as the United States is concerned, and that the defendant has not succeeded to the state's rights.
We must at once consider certain principles of law which seem applicable to the case before a conclusion is reached as to whether "Mission Lake" was a navigable body of water in July, 1890, at the time of the admission of Idaho into the Union.
As to principles to be laid down, the caution necessary is manifest. They are questions of first magnitude, and their determination may affect the title to many lakes *582 that may be drained as "Mission Lake" was. Undoubtedly the question principally discussed here is that, if the lake was navigable on the admission of the state into the Union, the title to its bed passed from the United States to the state, who became the owner of the soil underlying the navigable waters. The parties recognize that this is so, and concede that, if the lake was nonnavigable at the time of the state's admission into the Union, the claims of the defendant and the state are not tenable. State of Oklahoma v. State of Texas, United States, Intervener, 258 U. S. 574, 42 S. Ct. 406, 66 L. Ed. 771; United States v. Utah, 283 U. S. 64, 51 S. Ct. 438, 75 L. Ed. 844. In the latter case, where the bed of the lake and the upland belongs to the United States, it is free when disposing of the upland to retain the lake bed, and whether it has done so is essentially a question of what it intended. If by the statute or the terms of its patents in disposing of tribal lands of Indians it has shown that it intended to restrict the conveyance to the upland, that intention will of course be controlling, and if, in the absence of intention otherwise manifested, it has assented to its conveyance, it would be given effect according to the state rule of riparian rights. Hardin v. Jordan, 140 U. S. 371, 384, 11 S. Ct. 838, 35 L. Ed. 428; Grand Rapids & Indiana R. R. Co. v. Butler, 159 U. S. 87, 92, 15 S. Ct. 991, 40 L. Ed. 85; Whitaker v. McBride, 197 U. S. 510, 25 S. Ct. 530, 49 L. Ed. 857; Oklahoma v. State of Texas, U. S., Intervener, supra.
The test of navigability is a federal question and which is determinative of the controversy. Each determination must stand on its own facts. It has frequently been stated by the Supreme Court to be: "Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water." The Daniel Ball, 10 Wall. 557, 563, 19 L. Ed. 999; United States v. Holt State Bank, 270 U. S. 49, 56, 46 S. Ct. 197, 70 L. Ed. 465; United States v. Utah, supra. The navigability or nonnavigability of a stream or lake not large and well-known must be established by clear evidence. To meet the test of navigability under the law, a water course should be susceptible of use for purposes of commerce or possess a capacity for valuable floatage in the transportation to market the products of the country. It should be of practical usefulness to the public as a public highway in its natural state and without the aid of artificial means. A theoretical or potential navigability or one that is temporary is not sufficient. While the navigable quality of a water course need not be continuous, yet it should continue long enough to be useful and valuable in transportation, and the fluctuations, if any, should come regularly with the seasons, so that the period of navigability may be depended upon. Oklahoma v. State of Texas, United States, Intervener, supra; United States v. Rio Grande Dam & Irr. Co., 174 U. S. 690, 19 S. Ct. 770, 43 L. Ed. 1136; Harrison v. Fite (C. C. A.) 148 F. 781; North American Dredging Co. v. Mintzer et al. (C. C. A.) 245 F. 297. The Idaho law as to navigability, recognized in a case where the test was whether a stream was navigable or not, is "any stream which, in its natural state, will float logs or any other commercial and floatable commodity, is for the time and to that extent a navigable stream," Mashburn v. St. Joe Improvement Co., 19 Idaho, 30, 113 P. 92, 95, 35 L. R. A. (N. S.) 824; and as to the right to condemn uplands for a log reservoir to improve navigability to float logs during short season in high water the Supreme Court of the state further said: "There are many streams in this state that will float logs or lumber during the floodtime or spring freshets, and will not do so during the time that such streams are at the ordinary stage or during low water. If it be true that all such streams are navigable under the provisions of said section 5210, and for that reason the right of eminent domain cannot be exercised with reference to such streams, the power therein given is a mere shadow. * * *" Potlatch Lumber Co. v. Peterson, 12 Idaho, 769, 88 P. 426, 432, 118 Am. St. Rep. 233. Under the law of Idaho at the time of statehood, and when the patents were issued to the allottees, the riparian owner upon a stream, both navigable and nonnavigable, takes title to the bed of the stream; Johnson v. Johnson, 14 Idaho, 561, 95 P. 499, 24 L. R. A. (N. S.) 1240; Moss & Bro. v. Ramey, 14 Idaho, 598, 95 P. 513; Lattig v. Scott, 17 Idaho, 506, 107 P. 47; Fischer v. Davis, 19 Idaho 493, 116 P. 412; Moss & Bro. v. Ramey, 25 Idaho, 1, 136 P. 608; which remained to be the rule until 1915, when the Supreme Court of the state changed it as to navigable lakes and streams, but left it as to nonnavigable streams as before, in holding that the state holds title to the bed of navigable lakes and streams below the natural high-water mark, and that the titles of riparian proprietors of uplands to the shores of the streams are determined by the laws of *583 the state. Callahan v. Price, 26 Idaho, 745, 146 P. 732; Northern Pac. Ry. Co. v. Hirzel et al., 29 Idaho, 438, 161 P. 854; Burras v. Edward Rutledge Timber Co., 34 Idaho, 606, 202 P. 1067; Miller v. Lewiston-Clarkston Canning Co. et al., 35 Idaho, 669, 209 P. 194. Thus it will be seen that it was the law in Idaho until 1915 that owners took to the middle of the stream, navigable or nonnavigable. In the meantime, the right of the allottees became vested rights, for the trust patents were, excepting one in 1914, issued in 1894, and, the state rule being as thus stated as to both navigable and nonnavigable waters, the United States, with such knowledge, intended that its grants be interpreted in accordance therewith, and hence intended to convey the bed of the lake to the riparian grantees.
A legal presumption of navigability is not created by meandering the body of water of a lake when the surveying officers surveyed the land adjacent to the lake, for the officers were not clothed with power to settle questions of navigability. United States v. Boynton et al., 53 F.(2d) 297 (C. C. A. 9); Gauthier v. Morrison, 232 U. S. 452, 34 S. Ct. 384, 58 L. Ed. 680; Hardin v. Jordan, 140 U. S. 371, 11 S. Ct. 838, 35 L. Ed. 428; Oklahoma v. Texas, supra; Johnson v. Johnson, supra.
Where the lands of the allottees were held in trust by the United States under 25 USCA § 348, and the trust patents issued thereunder, the United States may maintain suit to determine the riparian rights of the allottees, as it retained title in fee in trust for the use and benefit of the allottees until a named time when it will convey the land to the allottees in fee by the issuance of final patent, U. S. v. Reynolds, 250 U. S. 104, 39 S. Ct. 409, 63 L. Ed. 873. Final patents not having been issued, and these Indians being wards of the nation, they occupy the lands with the consent of the United States under the act and the trust patents, and as a part of the national policy by which they are to be maintained. There arises the duty of protection by the federal government of their property rights, which has been recognized by Congress and the Supreme Court. To say that the United States cannot maintain this suit in case it is held that the lake was a nonnavigable body of water, and where it retains title in fee in trust until final patent is issued for the Indian allottees, is to say that the obligations and duty which the government has assumed and its authority to protect the rights of the riparian owners would be defeated. The present case in this respect comes directly within the scope of the decision in United States v. Rickert, 188 U. S. 432, 23 S. Ct. 478, 480, 47 L. Ed. 532, where the taxing authorities in South Dakota attempted to assess lands held by the allottees, and suit was brought by the United States under the identical act and character of patents as we have here, and the court, in restraining the collection of such taxes, said: "The word `patents,' where it is first used in this section, was not happily chosen to express the thought which, it is clear, all parts of the section being considered, Congress intended to express. The `patents' here referred to (although that word has various meanings) were, as the statute plainly imports, nothing more than instruments or memoranda in writing, designed to show that for a period of twenty-five years the United States would hold the land allotted, in trust for the sole use and benefit of the allottee, or, in case of his death, of his heirs, and subsequently, at the expiration of that period, unless the time was extended by the President, convey the fee, discharged of the trust and free of all charge or encumbrance. In other words, the United States retained the legal title, giving the Indian allottee a paper or writing, improperly called a patent, showing that at a particular time in the future, unless it was extended by the President, he would be entitled to a regular patent conveying the fee. This interpretation of the statute is in harmony with the explicit declaration that any conveyance of the land, or any contract touching the same, while the United States held the title in trust, should be absolutely null and void. So that the United States retained its hold on the land allotted for the period of twenty-five years after the allotment, and as much longer as the President, in his discretion, should determine." Indeed, where property is held in trust, the statute of Idaho authorizes a "trustee of an express trust * * * may sue [in an action] without joining with him the persons for whose benefit the action is prosecuted." Section 5-303, I. C. A. So it appears clear that the United States may maintain this suit to protect the title to lands allotted to the Indians. Such lands so allotted are subject to the conditions imposed by the act and the conditions in the patent during the trust period, with the right of the allottee to occupy and use the same under a paper which shows that at a particular time in the future, unless extended by the President, he will be entitled to final patent for the fee. United States v. Gardner (C. C. A.) 133 F. 285; Bond v. United States (C. C.) 181 F. 613.
Where the United States has issued its trust patents to the allottees under 25 US *584 CA § 348, the land covered thereby ceased to be a part of the unappropriated public domain upon which a settler could urge a ninety-day preference right if the conclusion is reached that the United States under the act and patents holds the land in trust for the use and benefit of the Indian allottees. Even conceding that the defendant has such a ninety-day preference right, that question cannot be adjudicated in this action under the pleadings and evidence, as such a claim or preference right based only on a claim of right which has not been acquired under the law is not adverse title, but a claim subject to the sovereign's title, which is determinable in the Land Office as an administrative matter. No one has a vested right in any given mode of procedure until such procedure has been used and the right acquired thereunder.
With these principles in mind, we are brought to the main issue of fact, which requires us to turn to the evidence and determine whether the lake was navigable in July, 1890, at the time of the state's admission into the Union, which is the time conceded by all to govern in ascertaining that issue. A large part of it relates to the physical characteristics of the lake and a part as to who used it, and the manner in which it was used. The evidence shows an occasional tendency to emphasize the conditions of temporary high-water coming from the Kootenai river through the Jack Wall slough. The lake embraces an area of 139.40 acres, and the weight of the testimony shows that it is an inland body of water which has served to drain the surrounding country, and its principal source of supply is the backwater from the river through the slough. It has a depth of about 3½ feet when the height is not there. Most of the evidence relates to conditions since July, 1890, the time to which we are confined in determining the navigability of the lake, and there appears a sharp conflict in it as to the physical conditions and use of the lake. In the early days it was used principally by the Indians with their canoes in fishing and hunting; as the years went by, both the Indians and white men have at times used it in pleasure boating, hunting, and fishing, and have occasionally removed therefrom with a small launch logs which had been scattered over it and the valley by reason of the high water from Kootenai river flowing through the slough, and the operation of a small boat in going occasionally from Fisher's place across the lake when the surrounding country and the lake were temporarily flooded with high water from the river. During recent years an irrigation district was formed in the vicinity of the lake and a ditch connected with it, which resulted in draining all of the water therefrom, and, when that was done, the defendant attempted to assert a right to possession of the land formerly covered by the water of the lake. The flood waters which covered the lake and the surrounding country were caused by a break in the Kootenai river, which has been repaired. In fact, the surrounding country is barren, and the lake was not used before it was drained for the transportation of products. The evidence justifies the conclusion with reference to springs that they do not feed into the lake, but are located in foothills a mile or so away and drain north through Jack Wall slough. The water in the lake was low during all of the year, except occasionally about six weeks in May and June, when it was flooded from the break in the river. Therefore it may be regarded under the evidence as nothing but a basin of low water that was not and cannot be used for navigable purposes, and does not bring the case under the rules generally recognized as the federal and states rules, as it was not such a course of water that could be said as having been used, or capable of being used, for the purpose of transporting products to market for any practical period of time so that the period of navigability could be depended upon. The rule recognized by the Supreme Court of the state in the case of Mashburn v. St. Joe Improvement Co., supra, was modified in the case of Potlatch Lumber Co. v. Peterson, supra, where the court declined to hold as navigable streams in the state simply because they would float logs or lumber during the flood time or spring freshets, and would not do so during the time that such streams are at their ordinary stage or during the low water; but, however that may be, it will be observed that the facts appearing in the Mashburn and Potlatch Lumber Company Cases are entirely different from the facts here, as we are now considering only an inland small body of water which has been used occasionally for pleasure boating, fishing, and hunting, and removing occasionally logs therefrom which have been placed therein by the flood waters of Kootenai river, and the operation occasionally of a small boat across it when it and the surrounding country were temporarily under high water.
Viewed in any aspect, I perceive no ground on which this small inland body of water can be considered navigable within either the federal or state rule, and especially within the federal rule, which applies and governs in disposing of property of the United States. These considerations lead to the *585 conclusion that a decree should be entered quieting title to the bed of "Mission Lake" in the United States as trustee for the Indian allottees adjacent to the lake mentioned in the complaint and against the defendant and intervener, with costs.
The government will prepare form of findings and decree in accordance with this decision, and furnish a copy to the defendant and the state of Idaho within six days; and, within eight days after such submission, the draft findings and decree will be submitted to the court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381928/ | 200 S.W.3d 387 (2004)
Joe Alan TAYLOR, Jr. and Steve Hufstedler, Appellants,
v.
Michael HINKLE and Beiife, Inc., Appellees.
No. 04-471.
Supreme Court of Arkansas.
December 16, 2004.
*389 Barrett & Deacon, by: Ralph W. Waddell, D.P. Marshall, Jr, and Andrew H. Dallas, Jonesboro, for appellants.
W. Frank Morledge, P.A., Forrest City, for appellee.
BETTY C. DICKEY, Chief Justice.
Alan Taylor and Steven Hufstedler appeal a decision of the St. Francis County Circuit Court finding: (1) that appellants had no reasonable expectation of participation in the management and control of BEIIFE, Inc.; (2) that the corporation's by laws could be amended by the affirmative vote of fifty-one percent of the shares issued and outstanding; and, (3) that the actions of the appellants at the 2000 shareholders/board of directors meeting were a gross abuse of their discretion warranting their removal from the board of directors for a period of two years. Because this appeal involves an issue of first impression and issues of statutory construction, we have jurisdiction pursuant to Ark. Sup.Ct. R. 1-2(b)(1) and (6). We find no error and affirm the trial court.
Facts
Sometime in 1997, appellants Alan Taylor and Steve Hufstedler learned that Honda was planning to open a new franchise in Forrest City, Arkansas. Taylor is the general manager of J.T. Motorsports, *390 which sells Honda motorcycles and ATVs, in Jonesboro, Arkansas. Hufstedler is also employed by J.T. Motorsports. Taylor's father is the owner of J.T. Motorsports. Taylor currently has no ownership interest in J.T. Motorsports, but expects to inherit the business from his father. Honda has an internal rule which prohibits the ownership of adjacent Honda franchises. Because it, too, believed Taylor would inherit J.T. Motorsports from his father, Honda would not allow him to own the Forrest City franchise outright, and Hufstedler did not have the money to purchase it. Therefore, Taylor and Hufstedler needed a third-party to participate in the franchise with them. Taylor and Hufstedler contacted appellee Michael Hinkle regarding the acquisition of the Forrest City franchise. Hinkle owned a business in Aubrey, Arkansas that sold used ATVs and provided some service work on ATVs.
The three men formed BEIIFE, Inc., an Arkansas "S" Corporation, chartered for the sole purpose of acquiring and operating the Forrest City Honda franchise. Initially, Taylor and Hufstedler were to own 51% of the franchise, and Hinkle was to own the remaining 49%. However, due to philosophical differences as to how the business should be run (for example, Hufstedler said that he and Taylor were going to "go down there, stick it in them [the customers] and break it off"), Hinkle determined that he would not pursue the venture without a 51% interest and control of the corporation. Hinkle's demand led to a meeting at the office of Jack Gentry, the corporation's CPA, in November 1997. Following the meeting, the parties reached an understanding that Hinkle was to have a 51% interest in the company and that he would be in charge of the day-to-day operations of the Forrest City franchise. Later that month, Taylor filed BEIIFE's articles of incorporation.
When the parties met with the Honda representative in December 1997 to sign the franchise papers, they were still arguing about ownership percentages. Honda came to the meeting with the original ownership percentages, and Hinkle refused to sign the papers unless he was given 51% interest. Due to all the disagreements, the Honda representative began packing up to leave the meeting. Because he feared that the deal was about to go under, Taylor agreed to allow the Honda representative to switch the percentages and give Hinkle 51%. Later that day, the parties ratified the articles of incorporation and adopted the corporate bylaws. Honda granted BEIIFE a franchise based on certain conditions. Hinkle was to continue to be the president of the corporation with the authority to make all dealership decisions, and any changes in ownership percentages or dealer manager required Honda's prior written approval.
Although Hinkle, Hufstedler, and Taylor all agreed to contribute $10,000 each to capitalize the corporation, Hinkle was the only one who contributed any funds with which to start the business. Taylor refused to contribute because he got mad when Hinkle wound up with 51%. Hufstedler followed Taylor's lead and likewise refused to contribute anything. Hinkle and his wife loaned the company over $70,000. In addition, because BEIIFE had no money for equipment, Hinkle had to borrow furniture, tools, equipment, and trucks from his business in Aubrey in order to equip the Forrest City Honda franchise. He leased all of this equipment to BEIIFE for $800 per month, less than it would normally cost to rent one of Hinkle's trucks.
The Forrest City Honda franchise opened for business in 1998 and was an instant success. In 1998, the store had $2,900,000 in sales. The next year, the *391 store recorded 4.3 million in sales. In 2000, the store did 5.1 million dollars worth of business, and the next year's sales increased by $300,000. In 2002, the store made 6.5 million dollars in sales. Despite the financial success of the corporation, Taylor, Hufstedler, and Hinkle were in constant discord. Taylor and Hufstedler wanted to sell an in-house warranty, while Hinkle preferred a factory warranty. Taylor and Hufstedler wanted distributions with which to pay their taxes, whereas Hinkle wanted to reinvest the profits in the corporation. Taylor and Hufstedler's goal was to maximize profits, but Hinkle did not think that maximizing profits to the point of gouging the customers was the proper way to do business.
The conflict reached critical mass at a January 2000 board of directors/shareholders meeting. Taylor began the meeting by passing around a checklist of items that he wanted put before the board, and he criticized Hinkle for not generating enough profits. Despite the requirements and conditions of the franchise agreements wherein Hinkle was to remain president and ownership percentages could not change without prior written approval from Honda, Taylor and Hufstedler ousted Hinkle as the president of BEIIFE and replaced him with Taylor. In addition, Taylor and Hufstedler passed a measure requiring the corporation to open a savings account with a Jonesboro bank and another authorizing the issuance of additional corporate stock, which could not be transferred to a non-shareholder. They also passed a measure allowing shareholders to purchase these shares up to their pro-rata ownership percentages, but the shares could only be purchased with cash, not with debt owed by the corporation. Before Taylor could move the corporation's checkbook and mail from Forrest City to Jonesboro, Hinkle adjourned the meeting.
Shortly after the January 2000 board meeting, Hinkle filed this lawsuit seeking Taylor and Hufstedler's removal from the board for gross abuse of discretion. He alleged their actions violated the Honda agreement, jeopardizing BEIIFE's franchise. Although the parties originally sought the dissolution of the corporation, those claims were disposed of below, and thus are not before this court.
After a summary judgment hearing in December 2002, the trial court dismissed Hinkle's claim for dissolution and lifted a previous stay order that had forced the parties to maintain the status quo. In January 2003, Hinkle noticed another stockholders/board of directors meeting, with the stated purpose of amending the bylaws: to remove the requirement that every director be a shareholder; to remove Taylor and Hufstedler as directors; and, to vote for directors. Taylor and Hufstedler responded with a new counterclaim seeking to enjoin Hinkle from amending the bylaws or removing them as directors, claiming that Hinkle's actions were oppressive and violated their reasonable expectations of participating in managing BEIIFE. At the meeting, Hinkle voted all 51% of his shares and amended the bylaws, removing the requirement that directors be shareholders. He then voted his stock cumulatively and elected his wife, Janet, and himself to the board. She was the operations manager at the Honda dealership in Forrest City and had done the book work for Hinkle's business in Aubrey. Taylor and Hufstedler pooled their votes to elect Taylor. Relying upon financial advice from Jack Gentry, BEIIFE's CPA, regarding the reasonableness of compensation, Hinkle raised his salary from $39,000 to $75,000. Hinkle also increased the rent BEIIFE paid to Hinkle's ATV for equipment and trucks by $2,700 per month, justifying that increase on solicited bids *392 from third party vendors for the lease of like items. The amount quoted by those vendors was $9,491 per month for equipment and $801.82 per month for just one truck. In response, Taylor and Hufstedler sought a temporary restraining order to enjoin Hufstedler's removal. The trial court denied the motion, noting that the issue could be revisited at trial.
Following a two-day trial, the court held that Taylor and Hufstedler's actions at the 2000 board meeting constituted a gross abuse of discretion as directors and ordered their removal from the board for a two-year period. The trial court further held that neither Taylor nor Hufstedler had a reasonable expectation of participating in the management of BEIIFE, emphasizing that Taylor, Hufstedler, and Hinkle did not have an agreement about control. The trial court also held that Hinkle's amendment of the bylaws was authorized by corporate documents and that all of the actions taken by the newly elected board were valid. This appeal follows.
Standard of Review
In bench trials such as this, the standard of review on appeal is not whether there is substantial evidence to support the finding of the court, but whether the judge's findings were clearly erroneous or clearly against the preponderance of the evidence. Ark.R.Civ.P. 52(a) (2004); Reding v. Wagner, 350 Ark. 322, 86 S.W.3d 386 (2002); Shelter Mut. Ins. Co. v. Kennedy, 347 Ark. 184, 60 S.W.3d 458 (2001). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Sharp v. State, 350 Ark. 529, 88 S.W.3d 848 (2002). Disputed facts and determinations of credibility are within the province of the fact-finder. Sharp, supra; Pre-Paid Solutions, Inc. v. City of Little Rock, 343 Ark. 317, 34 S.W.3d 360 (2001).
Finally, a court considering a petition alleging oppressive conduct must investigate what the majority shareholders knew, or should have known, to be the petitioner's expectations in entering the particular enterprise. Smith v. Leonard, 317 Ark. 182, 876 S.W.2d 266 (1994) (citing, In re Kemp & Beatley, Inc., 64 N.Y.2d 63, 484 N.Y.S.2d 799, 473 N.E.2d 1173 (1984)). Majority conduct should not be deemed oppressive simply because the petitioner's subjective hopes and desires in joining the venture were not fulfilled. Id. Disappointment alone should not be equated with oppression. Id.
Closely Held Corporations
Closely held corporations are unique creatures. Because of their small size, these corporations require "close cooperation" and "mutual respect" between shareholders. Meiselman v. Meiselman, 309 N.C. 279, 307 S.E.2d 551 (N.C.1983). Shareholders in closely held corporations often reasonably expect their ownership to lead to a position in corporate management or corporate employment. McCauley v. Tom McCauley & Son, Inc., 104 N.M. 523, 724 P.2d 232 (Ct.App.1986); see also, Action Cmty. Televison Broad. Network, Inc. v. Livesay, 151 N.C.App. 125, 564 S.E.2d 566 (2002); Longwell v. Custom Benefit Programs Midwest, Inc., 627 N.W.2d 396 (S.D.2001). As one court put it, "the shareholder in a close corporation considers himself or herself a co-owner of the business and wants the privileges and powers that go with ownership." Mueller v. Cedar Shore Resort, Inc., 643 N.W.2d 56 (S.D.2002). "Only in the close corporation does the power to manage carry with it the de facto power to allocate the benefits of ownership arbitrarily among the shareholders *393 and to discriminate against the minority whose investment is imprisoned in the enterprise." Meiselman, supra, at 559.
A limited market exists for the shares of closely held corporations because investors are extremely reluctant to buy a non-controlling interest when the majority shareholder wields the power to freeze out the minority. McCauley, supra. This limited market share means that the minority shareholders are powerless to vindicate their representative expectations by force and they have no way to escape a bad investment. Because of the potential for oppression, several jurisdictions recognize claims by minority shareholders to vindicate their "reasonable expectations." e.g. McCauley, supra. at 236. Construing Arkansas's statute prohibiting "oppressive" conduct by directors, this state, in 1994, joined these jurisdictions. Smith, supra.(interpreting Ark.Code Ann. § 4-26-1108(a)(1)(B)).
Reasonable Expectations
For their first point on appeal, Taylor and Hufstedler assert that the trial court erred in holding that they had no reasonable expectation in participation in the management of BEIIFE, Inc. We disagree. Despite the fact that the appellants intended to be in control originally, when they were to have 51% of the stock, any expectation of control of the corporation dissipated when Hinkle demanded 51% ownership and control of the day-to-day operations of the company, and both the parties and Honda signed the franchise agreement.
While Taylor and Hufstedler got Hinkle to promise to "consult" with them on all major decisions, indicating an expectation to have some say in managing the corporation, this does not demonstrate that they had an expectation of having an equal say in running BEIIFE, Inc. Furthermore, the minutes of the corporation's annual meeting of shareholder and directors on January 5, 1998, reflected a subjective desire, rather than a reasonable expectation, of having an equal say in managing the corporation. The minutes in question stated:
The shareholders and directors next discussed ownership and voting requirements with respect to the corporation. It was noted that Michael Hinkle has 51% ownership interest, but that the minority shareholders and two directors would like for any decision to be based upon the decision of a majority of the existing shareholders and directors. Counsel for the parties was instructed to give further consideration to the issue.
In addition, there was a series of letters between Taylor and Hufstedler's lawyer and Hinkle's lawyer, which also showed that Taylor and Hufstedler only had a subjective desire of having an equal say in running the company. In a January 7, 1998 letter from Hinkle's lawyer to Taylor's lawyer, Hinkle's lawyer wrote:
Michael Hinkle called me this morning and he told me that after thinking the matter over, he does not wish to relinquish 51% ownership in the corporation. . . Michael does assure me that he does not wish to be in a position of making any major changes or expenditures, but that he feels that he must be free to operate the business. As stated previously, he does agree to be required to give notice before any stockholder action is taken.
On May 13, 1998, Taylor's lawyer wrote Hinkle's lawyer and stated,
I originally forwarded to you a draft of the bylaw amendment back on February 11, 1998. I thought we were in agreement on this issue. It was my understanding that while Michael wanted to retain a majority ownership in the corporation, *394 he was agreeable to corporate decisions being made by a majority vote of all three owners. The bylaw amendment is merely intended to accomplish this goal.
The bylaws already provide that only shareholders may be directors of the corporation. Currently, however, with his majority control, Michael Hinkle could conceivably amend the bylaws to delete this provision, then use his ownership to elect an outside director. All we are intending to do with the bylaw amendment is to make sure that all the owners will remain directors of the corporation, and that they will have an equal voice in any significant decisions regarding the corporate affairs (other than the decisions simply involving day-to-day operations of the business.)
On May 18, 1998, Hinkle's lawyer responded by writing:
I think we have a misunderstanding about the bylaw agreement. The amendment to section five requires a two thirds majority of the outstanding and issued shares to pass any measure. This would defeat the entire purpose of Michael insisting that he own fifty-one percent of the outstanding shares.
Based upon the testimony and exhibits before it, the trial court, in a letter opinion, found that Hinkle went into this deal with the clearly-expressed intent that he would own 51% of the corporation and have control, and he was willing to lose the opportunity if he did not have that percentage and control. In addition, the trial court found that Taylor and Hufstedler decided to proceed with the business opportunity, perhaps believing that later they could get Hinkle to change his position, but this did not occur. As such, the trial judge determined that the appellants did not have a reasonable expectation of participation in management and control of the corporation. We hold that the trial court's findings were not clearly erroneous, and we affirm on this point.
Amendment of Corporate Bylaws
At the January 22, 2003 meeting of shareholders and directors, the directors, inter alia, by a vote of Hinkle's 51 shares for and appellants 49 shares against voted to amend Article IV, Section 1, of the bylaws. As a result, the requirement that a director be a shareholder was deleted. Hinkle was then able to use his majority of votes to install his wife, Janet, in Hufstedler's place on the board of directors. Taylor and Hufstedler, meanwhile, pooled their votes in order to keep Taylor on the board. For their second point on appeal, Taylor and Hufstedler contend that the trial court erred in finding that Hinkle had the power to amend the corporation's bylaws. Again, we disagree.
Article 5 of the articles of incorporation provides:
The power to amend or repeal the bylaws or to adopt a new code of bylaws shall be in the shareholders acting by a majority thereof and also in the board of directors acting by a two-thirds (2/3) vote of the directors.
(emphasis added). In their briefs to this court, Taylor and Hufstedler admit that this language could be interpreted as allowing Hinkle to amend the bylaws by a simple majority vote of shares, or, as requiring a vote of a majority of the holders of the shares. However, they argue that if this language is read in conjunction with the other sections of the bylaws and articles of incorporation, then it is clear that the articles can only be amended by a 2/3 majority of the shareholders. Specifically, they contend that Article 13 of the bylaws, *395 alone, controls the amending of the corporate bylaws. Article 13 provides:
These bylaws may be altered or amended by a vote of the majority of the holders, in good standing, of the fully paid-up common stock at any annual or special meeting of the stockholders at which a quorum is present, but notice of the proposed change shall be given in the call of the meeting.
While it is true that, as a general rule, the specific provisions of a contract control the general provisions, see Pate v. Goyne, 212 Ark. 51, 204 S.W.2d 900 (1947), under the facts of this case, the appellants are mistaken.
In its order, the trial court cited Article 3, Section 5 of the bylaws, which states in pertinent part:
Only holders of fully paid-up common stock in good standing shall have or exercise voting rights. Each share of common stock shall have one(1) vote.
In addition to Article 3, Section 5 of the bylaws, the trial court relied upon Ark. Code Ann. § 4-27-1020, which provides in part:
A. A corporation's board of directors may amend or repeal the corporation's by-laws.
B. A corporation's shareholders may amend or repeal the corporation's bylaws even though the bylaws may also be amended or repealed by its board of directors.
Based upon its reading of both the articles of incorporation and § 4-27-1020, the trial court correctly interpreted article five to allow amendment of the bylaws by either the stockholders or the directors. The question then becomes whether, when amending the bylaws, the board of directors vote per shareholder or per share. The trial court determined the latter. We agree.
Article 3, Section 5 of the bylaws goes on to say:
A quorum shall be constituted when the person owning at least fifty-one percent (51%) of the outstanding and issued shares of stock, as indicated by the stock transfer register of the corporation, are in attendance. This quorum may transact the business of any meeting of the stockholders of this corporation, and a vote of the majority of such stockholders in attendance at such meeting shall be sufficient to pass or reject any properly proposed measure, except for the transaction of business which requires a different quorum or majority either by statute of this state or by the Articles of Incorporation of this corporation.
A quorum is defined by Article 3, Section 5 of the bylaws as the person owning at least 51% of the outstanding shares and issued shares of the stock. Appellants point to the apparent ambiguities between Article 3, Section 5, and Article 13 of the bylaws in asserting that any such ambiguities should be construed against the drafter, Hinkle, under the doctrine of contra proferentem. Sturgis v. Skokos, 335 Ark. 41, 977 S.W.2d 217 (1998). However, the Sturgis case went on to say that if there is an ambiguity, a court will accord considerable weight to the construction the parties themselves give to it, evidenced by subsequent statements, acts, and conduct. Id. It is well-settled that the polestar of contractual construction is to determine and enforce the intent of the parties. Harris v. Stephens Production Co., 310 Ark. 67, 832 S.W.2d 837 (1992). This rule trumps all others, even the doctrine of contra proferentem. Id. In ascertaining this intention, the court should place itself in the same situation as the parties who made the contract in order to view the circumstances as the parties viewed them at the time the contract was made. Asimos v. T.L. Reynolds & Sons, *396 Inc., 244 Ark. 1042, 429 S.W.2d 103 (1968); Sternberg v. Snow King Baking Powder Co., 186 Ark. 1161, 57 S.W.2d 1057 (1933).
In the case at bar, the copious correspondence between the parties' attorneys indicates that the appellants certainly believed that Hinkle had the authority to unilaterally amend the bylaws. Skip Smith, Taylor and Hufstedler's lawyer, in his May 13, 1998 letter to Bob Donovan, Hinkle's lawyer, stated, in pertinent part:
The bylaws already provide that only shareholders may be directors of the corporation. Currently, however, with his majority control, Michael Hinkle could conceivably amend the bylaws to delete this provision, then use his ownership to elect an outside director.
After he acquiesced and allowed Hinkle to assume 51% ownership and control of the corporation, Taylor became angry and refused to help capitalize the corporation, despite an earlier agreement to do so. Furthermore, the long history of discord between the parties indicates that neither Taylor nor Hufstedler truly believed that it would take a 2/3 per capita vote to remove a board member, or carry out other major corporate actions. Accordingly, the appellants could not have reasonably believed their seats on the board of directors were protected by a requirement of per capita voting on amendments to the bylaws.
We have held that documents are to be construed in a manner which gives reasonable and sensible effect to all clauses of the contract, within the entire context of the agreement. Sturgis, supra. Based upon the four corners of the corporate contract and parties' subsequent conduct regarding said contract, we cannot say that the trial court erred in finding that Hinkle's actions at the January 23, 2003 shareholders meeting were authorized by the articles of incorporation. In fact, if one were to follow Taylor and Hufstedler's argument to its logical conclusion, a person holding 98% of the shares in a close corporation could be subjugated to the will of other shareholders who collectively hold two percent, resulting in an absurd result. Accordingly, we affirm the trial court on this point as well.
Removal from the Board of Directors
Finally, appellants argue that the trial court erred in finding that Taylor and Hufstedler grossly abused their discretion, thus necessitating their removal from BEIIFE's board of directors pursuant to Ark.Code Ann. § 4-27-809 (Repl.2001). We hold otherwise.
At the 2000 board of directors/shareholders meeting, Taylor and Hufstedler voted to remove Hinkle as president of BEIIFE, and installed Taylor in his place. In addition, they passed a measure requiring the corporation to open a savings account with a Jonesboro bank, and another measure authorizing the issuance of additional corporate stock, which could not be transferred to a non-shareholder. They also passed a measure allowing shareholders to purchase these shares up to their pro-rata ownership percentages, but the shares could only by purchased with cash, not with debt owed by the corporation. Finally, they intended to move the corporation's checkbook to Jonesboro, and they wanted to have the mail sent there as well, but Hinkle adjourned the meeting before these two measures could be voted upon.
Ark.Code Ann. § 4-27-809 provides, in pertinent part:
(a) The circuit court of the county where a corporation's principal office (or, if none in this state, its registered office) is located may remove a director of the corporation from office in a proceeding commenced either by the corporation *397 or by its shareholder holding at least ten percent (10%) of the outstanding shares of any class if the court finds that (1) the director engaged in fraudulent or dishonest conduct, or gross abuse of authority or discretion, with respect to the corporation and (2) removal is in the best interest of the corporation.
The issue is whether Taylor's and Hufstedler's actions constituted a gross abuse of discretion. It is well established that the first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in the common language. When a statute is clear, we will not search for legislative intent; rather, that intent must be gathered from the plain meaning of the language used. Cave City Nursing Home, Inc. v. Arkansas Department of Human Services, 351 Ark. 13, 89 S.W.3d 884 (2002).
Taylor and Hufstedler argue that all of their actions at the January 2000 board/shareholders meeting were authorized by corporate documents. The stock purchase agreement, item 19 on Taylor's checklist for the January 2000 meeting, provided:
Motion that each shareholder buy Five (5) or up to their pro rata basis (as included in Article Tenth of the Articles of Incorporation of the corporation) of shares of common stock of BEIIFE, Inc. These shares can be purchased for cash and not for any moneys owed to the shareholder by BEIIFE, Inc. Also, all moneys from this stock sale must be placed in the above savings account at Mid-South Bank in Jonesboro, AR. This offer expires in thirty (30) days from today.
In support of his argument that this move was authorized, Taylor points to article 4 of the articles of incorporation, which authorizes the corporation to issue 1,000 shares of stock. At the time the measure had passed, the corporation had only issued 100 shares of stock. Article 5 of the articles of incorporation allows the corporation to select a depository bank, and the appellants argue that they were within their rights to pick a bank in Jonesboro, rather than one close to the franchise. Next, the appellants point to Article 10 of the articles of incorporation, giving each shareholder a first right to purchase shares up to their pro rata percentage of ownership, a right which expires after thirty days.
Hinkle counters by saying that these measures violate the franchise agreement, which cannot be changed without Honda's prior written approval. The franchise agreement provides, in pertinent part:
B.
Dealer covenants and agrees that this agreement is personal to dealer, to the dealer owner, and to the dealer manager, and American Honda has entered into this agreement based on their particular qualifications and attributes and a continued ownership or participation dealership operations. The parties agree that the ability of the dealer to perform this agreement itself are both conditioned upon the continued active involvement in the ownership of dealer by the following person(s) in the percentage(s) shown:
Percentage of
Name Title Ownership
-----------------------------------------------
Michael Hinkle President 51%
Steven Hufstedler Shareholder 25%
Alan Taylor Shareholder 24%
C.
Dealer represents and American Honda enters into this agreement in reliance on the representation that Michael Hinkle exercises the functions of dealer manager and is in complete charge of the *398 dealership operations with authority to make all decisions on behalf of the dealer with respect to dealership operations. Dealer agrees that there will be no change in dealership manager without prior written approval of American Honda. Such approval shall not be unreasonably withheld.
First, Hinkle asserts that the stock purchase measure would have forced him to have to purchase his pro rata percentage of stock or else he would no longer have maintained his 51% ownership interest. As stated above, per the franchise agreement, Hinkle is to remain 51% owner unless Honda gives prior approval to a change in the ownership percentages. In the case at bar, Honda gave no such prior approval.
Next, Hinkle points to the intended use of the money from the stock purchase agreement to highlight the alleged misconduct. Items 13 through 21 of the Taylor checklist at the board meeting say: that the stock will be sold; that a used inventory, floor planning and retail financing loan will be secured from Mid-South Bank; and that the stock sale proceeds will be placed in that bank. Taylor's testimony at trial showed that the sale proceeds would be used to establish a deposit relationship with Mid-South Bank. The corporation would then borrow $100,000 from the bank. The loan proceeds would then be put back into the business, and then distributed out to the shareholders in order to give Taylor and Hufstedler some cash out of the corporation. Hinkle contends Taylor's and Hufstedler's purpose in voting for the measure was to generate some cash for themselves, i.e. to benefit their own self-interest, rather than the corporation's best interest.
The trial court found that directors of any corporation owe to the corporation certain duties. First, a director owes the duty to act within the bounds of his authority. Second, a director must exercise a standard of care which an ordinary prudent director of a similar corporation would exercise under similar circumstances. Finally, a director may not pursue his own interests in a manner which is injurious to the corporation.
While the trial court's finding that the appellants had moved the mail and the checkbook from Forrest City to Jonesboro was in error, the appellants cannot show that they were prejudiced by that finding. We will not reverse absent a showing of prejudice. Peters v. Pierce, 314 Ark. 8, 858 S.W.2d 680 (1993). At trial, although he conceded that he could not own the Forrest City dealership, Taylor admitted that if he could wrest control from Hinkle, that would be a good thing for him. He also testified that he intended to take away all record-keeping or accounting-type functions, such as sales, expenses, profits, and that kind of thing, from Hinkle to his dealership in Jonesboro. Taylor admitted that he intended to take the checkbook to Jonesboro, and that he intended to shut down the mail and have it sent to Jonesboro as well. Taylor said that he did not think a person needed a checkbook to run a six or seven million dollar business. The appellants claim that their subjective desire to do several other things that would obviously hurt the corporation, such as moving the books, mail, and checkbook two counties away and keeping it from the person who was supposed to be running the corporation and the day-to-day operations, does not rise to the level of a gross abuse of discretion. We disagree. The appellants' intent to do those acts, coupled with the actions that appellants did, in fact, carry out, more than constitute a gross abuse of discretion.
In its letter opinion, dated August 4, 2003, the trial court expressly ruled that:
*399 Here, the Defendant, Taylor was quite candid in admitting that his actions were taken as a result of Plaintiff Hinkle's insistence of having 51% of the corporation. The actions of the Defendants, described above, were retaliatory in nature. After acquisition of the Honda agreement the Defendants then became obstructive instead of supportive of the corporation. The court finds that these directors' actions were contrary to the best interest of the corporation and that the path the Defendants decided to take jeopardized the corporation.
The court finds that the actions of these Defendants do constitute a gross abuse of their discretion and authority. Pursuant to A.C.A. 4-27-807 these Defendants are removed from the Board of Directors for a period of two (2) years.
Taylor and Hufstedler's blatant violations of the franchise agreement, coupled with their clear intentions to commit other actions designed to wrest control away from Hinkle, are clearly injurious to the corporation, and such actions do, indeed, constitute a gross abuse of discretion. Based on the evidence presented in this particular case, we cannot say that the trial court abused its discretion in removing the appellants from the board of directors.
Affirmed.
THORNTON, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381947/ | 200 S.W.3d 500 (2006)
Kimber EDWARDS, Appellant,
v.
STATE of Missouri, Respondent.
No. SC 86895.
Supreme Court of Missouri, En Banc.
August 8, 2006.
As Modified on Denial of Rehearing September 26, 2006.
*505 Melinda K. Pendergraph, Office of the Public Defender, Columbia, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, for Respondent.
MICHAEL A. WOLFF, Chief Justice.
Kimber Edwards was convicted of hiring Orthel Wilson to kill his ex-wife, Kimberly Cantrell, and was sentenced to death. This Court affirmed. State v. Edwards, 116 S.W.3d 511 (Mo. banc 2003), cert. denied, 540 U.S. 1186, 124 S. Ct. 1417, 158 L. Ed. 2d 92 (2004). Edwards filed a post-conviction motion pursuant to Rule 29.15, which was overruled after a partial hearing. Edwards now appeals. Because Edwards was sentenced to death, this Court has jurisdiction. Mo. Const. art. V, sec. 10; order of June 16, 1988.
Facts
Edwards and Cantrell were divorced in 1990. Edwards was ordered to pay child support for the couple's daughter. Edwards fell behind in his payments and did not pay support from March 1999 to March 2000. He was indicted on a felony non-support charge. Cantrell was listed as a witness. A scheduling conference was set for August 25, 2000.
Edwards worked as a correctional officer in St. Louis County and also owned several apartments with his second wife, Jada. In the summer of 2000, Orthel Wilson was living in one of these apartments rent-free in exchange for maintenance and other work. Edwards was seen at Wilson's apartment during the week preceding Cantrell's murder. Sometime in the month before the murder, Wilson's brother saw a .38 caliber handgun in Wilson's bedroom. Edwards told Wilson to put the gun away. Wilson's brother later identified the gun as similar to the gun used to murder Cantrell.
The afternoon of the murder, August 22, 2000, Cantrell's neighbor, 14-year-old Christopher Harrington, saw a man, whom he later identified as Wilson, carrying a black backpack, knocking on Cantrell's door. Wilson's roommate testified that he dropped Wilson off near Cantrell's apartment at approximately 4:30 that afternoon. Between 5:15 and 5:30 that evening, Harrington's 12-year-old brother heard gunshots and the sound of a woman screaming coming from Cantrell's apartment.
Cantrell's body was discovered, shot twice in the head, on the evening of August 23. Detectives visited Edwards' home in the early morning of August 24 to see if he had any information that might aid the investigation. Edwards agreed to go to the police station. Detectives drove Edwards, Jada, and Edwards' three daughters to the station. Edwards stated that he did not kill Cantrell and did not know who would want her dead. Cantrell's daughter who was the only child of Cantrell's marriage to Edwards was placed in an aunt's custody, and the remaining family members were driven home.
A few days later, detectives went to Edwards' apartment building to interview the tenant that Edwards claimed to be helping with an electrical problem on the day of the murder. Detectives saw Wilson sitting on the steps in front of the building and approached him because he matched the description of the person knocking on Cantrell's door. He agreed to go to the *506 police station. In Wilson's apartment, detectives found a black backpack matching the backpack described by Christopher Harrington. From a photographic lineup, Harrington identified Wilson as the man he saw. Wilson was charged with first-degree murder.
The next day, Wilson took the police to a vacant house where they located the murder weapon and some ammunition. Edwards was interviewed again later that day. Edwards confessed that he had agreed to pay an individual named "Michael" $1600 to kill Cantrell. Edwards said he gave Cantrell's address and routine to "Michael," and that he told "Michael" that he could get a key to Cantrell's apartment. Edwards said he told "Michael" that he wanted Cantrell dead before a scheduled appearance in the non-support case. Edwards denied that "Michael" was really Wilson, but stated that he thought "Michael" might have involved Wilson in the operation. Edwards made a written statement detailing this information.
Wilson did not testify at trial. Some police officers, however, testified about their interactions with Wilson, specifically that Wilson had led officers to the murder weapon and that Wilson's statements were used to confront Edwards during his second interrogation.
Edwards testified at trial and denied any involvement with Cantrell's murder, although he did admit making a statement implicating himself. Edwards claimed that he only made the statement because he was afraid that the police would bring his wife and daughters to the station again and would accuse his wife of involvement in the murder.
The jury found Edwards guilty of first-degree murder.
During the penalty phase, Edwards presented nine witnesses who were family, friends, and co-workers. The defense strategy was to present Edwards as a hard worker who loved his family, treated his co-workers and tenants well, and was close to and loved by his family. The defense wanted to show that Edwards' family would be hurt by his execution. Edwards' mother, Mildred, testified that Edwards had a "good relationship" with his deceased father, was close to his father, and was a hard worker. She testified that Edwards was a good parent and treated her foster children like his own brothers and sisters. Many witnesses testified that they loved Edwards and would continue to visit him in jail. The jury found one aggravating circumstance: that Edwards hired another person to murder Cantrell. The jury recommended the death penalty, which the trial court imposed.
Post-Conviction Evidence
Edwards then filed a Rule 29.15 motion. The motion court held an evidentiary hearing on several issues but denied relief.
Edwards' mother, Mildred, testified at the Rule 29.15 hearing about Edwards' childhood. This testimony conflicted with Mildred's testimony during the penalty phase at trial, where she had stated that Edwards had a good relationship with his father. During the penalty phase, Mildred did not mention any problems with abuse or neglect in the home while Edwards was growing up. At the Rule 29.15 hearing, however, she testified that her husband, Emmrie, continually beat and abused her throughout the marriage. She testified that Emmrie did not show any interest in or affection for any of the children. When she was pregnant with Kimber, she did not receive prenatal care, was beaten by Emmrie, and had a high fever at one point during the pregnancy. When Kimber was a baby, he did not cry or respond normally. Mildred was hospitalized for depression when Kimber was a child. Mildred *507 testified that Emmrie would wake the children up at night to beat them and that Kimber would not cry, run away, or complain. She testified that when Emmrie would beat her, Kimber would act like nothing was happening.
Edwards' attorneys called his cousin, Tangalayer Mansaw, who did not testify at trial. Mansaw testified at the Rule 29.15 hearing that she was never contacted by Edwards' trial counsel or their investigator. Mansaw spent a lot of time at Edwards' house when she was a child and testified that she witnessed extensive domestic violence incidents between Edwards' parents.
Both of Edwards' trial counsel testified that they had difficulty communicating with Edwards in preparation for trial. Edwards would focus on minute details that he wanted accomplished without seeing the big picture. When counsel would not do something he wanted, Edwards would not cooperate, would withhold information, and would threaten to tell his family not to talk to counsel. Edwards' counsel on direct appeal also testified that Edwards was difficult to communicate with.
Edwards tried to have both his trial and post-conviction counsel removed because he was dissatisfied with their performance. In both instances, the court found that his counsel was adequate and refused to appoint new counsel.
Expert Evaluations and Testimony
Trial counsel had Edwards evaluated by three experts prior to trial: Doctors Cross, Stacey, and Rabun. The purpose of these evaluations was to determine whether Edwards was competent to stand trial and whether he had any mental disease or defect that could provide a defense or significant mitigating evidence. These experts met with Edwards and family members, conducted testing on Edwards, and reviewed school, work, and medical records. None of these experts concluded that Edwards was incompetent to stand trial or that he had a mental disease or defect that could provide a defense. Dr. Cross did mention to trial counsel that he thought Edwards might have an unspecified developmental disability.
The three experts who testified as part of the Rule 29.15 hearing were Dr. Logan, a psychiatrist, Dr. Draper, a developmental specialist, and Dr. Cross, a clinical psychologist. All three agreed that Edwards showed signs consistent with Asperger's Disorder,[1] a developmental disorder that is related to, but separate from, autism. Prior to the Rule 29.15 evaluations, no one had ever diagnosed Edwards with Asperger's Disorder. His school records did not indicate any serious developmental problems.
Dr. Draper, a "developmentalist" and professor with a Ph.D., testified that Edwards "has the characteristics of" Asperger's Disorder, but did not make a diagnosis *508 of Asperger's. Dr. Draper wrote her report after interviewing Edwards and family members and reviewing records.
Dr. Cross evaluated Edwards both prior to and after trial. He has a Ph.D. and is a licensed psychologist in Missouri. Dr. Cross did not diagnose Asperger's Disorder or any other condition prior to trial.
At the Rule 29.15 hearing, Dr. Cross testified that when he evaluated Edwards prior to trial, he had been provided with school and work records and police reports. He was not provided with a formal social history, but he believes that a social history is essential to a proper evaluation. Although Dr. Cross said that trial counsel stated their intention to send him birth and medical records, he did not receive them. He never requested the records from counsel, even though counsel's letter requested that he contact them if he needed any additional information. He never requested a more detailed social history. He interviewed Mildred (Edwards' mother), Jada (Edwards' second wife), one of Edwards' daughters, and Edwards. During these pretrial interviews, Mildred stated that Edwards' development was normal and that he did not have any problems in school. Mildred did not provide details about domestic violence in the home. Mildred mentioned that she had suffered from depression but did not elaborate on the extent or cause. Dr. Cross did not receive Mildred's medical records, nor did he request them from counsel.
As part of his pretrial evaluation, Dr. Cross administered several intelligence and personality tests. Edwards' verbal I.Q. was 115, but his performance I.Q. was only 90. Dr. Cross testified that this spread indicated "a developmental learning disability" and that he mentioned this suspicion to Edwards' trial attorneys. The testing did not show that Edwards had a major mental illness or indicate that Edwards had been abused as a child.
After he reported his initial results, Dr. Cross was notified that trial counsel did not want him to submit a formal report. He was later contacted by post-conviction counsel and asked to interview Edwards again and give an opinion. Dr. Cross testified that the social history provided by post-conviction counsel contained important information that was useful in diagnosing Edwards.
After trial, Dr. Cross interviewed Mildred several more times, and she gave information contrary to her pretrial interviews. This information included details about Edwards' lack of attachment and failure to play with other children, as well as details about the abuse within the home. Dr. Cross did not believe that it would have been possible to elicit this information from Mildred before trial because "it was very difficult for Mildred to emotionally manage that kind of disclosure" at that time.
Before he had reviewed all of the records from post-conviction counsel, Dr. Cross attended a meeting with Drs. Draper and Stacey and post-conviction counsel. The purpose of that meeting was to "theorize a little bit about what might be a possible diagnosis" for Edwards. Dr. Cross did not remember who first mentioned the diagnosis of Asperger's, but was sure that he did not raise it. Dr. Cross suggested that counsel retain a psychiatrist because "I wanted someone who could confirm my diagnosis[.]" In reaching his diagnosis, Dr. Cross also relied on the written report of Dr. Stacey, who was consulted both before and after trial but who did not testify. Dr. Stacey's diagnosis was a pervasive developmental disorder not otherwise specified, with a secondary diagnosis of narcissistic personality. Dr. Cross testified that this diagnosis, although not identical, was "consistent" with his diagnosis of Asperger's.
*509 Dr. Logan, a psychiatrist, was the last post-conviction expert consulted. At the time he was consulted, "there had already been a meeting ... that had formed a diagnostic impression that Mr. Edwards suffered from some type of pervasive developmental disorder, primarily Asperger's Disorder." Dr. Logan believed that "there had been some suggestion ... that they get a psychiatrist to take a look at things." Dr. Logan's job was to determine whether he agreed with that diagnosis and to determine how that diagnosis might have affected Edwards' participation in his trial. Dr. Logan concluded that Edwards suffered from Asperger's Disorder. Dr. Logan did not conduct his own interviews of Mildred and did not prepare his own social history.
Dr. Logan believed that the diagnosis of Asperger's Disorder would have been mitigating evidence at trial because it would have explained Edwards' demeanor and occasional inappropriate facial expressions, as well as his inability to work out problems in collaboration with others.
Standard of Review
This Court reviews a motion court's judgment overruling a post-conviction motion for clear error. Rule 29.15(k); Morrow v. State, 21 S.W.3d 819, 822 (Mo. banc 2000). "Findings and conclusions are clearly erroneous only if a full review of the record definitely and firmly reveals that a mistake was made." Id. The motion court's findings of fact and conclusions of law are presumed to be correct. Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991).
Exclusion of evidence of accomplice's sentence
Edwards' first point on appeal is that his appellate counsel was ineffective for failing to challenge the trial court's exclusion of evidence that Wilson was sentenced to life imprisonment.
The trial court refused to allow evidence of Wilson's sentence during Edwards' penalty phase. Edwards claims that this evidence was admissible and that his appellate counsel should have raised it under Parker v. Dugger, 498 U.S. 308, 111 S. Ct. 731, 112 L. Ed. 2d 812 (1991). Appellate counsel testified that she was aware of Parker but that she raised the issue as only one of proportionality; that is, she argued that Wilson's sentence should have been raised as part of the determination whether Edwards' death sentence was proportional to the crime. She testified that, looking back, she wishes that she had raised the claim under Parker.
Two relevant cases, Lockett v. Ohio, 438 U.S. 586, 98 S. Ct. 2954, 57 L. Ed. 2d 973 (1978), and State v. Schneider, 736 S.W.2d 392 (Mo. banc 1987), precede Parker. In Lockett, the Supreme Court held that the sentencer in a capital case cannot be prevented from considering, in mitigation, "any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death."[2] 438 U.S. at 604, 98 S. Ct. 2954. A capital defendant has the right to an "individualized consideration" based on his particular situation. Id. at 605, 98 S. Ct. 2954. The Court recognized that this standard does not "limit[] the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant's character, prior record, or the circumstances of his offense." Id. at 604, note 12, 98 S. Ct. 2954. In Schneider, this Court considered *510 whether the exclusion of evidence of a co-defendant's plea agreement and sentence violated Lockett. 736 S.W.2d at 396. This Court held that it did not, because the co-defendant's plea agreement "did not pertain to defendant's character or prior record, and while [the co-defendant's] activities in the crime were relevant to the `circumstances of the offense,' the bargain he struck with the prosecutor subsequent to the murders was not." Id. at 397 (emphasis in original).
Although Schneider would seem to settle the issue by holding that the admission of a co-defendant's sentence is not required mitigating evidence under Lockett, Edwards argues that the Supreme Court's decision in Parker changed this result. In Parker, the court construed the Florida death penalty statute, which, like Missouri's statute, requires the sentencer to weigh any aggravating factors found against all of the mitigating evidence presented. Part of the mitigating evidence presented under Florida law was that none of Parker's accomplices were sentenced to death. 498 U.S. at 314, 111 S. Ct. 731. It was not clear to what extent the trial judge had considered the mitigating evidence presented. Id. The Florida Supreme Court invalidated two of the aggravating factors, but did not invalidate the sentence, because it found that "no mitigating factors" had been found by the trial court. Id. at 318-19. The Supreme Court invalidated Parker's death sentence because "[a]fter striking two aggravating circumstances, the Florida Supreme Court affirmed Parker's death sentence without considering the mitigating circumstances. This affirmance was invalid because it deprived Parker of the individualized treatment to which he is entitled under the Constitution." Id. at 322, 111 S. Ct. 731.
Edwards argues that Parker stands for the proposition that a co-defendant's sentence is required mitigating evidence that the jury must consider. The state argues that Parker holds only that the Florida appellate court could not uphold Parker's death sentence after invalidating an aggravating factor without reweighing the aggravating and mitigating factors.
This Court agrees with the state's interpretation. Parker holds that any mitigating evidence that is admitted under state law must be considered and weighed against the aggravating factors found. The United States Supreme Court does not say that an accomplice's sentence is constitutionally required mitigating evidence; rather, the Court says that if that evidence is admitted under state law, then it must be considered by the sentencer. Other state courts have similarly interpreted Parker. See, e.g., Morris v. State, 940 S.W.2d 610, 614 (Tex.Crim.App.1996) (Parker does not state that this evidence must be considered by the jury; evidence of an accomplice's sentence does not relate to the defendant's character or record, or to the circumstances of the offense); State v. Ward, 338 N.C. 64, 449 S.E.2d 709, 737 (1994) (Parker only addressed Florida law and did not hold that this evidence was required to be admitted under federal law); People v. Mincey, 2 Cal. 4th 408, 6 Cal. Rptr. 2d 822, 827 P.2d 388, 434 (1992) (Parker does not hold that other states are constitutionally required to admit this evidence in mitigation). Edwards cites cases where evidence of an accomplice's sentence was allowed.[3] None of these cases cites a statement by the United States Supreme *511 Court that this evidence is constitutionally required to be admitted. The federal courts require admission of this evidence, but that admission is based on a federal statute, 18 U.S.C. § 3592(a)(4), not on the constitution. Florida is free to allow a broader range of mitigating evidence than the constitution requires; that does not mean that Missouri must allow anything beyond what is required by Lockett and other Supreme Court cases.
Edwards argues that this interpretation of Parker is inconsistent with McCleskey v. Kemp, 481 U.S. 279, 306, 107 S. Ct. 1756, 95 L. Ed. 2d 262 (1987), where the Supreme Court held, "States cannot limit the sentencer's consideration of any relevant circumstance that could cause it to decline to impose the [death] penalty." That statement follows a summary of the limits that prior Supreme Court cases, including Lockett, have placed on the death penalty. There is no mention of overruling Lockett. Thus, the term "relevant" refers to the limitations imposed in Lockett and other cases, such as the "circumstances of the case." More recent Supreme Court cases reaffirm the states' ability to limit the mitigating evidence that can be presented and the continued viability of the Lockett standard. See, e.g., Oregon v. Guzek, ___ U.S. ___, 126 S. Ct. 1226, 1231-32, 163 L. Ed. 2d 1112 (2006).
Since Parker does not change the standard for admissibility of mitigating evidence, this Court's earlier pronouncement in Schneider that Lockett does not apply to evidence of an accomplice's sentence controls. There is no basis in Missouri law for concluding that a co-defendant's sentence is relevant as to mitigation in the penalty phase. Unless and until the United States Supreme Court rules that a co-defendant's sentence must be considered, as a constitutional matter, there is no basis for ignoring existing Missouri precedent. The motion court's finding that appellate counsel was not ineffective on this issue is not clearly erroneous.
Lack of opportunity to confront Orthel Wilson
Edwards' second point is that his right to confrontation was violated because he was not allowed to cross-examine Wilson. Wilson was not called as a witness, but police officers testified that Wilson led them to the murder weapon.
The Confrontation Clause, found in the Sixth Amendment to the United States Constitution, provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." This clause is made applicable to the States through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965). In Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), the Supreme Court held that the Confrontation Clause bars the admission of "testimonial" statements by a witness who does not testify at trial, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. The Court declined to decide specifically which statements are "testimonial." Id. Edwards argues that Crawford, decided after his direct appeal, should be applied retroactively to him.
Following Crawford, the Supreme Court in Davis v. Washington, ___ U.S. ___, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006), considered the definition of "testimonial" as it relates to statements made during police interrogations. Such statements are nontestimonial "under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency." Id. at 2273-74. Statements are testimonial if the circumstances *512 objectively indicate no emergency "and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Id at 2274.
It is not necessary to determine whether Wilson's statements in this case would be "testimonial" under Davis, because none of Wilson's statements was put before the jury. The only statement that was repeated to the jury did not implicate Edwards in the crime and was not admitted for its truth. This case is unlike Crawford, where the witness' videotaped confession was played for the jury, and Hammon, the companion case to Davis, where police read the witness' written statement verbatim to the jury. Id. at 2272.
On direct appeal, this Court held that testimony about Wilson's statements to the police could not be admitted for their truth, but were admissible for the limited purpose of explaining the officers' subsequent investigation. State v. Edwards, 116 S.W.3d 511, 532-33 (Mo. banc 2003). The Court found that the testimony had been carefully restricted so that no improper statements implicating Edwards were presented. Id. at 533. A careful review of the record reaffirms that conclusion.
Although officers testified that Wilson was interviewed, no particular statement Wilson made during interrogation was discussed. Officers also testified that Wilson was arrested for first-degree murder based on Christopher Harrington's identification from a photographic lineup. Officers testified that Edwards wanted to revise his statement after hearing that the police had interviewed Wilson. The jury did not hear what Wilson told the police that made Edwards want to revise his statement. Officers testified that they informed Edwards that "Wilson was in custody, that we had spoken with Wilson and that we had recovered a murder weapon." This was not a statement by Wilson. The only direct statement of Wilson's that was before the jury was in response to the question of why officers had gone to a particular building: "Mr. Wilson told us that's where he hid the murder weapon." In addition to being admitted only for the limited purpose of demonstrating why the police went to that building, this statement did not implicate Edwards in the crime.
The record shows, as this Court concluded on direct appeal, that all of the evidence was admitted for the limited and proper purpose of explaining subsequent police actions. See State v. Dunn, 817 S.W.2d 241, 243 (Mo. banc 1991) (statements explaining subsequent police conduct are admissible). The judge carefully controlled the evidence so that no witnesses were allowed to testify improperly about what Wilson had told them. Because none of Wilson's statements implicating Edwards was admitted for its truth, there was no testimonial evidence involved, and the Confrontation Clause was not implicated. Because the Confrontation Clause was not implicated, the subsequent decisions of Crawford and Davis do not change the conclusion of this Court on direct appeal that no improper hearsay was admitted.
Edwards complains that, even if the statements were properly admitted to show the reasonableness of the officers' subsequent actions, the jury was free to consider the statements for their truth because the trial court refused to give a limiting instruction. Edwards raised this issue on direct appeal and provides no basis why this issue should be reconsidered here. "Issues decided on direct appeal will not be reconsidered" in post-conviction proceedings. Leisure v. State, 828 S.W.2d 872, 874 (Mo. banc 1992).
*513 Motion court's refusal to hear Orthel Wilson's Recantation
In his amended Rule 29.15 motion, Edwards alleged that Wilson recanted his confession, claiming that the police coerced his confession and that Edwards did not hire him to commit the murder.
The motion court denied a hearing on this allegation. "A movant is entitled to an evidentiary hearing if (1) he alleges facts that warrant relief, if true; (2) the allegations are not refuted by the record; and (3) the movant was prejudiced by the alleged errors." Franklin v. State, 24 S.W.3d 686, 690 (Mo. banc 2000).
Wilson did not testify at trial. The jury did not hear any statements made by Wilson implicating Edwards. The main evidence supporting Edwards' conviction is his own confession. Even if Wilson testified to these facts, they would not warrant relief because they would not negate the basis for guilt. Edwards was not entitled to a hearing on this claim because, even if this new evidence were true, it would not warrant relief because it would not negate the significant evidence supporting Edwards' conviction.
Motion court's failure to make findings on all issues
For his fourth point, Edwards complains that the motion court only made specific findings of fact and conclusions of law on five of the 14 issues he pled.
Rule 29.15(j) states, "[t]he court shall issue findings of fact and conclusions of law on all issues presented, whether or not a hearing is held....". Findings and conclusions on a post-conviction motion "must be sufficiently specific to allow meaningful appellate review." Barry v. State, 850 S.W.2d 348, 350 (Mo. banc 1993). The court, however, "is not required to individually address every claim brought by the movant. Generalized findings are sufficient so long as they permit the appellate court an adequate record for appellate review of movant's claims." Franklin v. State, 24 S.W.3d 686, 692 (Mo. banc 2000). Findings of fact are not required where the issue is solely one of law. White v. State, 939 S.W.2d 887, 903 (Mo. banc 1997); Barry, 850 S.W.2d at 350.
Although Edwards claims that the motion court only made findings on five issues, in his brief he only specifies three issues for which findings were not made. First, Edwards complains that the motion court did not address his allegation that trial counsel was ineffective for failing to investigate and present evidence of Edwards' childhood through his mother. A review of the motion court's judgment shows that the court found Edwards' trial counsel provided effective assistance of counsel and conducted an appropriate investigation into Edwards' background. The motion court noted that counsel had multiple visits with Edwards before trial, had three experts evaluate Edwards, and interviewed multiple witnesses. Although the generalized finding that counsel were effective could have applied to many of Edwards' claims, such generalized findings are not fatal where, as here, the motion court clearly considered counsel's effectiveness and the appropriateness of counsel's investigation.
Second, Edwards complains that the motion court did not make specific findings relating to his argument that Crawford applied retroactively to his claim that he was denied the right to confrontation. As discussed above, Crawford is inapplicable, so a remand to the motion court on this issue would be pointless. Further, this is a question of law and findings of fact are not required.
Third, Edwards claims that the motion court did not make specific findings on the *514 issue of Wilson's recantation. Since this Court has determined that Edwards did not meet the standard to obtain a hearing on this issue, there would be no point in remanding to the motion court.
Right to testify at post-conviction hearing
Edwards' fifth point on appeal is that the motion court did not allow him to testify at the Rule 29.15 hearing. At the beginning of the Rule 29.15 hearing, the motion court denied Edwards' handwritten motion for a continuance based on his request for new attorneys, finding that Edwards had received "excellent representation."
When Mildred's testimony during the Rule 29.15 hearing conflicted with her trial testimony, Edwards interrupted to complain that she was lying. The motion court responded, "Mr. Edwards, you'll have the opportunity to make your statements."
At the close of the evidentiary hearing, Edwards' post-conviction counsel notified the court that they still had two depositions to take before submitting the case. The motion court entered an order permitting the depositions to be taken. The following exchange then took place:
[Mr. Edwards]: Your honor, do I get to say anything on the stand or off the stand? I'd like to testify here today or some time soon, if I can.
The Court: Not at this point. You'll have ample time to discuss whatever you want with your attorneys. Okay.
[Mr. Edwards]: I won't be allowed to testify at all?
The Court: That's not up to me to say. That's between you and your attorneys.
[Mr. Edwards]: I'd like to let the Court know I would like to testify.
The Court: I suggest you convey that thought to your attorneys.
[Mr. Edwards]: I did and they haven't responded in six months.
The Court: I'm sure they'll address that issue with you.
Nearly five months after this exchange, Edwards' counsel notified the motion court that their presentation of evidence had concluded. At that time, the record was closed.
Edwards relies on Rule 29.15(i), which states, "At any [Rule 29.15] hearing ordered by the court the movant need not be present. The court may order that testimony of movant shall be received by deposition...." Edwards asserts that this rule provides an absolute right to testify, giving the trial court discretion only as to whether to require that testimony by deposition.
The plain language of Rule 29.15(i) does not provide the movant the right to testify. Edwards contends that State v. Athanasiades, 857 S.W.2d 337 (Mo.App.1993), holds that the rule provides the absolute right to testify. In that case, the motion court granted a hearing on issues related to ineffective assistance of trial counsel, but limited the witnesses so that only trial counsel could be called. The movant had originally been listed as a potential witness. The court of appeals found that "[t]he motion court abused its discretion in limiting defendant's evidence to the testimony of the attorney that defendant claimed to be ineffective. Defendant should have been permitted to present his own testimony either in person or possibly by deposition." Id. at 341.
Athanasiades does not recognize the absolute right that Edwards advocates and is factually distinguishable. Here, the motion court did not restrict the witnesses that Edwards could call. The motion court also did not refuse to allow Edwards to testify. Rather, the motion court recognized that this was a matter for post-conviction *515 counsel to work out with Edwards.
A Rule 29.15 claim is a civil proceeding and is governed by the rules of civil procedure. Leisure v. State, 828 S.W.2d 872, 878 (Mo. banc 1992); Rule 29.15(a). Even when a hearing is granted, not all rights guaranteed to a criminal defendant at trial are extended to the Rule 29.15 hearing. There is no right to effective assistance of counsel at a Rule 29.15 hearing. Winfield v. State, 93 S.W.3d 732, 738 (Mo. banc 2002). There is no right to confrontation at a post-conviction hearing. Leisure, 828 S.W.2d at 878. Edwards does not cite any case law recognizing a constitutional "right" to testify at a post-conviction hearing.
Whether or not to call the defendant to testify at a post-conviction hearing is a matter of trial strategy. In a post-conviction proceeding, unlike a criminal trial, the defendant's choice on this issue does not override counsel's choice. Counsel here appears to have made a strategic decision not to call Edwards to testify. The motion court did not clearly err in closing the hearing upon receiving notification from Edwards' counsel that they were done presenting evidence.
Ineffective assistance for failing to adequately investigate Edwards' childhood
Edwards' sixth point is that the motion court erred in finding that his trial counsel was not ineffective for failing to investigate adequately and to present evidence of his "traumatic" childhood at trial.
Specifically, Edwards complains that: (1) although his mother, Mildred, was called to testify in the penalty phase, counsel was not aware of the extent of the domestic violence within the home, Mildred's depression, or the extent of odd behaviors displayed by Edwards as a child; (2) Edwards' cousin, Tangalayer Mansaw, was not interviewed or called to testify; and (3) trial counsel failed to call an expert who would have diagnosed Edwards with Asperger's Disorder.
The motion court found that trial counsel's penalty phase strategy was to portray Edwards as "an integral, fully functioning and connected member of a good family of decent people." The motion court found that presenting the evidence Edwards now advocates would have been contrary to this strategy because it would have portrayed Edwards and his family as unsympathetic. The motion court found that Mansaw would have added "nothing significant" to the penalty phase and that portraying Mildred as a severely depressed, abused woman who could not properly care for her children would have contradicted the penalty phase strategy.
The motion court found that "counsel did investigate [Edwards'] social history and found nothing to suggest the presence of a mental disease or defect, specifically Asparger's [sic] Disorder," and also that trial counsel was not ineffective for failing to call an expert who would testify that Edwards had this disorder, because "such evidence would have been contrary to the trial strategy" of portraying Edwards as a connected member of a loving family. The motion court found Dr. Draper's opinion to be unreliable because it was reached after meeting with other experts and post-conviction counsel. "[A]s such, the independence of her expert opinion has been so seriously compromised that it carries no weight."
As for Dr. Cross' contentions that he did not receive adequate records to make a pretrial diagnosis, the motion court noted that Dr. Cross never requested additional records, despite being instructed by trial counsel to contact them if he required anything else. The motion court concluded *516 that "Dr. Cross did not see the necessity for reviewing additional records, because he did not need them in order to diagnose whether or not [Edwards] had Asparger's [sic] Disorder. He did not diagnose Asparger's Disorder until he attended the group discussion ... By Dr. Cross' own admission, he did not originally diagnose Asparger's ... Yet now Dr. Cross blames trial counsel for his failure to diagnose Asparger's Disorder prior to trial even though he administered and graded a series of standardized psychological tests[.]" The motion court concluded that, "based on the fact that his opinion and conclusions were reached only after meeting with [Edwards'] post-conviction relief counsel, ... that the independence of [Dr. Cross'] expert opinion has been so compromised that it carries no weight."
To show that his counsel was ineffective, Edwards must demonstrate, first, that his counsel's representation "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Second, Edwards must show that this deficiency prejudiced him, meaning that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Counsel's performance is presumed to be reasonable. Id. at 689, 104 S. Ct. 2052. "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691, 104 S. Ct. 2052. In a death penalty case, counsel are expected to "discover all reasonably available mitigating evidence." Wiggins v. Smith, 539 U.S. 510, 524, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003).
The record supports the motion court's conclusion that a proper investigation was made into Edwards' childhood. Although a "composite" social history was not prepared, meaning that all of the information was not consolidated in one report, trial counsel conducted the interviews that make up the social history and prepared a chronological chart of Edwards' life. None of the three pretrial experts requested a more detailed social history. Counsel interviewed everyone that they were told about by Edwards or his family. Although trial counsel were aware of some domestic violence and other problems, they were not aware of the extent. None of the witnesses interviewed went into detail about the extent of Mildred's depression. Not only was this information not disclosed to trial counsel, it was not disclosed to the experts who were trained to elicit such information from witnesses. Dr. Cross testified that he did not believe that Mildred was capable of revealing this information during the pretrial period. Trial counsel is not ineffective for not discovering the extent of this evidence, when all reasonable interviews were conducted. This information was not "reasonably available" to trial counsel. Counsel made a reasonable investigation into Edwards' background, and nothing in that investigation indicated anything significantly abnormal about Edwards' childhood.
To the extent that information indicating a "traumatic" childhood was discovered, counsel made a strategic decision not to present it. "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable[.]" Strickland, 466 U.S. at 690, 104 S. Ct. 2052. Trial counsel testified that their strategy was to present Edwards as a contributing member of a loving family. The attorney responsible for the penalty phase was aware *517 that Edwards did not cry as a child, did not play with other children, showed some obsessive behaviors, and was beaten by his father. She was also aware that Mildred had been depressed and had been abused to some extent by Emmrie. She testified that she chose not to present this information. This strategic decision was reasonable under the circumstances. See State v. Johnson, 968 S.W.2d 123, 133 (Mo. banc 1998) (trial counsel was not ineffective for choosing to portray Johnson as "the product of a good Christian family" rather than "the victim of a cold, unloving family"); Williams v. State, 168 S.W.3d 433, 443 (Mo. banc 2005) (strategic decision to pursue residual doubt rather than abusive childhood was reasonable because the two defenses would be inconsistent).
The cases cited by Edwards are distinguishable. In Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000), counsel did not begin its penalty phase investigation until one week before trial. Counsel knew about, but failed to introduce, evidence of borderline intelligence. Id. at 396, 120 S. Ct. 1495. Counsel knew about, but did not obtain, available records that showed that Williams' parents were imprisoned for criminally neglecting him, that he had been repeatedly beaten by his father, that he had spent extensive time in foster care, and that his childhood home conditions were extremely unsanitary. Id. at 395, 120 S. Ct. 1495. Similarly, in Hutchison v. State, 150 S.W.3d 292, 304-06 (Mo. banc 2004), counsel did not spend any time preparing for the penalty phase, did not attempt to obtain known records, did not interview Hutchinson's psychiatrist despite knowledge of chronic psychiatric problems, and retained one expert who did not interview any other witnesses or review records and who spent only three hours with Hutchinson. In contrast, here, one attorney and one staff member were focused on preparing for the penalty phase throughout the pretrial period, three experts were consulted, and the records that Edwards complains about (Edwards' birth records and Mildred's psychiatric records) were reviewed by counsel and did not contain clearly mitigating evidence.
The United States Supreme Court in Eddings v. Oklahoma, 455 U.S. 104, 115, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982), held that the trial court could not refuse to consider Eddings' traumatic childhood as a mitigating circumstance. In contrast, the trial court here did not refuse to consider any mitigating evidence that was presented. In Wiggins, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471, trial counsel failed to conduct a background investigation because they wanted to pursue a residual doubt defense. In contrast, trial counsel here conducted an appropriate investigation and made a reasonable strategic decision based on the information they received from Edwards and his family.
Edwards relies most heavily on Rompilla v. Beard, 545 U.S. 374, 125 S. Ct. 2456, 162 L. Ed. 2d 360 (2005), where the defendant and his family members testified that there was no mitigating evidence to be found. The defendant refused to cooperate with trial counsel in pursuing a penalty-phase defense. A close reading of Rompilla reveals that the main basis for finding trial counsel ineffective was their failure to examine prior criminal history files despite knowing that the State intended to use criminal history as an aggravating factor. Id. at 2464. These files contained references to other information that would have alerted trial counsel to the abuse that the defendant had suffered and to prior assessments of mental retardation. Id. at 2469. Trial counsel here did not fail to investigate any records that they knew about. The fact that witnesses did not *518 disclose facts about Edwards' childhood is not the fault of trial counsel.
Counsel were not ineffective for failing to call Mansaw because no one mentioned that Mansaw was a possible witness who had lived with the family. Ineffective assistance for failure to call a witness requires the defendant to show: "(1) trial counsel knew or should have known of the existence of the witness; (2) the witness could be located through reasonable investigation; (3) the witness would testify; and (4) the witness's testimony would have produced a viable defense." Hutchison v. State, 150 S.W.3d 292, 304 (Mo. banc 2004). Trial counsel did not know about Mansaw, and counsel took all reasonable steps to discover the names of potential witnesses.
There also was no clear error in the motion court's failure to find counsel ineffective for not calling another expert. "The selection of witnesses and evidence are matters of trial strategy, virtually unchallengeable in an ineffective assistance claim." Williams v. State, 168 S.W.3d 433, 443 (Mo. banc 2005). Counsel is not ineffective for failing to shop for an expert that would testify in a particular way. State v. Mease, 842 S.W.2d 98, 114 (Mo. banc 1992). None of the three experts found any significant mental disease that would provide a defense to the crime, and none of them identified any specific developmental disorder that would provide significant mitigation. Trial counsel were not ineffective for failing to consult additional experts.
Ineffective Assistance for failing to investigate and present evidence of Edwards' mental problems
Edwards' seventh point is that trial counsel failed to conduct a reasonable investigation, which resulted in the trial experts not properly diagnosing Edwards' mental condition, specifically Asperger's Disorder. As discussed above, trial counsel conducted a sufficient investigation and prepared an adequate social history. The fact that none of the experts asked for more records or a more detailed social history indicates that they did not believe that such information was necessary to a diagnosis.
To show that his counsel was ineffective, Edwards must demonstrate, first, that his counsel's representation "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Second, Edwards must show that this deficiency prejudiced him, meaning that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Counsel's performance is presumed to be reasonable. Id. at 689, 104 S. Ct. 2052. "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691, 104 S. Ct. 2052. In a death penalty case, counsel are expected to "discover all reasonably available mitigating evidence." Wiggins v. Smith, 539 U.S. 510, 524, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003).
Besides incomplete social history, Edwards' main complaint is that his birth and medical records and Mildred's medical records were not given to the pretrial experts, thus preventing them from making the proper diagnosis. However, the only evidence was that the records were not provided to Dr. Cross, not that they were not provided to the other trial experts. Penalty phase counsel testified that she discussed information contained in those records with both Drs. Stacey and Rabun. *519 These experts apparently did not find this evidence significant. None of the experts requested additional information, despite being encouraged to do so if necessary.
All of the evidence before the pretrial experts including school records showing no referrals for psychological services and no significant academic problems, work records showing normal difficulties but also the ability to maintain long-term employment, and significant psychological and intelligence testing and interviews conducted by the experts did not point to Asperger's or any other significant mental condition that could provide a defense or mitigation. It was reasonable for trial counsel to abandon any possibility of a mental disease defense or mitigation evidence under these circumstances. See Winfield v. State, 93 S.W.3d 732, 740-41 (Mo. banc 2002) (counsel did an adequate investigation into Winfield's mental state when the experts opined that he did not have a mental disease or defect); State v. Mease, 842 S.W.2d 98, 114 (Mo. banc 1992) (trial counsel satisfied his obligation to investigate mental state when he obtained two expert opinions, of which he had no reason to impugn; the fact that a post-conviction expert gave a different diagnosis does not make trial counsel ineffective).
Edwards' competence to stand trial
Edwards' eighth point is that the motion court clearly erred in finding that trial counsel adequately investigated whether he was competent to stand trial. He alleges that counsel were ineffective because they did not seek a competency evaluation.
To show that his counsel were ineffective, Edwards must demonstrate, first, that his counsel's representation "fell below an objective standard of reasonableness." Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Second, Edwards must show that this deficiency prejudiced him, meaning that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Counsel's performance is presumed to be reasonable. Id. at 689, 104 S. Ct. 2052.
Under Missouri law, "[n]o person who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures." Section 552.020.1, RSMo 2000.
Edwards is presumed to be competent and bears the burden of proving that he is incompetent. State v. Anderson, 79 S.W.3d 420, 432-33 (Mo. banc 2002). A defendant is competent if he "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and . . . has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960) (internal quotation marks omitted); State v. Johns, 34 S.W.3d 93, 104 (Mo. banc 2000).
None of the three pretrial experts found Edwards incompetent to stand trial or any significant mental disease or defect. Even though counsel had difficulty communicating with Edwards, there was no reason to seek a competency evaluation after receiving the opinion of these experts. The failure to discover a psychiatrist who would find a defendant incompetent to stand trial is not ineffective assistance. State v. Smith, 944 S.W.2d 901, 923 (Mo. banc 1997).
Edwards claims that his attorneys did not provide a sufficient social history to *520 the pretrial experts. As discussed above, the social history investigation was adequate. Even if it were not, however, Edwards does not explain how this evidence would be relevant to a determination of whether, at the time of trial, he met the standard for competency.
The record reflects that many of the communication problems were caused by Edwards' desire to control the defense. When counsel did not do what he wanted, he would tell his family not to cooperate or would threaten to withhold the names of witnesses or exculpatory evidence that he claimed to have. When he was pleased with counsel, he would provide information that was useful in preparing the defense. This demonstrates that Edwards was capable of cooperating with his counsel when he chose to do so. While these behaviors may have been frustrating to counsel, and certainly were not always beneficial to Edwards' defense, they were not necessarily irrational or the result of mental incompetence.
Edwards claims that the motion court applied the wrong standard for competency because it only found that he understood the proceedings, but did not find that he was capable of communicating rationally with his attorneys. This assertion is belied by the motion court's judgment. The motion court judge, who was also the trial judge, noted that he had personally observed Edwards throughout the trial, and "at no time did this Court observe any difficulty in communication occurring between [Edwards] and his Trial Counsel." When the judge personally addressed Edwards, he did not appear confused, unresponsive, or disconnected. When Edwards testified, his answers were responsive to the questions asked.
Although Dr. Logan testified, after trial, that he thought that Edwards was incompetent at the time of trial, the motion court did not find this evidence persuasive. This determination was not clear error. Where there is a disagreement among experts, "it is the duty of the trial court to determine which evidence is more credible and persuasive." Johns, 34 S.W.3d at 105.
Edwards' competence at the Rule 29.15 hearing
Edwards' ninth point is that the motion court erred in failing to determine his competence to participate in the Rule 29.15 hearing. Edwards concedes that there is no Missouri case law recognizing the right to a competency determination in a post-conviction hearing. There is no need to decide that issue here because in this case there was no basis for the motion court to believe that Edwards might be incompetent.
"In order to necessitate a sua sponte order for a competency hearing, there must be some information, evidence, or observation that triggers the statutory requirement of `reasonable cause.'" State v. Tokar, 918 S.W.2d 753, 763 (Mo. banc 1996); section 552.020.2, RSMo 2000. Post-conviction counsel believed that Edwards was incompetent because they could not communicate effectively with him. However, counsel never requested a competency evaluation. Dr. Logan testified that Edwards was incompetent. As discussed above, there was sufficient evidence that he was competent, including the motion court's own observations. The motion court's determination that there was no basis for ordering a competency evaluation was not clear error.
Alternatively, Edwards argues that the motion court should have granted his motion for a continuance because he and his attorneys had "irreconcilable differences." An irreconcilable conflict exists *521 where there has been a "total breakdown in communication." State v. Hornbuckle, 769 S.W.2d 89, 96 (Mo. banc 1989).
As discussed above, the defendant does not have the right, at the post-conviction level, to dictate the specifics of the defense. The fact that his attorneys did not do everything he wanted, and did not allow him to testify, does not indicate a conflict of interest rising to the level of "irreconcilable differences." The record reflects that any difficulties were due to Edwards' voluntary conduct. A defendant may not establish an "irreconcilable conflict" through his own refusal to cooperate. State v. Owsley, 959 S.W.2d 789, 793 (Mo. banc 1997).
Impartiality of trial judge
Edwards' final point on appeal is that the motion court erred in denying his motion for a change of judge based on comments the motion judge made in an unrelated case.
A few days before Edwards' Rule 29.15 hearing, the motion court judge, in an unrelated criminal case, said, "the public defender's office seems to do everything they can to not represent people," and "if they [the public defender's office] want to declare war on me, they've got it." Edwards argues that, because he was represented by the public defender's office, these comments required the judge to disqualify himself. The comments were related to a case involving the local trial division of the public defender's office, whereas Edwards was represented by attorneys from the statewide appellate office. The assigned judge referred the motion to another circuit court judge, who heard arguments and then overruled the motion, finding that these comments did not affect the assigned judge's ability to give Edwards a fair hearing.
Although generally it is beneficial for the trial judge to conduct post-conviction hearings, fundamental fairness may require disqualification in some circumstances. State v. Smulls, 935 S.W.2d 9, 25 (Mo. banc 1996). Unless there is an abuse of discretion, appellate courts defer to the trial court's determination of whether disqualification is required. B.R.M. v. State, 111 S.W.3d 460, 462 (Mo.App.2003). Disqualification is required where "there is an objective basis upon which a reasonable person could base a doubt" about the court's impartiality. Smulls, 935 S.W.2d. at 26.
The circuit court did not abuse its discretion in failing to disqualify the motion court judge. The challenged comments were made in connection with an unrelated case and were directed towards a separate division of the public defender's office. These comments did not create an objective basis for a reasonable person to believe that the motion judge could not be impartial in Edwards' case.
The judgment overruling Edwards' Rule 29.15 motion is affirmed.
All concur.
NOTES
[1] According to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (2000) (DSM-IV), Asperger's Disorder, sometimes referred to as Asperger's syndrome, is characterized by impaired social interaction combined with intense preoccupation with certain interests or objects. Although it is related to autism, the social impairment involved with Asperger's Disorder is less severe. People with Asperger's are often of above-average intelligence and do not have any significant delay in the development of language skills. People with Asperger's often have difficulty forming reciprocal relationships. They have difficulty listening to other people and may not understand or use normal body language or gestures. Unlike people with autism, who isolate themselves, people with Asperger's are often interested in pursuing relationships with others, but do so in a one-sided or insensitive manner.
[2] Although Lockett was a plurality opinion, its holding has been adopted by a majority of the Supreme Court and applied in numerous subsequent cases. See, e.g., Eddings v. Oklahoma, 455 U.S. 104, 110, 102 S. Ct. 869, 71 L. Ed. 2d 1 (1982).
[3] State v. Schurz, 176 Ariz. 46, 859 P.2d 156, 165 (1993); Malloy v. State, 382 So. 2d 1190, 1193 (Fla.1979) (following earlier United States Supreme Court standard rather than Lockett); In re Burgess, 811 So. 2d 617, 628 (Ala.2000); State v. Ferguson, 642 A.2d 1267 (Del.Super.1992); Holmes v. State, 671 N.E.2d 841, 850-51 (Ind.1996). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382017/ | 175 F. Supp. 360 (1959)
Sidney GALT and wife, Duffy Galt
v.
UNITED STATES of America.
Civ. No. 8121.
United States District Court N. D. Texas, Dallas Division.
July 27, 1959.
*361 George E. Ray and Oliver W. Hammonds, Dallas, Tex., for plaintiff.
W. B. West, III and Melvin M. Diggs, Ft. Worth, Tex., Arthur C. Flinders of the Tax Division, Washington, D. C., for the Government.
DAVIDSON, Chief Judge.
This is a suit by the plaintiff Sidney Galt and wife to recover taxes paid by him and his wife in excess of that which he insists was lawfully due.
The plaintiff is a member of an association organized in 1954 called the Southwest Clinic Association composed of a number of doctors. They wrote out articles of association covering in substance all of those things that would have been covered in an active incorporation or charter issued to them under the laws of the State of Texas had the laws of the state permitted doctors to form corporations. However, the laws of Texas only admit corporations to be formed by those and for those purposes which are especially enumerated in the statute and a corporation of this type for the practice of medicine and the operation of a clinic is not authorized by the Texas statute. There is, however, no provision in the Texas law which forbids the organization of an association of men in similar terms to those embraced within the articles of incorporation. These doctors prepared for their clinic's assembly and association everything substantially the same as if they had been incorporated under the corporation laws of the state. They continued such operation for a number of years and the taxes allegedly due arise by reason of this association.
The plaintiff being a member of such association on the 31st of December, 1954, filed a joint income tax return for himself and wife. Also a tax return was filed for the association and the tax paid. The Revenue Department upon examination of the returns determined that for taxable purposes the association should be treated as a partnership and the money that was paid in the name of the association should be broken down and paid by the respective members of the association. The part thus assessed against the plaintiff, Dr. Galt, was paid under protest and he now brings suit to recover the same taking the position that the tax liability was discharged by payment in the name of the association.
Section 7701(a) (3) of the Internal Revenue Code of 1954, 26 U.S.C.A. § 7701 (a) (3) lists corporations and associations in the same tax category and the association claims the right to pay taxes on the same basis as if it were a corporation duly incorporated. Each party respectfully insists that there is or is not precedent for its respective position.
We have always been a great admirer of John Marshall's decisions. Take for instance the Dartmouth College case, Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 4 L. Ed. 629, in which Daniel Webster appeared as leading counsel. John Marshall wrote a famous decision often quoted. His associate, Judge Story, wrote also a lengthy opinion concurring in what Marshall had said. In Story's opinion many, many authorities were quoted. In Marshall's opinion no authority was quoted.
We feel that the rights of the parties may be stated and determined under the elementary principles of justice, since it does not appear to our satisfaction that any other decision has definitely disposed *362 of the question before us. The question in fact resolves itself into a simple proposition: That an association couched in similar language to the language of a charter of a corporation should be treated for tax purposes in the same manner that the corporation is treated.
Let us state the case in the reverse from the way the government views it. Let's assume that in the classification of the taxpayers that the Revenue authority is charged with making the classification of the association or corporation and suppose that under its classification that an association owed more tax than a corporation. The Treasury Department could readily be found to insist that the concern pay as an association rather than a corporation.
The fact that a business institution may have a corporate name or an adopted name as an association presents no ground for a difference in its tax liability where they do and perform similar acts with relation to each other and to the public.
The testimony in the case meets all the requirements of an incorporation under the laws of Texas if the laws of Texas permitted doctors to incorporate, but since the state law does not permit doctors to incorporate but associate themselves together to do the identical things that they otherwise would do if incorporated they are due the same tax in the same way as though they were incorporated.
We think the association was entitled to be treated for tax purposes as though it was a corporation and the act of a state can neither raise nor lower the federal taxes that may be due by the association by whatever name it may be called under the laws of the particular state.
We think the position of the plaintiff is sound and that he is entitled to have the clinic associated as it is pay taxes as though it was a corporate body under the laws of the state.
NOTE: Since pronouncement of this decision in court Honorable Richard L. Mackay has called the Court's attention to his article in the Southwestern Law Journal, Volume X, Number 3, Summer, 1956, in which the Kintner case, United States v. Kintner, 9 Cir., 216 F.2d 418, has been discussed and I find it to be very much in harmony with the Court's views. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382015/ | 587 P.2d 1051 (1978)
37 Or.App. 443
STATE of Oregon, Respondent,
v.
Walter Lee COOPER, Appellant.
No. C 78-03-03365; CA 11433.
Court of Appeals of Oregon.
Argued and Submitted October 25, 1978.
Decided December 11, 1978.
Susan Longbrook, Portland, argued the cause and filed the brief for appellant.
*1052 Melinda L. Bruce, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.
Before SCHWAB, C.J., and LEE, RICHARDSON and JOSEPH, JJ.
JOSEPH, Judge.
Defendant was charged with theft in the first degree. ORS 164.055. After trial to the court, he was found not responsible due to mental disease or defect. ORS 161.295, 161.319.[1] After entering that judgment, the court ordered defendant placed under the jurisdiction of the Psychiatric Security Review Board. ORS 161.336. Defendant appeals from the order placing him under the jurisdiction of the Board. He argues that the order was unsupported by evidence that he presented a substantial danger to himself or others, as required by ORS 161.336. In addition he argues that the statutory scheme for commitment following a finding of not responsible due to mental disease or defect (ORS 161.325 et seq.) violates the due process and equal protection guarantees of the Fourteenth Amendment.
The Psychiatric Security Review Board was created by Oregon Laws 1977, chapter 380. Under the procedure instituted by that chapter, the court has the duty after entering a judgment of not responsible due to mental disease or defect to determine whether the defendant should be discharged from custody or placed under the jurisdiction of the Board. ORS 161.325;[2]see also ORS 161.341(3).[3] ORS 161.336(1) provides in material part:
"[I]f the court finds by a preponderance of the evidence that the person is affected by mental disease or defect and that he presents a substantial danger to himself or others that requires that the person be committed to a state mental hospital designated by the Mental Health Division or conditionally released, the court shall order him placed under the jurisdiction of the Psychiatric Security Review Board for care and treatment. The period of jurisdiction of the board shall be equal to the maximum sentence the court finds the person could have received had he been found responsible. The board shall hold a hearing within 20 days to determine whether the person should be committed or conditionally released. Pending hearing before the board, the person may be committed to a state hospital designated by the Mental Health Division."
Under ORS 161.351 the Board also has the duty to discharge any person placed under its jurisdiction
*1053 "at such time as the board shall find by a preponderance of the evidence that the person is no longer affected by mental disease or defect or, if he continues to be so affected, that he no longer presents a substantial danger to himself or others which requires regular medical care, medication, supervision or treatment."
The state argues that we have no jurisdiction to review the order placing defendant under the jurisdiction of the Board. Our jurisdiction springs solely from statutes. Nowhere in chapter 161 is there provision for review of the type of order involved here. The only statutes which could possibly grant this court jurisdiction to review the order are ORS 138.040 and 19.010(4).
ORS 138.020 provides:
"Either the state or the defendant may as a matter of right appeal from a judgment in a criminal action in the cases prescribed in ORS 138.010 to 138.300, and not otherwise."
ORS 138.040 provides in material part:
"The defendant may appeal to the Court of Appeals from a judgment on a conviction in a district or circuit court * * *." (Emphasis supplied.)
The order was unappealable under that section because there was no "judgment on a conviction." See ORS 161.319, 161.325, supra, nn. 1 and 2.
ORS 19.010(4) might be applicable. That subsection provides:
"An appeal may be taken from the circuit court in any special statutory proceeding under the same conditions, in the same manner and with like effect as from a judgment, decree or order entered in an action or suit, unless such appeal is expressly prohibited by the law authorizing such special statutory proceeding."
We have held that ORS 19.010(4) authorizes an appeal by the state from an order expunging a criminal conviction. State v. Young, 24 Or. App. 5, 544 P.2d 179, rev. den. (1976). In State v. Baxley, 27 Or. App. 73, 555 P.2d 782 (1976), however, we held that it does not apply to probation revocation hearings. We stated:
"[P]robation revocation hearings are an essential element to the criminal code, and are a natural ongoing part of the criminal process which has led to the conviction and resulting judgment which has already been imposed. It is in no sense a part of the proceedings `prior to trial' in a criminal case. Rather, it does not come into being until after the trial itself has been completed. We conclude that State v. Young, supra, is not in point and that a probation revocation hearing is not a special statutory proceeding within the meaning of ORS 19.010(4)." 27 Or. App. at 78, 555 P.2d at 784.
Although we believe that this case is closely analagous to Baxley, there is another and more certain basis for concluding that ORS 19.010(4) is not applicable. The legislature included in the statutory scheme here an explicit provision for appeal after the Board has made its determination. ORS 161.385(9) provides in material part:
"(a) When a person over whom the board exercises its jurisdiction is adversely affected or aggrieved by a final order of the board, the person is entitled to judicial review of the final order. The person shall be entitled to counsel and, if indigent, counsel shall be provided.
"(b) The order and the proceedings underlying the order are subject to review by the Court of Appeals upon petition to that court filed within 60 days of the order for which review is sought. * *"
We need go no further at this juncture than to say that the statute makes sufficiently clear that the legislature intended that, once initiated, a Psychiatric Security Review Board proceeding should stay out of court until the Board has made its final order.
Appeal dismissed.
NOTES
[1] ORS 161.295:
"(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
"(2) As used in chapter 743, Oregon Laws 1971, the terms `mental disease or defect' do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct."
ORS 161.319:
"When the defendant is found not responsible due to mental disease or defect, as defined in ORS 161.295, the verdict and judgment shall so state."
[2] ORS 161.325:
"After entry of judgment of not responsible due to mental disease or defect, the court shall, on the basis of the evidence given at the trial or at a separate hearing, if requested by either party, make an order as provided in ORS 161.329, 161.336 or 161.341, whichever is appropriate. If the court makes an order as provided in ORS 161.336, it shall also determine on the record what offense the person would have been convicted of had the person been found responsible."
[3] ORS 161.341(3):
"The district attorney or circuit court or department of the county from which the person was committed may choose a psychiatrist or licensed psychologist to examine the person prior to a decision by the board on discharge or conditional release. The results of the examination shall be in writing and filed with the board, and shall include, but need not be limited to, an opinion as to the mental condition of the person, whether the person presents a substantial danger to himself or to others and whether the person could be adequately controlled with treatment as a condition of release." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382070/ | 310 F. Supp. 926 (1970)
The LAITRAM CORPORATION, Plaintiff,
v.
DEEPSOUTH PACKING CO., Inc., Defendant.
Civ. A. No. 67-861.
United States District Court, E. D. Louisiana, New Orleans Division.
March 10, 1970.
Lewis H. Eslinger, Guy W. Shoup, New York City, Louis B. Claverie, New Orleans, La., for plaintiff.
Harold J. Birch, Washington, D. C., C. Emmett Pugh, New Orleans, La., for defendant.
RUBIN, District Judge:
The defendant, Deepsouth Packing Co., Inc., has requested a modification of the injunction issued on June 30, 1969 to make it clear that it does not prohibit the manufacture and sale of a slitter and deveiner unit in unassembled form for export to a Brazilian customer. The defendant will supply all of the parts necessary for the complete operation of the slitter and deveiner; it will be necessary for the buyer only to assemble the unit after arrival, provide electrical current and water. Assembly will require some mechanical skill. The seller proposes to do the assembly itself in Brazil.
Mr. Justice Black, concurring in part and dissenting in part in Lear, Incorporated v. Adkins, 1969, 395 U.S. 653, 89 S. Ct. 1902, 1914, 23 L. Ed. 2d 610, noted, "[t]he national policy expressed in the patent laws, favor[s] free competition and narrowly limit[s] monopoly * * *."
"[I]n rewarding useful invention, the `rights and welfare of the community must be fairly dealt with and effectually guarded.' Kendall v. Winsor, 21 *927 How. 322, 329, 16 L. Ed. 165 (1859). To that end the prerequisites to obtaining a patent are strictly observed, and when the patent has issued the limitations on its exercise are equally strictly enforced. * * * Once the patent issues, it is strictly construed. United States v. Masonite Corp., 316 U.S. 265, 280, 62 S. Ct. 1070, 1078, 86 L. Ed. 1461 (1942), it cannot be used to secure any monopoly beyond that contained in the patent, Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 492, 62 S. Ct. 402, 405, 86 L. Ed. 363 (1942), the patentee's control over the product when it leaves his hands is sharply limited, see United States v. Univis Lens Co., 316 U.S. 241, 250-252, 62 S. Ct. 1088, 1093-1094, 86 L. Ed. 1408 (1942), and the patent monopoly may not be used in disregard of the antitrust laws, see International Business Machines Corp. v. United States, 298 U.S. 131, 56 S. Ct. 701, 80 L. Ed. 1085 (1936); United Shoe Machinery Corp. v. United States, 258 U.S. 451, 463-464, 42 S. Ct. 363, 367, 66 L. Ed. 708 (1922)." Sears, Roebuck & Co. v. Stiffel Company, 1964, 376 U.S. 225, 230, 84 S. Ct. 784, 788, 11 L. Ed. 2d 661.
Every court of appeal that has considered an actual situation in any way resembling the one here proposed has held that the sale of a product for export in unassembled form is not an infringement of the domestic patent. In Radio Corporation of America v. Andrea, 2 Cir. 1935, 79 F.2d 626, 627, the court considered the matter with respect to a combination patent. On a motion for a preliminary injunction, it was shown that the defendants manufactured all of the components of the patented radio receivers exclusive of vacuum tubes. The tubes were purchased by the defendants in the open market. To operate the receiver it was necessary only to insert the vacuum tubes into the sockets provided for them and to connect the receiver by means of a wire and plug provided for that purpose to a source of electrical power, such as the electric lighting system in a private home. The court held that the sale of receiver and vacuum tube separately solely for export was not an infringement and denied the injunction, saying:
"Nor is this conclusion so highly technical as it may at first blush appear. No wrong is done the patentee until the combination is formed. His monopoly does not cover the manufacture or sale of separate elements capable of being, but never actually, associated to form the invention. Only when such association is made is there a direct infringement of his monopoly, and not even then if it is done outside the territory for which the monopoly was granted. This is the basis for the doctrine of contributory infringement, which permits the elements of a patented combination to be sold in this country with the intent that the purchaser shall make and use the invention abroad. Bullock Electric & Mfg. Co. v. Westinghouse Electric & Mfg. Co., 129 F. 105 (C.C.A.); Computing Scale Co. v. Toledo Computing Scale Co., 279 F. 648, 678 (C.C.A. 7); In re Amtorg Trading Corporation, 75 F.2d 826, 831 (Cust. & Pat.App.). Not disputing this principle of law when only part of the elements of a patented combination are involved in the sale, the plaintiffs apparently contend that it is inapplicable when all the elements are sold together, though disassembled and intended to be put into operable relationship only abroad. No authority has been cited which puts any such limitation upon the doctrine of contributory infringement; and on principle none such is justifiable. By their sales for export the defendants were guilty of neither direct nor contributory infringement." 79 F.2d at 628-629.
After the case had been heard on the merits, this matter was again before the Court of Appeals for the Second Circuit, Radio Corporation of America v. Andrea, 2 Cir. 1937, 90 F.2d 612. Additional facts introduced at the final hearing indicated that, before exporting them, the defendants assembled and used the receivers with the vacuum tubes in their *928 sockets to determine the marketability of the receivers. Thus, the entire combination was completed and used in the United States. Thereafter, the tube was removed from its socket, and the receiver and the tube were packed in the receiver cabinet and sold. The tubes were placed in a separate carton and this, with the receiver, was placed in a larger carton. The purchaser needed only to connect the tube by inserting it in the socket. No adjustment was required; "no screw or nut need be tightened." The court found there was an infringement and said:
"Where the elements of an invention are thus sold in substantially unified and combined form, infringement may not be avoided by a separation or division of parts which leaves to the purchaser a simple task of integration. Otherwise a patentee would be denied adequate protection. Cf. Eibel Process Co. v. Minnesota [& Ontario] Paper Co., 261 U.S. 45, 63, 43 S. Ct. 322, 328, 67 L. Ed. 523." 90 F.2d at 613.
It distinguished the situation presented at the time of its prior opinion by the circumstance that it had now been shown that the receiver and tubes were assembled completely and tests of operation were made before exportation. "The sales for the completed receiving sets were made within the territorial limits of the United States and shipped in export. The single package contained all the elements of the combination." 90 F.2d at 614.
The decree was then modified although Judge Swan dissented on the basis of the original opinion. Plaintiffs argue that Judge Swan was correct in saying that the prior opinion was in effect overruled; a majority of that court did not think so.
Nor, later, did the Third Circuit. In Cold Metal Process Co. v. United Engineering and Foundry Co., 3 Cir. 1956, 235 F.2d 224, the court dealt with interpretation of a license. In doing so it was required to determine the scope of the patent. The court quoted with approval from, and relied on, the rule laid down in the first Andrea decision saying:
"Its force, in our view, is not impaired by the later opinion of the court after final hearing in the same case, 2 Cir., 1937, 90 F.2d 612, which held that the defendant had infringed the combination patent there sued on in view of evidence that the radio sets in question had been completely assembled in this country and tests of operation made after which they were disassembled and shipped to purchasers abroad. We do not quarrel with the conclusion of the court that such assembling and testing constituted a making and use of the patented combination in this country. In the present case, however, no such assembling or testing in this country took place. Accordingly the rule laid down in the first Andrea opinion applies here rather than that stated in the second." 235 F.2d at 230.
In Hewitt-Robins, Inc., v. Link-Belt Company, 7 Cir. 1966, 371 F.2d 225, the defendant sold a structure for erection in Turkey. It was suggested that, under Pennsylvania law, this constituted the sale of a single commercial unit, title passed in the United States, and it was immaterial that the sale was not preceded by either complete assembly or actual use of the patented combination in the United States. The court said that Pennsylvania law was not controlling, and held that the manufacture and sale of the apparatus did not constitute an infringement of the United States patent, saying,
"We read Andrea as standing for the proposition that a combination claim of a United States patent is not infringed absent presence of the combination in assembled form within the United States." 371 F.2d at 229.
The court also considered the Cold Metal decision and affirmed the district court opinion holding that there had been no infringement.
Only one decison has been cited that is said to hold to the contrary, the unreported opinion of Judge Learned Hand in *929 Westinghouse Electric and Manufacturing Co. & Radio Corporation of America v. Experimenters Information Service, Inc., S.D.N.Y.1924. This opinion is based on a motion for preliminary injunction. The facts are not clear, but it appears that there was a sale and delivery of a complete set of parts. The opinion does not indicate whether this was intended for export or domestic use, nor does it indicate whether assembly would take place in the United States or in a foreign country. On the other hand, the cases relied upon by Judge Hand as authority for finding infringement, Strobridge v. Lindsay, Sterritt & Co., 1881, 6 F. 510 and Spirella Co. v. Nubone Corset Co., 1910, 180 F. 470, 473, involved patented articles intended for assembly and use within the territorial United States. The decision antedates all the jurisprudence of the circuit courts referred to above. Under the circumstances, I do not think it can be relied on to support a contrary doctrine.
It may be urged that the first Andrea result is not logicalor that it is at best law logic, which John Quincy Adams told John Marshall was "an artificial system of reasoning, exclusively used in courts of justice, but good for nothing anywhere else." But it is founded on twin notions that underlie the patent laws. One is that a combination patent protects only the combination. The other is that monopolieseven those conferred by patentsare not viewed with favor. These are logic enough.
For these reasons, the court does not believe that the injunction, as entered, prohibits the sale proposed. There is, therefore, no reason to modify the terms of the injunction itself.
The proposed advertising would indicate to the public in the United States that shrimp deveining machines are available for sale in the United States. In fact, the defendant has no such items for sale except infringing ones, and the advertisement is, in my opinion, misleading. The court is of the opinion that such an advertisement constitutes a violation of the injunction and will modify the injunction, if required, to prohibit such advertisements hereafter.
Counsel for the mover will present such order as may be appropriate in the light of this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382078/ | 2 Kan. App. 2d 728 (1978)
587 P.2d 927
LEW ELLA D. HALL
v.
CITY OF HUGOTON, KANSAS, and WESTERN INSURANCE COMPANIES, Appellees, and WORKMEN'S COMPENSATION FUND, Appellant. and LEW ELLA D. HALL, Appellant,
v.
CITY OF HUGOTON, KANSAS, WESTERN INSURANCE COMPANIES, and KANSAS WORKMEN'S COMPENSATION FUND, Appellees.
Nos. 49,996, 50,227
Court of Appeals of Kansas.
Opinion filed December 8, 1978.
Jeff Johnson, of Brollier, Wolf & Johnson, of Hugoton, for Lew Ella D. Hall.
Harold K. Greenleaf, Jr., of Smith, Greenleaf & Brooks, of Liberal, for Kansas Workmen's Compensation Fund.
James H. Morain, of Vance, Hobble, Neubauer, Nordling, Sharp & McQueen, P.A., of Liberal, for City of Hugoton, Kansas, and Western Insurance Companies.
Before SPENCER, P.J., ABBOTT and MEYER, JJ.
MEYER, J.:
Claimant's husband suffered a fatal cardiovascular accident on August 25, 1976, while employed as police chief by the city of Hugoton, Kansas. The decedent had arrived at his home at about 3 o'clock in the afternoon after having worked an eight-hour shift. The temperature that afternoon was between 90 and 95 degrees. His home was air-conditioned and decedent was relaxing when he received a call from the police dispatcher that several vehicles were speeding at the city dump. Decedent left the house immediately and departed for the city dump in a vehicle which had been in the sun with the windows rolled up all day. Approximately eight minutes later the decedent was found *729 slumped over the steering wheel of his car. His death certificate showed the cause of death as coronary thrombosis resulting in myocardial infarction. There was sufficient medical testimony from which a finding could be made that decedent's fatal heart attack was proximately caused by the heat coupled with the excitement of the chase.
On October 26, 1977, the workmen's compensation examiner entered an award in favor of the claimant against the workmen's compensation fund, with compensation to be retroactive from the date of decedent's death. The workmen's compensation director affirmed the examiner on November 7, 1977, and the district court subsequently affirmed the examiner and director on March 10, 1978.
The workmen's compensation fund appealed the award in case No. 49,996, and the claimant appealed a separate action in case No. 50,227, in which she asked (and was denied) that penalties and attorney fees be assessed against the workmen's compensation fund for late payment.
Although the two cases have been consolidated for appeal, we will treat the issues presented in each appeal separately, beginning with the appeal by the workmen's compensation fund.
The first issue raised by the workmen's compensation fund is that there was no substantial external force, and therefore the heart amendment, K.S.A. 1977 Supp. 44-501, precludes claimant's recovery.
The district court found that there was a substantial external force which proximately caused decedent's death. There was substantial competent evidence upon which the district court made such finding.
On appeal, the standard is whether the record contains any substantial competent evidence which, on any theory, justifies the trial court's findings. Day and Zimmerman, Inc. v. George, 218 Kan. 189, 542 P.2d 313 (1975). Also, this court must review all evidence in the light most favorable to the prevailing party below, and if the findings are based upon substantial evidence, they are conclusive. Makalous v. Kansas State Highway Commission, 222 Kan. 477, Syl. ¶ 9, 565 P.2d 254 (1977). In addition, whether exertion in any particular case is "unusual" is a question of fact for the trial court. Nichols v. State Highway Commission, 211 Kan. 919, 508 P.2d 856 (1973).
*730 The workmen's compensation fund's second issue concerns the apportionment of liability among the city, the city's insurance carrier, and the workmen's compensation fund. They argue that because the city was not shown to have had notice of the decedent's heart condition, total liability should not be assessed to the workmen's compensation fund. The trial court, however, found that the city did in fact have notice of the worker's condition prior to the time of his death. Since there was substantial competent evidence presented to justify the trial court's findings, appellant's second argument fails for the same reason as the first, based upon the same cases cited above.
In claimant's appeal, the issue is as follows:
"Is the Worker's Compensation fund liable under the provisions of K.S.A. 1977 Supp. 44-512a for failing to pay compensation when due as prescribed in K.S.A. 1977 Supp. 44-512?"
We must also ascertain whether appellant's court action was prematurely filed in that she had not petitioned the workmen's compensation director for relief under K.S.A. 1977 Supp. 44-512a.
K.S.A. 1977 Supp. 44-512a provides that if compensation due is not paid, the claimant is "entitled to a civil penalty, to be set by the director and assessed against the employer or insurance carrier liable for such compensation ...." (Emphasis added.)
There are only two entities expressly mentioned as being liable, under the statute, for the penalty. The legislature, having created the workmen's compensation fund, is obviously aware of its existence, but has never amended K.S.A. 1977 Supp. 44-512a to expressly include the fund. We conclude that the legislature's omission of the fund from the provisions of 44-512a was intentional.
Additionally, we note the language of K.S.A. 1977 Supp. 44-512a states that "the workman shall be entitled to a civil penalty, to be set by the director ...." (Emphasis added.) The statute specifies the director as the entity which shall set the penalty. We therefore hold that a prerequisite for filing this matter in district court is to have first petitioned the workmen's compensation director to set a penalty.
Affirmed. | 01-03-2023 | 10-30-2013 |
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