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https://www.courtlistener.com/api/rest/v3/opinions/1382110/ | 587 P.2d 799 (1978)
Philip N. WRIGHT and Marvin Spector, Trustee for and on behalf of The Joan T. Wright Trust, Plaintiffs-Appellants,
v.
BAYLY CORP., a Delaware Corporation, Defendant-Appellee.
No. 77-830.
Colorado Court of Appeals, Div. II.
September 14, 1978.
Rehearing Denied October 12, 1978.
*800 Hoffman, McDermott & Hoffman, Gerald P. McDermott, Denver, for plaintiffs-appellants.
Ireland, Stapleton, Pryor & Holmes, P. C., Kenneth L. Starr, Ann Livedalen, Denver, for defendant-appellee.
KELLY, Judge.
The plaintiffs, who are owners of unregistered stock in the defendant corporation, appeal the trial court's entry of summary judgment for the defendant. The trial court ruled that the defendant had no duty to approve the transfer of the plaintiffs' stock prior to its sale, or, alternatively, that if there was such a duty, it was not breached in this case. We conclude that this case was erroneously disposed of on the motion for summary judgment, and reverse for a trial.
Philip and Joan Wright acquired their stock in the defendant corporation in 1969. The shares of stock were not registered with the Securities and Exchange Commission and bore the following restriction:
"The shares represented by this certificate have not been registered under the Securities Act of 1933. The shares have been acquired for investment and may not be offered, sold or otherwise transferred in the absence of an effective registration statement for the shares under the Securities Act of 1933 or a prior opinion of counsel, satisfactory to the issuer, that registration is not required under the Act." (emphasis supplied).
In 1972, the plaintiffs wanted to sell their Bayly Corp. stock. They were informed by the corporation's attorney that the stock could be sold pursuant to Securities and Exchange Commission Rule 144. That rule, 17 C.F.R. § 230.144, allows unregistered securities to be sold if: there is adequate public information concerning the issuer; the amount sold is not over 1% of the outstanding shares in the issuing company; the sale is made in an ordinary broker's transaction; the SEC is notified of the sale; and the seller has held the stock for longer than two years.
The plaintiffs sent to the corporation the opinion of an attorney that the sale would comply with Rule 144. They also obtained a broker's assurance letter, and completed the Rule 144 forms. However, the corporation *801 did not notify the plaintiffs that the sale of their stock would be approved, and the plaintiffs' stock was not sold, nor was it presented to the corporation's transfer agent.
The plaintiffs commenced this action seeking the difference between the price of the stock at the time they sought approval of the sale and price of stock at the time the action was commenced. The plaintiffs claimed that Bayly breached either a fiduciary duty or the duty to use reasonable care when it failed to give plaintiffs presale approval for the transfer of their unregistered shares.
The court erred in ruling that the defendant owed no duty to the plaintiffs. As a trustee for its stockholders, the corporation is bound to protect their interests, and occupies a fiduciary relationship with them. See Holly Sugar Corp. v. Wilson, 101 Colo. 511, 75 P.2d 149 (1937); Supply Ditch Co. v. Elliott, 10 Colo. 327, 15 P. 691 (1887). The directors of a corporation and its controlling stockholders also owe fiduciary duties to the remaining stockholders. See Security National Bank v. Peter, Writer & Christensen, Inc., Colo.App., 569 P.2d 875 (1977). One who stands in a fiduciary relationship to another is under a duty to act for the benefit of the other in matters within the scope of the relationship and may not profit at the expense of the other. Restatement (Second) of Trusts § 2, Comment b. The fiduciary duties owed by a corporation to its stockholders include the duty to deal with them in good faith.
In opposition to defendant's motion, plaintiffs submitted an affidavit from their stockbroker which stated that the usual, customary, and accepted practice in the industry with respect to the sale of restricted stock is that such stock will not be offered for sale by a broker unless the issuing company informs the broker that the sale will be approved by the company. The plaintiffs also presented the affidavit of Canton O'Donnell, the former president of defendant corporation, in which he swears:
"That certain shareholders, officers and directors with controlling interest of Bayly Corporation did not want the 6000 shares of Bayly Corp. stock owned by Philip N. Wright, Jr., and The Joan T. Wright Trust to be available for sale on the market prior to the public offering which was made on May 10, 1972." (emphasis supplied)
The defendant, on the other hand, asserts that it did not approve the prospective sale of the plaintiffs' stock because the plaintiffs did not comply with Rule 144.
Summary judgment is a drastic remedy which should be granted only if the moving party meets its burden of establishing that no genuine issue of material fact exists. Ginter v. Palmer & Co., Colo., 585 P.2d 583 (1978); Morlan v. Durland Trust Co., 127 Colo. 5, 252 P.2d 98 (1952). It is designed to save the time and expense of trial when, as a matter of law, the undisputed facts reveal that one party could not prevail. Abrahamsen v. Mountain States Telephone & Telegraph Corp., 177 Colo. 422, 494 P.2d 1287 (1972); Terrell v. Walter E. Heller & Co., 165 Colo. 463, 439 P.2d 989 (1968). This is not such a case.
Whether there was a breach of corporate fiduciary duties owed to the plaintiffs under the particular circumstances of this case was a question for the trier of fact and should not have been determined by the court as a matter of law. See Richardson v. Pioneer Construction Co., 164 Colo. 270, 434 P.2d 403 (1967); Whitley v. Anderson, 37 Colo. App. 486, 551 P.2d 1083 (1976). The question whether the defendant acted in good faith regarding the plaintiffs' request for approval of the sale of their stock was a material issue of fact precluding the entry of summary judgment.
The judgment is reversed and the cause is remanded for reinstatement of the complaint and for further proceedings.
ENOCH and STERNBERG, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382177/ | 587 P.2d 1005 (1978)
284 Or. 503
Robert L. WITT and Edna Mae Witt, Husband and Wife, Appellants,
v.
Gerald REAVIS and Donna Reavis, Husband and Wife, Respondents.
No. 76-5500; SC 25522.
Supreme Court of Oregon, Department 2.
Argued and Submitted October 12, 1978.
Decided December 5, 1978.
*1006 Ronald L. Gould, Coos Bay, argued the cause for appellants. With him on the briefs were Orrin R. Ormsbee, and McNutt, Gant & Ormsbee, Coos Bay.
Stanton F. Long, Eugene, argued the cause for respondents. With him on the brief were Joyce Holmes Benjamin, and Johnson, Harrang & Mercer, Eugene.
Before DENECKE, C.J., and TONGUE, BRYSON and LINDE, JJ.
BRYSON, Justice.
Plaintiffs Robert and Edna Witt brought this suit to establish an easement by prescription over an existing road on the property of defendants Gerald and Donna Reavis. Plaintiffs also sought to enjoin defendants from interfering with plaintiffs' use of the road and requiring defendants to keep the road in good repair. The trial court entered a decree in favor of defendants and made the following findings:
"1. An easement by prescription for the benefit of [plaintiffs' land] was created over [defendants' land] prior to 1966.
"2. That easement was extinguished by the unity of title which arose when the Sauers acquired both the tax lots in 1966.
"3. Severance of the estate did not occur until January 1, 1969, thus not permitting sufficient time for a new prescriptive easement to have been created.
"4. It is unnecessary for the Court to determine the scope, location and width of the easement that was extinguished by merger.
"* * *."
Plaintiffs appeal and we review de novo.
Plaintiffs contend "[t]he Trial Court Erred in Finding That The Easement by Prescription was Extinguished by Unity of Title and Did Not Revive Upon Severance." Plaintiffs (Witt) and defendants (Reavis) own adjoining real property near Florence, Oregon, as shown by the following sketch (not to scale). The road on which the easement is claimed is some eight to ten feet wide.
*1007
Mr. and Mrs. John Sauer were the common grantors to plaintiffs and defendants. The Sauers acquired the plaintiffs' property in 1956 and the defendants' property in 1959.[1] The Sauers lived on the plaintiffs' parcel from 1956 to 1960. They rented plaintiffs' parcel to others from 1960 until 1969. They also rented the defendants' parcel at all times from 1959 to 1969.
In January, 1969, the Sauers sold the defendants' parcel to defendants. In February, 1969, the Sauers sold the plaintiffs' parcel to Browne, plaintiffs' predecessor, who in turn sold to plaintiffs in 1975.
We agree with the trial court that plaintiffs' easement if any, was extinguished by merger. Therefore, we need not discuss the facts or the law as to whether an easement in favor of plaintiffs was established by adverse possession.
The principal issue in this case is whether plaintiffs' claimed easement by prescription was extinguished by unity of title in the Sauers.
The only reference to merger of easements following unity of title that we have found in Oregon is the following statement from Dressler et al. v. Isaacs et al., 217 Or. 586, 591, 343 P.2d 714 (1959):
"* * * The union of the dominant and servient estates in [one person] would, of course, destroy the easement. 3 Tiffany, Real Property (3rd ed.), § 822, p. 377. * * *"
Tiffany, at 377, states:
"An easement is ordinarily extinguished if one person acquires an estate in fee simple in possession in both the dominant and servient tenements. By reason of the perpetual right of possession of the tenement which was previously subject to the easement, such person and his heirs can make any use whatsoever thereof, and the inferior right of easement, its utility having thus disappeared, is swallowed up in the superior right of possession."
The rule in the Restatement, Property § 497 (1944), is not too clear but states:
"An easement appurtenant is extinguished by unity of ownership of estates in the dominant and servient tenements to the extent to which the uses which could have been made prior to the unity by virtue of ownership of the estate in the dominant tenement can be made after *1008 unity by virtue of ownership of the estate in the servient tenement."[2]
Where the fee owner of the dominant parcel acquires the fee subject to an estate for years in the servient parcel, the owner does not have a present possessory interest in the servient parcel. He has only a reversionary interest that will become possessory after termination of the estate for years. Therefore, the dominant owner's interest in the servient parcel does not give him the present right to use the easement. For the right to use the easement, he must rely on his rights as owner of the dominant parcel. Under these circumstances, the easement would not be extinguished by merger. See Crocker v. Cotting, 170 Mass. 68, 48 N.E. 1023, 1023-024 (1898).
However, as in this case, if at any time the owner in fee of the dominant parcel acquires the fee in the servient parcel not subject to any other outstanding estate, the easement is then extinguished by merger. Merger would occur at the time the property was acquired or at the termination of the outstanding estates, if any, whenever the owner acquired the unrestricted fee.
From the evidence in the record, the Sauers did acquire simultaneous fee interests in the two parcels in 1966, when the deeds were executed conveying the servient parcel to Sauers. Those deeds to the Sauers do not provide for any outstanding estates. In light of these unrestricted deeds, the plaintiffs had the burden of producing evidence to show that the Sauers acquired the servient parcel subject to an existing estate for years. There is no evidence that they did; therefore, we conclude that the easement was extinguished by merger in 1966.
The effect of merger is usually held to be a complete destruction of the easement,[3] but some states, notably Pennsylvania,[4] have held that sometimes the easement is only suspended. Tiffany states both rules as follows:
"The rule is said to be that an easement is not merely suspended by the union of title, reviving when the tenements again become the subject of separate ownership, but any subsequent easement must arise from a new grant and is a new easement. It has been held, however, that an easement which would ordinarily be extinguished by the merger of the dominant and servient estates is said to be preserved or revived in cases where such is required by the estate and where, in the interest of honest owners, it should be preserved to effect a valid and legitimate purpose. The exception obtains, it is said, only where there is a strong equity and circumstances giving ground for the clear inference that the parties intended to preserve or revive the easement." 3 Tiffany, Law of Real Property 381, § 822 (1939). (Footnotes omitted.)
Plaintiffs would have us follow the Pennsylvania rule. However, it appears that the minority Pennsylvania rule has simply grafted the rules of implied easements onto those for extinguishment by merger.
We see nothing to be gained by adopting the Pennsylvania rule and, instead, follow the Restatement rule that an easement once extinguished is gone forever. Indeed, this is the rule established in the opinion by Justice O'Connell in Dressler et al. v. Isaacs et al., supra. Where merger is established, this rule will enable the parties to focus on the separate issue of whether a new easement was thereafter created by implication and will, we hope, avoid confusion as to the precise issues involved in such cases.
Plaintiffs argue that they are entitled to an easement by implication; however, their theory in their pleadings and at *1009 trial was that an easement had been created through adverse possession. They cannot argue this new theory on appeal.[5]Leiser v. Sparkman, 281 Or. 119, 122, 573 P.2d 1247 (1978); Woods v. Hart, 254 Or. 434, 438, 458 P.2d 945 (1969).
Plaintiffs also argue that defendants should not have been allowed to use the merger theory at trial because they failed to affirmatively allege it in their answer. However, plaintiffs were informed before trial that defendants would rely on a merger theory. Plaintiffs did not claim surprise and did not move for a continuance. Further, plaintiffs failed to object to defendants' evidence introduced on the merger issue at trial. Therefore, even if defendants had failed to plead properly, the error was not preserved for appeal.
The merger theory destroyed rather than avoided plaintiffs' claim and so could be proved under a general denial. This result is supported (by analogy) by Marsh v. Walters, 242 Or. 210, 408 P.2d 929 (1965), and Denham et ux. v. Cuddeback, 210 Or. 485, 311 P.2d 1014 (1957). These cases stand for the proposition that a defendant in a trespass case may, under a general denial, introduce any evidence that refutes title in plaintiff. In Denham, although it appeared that plaintiff had once owned the land in question, the defendant proved that he had acquired the land by adverse possession. We held that such proof was proper under defendant's general denial. 210 Or. at 489, 311 P.2d 1014.
Assuming, in the case before us, that plaintiffs' predecessors once had an easement, they lost it through merger.
Plaintiffs finally argue that it would be inequitable to deny them the use of the easement. They quote the following from South Beach Lumber Corp. v. Swank, 210 Or. 383, 392-93, 311 P.2d 1018, 1023 (1957):
"`* * * Mergers are not favored in equity. When a lesser and a higher estate meet and coincide in the same person they will be kept separate when equity and justice require it, unless there is an expressed intention to the contrary. * * *'" (Citing Katz v. Obenchain, 48 Or. 352, 85 P. 617 (1909).)
This quotation, however, is taken out of context. That rule applies to the case where a mortgagee of land later acquires the fee; the mortgage interest normally merges in the higher fee interest but not where such a merger would harm the mortgagee. We are not aware of any case, and none has been cited to us, that holds that a merger like the one in the case at bar is "not favored in equity."
The trouble with this final argument, and any argument based solely on general feelings of fairness, is that it affords no principled basis for decision. The common law has established the principle of merger and the principle of implied easements. To set aside the result in this case would confuse the rule of law for such cases in the future.
Affirmed.
NOTES
[1] Pursuant to the testimony, there was a question about the validity of the deeds to the Sauers in 1956 and 1959 and, for this reason, the Sauers and their predecessors in title re-executed deeds to the property involved in favor of the Sauers in 1966. This accounts for the trial court's finding that "the Sauers acquired both the [parcels] in 1966."
[2] See also 2 American Law of Property §§ 8.87-8.92 (Casner ed. 1952); 3 Powell on Real Property ¶ 525 (1978); 2 Thompson on Real Property § 449 (1961).
[3] See, e.g., Restatement, Property § 497, Comment h (1944).
[4] Schwoyer v. Smith, 388 Pa. 637, 131 A.2d 385 (1957); Kieffer v. Imhoff, 26 Pa. 438 (1856).
[5] Plaintiffs made reference to this theory during closing argument but not as part of their case-in-chief. Defendants were not put on notice of such a theory and they had no opportunity to rebut it. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2205294/ | 688 N.W.2d 88 (2004)
PEOPLE
v.
SANDOVAL.
125706.
Supreme Court of Michigan.
October 25, 2004.
SC: 125706. COA: 244566.
On order of the Court, the motion for reconsideration of this Court's order of June 30, 2004 is considered, and it is DENIED, because it does not appear that the order was entered erroneously. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266819/ | 239 P.3d 200 (2010)
2010 OK CIV APP 70
GRAND ENERGY CORPORATION, Plaintiff/Appellant,
v.
NEW DOMINION, L.L.C., Defendant/Appellee.
No. 106,948. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.
Court of Civil Appeals of Oklahoma, Division No. 1.
June 10, 2010.
*201 Steven W. Crow, Daniel Delluomo, Oklahoma City, Oklahoma, for Plaintiff/Appellant.
Elizabeth C. Nichols, Edmond, Oklahoma, for Defendant/Appellee.
WM. C. HETHERINGTON, JR., Judge.
¶ 1 Plaintiff Grand Energy Corporation (Grand) appeals from a trial court order awarding summary judgment to Defendant New Dominion L.L.C. (NDL) in Grand's action alleging both breach of contract and tort claims, including trespass, conversion, intentional infliction of emotional distress,[1] and intentional interference with prospective contractual relationship. We dismiss this appeal as premature because the order the parties believed was a "judgment" did not resolve all of the claims by and between the parties, i.e., Grand's intentional interference with prospective contractual relationship theory of recovery, and the record contains no express determination or direction as required by 12 O.S.2001 § 994(A) to make such an order an appealable judgment.
¶ 2 Upon review of the record, we noted the absence of any order specifically resolving several of Grand's tort theories of recovery or an express § 994(A) determination in the order on appeal and directed Grand to show cause why this appeal should not be dismissed as premature. Grand has now responded, and NDL, despite having been allowed time to respond, did not timely respond.
¶ 3 When moving for summary judgment, NDL did not specifically address Grand's intentional interference with prospective contractual relationship theory of recovery in its motion for summary judgment and merely included as an undisputed fact that Grand had no written agreement with a third party, Roy Reynolds. Grand not only pointed out the specific elements of that theory in its response to NDL's motion but also that it is undisputed that Grand had an oral agreement with Reynolds to re-enter the Jarvis wellbore in Seminole County and it is that relationship with which Grand argued NDL interfered. NDL filed a reply brief, without addressing this particular theory of recovery.
¶ 4 As applicable here, 12 O.S.2001 § 994(A) provides, in pertinent part:
any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not *202 terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the final judgment, decree, or final order adjudicating all the claims and the rights and liabilities of all the parties is filed with the court clerk.
¶ 5 The trial court's order in question finds that: (1) "there is no dispute as to any material fact in this matter, and that [Appellee] is entitled to judgment as a matter of law," (2) "the actions that Appellee took in the Oklahoma Corporation Commission (OCC) . . . were not under consideration by this Court, as review of those matters is only proper before the OCC," (3) "there was no contract, written, oral or implied between [NDL] and [Grand], and that (4) NDL had no contractual relationship or contractual duty to Grand.[2] In its response to the show cause order, Grand essentially disagreed with the trial court's first finding and requested this Court remand the case back to the District Court due to the existence of substantial issues of material facts.
¶ 6 The trial court's order appealed here clearly did not adjudicate Grand's intentional interference with prospective oral contractual relationship theory of recovery which NDL, as the movant, had the duty to raise, argue and present evidentiary material in order to be successful on summary judgment. Further, as to Grand's trespass and conversion theories, while raised by NDL in its motion, there was no evidentiary support and it is unclear whether this general order sustaining NDL's motion resolved these theories. A disposition of but a portion of a single cause of action is not a judgment at all but an interlocutory summary adjudication, a limitation on the issues to be tried, subject to alteration or modification by the trial court before final judgment. Reams v. Tulsa Cable Television, Inc., 1979 OK 171, 604 P.2d 373. An interlocutory summary adjudication does not constitute an appealable order. Id. An order or judgment that disposes merely of a portion of a cause of action is appealable only if it falls within one of the statutory exceptions, i.e., it is an interlocutory order (1) appealable by right under 12 O.S.2001 § 952(b)(2) or 993 or other statutory provision, or (2) certified for immediate appeal under 12 O.S.2001 § 952(b)(3), or (3) it is prepared as a final judgment at the express direction of the court pursuant to § 994(A).[3]House v. Town of Dickson, 2007 OK 57, ¶ 9, 193 P.3d 964, 967-968.
¶ 7 Grand's request is denied. The "judgment" on appeal does not resolve all of its theories of recovery and further lacks an express determination or direction as required by 12 O.S.2001 § 994 to make such an order an appealable judgment. As a result, this appeal is DISMISSED AS PREMATURE.
BUETTNER, P.J., and HANSEN, J., concur.
NOTES
[1] In its response and objection to NDL's second motion for summary judgment, Grand "withdraw the tort of outrage claim" against NDL.
[2] This finding may have been intended to dispense with Grand's intentional interference with prospective contractual relationship, but it only addresses the lack of a contractual relationship or duty between Grand and NDL and does not deal with the Roy Reynolds contract interference.
[3] It should be further noted that the entry of an order making the required § 994(A) finding to make an order final is ineffective if the order resolves only one or more of several theories of relief arising out of the same transaction or occurrence and leaves other theories pending. See Shackelford v. American Airlines, Inc., 1996 OK CIV APP 27, 916 P.2d 282. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266824/ | 259 Md. 266 (1970)
269 A.2d 588
FITZWATER, INDIV. AND T/A FITZWATER FURNITURE
v.
TASKER
[No. 35, September Term, 1970.]
Court of Appeals of Maryland.
Decided October 16, 1970.
The cause was argued before HAMMOND, C.J., and BARNES, McWILLIAMS, SINGLEY and SMITH, JJ.
Stephen R. Pagenhardt, with whom was Norman I. Broadwater on the brief, for appellant.
*267 Louis A. Fatkin for appellee.
BARNES, J., delivered the opinion of the Court.
The sole question briefed and argued before us in this appeal was whether or not the Circuit Court for Washington County (Rutledge, J.) erred in refusing to direct the verdict in favor of the appellant, Edward Fitzwater, defendant below, on the second count of a declaration filed by the appellee, Roger Tasker, plaintiff below, against the defendant to recover damages for malicious prosecution. The first count of the declaration sought recovery for false imprisonment for which the jury awarded compensatory damages of $9,000, later reduced by a remittitur of $4,000 ordered by the lower court and accepted by the plaintiff. The net amount of $5,000 recovered under the first count is not challenged in this appeal. The judgment of $5,000 awarded by the jury under the second count for malicious prosecution is challenged on the sole ground that allegedly there was not sufficient proof of a termination of the criminal proceedings in favor of the plaintiff and hence the defendant's motion for a directed verdict, renewed at the end of all the testimony, should have been granted by the trial court. We have concluded that there was sufficient evidence of a termination of the criminal proceedings in favor of the plaintiff and there was no error on the part of the lower court in denying the defendant's motion for a directed verdict.
In considering the defendant's motion for a directed verdict, we must assume the truth of all facts tending to support the plaintiff's right to recover as well as all inferences which may be naturally and reasonably deduced from those facts, even though the facts may be contradicted. As we said in Tully v. Dasher, 250 Md. 424, 440-441, 244 A.2d 207, 217 (1968) a malicious prosecution case:
"It is well established that when a defendant moves for a directed verdict in his favor he must, for the consideration of the motion, concede the truth of all facts that tend to support the right *268 of the plaintiff to recover as well as all inferences which might naturally and reasonably be deduced from those facts, even though these facts may be contradicted. If there is any legally relevant and competent evidence from which a rational mind could infer a fact in issue, the trial court should not invade the province of the jury by directing a verdict for the defendant. Smack v. Whitt, 249 Md. 532, 536, 240 A.2d 612, 615 (1968); Plitt v. Greenberg, 242 Md. 359, 219 A.2d 237 (1966)."
See also Banks v. Montgomery Ward & Co., 212 Md. 31, 128 A.2d 600 (1957).
Viewing the facts disclosed from the record in the light most favorable to the plaintiff, with all reasonable inferences from those facts, it appears that the defendant Fitzwater on August 1, 1964, sold the plaintiff Tasker a second-hand 1959 Model Plymouth automobile for $795. The down payment for the sale of this automobile was a trade-in of the plaintiff's 1956 model Mercury at a value of $295. In the conditional sales contract executed by Tasker and his wife, Trudy, payments of the balance due of $595 (actually $95 more than the correct balance of $500) together with various additions for insurance, title, tax, and finance charges brought the total amount up to $774.54 which was to be paid in 18 monthly installments of $43.03 commencing on September 6, 1964, and on the same day of each month thereafter. The monthly payments were to be paid at the First National Bank of Oakland in Garrett County.
September 6, 1964, was a Sunday. The following day, September 7, was Labor Day. The bank was closed on both days.[1] The plaintiff Tasker was going to make the $43.03 payment the following Thursday which was his pay day. On Wednesday, however, while the plaintiff was driving the Plymouth, it developed a broken rotor and would not move. The car was left by the plaintiff on the *269 road. On Thursday, he purchased a new rotor and returned to the place he had left the automobile but found that it was gone. He later learned that the defendant Fitzwater had towed it away.
Later on Thursday, September 10, Tasker telephoned Fitzwater about the automobile and later consulted counsel in West Virginia where Tasker lived. The following day, Friday, September 11, Tasker saw Fitzwater at the bank where Fitzwater told Tasker to go get his car since he had made his payment, which Tasker did.
Tasker in fact made the monthly payment on September 11, 1964, and the next monthly payment on October 5, 1964, as the bank records indicate. An employee of the bank testified that, in accordance with the bank's policy, the defendant Fitzwater would have received a weekly statement showing any delinquent account.
On September 28, 1964, a warrant was issued under the oath of Fitzwater charging Tasker with larceny of the Plymouth automobile. Tasker was taken into custody in Cleveland, Ohio, where, for medical reasons, he had established a new residence in order to take new employment away from his former work in a West Virginia coal mine. The Cleveland police officers took Tasker into custody on October 23 and after spending several days in jail in Cleveland, he waived extradition proceedings and was turned over to the custody of the Sheriff's office for Garrett County, Maryland. He was returned to Garrett County and confined in the jail there for several more days. He was fingerprinted and photographed both in Cleveland and in Garrett County.
Finally, on October 27, 1964, Tasker was taken before Magistrate Maroney of Garrett County who, upon the oath of Fitzwater, had issued the original warrant for Tasker's arrest. The testimony in regard to the details of what happened before the Magistrate is not entirely clear but Tasker testified that Fitzwater was present and stated that he wanted to drop the charge. The State's Attorney for Garrett County was also present. He testified that he had authorized the Magistrate to enter the case marked *270 "Stet." Prior to leaving the Magistrate's Court, Tasker requested that he have some evidence that he had been cleared of the charge in order that he might get his job back or at least facilitate his obtaining other employment. Tasker testified that Fitzwater's attorney, who was also present, typed a letter, which was then signed by the Magistrate and given to Tasker. The letter is as follows:
"OFFICE OF THE TRIAL MAGISTRATE
GARRETT NATIONAL BANK BUILDING
OAKLAND, MARYLAND
ROBERT M. MARONEY, MAGISTRATE
EDITH M. BYERS, SECRETARY
TELEPHONE
DEERFIELD 4-3411
"October 27, 1964
"TO WHOM IT MAY CONCERN:
RE: State of Maryland
vs.
Roger Lee Tasker
No. 1837, in the Trial
Magistrate's Court for
Garrett County Maryland
This is to certify that the defendant in the above entitled case was charged with larceny of an automobile. When the case was called for a preliminary [sic] hearing before the undersigned on October 27, 1964, the Prosecuting Attorney for Garrett County had the case marked on the docket "STET", which in effect means that the State was unwilling and unable to prosecute.
/s/ Robert M. Maroney T.M.
Robert M. Maroney
Trial Magistrate for
Garrett County, Maryland"
Magistrate Maroney admitted that he had signed the *271 letter, which was introduced into evidence and read to the jury, but testified that he had not typed it.
Tasker further testified that when he was going down the steps after receiving the letter from the Magistrate, the State's Attorney said to him: "I'm sorry I wasn't able to prosecute you" and then laughed; but Tasker did not think it a laughing matter in view of all the "trouble, confusion and harassment" he had been through.
Thereafter, Tasker returned to Ohio and subsequently instituted the action involved in this appeal.
The trial court after a careful and comprehensive instruction, submitted the case to the jury on the issues. The jury found the defendant had caused the plaintiff to be arrested illegally and fixed the compensatory damages at $9,000 (later reduced by remittitur to $5,000) and that the defendant had acted with malice fixing the punitive damages at $5,000. It is the judgment for this last mentioned amount of $5,000 which is the subject matter of this appeal, as we have already indicated.
Judge (now Chief Judge) Hammond, for the Court, summarized the applicable law in regard to actions for malicious prosecution in Banks v. Montgomery Ward & Co., supra, as follows:
"To prevail in a suit for malicious prosecution the plaintiff must show: (1) that the criminal proceeding instituted or abetted by the defendant has terminated in his favor, apart from whether any inference as to probable cause for the proceeding arises from the termination; (2) a want of probable cause for the proceeding which may, or may not, be inferred from the termination of the proceeding, depending upon the manner of the termination; (3) malice, which is a primary purpose for the institution of the proceeding, other than that of bringing an offender to justice. Safeway Stores, Inc. v. Barrack, 210 Md. 168, 173, supra, and authorities cited."
(212 Md. at 38, 128 A.2d at 604.)
*272 As we have stated, the appellant Fitzwater's sole contention is that the criminal proceeding instituted by him did not terminate in Tasker's favor because the criminal proceeding did not end in an acquittal, nor was it withdrawn by Fitzwater, but was rather "suspended out of mercy requested and accepted by the appellee."
The appellant relies on the following statement from our opinion in Banks v. Montgomery Ward & Co., supra:
"It is generally held that if criminal proceedings end in favor of the accused other than by acquittal, because the charge is withdrawn or the prosecution abandoned pursuant to an agreement of compromise with the accused, or out of mercy requested or accepted by the accused, there is not such a termination as will sustain a case for malicious prosecution."
(212 Md. at 38-39, 128 A.2d at 604.)
This statement is in accord with the law generally on this subject see W. Prosser "Law of Torts," 3rd ed. (1964), § 113, pp. 856-858; 54 C.J.S. "Malicious Prosecution," § 58, pp. 1026, 27; Restatement of Torts, § 660.
In regard to "Indecisive Termination of Proceedings" (in actions to recover damages for Malicious Prosecution), § 660 of the Restatement of Torts states:
"A termination of criminal proceedings in favor of the accused other than by acquittal is not such a termination as is necessary to a cause of action under the rule stated in § 653 if
"(a) it results from the withdrawal of the charge or the abandonment of the proceedings
(i) pursuant to an agreement of compromise with the accused, or
(ii) because of the suppression of evidence or other act done by the accused or on his behalf for the purpose of preventing his conviction, or
*273 (iii) out of mercy requested or accepted by the accused, or if
"(b) new proceedings for the same offense have been properly instituted and have not been terminated in favor of the accused."
In Comment d. under § 660 it is stated:
"d. The abandonment of the proceedings because the accuser believes that the accused is innocent or that a conviction has, in the natural course of events, become impossible or improbable, is a sufficient termination in favor of the accused. In such case it is immaterial that the proceedings were abandoned at the request of the accused rather than upon the uncontrolled initiative of the private prosecutor."
In W. Prosser, supra, at 857, 58 it is stated:
"* * * it will be enough that the proceeding is terminated in such a manner that it cannot be revived, and the prosecutor, if he proceeds further, will be put to a new one. This is true, for example, of an acquittal in court, a discharge by a magistrate or a justice of the peace upon preliminary hearing, or by a governor in extradition proceedings, a failure of a grand jury to indict which results in discharge, the quashing of an indictment, the entry of a nolle prosequi, or a dismissal, abandonment of the prosecution by the prosecuting attorney or the complaining witness, or continuance beyond a time limit, where any of these things have the effect of ending the particular proceeding and requiring new process or other official action to commence a new prosecution."
See also the comprehensive and helpful annotation entitled: "Dismissal by Magistrate or Other Inferior Court *274 for Lack or Insufficiency of Evidence as a Final Termination of Prosecution as Regards Action for Malicious Prosecution," 135 A.L.R. 784 et seq., following the report of the case of Jaffe v. Stone, 18 Cal.2d 146, 114 P.2d 335, 135 A.L.R. 775.
In the present case the facts indicate to us that the proceeding before the committing Magistrate, although somewhat irregular, did terminate in favor of Tasker because of the inability or unwillingness of the State's Attorney to prosecute. Magistrate Maroney states this is the effect of the "Stet" in the letter of October 27, 1964, already set out in full. The entry of a "Stet" in its technical sense was inappropriate in the proceeding before the committing Magistrate but its meaning to him was clear as he stated and the Magistrate's action terminated the proceeding in Tasker's favor. The record does not support the contention of the appellant Fitzwater that the proceeding was suspended as an "act of mercy" requested and accepted by Tasker. Rather, the proceeding was terminated by the inability and unwillingness of the State's Attorney to proceed further and this is confirmed by the statement made by the State's Attorney after the proceeding was terminated.
Jaffe v. Stone, supra, involved a dismissal by a committing Magistrate for lack of evidence and, in our opinion, this in substance is the situation in the present case. The State's Attorney was "unwilling and unable to prosecute," as the committing Magistrate stated and this means that the prosecutor did not have sufficient evidence upon which to go forward with the prosecution.
In Banks v. Montgomery Ward & Co., supra, where there was a somewhat unusual proceeding before the trial magistrate we stated:
"All that went on in the People's Court was somewhat informal and the posting of the money seems to have been regarded as the putting up of collateral. Mrs. Banks insisted upon trial being had. Montgomery Ward was given the option *275 of swearing out a new warrant and proceeding with the trial, and it was its election that closed the case. We think that the trial did not end in favor of the accused by reason of compromise with, or at the behest of, the accused. For an excellent discussion, pertinent here, on the law of final termination of criminal proceedings in favor of the accused, see Jaffe v. Stone (Supreme Ct. of Calif.), 114 P.2d 335, 338." (212 Md. at 39, 128 A.2d at 604.)
In the instant case it is our opinion that the prosecution did not end in favor of Tasker by reason of a compromise with him or at his behest or because of the extension of mercy to him by either the prosecuting witness or the State's Attorney. We shall, therefore, affirm the judgment.
Judgment affirmed, the costs to be paid by the appellant.
NOTES
[1] The record is in error in stating that Sunday, September 6, 1964, was a Monday and Labor Day. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266831/ | 4 F.Supp. 660 (1933)
UNITED STATES et al.
v.
CALISTAN PACKERS, Inc.
No. 3627-S.
District Court, N. D. California, S. D.
October 2, 1933.
H. H. McPike, U. S. Atty., of San Francisco, Cal., and James Lawrence Fly, Sp. Asst. to Atty. Gen., for plaintiffs.
Louis S. Beedy, of San Francisco, Cal., for defendant.
ST. SURE, District Judge.
This proceeding concerns the peach industry in California. Ninety-nine and nine-tenths per cent. of the national production of canned peaches for interstate and foreign commerce is packed in this state. Suit is brought by the United States and the Secretary of Agriculture for injunctive and other relief against the operations of defendant, a peach canner, in violation of the marketing agreement and license for cling peaches canned in the state of California, which was approved and executed by the Secretary on August 17, 1933, under the Act of May 12, 1933, known as the Agricultural Adjustment Act (7 USCA §§ 601-619). The case coming on for a hearing upon plaintiffs' application for a temporary injunction and plaintiffs' motion for the appointment of a receiver was by consent and after argument submitted to the court for final adjudication on the merits as presented by plaintiffs' bill of complaint, defendant's answer, and the affidavits in support of plaintiffs' motions.
The violations set forth go to the very heart of the plan before the court and are in effect a challenge to the integrity and efficacy of that plan. They are: (1) Total production and sale far in excess of the production to which defendant was restricted under the plan; (2) failure to pay into the control fund the sums assessed against canners for the purpose of purchasing from farmers, at a fair price, all their surplus peaches, and thus preventing their glutting the market, breaking down the prices, and imperiling the industry and the trade and commerce thereof; (3) failure to permit the representatives of the Secretary to examine defendant's books, records, and papers.
Two questions of far-reaching importance are presented. The first goes directly to the constitutional validity of the Agricultural Adjustment Act and the agreement *661 and license before the court. Upon the constitutional question a number of points have been raised which need not be treated in great detail; for example, as to the improper delegation of legislative powers. It may readily be answered that where Congress has laid down fairly definite standards, the courts have consistently held that the procedure thereunder, even to the extent of providing rules and regulations, violations of which may be punished, may be placed in the hands of the administrative agencies of the government. This power of delegation is highly essential to the efficacy of such statutes.
The power to regulate interstate commerce is granted in broad terms to the national Congress and this power should not be restrictively construed. Rather it must be construed to give the Congress the power to regulate any and all commerce which may seriously affect the interstate trade. This court, with propriety, cannot make the narrow holding that the legislative body, under this and analogous statutes, is without power to regulate intrastate commerce as a proper means of achieving the desired regulation of the interstate commerce. In this and other respects this power to regulate must be construed to effectuate the broad purposes of the constitutional grant and of the national policy.
Upon the constitutional question greatest reliance is placed upon the contention that the statute, agreement, and license before the court violate the due process clause (Const. Amend. 14). A proper respect for the deliberate judgment of the co-ordinate legislative branch of the government requires that the court do not hastily pronounce important legislation invalid. The Congress has made a legislative finding that a national emergency exists. This court, upon that finding and upon its own judicial notice of the economic distress throughout the nation, here arrives at a similar conclusion.
In the cling peach industry and in other industries, due to great overproduction and ruinous competition, the members of that industry and the trade and commerce thereof have been near the point of ruination. In particular, due to the foregoing factors and to the great disparity between the prices of commodities purchased by the farmers and the prices they have received for their own products, the farmers have been reduced to a condition bordering upon economic servitude. In the past few years the price for their peaches has been precipitously reduced from around $20 per ton to as low as $6.50 per ton. Overproduction and glutted markets travel hand in hand with ruthless competition.
It is needless to point out that the welfare of the nation has been seriously handicapped by these conditions and the country's trade and commerce has been vitally affected. Under conditions such as these the court is bound to arrive at the conclusion that the peach industry is affected with a national public interest and that the Congress has the constitutional power to adopt appropriate legislation to cure these evils. The due process clause in such a situation cannot properly be construed to obstruct the national policy. Neither the Constitution nor the due process clause requires the perpetuation of conditions which impair the national vitality.
To adopt the view that the Constitution is static, and that it does not permit Congress from time to time to take such steps as may reasonably be deemed appropriate to the economic preservation of the country, is to insist that the Constitution was created containing the seeds of its own destruction. This court will not subscribe to such a view.
As was stated by Mr. Justice Brewer in an opinion of the United States Supreme Court: "Constitutional provisions do not change, but their operation extends to new matters, as the modes of business and the habits of life of the people vary with each succeeding generation. * * * Just so is it with the grant to the national government of power over interstate commerce. The Constitution has not changed. The power is the same. But it operates to-day upon modes of interstate commerce unknown to the fathers, and it will operate with equal force upon any new modes of such commerce which the future may develop." In re Debs, 158 U. S. 564, at page 591, 15 S. Ct. 900, 909, 39 L. Ed. 1092.
The court holds that the Agricultural Adjustment Act and marketing agreement and license for cling peaches canned in the state of California, and the proceedings of the Secretary of Agriculture thereunder, are constitutional and valid. Economy Dairy Company, Inc., v. Henry A. Wallace, Secretary of Agriculture, decided by the Supreme Court of the District of Columbia, August 29, 1933, and reported in 61 Wash. Law Rep. 633; Milton Beck v. Henry A. Wallace, Secretary of Agriculture, decided by the Supreme Court of the District of Columbia, August 29, 1933, and reported in 61 Wash. Law Rep. 633; Southport Petroleum v. Harold L. Ickes, Secretary of Interior, decided by the Supreme Court of the District of Columbia, August, 1933, and reported in 61 *662 Wash. Law Rep. 577; People v. Nebbia, 262 N. Y. 259, 186 N. E. 694 (July 11, 1933).
The only other important question is as to whether or not in order to prevent irreparable injury to the country, and in particular the breaking down of this and other phases of the emergency program, this court has jurisdiction, under its general equity powers, to grant the relief sought. While the statute makes no express provision for such equitable relief, it is the conclusion of the court that it has appropriate jurisdiction, under the circumstances of this case, to grant the relief demanded.
The parties may submit a decree in conformity with the views expressed herein. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266832/ | 239 P.3d 1258 (2010)
STATE of Arizona, Appellant,
v.
Jason Allen MIEG, Appellee.
No. 1 CA-CR 08-0964.
Court of Appeals of Arizona, Division 1, Department E.
October 7, 2010.
*1259 Richard M. Romley, Maricopa County Attorney By Linda Van Brakel, Deputy County Attorney, Phoenix, Attorneys for Appellant.
James J. Haas, Maricopa County Public Defender By Karen M.V. Noble, Deputy Public Defender, Phoenix, Attorneys for Appellee.
OPINION
HALL, Judge.
¶ 1 Following a mistrial declared when a state's witness mentioned the offense for which defendant was arrested but not charged, the state obtained a new indictment adding the uncharged offense. The trial court subsequently granted defendant's motion to dismiss all charges with prejudice based on prosecutorial vindictiveness. Because we conclude that the undisputed facts fail to establish a prima facie case of vindictive prosecution, we reverse the dismissal and remand for reinstatement of the indictment.
BACKGROUND
¶ 2 Police stopped the car being driven by defendant after they observed several traffic violations. After an officer saw a scale in the map pocket of defendant's vehicle that he recognized as a type commonly used to weigh drugs, he arrested defendant for possession of drug paraphernalia. When another officer searched defendant incident to the arrest, he discovered two baggies of methamphetamine in defendant's pockets. The state charged defendant by direct complaint with one count of possession or use of a dangerous drug, methamphetamine. After a preliminary hearing, a commissioner found that probable cause supported the charge.
¶ 3 Defendant moved to suppress the scale and drugs claiming that the arrest stemmed from the seizure of the scale in violation of the Fourth Amendment. After a hearing, the trial court denied defendant's suppression motion. After the jury was sworn in but before opening statements, defendant made an oral motion in limine before the judge pro tempore assigned to try the case to preclude admission of any reference to the scale or the paraphernalia arrest, citing Arizona Rule of Evidence 404(b), and arguing that any evidence regarding the scale would be "unduly prejudicial" and confusing because defendant was not charged with possession of drug paraphernalia. The court granted the motion over the prosecutor's objection because the scale was "not charged" and "the prejudicial effect of the scale outweighs any probative value." The court ordered the prosecutor to advise her witnesses simply to testify that police had placed defendant under arrest, and that the methamphetamine was discovered in a search incident to that arrest.
¶ 4 On direct examination later that day, the prosecutor asked one of the officers if the "Jason" who was arrested was the same person as defendant. In response, the officer testified "Yes" and then volunteered that defendant was then told that he was being placed under arrest for possession of drug paraphernalia. Defendant promptly objected and moved for a mistrial. The state opposed a mistrial, arguing that striking the offending testimony and issuing a curative instruction would suffice. The court found that the mention of the paraphernalia arrest was "inadvertent" and "unintentional," but nonetheless "reluctantly" declared a mistrial.
*1260 ¶ 5 After the mistrial, the state served defendant with an indictment charging him with one count of possession of a dangerous drug, and, in addition, one count of possession of drug paraphernalia. On the state's motion, the information was dismissed without prejudice.
¶ 6 Defendant then moved to dismiss the indictment on grounds of prosecutorial vindictiveness. Defendant argued that the prosecutor had filed the additional charge of possession of drug paraphernalia in retaliation for defendant's exercise of the following rights: (1) to take the charges to trial; (2) to seek to dismiss the charge because the superior court file did not contain an information;[1] and (3) to seek a mistrial. He further argued that the following circumstances gave rise to a presumption of vindictiveness: (1) the timing of the addition of the charge after defendant successfully obtained a mistrial; (2) the prosecutor's refusal to dismiss and re-file to cure the lack of an information; and (3) the "ambush-like service" of the indictment on defendant outside of defense counsel's presence. In response, the state argued that the circumstances did not give rise to a presumption of vindictiveness. The state further argued that even if the presumption of vindictiveness applied, it had adequately rebutted it by explaining that the prosecutor had re-evaluated the charges in light of the court's ruling precluding admission of any reference to the drug paraphernalia.
¶ 7 The trial court found "sufficient facts to support the presumption of vindictiveness" and that the state "failed to rebut the presumption." It granted defendant's motion to dismiss the charges in both cases with prejudice. The state timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) section 13-4032(1) (2010).
DISCUSSION
¶ 8 Arguing that defendant failed to make a prima facie showing sufficient to raise a presumption of prosecutorial vindictiveness, the state contends that the trial court erred by dismissing the charges with prejudice. We agree.
¶ 9 We review rulings on motions to dismiss for vindictive prosecution for an abuse of discretion. State v. Brun, 190 Ariz. 505, 506, 950 P.2d 164, 165 (App.1997). A court abuses its discretion when "the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice." State v. Chapple, 135 Ariz. 281, 297 n. 18, 660 P.2d 1208, 1224 n. 18 (1983) (citation omitted).[2]
¶ 10 A valid claim of prosecutorial vindictiveness limits a prosecutor's otherwise broad discretion over charging decisions. Blackledge v. Perry, 417 U.S. 21, 27-29, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). A criminal defendant's constitutional right to due process protects him from prosecutorial decisions that are "motivated by a desire to punish him for doing something that the law plainly allowed him to do." United States v. Goodwin, 457 U.S. 368, 384, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982). In other words, the Constitution's due process guarantees prevent prosecutors from punishing defendants for exercising their protected legal rights by subsequently subjecting them to more severe charges. Id. at 372, 102 S.Ct. 2485.
¶ 11 There are two ways in which a defendant can demonstrate prosecutorial vindictiveness. First, a defendant may show actual vindictiveness, i.e., he "may prove through objective evidence that a prosecutor acted in order to punish him for standing on his legal rights." United States v. Meyer, 810 F.2d 1242, 1245 (D.C.Cir.1987) (citing *1261 Goodwin, 457 U.S. at 380-81, 384 & n. 19, 102 S.Ct. 2485). Defendant does not claim that the prosecutor here acted with actual vindictiveness. Second, because "motives are complex and difficult to prove," Goodwin, 457 U.S. at 373, 102 S.Ct. 2485, a defendant may rely on a presumption of vindictiveness if the circumstances establish a "realistic likelihood of vindictiveness." Blackledge, 417 U.S. at 27, 94 S.Ct. 2098.
¶ 12 Because "a certain amount of punitive intent ... is inherent in any prosecution," a claim of vindictive prosecution presents "the delicate task of distinguishing between the acceptable `vindictive' desire to punish [a defendant] for any criminal acts, and `vindictiveness' which violates due process." United States v. Doran, 882 F.2d 1511, 1518 (10th Cir.1989). If a defendant makes a prima facie showing that the charging decision is "more likely than not attributable to vindictiveness" by the prosecutor, Alabama v. Smith, 490 U.S. 794, 801, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), the burden shifts to the prosecutor to overcome the presumption "by objective evidence justifying the prosecutor's action." Goodwin, 457 U.S. at 376 n. 8, 102 S.Ct. 2485; Blackledge, 417 U.S. at 29 n. 7, 94 S.Ct. 2098.
¶ 13 In Blackledge, the Supreme Court explained how increasing a defendant's charge from a misdemeanor to a felony after defendant secured a new trial on appeal gave rise to a realistic likelihood of vindictiveness:
A prosecutor clearly has a considerable stake in discouraging convicted misdemeanants from appealing and thus obtaining a trial de novo in the Superior Court, since such an appeal will clearly require increased expenditures of prosecutorial resources before the defendant's conviction becomes final, and may even result in a formerly convicted defendant's going free. And, if the prosecutor has the means readily at hand to discourage such appealsby "upping the ante" through a felony indictment whenever a convicted misdemeanant pursues his statutory appellant remedythe State can insure that only the most hardy defendants will brave the hazards of a de novo trial.
417 U.S. at 27-28, 94 S.Ct. 2098.
¶ 14 In Goodwin, on the other hand, the Supreme Court declined to apply a presumption of prosecutorial vindictiveness in a pretrial setting in which Goodwin was indicted on a felony charge after he requested a jury trial on a pending misdemeanor and petty offenses arising out of the same incident. The Supreme Court distinguished Blackledge because it involved a post-trial setting: "[A] change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision." 457 U.S. at 381, 102 S.Ct. 2485. This is so because the "institutional bias inherent in the judicial system against the retrial of issues that have already been decided," id. at 376, 102 S.Ct. 2485, gives the prosecutor and the court a stake in avoiding having "to do over what it thought it had already done correctly." Id. at 383, 102 S.Ct. 2485 (quoting Colten v. Kentucky, 407 U.S. 104, 117, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972) (internal quotation marks omitted)). Noting that "a mere opportunity for vindictiveness is insufficient to justify the imposition of a prophylactic rule[,]" the Court held that "[t]he possibility that a prosecutor would respond to a defendant's pretrial demand for a jury trial by bringing charges not in the public interest that could be explained only as a penalty imposed on the defendant is so unlikely that a presumption of vindictiveness is not warranted." Goodwin, 457 U.S. at 384, 102 S.Ct. 2485.
¶ 15 Blackledge and Goodwin demonstrate that the timing of the charging decision is frequently a significant factor in deciding whether a presumption of vindictiveness exists. But courts in Arizona, as well as most courts in other jurisdictions, nonetheless consider all relevant circumstances when evaluating whether to apply such a presumption in pretrial and post-trial settings. See State v. Noriega, 142 Ariz. 474, 484-86, 690 P.2d 775, 785-87 (1984) (discussing surrounding circumstances before concluding that post-trial enhancement allegation did not give rise to presumption of vindictiveness); State v. Tsosie, 171 Ariz. 683, 687, 832 P.2d 700, 704 *1262 (App.1992) (applying totality of circumstances to pretrial charging decision: "[T]he critical question ... is whether the defendant has shown `that all of the circumstances, when taken together, support a realistic likelihood of vindictiveness and therefore give rise to a presumption.'") (quoting United States v. Meyer, 810 F.2d 1242, 1246 (D.C.Cir.1987)). For example, in Tsosie, we concluded that the unusual circumstances of that case gave rise to a presumption of prosecutorial vindictiveness even though the case was in a pretrial setting. 171 Ariz. at 687-88, 832 P.2d at 704-05.
¶ 16 Cases in which the charge is altered following a mistrial require an analysis that does not fit neatly within the pretrial/post-trial dichotomy. When the state adds a charge following a mistrial, we believe that a totality-of-the-circumstances approach is particularly appropriate in evaluating whether to apply a presumption of vindictiveness. See Doran, 882 F.2d at 1521 ("[W]e conclude that a totality-of-the-circumstances approach is particularly appropriate in the post-mistrial setting"). Therefore, drawing on the Blackledge/Goodwin/Smith line of cases, a presumption of prosecutorial vindictiveness would arise under the circumstances of this case if the state's action in seeking an indictment adding the additional charge was more likely than not explainable only as a penalty imposed on defendant for obtaining a mistrial.
¶ 17 Our consideration of the totality of the circumstances here persuades us that the trial court erred when it found that defendant had shown a realistic likelihood that the added charge was motivated by prosecutorial vindictiveness. First, because the trial ended before a verdict was reached, the state was not required "to do over what it thought it had already done correctly."
¶ 18 Second, the court's ruling on the first day of trial granting defendant's oral motion in limine to preclude any testimony regarding the scale, which restricted the state's ability to present the full circumstances surrounding defendant's arrest, was undoubtedly a development that the prosecutor had not anticipated. The timing of the motion prevented the state from reassessing its original charging decision before proceeding to trial. This circumstance makes it substantially less likely that the decision to add the drug paraphernalia charge was motivated solely by a desire to deter and punish defendant for asserting his right to a mistrial. See Goodwin, 457 U.S. at 381, 102 S.Ct. 2485 ("It is unrealistic to assume that a prosecutor's probable response to [pretrial] motions is to seek to penalize and to deter."). Although the prosecutor could have avoided any possibility of the evidence regarding the scale being excluded as "not charged" had it been included in the original information, we think it would ill-serve the public good to penalize the state when a prosecutor chooses not to bring all conceivable charges at the outset. See id. at 382 n. 14, 102 S.Ct. 2485 ("[T]here are certain advantages in avoiding a rule that would compel prosecutors to attempt to place every conceivable charge against an individual on the public record from the outset.").
¶ 19 Third, and perhaps most importantly, the state is permitted to respond to an adverse evidentiary ruling by changing strategy in an effort to strengthen its case when doing so does not violate a defendant's procedural rights. Here, the state's decision to pursue an indictment adding the drug paraphernalia charge to ensure that the evidence explaining defendant's arrest would be admissible at his retrial was a reasonable and legitimate response to the court's pretrial ruling. See, e.g., United States v. Poole, 407 F.3d 767, 774 (6th Cir.2005) (concluding that no presumption of vindictiveness existed when government added drug-related charges following mistrial on weapon-possession offense after court had granted motion in limine excluding evidence that officers approached defendant after observing him make a drug sale); United States v. Raymer, 941 F.2d 1031, 1042 (10th Cir.1991) ("In the absence of procedural unfairness to the defendant, the government may increase charges or make them more precise based upon new information or further evaluation of the case."); Doran, 882 F.2d at 1522 (circumstances surrounding filing of superseding indictment containing additional charges permitted "a reasonable inference that given extra time to analyze the evidence, the Government *1263 legitimately decided the new theory of liability was appropriate").
¶ 20 The sole factor supporting a presumption of vindictiveness is that the drug paraphernalia charge was added after defendant asserted his right to a mistrial that was caused by the testimony of the state's witness in violation of a court order. As defendant points out, the mistrial here is therefore distinguishable from those that occur when a jury is unable to reach a verdict. See, e.g., United States v. Mays, 738 F.2d 1188, 1190 (11th Cir.1984) (mistrial caused by jury's inability to reach a verdict does not arise from a defendant's exercise of a protected right). The significance of this circumstance is somewhat lessened, however, because, as the trial court found, the prosecutor did not intentionally elicit the testimony that caused the mistrial. Further, although the prosecutor suggested that a curative instruction would suffice to ameliorate any prejudice to defendant, she readily acknowledged that the testimony violated the court's order.
¶ 21 Having considered the circumstances surrounding the state's action in seeking the additional drug paraphernalia charge, we are unable to say that the facts support a determination that the state's action is more likely than not explainable only as an effort to penalize defendant for asserting his legal right to request a mistrial. We conclude that the trial court erred by finding otherwise.
¶ 22 Because no presumption applies, defendant was required to show that the charges in the post-mistrial indictment were motivated by actual vindictiveness. Defendant did not claim that the prosecutor was actually vindictive; therefore, the trial court abused its discretion when it granted defendant's motion to dismiss.
CONCLUSION
¶ 23 We reverse the trial court's order dismissing all charges with prejudice and remand for reinstatement of the indictment.
CONCURRING: SHELDON H. WEISBERG, Presiding Judge and JOHN C. GEMMILL, Judge.
NOTES
[1] Defendant had filed a pretrial motion to dismiss the original charge for lack of jurisdiction based on the absence of an information in the court file. Noting that the arraignment minute entry reflected that an information had been filed and that defendant in any event had notice of the charge, the court denied the motion.
[2] There is some disagreement over the correct standard of review for prosecutorial vindictiveness cases among and within the federal circuit courts. See United States v. Barner, 441 F.3d 1310, 1315 n. 5 (11th Cir.2006) (surveying the various standards of review in use in the circuits). But we agree with the Eleventh Circuit that "[t]he disagreement is perhaps more apparent than real, for even under an abuse of discretion standard, errors of law receive no deference." Id. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266836/ | 4 F.Supp. 349 (1933)
MONMOUTH PLUMBING SUPPLY CO., Inc.,
v.
UNITED STATES.
No. 1587.
District Court, S. D. Florida.
February 3, 1933.
Douglas D. Felix, of Miami, Fla., for plaintiff.
W. P. Hughes, U. S. Dist. Atty., of Jacksonville, Fla., and Raymond F. Brown, Sp. Asst. to U. S. Atty., of Miami, Fla.
RITTER, District Judge.
This cause comes on for final hearing upon the evidence submitted to the court and the argument of counsel, and the court, being advised in the premises, finds:
That this is an action brought by the plaintiff to obtain the return from the defendant of $1,350, with allowable interest by reason of their being a deductible loss of $10,000 from the net income reported to the Revenue Department for the year ending January 31, 1927, of $58,052.94. This deduction is claimed because 100 shares of the preferred capital stock of the Miami Giro Corporation, owned by the plaintiff, was worthless during the taxable year previous to January 31, 1927. The claim is asserted under section 234 (a) (4) of the Revenue Act of 1926, 26 US CA § 986 (a) (4), wherein it is provided that: "In computing the net income of a corporation subject to the tax imposed by section 230 there shall be allowed as deductions * * * losses sustained during the taxable year and not compensated for by insurance or otherwise."
Regulation 69 promulgated by the Commissioner of Internal Revenue in article 141 46 of said regulations provides that a person possessing stock of a corporation cannot deduct from gross income any amount claimed as a loss merely on account of shrinkage in value through fluctuation of the market or otherwise, and that, if the stock of a corporation becomes worthless, it may be deducted by the owner in the taxable year in which the stock becomes worthless, provided a satisfactory showing of its worthlessness be made, as in the case of bad debts. The defendant claims that the stock is not shown to have been worthless during the taxable year as claimed.
The evidence discloses that the Miami Giro Corporation had been organized for the purpose of obtaining a fund by the sale of stock to loan to banks in Miami which were in an embarrassed situation financially, in the hope that said banks might not have to close their doors, and that such securities which might be taken by the said company from said banks, which were questionable and what might be called "frozen" assets, might be worked out eventually for some profit or the return of the money loaned. The details of the operation of the said corporation were disclosed in the evidence by witnesses Romfh and Fuzzard, each an experienced banker, and each an officer of the Miami Giro Corporation, who were active in the management of its affairs, Romfh being the president and Fuzzard the vice president and treasurer, and each a director of said corporation. The assets of the corporation were specifically testified to by these witnesses as to value thereof. They each testified that the stock of the Miami Giro Corporation in the year ending January 31, 1927, was worthless, in that it had no value that could be estimated; that the company had not been dissolved, but there was no hope of realizing any money from its assets; that these assets had been taken over from banks which had been compelled to close by reason of financial distress, and which were worthless, in fact. The details concerning each asset is in the evidence, and it is not necessary to detail the same here.
The evidence offered by the government was through an auditor who had made up a statement from the books of the Miami Giro Corporation, and gives the stock only book value, and testified that no appraisement of the assets had been made to ascertain actual value. Book value is notoriously not a safe guide for actual value. The witnesses for the plaintiff testified to actual value, and they *350 were expert and experienced men to so testify, and were thoroughly familiar by actually handling the Miami Giro Corporation assets to give the actual value.
The testimony further discloses that the securities held by the banks which the Miami Giro Corporation was organized to support were based largely, if not entirely, upon loans on real estate in Miami and vicinity; that there was a hurricane in Miami in September, 1926, which was of such severity that the properties upon which the securities were based were in many instances practically wrecked beyond repair, and in other instances so badly injured that no money was securable to put them in their former condition, and that values everywhere in the Miami district shrank tremendously. The assets, therefore, which were back of the stock of the Miami Giro Corporation were so depreciated that the officers of the Miami Giro Corporation considered the securities held as worthless, and many of the properties had been lost through tax sales, and the stocks among the assets were rendered worthless by the said hurricane and general financial distress which developed.
It is evident to me that the testimony warrants the conclusions that the said stock was, during the taxable year ending January 31, 1927, to all intents and purposes, and within the meaning of the law, worthless. The plaintiff, by the deduction of the $10,000 paid for said worthless stock, should have paid an income tax for the fiscal year ending January 31, 1927, on a net income of $48,052.94. The tax paid was $6,436.09. The plaintiff filed its claim for refund for the sum of $1,350 out of the tax so paid on February 16, 1928, and its claim was disallowed in entirety by the Commissioner of Internal Revenue on November 12, 1928.
Defendant has submitted authorities to show that the stock must have been valueless as a closed transaction during the said taxable year; that, if there is any value ascertainable, or if the corporation continues in business with a hope of securing some value, the deduction cannot be allowed. The cases of Royal Packing Company v. Lucas, Commissioner of Internal Revenue (C. C. A.) 38 F.(2d) 180, and W. P. Davis, Petitioner, v. Commissioner of Internal Revenue, 6 B. T. A. 1267, are not controlling here, for the reason as stated in the latter case: "Until it is clearly shown that stock owned in a corporation which is still in existence and has assets is in fact worthless and there is no probability that any portion of the investment will ever be recovered, no deductible loss under the statute has been sustained."
It is true that the term "loss sustained" conveys the idea of a final termination of a transaction in connection with which the investment was made and the loss claimed, but, as said in Appeal of Oscar K. Eysenbach, 10 B. T. A. 716, the loss of value cannot be sustained where there was some hope of making a sale or reorganizing. Counsel have cited cases holding that to justify the deduction it must be shown that the loss is evidenced by a closed transaction. I find, however, that the harshness of strict construction contended for by the defendant is not the rule adopted by the federal courts. In the case of Lucas v. American Code Company, 280 U. S. 445, 50 S. Ct. 202, 203, 74 L. Ed. 538, the court says, in reference to the provisions of the law which we are considering: "Generally speaking, the income tax law is concerned only with realized losses, as with realized gains. [Authority cited.] Exception is made, however, in the case of losses which are so reasonably certain in fact and ascertainable in amount as to justify their deduction, in certain circumstances, before they are absolutely realized. * * * The general requirement that losses be deducted in the year in which they are sustained calls for a practical, not a legal, test." Brumback v. Denman (D. C.) 48 F.(2d) 255; Davidson Grocery Co. v. Lucas, 59 App. D. C. 176, 37 F. (2d) 806; Royal Packing Co. v. Commissioner of Internal Revenue (C. C. A.) 22 F.(2d) 536.
The rule thus announced is well supported by the evidence that the stock in question was worthless since the hurricane of 1926.
I think the case of United States v. S. S. White Dental Manufacturing Company, 274 U. S. 398, 47 S. Ct. 598, 600, 71 L. Ed. 1120, is determinative of the law in this case. The court therein says, referring to the statute and the rules under consideration: "But with equal certainty they do contemplate the deduction from gross income of losses, which are fixed by identifiable events, such as the sale of property (article 141, 144), or caused by its destruction or physical injury (article 141, 142, 143), or, in the case of debts, by the occurrence of such events as prevent their collection (article 151). * * * The quoted regulations, consistently with the statute, contemplate that a loss may become complete enough for deduction without the taxpayer's establishing that there is no possibility of an *351 eventual recoupment. * * * The taxing act does not require the taxpayer to be an incorrigible optimist."
It would certainly require "incorrigible optimism" to find that the stock of the Miami Giro Corporation had any value or the possibility of value on January 31, 1927.
In Appeal of Remington Typewriter Co., 4 B. T. A. 880, the United States Board of Tax Appeals says: "The fact that the shell of a worthless corporation continues in business is no bar to the deduction of an investment in that corporation's stock when all facts clearly indicate the stock to be worthless."
It is my conclusion, therefore, that the plaintiff is entitled to a judgment for $1,350, together with interest thereon at the rate of 4 per cent. per annum from January 19, 1928, and an order may be so drawn, and all motions of the defendant are overruled. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266838/ | 10 Md. App. 247 (1970)
269 A.2d 172
JAMES E.M. CARTER
v.
DIRECTOR, PATUXENT INSTITUTION.
App. No. 22, September Term, 1970.
Court of Special Appeals of Maryland.
Decided September 30, 1970.
*248 Before MURPHY, C.J., and ORTH and THOMPSON, JJ.
John D. Hackett for applicant.
Francis B. Burch, Attorney General, and Charles E. Moylan, Jr., State's Attorney for Baltimore City, on the brief, for respondent.
PER CURIAM:
James E.M. Carter, the applicant, applies for leave to appeal from an order of February 6, 1970, by Judge James K. Cullen, sitting with a jury, in the Criminal Court of Baltimore determining applicant to be a defective delinquent as defined in Md. Code, Art. 31B § 5. Applicant was originally convicted in the Criminal Court of Baltimore on May 4, 1961, of two indictments for armed robbery, before Judge Cullen sitting without a jury, and two consecutive five year sentences were imposed. On June 11, 1963, applicant was transferred from the Department of Correction to the custody of the Director of Patuxent Institution for examination to determine whether or not he was a defective delinquent. Between 1963 and December 10, 1969, the trial of applicant was postponed three times at the request of the defense. Also during that time period, applicant was frequently and extensively in Clifton T. Perkins State Hospital. On December 10, 1969, applicant pleaded he was not a defective delinquent and a jury trial was held before Judge Cullen; interval notes from the staff at Patuxent Institution concluding applicant was still a defective delinquent were filed. A mistrial was ordered by Judge Cullen when the jury could not reach a verdict. On February 5, 1970, applicant again pleaded he was not a defective delinquent and prayed a jury trial before Judge Cullen. Interval notes from Patuxent Institution were again filed, again concluding that applicant *249 was still a defective delinquent. On February 6, 1970, the jury found that applicant was a defective delinquent and an order was filed by Judge Cullen committing the applicant to the Patuxent Institution as a defective delinquent. Application for leave to appeal was properly filed and counsel appointed to represent the applicant.
Applicant raises a total of five contentions, contending: (1) the hearing determining him to be a defective delinquent was unconstitutional; (2) his counsel was incompetent; (3) he, a pauper, should have received a transcript of his proceedings; (4) the same judge that presided at his armed robbery trial should not preside at his defective delinquency hearing; and (5) he should not be retained in custody after the expiration of his armed robbery sentences.
In the first contention, applicant emphasizes that it was over eight years from the time that he was first sent to Patuxent Institution until he was determined to be a defective delinquent. The constitutional right to a speedy trial does not apply to defective delinquency proceedings since they are civil in nature, McCloskey v. Director, 230 Md. 635, 187 A.2d 833, but even if the speedy trial rule did apply to these proceedings the several confinements in a mental hospital and the defense requested postponements would indicate sufficient reason for the delay, and the absence of a demand for a speedy trial would indicate a waiver. See Hall v. State, 3 Md. App. 680, 240 A.2d 630. Since applicant was sent to the Patuxent Institution during his original sentence, it does not matter that sentence expired before he had been determined to be a defective delinquent. See Md. Code, Art. 31B § 6 (e), Bougknight v. Director, 239 Md. 140, 210 A.2d 374; Daugherty v. Director, 235 Md. 662, 202 A.2d 593; and Eggleston v. State, 209 Md. 504, 121 A.2d 698.
As to the second contention, nothing is alleged to show that he did not have the genuine and effective assistance of counsel and, therefore, the contention is rejected as a bald allegation. Keeling v. Director, 5 Md. App. 123, 245 A.2d 604.
*250 Applicant next contends he should have had a copy of the transcript of his defective delinquency trial so he could examine it for possible errors. If there were any allegations requiring an examination of the transcript to determine the existence of an error, we would exercise our discretion and order that the transcript be provided, but a general allegation, without more, is insufficient to require a transcript. Walls v. Warden, 242 Md. 401, 219 A.2d 6 and Wade v. Warden, 240 Md. 346, 214 A.2d 161. The right to appeal a defective delinquency determination, for an indigent or a non-indigent, is discretionary with this Court. Md. Code, Art. 31B § 11, Director v. Daniels, 243 Md. 16, 46, 221 A.2d 397.
Applicant next complains that the same judge presided at his trial on the armed robbery charges as presided at his defective delinquency trial. From the docket entries, this contention appears to be factually accurate; however, the mere fact that the same judge presided at both trials, standing alone as it does here, is not a sufficient reason for the judge to disqualify himself nor for this Court to find error in his conduct. See Napier v. Director, 232 Md. 654, 194 A.2d 277.
Applicant's last contention is also without merit. The expiration of a criminal sentence has no bearing on the continued incarceration of one who has been adjudicated a defective delinquent. Even if his sentence had been completed, he can be retained in custody. Fields v. Director, 5 Md. App. 74, 245 A.2d 598, and Md. Code, Art. 31B § 9 (b).
Application denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266840/ | 440 Pa. 368 (1970)
Commonwealth
v.
Collins, Appellant.
Supreme Court of Pennsylvania.
Argued January 9, 1970.
October 9, 1970.
*369 Before BELL, C.J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
*370 Louis Lipschitz, with him James J. Boyle, for appellant.
Michael M. Baylson, Assistant District Attorney, with him James T. Owens, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
OPINION BY MR. JUSTICE ROBERTS, October 9, 1970:
In 1966 Charles Collins was brought to trial for the murder of his wife, Violet. The jury found him guilty of murder in the first degree and the penalty was fixed at life imprisonment. This is a direct appeal from that judgment of sentence.
The evidence adduced at the trial indicated that on June 4, 1965, Collins and his family went on a shopping trip and came home late in the afternoon. While Collins' wife and children went down the street to visit a neighbor, Collins went inside his own house for a short time and then asked a neighbor to walk down the street and call his wife home. When Mrs. Collins arrived at the house Collins beat her to death with a hammer, an event witnessed by a young girl who lived nearby. Upon discovering that he had been observed, Collins enjoined the girl never to tell anyone what she had *371 seen and then left. As Collins drove away from his home two people heard him say "I just killed Violet." A short time later the Collins children discovered their mother's lifeless body.
Collins now argues that his conviction must be reversed for six reasons, none of which persuade us that he should prevail and which we will discuss severally.
Collins' first argument is that the trial court abused its discretion in permitting the Commonwealth to show the jury a colored slide depicting the decedent's head injuries, because the slide's evidentiary value was far outweighed by the potential prejudice to Collins. Although Collins has correctly set forth the applicable test, see Commonwealth v. Robinson, 433 Pa. 88, 249 A. 2d 536 (1969); Commonwealth v. Wilson, 431 Pa. 21, 244 A. 2d 734 (1968); Commonwealth v. Powell, 428 Pa. 275, 241 A. 2d 119 (1968), we cannot find that the trial court abused its discretion in permitting the slide to be shown. The slide was as noninflammatory as possible because all excess blood had been removed from the decedent's face before the photograph was taken, so this is not a case where some less inflammatory version of the slide could have been utilized. Cf. Commonwealth v. Eckhart, 430 Pa. 311, 242 A. 2d 271 (1968). Additionally, the trial court found as a fact that the slide was necessary to the jury's understanding of the medical examiner's testimony, a finding we cannot dispute. Hence we find that the slide was neither so inflammatory nor so unnecessary as to be inadmissible.
Collins' second contention is that the trial court erred both in permitting a police officer to testify that Collins fled when the officer attempted to arrest him and in charging the jury that evidence of flight might indicate consciousness of guilt. There was no error in either allowing the testimony or giving the charge. As *372 we said in Commonwealth v. Coyle, 415 Pa. 379, 393, 203 A. 2d 782, 789 (1964): "When a person commits a crime, knows that he is wanted therefor, and flees or conceals himself, such conduct is evidence of consciousness of guilt, and may form the basis in connection with other proof from which guilt may be inferred." (citations omitted). The police officer's testimony and the jury instructions on flight were within the boundaries of the law as stated in Coyle, and both were therefore proper. Collins' assertion that this rule of law is subject to the same constitutional infirmities as are tacit admissions, disapproved in Commonwealth v. Dravecz, 424 Pa. 582, 227 A. 2d 904 (1967), is erroneous. Tacit admissions were barred because they violated an accused's Fifth Amendment right to remain silent in the face of police interrogation, a problem which has no analogy to the situation presented here. Flight, unlike silence in the face of police questioning, cannot be taken as an assertion of a constitutional right.
Collins' third argument is that the trial court improperly instructed the assistant district attorney to coach a witness's answers to certain questions. The problem arose when the defense called as its first witness the detective who had been in charge of the investigation and attempted to establish that his investigation had been cursory, the inference being that a more careful examination would have disclosed the defendant's innocence. The Commonwealth objected to this line of questioning because it felt that the real reason for the shortness of the original investigation was that the day after the murder Collins had given the police a confession, which had been subsequently suppressed. At a side bar conference the assistant district attorney expressed his intention to bring out on cross-examination the fact that the detective had cut short his investigation *373 for this reason. The trial judge told the assistant district attorney that any mention of a confession would cause a mistrial and instructed him to tell the detective not to mention the confession. We specifically approve of the trial court's handling of this problem; it was hardly inappropriate for the trial judge to avoid the delay and expense of a mistrial in this fashion.
Collins' fourth assertion is that the trial court erred in refusing to allow defense counsel access to a "memorandum" made when an assistant district attorney, not the same assistant who was trying the case, interviewed one of the witnesses. Defense counsel did not ask to see the "memorandum" until the last day of the trial, twenty-four hours after the witness whose interview was the subject of the "memorandum" testified and even though defense counsel knew that some notes had been taken at the interview before the trial even began. In addition to the tardiness of defense counsel's request, there is a serious problem with respect to the nature of this "memorandum." The assistant district attorney who tried the case told the trial court that the only "memorandum" in the file which concerned the interview was a collection of three or four sheets of yellow paper with scribbled notes presumably made by the assistant district attorney who interviewed the witness. We doubt that such notes constitute a discoverable statement, Campbell v. United States, 365 U.S. 85, 81 S. Ct. 421 (1961), and we do not find that the trial court erred in refusing to order the Commonwealth to produce the notes for defense counsel's inspection.
Collins' fifth complaint is that the trial court erred in refusing to declare a mistrial when the assistant district attorney asked Collins on cross-examination if it were not true that a girl named Barbara Jean Moore had seen him strike his wife with the hammer that apparently *374 caused her death, and then produced Miss Moore, who did so testify, for the first time as a rebuttal witness. Up to that point in the trial there had been no suggestion that such an eyewitness existed.
The reason for Miss Moore's late appearance in the trial was that she had not come forward with her story until Monday, November 6, 1966, the sixth day of the trial, after the Commonwealth had finished presenting its case-in-chief. We do agree with Collins that the manner of introducing Miss Moore's testimony into the case left much to be desired. The Commonwealth should have requested permission to reopen its case and introduced her testimony in that fashion, rather than alluding to her existence for the first time in a surprise question on cross-examination. Improper though the Commonwealth's procedure may have been, we do not believe that a reversal is required in this case. The evidence against Collins was truly impressive, and we cannot believe that the method of introducing Miss Moore's testimony affected the outcome of the trial. Thus we believe that the error was harmless, and consequently does not require a reversal of this conviction. Commonwealth v. Padgett, 428 Pa. 229, 237 A. 2d 209 (1968); cf. Rosenberg v. United States, 360 U.S. 367, 79 S. Ct. 1231 (1959).
Collins' sixth and final assignment of error is that the trial court erred in refusing to charge the jury on voluntary manslaughter. In support of this assertion he argues that he was mad at his wife, suspecting that she had been seeing another man when he was previously incarcerated on a drunk driving charge, and that this was sufficient evidence of provocation to raise the issue of voluntary manslaughter. Unfortunately, this evidence, even if true, does not come close to establishing the prerequisites of voluntary manslaughter as set forth in Commonwealth v. Barnosky, 436 Pa. 59, 64, *375 258 A. 2d 512, 515: "`To reduce an intentional blow, stroke, or wounding resulting in death to voluntary manslaughter, there must be sufficient cause of provocation and a state of rage or passion without time to cool, placing the prisoner beyond the control of his reason, and suddenly impelling him to the deed. If any of these be wanting if there be provocation without passion, or passion without a sufficient cause of provocation, or there be time to cool, and reason has resumed its sway, the killing will be murder. Commonwealth v. Drum, 58 Pa. 9 (17).' Commonwealth v. Paese, 220 Pa. 371, 373, 69 Atl. 891, 892 (1908), cited in Commonwealth v. Walters, 431 Pa. 74, 82, 244 A. 2d 757, 762 (1968). See Commonwealth v. Palermo, 368 Pa. 28, 81 A. 2d 540 (1951); Commonwealth v. Cargill, 357 Pa. 510, 55 A. 2d 373 (1947)."
Judgment of sentence affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1381955/ | 200 S.W.3d 203 (2006)
CESSNA AIRCRAFT COMPANY and Associated Aviation Underwriters, Inc., Appellants,
v.
AIRCRAFT NETWORK, L.L.C., Appellee.
No. 05-04-01056-CV.
Court of Appeals of Texas, Dallas.
March 16, 2006.
Rehearing Overruled September 8, 2006.
*206 Fred J. Meier, Winstead Sechrest & Minick, and Jonathan Jay Cunningham, Dallas, for Appellant.
J. Robert Arnett II, Arnett, Gaubert, LLP, Dallas, for Appellee.
Before Justices MORRIS, WRIGHT, and RICHTER.
OPINION
Opinion by Justice WRIGHT.
Cessna Aircraft Company and Associated Aviation Underwriters, Inc. (AAU) appeal a trial court's judgment following a jury trial. AAU contends that Aircraft Network lacks standing to sue AAU. Alternatively, AAU asserts the evidence is legally and factually insufficient to support the jury findings for breach of contract, fraud, negligent misrepresentation, and exemplary damages. Cessna asserts: (1) the evidence is legally and factually insufficient to support jury findings for breach of contract, negligent misrepresentation, and breach of the implied warranty for good and workmanlike manner; (2) the trial court improperly submitted certain questions to the jury; (3) the trial court erred in awarding attorney's fees. In a cross-point, Aircraft Network contends the award for promissory estoppel should be reinstated should this Court reverse the award for breach of reimbursement contract. In a single point of error on cross-appeal, Aircraft Network contends the trial court erred in failing to offset the awards in favor of Cessna.
For the reasons that follow, we affirm in part, reform in part, reverse and render in part, and reverse and remand in part. We sustain AAU's first point of error, reverse the trial court's judgment with respect to AAU, and render judgment that Aircraft Network take nothing on its claims against AAU. We sustain Cessna's first point of error to the extent it complains about the submission of the damages question and reform the judgment to delete a portion of the damages awarded for breach of bailment contract. We sustain Cessna's second, third, and fourth points of error, reverse the trial court's judgment on the claims for breach of reimbursement contract, negligent misrepresentation, and breach of implied warranty, and render judgment that Aircraft Network take nothing on those claims. We sustain Aircraft Network's cross-point and reinstate the jury award for promissory estoppel. We reverse the awards of attorney's fees and costs and remand those issues to the trial court for proceedings consistent with this opinion. In all other respects, the trial court's judgment is affirmed.
Background
Aircraft Network owned a Cessna Citation III jet aircraft. In June of 2000, while on a trip to California, the aircraft developed problems. On June 13, 2000, Chuck Weese, pilot of the aircraft, took it to the Cessna service center in Long Beach, California for minor repairs. While *207 repairing the aircraft, a Cessna employee accidentally damaged the tail section of the aircraft when he jacked up the nose of the aircraft while the tail stand was still in place.
Cessna readily accepted responsibility for the damage to the aircraft caused by its employee. The damage to the aircraft rendered it unairworthy. John Sloan, the maintenance manager at the Long Beach service center, informed Weese that Cessna would replace the entire skin panel. However, it would take about six weeks to obtain the necessary parts. In the meantime, Sloan advised Weese that Cessna had an interim repair that it could make so that they could fly the aircraft while waiting for the parts.
Stevan Hammond, president of Aircraft Network, had planned a business trip to Europe in July. Hammond decided that he would not be comfortable taking the aircraft with an interim repair to Europe. Accordingly, Aircraft Network declined the interim repair and opted to wait on the permanent repair. Weese then flew the aircraft on a special flight permit back to Dallas where it was scheduled to have avionics work. The permanent repair would then be made at the Cessna service center in Wichita, Kansas.
Preparing for its trip to Europe, Aircraft Network located a Gulfstream II that it could lease for the trip. Paul Martin, claims attorney for AAU, informed Aircraft Network that it would pay the costs of substitute transportation on a "differential of operating costs" basis. On July 12, 2000, Martin sent a letter to Aircraft Network stating that AAU would support the European trip "provided that the operating costs you would have incurred, but for the damage to your aircraft, are deducted from the costs of the G-II." Aircraft Network took the European trip in the G-II.
Aircraft Network also chartered other flights for business purposes. Aircraft Network tendered invoices for its chartered flights without any deduction for normal operating costs. A dispute arose as to costs covered for the chartered flights. Aircraft Network refused any payment offered by Cessna in return for a partial release of its claims.
Aircraft Network filed this lawsuit alleging claims against Cessna for negligence, breach of bailment contract, breach of contract for reimbursement, promissory estoppel, fraud, negligent misrepresentation, and breach of implied warranties. Aircraft Network asserted claims against AAU for breach of reimbursement contract, promissory estoppel, fraud, negligent misrepresentation, and Insurance Code violations. Cessna filed a counterclaim against Aircraft Network for breach of contract for failure to pay for past services.
At the conclusion of the trial, the jury found in favor of Aircraft Network on its claims against Cessna for negligence,[1] breach of bailment contract, breach of reimbursement contract, negligent misrepresentation, and breach of implied warranty. The jury also found in favor of Aircraft Network on its claim against AAU for breach of reimbursement contract, fraud, and negligent misrepresentation. Cessna recovered on its counterclaim. The trial court rendered a judgment on the jury verdict awarding damages, exemplary damages, and attorney's fees to Aircraft Network and damages to Cessna on its counterclaim. This appeal timely followed.
*208 Standing to Sue AAU
Initially, we address AAU's assertion that Aircraft Network lacks standing to sue AAU because a third-party claimant cannot sue an insurer.
Potential conflicts arise with respect to an insurer's duty to its insured when a third-party sues the insurer directly. The supreme court has addressed these concerns when considering whether a third-party claimant has standing to sue an insurer. See Transport Ins. Co. v. Faircloth, 898 S.W.2d 269 (Tex.1995); Allstate Ins. Co. v. Watson, 876 S.W.2d 145 (Tex. 1994). In Faircloth, a woman was killed in a car accident involving Allied Van Lines. Allied's insurer, Transport Insurance Company, entered into a $250,000 settlement agreement with Paula Faircloth, a minor thought to be the daughter of the deceased. Upon reaching the age of majority, Faircloth sued Transport for unfair settlement practices. The supreme court held that third-party claimants lack standing to sue an insurer for a claim for breach of the duty of good faith and fair dealing. Id. at 279. The supreme court noted that the insured's interests are adverse to those of a third-party claimant. If an insurer owes duties to a third-party, the insurer's duties to its insured would necessarily be compromised. Id.
Watson also involved a car accident. Watson sued Allstate, the other driver's insurer, alleging claims for unfair settlement practices under the insurance code. Watson, 876 S.W.2d at 146. The supreme court held that a third-party claimant cannot sue an insurer for unfair settlement practices under the insurance code. Id. at 149. In so holding, the supreme court explained that allowing a third-party claimant to sue insurers would undermine the duties that insurers owe to their insureds. "An insurance company owes to its insured a duty to defend against the claims asserted by a third party." Id. at 150 (emphasis in original).
Aircraft Network relies primarily on one case to support its contention that it does have standing to sue AAU. See Webb v. International Trucking Co., Inc., 909 S.W.2d 220 (Tex.App.-San Antonio 1995, no writ). Webb involved an accident between two truck drivers. One truck was owned by International Trucking (Trucking). The other truck involved in the accident was owned by Williams Drilling Company (Williams). Prior to liability being determined, the adjuster for Williams's insurer told Trucking that the insurer would pay for the damages to its truck and instructed Trucking to have it repaired at a certain service facility. Id. at 223. Relying on the insurer's statement, Trucking had its truck repaired. Subsequently, the insurer determined that its driver was not at fault and, therefore, refused to pay Trucking's repair bill. Trucking sued the insurer for DTPA and insurance code violations. Summary judgment was granted on the insurance code violations and the jury found in favor of Trucking on the DTPA claims. Id. at 224.
On appeal, the insurer asserted that Trucking, a third-party claimant, lacked standing to sue it. The court of appeals distinguished Watson and Faircloth on the ground that the claims in both of those cases were based on unfair claim settlement practices. Id. at 224-25. Significantly, the facts giving rise to the claims in Webb occurred prior to liability being either determined or reasonably clear and, therefore, outside the context of settlement negotiations. An insurer does not settle a claim for which its insured is not liable. An insurer engages in settlement practices at the point that liability is determined or becomes reasonably clear.
*209 In an effort to fit this case into the Webb analysis, Aircraft Network couches its claims as a separate agreement between itself and AAU outside the context of any settlement negotiations. The facts, however, are against such assertion. Aircraft Network's claims arose from AAU's attempts to settle those claims on behalf of Cessna, AAU's insured. Loss of use was one of the claims AAU was attempting to settle. Allowing a third-party to sue an insurer over matters arising while the insurer attempts to settle a claim on behalf of its insured highlights the concerns expressed by the supreme court in Watson and Faircloth.
In both Watson and Faircloth, liability had been determined or was reasonably certain when the facts giving rise to the claims against the insurer arose. In contrast, when the insurer made the statement upon which Trucking relied in Webb, liability had not been determined. In our case, liability was determined at the point of the accident. Cessna admitted its fault and never wavered from that position. Responsibility for the accident was never an issue. From the beginning, AAU was trying to settle a claim for which Cessna, its insured, was liable.
We hold that, under these circumstances, Aircraft Network lacked standing to sue AAU. Accordingly, we sustain AAU's first point of error. We reverse the trial court's judgment with respect to AAU and render judgment that Aircraft Network take nothing on its claims against AAU.
Claims Against Cessna
A. Standard of Review
In reviewing a legal sufficiency point of error, the reviewing court must consider only the evidence and inferences tending to support the challenged findings and disregard all evidence and inferences to the contrary. If there is more than a scintilla of evidence to support the challenged findings, the no evidence challenge fails. Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996). We may sustain a no evidence point only when the record discloses one of the following: (1) there is a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence; or (4) the evidence establishes conclusively the opposite of a vital fact. See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997).
When conducting a factual sufficiency review, we must consider all of the evidence, including any evidence contrary to the verdict. Plas-Tex., Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). Furthermore, we must reverse on the basis of factual insufficiency if the court's finding is so against the great weight and preponderance as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986).
B. Breach of Bailment Contract
1. Existence of Breach of Bailment Claim
In its first point of error, Cessna raises two arguments with respect to the breach of bailment claim. First, Cessna contends a breach of bailment claim is inapplicable to the facts of this case. Second, Cessna contends the trial court erred in submitting the breach of bailment claim.
Cessna contends Aircraft Network's claim is for breach of warranty. Because Aircraft Network has a breach of warranty claim, Cessna argues, a breach of bailment claim is not available. We disagree.
*210 Cessna relies on Southwestern Bell Tel. Co. v. FDP Corp., 811 S.W.2d 572 (Tex. 1991) and Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894 (Tex.App.-Houston [1st Dist.] 2002, no pet.) to support its claim. Cessna's reliance is misplaced. Both FDP Corp. and Ellis concern remedies available to buyers under the UCC. FDP sued Southwestern Bell Telephone for breach of an express warranty when the yellow pages advertisement it purchased failed to include a display as agreed to. FDP Corp., 811 S.W.2d at 575. The supreme court held that if a seller fails to deliver goods, a buyer has a claim for breach of contract. Id. at 576. If, however, the seller delivers nonconforming goods, the buyer has a claim for breach of warranty. Id.
FDP does not hold, as Cessna contends, that a party with a breach of warranty claim may not also assert a breach of bailment contract claim. The supreme court stated: "Our first inquiry is whether FDP's allegations state a claim for breach of warranty, which is actionable under the DTPA, or merely a claim for breach of contract." FDP, 811 S.W.2d at 574. (emphasis added). "[W]e reject Bell's argument that its failure to publish the double quarter column display was exclusively a breach of contract." Id. at 576. (emphasis added).
In Ellis, a buyer purchased a rebuilt engine. The engine did not work properly and the buyer returned it several times for repairs. Id. at 895. The buyer sued alleging causes of action for breach of contract and breach of warranty. The seller obtained summary judgment. The court of appeals held that Ellis did not have a breach of contract claim because under the UCC the seller performed by delivering the engine to the buyer. Id. at 897. The holding in Ellis was based on the provisions of the UCC. In contrast to the parties in FDP and Ellis, Aircraft Network and Cessna were not in a buyer/seller relationship governed by the UCC. We find no support for Cessna's contention that Aircraft Network is limited to a breach of warranty claim.
Cessna also contends that it did not have a bailor/bailee relationship with Aircraft Network. Cessna argues that no bailment exists because the aircraft was damaged while repair services were being performed. The existence of a bailor/bailee relationship, however, is not determined by the circumstances that bring about the damage or loss. Rather, we consider the following elements: (1) the delivery of personal property from one person to another for a specific purpose; (2) acceptance by the transferee of such delivery; (3) an agreement that the purpose will be fulfilled; and (4) an understanding that property will be returned to the transferor. See Prime Products, Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 635 (Tex.App.-Houston [1st Dist.] 2002, pet. denied); Sears, Roebuck & Co. v. Wilson, 963 S.W.2d 166, 168-69 (Tex.App.-Fort Worth 1998, no pet.). A bailor/bailee relationship is not limited to circumstances where damage or loss to the bailed property comes about through no fault of the bailee.
This Court has found a bailor/bailee relationship where a car was damaged as it was being serviced. See Lockey v. Packard-Dallas, Inc., 119 S.W.2d 150 (Tex.Civ. App.-Dallas 1938, writ dism'd). Mr. Lockey took the car to the dealership to have it serviced. He told the service manager that the car was sluggish. Id. at 151. In an effort to pinpoint the problem, an employee of the service center drove the car. While driving the car, the employee wrecked it. Id. This Court reversed a directed verdict for the dealership, holding that the facts raised an issue of bailment. Id. at 152.
*211 The Austin court of appeals found a bailor/bailee relationship existed between an owner of an aircraft and a potential buyer. The potential buyer wrecked the aircraft as he was taxiing down the runway after landing. Hastings v. Thweatt, 425 S.W.2d 661, 662 (Tex.Civ.App.-Austin 1968, no writ). The court of appeals affirmed a judgment for the bailor holding the bailee liable for the damage to the airplane he had borrowed from plaintiff for the purpose of trying it out to determine whether he wanted to buy it. Id; see also Wilson v. Chazanow, 105 S.W.3d 21, 23-24 (Tex. App.-Corpus Christi 2002, no pet.) (bailor/bailee relationship where a jeweler sent a sapphire ring to another jeweler for resizing and sapphire was cracked while being resized).
Thus, we conclude there was a bailor/bailee relationship between Cessna and Aircraft Network. See Lockey, 119 S.W.2d at 152; Hastings, 425 S.W.2d at 662.
2. Jury Submission of Bailment Claim
a. Submission of Liability Issue
In its first issue, Cessna also contends the trial court erred in its submission of the bailment claim to the jury. We review claims of charge error for an abuse of discretion. Tex. Dep't of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex.1990). In question four, the jury was asked whether Cessna failed to comply with the bailment contract. The instructions for that question included the following statement: "Cessna's failure to return the Aircraft or returned [sic] it in damaged condition creates a rebuttable presumption that Cessna breached the bailment contract."[2] Cessna contends this statement in the instructions was improper because whether the aircraft was returned in a damaged condition was a question of fact. We disagree.
Cessna contends the evidence is undisputed that the aircraft was not returned in a damaged condition because it was "ultimately" returned in the same condition following the permanent repair. Cessna asserts that its offer to immediately do the interim repair somehow vitiates the fact that the aircraft was damaged while in its possession. Cessna does not cite any authority to support its position. Cessna's focus on the condition of the aircraft when it was ultimately returned is misplaced. Aircraft Network took the aircraft to the Long Beach service center for a minor repair. Cessna admittedly damaged the aircraft, and it is undisputed that the aircraft was initially returned in a damaged condition. Aircraft Network had to obtain a ferry permit to fly the plane back to Dallas because the plane was rendered unairworthy by the damage caused by Cessna. An offer to repair or subsequent repair of the damage does not change that fact.
We conclude the trial court did not abuse its discretion in submitting question four to the jury.
*212 b. Submission of Damages Issue
Cessna also contends the trial court erred in submitting the damages question for breach of the bailment contract to the jury.[3] Cessna contends that Aircraft Network cannot recover damages for both the amount it actually expended in securing substitute transportation and also the cost it would have incurred in the alternative in securing a replacement aircraft on a monthly basis as "loss of use" damages. Aircraft Network counters that the damages are not duplicitous because damages for the value of the aircraft to Aircraft Network differs from the replacement value.
Damage awards are duplicitous if they compensate a party for the same injury. See Waite Hill Services, Inc. v. World Class Metal Works, Inc., 959 S.W.2d 182, 184 (Tex.1998); City of San Antonio v. Guidry, 801 S.W.2d 142, 150 (Tex.App.-San Antonio 1990, no writ) For example, the recovery of both lost profits and damage to business reputation could easily be duplicitous. See Nelson v. Data Terminal Systems, Inc., 762 S.W.2d 744, 748 (Tex.App.-San Antonio 1988, writ denied). However, a plaintiff may recover for both lost profits and injury to business reputation if the damages cover different time periods or apply to different markets. See Guidry, 801 S.W.2d at 150. Thus, recovery for both lost profits and injury to business reputation are not necessarily duplicitous, but may be so depending on the evidence.
Just as damages for loss of business reputation and lost profits may be duplicitous, so too can damages for loss of value and loss of use. The usual measure of damages for loss of use of injured property is the reasonable cost of renting a replacement. Luna v. North Star Dodge Sales, Inc. 667 S.W.2d 115, 119 (Tex.1984). Where property is not rentable, the plaintiff may resort to proving the actual worth of use. See Goose Creek Consol. Ind. Sch. Dist. of Chambers and Harris Counties, Texas v. Jarrar's Plumbing, Inc., 74 S.W.3d 486, 497 (Tex.App.-Texarkana 2002, pet. denied). It is error to admit evidence of both rental costs and replacement costs for loss of use of damages. Hyder-Ingram Chevrolet, Inc. v. Kutach, *213 612 S.W.2d 687, 689 (Tex.App.-Houston [14th Dist.] 1981, no writ).
An award for the loss of having an aircraft available twenty-four hours a day, seven days a week necessarily includes damages for substitute transportation. The damages sought by Aircraft Network for the costs of substitute transportation and loss of the value of the aircraft cover the same time period. Under these circumstances, we conclude the trial court erred in its submission of question five. Further, we conclude Aircraft Network cannot recover damages on its breach of bailment contract claim for both the costs of obtaining substitute transportation and for the value of the aircraft during the same time period. Accordingly, we sustain Cessna's first point of error to the extent that we reform the award for breach of bailment contract to delete the damages in the amount of $166,000. In all other respects, Cessna's first point of error is overruled.
C. Reimbursement Contract
In its second point of error, Cessna contends the evidence is legally and factually insufficient to support the jury's finding of breach of reimbursement contract. Specifically, Cessna contends the evidence is insufficient to establish the elements of a contract.
The elements of a valid contract include: (1) an offer; (2) acceptance; (3) meeting of the minds; (4) each party's consent to the terms; and (5) execution and delivery of the contract with the intent that it be mutual and binding. Prime Products, Inc., 97 S.W.3d at 636. In determining the existence of an oral contract, the court looks to the communications between the parties and to the acts and circumstances surrounding the communications. Id.
Cessna asserts the evidence is insufficient to establish a contract because any offer lacked consideration, there was no acceptance of any offer, and there was no meeting of the minds. We focus our attention on the element of acceptance. An acceptance must be identical to the offer, or there is no binding contract. See Long Trusts v. Griffin, 144 S.W.3d 99, 111-12 (Tex.App.-Texarkana 2004, pet. filed).
In its brief, Aircraft Network argues that "the correspondence, conversations, and testimony of [Richard] Burton [in-house counsel for Aircraft Network] showed that Cessna accepted Aircraft Network's terms for reimbursement." Aircraft Network does not provide record citations to support this statement. And our review of the record shows that the parties did not come to a meeting of the minds with respect to the costs to be reimbursed and that Aircraft Network did not accept any offer by Cessna.
In his July 12, 2000 letter, Martin confirmed that Cessna would reimburse Aircraft Network for its trip to Europe on a differential of costs basis. Aircraft Network persisted in its request to have an airplane available twenty-four hours a day, seven days a week. On September 8, 2000, Lonnie Joe, supervisor of accounting at Cessna, had a phone conversation with Hammond and Weese. Joe informed them that Cessna would not agree to pay to have an airplane available to Aircraft Network twenty-four hours, seven days a week. Joe did state that Cessna would pay one-hundred percent of costs of substitute transportation from September 8, 2000 until repair of the aircraft was completed.
Burton testified that he submitted the invoice for the European trip after September 8, 2000. The invoice included all costs of the trip with no deductions for *214 costs that Aircraft Network would have incurred had it taken its own aircraft. Burton testified that he felt Cessna's September 8th commitment to pay one-hundred percent of costs included all chartered trips, not just those trips occurring after September 8th. He stated: "My point was, and still is, that's an arbitrary period of time. September 8th through September 25th was just picked out of the hat, there is no rhyme or reason to it. If it's reasonable for that period of time, it's reasonable for the entire period of time our plane is down. By Paul Martin basically stating to me that the reason why they chose that concept was to try to compensate us for this loss of 24-7, to me, of course we thought it was reasonable, and in my opinion AAU had determined it was reasonable by saying for a certain period of time they're going to do it. I just thought it should be pulled not just from that arbitrary period of time, but it should cover the entire three months our plane was down."
Aircraft Network contends Martin's July 12, 2000 letter constituted a reimbursement contract. Martin stated in the letter that Cessna would reimburse Aircraft Network for its charter flight to Europe on a differential of cost basis. An essential term to the alleged contract was reimbursement of costs on a differential of cost basis. Aircraft Network took the trip to Europe and in September submitted its invoice for one-hundred percent of costs. Burton testified that after the July 12th letter, he continued to negotiate with Martin regarding the extent of reimbursement. Because of these negotiations, Burton believed that Joe's promise on September 8th to cover one-hundred percent of costs for chartered flights included the chartered flights for the months of July and August as well. We conclude the evidence is factually insufficient to show: (1) that Aircraft Network accepted the offer made by Martin on July 12th; or (2) that the parties had a meeting of the minds as to an essential term of the alleged reimbursement contract the costs that would be reimbursed.
We sustain Cessna's second point of error. We reverse the trial court's award of damages for the breach of reimbursement contract claim and render judgment that Aircraft Network take nothing on that claim.
D. Negligent Misrepresentation
In its third point of error, Cessna contends the evidence is legally and factually insufficient to support a cause of action for negligent misrepresentation. Specifically, Cessna contends the evidence is insufficient because a negligent misrepresentation claim cannot be based on a promise of future performance and such claim must be supported by an independent injury.
In its fourth amended petition, Aircraft Network asserted its claim for negligent misrepresentation in the alternative to its claims for breach of reimbursement contract, promissory estoppel reimbursement, and fraud reimbursement. A party may plead alternative theories of recovery, present the facts as it understands them to be, and recover under any one of their theories. Bantuelle v. Williams, 667 S.W.2d 810, 819 (Tex.App.-Dallas 1983, writ ref'd n.r.e.).
To recover on a claim for negligent misrepresentation, there must be an injury independent of damages for the breach of contract claim. See D.S.A., Inc. v. Hillsboro Indep. Sch. Dist., 973 S.W.2d 662, 663-64 (Tex.1998); Blue Star Operating Co. v. Tetra Technologies, Inc., 119 S.W.3d 916, 922 (Tex.App.-Dallas 2003, pet. denied). The facts in Blue Star are analogous to the facts in this case. Blue *215 Star alleged a claim of negligent misrepresentation against Tetra for failing to disclose the possibility of significant filtration losses. Blue Star asserted that it relied on the misrepresentation in entering the contract. Blue Star, 119 S.W.3d at 922. However, this Court upheld the directed verdict in favor of Tetra on this claim because Blue Star did not cite to any evidence regarding any injury it suffered or damages it sought as a result of Tetra's alleged failure to disclose that was independent from its breach of contract claim. Id.
Aircraft Network's claim for negligent misrepresentation does not involve an injury independent from the injury alleged for its claim for breach of reimbursement contract. Both claims are based on the same factual scenario that Cessna promised to reimburse Aircraft Network for substitute transportation, Aircraft Network incurred costs in reliance on that promise, and Aircraft Network sustained damages when Cessna breached its promise.
Consequently, we conclude there is no evidence to support the submission of the negligent misrepresentation claim to the jury. We sustain Cessna's third point of error, reverse the trial court's judgment with respect to the negligent misrepresentation claim, and render judgment that Aircraft Network take nothing on its negligent misrepresentation claim.
E. Implied Warranty of Good and Workmanlike Manner
In its fourth point of error, Cessna contends the evidence is legally and factually insufficient to support the award for breach of implied warranty.
The jury found that Cessna breached the implied warranty of performing services in a good and workmanlike manner and assessed $142,000 in damages for that breach. Cessna contends that the award for breach of the implied warranty amounts to a double recovery because the damages are subsumed in damages awarded for breach of bailment contract. Cessna further argues that Aircraft Network's recovery, if any, should be limited to the smaller award for breach of implied warranty. Although we agree that the two awards are duplicitous, we hold that the trial court erred in awarding damages for breach of implied warranty.
An implied warranty arises by operation of law as a matter of public policy. Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 353 (Tex.1987). There must be a compelling need to justify an implied warranty for service transactions. Rocky Mountain Helicopters, Inc. v. Lubbock Cty. Hosp. Dist., 987 S.W.2d 50, 53 (Tex.1998). A compelling need for an implied warranty does not exist where other adequate remedies are available. Id. Where a party has negligence and/or breach of contract claims available to it, an implied warranty does not arise. Id;see also Anthony Equip. Corp. v. Irwin Steel Erectors, Inc., 115 S.W.3d 191, 209 (Tex. App.-Dallas 2003, writ dism'd).
Aircraft Network asserted claims for negligence and breach of bailment contract. The jury found in favor of it and awarded damages on both of those claims. Under these circumstances, we hold that Aircraft Network does not also have a claim for breach of an implied warranty of good and workmanlike manner.
We sustain Cessna's fourth point of error. We reverse the award of damages for breach of the implied warranty of good and workmanlike manner and render judgment that Aircraft Network take nothing on that claim.
F. Attorney Fees
In its fifth point of error, Cessna contends the trial court's award of attorney's *216 fees was erroneous. Specifically, Cessna contends Aircraft Network failed to properly segregate their fees among the different claims and the different defendants. We have reversed the trial court's judgment with respect to AAU and rendered judgment that Aircraft Network take nothing on its claims against AAU, reversed the award for breach of reimbursement contract and rendered judgment that Aircraft Network take nothing on that claim against Cessna. Thus, our holdings impact the amount of attorney's fees recoverable. Accordingly, we sustain Cessna's fifth point of error. We reverse the attorney's fee award and remand that issue to the trial court for proceedings consistent with this opinion.
G. Costs
In its final point of error, Cessna asserts the trial court erred in awarding costs to Aircraft Network. The trial court awarded costs against Cessna and AAU jointly and severally. In light of this Court's holding that Aircraft Network take nothing on its claims against AAU, we remand the issue of costs to the trial court for proceedings consistent with this opinion. We sustain Cessna's sixth point of error.
Aircraft Network's Cross-Point
In a single cross-point, Aircraft Network asserts that if this Court sustains Cessna's point of error as to the breach of the reimbursement contract, then this Court should reinstate the jury award on its promissory estoppel claim. In response, Cessna contends that because there is no contract for reimbursement, there can be no claim for promissory estoppel. We disagree. A claim for promissory estoppel can only exist if there is no contract. See Doctors Hospital 1997, L.P. v. Sambuca Houston, L.P., 154 S.W.3d 634, 636 (Tex.App.-Houston [14th Dist.] 2004, pet. filed).
We have held that the evidence is insufficient to support the jury's finding of a reimbursement contract. Thus, no reimbursement contract exists, and the jury found for Aircraft Network on its promissory estoppel claim. Cessna does not contend that the evidence is insufficient to support the jury's finding. Accordingly, we sustain Aircraft Network's cross-point and reinstate the award of damages for the promissory estoppel claim.
Aircraft Network's Cross-Appeal
In a single point of error, Aircraft Network contends the trial court erred in failing to offset the judgment awarded to Cessna on its counterclaim. Offset is required only where a defendant is awarded a judgment on its counterclaim that exceeds that established by the plaintiff. TEX.R. CIV. P. 302. Aircraft Network's recovery, at trial and following appeal, exceeds the recovery awarded to Cessna on its counterclaim. Accordingly, offset is not required and the trial court did not abuse its discretion in failing to offset the judgments. We overrule Aircraft Network's point of error on cross-appeal.
Conclusion
We sustain AAU's first point of error and hold that Aircraft Network lacked standing to sue AAU. We reverse the judgment with respect to AAU and render judgment that Aircraft Network recover nothing on its claims against AAU. We sustain Cessna's first point of error to the extent it asserts error in the submission of the damages question on the breach of bailment contract claim. We reform the trial court's judgment to delete the $166,000 award for breach of bailment contract. We sustain Cessna's second, third, and fourth points of error and render *217 judgment that Aircraft Network recover nothing on its claims against Cessna for breach of a reimbursement contract, negligent misrepresentation, and breach of the implied warranty of a good and workmanlike manner. We sustain Aircraft Network's cross-point and reinstate the jury's award of $210,517.66 for promissory estoppel. Finally, we remand to the trial court the issues of attorney's fees and costs of proceedings consistent with this opinion. In all other respects, we affirm the trial court's judgment.
NOTES
[1] The trial court required Aircraft Network to make an election of remedies between the negligence and breach of bailment contract causes of action. Aircraft Network elected the breach of bailment contract award.
[2] NO. 4:
Did Cessna fail to comply with the bailment contract it entered with Aircraft Network?
Answer ("YES" or "NO"): Yes
INSTRUCTIONS FOR QUESTION NO. 4
If Cessna and Aircraft Network entered a bailment contract concerning the Aircraft, and both were to benefit from the contract, Cessna owed a duty to exercise ordinary care for the Aircraft.
"Ordinary Care" means that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances.
Cessna's failure to return the Aircraft or returned [sic] it in damaged condition creates a rebuttable presumption that Cessna breached the bailment contract.
[3] QUESTION NO. 5:
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Aircraft Network for its damages, if any, that resulted from such failure to comply?
Consider the following when calculating these damages. Do not include damages for one element in any other element. Do not include interest on any amount of damages you find. Do not include in your answer any amount that you find Aircraft Network could have avoided by the exercise of reasonable care.
a. Damages arising from loss of the use of the Aircraft, including, but not limited to the following:
(1) the costs associated with utilizing substitute aircraft
Answer in dollars and cents, if any.
Answer: 210,517.66
(2) loss of use of the Aircraft
Answer in dollars and cents, if any.
Answer: 166,000.00
(3) lost charter revenue
Answer in dollars and cents, if any.
Answer: -0-
b. Decrease in the Aircraft's market value as a result of damage thereto
Answer in dollars and cents, if any.
Answer: 180,000
INSTRUCTIONS FOR QUESTION NO. 5
"Market value" means the amount that would be paid in cash by a willing buyer who desires to buy, but is not required to buy, to a willing seller who desires to sell, but is under no necessity of selling.
For "Loss of use" consider the reasonable value of the use of an airplane in the same class as the Aircraft for the period of time required to repair the damage, if any, caused by the occurrence in question. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266903/ | 174 Cal. App. 4th 768 (2009)
In re H.D., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent,
v.
H.D., Defendant and Appellant.
No. H033462.
Court of Appeals of California, Sixth District.
June 3, 2009.
*771 Paul Couenhoven, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan and Martin S. Kaye, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
McADAMS, J.
H.D., a minor, appeals from the dispositional order of the juvenile court committing him to the Department of Corrections and Rehabilitation, Division of Juvenile Justice (now Division of Juvenile Facilities (DJF)), for a maximum term of physical confinement of 12 years eight months, per the court's written orders. Defendant argues that the court's written orders do not correctly reflect the maximum term of confinement orally imposed by the court, and requests that this court reduce the maximum term by two years, to 10 years eight months. The Attorney General acknowledges that there is a discrepancy between the court's oral pronouncement and the written orders, but argues that the resulting ambiguity should be resolved by the trial court on remand. We will reverse the dispositional order and remand to the trial court for further proceedings on disposition.
STATEMENT OF THE CASE
On July 8, 2008, a juvenile delinquency petition (Welf. & Inst. Code, § 602)[1] was filed in Santa Clara County Superior Court alleging that on June *772 11, 2008, the minor committed a robbery (count 1) and an aggravated assault (count 2). (Pen. Code, §§ 211 to 212.5, subd. (c), 245, subd. (a)(1).) The petition further alleged that during the assault, the minor personally inflicted great bodily injury, and that the assault was committed for the benefit of, at the direction of, and in association with, a criminal street gang. (Pen. Code, §§ 12022.7, subd. (a), 186.22, subd. (b)(1)(B).) On July 18, 2008, pursuant to a negotiated disposition, the district attorney amended the petition to allege that the robbery was also committed for the benefit of, at the direction of, and in association with, a criminal street gang, and dismissed the great bodily injury allegation made in connection with the assault charge. The minor then admitted all of the charges and allegations of the petition, and the court transferred the case to Santa Cruz County for disposition. Santa Cruz County accepted the transfer.
On September 2, 2008, the Santa Cruz County Superior Court declared the minor a ward of the court and committed him to the Division of Juvenile Justice (now DJF), orally setting the maximum time of physical confinement at 11 years eight months. The clerk's transcript reflects a maximum time of physical confinement of 12 years eight months.
STATEMENT OF FACTS[2]
According to the Gilroy police report, on June 11, 2008, at approximately 12:34 a.m., the mother of the victim called the police because her son had been assaulted a few blocks from home. When the police arrived at the S. home, the victim was bleeding from a three- to four-inch laceration behind his right ear at the back of his head, but he appeared coherent. He told police that a white small pickup truck pulled up alongside him while he was walking home. One of the people in the truck asked him if he "banged." The victim, who was wearing a white Red Sox jersey with a red undershirt and a hat with the red letter C on the front, realized that he was being asked to which gang he belonged. He told the person he was not a gang member and tried to walk away. The person then told the victim to give him his jersey. Afraid, the victim complied. He was then hit on the back of the head with a wrench by another person and fell to the ground. Someone reached into his pants pocket and took his cell phone. The suspects fled in the truck.
*773 At this point in the interview, the victim suffered a seizure and was taken to the hospital by ambulance.[3]
Gilroy police reinterviewed the victim on July 2, 2008. He recalled that at least three people exited the truck to confront him. One person held a large butcher knife in his right hand and stood on the victim's right side. An unarmed person stood directly in front of him, shook his hand, and said "That's cool." A third person stood to his left and slightly behind him. The person with the knife pointed it at the victim and demanded his jersey. He removed his jersey and was immediately hit on the back of the head by the person who stood behind him and to his left. In addition to the jersey and the cell phone, the robbers took his MP3 player and baseball cap.
Investigation of the crime scene led to a landscaping business whose owner reported his white pickup and his work tools stolen. Confidential information led to a probation search of H.D.'s home, from which the victim's Red Sox jersey and cell phone were recovered. The police reinterviewed H.D. on July 3, 2008. He admitted that on the night of June 11, he went cruising in a truck with his friends, A. and E., and two unidentified people. A. drove, and called out to the victim, "Do you bang?" H.D., E. and the other two approached the victim on foot. The victim was frightened and H.D. shook his hand and said "that's cool" to calm him down. H.D. took the jersey and, while walking back to the truck, heard the victim call for help. He turned and saw E. hit the victim in the head with a hand tool.
A. and E. were interviewed about a week later. A. admitted driving the truck, but claimed he did not see the victim get hit. E. denied that he hit the victim; he claimed he saw one of the unidentified suspects arm himself with a wrench, and later he saw blood on the wrench, but he did not see who hit the victim. E. confirmed that H.D. stood directly in front of the victim and demanded the property. H.D., A. and E. are members of CML, Clifford Manor Locos, a Norteño street gang operating mainly in Watsonville.
DISCUSSION
At the conclusion of the contested dispositional hearing, at which defense counsel, the prosecutor and the victim's mother all gave impassioned statements, the court made the following remarks:
*774 "THE COURT: I believe based upon all of the events in this case, based upon the choices that you made and the choices that you have at this point, that you have a different choice as of today. But as of today, the appropriate choice that I have and I believe the only choice I have is to commit you to the Department of Juvenile Justice. I'll indicate that the maximum term is 15 years, eight months. I'll indicate
"[DEFENSE COUNSEL]: Your Honor, I believe it's 12 years, eight months.
"THE COURT: 12 years, eight months.
"[DEFENSE COUNSEL]: And the Court has discretion to lower that.
"THE COURT: I haven't finished. I misspoke, but I haven't finished. . . . [¶] Twelve years, eight months. I'll indicate that at least based upon some discussions, that four years for the principal term is appropriate, the five-year enhancement consecutive, the four, the one year, which is one-third of the 245 consecutive, and the one-third of the five years, for a total of 11 years, eight months. [¶] And the issue is, ... you did have choices, and you made them. And I have choices and I have made them. And I believe mine are appropriate."
However, the commitment order sent to the Division of Juvenile Justice, and the disposition order signed by the court, indicate a maximum term of confinement of 12 years and eight months. In addition, the probation department memorandum signed by the court indicates that 12 years eight months is the maximum term as well as the appropriate discretionary term under sections 726 and 731.
At a subsequent hearing held on October 1, 2008, defense counsel brought to the court's attention the discrepancy between the 12 year eight month maximum term stated in the probation report of September 4, and the 11 year eight month maximum stated by the court at the disposition hearing. The court replied, "No. No. What I indicated was that it was a 12 year eight month maximum. I indicated that if I had to pick a term, because, I believe, on the case law that was given to me, that I believe 11 years eight months was appropriate, but the maximum was 12 eight."
*775 Quoting from In re Joseph M. (2007) 150 Cal. App. 4th 889, 897 [58 Cal. Rptr. 3d 756], the minor argues this record shows the juvenile court "understood it had `the discretion to consider the facts and circumstances of the minor's case in setting a period of physical confinement that was less than the maximum adult term but within the sentencing triad described in Penal Code section 1170, subdivision (a)(3),'" and intended to do so. The court's error, according to the minor, was "in deciding how to calculate a maximum term of confinement less than the adult term maximum. An adult being sentenced for a second degree robbery can be ordered to serve two, three or five years in prison (Pen. Code § 213, subd. (a)(2).) Four years is not one of the choices. The juvenile court had to choose one of `the three time periods set forth in paragraph (2) of subdivision (a) of Section 1170 of the Penal Code.' (. . . § 726, subd. (c).) [¶] . . . Since the court intended to select the mid-term rather than the upper term in calculating [H.D.]'s maximum term of confinement, the maximum term . . . should be set at ten years and eight months."
The Attorney General agrees with the minor that "a juvenile court has the discretion to impose an actual term of confinement less than the maximum term imposable on an adult . . .; that the juvenile court here understood it had that discretion . . .; and that in exercising discretion to impose less than the maximum term, the juvenile court is limited to selecting the lower or middle term statutorily authorized, and may not simple select any term lower than the upper term which is not part of the standard triad . . . ."
The Attorney General correctly notes that there is a potential conflict in the case law on the last point. (See In re Joseph M., supra, 150 Cal.App.4th at p. 897; In re Carlos E. (2005) 127 Cal. App. 4th 1529, 1542 [26 Cal. Rptr. 3d 551].) The Attorney General further agrees with the minor that the juvenile court "appeared to indicate the appropriate actual physical term should be 11 years 8 months by virtue of a four, not five, year term for the robbery" and further "muddled" the matter with its comments at the October 1, 2008 hearing. The Attorney General suggests that if this court should deem the actual physical term of confinement unclear, it should remand the matter to the juvenile court for clarification, since an 11 year eight month sentence would be "unauthorized" and the juvenile court should have the opportunity to decide whether 10 years eight months would be an appropriate discretionary term.
*776 We agree with the parties that the record before us strongly suggests that the court understood its discretion to set the minor's maximum term of confinement at something less than the maximum term that could be imposed on a similarly situated adult, pursuant to section 731, subdivision (c).[4] We also agree with the parties that the record is "muddled" in that it also appears the court would have imposed a term of 11 years eight months as the appropriate maximum term, but for its belief that imposition of such a term would be unlawful, as the court was apparently under the impressionas the parties arethat it had no discretion to choose a term other than one of the determinate sentencing law's (DSL's) triadic terms for the offense at issue.
(1) We do not agree that the court's discretion to set a term of physical confinement for the minor at less than the maximum imposable term is limited to one of the three terms for a given offense set by Penal Code section 1170. We discern no legislative intent to so restrict the juvenile court's power. In the first place, the juvenile court law is an indeterminate disposition scheme. The juvenile court does not determine the minor's release date or the actual term of confinement. Those functions reside with the Youth Authority Board (now Board of Parole Hearings) created by Senate Bill No. 459 (2003-2004 Reg. Sess.). (Stats. 2003, ch. 4, §§ 16, 20, amending §§ 1719, 1723.) While the court now decides the outer limits of the ward's indeterminate period of confinement, the administrative board still determines the ward's actual length of stay. In our view, the wholesale importation of the DSL's triadic sentencing scheme into the juvenile court law would be inconsistent with its indeterminate sentencing structure, at least absent some legislative direction.
However, the amendment to section 731, subdivision (c) contains no such direction. The language of the amendment does not even reference the DSL or Penal Code sections 1170, 1170.1, or a triadic sentencing structure. On the contrary, the statute ties the court's exercise of discretion to "the facts and circumstances of the matter or matters which brought or continued the ward *777 under the jurisdiction of the juvenile court," strongly suggesting that the court should endeavor to tailor the disposition to the offender and the offense, rather than attempt to shoehorn the punishment into a one-size-fits-all sentencing scheme. (§ 731, subd. (c).) Our view is supported by the extant legislative materials. The report for the Senate Committee on Public Safety dated March 13, 2003, states: "This bill would authorize the court to additionally set maximum terms of physical confinement in the CYA based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court. This new provision would provide for court consideration of factors about the offense and the offender's history which would be comparable to those employed now for the triad sentencing of adults, and have those considerations reflected in the CYA confinement term ordered by the court." (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 459 (2003-2004 Reg. Sess.) as amended Mar. 12, 2003, pp. I-J, italics added.) By providing for court consideration of "factors" that inform the court's sentencing choices under the DSL's triadic scheme, rather than consideration of the triadic scheme itself, we think the report supports our view that the court's discretion is not unfettered but rather is circumscribed by the rules of court, and perhaps by the types of materials listed in Penal Code section 1170.1, subdivision (b) (i.e., probation reports, victim impact statements). But we find nothing in the legislative history to suggest that the juvenile court's new discretion was intended to be limited to selection of one of the three terms provided by the Penal Code for a particular offense.
(2) Nor do we find that section 726, subdivision (c),[5] compels a different reading of section 731, subdivision (c). We see no conflict between those two sections. Consistent with the equal protection principles it was designed to implement, section 726 sets the outermost limit of a ward's physical confinement at the maximum term of imprisonment that could be imposed on an adult. It defines the maximum term of imprisonment as the upper term calculated pursuant to Penal Code section 1170. It permits the court to increase the overall maximum term of imprisonment by aggregating the *778 period of physical confinement on multiple counts or multiple petitions, including previously sustained petitions, and it defines "physical confinement" as "placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home . . . or in any institution operated by the Youth Authority." (§ 726, subd. (c).) Nothing in section 731, subdivision (c) affects these provisions. Section 731, subdivision (c) simply adds that the court may set the maximum term of physical confinement in the DJF at less than the overall maximum term of imprisonment set by section 726. The two provisions complement each other.
(3) Our reasoning is in accord with the views expressed in In re Carlos E. in which the Court of Appeal concluded that section 731, subdivision (c) grants the juvenile court the discretion to choose any appropriate term less than the maximum term imposable on an adult charged with the same offense, based on the facts and circumstances of the matter. That court observed: "There is nothing in the legislation or its history to suggest the Legislature sought to make sweeping changes in the commitment of a minor to [DJF] from an indeterminate term to a determinate term, nor is there any provision that the Legislature is restricting the juvenile court to the adult sentencing triad. Proof the juvenile court's decision is not tied directly to the adult system is found in the language utilized; the juvenile court is to consider the facts and circumstances of the matter, rather than being restricted solely to the aggravating or mitigating circumstance scheme for adults. The juvenile court's determination must be tied to the purposes of the juvenile system, which include the protection of the public as well as the rehabilitation of the minor. (§ 202.) [¶] . . . [¶] Under the changes to section 731, the juvenile court must determine the maximum period of confinement to [DJF] based on the facts and circumstances, this maximum may not be more than that for a comparable adult, but may be less. The maximum period of confinement set by the court is not a determinate term, it is the ceiling on the amount of time that a minor may be confined in [DJF], and recognizes that the committing court has an interest in and particularized knowledge of the minors it commits to [DJF]. The Youth Authority Board retains the power, subject to the applicable rules and regulations, to determine the actual length *779 of confinement at or below the ceiling set by the juvenile court and to determine the conditions of the minor's confinement. Thus, the indeterminate nature of the system remains in accordance with the distinct purposes of the juvenile system." (In re Carlos E., supra, 127 Cal.App.4th at p. 1542; see also In re Christian G. (2007) 153 Cal. App. 4th 708, 713-715 [63 Cal. Rptr. 3d 215] [rejecting claim of Cunningham v. California (2007) 549 U.S. 270 [166 L. Ed. 2d 856, 127 S. Ct. 856] error].)
(4) We recognize that the Court of Appeal in Joseph M. concluded that "[t]he amendment to section 731, subdivision (b) [now subd. (c)], was intended to afford the juvenile court the discretion to consider the facts and circumstances of the minor's case in setting a period of physical confinement that was less than the maximum adult term but within the sentencing triad described in Penal Code section 1170, subdivision (a)(3)." (In re Joseph M., supra, 150 Cal.App.4th at pp. 896-897.) However, the precise holding in Joseph M. was that "the discretion to set the maximum confinement time at less than the lengthiest term an adult would serve for the same offense does not allow for the imposition of a term less than the minimum adult term." (Id. at p. 896.) This case does not require us to decide whether we agree with the holding of Joseph M., inasmuch as neither party suggests that the juvenile court here ever contemplated imposing a term less than the minimum adult term. We hold only that on the record before us, it is unclear whether the juvenile court intended to fix the minor's term of maximum physical confinement at 12 years eight months or something less, and whether the court understood it had the discretion to impose a maximum term other than the lower or middle term set by Penal Code section 213. Therefore, we will reverse the dispositional order and remand the matter to the juvenile court for further proceedings on disposition.
CONCLUSION
On the present record, this court cannot conclude that the juvenile court intended to and did fix the minor's maximum term of physical confinement at 12 years eight months with the full understanding of the scope of its discretion pursuant to section 731, subdivision (c). Therefore, we will reverse the dispositional order and remand the matter to the juvenile court for further proceedings on disposition.
*780 DISPOSITION
The dispositional order is reversed. The matter is remanded to the juvenile court with directions to calculate the maximum period of physical confinement based on the facts and circumstances of the matter before it. The court is directed to prepare an amended commitment order reflecting any changes, and to forward a certified copy of the amended commitment order, if any, to the Department of Corrections and Rehabilitation, Division of Juvenile Facilities.
Rushing, P. J., and Duffy, J., concurred.
NOTES
[1] Further unspecified statutory references are to the Welfare and Institutions Code.
[2] This factual summary is based on the facts reflected in the Santa Cruz County probation officer's report dated August 21, 2008, prepared for the September 2, 2008 disposition hearing, and on the Santa Clara County probation officer's report dated July 9, 2008, prepared for the detention hearing.
[3] According to the victim's mother, he suffered a skull fracture, bleeding and swelling of the brain, and seizures. Part of his skull had to be removed.
[4] Section 731, subdivision (c) provides: "A ward committed to the Division of Juvenile Facilities may not be held in physical confinement for a period of time in excess of the maximum period of imprisonment that could be imposed upon an adult convicted of the offense or offenses that brought or continued the minor under the jurisdiction of the juvenile court. A ward committed to the Division of Juvenile Facilities also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters that brought or continued the ward under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section. This section does not limit the power of the Board of Parole Hearings to retain the ward on parole status for the period permitted by Section 1769."
[5] Section 726, subdivision (c) provides: "If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.
"As used in this section and in Section 731, `maximum term of imprisonment' means the longest of the three time periods set forth in paragraph (2) of subdivision (a) of Section 1170 of the Penal Code, but without the need to follow the provisions of subdivision (b) of Section 1170 of the Penal Code or to consider time for good behavior or participation pursuant to Sections 2930, 2931, and 2932 of the Penal Code, plus enhancements which must be proven if pled.
"If the court elects to aggregate the period of physical confinement on multiple counts or multiple petitions, including previously sustained petitions adjudging the minor a ward within Section 602, the `maximum term of imprisonment' shall be the aggregate term of imprisonment specified in subdivision (a) of Section 1170.1 of the Penal Code, which includes any additional term imposed pursuant to Section 667, 667.5, 667.6, or 12022.1 of the Penal Code, and Section 11370.2 of the Health and Safety Code.
"If the charged offense is a misdemeanor or a felony not included within the scope of Section 1170 of the Penal Code, the `maximum term of imprisonment' is the longest term of imprisonment prescribed by law.
"`Physical confinement' means placement in a juvenile hall, ranch, camp, forestry camp or secure juvenile home pursuant to Section 730, or in any institution operated by the Youth Authority.
"This section does not limit the power of the court to retain jurisdiction over a minor and to make appropriate orders pursuant to Section 727 for the period permitted by Section 607." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266925/ | 174 Cal. App. 4th 1488 (2009)
THE PEOPLE, Plaintiff and Respondent,
v.
SATISH SHETTY, Defendant and Appellant.
No. B205061.
Court of Appeals of California, Second District, Division Five.
June 18, 2009.
*1490 Jennifer Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and John R. Gorey, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
TURNER, P. J.
Defendant, Satish Shetty, appeals after he pled nolo contendere to a single misdemeanor count of home equity sales fraud in violation of Civil Code section 1695.8 which is part of the Home Equity Sales Contract Act. (Civ. Code, § 1695 et seq.) On appeal, defendant argues he is entitled to a reversal because the charged offense was barred by the three-year statute of limitations in Penal Code section 801. We disagree.
On May 21, 2007, a felony complaint for arrest warrant was issued. The warrant sought the arrest of defendant and three codefendants. This appeal only involves count 12the charge to which defendant pled nolo contendere. Count 12 of the felony complaint alleges that on August 19, 2003, defendant and his three codefendants violated Civil Code section 1695.6, subdivision (a). Count 12 of the felony complaint alleges defendants failed to provide Lawrence Herbert, a home equity seller, with a written contract that complied with the disclosure and other requirements in Civil Code sections 1695.2, 1695.3, and 1695.5.
According to the September 26, 2007 preliminary hearing transcript, Mr. Herbert, then aged 80, was told he could save his home from foreclosure by securing a second mortgage. At the time, Mr. Herbert was in arrears on his mortgage payments. On August 19, 2003, Mr. Herbert was provided a series of documents to sign under the guise that he was securing a second mortgage on his property. The documents did not comply with the disclosure requirements imposed by the Home Equity Sales Contract Act. Only after the escrow closed was Mr. Herbert told that he had sold his home. Defendant was told that he had to sign a lease in order to stay in his home. Mr. Herbert asked, "`Why do I have to sign a lease?'" Defendant responded, "`Because you don't own the property anymore.'" Mr. Herbert said, "I had no intention of selling my property.'" Defendant demanded, "`You'll have to sign the lease or else we'll evict you.'" Mr. Herbert testified: "I had no intention of selling my house. I was told I was getting a loan." After defendant was held to *1491 answer, count 12 of the amended information contained the same felony charge as in the complaint which resulted in the issuance of the arrest warrant on May 21, 2007.
On December 6, 2007, the prosecutor moved to amend count 12 of the amended information to allege a misdemeanor violation of Civil Code section 1695.6, subdivision (a). Defendant then pled nolo contendere to the misdemeanor charge. The prosecutor, on the express condition defendant's plea under count 12 remained viable, moved to dismiss counts 1 through 11 and 13 through 17. Defendant was then sentenced to serve 189 days in county jail and to pay a Penal Code section 1202.4, subdivision (b)(1) fine in the sum of $100. Later, the trial court issued a probable cause certificate.
(1) Defendant asserts that all of the Civil Code section 1695.6, subdivision (a) counts were barred by the three-year Penal Code section 801 statute of limitations. We need not address the relationship of the statute of limitations to any charge but the one before uscount 12. The Home Equity Sales Contract Act regulates transactions between an equity purchaser and an equity seller resulting in the sale of residential real property in foreclosure. (Spencer v. Marshall (2008) 168 Cal. App. 4th 783, 794 [85 Cal. Rptr. 3d 752]; Segura v. McBride (1992) 5 Cal. App. 4th 1028, 1035-1036 [7 Cal. Rptr. 2d 436].) As noted, count 12 alleges defendant violated Civil Code section 1695.6, subdivision (a) which states: "The contract as required by Sections 1695.2, 1695.3, and 1695.5, shall be provided and completed in conformity with those sections by the equity purchaser." Civil Code sections 1695.2, 1695.3, and 1695.5 impose disclosure and other requirements on home equity sale contracts. In order for the Home Equity Sales Contract Act to apply, the equity seller must reside in the residence. (Civ. Code, § 1695.1, subd. (b); In re Phelps (2001) 93 Cal. App. 4th 451, 455-459 [113 Cal. Rptr. 2d 217].)
(2) Civil Code section 1695.8 criminalizes violations of the Home Equity Sales Contract Act involving fraud or deceit: "Any equity purchaser who violates any subdivision of Section 1695.6 or who engages in any practice which would operate as a fraud or deceit upon an equity seller shall, upon conviction, be punished by a fine of not more than twenty-five thousand dollars ($25,000), by imprisonment in the county jail for not more than one year, or in the state prison, or by both that fine and imprisonment for each violation." As can be noted, Civil Code section 1695.8 is an alternative felony misdemeanor. (Pen. Code, § 17, subd. (b); see In re Phelps, supra, 93 *1492 Cal.App.4th at p. 454.) Because the offense is an alternative felony misdemeanor, the applicable statute of limitations is that for a felony violation. (Pen. Code, § 805, subd. (a)[1]; People v. Johnson (2006) 145 Cal. App. 4th 895, 902, fn. 12 [51 Cal. Rptr. 3d 893].) The present prosecution was commenced when the felony arrest warrant was issued on May 21, 2007. (Pen. Code, § 804, subd. (d)[2]; People v. Price (2007) 155 Cal. App. 4th 987, 997 [66 Cal. Rptr. 3d 595].)
Defendant argues the May 21, 2007 issuance of the arrest warrant was untimely as it was not issued within three years of August 19, 2003, the date the amended information alleges defendant and his three codefendants violated Civil Code section 1695.6, subdivision (a). Defendant relies on Penal Code section 801 which provides for a three-year statute of limitations, "Except as provide in Sections 799 and 800, prosecution for an offense punishable by imprisonment in the state prison shall be commenced within three years after commission of the offense." The parties agree that Penal Code sections 799,[3] which relates to offenses punishable by imprisonment for life, with or without the possibility of parole, or embezzlement of public moneys, and 800,[4] which applies when a conviction can result in a sentence of eight years or more, have no application to this case.
The Attorney General argues the applicable statute of limitations is four years because the Civil Code section 1695.8 violation is an offense involving fraud. The Attorney General relies on Penal Code sections 801.5 and 803, subdivision (c). Penal Code section 801.5 states, "Notwithstanding Section 801 or any other provision of law, prosecution for any offense described in subdivision (c) of Section 803 shall be commenced within four years after *1493 discovery of the commission of the offense, or within four years after the completion of the offense, whichever is later." Penal Code section 803, subdivision (c) states in part, as it did in 2003 when the count 12 offense was committed: "A limitation of time prescribed in this chapter does not commence to run until the discovery of an offense described in this subdivision. This subdivision applies to an offense punishable by imprisonment in the state prison, a material element of which is fraud . . . ."[5] We agree with the Attorney General that a material element of a violation of Civil Code section 1695.8 is fraud. Civil Code section 1695.8 explicitly states that "fraud or deceit" is an element of the offense. In the context of this case, the preliminary hearing transcript indicates Mr. Herbert was defrauded into signing documents which resulted in his home being sold.
(3) There is no merit to defendant's argument that since Civil Code section 1695.8 is not one of the enumerated offenses listed in Penal Code section 803, subdivision (c)(1) through (11), the four-year statute of limitations period does not apply. (See fn. 5, ante.) Penal Code section 803, subdivision (c) expressly applies in part "to an offense punishable by imprisonment in the state prison, a material element of which is fraud" which includes a violation of Civil Code section 1695.8. The enumerated offenses in Penal Code section 803, subdivision (c)(1) through (11) are illustrative and not the only crimes to which the four-year statute of limitations applies.
(4) Thus, the four-year Penal Code section 801.5 statute of limitations controls. The felony complaint and amended information allege in count 12 that the violation of Civil Code section 1695.8 occurred on or about August 19, 2003. Mr. Herbert testified the relevant events occurred in August 2003.
*1494 The arrest warrant naming defendant was issued on May 21, 2007, less than four years after the specified violations of the Home Equity Sales Contract Act operated as a fraud upon Mr. Herbert.
The judgment is affirmed.
Armstrong, J., and Kriegler, J., concurred.
NOTES
[1] Penal Code section 805, subdivision (a) states in part: "For the purpose of determining the applicable limitation of time pursuant to this chapter: [¶] (a) An offense is deemed punishable by the maximum punishment prescribed by statute for the offense, regardless of the punishment actually sought or imposed."
[2] Penal Code section 804, subdivision (d) stated in part on August 19, 2003, the date of the offense alleged in count 12: "For the purpose of this chapter, prosecution for an offense is commenced when any of the following occurs: [¶] . . . [¶] (d) An arrest warrant or bench warrant is issued, provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint." (Stats. 1998, ch. 931, § 358.) Now, Penal Code section 804, subdivision (d) states: "Except as otherwise provided in this chapter, for the purpose of this chapter, prosecution for an offense is commenced when any of the following occurs: [¶] . . . [¶] (d) An arrest warrant or bench warrant is issued, provided the warrant names or describes the defendant with the same degree of particularity required for an indictment, information, or complaint."
[3] Penal Code section 799 states in part: "Prosecution for an offense punishable by death or by imprisonment in the state prison for life or for life without the possibility of parole, or for the embezzlement of public money, may be commenced at any time."
[4] Penal Code section 800 states, "Except as provided in Section 799, prosecution for an offense punishable by imprisonment in the state prison for eight years or more shall be commenced within six years after commission of the offense."
[5] Penal Code section 803, subdivision (c) states in its entirety: "A limitation of time prescribed in this chapter does not commence to run until the discovery of an offense described in this subdivision. This subdivision applies to an offense punishable by imprisonment in the state prison, a material element of which is fraud or breach of a fiduciary obligation, the commission of the crimes of theft or embezzlement upon an elder or dependent adult, or the basis of which is misconduct in office by a public officer, employee, or appointee, including, but not limited to, the following offenses: [¶] (1) Grand theft of any type, forgery, falsification of public records, or acceptance of a bribe by a public official or a public employee. [¶] (2) A violation of Section 72, 118, 118a, 132, 134, or 186.10. [¶] (3) A violation of Section 25540, of any type, or Section 25541 of the Corporations Code. [¶] (4) A violation of Section 1090 or 27443 of the Government Code. [¶] (5) Felony welfare fraud or Medi-Cal fraud in violation of Section 11483 or 14107 of the Welfare and Institutions Code. [¶] (6) Felony insurance fraud in violation of Section 548 or 550 of this code or former Section 1871.1, or Section 1871.4, of the Insurance Code. [¶] (7) A violation of Section 580, 581, 582, 583, or 584 of the Business and Professions Code. [¶] (8) A violation of Section 22430 of the Business and Professions Code. [¶] (9) A violation of Section 10690 of the Health and Safety Code. [¶] (10) A violation of Section 529a. [¶] (11) A violation of subdivision (d) or (e) of Section 368." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266932/ | 174 Cal. App. 4th 1114 (2009)
PAUL ORAVECZ, Plaintiff and Appellant,
v.
NEW YORK LIFE INSURANCE COMPANY et al., Defendants and Respondents.
No. B206066.
Court of Appeals of California, Second District, Division One.
May 11, 2009.
*1118 Paul Oravecz, in pro. per., for Plaintiff and Appellant.
Barger & Wolen, Robert J. McKennon and Robert E. Hess for Defendants and Respondents.
OPINION
WEISBERG, J.[*]
SUMMARY
When he learned his investments in "Tradex," an offshore foreign currency trading fund, were worthless, Paul Oravecz sued Steve Roth and Roth's alleged employer, respondents New York Life Insurance Company and NYLife Securities, Inc. Roth was the broker-dealer who orchestrated, managed and controlled Oravecz's investments in Tradex. Oravecz asserted numerous causes of action against respondents, premised primarily on allegations that Roth, acting under the authority of and inadequately supervised by respondents, made materially false and misleading representations to convince Oravecz that his investments in Tradex were sound when, in fact, the trading fund was no more than a classic Ponzi scheme. Respondents demurred to three of the causes of action in the third amended complaint. The trial court sustained that demurrer without leave to amend. Later, respondents moved for summary judgment or, in the alternative, summary adjudication on the remaining claims. That motion too was granted. We conclude the trial court properly granted the summary judgment motion, but erred in sustaining the demurrer to the cause of action for breach of fiduciary duty. In all other respects, we find no error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In review of the trial court's ruling sustaining a demurrer without leave to amend, we must accept the properly pled factual allegations of the operative *1119 pleading as true. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th 26, 38 [77 Cal. Rptr. 2d 709, 960 P.2d 513].)
Oravecz filed this action on December 22, 2005, against New York Life and Roth.[1] The lawsuit alleged a statutory claim for securities fraud under California's Corporate Securities Law of 1968 (Corp. Code, § 25000 et seq.), and common law claims for negligence, negligent misrepresentation and breach of fiduciary duty. After demurrers were sustained with leave to amend to previous iterations of the complaint, Oravecz filed the operative third amended complaint (the TAC, or complaint), accompanied by a compendium of exhibits. The complaint alleged the following:
(1) A claim against all defendants for negligent misrepresentation;
(2) A claim for negligence against Roth, alleging he violated his duties as a licensed securities broker to conduct due diligence to ensure both that Tradex was a worthy investment, and that Oravecz was a qualified investor who would not be exposed to extreme financial risk;
(3) A claim that New York Life had violated its own policies by failing to adequately train or supervise Roth, its employee and registered representative, and by advising him that currency tradingsuch as that involved in the Tradex fund, of which New York Life was awaredid not constitute securities-related transactions and that Roth's involvement in such endeavors would not endanger his securities licenses;
(4) A claim that New York Life and Roth breached their respective duties as fiduciaries by, among other things: (a) failing to conduct due diligence, (b) failing to ensure the Tradex fund was a legitimate, sound and trustworthy investment, (c) providing false information about Tradex and the manner and use of funds invested by Oravecz, and the return Oravecz should expect to earn on his risky investment, and (d) that New York Life hired Roth, knowing he had a criminal record, thereby jeopardizing Oravecz by placing a convicted criminal in a position of trust;
(5) A claim that Roth and New York Life had unlawfully offered to sell securities in violation of Corporations Code section 25401 (section 25401),[2] by means of oral or written communications containing material misstatements and/or omissions of fact;
(6) A claim against New York Life for negligently hiring Roth, a convicted criminal, a high school dropout and an individual whom New York Life had failed adequately to train to perform his duties; and
*1120 (7) A claim for negligent interference with prospective economic advantage alleging New York Life and Roth caused at least $10 million in damage to his established and prospective business relationships.
Oravecz alleged that, commencing in 1996, when Roth was an "agent" of New York Life Insurance Co., and a "registered representative" of NYLife Securities, Inc.,[3] Roth sold him security investments in Tradex Fund. Oravecz alleged that Roth held himself out as an employee of New York Life. Oravecz alleged that Tradex turned out to be a "Ponzi" scheme. Acting on Roth's advice and instructions, Oravecz lost the money he invested in Tradex.
New York Life demurred to the causes of action for negligent hiring, negligent interference with prospective economic advantage, and breach of fiduciary duty. It argued the claim for negligent hiring lacked merit because there were no allegations New York Life knew hiring Roth (who, in 1991, pled "no contest" to a charge of negligent discharge of a firearm) was likely to create a particular hazard or that, even if it did, that the particular risk Roth may have posed had materialized. On the cause of action for negligent interference with prospective economic advantage, New York Life argued nothing in the TAC alleged it had damaged or impacted Oravecz's relationships with his business clients, and that Oravecz failed to plead the essential elements to establish the claim. Finally, as for the cause of action for breach of fiduciary duty, New York Life arguedbased entirely on federal case lawthat Oravecz's allegation in the TAC that Roth was vested with discretionary trading authority was contradicted by exhibits attached to that pleading, of which the court could take notice, demonstrating a definitive lack of such authority.
The trial court sustained New York Life's demurrer without leave to amend.[4]
After answering the complaint, New York Life moved for summary judgment or, in the alternative, summary adjudication. It argued that undisputed facts demonstrated the Company could not be liable for damages Oravecz suffered as a result of his Tradex investments, because Roth was not an employee of New York Life, but an independent contractor vested only *1121 with the authority to sell securities products approved by New York Life, which did not include Tradex. New York Life presented evidence it had not known about nor approved Roth's sale of Tradex and that, by engaging in that business, Roth had violated New York Life's policies and exceeded the scope of his authority. Thus, the Company argued it had no duty to supervise him in that capacity. In addition, New York Life asserted Oravecz's statutory fraud claim was time-barred, and that both the fraud and negligent misrepresentation causes of action must fail because undisputed evidence showed Oravecz lacked any reason to believe Tradex was a legitimate investment with which New York Life was affiliated or in any way involved. The motion was opposed by Oravecz. New York Life replied. It also lodged evidentiary objections to most of the exhibits Oravecz filed in opposition to the motion.
The trial court granted the motion for summary judgment and summary adjudication as to each issue for which that ruling had been sought. The court found the "fundamental problem" was that Oravecz had failed to present "competent evidence to refute the showing of New York Life and to demonstrate the existence of triable issues of fact." Specifically, the court found (1) Roth was not an employee of New York Life, but an independent contractor with a nonexclusive relationship with New York Life that left him free to sell other products over which the Company had no control; (2) there was no evidence New York Life made any misrepresentation to Oravecz, nor any evidence to justify Oravecz's belief that any of the money he paid to Tradex constituted an investment in a program approved by New York Life; (3) New York Life had no duty to supervise Roth with respect to his sale of nonapproved investment products, such as Tradex; (4) there was no evidence New York Life was aware Roth had engaged in such sales, was unfit for his position or that he posed any harm to his clients; and (5) the statutory securities fraud claim was barred by the two-year statute of limitations (§ 25507, subd. (a)), because Oravecz admitted he knew in mid-2003 Tradex was a Ponzi scheme, and this action was not filed until late December 2005. The court sustained New York Life's evidentiary objections. Oravecz appeals from the subsequently entered judgment and the order sustaining New York Life's demurrer to the TAC.
DISCUSSION
Oravecz contends the trial court erred in sustaining New York Life's demurrer without leave to amend and in granting its subsequent motion for summary judgment or adjudication. We conclude the trial court erred by sustaining the demurrer as to the fiduciary duty claim. We also conclude the summary judgment motion was properly granted.
*1122 1. The Demurrer.
Oravecz contends the trial court erred in sustaining New York Life's demurrer to the causes of action for breach of fiduciary duty, negligent hiring and negligent interference with prospective economic advantage. He insists the complaint contains sufficient allegations to support the fiduciary duty claim, and he should have been given a chance to amend to cure any pleading problems as to the other two claims, alleged for the first time in the TAC.
a. The court erred by sustaining the demurrer to the claim for breach of fiduciary duty.
(1) New York Life's demurrer to Oravecz's claim for breach of fiduciary duty was premised entirely on federal authority. New York Life never explained why federal case law should control resolution of a state common law claim.[5] The reason they did not do so is obvious. The federal cases on which New York Life relies require an affirmative showing that the stockbroker (alleged fiduciary) exercised discretionary trading authority over its client's investment accounts. (See, e.g., Independent Order v. Donald, Lufkin & Jenrette (2d Cir. 1998) 157 F.3d 933, 940-941 ["[T]here is no general fiduciary duty inherent in an ordinary broker/customer relationship. [Citation.] Such a duty can arise only where the customer has delegated discretionary trading authority to the broker."].) Under this body of law, the fiduciary duty claim fails in the absence of evidence of such discretionary authority. Oravecz's claim, however, is based on and controlled by state law. His cause of action for breach of fiduciary duty is simply a garden variety, common law claim for which the allegations in the TAC are adequate.[6]
(2) Whether a person or entity owes a legal duty to another is primarily a question of law for the court. (6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 860, p. 85.) To state a claim of breach, the plaintiff need only allege the person acted as his fiduciary (e.g., stockbroker), acted on the plaintiff's behalf with respect to his investments, failed to act as a reasonably *1123 careful broker would have acted under the same or similar circumstances, and that his failure to do so was a substantial factor in causing the plaintiff harm. (See CACI No. 4101.)
(3) It is well established in this state that the relationship between a stockbroker or investment advisor and his/her customer is fiduciary in nature, imposing on the former the duty to act in the highest good faith toward the customer. (Twomey v. Mitchum, Jones & Templeton, Inc. (1968) 262 Cal. App. 2d 690, 708-709 [69 Cal. Rptr. 222]; Duffy, supra, 215 Cal.App.3d at p. 1534; Blankenheim v. E. F. Hutton & Co. (1990) 217 Cal. App. 3d 1463, 1475 [266 Cal. Rptr. 593].) In the case of brokers engaged in trading speculative securities (such as those involved in the Tradex transactions), the broker's fiduciary duty specifically requires the broker to (1) ensure the customer understands the investment risks in light of his or her actual financial situation, (2) inform the client that speculative investments are unsuitable if the broker believes the client is not able to bear the financial risks involved, and (3) refrain from soliciting the client's purchase of speculative securities if the broker considers them to be beyond the customer's risk threshold. (Duffy, supra, 215 Cal.App.3d at pp. 1532, 1534, 1538; CACI No. 4105.)
Oravecz alleges Roth acted as his investment advisor/stockbroker, that, while engaged in those activities, Roth was an employee and acting on behalf of New York Life (with actual or implied authority to engage in Tradex activities), that Roth's actions were sanctioned by or imputed to his employer, and that he was damaged by defendants' breach. Oravecz also alleges Roth and New York Life failed to act reasonably, and breached their fiduciary duties by, among other things, failing to conduct due diligence to discover whether Tradex was a legitimate and sound investment, encouraging Oravecz to rely on New York Life's representations, actively misleading Oravecz to make him believe Tradex was a safe investment, misrepresenting the returns Oravecz was likely to earn on his investment, and encouraging him to use credit cards to make his investments, even though Roth knew that doing so would cause Oravecz serious financial harm if the funds were lost, and exposing him to inordinate financial risk.
The TAC adequately states a prima facie claim for breach of fiduciary duty against Roth and New York Life. There is no question that a stockbroker or investment advisor owes a duty of care to an investor. The precise scope of that duty depends on the specific circumstances presented in a given case, and is typically a question of fact.
*1124 b. The demurrer was properly sustained as to the claim for negligent hiring.
In his sixth cause of action, pled in the TAC for the first time,[7] Oravecz alleged New York Life is liable to Oravecz, its preexisting client, for "negligently hiring" Roth, a worker unqualified to perform financial services requiring specific and substantial skills. By hiring Roth, Oravecz claims New York Life failed to exercise reasonable care to ensure he had the requisite degree of integrity, trustworthiness, skills and experience necessary to perform the work of an insurance and securities agent. Oravecz further alleged that, in conscious disregard for Oravecz's rights and financial safety, New York Life hired and retained Roth placing him in a "dangerous financial position," notwithstanding the Company's awareness of Roth's criminal record, the fact that he was a high school dropout, and Roth's failure to attend mandatory training sessions.
(4) Under California law, an employer may be liable to a third person for its negligent hiring of an incompetent or unfit employee, or for failure to use reasonable care to discover the employee's unfitness before hiring him or her. (Underwriters Ins. Co. v. Purdie (1983) 145 Cal. App. 3d 57, 69 [193 Cal. Rptr. 248]; Evan F. v. Hughson United Methodist Church (1992) 8 Cal. App. 4th 828, 836 [10 Cal. Rptr. 2d 748].) Liability in such situations, however, is premised on the principle that the employee poses a particular hazard. (See Evan F. v. Hughson United Methodist Church, supra, 8 Cal.App.4th at p. 836.) It is the risk that the employee, based on his or her history, poses a particular danger or is likely to act a certain way that is the linchpin of the employer's liability. (Id. at p. 837.) Under this theory, an employer cannot be liable for "consequences involving less particular, even speculative, hazards." (Ibid.)
Oravecz alleges New York Life is liable for his failed investment in the Tradex Ponzi scheme, in part, because it hired an undereducated individual who once pled no contest for negligently discharging a firearm.[8] This *1125 contention is absurd. As the trial court correctly found, "[t]here is no nexus alleged which can logically be inferred between the harm [suffered by Oravecz] and Mr. Roth's educational level or his prior criminal conviction." Except for a passing reference, Oravecz does not even address the ruling on the demurrer to this cause of action in his opening brief.[9]
It is an abuse of discretion to sustain a demurrer if there is a reasonable probability a defect can be cured by amendment. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318 [216 Cal. Rptr. 718, 703 P.2d 58].) The burden, however, is on the plaintiff to demonstrate how the complaint can be amended to state a valid cause of action. (Ibid.) Oravecz failed to meet this burden. He does not propose any amendment or new or revised allegations that, if given the opportunity to plead, would cure the defects in this cause of action. His failure to do so constitutes a failure to meet his burden on appeal. (Ibid.; Schifando v. City of Los Angeles (2003) 31 Cal. 4th 1074, 1081 [6 Cal. Rptr. 3d 457, 79 P.3d 569].) The claim was properly dismissed.
c. The demurrer was properly sustained to the cause of action for negligent interference with prospective economic advantage.
Oravecz must plead and prove numerous elements to proceed on a claim for negligent interference with prospective economic advantage against New York Life. He must show that (1) an economic relationship existed between himself and a third party, one which promised Oravecz probable future economic benefits or advantage; (2) New York Life was aware an economic relationship existed; (3) New York Life engaged in wrongful conduct; (4) it was reasonably foreseeable the Company's conduct would interfere with or disrupt Oravecz's economic relationship, if it failed to exercise due care; (5) New York Life failed to exercise due care (i.e., was negligent); (6) Oravecz's economic relationship with the third party suffered actual disruption or interference; and (7) New York Life's conduct caused Oravecz to lose some or all of the economic benefit or advantage he had enjoyed from his business relationship with the third party. (J'Aire Corp. v. Gregory (1979) 24 Cal. 3d 799, 804 [157 Cal. Rptr. 407, 598 P.2d 60]; cf. Ales-Peratis Foods Internat., Inc. v. American Can Co. (1985) 164 Cal. App. 3d 277, 289-290 [209 Cal. Rptr. 917]; BAJI No. 7.82.1 (spring ed. 2008).)
*1126 In the complaint, Oravecz alleges New York Life and Roth owed him duty of care to refrain from interfering with Oravecz's actual or prospective business advantage arising from his existing business relationships which were lucrative, well established, about which New York Life was aware, and which promised the potential for millions of dollars in future business. Oravecz claimed New York Life failed to take reasonable precautions to avoid interfering with Oravecz's prospective business opportunities, or to avoid causing him financial harm. That wrongful conduct included the Company's negligent retention of Roth, a convicted criminal and a high school dropout, and its failure to enforce its policies regarding the training and supervising of its agents. Finally, Oravecz alleged it was "clearly foreseeable" that New York Life's wrongful conduct would and did damage his relationships with his business clients, causing him damages in excess of $10 million.
(5) The trial court did not err in sustaining the demurrer to this claim. First, Oravecz failed to allege any "independently wrongful conduct" by New York Life, as opposed to alleged misdeeds of its agent, Roth. "[A] plaintiff seeking to recover for alleged interference with prospective economic relations has the burden of pleading and proving that the defendant's interference was wrongful `by some measure beyond the fact of the interference itself.' [Citation.]" (Della Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal. 4th 376, 392-393 [45 Cal. Rptr. 2d 436, 902 P.2d 740], fn. omitted; see Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal. 4th 1134, 1158-1159 [131 Cal. Rptr. 2d 29, 63 P.3d 937].) Moreover, to the extent it may be said that Oravecz alleged actionable independent conduct on the part of New York Life, that conductthe hiring and retention of an undereducated individual, convicted of a crime unrelated to the field of securities trading, and the Company's failure to enforce its policiesbears no logical relationship to any disruption to Oravecz's unspecified business relationships. Once again, Oravecz failed to demonstrate how the defects in the complaint could be cured, if he were given a chance to amend. He fell short of satisfying his burden as appellant. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318; Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The seventh cause of action was properly dismissed.
2. The Summary Judgment Motion
a. The standard of review.
Summary judgment is properly granted if the record demonstrates that there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment "`may prove an affirmative *1127 defense, disprove at least one essential element of the plaintiff's cause of action [citations] or show that an element of the cause of action cannot be established . . . .'" (Stonegate Homeowners Assn. v. Staben (2006) 144 Cal. App. 4th 740, 750 [50 Cal. Rptr. 3d 709].) Once the defendant makes this showing, the burden shifts back to the plaintiff to show that a triable issue of fact exists as to that cause of action or defense. (Code Civ. Proc., § 437c, subd. (p)(2).) In doing so, the plaintiff cannot rely on the pleadings, "but, instead, shall set forth the specific facts showing that a triable issue of material fact exists . . . ." (Ibid.) A triable issue of material fact exists "if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. . . ." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850 [107 Cal. Rptr. 2d 841, 24 P.3d 493].)
We review the trial court's decision to grant a motion for summary judgment de novo. (Reyes v. Van Elk, Ltd. (2007) 148 Cal. App. 4th 604, 609 [56 Cal. Rptr. 3d 68].) A trial court's stated reasons for granting summary judgment do not bind us; we review the court's ruling not its rationale. (Continental Ins. Co. v. Columbus Line, Inc. (2003) 107 Cal. App. 4th 1190, 1196 [133 Cal. Rptr. 2d 199].)
b. Summary judgment was properly granted on the remaining claims.
New York Life moved for summary judgment or, in the alternative, summary adjudication, on the remaining claims alleged against it, the first cause of action for negligent misrepresentation, the third cause of action for negligent supervision, and the fifth cause of action for securities fraud in violation of section 25401. The Company argued undisputed evidence established it had no liability to Oravecz because Roth was never its employee. Rather, he was an independent contractor vested only with authority to sell securities products approved by New York Life. In selling Tradex, which was not an approved New York Life product, Roth exceeded the scope of that authority. Finally, New York Life maintained Oravecz's statutory claim was time-barred.
Oravecz opposed the motion. His opposition papers included an "Exhibit Index." In support of his exhibit index, Oravecz submitted a declaration attesting that the exhibits contained therein "represent[ed] true and correct copies of the [24 identified] documents or selected excerpts thereof . . . ." New York Life asserted objections to 17 of the 24 exhibits in Oravecz's index. The objections were sustained. The minute order does not state the grounds for the court's ruling. However, based on what apparently transpired *1128 at the hearing,[10] the parties seem to agree the trial court rejected Oravecz's evidence as incompetent or not properly authenticated. Oravecz does not take issue with the court's ruling as to any particular exhibit or document. Instead, he maintains the ruling was simply wrong because, "[t]he fact is, [his] evidence is authenticated via a Declaration Authenticating Exhibits" and his appeal should succeed on this basis alone. We reject this contention. To the extent necessary, we address the trial court's evidentiary ruling as to specific exhibits as they relate to matters discussed below.
c. Undisputed evidence established that New York Life made no negligent misrepresentation.
(6) The Supreme Court has held: "Negligent misrepresentation is a separate and distinct tort, a species of the tort of deceit. `Where the defendant makes false statements, honestly believing that they are true, but without reasonable ground for such belief, he may be liable for negligent misrepresentation, a form of deceit.' [Citations.]" (Bily v. Arthur Young & Co. (1992) 3 Cal. 4th 370, 407 [11 Cal. Rptr. 2d 51, 834 P.2d 745].) "The elements of a cause of action for negligent misrepresentation are: `1. The defendant must have made a representation as to a past or existing material fact[;] [¶] 2. The representation must have been untrue; [¶] 3. Regardless of his actual belief the defendant must have made the representation without any reasonable ground for believing it to be true; [¶] 4. The representation must have been made with the intent to induce plaintiff to rely upon it; [¶] 5. The plaintiff must have been unaware of the falsity of the representation; he must have acted in reliance upon the truth of the representation and he must have been justified in relying upon the representation[;] [¶] 6. And, finally, as a result of his reliance upon the truth of the representation, the plaintiff must have sustained damage.' [Citations.]" (Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal. App. 3d 388, 402 [264 Cal. Rptr. 779].) Oravecz never asserts that New York Life made direct representations to him regarding Tradex. Rather, his communications with New York Life went through Roth. Oravecz insists the Company is liable by virtue of its status as Roth's alleged employer.
New York Life argued it could not be liable under the doctrine of respondeat superior for Roth's conduct with respect to the Tradex investment because the evidence demonstrates Roth acted as an independent contractor, not as an employee or exclusive agent of New York Life in selling the Tradex product, and had no actual or ostensible authority to sell the Tradex product on behalf of New York Life.
*1129 Sidestepping the dearth of evidence on the issue of whether Roth was actually employed by New York Life, Oravecz asserts the doctrine of respondeat superior applies because, Roth was a "captive agent" of New York Life, or the functional equivalent of an employee. As such, he was precluded from participating in any securities transactions, other than those sanctioned by New York Life. The trial court disagreed, and found the evidence showed Roth was an independent contractor. He maintained a nonexclusive business relationship with New York Life, set his own working hours and conditions, and was free to and did sell products from other companies that were not associated with New York Life, sales over which New York Life maintained no control. The record supports this finding.
Declarations submitted in support of the motion by Roth and Wayne Bragg, Roth's former supervisor and the managing partner of the Company's Los Angeles office, confirm Roth acted as an independent contractor. When he began working with NYLife Securities, Inc., Roth signed a "Registered Representative Agreement," by which he agreed his status as a "Representative [would be as] an independent contractor," and that nothing in the agreement "shall be construed to create the relationship of employer and employee between" New York Life and himself. Roth entered into a similar arrangement with New York Life Insurance Company, when he agreed to become its "agent" and to solicit insurance policies. The written contract between Roth and New York Life Insurance Company states that "[n]either the term `agent' . . . nor anything in [Roth's] contract with [New York Life Insurance Company] . . . shall be construed as creating the relationship of employer and employee between [New York Life Insurance Company] and the Agent [Roth]." Roth's status never changed during his tenure with either Company. As an "agent" or "representative" of New York Life, Roth always controlled his own schedule and the manner in which he performed his work. He was free to decide whether or whom to hire as assistants, free to solicit sales as he chose, free to determine which approved insurance and investment products (including some from entities other than New York Life) best suited his clients' needs, and paid based only on commissions earned.
Oravecz submitted no competent evidence to contradict this evidentiary presentation. Instead, he relied primarily on the claim that Roth allegedly received an annual "W-2" tax form from New York Life. (Oravecz does not cite to, and our independent review of the record did not reveal any W-2 forms for Roth.) He also relied on some advertisements and correspondence to support his contention that Roth was an employee. This evidence is insufficient to raise a material factual issue.[11] As for the "W-2" form, under *1130 Internal Revenue Code guidelines, Roth was considered a "statutory employee" because of his full-time status as a life insurance agent. (See 26 U.S.C. § 3121(d)(3).) As such, New York Life was required to withhold social security and Medicare on his behalf, but not income tax. The Internal Revenue Service does not consider statutory employees common law employees. Indeed, one cannot be both. (See Nicholas v. C.I.R. (July 23, 2001) U.S. Tax Ct. Summary Opn. 2001-106 [2001 WL 1922742, p. *3 ("`[s]tatutory employees' are individuals in specified occupation groups who are not common law employees")].)
(7) In sum, Oravecz failed to defeat New York Life's evidentiary showing that Roth was an independent contractor. The issue is pivotal because, for vicarious liability to attach through the doctrine of respondeat superior for a tort committed by an employee within the scope of his employment, Oravecz must demonstrate the employer had the power and ability to control the method and the results of Roth's professional activities. (See White v. Uniroyal, Inc. (1984) 155 Cal. App. 3d 1, 25 [202 Cal. Rptr. 141], overruled on other grounds in Soule v. General Motors Corp. (1994) 8 Cal. 4th 548 [34 Cal. Rptr. 2d 607, 882 P.2d 298] [if principal controls only the results of an individual's work, and not the means by which it is accomplished, the individual is considered an independent contractor].)
The trial court was correct in finding New York Life could not be liable for negligent misrepresentation, because there is no evidence it made any direct representations to Oravecz or about Tradex, as opposed to those made by Roth. Moreover, none of the payments Oravecz made on his Tradex investments were made to or through New York Life. Rather, at Roth's instruction, all the checks Oravecz wrote depositing funds into his Tradex account were made payable to "Lye Chye Chua," an individual Oravecz identified as the "brother or cousin or whatever" of Susan Lok, an independent currency trader and mutual acquaintance of Roth and Oravecz. Apart from Oravecz's deposition testimony that Roth told him to make payment to Chua or Lok, the record contains no evidence indicating that either Lok or Chua were affiliated with or acted on behalf of New York Life. And finally, Oravecz concedes he made no effort to contact New York Life to verify Roth's representations regarding the Company's connection with Tradex. On this record, we find no fault with the trial court's finding that there was no basis on which Oravecz *1131 could legitimately have believed any payment he made on his Tradex account constituted an investment in a program sanctioned or approved by New York Life.
d. There is no merit in the claim of negligent supervision.
(8) Relying on Asplund v. Selected Investments in Financial Equities, Inc. (2000) 86 Cal. App. 4th 26 [103 Cal. Rptr. 2d 34] (Asplund), New York Life argued it could not be liable for negligent supervision of Roth because, as a broker/dealer, it had no duty to supervise its registered representatives/agents, who are independent contractors, with respect to unauthorized business transactions. In Asplund, the plaintiffs purchased promissory notes issued by Medco, a medical equipment company, from Joseph Tufo, a registered representative of the defendant broker/dealer SIFE (Selected Investments in Financial Equities, Inc.). (Id. at p. 29.) Eventually, the SEC (Securities and Exchange Commission) enjoined Medco from offering or selling the promissory notes, which were no more than "`an elaborate Ponzi scheme.'" (Ibid.) Investors sued, seeking, on various bases, to impose vicarious liability on SIFE for Tufo's actions, as well as direct liability against SIFE for negligent supervision. (Id. at p. 30.) SIFE moved for summary judgment on the latter claim on the ground that (1) Tufo was an independent contractor, not an employee, (2) Tufo lacked actual or apparent authority to sell the investment at issue, and (3) SIFE had no notice of, and in no way benefitted from, the transaction. The appellate court affirmed summary judgment in favor of SIFE. It held "where, as here, the registered representative is not an employee of the broker-dealer, has no actual or apparent authority to sell the investment at issue, and the broker had no notice of and did not in any way benefit from the transaction, the broker-dealer has no such duty [to supervise sales by its registered representatives of such investments]." (Id. at p. 29.)
Oravecz contends Inter Mountain Mortgage, Inc. v. Sulimen (2000) 78 Cal. App. 4th 1434 [93 Cal. Rptr. 2d 790] (Sulimen), not Asplund is controlling here. He is mistaken. In Sulimen, the plaintiff sought to impose vicarious liability under the theory of respondeat superior against a mortgage broker that processed a fraudulent loan submitted by a licensed real estate agent employed by the defendant broker. The appellate court reversed a grant of summary judgment in favor of the broker on the ground the agent was employed by the broker when he submitted the fraudulent loan application. (Id. at p. 1440.) The court found the risk that one of the broker's loan representatives might submit a fraudulent application was a generally foreseeable risk inherent in and incidental to the broker's business. The agent's employment as a real estate agent placed him in a position in which he had the ability to submit fraudulent loan applications, an occurrence neither so unusual or startling that it would seem unfair to include the loss resulting *1132 from such conduct as a cost of doing business. Though the broker may not have known about its agent's fraud, it was vicariously liable for that conduct if the agent committed it while holding himself out as the brokers' representative. (Id. at p. 1442.)
Oravecz insists Sulimen governs our decision, based on his repeated assertion that Roth was employed by New York Life. However, repeatedly asserting that something is a "fact" will not, by itself, make that assertion true. By the time the summary judgment motion was heard, this matter was well beyond the pleading stage. The evidentiary record established beyond question that New York Life did not treat Roth as an employee, that Roth did not consider himself a Company employee, and that Roth never held himself out as such to Oravecz in connection with the Tradex transactions.[12] We agree with Asplund. Under the sound principles articulated therein, New York Life had no duty to supervise Roth's unauthorized sale of unapproved securities. This is particularly true where, as here, New York Life was not aware Roth was selling the Tradex product and where there is no evidence the Company benefitted from the transactions.
e. The statutory securities fraud claim is time-barred.
Oravecz also takes issue with the trial court's grant of summary adjudication as to his claim of securities fraud in violation of section 25401, based on its finding that the claim was time-barred by the two-year statute of limitations of section 25507, subdivision (a). New York Life advanced, and the trial court relied on, the wrong statute. However, the court's erroneous choice of grounds for its ruling does not doom the judgment; the securities fraud claim is barred by the statute of limitations, just not the one on which the trial court relied.[13] The trial court's stated reasons for granting summary judgment do not bind us. We review the ruling, not the court's rationale. (D'Amico v. Board *1133 of Medical Examiners (1974) 11 Cal. 3d 1, 18-19 [112 Cal. Rptr. 786, 520 P.2d 10]; Continental Ins. Co. v. Columbus Line, Inc., supra, 107 Cal.App.4th at p. 1196.)[14]
(9) Section 25401 prohibits the making, whether orally or in writing, of an untrue statement of material fact or omitting to state a material fact necessary in order to make a statement made, in light of the circumstances under which it is made, not misleading. The statute does not apply to simple nondisclosure. (Lynch v. Cook (1983) 148 Cal. App. 3d 1072, 1088 [196 Cal. Rptr. 544].) It requires the defendant to have made a false or misleading material representation or omission. A violator of section 25401 is liable to anyone who buys a security from him. (§ 25501.) Liability attaches unless the defendant can prove the plaintiff knew the facts concerning the untruth or omission, or that the defendant exercised reasonable care and did not know of the untruth or omission. (Ibid.) In general, a cause of action for violation of section 25401 accrues when the buyer discovers the fraud. (See Menke v. Rand Mining Co. (1947) 81 Cal. App. 2d 169, 172 [183 P.2d 755].)
Section 25506 prescribes the statute of limitations applicable to actions for violations of section 25501. Since January 2005, actions brought under that statute are required to be filed within five years after the act or transaction constituting the violation, or no later than two years after discovery by the plaintiff of the facts constituting the violation, whichever is earlier. (§ 25506, subd. (b).)
Oravecz wrote to New York Life on June 23, 2003, complaining about Tradex being a Ponzi scheme, and that he believed Roth had operated the offshore investment scam under the auspices of New York Life and in his capacity as its employee and licensed representative. In addition, although the reporter's transcript is not part of the appellate record, the minute order notes that, during oral argument in the hearing on the summary judgment motion, Oravecz specifically stated to the court that "he knew Tradex was a Ponzi scheme in 2003." On this record, it is clear Oravecz had discovered facts constituting the alleged violation of section 25401 at least by June 23, 2003. His claim for securities fraud in violation of that statute, filed in December 2005, is time-barred.
*1134 DISPOSITION
The order sustaining New York Life's demurrer to the breach of fiduciary duty claim is reversed, and the matter is remanded to the trial court for further proceedings on that cause of action.[15] In all other respects, the judgment is affirmed. Each party shall bear its own costs on appeal.
Mallano, P. J., and Rothschild, J., concurred.
NOTES
[*] Retired judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
[1] Roth is not a party to this appeal.
[2] All undesignated statutory references are to the Corporations Code.
[3] Respondents' interests are aligned. For the sake of brevity, when discussed in conjunction with one another, we will refer to respondents, collectively, as "New York Life," or "the Company."
[4] The minute order states the demurrer was sustained only as to two causes of action. This was clearly a clerical error, as evidenced by statements contained in the reporter's transcript, the notice of ruling prepared by New York Life (to which Oravecz did not object), and Oravecz's subsequent motion seeking reconsideration of the order sustaining the demurrer as to all three claims.
[5] A common law claim for breach of fiduciary duty under California law does not conflict with and is not preempted by federal law. (See, e.g., Capital Research & Management Co. v. Brown (2007) 147 Cal. App. 4th 58, 67 [53 Cal. Rptr. 3d 770]; Roskind v. Morgan Stanley Dean Witter & Co. (2000) 80 Cal. App. 4th 345, 354, fn. 4 [95 Cal. Rptr. 2d 258]; but see McKey v. Charles Schwab & Co. (1998) 67 Cal. App. 4th 731, 741-742 [79 Cal. Rptr. 2d 213] [finding implied preemption of claim for breach of fiduciary duty].) Because it appeared the trial court erred in relying on federal law, we invited the parties to submit letter briefs in advance of oral argument, addressing the choice of law issue. Both sides submitted briefs, which we have read and considered.
[6] As discussed below, under California law, the extent of a broker's discretion is just one factor to be reviewed to determine the scope of a fiduciary's duty. (Duffy v. Cavalier (1989) 215 Cal. App. 3d 1517, 1536, fn. 10 [264 Cal. Rptr. 740] (Duffy).)
[7] Although New York Life opposed it, Oravecz was granted permission to amend and file the TAC to add two entirely new claims, "negligent hiring" and "negligent interference with prospective economic advantage." Oravecz asserts he should be given an opportunity to amend these claims as a matter of course, because they appeared for the first time in his fourth pleading. He is mistaken. (See Leader v. Health Industries of America, Inc. (2001) 89 Cal. App. 4th 603, 612-613 [107 Cal. Rptr. 2d 489], citing Code Civ. Proc., §§ 472, 473 [a litigant's leave to amend his pleading after a demurrer has been sustained is a matter of grace, not of right].)
[8] Specifically, in opposition to the demurrer, Oravecz asserted: "Roth presented a risk of physical harm to investors . . ., i.e., he might shoot investors, as he was negligent in use of a firearm." From there, Oravecz went on to argue that, "[t]his tremendous danger is even more austere than the danger that Roth's proven negligence would harm investors in other ways. Obviously, hiring an agent who might shoot an investor; then vouching for this agent as exhibiting `integrity, trust, and sound ethics'; and placing this person in a position wherein he is trusted with the handling [sic] investors' funds, is outright negligent hiring a problem waiting to happen."
[9] Oravecz makes a more substantive argument in his reply brief. However, absent a showing of good cause, we will not consider points raised for the first time in the reply, because respondents have not been given a chance to respond. (REO Broadcasting Consultants v. Martin (1999) 69 Cal. App. 4th 489, 500 [81 Cal. Rptr. 2d 639].)
[10] The record does not contain a reporter's transcript of the hearing on the summary judgment motion.
[11] This evidence was properly excluded on the grounds it is incomplete, irrelevant, lacks foundation and was not properly authenticated. Moreover, if the correspondence and advertisements collectively labeled "Exhibit 9," had been admitted, only one document contains even a vague connection between Tradex and New York Lifea fax cover sheet, containing the New York Life logo, that Roth used in June 2001 to communicate with someone named Paul Jennings regarding his Tradex account. This document has no bearing on Oravecz's assertion that Roth was employed by New York Life. No other document mentions or alludes to a relationship between Tradex and New York Life, or Roth's status as an employee of the Company.
[12] The "evidence" on which Oravecz relies to support his contention that Roth was an employee of New York Life was properly excluded. It was incomplete or irrelevant, lacked foundation and was not authenticated. The only remaining evidenceexcerpts from Roth's deposition testimonydoes nothing to advance Oravecz's claim that New York Life knew Roth was engaged in the sale of unauthorized product. The testimony to which Oravecz refers states only that, at some point after he got his trader's license, Roth became interested in investing his own funds in a "spot currency trading investment," but was concerned it might impact his securities license. He asked his supervisors if such "trading was a security" and "was assured it was not," and that such investments would not create any problem with his license. Tradex is never mentioned.
[13] Section 25507, subdivision (a) establishes the statute of limitations for violations of section 25503 (sale of unqualified securities), a claim not at issue here.
[14] We are aware Code of Civil Procedure section 437c, subdivision (m)(2) precludes affirmance of summary judgment on a ground not relied upon by the trial court, if the parties are not given an opportunity to submit supplemental briefs. That rule does not apply here. The claim was dismissed because it was barred by a two-year statute of limitations. That the trial court mistakenly referred to the wrong statute of limitations as authority for the correct proposition of law is immaterial.
[15] In supplemental briefing, New York Life, relying upon Code of Civil Procedure section 475, has argued that the doctrine of harmless error should apply here and the judgment be affirmed, because the trial court ruled in its favor on the issue of agency in the motion for summary judgment. New York Life contends that plaintiff suffered no substantial injury, and no different result would have been probable if the error had not occurred. We reject that argument. The issue presented to the trial court was whether plaintiff had stated a cause of action for breach of fiduciary duty. The trial court erred in ruling that it did not state a cause of action, and sustained the demurrer without leave to amend. The trial court was not presented with, nor did it rule upon, the issue whether summary judgment/summary adjudication should be granted to New York Life on this cause of action, and that issue, therefore, is not properly before us. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1544643/ | 388 B.R. 195 (2008)
In re David Lynn GRIMES and, Linda Perry Grimes, Debtors.
David Lynn Grimes, Plaintiff,
v.
First-Citizens Bank & Trust Company, Timothy Pennington, and Timothy McClung, Defendants.
Bankruptcy No. 06-7. Adversary No. 07-57.
United States Bankruptcy Court, N.D. West Virginia.
March 31, 2008.
*197 Paul J. Harris, Wheeling, WV, for Plaintiff.
Donald J. Epperly, Steptoe and Johnson PLLC, Clarksburg, WV, Paul A. Fanning, Ward and Smith, P.A., Greenville, NC, for Defendants.
MEMORANDUM OPINION
PATRICK M. FLATLEY, Bankruptcy Judge.
David Lynn Grimes (the "Debtor") filed a state court complaint against First-Citizens Bank & Trust Company ("First Citizens"), Timothy Pennington, and Timothy McClung (collectively, the "Defendants"). The state court complaint alleges a negligence cause of action based on, inter alia, First Citizens's unauthorized withdrawal of money from the Debtor's bank account. As a result of First Citizens's alleged negligence, the Debtor contends that he suffers from humiliation, embarrassment, and emotional distress.
The Defendants removed the state court action to this court on June 26, 2007. The Debtor now argues that the state court action is a personal injury tort, and that the bankruptcy court lacks jurisdiction over the case under the proscription set forth in 28 U.S.C. § 157(b)(5).
I. BACKGROUND
The Debtor is the principal of three corporate entities, Clearwater Timber Resources, LLC, ("Clearwater"), Deer Creek Management, LLC, ("Deer Creek"), and Independent Transport, Inc. All three entities borrowed money from First, Citizens, and the Debtor signed commercial guaranty loans in excess of $1.4 million. With regard to these loans, the Debtor alleges that First Citizens provided financial advice to him upon which he relied to his detriment, and that First Citizens lent *198 money based on the value of the collateral and not the ability to repay the loans.
In an attempt to assist the Debtor in obtaining additional financing for his business entities, First Citizens arranged for a meeting between the Debtor and the West Virginia Economic Development Authority ("WVEDA") in June 2005. During this meeting, the Debtor contends that the WVEDA encouraged the Debtor to seek bankruptcy protection for his business entities, and that, following the bankruptcy filings, it would grant a loan to sustain the businesses.
As a result of that meeting, the Debtor filed Chapter 11 bankruptcy petitions for both Clearwater and Deer Creek on August 18, 2005. After filing the bankruptcies, however, WVEDA declined to extend any credit to those businesses, and both cases were converted to Chapter 7 on April 24, 2007. Each case was designated a "no asset" case. Both were closed on August 23, 2007.
The Debtor contends that, before the Chapter 11 bankruptcy filings of Clearwater and Deer Creek, First Citizens, under the directions of McClung and Pennington, withdrew money from his personal checking accounts without his authorization. As a result, the Debtor's account became overdrawn, and First Citizens charged him with insufficient funds fees and other miscellaneous fees in excess of $29,000. The Debtor also alleges that First Citizens refused to cash checks and cashier's checks for employees of the Debtor's businesses. According to the Debtor's complaint, McClung "had no regrets or remorse as to the [Debtor's] problems," and Pennington "told other individuals that he hoped the [Debtor's] businesses failed."
The Debtor filed his individual Chapter 13 bankruptcy on January 9, 2006, which was converted to a Chapter 7 case on January 31, 2007. The Debtor received a discharge on May 30, 2007, but the case is still open pending administration of estate assets.
II. DISCUSSION
First Citizens contends that this court has subject matter jurisdiction over the Debtor's state court complaint, and that the proceeding is "core" within the meaning of 11 U.S.C. § 157(b)(2). The Debtor asserts that his complaint must be tried in the federal district courtnot the bankruptcy courton the basis that the complaint alleges a personal injury tort within the meaning of § 157(b)(5).
A. Personal Injury Tort Claims
Neither party disputes that federal jurisdiction exists over the Debtor's state court complaint under 28 U.S.C § 1334. That section grants the federal district courts exclusive jurisdiction over all bankruptcy cases, and "all the property, wherever located, of the debtor as of the commencement of the case, and property of the estate." § 1334(a), (e). District courts also have "original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to a case under title 11." § 1334(b). This grant of jurisdiction has been referred from the district court to the bankruptcy court by General Orders of the District Court for the Northern District of West Virginia dated December 23, 1982 and August 24, 1984. See 11 U.S.C. § 157(a).
However, a bankruptcy court does not have the ability to exercise jurisdiction over all types of bankruptcy proceedings. An important reservation prohibits the bankruptcy court from adjudicating personal injury tort and wrongful death claims:
*199 The district court shall order that personal injury tort and wrongful death claims shall be tried in the district court in which the bankruptcy case is pending, or in the district court in the district in which the claim arose, as determined by the district court in which-the bankruptcy case is pending.
28 U.S.C. § 157(b)(5).
Thus, to the extent that the Debtor's cause of action against First Citizens is a "personal injury tort" claim, the case must be tried in the district court given the objection by the Debtor to the cause of action being tried in the bankruptcy court.
Cases delineating the scope of "personal injury tort" have generally fallen within one of three categories. First, some courts have adopted a narrow view of the term, which would require that the complaining party actually suffer a physical bodily injury. Massey Energy Co. v. West Virginia Consumers for Justice, 351 B.R. 348, 351 (E.D.Va.2006) (finding that a claim for defamation did not fall within the purview of a personal injury tort); In re Atron Inc. of Michigan, 172 B.R. 541, 545 (Bankr.W.D.Mich.1994) (finding that a wrongful discharge claim is not a personal injury tort within the scope of § 157). Second, some court have taken a more expansive view of the term to include any injury that invades a personal right. Thomas v. Adams (In re Gary Brew Enterprises, Ltd.), 198 B.R. 616, 620 (Bankr. S.D.Cal.1996) (finding that the scope of "personal injury tort" in § 157 encompasses civil rights actions). The third approach adopts a more moderate view that looks to whether the complaint falls within the purview of a personal injury tort under the expansive view, but retains bankruptcy court jurisdiction over the claim if it has the "earmarks of a financial, business or property tort claim, or a contract claim." Stranz v. Ice Cream Liquidation, Inc. (In re Ice Cream Liquidation, Inc.), 281 B.R. 154,161 (Bankr.D.Conn.2002).
The legislative history to 11 U.S.C. § 157(b)(5) is not particularly enlightening. Representative Kastenmeier, however, stated that it was only a "narrow category of cases" to which § 157(b)(5) would apply. 98th Cong.2d Sess. 130 Cong. Rec. H 7471 (June 29, 1984). Indeed, the bankruptcy court retains jurisdiction over many different types of tort claims, such as determinations of fraud or wilful and malicious injury under 11 U.S.C. § 523(a). To eliminate the risk that financial, business, or property tort claims could escape the jurisdiction of the bankruptcy court, the court specifically rejects an overly expansive view of what constitutes a "personal injury tort."
Regarding the remaining two prevalent interpretations of "personal injury tort," neither interpretation helps the Debtor. No allegation exists in the complaint that the Debtor suffered a specific bodily injury. The complaint only contains one count for negligence. The alleged facts supporting that cause of action include: (1) First Citizens's giving of financial advice upon which the Debtor detrimentally relied; (2) First Citizens's approval of loans based on the value of the underlying collateral and not the Debtor's (or his business entities') ability to repay those loans; (3) making unauthorized withdraws from his checking account; and (4) inducing the Debtor to deal with the WVEDA, which resulted in his bankruptcy filings. According to the Debtor's complaint, the Defendants' actions resulted in his "humiliation, embarrassment and emotional distress." No stand alone cause of action was alleged for intentional infliction of emotional distress. Viewing the Debtor's complaint as a whole, the Debtor's cause of action is more akin to a financial, business, or property tort claim than a personal injury tort claim. *200 The Defendants are not ones that have entered an involuntary association with the Debtor as is the case in more traditional personal injury tort claims such as automobile accidents. See In re Poole Funeral Chapel, Inc., 63 B.R. 527, 530 (Bankr. N.D.Ala.1986) (distinguishing between voluntary and involuntary associations). In this court's view, the allegations in the complaint simply do not fall within the exception to bankruptcy court jurisdiction in § 157(b)(5).
B. Core and Non-Core Proceedings
Concluding that the bankruptcy court has jurisdiction to adjudicate the Debtor's cause of action against First Citizens, the court must make the further determination of whether the cause of action is "core" or "non-core."
Section 157 of title 28 distinguishes between those proceedings that are "core" and "non-core." Section 157(b)(2) contains a non-exclusive list of proceedings that are "core." In general terms, "core proceedings depend on the Bankruptcy Code for their existence and are those matters that either `arise in' or `arise under' the Bankruptcy Code." Mich. Empl. Sec. Comm'n v. Wolverine Radio Co. (In re Wolverine Radio Co.), 930 F.2d 1132, 1144 (6th Cir.1991). Controversies "arise in" the bankruptcy when they "have no existence outside of the bankruptcy." United States Trustee v. Gryphon at the Stone Mansion, Inc., 166 F.3d 552, 555 (3d Cir.1999). Claims "arise under" the Bankruptcy Code if the claims "clearly invoke substantive rights created by bankruptcy law." Glinka v. Murad (In re Housecraft Indus. USA, Inc.), 310 F.3d 64, 70 (2d Cir.2002). In both types of cases, the bankruptcy court may make final determinations of fact and conclusions of law. 28 U.S.C. § 157(b)(1).
"Non-core" matters are those which may otherwise be brought in a different forum, but which are "related to" a bankruptcy case. Dunmore v. United States, 358 F.3d 1107, 1114-5 (9th Cir. 2004). In "non-core" cases, the bankruptcy court submits proposed findings of fact and conclusions of law to the district court, and "any final order of judgment shall be entered by the district judge...." 28 U.S.C. § 157(c)(1). By the consent of the parties, the bankruptcy court may make final determinations of fact and conclusions of law in "non-core" matters. § 157(c)(2).
In Valley Historic Ltd. P'ship v. Bank of N.Y., 486 F.3d 831, 836 (4th Cir. 2007), the Fourth Circuit adopted the same test for determining "related to" jurisdiction that was adopted by the Third Circuit in Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3rd Cir.1984). Under Pacor, "`the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy.'" Valley Historic Ltd. P'ship, 486 F.3d at 836 (citations omitted). Accordingly, "`[a]n action is related to bankruptcy if the outcome could alter the debtor's rights, liabilities, options or freedom of action (either positively or negatively) and [it] in any way impacts upon the handling and administration of the bankruptcy estate.'" Id. (citation omitted). As stated by the Supreme Court, "[proceedings `related to' the bankruptcy include (1) causes of action owned by the debtor which become property of the estate pursuant to 11 U.S.C. § 541, and (2) suits between third parties which have an effect on the bankruptcy estate." Celotex Corp. v. Edwards, 514 U.S. 300, 308, n. 5, 115 S. Ct. 1493, 131 L. Ed. 2d 403 (1995).
Here, the Debtor's complaint asserts claims based on prepetition events *201 grounded in state law. The Debtor contends that the Defendants loaned him funds based on the value of the collateral securing the loan instead of his ability to repay the obligations and gave him financial advice upon which he detrimentally relied. He accuses First Citizens of making pre-petition, unauthorized withdraws from his checking account, and inducing the Debtor to deal with the WVEDA, which ultimately resulted in his decision to file bankruptcy. Each of these allegations is based on pre-petition activity, and, therefore, could not have "arisen within" the Debtor's bankruptcy case. See Valley Historic Ltd. P'ship, 486 F.3d at 836 ("It seems self-evident that a claim, like the Debtor's breach of contract claim, that predates the filing of the Chapter 11 case cannot be said to have arisen within that case, and whether it caused the bankruptcy is immaterial."). The Debtor's claims against the Defendants would have each existed absent the bankruptcy, and, therefore, do not "arise under" the Bankruptcy Code. Id. ("[T]he Debtor's breach of contract claim and tortious interference claim would have existence outside of the bankruptcy...."). Because the Debtor's complaint neither "arises in" nor "arises under" the Bankruptcy Code, it is not a traditional "core" matter. Absent consent of the parties, the court will not issue final orders and judgments.
Both parties agree that the cause of action asserted in the Debtor's complaint arose pre-petition, and that the cause of action is property of the Debtor's bankruptcy estate. 11 U.S.C. § 541(a) (stating that all legal and equitable interest of the debtor in property as of the commencement of the case is property of the estate); Polis v. Getaways, Inc. (In re Polis), 217 F.3d 899, 902 (7th Cir.2000) ("Legal claims are assets whether or not they are assignable, especially when they are claims for money...."). Any recovery on the cause of action will benefit the Debtor's creditors by increasing the amount available for distribution. Matters which will affect the amount of property available for distribution or the allocation of property among creditors are "related to" the bankruptcy. In re Xonics, Inc., 813 F.2d 127, 131 (7th Cir.1987); see also Trustee for the Estate of O'Sullivan's Fuel Oil Co., Inc. v. The Connecticut National Bank (In re Germain), 988 F.2d 1323, 1327 (2nd Cir.1993) (lender liability action is a non-core, "related to" proceeding where it only serves to augment the estate but has no impact on the allowance of a creditor's claim); Broadway Ownership Associates v. Banque Nationale de Paris (In re 1567 Broadway Ownership Associates), 97 Civ. 2089(RWS), 1997 U.S. Dist. LEXIS 14357 at *15-16, 1997 WL 582829 at *5-6 (S.D.N.Y. September 19, 1997) (same).
Because the Debtor's claims are "related to" the Debtor's bankruptcy case, and because no party has articulated any other reason as to why the court should treat the Debtor's allegations as a "core" proceedings, the court finds that this proceeding is "non-core," and, absent consent of the parties, the court will only enter proposed findings of facts and conclusions of law for the district court.
C. Standing
Both the Debtor and the Defendants agree that the cause of action is property of the estate pursuant to 11 U.S.C. § 541(a). So long as the cause of action is property of the estate, only the Debtor's Chapter 7 trustee has standing to pursue it. The court will give the Debtor 30 days to add his Chapter 7 trustee as a party defendant, or else the case will be dismissed.
*202 III. CONCLUSION
Based on the foregoing, the court has jurisdiction to consider the cause of action asserted by the Debtor; however, because it is a non-core matter, unless the parties consent to entry of final orders and judgments by the bankruptcy court, the court will submit proposed findings of fact and conclusions of law to the District Court for review.
The court will enter a separate order pursuant to Fed. R. Bankr.P. 9021. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/485026/ | 814 F.2d 544
38 Ed. Law Rep. 132
Nancy K. WOOD, Appellant,v.NATIONAL COMPUTER SYSTEMS, INC., Appellee.
No. 86-2316.
United States Court of Appeals,Eighth Circuit.
Submitted Feb. 26, 1987.Decided March 24, 1987.
Charles Karr, Fort Smith, Ark., for appellant.
Elizabeth J. Robben, Little Rock, Ark., for appellee.
Before ROSS, ARNOLD, and MAGILL, Circuit Judges.
ARNOLD, Circuit Judge.
1
This is a tort case arising under the law of Arkansas. It involves a teacher-testing program required by state law, Acts 350 and 695 of 1985, now codified as Ark.Stat.Ann. Sec. 80-1270 et seq. Under this program, known as the Certified Personnel Testing Program, all "certified personnel [the term includes teachers and administrators] ... shall undergo testing of their functional academic skills, including, but not limited to, reading, writing and mathematics." Teachers are required to pass the test in order to retain their certification. See Ark.Stat.Ann. Sec. 80-1270.1.
2
The plaintiff, Nancy K. Wood, an elementary-school teacher in Fort Smith, Arkansas, took the test on September 21, 1985. Defendant National Computer Systems, Inc., agreed to print the test, score the objective portion of it, and return all of the scores to the Arkansas State Board of Education and to the individual teachers and administrators who had taken the test. On Friday, December 6, 1985, plaintiff, in common with many other teachers and administrators across the state, received an envelope containing someone else's score report. On Tuesday, December 10, plaintiff received her own score report and learned that she had not only passed but done well on the test. She returned the score that she had erroneously received, the other teacher's score, to the defendant. Two days later, she brought this suit, claiming negligence, violation of statute, invasion of privacy, and outrageous conduct resulting in extreme emotional distress.
3
The District Court1 entered summary judgment for defendant, and plaintiff appeals. The opinion of the District Court, which is reported at 643 F. Supp. 1093 (W.D.Ark.1986), is complete, detailed, and well expressed, and we have little to add to it. A few observations will suffice to explain why we are affirming this judgment.
4
1. The law of Arkansas allows recovery for emotional distress under some limited circumstances. The landmark opinion is M.B.M. Company v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). Recovery is allowed only if the defendant is guilty of "extreme and outrageous conduct," by which is meant "conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." 268 Ark. at 280, 596 S.W.2d at 687. The Supreme Court of Arkansas has adopted this standard from section 46, comment d of the Restatement (Second) of Torts (1977). In the present case, as the District Court observed, defendant's conduct, even when viewed in the light most favorable to plaintiff, does not begin to meet this standard. Defendant was certainly negligent, possibly even grossly negligent, but this kind of error, particularly when dealing with large numbers of people, is unfortunately more common than it should be, and cannot reasonably be characterized as atrocious or exceeding all possible bounds of decency.
5
2. As to invasion of privacy, the simple disclosure of private information to one other person, which is all that plaintiff could possibly prove here, is not sufficient to state a claim. According to section 652D of the Restatement (Second) of Torts (1977), followed in Dunlap v. McCarty, 284 Ark. 5, 9, 678 S.W.2d 361, 364 (1984), public disclosure of private facts is actionable if it involves "publicity of a highly objectionable kind, given to private information about the plaintiff...." Here, there was no "publicity," properly so called, but only disclosure to a single other person. In addition, the disclosure of private information was not of a highly objectionable kind. One other person, presumably another teacher, found out that plaintiff, whom in all likelihood he or she had never heard of, had done well on the test. There is nothing highly objectionable about that.
6
3. As to simple negligence, the Supreme Court of Arkansas has never recognized a cause of action for the merely negligent infliction of emotional distress, absent some accompanying physical injury. If such a claim were to be recognized, the careful delineation of the claim for outrageous conduct in M.B.M. Company, supra, would be for no purpose whatever. We do not believe that the Supreme Court of Arkansas would take this step, and, therefore, we shall not take it. Our task in this case, which is governed by the substantive law of the State, is to apply the law as we believe the Supreme Court of Arkansas would determine it.
7
4. Plaintiff also claims a right of action based on violation of a statute. Ark.Stat.Ann. Sec. 80-1270.4 (Supp.1985), part of the teacher-testing law enacted in 1985, provides as follows:
8
Scores from the tests required under the provisions of this Act shall be kept by the State Board of Education and shall not be open to or made available to the public under the Freedom of Information Act (Act 93 of 1967 [Secs. 12-2801-12-2807], as amended) or any other law but shall be kept confidential by the Board except that the Board shall mail the individual test score and the grader's analysis of the writing portion of the test to the teacher at the address provided by the teacher. The State Board of Education shall compile and furnish to the Governor and to the Joint Interim Committee on Education a report indicating the results of the tests on a statewide basis, but not identifying individuals or individual school districts.
9
We do not believe that the facts of this case, viewed in the light most favorable to the plaintiff, make out a private right of action for damages for violation of this statute. In the first place, the plaintiff's score has not been made open to the public, nor has it been made available to the public under the Freedom of Information Act. This provision, of course, was intended to prohibit large-scale public access to test scores, perhaps including their publication by the media. That is not at all what has happened here. It is arguable that the further requirement of the statute, if indeed it is a further requirement, and not simply a rephrasing of the prohibition on general publicity just referred to, has been violated here, because plaintiff's score has not, strictly speaking, been kept confidential. We further assume, without deciding, that the defendant here, which is in the position of an independent contractor, would be subject to the same strictures as the State Board of Education, the only entity specifically named in this statute. Still, there is no indication in the statute that a private right of action for damages was being created, allowing recovery simply on a showing of a breach of confidentiality involving one other person. Such a departure from the common law, we think, would have been clearly stated, or at least not left completely to implication, if the General Assembly had intended it.
10
We can understand the plaintiff's irritation and dismay upon receiving someone else's score. She had to wait four additional days before discovering that she had passed. Without doubt, this delay caused anxiety and distress. We do not wish to be understood as condoning the defendant's negligence, but we believe the District Court was clearly correct in holding that the facts of this case do not rise to the rather high level required for tort recovery by Arkansas law.
11
Affirmed.
1
The Hon. H. Franklin Waters, Chief Judge, United States District Court for the Western District of Arkansas | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2266884/ | 4 F. Supp. 525 (1933)
CROWN CORK & SEAL CO., Inc.,
v.
UNITED STATES.
No. 3071.
District Court, E. D. New York
August 17, 1933.
James O. Wynn, Jr., of New York City (Robert H. Montgomery, of Washington, D. C., and Thomas N. Tarleau, of New York City, of counsel), for plaintiff.
Howard W. Ameli, U. S. Atty., of Brooklyn, N. Y. (Albert D. Smith, Asst. U. S. Atty., of Brooklyn, N. Y., and C. M. Charest, Gen. Counsel, Bureau of Internal Revenue, and Frederick W. Dewart, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., of counsel), for the United States.
*526 MOSCOWITZ, District Judge.
This is a suit for the recovery of income and excess profits taxes for the calendar year 1921 and interest paid thereon aggregating $16,092.53. The plaintiff is the successor of the New Process Cork Company, Inc., which commenced this action. It has been stipulated that the plaintiff has acquired the right to any refund of any tax or assessment herein. The plaintiff will be referred to herein as the taxpayer. The facts briefly are as follows:
The taxpayer kept its book and made its return for the calendar year 1921 upon the accrual basis.
On October 21, 1919, the taxpayer entered into a contract with the firm of Mir, Codina & Marques by which the taxpayer agreed to purchase 500 tons of cork waste. Subsequently the taxpayer breached the contract, and on April 19, 1921, an action was brought against it for the breach thereof in which damages were sought in the sum of $100,000.
The taxpayer filed an answer to the suit denying all the material allegations of the complaint and set up four affirmative defenses. In June, 1921, the attorneys for the respective parties attempted to settle the matter. On August 2, 1921, the taxpayer authorized its counsel to attempt to settle the case for $9,400. On March 14, 1922, a settlement for $27,500 was agreed to and was immediately carried out.
In April, 1922, the taxpayer's counsel presented their bill for $1,500 for their services and $9.81 for expenses paid. This bill was paid on May 15, 1922. It appears that prior to March 14, 1922, an entry was made in the books of the taxpayer of $1,000 as "Reserve for legal fees in Mir Codina suit."
It further appears that on December 31, 1921, an entry was made in the taxpayer's books of, "Legal Expenses Reserve for Mir Codina suit, $10,000.00."
During 1922 and before March 14 the following entries were made: "Reserve for Lawsuit Mir Codina $2,500.00. To increase the above reserve to equal settlement made in Mir Codina suit," and "To Reserve for Lawsuits Mir Codina $15,000.00. To set up provision for claim of Mir Codina Co. vs. New Process Cork Co."
On July 22, 1925, the Commissioner of Internal Revenue notified the taxpayer of a proposed additional assessment of income and excess profits taxes for the year 1921 amounting to $15,086.78 due in part to the disallowance as deductions of the reserves aggregating $28,500, which had been deducted from the gross income in the final return. The taxpayer appealed to the Board of Tax Appeals, who sustained the Commissioner's finding that the loss was not sustained in 1921. The taxpayer thereupon paid the tax and now seeks to recover the taxes paid as the result of the disallowance of these items as losses in the computation of the tax for 1921.
The statutes involved are as follows:
Revenue Act of 1921.
"Sec. 234. (a) That in computing the net income of a corporation subject to the tax imposed by section 230 there shall be allowed as deductions:
"(1) All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business. * * *
"(4) Losses sustained during the taxable year and not compensated for by insurance or otherwise; unless, in order to clearly reflect the income, the loss should in the opinion of the Commissioner be accounted for as of a different period. * * *"
"Sec. 212. * * * (b) The net income shall be computed upon the basis of the taxpayer's annual accounting period (fiscal year or calendar year, as the case may be) in accordance with the method of accounting regularly employed in keeping the books of such taxpayer; but if no such method of accounting has been so employed, or if the method employed does not clearly reflect the income, the computation shall be made upon such basis and in such manner as in the opinion of the Commissioner does clearly reflect the income. If the taxpayer's annual accounting period is other than a fiscal year as defined in section 200 or if the taxpayer has no annual accounting period or does not keep books, the net income shall be computed on the basis of the calendar year." 42 Stat. 237, 254.
The rule is that, when the liability is contingent, or when the amount of the liability is unknowable by December 31st of any year, it cannot accrue in that year. In Uncasville Mfg. Co. v. Commissioner, 55 F.(2d) 893, 895, the Circuit Court of Appeals for this Circuit said: "All the facts upon which the calculation depended had been fixed before the expiration of the year 1918. Differences could arise, and did, as to the amount of the company's income for that year, but they were due to the proper appraisal of its property, and possible disputes *527 as to the meaning of the law. The computation was uncertain, but its basis was unchangeable; it was unknown, not unknowable on December 31, 1918. That is the test. * * *"
In the case at hand the liability was contingent. The answer filed in the suit against the taxpayer denied every allegation of the complaint and set up four affirmative defenses, any one of which was sufficient to defeat the action. The taxpayer denied liability at all times. In its letter of July 28, 1921, suggesting settlement, the suggestion was made without prejudice to the taxpayer's legal rights so that, until the suit was tried or until a settlement was effected, it was not known if there was any liability and, of course, the amount of liability was unknown. The suit was for $100,000. Settlement was made for $27,500. The amount which would have to be paid was not ascertained, and was not ascertainable until March 14, 1922. During 1921 the liability was not only unknown, but, as was said in the Uncasville Case, supra, was unknowable until March 14, 1922.
While the facts determining the liability had occurred in the year of the breach, the amount to be recovered, if there was legal liability, depended in a large part on the course of future events. The liability of the taxpayer was dependent on the outcome of future litigations and negotiations for compromise settlements, and was therefore contingent. The right to a deduction only obtains after liability has been fixed and during the year in which it so becomes fixed and not in a year in which it is prospective, speculative, or contingent.
With regard to the attorney's fees herein, it appears that the fees were for one service, as the bill dated April 21, 1922, shows. There was no arrangement or contract with regard to the fee, the services were for the entire case and were not divided and were not divisible. The taxpayer did not have any knowledge or information during 1921 nor until it received the bill on April 21, 1922, as to what the charge would be. As the Board of Tax Appeals said: "The item of $1,000 sought to be deducted as a legal fee is clearly not deductible. The mere fact that services had been performed does not establish an accrual of an amount erroneously estimated to be the probable compensation which would be payable therefor." New Process Cork Co., 3 B. T. A. 1339, 1342.
The losses sought to be deducted by the taxpayer in its return for the year 1921 were sustained during 1922. The defendant is therefore entitled to judgment. Settle findings and judgment on notice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266846/ | 10 Md. App. 258 (1970)
269 A.2d 193
JAMES ARTHUR McDONALD, JR.
v.
STATE OF MARYLAND.
No. 572, September Term, 1969.
Court of Special Appeals of Maryland.
Decided October 5, 1970.
The cause was argued before MURPHY, C.J., and ORTH and THOMPSON, JJ.
Jack E. Richards for appellant.
H. Edgar Lentz, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State's Attorney for Baltimore City, and Joseph G. Koutz, Assistant State's Attorney for Baltimore City, on the brief, for appellee.
ORTH, J., delivered the opinion of the Court.
We reaffirm the rule established in this jurisdiction that a confession voluntarily given by an accused in custody *260 is not rendered inadmissible by an illegal arrest.[1] See Stewart v. State, 232 Md. 318; Nadolski v. State, 1 Md. App. 304. The "fruit" of an illegal arrest refers to tangible evidence seized; a confession or admission is not a "fruit" of the arrest in this context. Butina v. State, 4 Md. App. 312; Ervin v. State, 4 Md. App. 42. James Arthur McDonald, Jr. (appellant) does not claim that his confession was obtained in violation of the procedural requirements mandated by Miranda v. Arizona, 384 U.S. 436 or that it was not voluntary in the traditional sense. His attack on its admission is only on the ground that it was obtained after an arrest of him which he contends was illegal. He cites no authority that a confession which is the product of an illegal arrest is per se to be excluded and we find none which compel us to so hold. We are aware that the Supreme Court in Davis v. Mississippi, 394 U.S. 721, decided 22 April 1969, held that fingerprints obtained from the accused should have been excluded from evidence as the product of a detention which was illegal under the Fourth and Fourteenth Amendments.[2] But if the "comprehensive rule" of Mapp v. Ohio, 367 U.S. 643, 655 stated in Davis, considered in conjunction with the language of Bynum v. United States, 104 U.S. App. D.C. 368, 370, 262 F.2d 465, 467 (1958), quoted in Davis, be construed as a finding that a confession obtained after an illegal arrest was encompassed within the Davis ambit, the Court shortly made known that it had not so decided. In Morales v. New York, 90 S.Ct. 291 (1969), the Court said, at 293:
"In any event, in the absence of a record which squarely and necessarily presents the issue and fully illuminates the factual context in which the question arises, we choose not to *261 grapple with the question of the legality of custodial questioning on less than probable cause for a full-fledged arrest."
Until the Supreme Court chooses to grapple with the question and resolves it, we shall abide with the rule as followed in this jurisdiction. We find that even if appellant's arrest was illegal, that fact alone would be no ground to exclude the confession obtained from him. We hold that the lower court did not err in admitting the confession.
To all practical purpose this holding disposes of the other contentions presented.
The Sufficiency of the Evidence
Appellant contends that the evidence was not sufficient to sustain his convictions at a court trial in the Criminal Court of Baltimore of attempting to rob Charles Finkelstein with a deadly weapon and of assaulting him with intent to murder.
Finkelstein, an owner of a tavern, testified that about 10:30 A.M. on 28 July 1969 he was standing behind the bar talking to a salesman. He had his head down thinking what he should order. "And when I raised my eyes I looked in front of my face and was a gun and two guys standing on the other side of the bar." One of the men said, "Don't move. It's a holdup." Finkelstein said the man directly in front of him had the gun. "He kept his hand straight down on the bar with the barrel on me * * * the barrel was pointed at my stomach." Finkelstein moved behind the cash register, the robber fired, hitting Finkelstein in the arm, and when Finkelstein started to ask for help the robber fired again, the bullet missing Finkelstein and entering the wall. The robbers fled. This testimony was sufficient to establish the corpus delicti of the crimes. See Wiggins v. State, 8 Md. App. 598; Wells v. State, 8 Md. App. 510; Harding v. State, 5 Md. App. 230. In the confession given by appellant to the police he said that Jerome R. Lyles, known to him as Romy, suggested they "stick up the tavern" and he agreed. He walked into the tavern about 10 feet ahead of Lyles *262 and Lyles pulled a pistol out of his belt. This part of the confession, together with Finkelstein's testimony, was sufficient for the court to find that appellant was a criminal agent in the crimes. See Johnson v. State, 9 Md. App. 37. We hold that the evidence in law was sufficient to sustain the convictions. Williams v. State, 5 Md. App. 450.
The Testimony of the Accomplice
Appellant claims he was convicted on the uncorroborated testimony of the accomplice, Lyles, who was indicted jointly with him but separately tried. The rule that an accused may not be convicted on the testimony of an accomplice, alone and unsupported, see Boone v. State, 3 Md. App. 11, 16-20, is simply not applicable here. Lyles did not testify on the general issue. He was not called by the State and when called by appellant he invoked the right against self-incrimination guaranteed by the 5th Amendment. However, during the State's case it adduced evidence through the testimony of two police officers that upon Lyles apprehension he gave a statement "implicating" appellant. Appellant claims that it was this "out-of-court testimony" of Lyles which convicted him. As we have seen there was sufficient evidence for the trier of fact to find that appellant was guilty of the crimes charged without regard to any statement or testimony of Lyles. In any event there is no doubt from the record that the testimony of the officers regarding the "implication" of appellant by Lyles was proffered by the State and received by the court only on the issue of probable cause for appellant's arrest and not on the question of his guilt or innocence. We said in Winebrenner v. State, 6 Md. App. 440, at 443:
"We emphasize that on the issues of probable cause and the lawfulness of arrest and of the admissibility of evidence obtained through any search made in connection with the arrest, information upon which the police officer acted, even if hearsay, is directly relevant and is admissible." *263 But as presented on appeal, the question of the legality of the arrest goes only to the admission of the confession. We have held that the confession was admissible whether or not the arrest was legal and as there is no claim that tangible evidence obtained as "fruits" of the arrest were improperly received in evidence, the question of the legality of the arrest is immaterial. Wayne v. State, 8 Md. App. 5; Hutchinson v. State, 1 Md. App. 362. As the question of the legality of the arrest is immaterial, any question as to the admission of evidence going only to the question of the legality of the arrest is also immaterial. If the evidence regarding Lyles' statement was admitted in error, the error was patently harmless even under the constitutional test. We find no merit in appellant's contention that he was convicted upon the uncorroborated testimony of an accomplice.
The Right of Confrontation
Appellant claims that he was "denied his constitutional right to confront and cross-examine a witness that gave testimony against him." At the close of evidence offered by the State, after motion for judgment of acquittal had been made and denied, appellant called Lyles as a witness on his behalf. After a recess to enable Lyles' attorney to be present in court, Lyles was called to the stand and sworn. He then said, "I refuse to testify. I take the fifth." The court elicited that Lyles had discussed the matter with his attorney and said, "Under the circumstances, the court is not going to compel him to testify. * * * [T]he court cannot compel him to testify. He is a defendant in his own case." Defense counsel said, "Very well", and the matter was not further pursued, appellant proceeding to present his case. The proper procedure to be followed in invoking the privilege against self-incrimination was set out in Royal v. State, 236 Md. 443 at 447:
"The proper course of procedure is for the witness to wait until a question has been propounded which tends to incriminate him and then decline to answer it. Likewise, if further interrogation *264 is pressed as is often the case, the witness should answer the questions, one by one when propounded, or claim his privilege to decline answering; otherwise, since it cannot be known beforehand which he will do, the court would be unable to rule whether an answer to the particular question might incriminate the witness. This, of course, is a matter for the trial judge to determine as and when each claim of privilege is invoked."
Appellant did not protest the procedure followed below nor does he question it on appeal. He alleges that Lyles was a compellable witness because "he was not on trial as a defendant." However, it appeared that there had been no disposition of the charges against Lyles. Appellant had a right to examine his own witness and therefore had standing to object if denied the right. Poling v. State, 6 Md. App. 45, 48. But he asked no question of Lyles so the court could pass on whether the witness could be compelled to respond. We construe the comments of the lower court as indicating it would not compel the witness to answer any question to which the privilege applied and this would be proper. But appellant asked no questions of the witness and there are no rulings of the court thereon for us to review. Since there were no questions propounded and suppressed we are unable to say that the privilege was erroneously held applicable. See Poling v. State, supra, at 48; Pope v. State, 7 Md. App. 533.
It seems from appellant's argument in his brief that the basis of his complaint on this point is that he was unable to interrogate Lyles about the statement the police officers said he gave implicating appellant. But, as we have seen, the evidence with respect to Lyles' statement to the police was admitted only as to the legality of appellant's arrest. And as the legality vel non of the arrest was immaterial in the circumstances, that appellant did not have the opportunity to examine Lyles in open court on the matter did not prejudice him in any event.
Judgments affirmed.
NOTES
[1] Nor does the illegal arrest affect the jurisdiction of the court, provide a ground for dismissing an indictment or preclude trial and conviction for an offense. Hammond and Couser v. State, 7 Md. App. 588.
[2] The Court left open whether "the requirements of the Fourth Amendment could be met by narrowly circumscribed procedures for obtaining, during the course of a criminal investigation, the fingerprints of individuals for whom there is no probable cause to arrest." 394 U.S. at 728. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266862/ | 259 Md. 390 (1970)
269 A.2d 837
STACY
v.
BURKE, EXECUTOR UNDER THE WILL OF ERLE EDWARDS STACY
[No. 55, September Term, 1970.]
Court of Appeals of Maryland.
Decided October 22, 1970.
Motion for rehearing filed November 12, 1970.
Denied and opinion modified November 16, 1970.
*391 The cause was argued before HAMMOND, C.J., and BARNES, McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.
Robert A. Wallace, with whom was George L. Quinn, Jr., on the brief, for appellant.
James T. Barbour for appellee.
BARNES, J., delivered the opinion of the Court.
The two principal questions in this appeal are whether the Circuit Court for Montgomery County (Shook, J.) in a suit by a decedent's executor to declare a constructive trust on certain property of the decedent in the hands of the appellant erred (1) in declining to admit two documents signed by the decedent in regard to alleged gifts of the property and (2) in withdrawing its original order ruling for the defendant and entering a second order ruling for the plaintiff, executor, after the plaintiff (appellee) had already filed an appeal to this Court from the initial order.
The basic facts are substantially undisputed. Erle Edwards Stacy, the decedent (Uncle Erle) died on January 23, 1969, at the age of 88 in a nursing home in Wheaton, Maryland. He was a widower at the time of his death. He had no children. His only surviving heirs were a brother and the children of a deceased brother Arthur Stacy. The appellant, Erle M. Stacy (Nephew Erle), who was the defendant below, was one of the children of the *392 deceased brother Arthur and was named for his Uncle Erle.
Uncle Erle was an educated person who had graduated from William and Mary College in 1901. He became a professor of mathematics at William and Mary College and at the University of Texas.
There was a close business relationship between Uncle Erle and his brother Arthur. Uncle Erle had founded a plumbing, heating and roofing contracting business in Washington, D.C. in 1907. He operated it himself until 1921 when his brother Arthur joined him as a partner. Together they operated the business until 1932 when Arthur bought out his brother's interest in the business. Uncle Erle, however, never lost interest in the business; and whenever Nephew Erle, who was employed in the business, visited his Uncle Erle, he always inquired about collections and other relevant business matters. After Nephew Erle acquired and operated the business, Uncle Erle's interest in it continued. The relationship between Uncle Erle and his Nephew Erle was a close one and Uncle Erle was interested in his nephew's progress and welfare.
Uncle Erle's wife, Bertha, died on January 4, 1967, leaving him alone in their home in Arlington, Virginia. Nephew Erle obtained a housekeeper for his uncle; but after four months, Uncle Erle desired to move to Maryland and thereafter did move to Montgomery County to a nursing home where he could be close to Nephew Erle and his family as well as to his brother William. The Arlington house was closed and remained vacant for approximately one year.
Thomas F. Burke was a co-executor and a co-trustee with his Uncle Erle under Bertha's will. Shortly after Bertha's death on January 4, 1967, Thomas F. Burke, who had represented Uncle Erle from time to time, met Uncle Erle and Nephew Erle at the Riggs National Bank in Washington, D.C., where Uncle Erle and his wife had their bank accounts, and assisted in obtaining a power of attorney for Nephew Erle so that he could draw funds from Uncle Erle's account to pay bills. On February 22, *393 1967, Uncle Erle executed a general power of attorney with broad powers. This general power of attorney was duly witnessed by a notary public who took Uncle Erle's acknowledgement of the power of attorney.
On April 5, 1967, when Uncle Erle moved to Montgomery County, he signed a letter offered in evidence by Nephew Erle, but not admitted into evidence by the trial court. The letter read as follows:
"April 5, 1967
"Dear Erle:
"Along the lines of our previous discussion, please place the proceeds from the sale of my home in Arlington in one or more joint savings accounts, using my name and yours.
"I intend that you have full ownership of these funds should I predecease you and that they shall not in any way be considered as a part of my estate.
"I truly appreciate all of the time and effort you are devoting to help get my affairs in order.
"Affectionately yours,
/s/ Uncle Erle
/s/ Erle E. Stacy"
After the Arlington house was sold but prior to the settlement and distribution of the proceeds of sale, Uncle Erle, on December 6, 1967, signed a document which read as follows:
"December 6, 1967
"TO WHOM IT MAY CONCERN:
"I have asked my nephew, Erle M. Stacy, to write these instructions for my signature so that he may act legally in conducting my business and financial affairs; while acting under the General Powers of Attorney I previously gave to him:
"1. In keeping with our prior understanding I have agreed that he should pay to himself forty *394 dollars ($40.00) per month for his services to me.
"2. I want the money from the sale of my Arlington house in his name alone. It is my wish that he have these funds.
"3. I have instructed him to purchase shares in the B.F. Saul Co. Investment Trust. The shares to be purchased from the proceeds from principal payments of first trust notes that I own. These shares are to be made out in our joint names, with the right of survivorship.
"4. These instructions have been discussed with my nephew and have been carefully read by me. Accordingly I sign my name.
/s/ Erle Edwards Stacy"
This document was offered in evidence by Nephew Erle but was not admitted by the lower court into evidence.
It was stipulated that the signatures of Uncle Erle on the letter of April 5, 1967, and the document of December 6, 1967, were genuine and written by Uncle Erle. The evidence indicates that Uncle Erle was mentally alert during all times relevant in the present case and there is no contention that he was mentally incompetent at such times.
Beginning December 7, 1967, Nephew Erle drew checks through September 10, 1968, on Uncle Erle's account in a total amount of $23,944.93 payable to B.F. Saul Company for the purchase of B.F. Saul Real Estate Investment Trust shares of stock registered in the joint names of Uncle Erle and Nephew Erle as joint tenants with the right of survivorship.
On March 15 and 20, 1968, Nephew Erle drew checks on Uncle Erle's account in a total amount of $25,480.00 which was deposited in the name of Nephew Erle alone or in the joint names of Nephew Erle and his wife Virginia. These funds were the proceeds from the sale of the Virginia house of Uncle Erle.
Two checks for $1,926.00 and for $2,000.00 were drawn *395 by Nephew Erle to A.A. Stacy & Son, Inc. on June 14, 1967, and August 22, 1968, respectively, as loans to that corporation. The $1,926.00 loan has been repaid by the corporation; the $2,000.00 loan was unpaid at the time of the hearing and was due and owing to the executor of Uncle Erle's estate. If the corporation has not paid the $2,000.00 to the executor when the mandate in this case is returned to the lower court upon the remand, the executor may proceed to collect this debt due the estate, and the mandate is without prejudice to such collection.
At the hearing before the lower court on October 16, 1969, in addition to Nephew Erle, his wife Virginia and Mr. Burke, the appellee, Nephew Erle's brother William and his mother Essie Mae Stacy, testified.
William confirmed the close and affectionate relationship between his Uncle Erle and his uncle's namesake, Nephew Erle. He testified in regard to the kind of a person his Uncle Erle was, as follows:
"He was a person of very strong English type tradition on family ties who considered himself to be the patriarch of the family upon the demise of his father, my grandfather, and the leader of the family and one who was very concerned with all the workings of the family, the social, religious and business and financial workings."
Nephew Erle's mother Essie Mae, testified, without objection, that she saw Uncle Erle several times a week when he was in a nursing home. In the latter part of January 1968 she had a conversation with him as follows:
"I don't know the date that was, just the last of January and we went out into the living room and talked for quite a while. And, as usual, he was asking about Erle M., my son, and then he got around to the subject of his house in Arlington. He mentioned he would be so glad when it was sold; that he didn't want the house standing *396 vacant. He said to me, I expect to give Erle the proceeds from the sale of the house in appreciation for what he's done for me. He also said that he, having been in the business himself for so long, realized that Erle had all he could do to managing his own business without the extra responsibility of taking care of his, Erle E's financial and personal affairs. In appreciation he was going to give Erle the proceeds from the sale of the house in Arlington."
Essie Mae saw Uncle Erle several times after January 1968 and had a conversation with him on June 6, 1968. She testified that he told her the same things he had told her before. The conversation continued as follows:
"He said also I have instructed him to take the money that has accumulated from the paid-up first trust notes that I have with B.F. Saul, the principal, my shares in the real estate mortgage investment fund of Saul Company, and I have also instructed him to use my name, Erle E. Stacy, and Erle M. Stacy's name as joint tenants with rights of survivorship and buy the certificates with it."
* * *
"As I said, the first conversation was in January, when we were sitting out in the living room or lobby and, as usual, he asked about Erle M., my son, and the business."
* * *
"Q. What did he say? A. He said, I know from experience Erle has all he can do to manage the plumbing and heating business and take care of himself. He said I feel very keenly how busy he is and I appreciate more than I can say his having enough interest in me to take care of my personal affairs and my financial affairs. He said I do appreciate it and he said I'm going *397 to give Erle the proceeds from the sale of the house.
"Q. Are you sure that is what he said, `I'm going to give Erle the proceeds of the house?' A. Yes, at that time. (Emphasis added)
"Q. Did you ever talk to him again about the proceeds from the house? A. Yes, sir.
"Q. When? A. The 6th of June 1968.
"Q. What did he say at that time? A. He said at that time, I have given Erle the proceeds from the sale of the house. (Emphasis added)
"Q. What else did he say? A. He said also I have authorized Erle to take the money from the notes which have been paid, the principal which has been paid and accumulated and buy shares in the B.F. Saul Real Estate Mortgage Investment Trust Company and also to sign my name, Erle E. Stacy, and Erle M. Stacy as joint tenants with right of survivorship.
"Q. What does that mean; do you know? A. Yes, I know. Whichever one survives the other the money goes to them. (Emphasis added)
"Q. The money? A. The shares.
"Q. How do you know that? A. Because I have had experienced it myself. I make investments with Saul Company.
"Q. Do you own shares? A. I own a few shares and so did my husband. The Stacy family has been doing business with Saul Company for the last forty years."
No copy of Uncle Erle's will was offered into evidence and no evidence was offered in regard to the amount of his estate. In the verified answer of Nephew Erle, it was recited that the Mt. Vernon Place Methodist Church had been made residuary legatee and Mr. Burke had been made executor, contrary to a prior will made some months before. It was stated at the argument, without contradiction, *398 that Uncle Erle's estate was valued at approximately $70,000.00 which did not include the gifts of $25,480.00 and $23,944.93 to Nephew Erle.
Legal memoranda were submitted by both parties and the lower court took the case under advisement. On December 23, 1969, the Chancellor filed an opinion and order dismissing the bill of complaint. Copies were mailed to counsel for the respective parties. In the opinion the Chancellor stated, inter alia:
"The testimony of Mrs. Essie Mae Stacy, mother of the defendant and sister-in-law of the decedent, was clear and convincing as to the voluntariness of the decedent's intention and the ultimate consummation of the gift some months later. Plaintiff has in no way controverted this evidence. It is noted, too, that these discussions between Mrs. Stacy and the decedent occurred in January and June 1968 and the period between the declaration of the decedent's intention to give the defendant the proceeds from the sale of the house and the date when he affirmed the action, certainly was sufficient for decedent to reflect adequately as to the wisdom of his deed."
After reviewing the applicable law, the Chancellor stated:
"Accordingly, this court is of the opinion that there could have been a confidential relationship between the decedent and defendant but that such relationship did not extend to the subject matter of the gift and further, that the defendant in no way breached any fiduciary responsibility by inducing or influencing his uncle to make the defendant a gift of the proceeds of the sale of decedent's home."
In regard to the gift of money to purchase the shares of B.F. Saul Investment Trust, and placing them in the *399 joint names of Uncle Erle and Nephew Erle with the right of survivorship, the Chancellor stated:
"The donative intent has previously been expressed in the testimony of Mrs. Stacy and need not be belabored further."
The Chancellor concluded that this was a "valid inter vivos gift" to Nephew Erle.
From the order of December 22, 1969 (filed December 23, 1969), dismissing the bill of complaint, the plaintiff below and appellee here, filed an appeal to this Court on January 6, 1970, and filed a supersedeas bond, duly approved, at the same time. Later in the day of January 6, after the appeal to this Court had been filed, the Chancellor, apparently sua sponte, ordered the reporter to furnish the testimony in the case and passed an order withdrawing the opinion and order filed on December 23, 1969.
Thereafter, on February 16, 1970, the Chancellor filed another opinion and decree in which the following was stated:
"It, therefore, follows that the burden of presenting clear and convincing proof that the funds of the decedent taken by the defendant were intended to be an inter vivos gift must be borne by Erle M. Stacy. Such burden of proof must be sufficient to overcome the presumption of the invalidity of the gift as between a fiduciary and principal. This, the defendant has not done. The only evidence to corroborate defendant's claim is that of Essie Mae Stacy, mother of the defendant. This evidence is unclear as to time of the making of the gift, uncertain as to the corpus of the gift and insufficient to prove the elements of a gift.
"This Court can only conclude that because of the lack of evidence to support the validity of the alleged gifts, they are, therefore, facially *400 void and such funds as enumerated herein rightfully belong to the estate of the decedent."
The Chancellor thereupon passed a decree that "the equitable relief prayed for by the plaintiff be and it is hereby granted."
From this decree, Nephew Erle, the defendant below and appellant here, took an appeal to this Court on March 10, 1970.
(1)
We will first consider the unusual posture in which the case reaches us. It will be observed that the appeal from the lower court's order of December 22, 1969, (filed December 23, 1969) has not been withdrawn or abandoned by the plaintiff and present appellee, Burke, Executor. He explains his reasons for this in his brief as follows:
"Because of uncertainty of the jurisdiction of the trial Court to withdraw, sua sponte, on January 6, 1970, its Opinion and Order of December 23, 1969, Appellee did not withdraw his Notice of Appeal filed on January 6, 1970. The second Opinion and Order was filed more than thirty days after the Opinion and Order of December 23, 1969. Conceivably, it might be held that the withdrawal of the Opinion and Order of December 23, 1969 was beyond the power of the trial Court to do so and a withdrawal of the Appellee's Notice of Appeal might have resulted in the Opinion and Order of December 23, 1969 becoming the law of the case and dispositive of the rights of the Appellee. To be certain, therefore, that the rights of the Appellee were protected, the Notice of Appeal from the Opinion and Order of December 23, 1969, filed on January 6, 1970, was allowed to remain on the docket. Appellee is in full agreement with the conclusions of the Opinion and Order of February 17, 1970, and it is the contention of the Appellee that the Order filed on the last mentioned *401 date correctly disposes of the issues in this case, although it may be necessary to supplement the same in order to carry it into effect."[1]
We are not unmindful of the dilemma in which the appellee found himself, but the law is well settled that ordinarily, the trial court's jurisdiction is ended upon the filing of an appeal to this Court.
In a case involving the filing of a second motion for a new trial after an appeal had been entered from the judgment in a tort case, Judge Horney, for the Court, in Vancherie v. Siperly, 243 Md. 366, 375, 221 A.2d 356, 361 (1966) aptly stated:
"* * * an appeal having been entered, the lower court lacked jurisdiction to take any further action in the case with respect to the subject matter of the appeal until the receipt of the mandate from this Court after the appeal had been heard and decided. This is so because the perfection of the appeal brought the subject matter of the appeal within the exclusive jurisdiction of this Court and suspended the authority of the lower court over it during the pendency of the *402 appeal. See State v. Jacobs, 242 Md. 538, 219 A.2d 836 (1966); Gilliam v. Moog Industries, 239 Md. 107, 210 A.2d 390 (1965); Bullock v. Director, 231 Md. 629, 190 A.2d 789 (1963). The defendant could, of course, have dismissed the appeal and moved for a revision of the judgment pursuant to Rule 625."
See also Tiller v. Elfenbein, 205 Md. 14, 19, 21, 106 A.2d 42, 44, 45 (1954) in which Judge (later Chief Judge) Henderson carefully reviewed the prior Maryland cases. This was an appeal in a tort case involving a motion for a reargument filed within 30 days after the entry of judgment but after an appeal to this Court had already been entered. The appeal, however, was dismissed before the hearing on the motion. The Court stated:
"Ordinarily, the trial court's jurisdiction is ended upon the filing of an appeal."
* * *
"We hold that, unless the appeal is dismissed when the motion comes on for hearing, the appellant must elect between his motion and his appeal. If the appeal is dismissed before the hearing, as in the instant case, the motion stands for hearing as though no appeal has been entered."
As we have stated the appellee has not dismissed his appeal from the order of December 22, 1969 (filed December 23, 1969), for reasons already set forth, and the appellant has not moved to dismiss the appeal from the order and decree of February 17, 1970, possibly believing that the ultimate issues in the case could be resolved by us under his appeal from that order and decree. In our opinion, however, the Chancellor had no power to revoke the order of December 23, 1969, because an appeal from the order had already been entered and was not withdrawn within 30 days of the date of the order to enable him to invoke the provisions of Rule 625. Even *403 though this question was neither briefed nor argued, it may be raised by this Court, sua sponte, as an exception to the general rule established by Maryland Rule 885 because it is a jurisdictional matter. Webb v. Oxley, 226 Md. 339, 173 A.2d 358 (1961). See Tate v. State, 236 Md. 312, 316, 203 A.2d 882, 884 (1964).
Although we are of the opinion that the Chancellor was generally correct in the first opinion filed on December 23, 1969, we consider the denial of admission into evidence of the letter of April 5, 1967, and the document of December 6, 1967, to have been improper for reasons hereinafter set forth. In view of the peculiar posture of the case, we conclude that we should reverse the decree of February 17, 1970, and remand the case for further proceedings in accordance with this opinion, rather than merely dismiss the appeal from that decree.
(2)
We now come to a discussion of what, in our opinion, was the erroneous action of the Chancellor in refusing to admit into evidence the letter of April 5, 1967, and the document of December 6, 1967, both of which have been fully set forth above.
The Chancellor sustained the objection of the plaintiff executor on the ground that both papers were "transactions with a decedent" and hence were not admissible in evidence by virtue of the provisions of Code (1957), Art. 35, § 3, the "Dead Man Statute." We do not agree with this conclusion.
Art. 35, § 3 of the Maryland Code provides in relevant part:
"In actions or proceedings by or against executors, administrators, heirs, devisees, legatees or distributees of a decedent as such, in which judgments or decrees may be rendered for or against them, and in proceedings by or against persons incompetent to testify by reason of mental disability, no party to the cause shall be allowed to testify as to any transaction had with, *404 or statement made by the testator, intestate ancestor or party so incompetent to testify, either personally or through an agent since dead, lunatic or insane, unless called to testify by the opposite party, or unless the testimony of such testator, intestate, ancestor or party incompetent to testify shall have already (been) given in evidence, concerning the same transaction or statement, in the same cause, on his or her own behalf or on behalf of his or her representative in interest; * * *"
This Court has held that this statute, as an exception to the policy enumerated by Code (1957), Art. 35, § 1 that witnesses should not be excluded from giving evidence by reason of interest, should be rather narrowly construed. As Judge (later Chief Judge) Henderson stated for the Court in Shaneybrook v. Blizzard, 209 Md. 304, 309, 310, 121 A.2d 218, 220-221 (1956):
"This section must be read in the light of sec. 1, which provides generally that witnesses shall not be excluded from giving evidence by reason of interest, `except as hereinafter excepted'. The statute was first enacted by Ch. 109, Acts of 1864. In its original form the exception applied `when an original party to a contract or cause of action is dead, * * *'. By Ch. 495, Acts of 1902, the exception was expressed in its present form, with amendments not here material by Ch. 661, Acts of 1904. The Act of 1864 was obviously designed to remove the common law disqualification of witnesses, especially parties litigant, for interest. Almost all of the numerous Maryland cases dealing with the subject have dealt with matters of contract, express or implied, between the survivor and a decedent. Generally speaking, the exception has been rather narrowly construed. Cf. Smith v. Humphreys, 104 Md. 285, 289; Horner v. Frazier, 65 Md. 1, *405 10; Russell v. Carman, 114 Md. 25, 35; and Sheeler v. Sheeler, 207 Md. 264, 269."
The statute does not make the party in an action to which the statute applied incompetent as a witness for all purposes but only in regard to "any transaction had with or statement made by" the decedent. Even in regard to this limited area, the party may give testimony if called by the opposite party as the statute provides. We have held that an adverse party who is cross-examined in regard to a transaction with the decedent has been "called to testify for the opposite party" and, therefore, the answers of such a party are admissible under the express provisions of the statute. Leahy v. McManus, 237 Md. 450, 206 A.2d 688 (1965) and Cooper v. Davis, 226 Md. 371, 174 A.2d 144 (1961).
There is little question that Nephew Erle was a party in an action in which the executor of Uncle Erle was a party and could not testify in regard to the conversations or transactions with Uncle Erle in connection with the gifts to Nephew Erle. The letter of April 5, 1967, and the document of December 6, 1967, would have been admissible against Uncle Erle as admissions against interest if he had been living and had sought to set aside the gifts. The parties in their written Stipulation of Facts, stipulated that the signatures appearing in the letter and the document were "genuine and were written by the said deceased, Erle Edwards Stacy." Thus the papers were, prima facie, valid and effective as admissions against interest. See Mannix v. Baumgardner, 184 Md. 600, 42 A.2d 124 (1945); McBriety v. Phillips, 180 Md. 569, 574, 575, 26 A.2d 400, 404 (1942) and 31A C.J.S. Evidence § 283.
Nephew Erle by identifying them was not testifying in regard to any transaction had with or statement made by Uncle Erle. See Herbert v. Lankershim, 9 Cal.2d 409, 71 P.2d 220, 222 (1937) cited with approval by us in Ridgley v. Beatty, 222 Md. 76, 82, 83, 159 A.2d 651, 655 (1960). Inasmuch as the two papers would have been *406 admissible, prima facie, against the decedent if he had been alive and involved in litigation in which they were relevant, the identification of them by Nephew Erle does not controvert or frustrate the policy of the statute. See Kerwin v. Bank of Douglas, 93 Ariz. 269, 379 P.2d 978 (1963); Wunschel v. McKinney, 251 Iowa 881, 103 N.W.2d 81 (1960); Stephenson v. Stephenson, 351 Mo. 8, 171 S.W.2d 565 (1943), cases from States which have statutes with provisions essentially similar to Article 35, § 3.
This does not mean of course that evidence might not possibly be offered to challenge or impair the prima facie effect of the papers as admissions, although this would appear difficult in this case in view of the uncontradicted testimony of Virginia Stacy, wife of Nephew Erle, in regard to the preparation and execution of the two papers. In regard to the letter of April 5, 1967, she testified that her husband visited Uncle Erle, came back to the company office, typed the letter, left the office with the completed letter without any signature on it and later returned with the letter with Uncle Erle's signature on it. She recognized the signature as being that of Uncle Erle. The letter was then offered again, but the executor's objection was again sustained by the Chancellor. Mrs. Stacy testified to substantially the same effect in regard to the document of December 6, 1967, again identifying Uncle Erle's signature, but again the Chancellor sustained the objection of the executor. Mrs. Stacy was not a party to the suit and hence Art. 35, § 3 did not apply to her testimony. In our opinion, the testimony of Mrs. Stacy, plus her identification of Uncle Erle's signature as genuine (this testimony being supported by the Stipulation of Facts), made these documents admissible, apart from Nephew Erle's testimony.
We might add also that the fact that counsel for the executor cross-examined Nephew Erle in regard to those documents would, under our previous decisions already mentioned, render them admissible even if otherwise inadmissible. In regard to the letter of April 5, 1967, after *407 it was marked for identification as Defendant's Exhibit No. 1, counsel for the executor asked Nephew Erle the following questions and received the following answers:
"Q. Mr. Stacy, referring to Defendant's Exhibit No. 1, where did you get that? A. I am confused. Are we talking about this one?
"Q. This one right here. (indicating) A. Where did I get it?
"Q. Yes. A. I prepared it from instructions from my Uncle Erle is where I got it."
In regard to the document of December 6, 1967, after it had been marked as Defendant's Exhibit No. 2 for identification, counsel for the executor asked Nephew Erle the following questions and received the following answers:
"Q. Where did you get this paper, Mr. Stacy? A. I prepared it on instructions from my Uncle Erle.
"Q. Did he give it to you? A. He signed it after I prepared it, after he told me what to write."
For all of these reasons, we conclude that the two papers mentioned were admissible into evidence and it was prejudicial error to refuse to admit them. The executor, upon the remand, will have the opportunity to present any evidence he may have to try to lessen the probative value of the documents.
In our opinion, there was a confidential relationship between Uncle Erle and Nephew Erle so that the burden was upon Nephew Erle to show that there was no abuse by him of this confidential relationship and that the gifts were authorized by Uncle Erle and were his free and voluntary act and were "reasonable, fair and just." Hagan v. Dundore, 187 Md. 430, 50 A.2d 570 (1947); Myers v. Myers, 185 Md. 210, 44 A.2d 455 (1945); Williams v. Robinson, 183 Md. 117, 36 A.2d 547 (1944); and Zimmerman v. Freshour, 108 Md. 115, 69 A. 796 (1908). The *408 testimony of Essie Mae Stacy, with the other testimony in the case, indicates to us that, prima facie, Nephew Erle met the burden of proof placed upon him because of the confidential relationship. We agree with the Chancellor's findings in the first opinion of December 22, 1969, that Essie Mae's uncontradicted testimony was "clear and convincing as to the voluntariness of the decedent's intention and the ultimate consummation of the gift some months later," rather than the later observation of the Chancellor in the later opinion of February 17, 1970. If the letter of April 5, 1967, and the document of December 6, 1967, are not substantially impaired upon the remand, they strongly corroborate Essie Mae's testimony so that it appears to us that the bill of complaint of the plaintiff executor should ultimately be dismissed.
We also note that there is no challenge to Uncle Erle's mental capacity; that Nephew Erle was an object of Uncle Erle's bounty; that Uncle Erle was not isolated from his relations, friends or his counsel; and that the gifts in question did not strip Uncle Erle of his property, but on the contrary, apparently amounted to less than half of his remaining estate.
Order and decree of February 17, 1970, reversed and the case remanded to the lower court for further proceedings in accordance with this opinion, the costs to be paid by the appellee from the estate of the decedent, Erle Edwards Stacy.
NOTES
[1] The second prayer for relief seeks both a temporary and permanent injunction against two of the defendants, Perpetual Building Association and Citizens Building and Loan Association. Maryland Rule BB78 provides that an "order granting an injunction shall set forth the reasons for its issuance; shall be specific in terms; and shall describe in reasonable detail, and not by reference to the complaint or other document, the act sought to be required or commanded or restrained or forbidden." The decree of February 16, 1970, merely decrees that "the equitable relief prayed for by the plaintiff be and it is hereby granted," and obviously does not comply with the mandatory provisions of Rule BB78 so far as injunctive relief is concerned. Then, too, the other prayers for relief seek an accounting from the defendant for all money and property he acquired from the decedent; an order directing the defendant to pay to the executor funds deposited in the two building and loan associations which had belonged to the decedent; an order directing the transfer of the B.F. Saul Real Estate Investment Trust shares to the executor and for other relief, which would no doubt include an order that the defendant pay the costs. The decree of February 16, 1970, as indicated, does not decree specific relief in regard to any of these matters. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266871/ | 4 F.Supp. 33 (1933)
CHANNING
v.
UNITED STATES.
No. 5447.
District Court, D. Massachusetts.
July 10, 1933.
Channing, Corneau & Frothingham and Lawrence S. Apsey, all of Boston, Mass., for plaintiff.
Frederick H. Tarr, U. S. Atty., and J. Duke Smith, Sp. Asst. to U. S. Atty., both of Boston, Mass.
BREWSTER, District Judge.
To this petition to recover $128.70, alleged to have been illegally exacted as an income tax for 1929, the respondent has demurred.
The petitioner alleges in her petition that during the year 1929 she "made contributions, *34 levied for the tuition of her children, to three (3) different corporations organized and operated exclusively for educational purposes, no part of the net earnings of which inured to the benefit of any private shareholder or individual; to wit, Two Hundred (200) dollars to the Trustees of Bryn Mawr College, an endowed institution * * *; three hundred (300) dollars to The Winsor School, another endowed institution, * * *; and Five hundred (500) dollars to The Garland School of Home Making, * * * not an endowed institution; that the contribution to the cost of education of undergraduate students in said Bryn Mawr College which was levied as tuition in the college year 1928-1929 constituted less than half the actual cost of educating such students during said year; that the balance of said cost was made up from endowment funds and donations; that the Petitioner's said contributions were duly claimed as deductions in her income tax return for the year 1929;" that these deductions were disallowed and a deficiency assessment of $128.70 was paid under protest. A claim for refund was duly filed and was rejected, and this proceeding was seasonably brought.
The single question presented is whether the tuition paid to the three educational institutions for the education of petitioner's daughters were proper deductions under section 23 (n) (2) of the Revenue Act of 1928, 26 USCA § 2023 (n) (2). The applicable provisions of this statute are:
Sec. 23. "Deductions from Gross Income.
"In computing net income there shall be allowed as deductions: * * * (n) Charitable and Other Contributions. In the case of an individual, contributions or gifts made within the taxable year to or for the use of: * * * (2) any corporation * * * operated exclusively for * * * educational purposes, * * * no part of the net earnings of which inures to the benefit of any private shareholder or individual."
The petitioner's claim is presented in an elaborate and ingenious argument which, when summarized, comes to this, that the alleged sums were paid to corporations which fell within the classes defined in section 23 (n) (2); that the generally accepted meaning of the word "contribution" is broad enough to include sums "levied for the tuition of" students in such educational institutions, and that therefore such sums are contributions deductible under section 23. That the institutions named are corporations within the scope of section 23 (n) (2) is alleged and therefore admitted by the demurrer. As a lexigraphic proposition, it can also be conceded that the word "contribution" may properly be employed in referring to payments of tuition. Nevertheless, as a legal proposition, I cannot believe that Congress ever intended to give to the act an interpretation wide enough to admit payments made by a taxpayer as a price for a service rendered. The colleges and schools provided instruction and maintenance for a price, namely, tuition. While in a sense the payment of the price involved the idea of a contribution to the institution for educational purposes, there was no such voluntary donation to the purposes of education as was contemplated by the act.
When the purpose of the legislation is considered, any rational meaning given to the language of the statute will not admit of the deduction of payments made upon full consideration. The obvious and rational meaning is to be preferred to any curious sense that only "the ingenuity and study of an acute and powerful intellect would discover." Mr. Justice Sutherland in Lynch v. Alworth-Stephens Co., 267 U. S. 364, 370, 45 S. Ct. 274, 276, 69 L. Ed. 660. It can be said of the statute under consideration, as was said of other provisions of income tax laws, "that the words of the statute * * * do not refer to some esoteric concept derived from subtle and theoretic analysis." Mr. Justice Roberts in Old Colony R. Co. v. Commissioner, 284 U. S. 552, 561, 52 S. Ct. 211, 214, 76 L. Ed. 484. These observations can appropriately be applied to taxing acts. Old Colony R. Co. v. Commissioner, supra; De Ganay v. Lederer, 250 U. S. 376, 381, 39 S. Ct. 524, 63 L. Ed. 1042.
The history of the legislation providing for charitable and other deductions indicates that Senator Hollis, the sponsor of the Senate amendment which was finally enacted as section 23, referred to the amendment as one permitting "contributions" to be deducted up to a certain per cent. of the entire net income. Nevertheless, it is clear from the congressional record that he was using the term as synonymous with the word "gift." The Senator observed (55 Congressional Record, 6730):
"We are now talking about the income tax on individuals, however; and the point I wish to emphasize is this: By agreement of the committee we are now going to exempt from taxation gifts to charitable, educational and scientific institutions not to exceed 15 per cent of the donor's income." (Italics mine.)
I think there is merit also in the argument of the United States attorney that tuition *35 for the education of the children of a taxpayer may properly be deemed a family expense, and that therefore, by express provisions of the act, the petitioner is denied the right to the deductions claimed. Revenue Act of 1928, § 24 (a), 26 USCA § 2024 (a).
Upon the allegations of the petition it is apparent that the additional tax of $128.70 was not illegally assessed or exacted. There was no error in refusing to allow the deductions.
Respondent's demurrer is sustained. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266874/ | 174 Cal.App.4th 1313 (2009)
THE PEOPLE, Plaintiff and Appellant,
v.
GREGORY LOUIS MIRENDA, Defendant and Respondent.
No. D053261.
Court of Appeals of California, Fourth District, Division One.
June 16, 2009.
*1317 Bonnie M. Dumanis, District Attorney, Laura E. Tanney, Craig E. Fisher and James E. Atkins, Deputy District Attorneys, for Plaintiff and Appellant.
Libby A. Ryan, under appointment by the Court of Appeal, for Defendant and Respondent.
OPINION
HUFFMAN, Acting P. J.
We are presented with a case where 26 years passed between the time the criminal charges were filed and the time when the prosecution actually started. The extraordinary delay in this case is made more remarkable because defendant was actually arrested on the criminal complaint in 1982 and agreed to waive extradition. It was the prosecution that declined to return defendant for trial. Defendant was then released and the *1318 prosecution changed its arrest warrant to "California only," apparently to prevent defendant from again being arrested outside this state. Thereafter, the prosecution took no steps to prosecute this case until defendant, notified by the Social Security Administration of the existence of the warrant, contacted San Diego authorities.
We find the quarter-century delay not only remarkable, but on this record, we find it denied defendant the right to a speedy trial under the California Constitution.
In this case, we reject the People's appeal and affirm the trial court's judgment of dismissal entered after granting Gregory Louis Mirenda's motion to dismiss his 2007 prosecution for the March 1981 attempted murder and assault with a deadly weapon on Willie A. Villagran based on prejudicial and unjustified preaccusation delay. In doing so, we find the People's contention the trial court abused its discretion in hearing Mirenda's motion pretrial meritless and conclude substantial evidence supports the trial court's decision the case must be dismissed because Mirenda's constitutional rights to a speedy and fair trial would be violated by proceeding to trial.
FACTUAL AND PROCEDURAL BACKGROUND
On March 2, 1981, Mirenda was involved in an altercation with his roommate Villagran, which ended with Mirenda shooting Villagran in the chest. After a brief investigation, the San Diego District Attorney (DA) filed a felony complaint on March 20, 1981, charging Mirenda with attempted murder (Pen. Code, §§ 187, subd. (a), 664), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), and alleged as to both counts that Mirenda personally used a firearm and inflicted great bodily injury upon Villagran (Pen. Code, §§ 12022.5, 12022.7). On April 2, 1981, the DA obtained a warrant for Mirenda's arrest, but could not locate him.
On August 17, 1982, Mirenda was arrested in Pennsylvania on the outstanding warrant. After receiving notification of the arrest, the DA attempted to locate Villagran but was unable to do so. Although Mirenda waived extradition and agreed to return to San Diego to face the charges filed against him, the DA declined to extradite Mirenda because it decided the prosecution of the case could not go forward without Villagran. When Mirenda was released from custody on the fugitive warrant nine days later, his public defender in Pennsylvania told him that the charges had been dismissed.
In 2007, when Mirenda applied for Social Security disability benefits in Arizona, he was informed that he needed to clear a California warrant for his *1319 arrest. He immediately contacted the Office of the Public Defender of San Diego (PD) to inquire about the warrant. When a paralegal at the PD could not locate any file there or at the San Diego courthouse, she contacted the DA's office about the matter. The DA's office confirmed that Mirenda had been arrested out of state and held on the outstanding warrant issued April 2, 1981, but advised that he had been released because the victim could not be located and that the warrant had been changed from "no extradition" to "California Only."
After the phone call, the DA successfully located Villagran and resumed the prosecution of Mirenda. The DA obtained a current warrant for Mirenda's arrest on September 26, 2007, and he was arrested in Arizona and extradited to California where he was booked into San Diego County jail on October 17, 2007. Mirenda entered pleas of not guilty to the charges in the felony complaint at arraignment on October 22, 2007.
At a November 5, 2007 status conference, Mirenda waived the 10-day and 60-day statutory time periods for his preliminary hearing, which eventually was held on January 17, 2008. At that time, Villagran testified that on March 2, 1981, while he and Mirenda worked as cabdrivers for the same company, he had been roommates with Mirenda and his young son for about a month. That night when Villagran returned home from a concert, he found Mirenda on the sofa with a woman, named Kim Phillips (now Kim Madruga), who was the wife of one of Villagran's friends. Villagran became upset with what he saw because his friend had earlier asked him whether he had seen his wife and Mirenda "tried to order [him] around."
When the argument escalated, Villagran suggested that Mirenda move out of his house. Mirenda responded by grabbing his son who had come into the living room after being awakened by all the noise and returned to the bedroom with his son to pack all his belongings. When Mirenda came back into the living room with his belongings, he was holding a .22 rifle and pointed it at Villagran, who asked, "What are you going to do, shoot me?" Mirenda then shot Villagran in the chest and the bullet went through and landed in the wall. When Villagran collapsed, Mirenda kneeled over him, told him he would be all right, grabbed his boy and Madruga, and left the house. Villagran called the operator for assistance who immediately contacted the police and paramedics who arrived shortly thereafter at Villagran's home.
Villagran testified he suffered a collapsed lung which needed surgery right away as a result of the shooting. He was in the hospital for about four days and remained under a doctor's supervision for some time after his release. Villagran identified Mirenda at the preliminary hearing as the person who had *1320 shot him in 1981. Villagran denied that he had a gun in the house or that he had made any threats toward Mirenda or Madruga at the time of the conflict with Mirenda.
On cross-examination, Villagran could not remember how old Mirenda's son had been 26 or 27 years earlier, but believed he had been only a "toddler" at that time and he believed they had lived with him only a month or less. He also did not think that Mirenda was working at the time they were living with him. Villagran conceded he drank about four or five beers at the concert the night of the shooting before returning home and finding Mirenda on the sofa with Madruga, who was "not clothed." Villagran said the police recovered the bullet from the wall and showed it to him, but he did not know what they did with it afterwards.
Although the DA had served Madruga with a subpoena to appear at the preliminary hearing as an eyewitness to the shooting, she failed to appear. Nonetheless, the magistrate held Mirenda to answer for the charges, finding probable cause to believe the offenses in the complaint had been committed and that Mirenda might be "guilty thereof."
On February 4, 2008, the DA filed a two-count information charging Mirenda with the same charges and allegations as alleged in the felony complaint. At the February 5, 2008 arraignment, Mirenda again entered pleas of not guilty to the charges and allegations and waived statutory time for trial.
On April 10, 2008, Mirenda filed his motion to dismiss all charges relating to the shooting of Villagran due to prejudicial and unjustified preaccusation delay and a declaration of his attorney in support of dismissal. In addition to presenting the above time line in his motion, Mirenda noted that since he had been released from custody on the original arrest warrant in 1982, he had remained in Pennsylvania until 1984 when he moved to El Cajon, California, for about six months before moving to Las Vegas, Nevada, where he stayed for the next 10 years before then moving to Bullhead City, Arizona. When he lived in Nevada, Mirenda legally changed his name to Greg J. Lombardi, but kept the same Social Security number that he had had his entire life. In Nevada, he worked at various casinos, including working as an officer in charge of security, which required police and Federal Bureau of Investigation clearances. At no time was he ever told about a fugitive warrant for him. In 1994, he was arrested for attempted murder in Arizona after a fight in which he was shot in the eye. During the 12 and one-half years he spent in Arizona state prison, no hold was ever placed on him for any outstanding warrants. It was only after he was released on parole and sought Social Security benefits that he learned there was an outstanding California warrant for his arrest.
*1321 Mirenda argued that the prejudice to him caused by dimming of witnesses' memories, death or disappearance and the loss or destruction of material physical evidence during the 27-year preaccusation delay could only be offset by a showing of good cause or justification and that the DA's office could not point to any justification for the lengthy delay other than their decision not to pursue the matter after he was first arrested in this case in 1982.
Mirenda specifically claimed that in the intervening 27 years since the 1981 shooting, only four faded Polaroid photographs of Villagran's living room where the shooting occurred were available as physical evidence and that the other physical evidence, including the bullet, had been destroyed or was missing. Mirenda also noted that the doctor who treated Villagran was now dead, that there were no medical records other than a one-page letter from the now deceased doctor regarding Villagran's injuries and subsequent medical care, and that the names of any of the emergency personnel who treated Villagran and took him to the hospital after the shooting were not included in any of the police reports. Mirenda additionally noted that neighbors of Villagran's who had been interviewed by police right after the shooting were now missing and could not be questioned as to what they might have heard that night. More importantly, the detective who had interviewed Madruga, the only independent eyewitness to the shooting, was now dead. Because Madruga's statements to the detective were different from those she had recently given to a DA investigator, it would be impossible to corroborate her earlier statements or establish which set of statements was true for purposes of establishing any defense.
Mirenda further claimed that the police investigation of the shooting, which was essentially concluded on the night of the crime, with all evidence collected that night except for the victim's medical aftercare, was shoddy because they failed to take measurements of the crime scene, note any blood spatter evidence, or preserve the bullet, all items of evidence from which the trajectory of the bullet and the distance of the shooting might be determined and provide some arguments for the defense to impeach the victim and to negate any specific intent element. The police and DA's office also failed to keep track of the victim in the case and have not shown any due diligence in finding Villagran between 1982 and 2007 when they decided to reopen the prosecution of this case after Mirenda contacted the PD to try to clear the "California only" warrant.
Based upon the above showing of prejudice due to the lengthy delay, Mirenda requested the court to hear the motion to dismiss pretrial rather than after trial because he was not relying on the prejudice inherent in any delay and the court would be in no better position after the trial to determine prejudice because all the missing evidence and witnesses were now before the court.
*1322 In opposition, the DA noted that in addition to the facts presented by Mirenda in his motion, the San Diego County Marshal's Office had attempted to locate Mirenda in 1999, but was unsuccessful and that when Madruga was interviewed in 2008, she had stated that the shooting occurred when Villagran made inappropriate sexual comments to her and Mirenda defended her honor and not when he acted in self-defense. The DA requested the court reserve the motion to dismiss until after the trial because actual prejudice to Mirenda's right to a fair trial could only be properly assessed at that time.
As to the merits of the motion to dismiss, the DA claimed that this matter concerned only Mirenda's federal due process rights and state speedy trial rights because the delay was from the filing of the felony complaint in March 1981 until Mirenda was arraigned on the felony complaint on October 22, 2007 (state speedy trial rights), or until the information was filed on February 4, 2008 (federal due process rights). The DA argued that the delay in this case did not violate Mirenda's federal due process rights because it was not an intentional device to gain a tactical advantage over Mirenda, but rather was caused by Mirenda's fleeing the jurisdiction and the inability to prosecute him when he was found in Pennsylvania in 1982 without the testimony of Villagran who could not be located at that time. The DA further argued that because there is no presumption of prejudice from delay for state speedy trial claims, Mirenda must show actual prejudice, which he failed to do.
The DA asserted that Mirenda's claims of prejudice were merely speculative because both Villagran and Madruga were available to testify at trial that Mirenda had shot Villagran and Villagran could also testify about his own medical condition, about Mirenda's location when he fired the rifle at him, and about where the bullet entered and exited his chest. Because no medical record could alter the fact that Mirenda had shot Villagran, the DA posited that the missing medical evidence was irrelevant to any defense. Nor did the DA believe that there were any witnesses who were missing who could provide any beneficial character testimony for Mirenda in light of the fact he had served a prison term in Arizona for attempted murder. The DA claimed that any inadequacies or incompleteness in the initial investigation of this case was Mirenda's own fault because he fled the jurisdiction and did not perform his own investigation of the crime scene, and that the problems in the collection of evidence could not be attributed to the delay in this case because it was completed shortly after the crime was committed in March 1981.
The DA argued that because Mirenda had failed to show actual prejudice by the delay, there was no need to balance any justification the DA had for the delay. However, the DA asserted there was justification for the delay, initially because Mirenda had fled the jurisdiction, which was inconsistent *1323 with self-defense and wanting a speedy trial, and then from 1982 until 2007 because Villagran could not be located to go forward with the prosecution. The DA also noted that in 1999 an attempt to locate Mirenda had failed.
The DA requested that if the court found a violation of Mirenda's state constitutional speedy trial rights, that it would fashion a remedy as a sanction other than dismissal, similar to that in People v. Conrad (2006) 145 Cal.App.4th 1175, 1185-1186 [52 Cal.Rptr.3d 233] (Conrad) to address the violation.
At the May 5, 2008 hearing on the dismissal motion, after noting it had reviewed the defense motion, the DA's opposition, the preliminary hearing transcript and numerous cases regarding the issues presented by the motion, the trial court indicated it was inclined to grant the motion. The court was "very concerned about the period of time and the apparent lack of effort on the part of the People to track down Mr. Mirenda after they had him in custody pursuant to the warrant." The court noted that from the People's own papers, there was a period of 17 years between deciding not to extradite Mirenda in 1982 and 1999 when the marshal attempted to locate him. Then from 1999 until 2007, there was no justification given for not trying to locate Mirenda.
Although the court appreciated the technical distinctions between the due process and speedy trial issues in California versus federal jurisdictions, it found instructive the dicta in Doggett v. United States (1992) 505 U.S. 647 [120 L.Ed.2d 520, 112 S.Ct. 2686] (Doggett), a federal speedy trial case, where there had been a delay of eight and one-half years in bringing the defendant to trial, which is consistent with dicta in some of the California cases, that "at some point the delay becomes so long that efforts to show specific prejudice become meaningless because you don't even know what the prejudice may be. [¶] There is so much time elapsed that it's impossible to identify what the impacts would be of that delay on a trial, a fair trial." The court explained that it was characterizing its decision as being based on state due process rights, although it understood that the balancing and weighing standard was the same for state speedy trial rights, and that it was in essence "presuming that there is that type of prejudice [identified in Doggett and the California cases] because of that [lengthy] delay." The court then asked the prosecutor to respond.
The prosecutor reiterated the time line in the opposition papers, stating he was unaware of any efforts to locate Mirenda from 1982 until 1999 when there was "some type of search by the San Diego Marshal's office to locate the defendant, and then the next that I know of any efforts in looking at this file at all are when we receive contact from the [PD's] office informing us *1324 that Mr. Mirenda had contacted them and was trying to find out what was going on with this warrant because it was affecting his ability . . . to get disability. At that point we went through and looked at it." The prosecutor recognized the lengths of delay were quite long, but argued there had been no showing of actual prejudice because there was no physical evidence missing in this case and there were "three people there at the time [of the shooting]; all three of them are available to testify." In addition, a police officer who had arrived at the scene was available to testify about the crime scene, photographs that were taken of the wall area that was hit by the bullet after it went through Villagran, and about the information in his police report that noted the bullet was not recovered from the wall.
Although the prosecutor conceded that the detective who had obtained Madruga's original statement was dead, he represented that the DA was willing to stipulate "to what the full extent of [Madruga's] original statement was." When the court inquired as to Madruga's willingness to testify because she had failed to appear at the preliminary hearing and a bench warrant had been issued for her arrest, the prosecutor explained that she had been cooperative "up to a point," had disappeared "on us for a little while," but was now cooperating again and had even talked with defense counsel.
As to medical records, the prosecutor agreed that the only one available was "a one-page letter written by the treating physician describing a through-and-through wound of Mr. Villagran through his upper chest, and it stated that he was recovering fine and was supposed to meet him again in a couple of weeks."
When asked to respond to the matter, defense counsel also restated the points in her motion papers regarding the lack of medical record evidence or personnel from which information to impeach Villagran about his injuries could be obtained, and the absence of anyone to impeach Villagran about the bullet or challenge the police officer about not finding the bullet. Defense counsel complained that another police officer who had drawn a sketch of the crime scene the night of the shooting was not available to talk to nor was the detective who had taken Madruga's original statement, claiming there was no one to either corroborate or impeach her statement.
When defense counsel mentioned that the defense had had no opportunity to talk to the neighbors noted in the police report, the court interrupted her, making it clear on the record that it was not basing its decision on whether the police investigation of the crime scene or their interviews of the neighbors had been adequate. The court did not find that information relevant to the motion to dismiss because it existed at that time regardless of the delay and because Mirenda had left the jurisdiction, it was speculative whether he *1325 would have been able to find the neighbors even if he had been extradited in 1982 when arrested on this case in Pennsylvania.
After defense counsel represented that Mirenda had told her that Villagran "possibly had a gun," which she could not confirm, and asserted prejudice to present a defense because the DA did not try to find Mirenda or locate Villagran, who had both gone on with their lives during the lengthy delay, the court asked counsel to clarify several points, one being Mirenda's name change in 1984, and the other about when he learned of the outstanding California warrant. Defense counsel responded that Mirenda had legally changed his name to Greg J. Lombardi in 1984, but had kept his same Social Security number, and that he had learned about the outstanding warrant when "[h]e filed for social security disability and was told he had a warrant in California. . . ."
Defense counsel additionally commented that due to the outstanding warrant Mirenda was prejudiced by not being able to obtain those disability benefits, although such does not impact his defense, and had he known about the warrant while he was in prison in Arizona he could have addressed it earlier under the interstate detainer act. The court found this latter assertion speculative, and accepted the prosecutor's representation that the case had never been dismissed but only that the warrant had been changed to "California only."
The court then noted that after the DA decided not to extradite Mirenda because the victim could not be found, there was absolutely nothing done to find either the victim or Mirenda until 1999, which goes "far beyond what would be the normal investigatory process, as well as the recognition by case law, both federal and state, as to due process rights and speedy trial rights, that the prejudice is almost impossible for the defense to identify, because it has been so long, as to what the impacts would be on the trial." The court recognized that under People v. Martinez (2000) 22 Cal.4th 750 [94 Cal.Rptr.2d 381, 996 P.2d 32] (Martinez) it had "the capability of doing the trial, . . . but it seem[ed to the court] that if you can't determine what the prejudicial impacts would be on the trial, having the trial is kind of an attempt to bootstrap it in, and [the court would not] even know whether or not it had become prejudicial even if [the court] did the trial because you wouldn't know what the impacts of this delay would be." The court opined it was "impossible to quantify what the prejudice might be because [the delay here was] so long, that having the trial doesn't seem to help [the court] in any way."
Although there was no evidence other than argument regarding Mirenda's awareness of the outstanding warrant, the court accepted his position that he *1326 did not know about the warrant because of the DA's decision not to extradite him and prosecute the case in 1982. The court found no support for the People's position that Mirenda was trying to avoid prosecution because it could not find any "active efforts on the part of the [DA]" to subsequently locate Mirenda or Villagran before this recent prosecution of the case, other than the attempt to locate Mirenda in 1999, about which it would not speculate as to why he could not be found at that time even though he was then in Arizona custody.
After hearing further from the parties, the court ruled it was going to grant the motion, finding there had "been a violation of Mr. Mirenda's due process rights under the California Constitution [and] suggest[ed] that it rises to the level of a speedy trial violation both under California and federal law." Although the court understood that the federal speedy trial rights did not come into play until the information was filed, it believed "that the length of time here is such that it rises to a constitutional level because of the fact that there was no . . . due diligence on the part of the prosecuting agency in its efforts to try and find Mr. Mirenda after they had, in fact, had him released . . . which . . . at the time was an appropriate decision to not extradite him because they [had] been unable to find the victim. [¶] At that point, however, . . . the clock started to run, and it required the [DA] and/or prosecuting agency to try and do everything possible to locate not only the victim but Mr. Mirenda also to proceed with a trial that . . . would be consistent with Mr. Mirenda's, as well as the People's, constitutional . . . rights, and . . . there's been such a time delay that that . . . cannot occur at this stage. [¶] With that, [the court noted it was dismissing] this case [with prejudice]."
When the prosecutor asked the court whether its decision was based on Doggett, supra, 505 U.S. 647, the court explained its decision was not specifically based on Doggett because that was a federal speedy trial case and this was really a due process issue for which it relied on the reasoning in the dicta in Doggett regarding a delay at some point becoming so significant that there could be no fair trial.
The People have timely appealed from the court's order and judgment of dismissal of the information in its entirety in this case on constitutional due process and speedy trial grounds.
DISCUSSION
On appeal, the People contend the trial court abused its discretion in hearing Mirenda's dismissal motion pretrial, erred in finding a violation of Mirenda's state due process rights, and the preaccusation delay did not *1327 violate Mirenda's federal due process rights or speedy trial rights or his state constitutional speedy trial rights because he failed to show actual prejudice from the delay or that it was an intentional device by the prosecution to gain a tactical advantage over him. Alternatively, the People assert that if a violation of Mirenda's state constitutional speedy trial rights is shown, then the court abused its discretion in ordering dismissal rather than fashioning a remedy for the purported lost evidence in a manner that affords Mirenda due process and a fair trial while allowing the prosecution to go forward, similar to what was done in Conrad, supra, 145 Cal.App.4th at page 1186. As we explain, the court did not abuse its discretion in hearing Mirenda's motion pretrial and substantial evidence supports the trial court's decision the information and this case in its entirety must be dismissed.
A. Pertinent Law
(1) In Scherling v. Superior Court (1978) 22 Cal.3d 493 [149 Cal.Rptr. 597, 585 P.2d 219] (Scherling), our Supreme Court examined the scope and application of the right to a speedy trial under state and federal law and determined that "under California as well as federal law, the right to a speedy trial clearly attaches after an arrest or the filing of an indictment or information. (United States v. Marion [(1971)] 404 U.S. 307, 320 [30 L.Ed.2d 468, 92 S.Ct. 455].) [¶] Unlike federal law, however, this state has extended the right to the preindictment and prearrest stage, holding that it attaches under article I, section 15, of our Constitution after a complaint has been filed. [Citations.] But the consequence of a violation depends upon the stage at which a violation of the right occurs. The right to a speedy trial following the filing of an indictment or information and the time limitations applicable thereto are set forth by statute [citation] and a violation of the statute is presumed to be prejudicial. [Citation.] A violation at a prior stage depends upon a balancing of the prejudicial effect of the delay and the justification therefor. [Citations.]" (Scherling, supra, 22 Cal.3d at p. 504, fns. omitted.) "No presumption of prejudice arises from delay after the filing of the complaint and before arrest or formal accusation by indictment or information [citation]; rather, the defendant seeking dismissal must affirmatively demonstrate prejudice [citation]." (Martinez, supra, 22 Cal.4th at p. 767.)
(2) "`Even a minimal showing of prejudice may require dismissal if the proffered justification for delay is insubstantial. By the same token, the more reasonable the delay, the more prejudice the defense would have to show to require dismissal. . . .' [Citation.]" (Conrad, supra, 145 Cal.App.4th at p. 1185.) However, "[t]he trial court must engage in the balancing process only if the defendant has shown actual prejudice. [Citation.] The reason is simple: `If defendant fails to show prejudice, the court need not inquire into *1328 the justification for the delay since there is nothing to "weigh" such justification against.' [Citation.]" (Craft v. Superior Court (2006) 140 Cal.App.4th 1533, 1541 [44 Cal.Rptr.3d 912].)
The same balancing test is used in determining claims that preaccusation delay resulted in a denial of due process. (People v. Catlin (2001) 26 Cal.4th 81, 107 [109 Cal.Rptr.2d 31, 26 P.3d 357] (Catlin); People v. Boysen (2007) 165 Cal.App.4th 761, 772 (Boysen).) As our high court in Catlin stated, "[d]elay in prosecution that occurs before the accused is arrested or the complaint is filed may constitute a denial of the right to a fair trial and to due process of law under the state and federal Constitutions. A defendant seeking to dismiss a charge on this ground must demonstrate prejudice arising from the delay. The prosecution may offer justification for the delay, and the court considering a motion to dismiss balances the harm to the defendant against the justification for the delay. [Citations.] A claim based upon the federal Constitution also requires a showing that the delay was undertaken to gain a tactical advantage over the defendant. [Citations.]" (Catlin, supra, 26 Cal.4th at p. 107.)
(3) In People v. Nelson (2008) 43 Cal.4th 1242 [78 Cal.Rptr.3d 69, 185 P.3d 49] (Nelson), our Supreme Court recently noted that "the exact standard [for due process violations] under [the federal] Constitution is not entirely settled, [but it is clear] that the law under the California Constitution is at least as favorable for [the] defendant in this regard as the law under the United States Constitution." (Id. at p. 1251.) After reviewing the relevant federal and state laws regarding delay and the circumstances under which it would be found unjustified and prejudicial, the court in Nelson concluded that "under California law, negligent, as well as purposeful, delay in bringing charges may, when accompanied by a showing of prejudice, violate due process." (Id. at pp. 1254-1255.) The court in Nelson observed, however, that "whether the delay was negligent or purposeful is relevant to the balancing process. Purposeful delay to gain an advantage is totally unjustified, and a relatively weak showing of prejudice would suffice to tip the scales towards finding a due process violation. If the delay was merely negligent, a greater showing of prejudice would be required to establish a due process violation." (Id. at p. 1256.)
(4) Among other things, "`[p]rejudice [for due process or speedy trial violation claims] may be shown by loss of material witnesses due to lapse of time [citation] or loss of evidence because of fading memory attributable to the delay.' [Citation.]" (Catlin, supra, 26 Cal.4th at p. 107.) The overarching theme is that the loss of such evidence, especially where the defendant or victims cannot independently recall details of the crime, makes it difficult or impossible for the defendant to prepare a defense thus showing prejudice. *1329 (See People v. Pellegrino (1978) 86 Cal.App.3d 776, 780 [150 Cal.Rptr. 486] (Pellegrino).) As we recognized in Boysen, supra, 165 Cal.App.4th 761, because "due process is ultimately tied to the fundamental conceptions of justice that lie at the base of our civil and political institutions and which define the community's sense of fair play and decency" (id. at p. 774), it is also shown to be "properly offended when, with little or no justification, the government waits decades to bring a prosecution and that delay has demonstrably placed the defense at a profound and perhaps fatal disadvantage" (Ibid.).
(5) In addition, although a federal speedy trial case, the reasoning in Doggett, supra, 505 U.S. 647, is instructive on the issue of showing prejudice for analyzing either speedy trial or due process violations as the constitutional guarantees "converge in protecting the same interest of the accused" for a fair adjudication. (Martinez, supra, 22 Cal.4th at p. 768.) The court in Doggett noted "that impairment of one's defense is the most difficult form of speedy trial prejudice to prove because time's erosion of exculpatory evidence and testimony `can rarely be shown.' [Citation.] And though time can tilt the case against either side, [citations], one cannot generally be sure which of them it has prejudiced more severely. Thus, we generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment [speedy trial] claim . . ., it is part of the mix of relevant facts, and its importance increases with the length of the delay." (Doggett, supra, 505 U.S. at pp. 655-656.)
If a defendant meets his initial burden of showing prejudice from a preaccusation delay for either a due process or state constitutional speedy trial claim, "the prosecution must show justification for the delay. If the prosecution does that, the trial court must balance the prejudice to the defendant resulting from the delay against the prosecution's justification for the delay. [Citation.]" (People v. Lowe (2007) 40 Cal.4th 937, 942 [56 Cal.Rptr.3d 209, 154 P.3d 358]; see Martinez, supra, 22 Cal.4th at pp. 766-767.)
(6) In so balancing the interests, "it is important to remember that prosecutors are under no obligation to file charges as soon as probable cause exists but before they are satisfied that guilt can be proved beyond a reasonable doubt or before the resources are reasonably available to mount an effective prosecution. Any other rule `would subordinate the goal of orderly expedition to that of mere speed.' [Citation.]" (Boysen, supra, 165 Cal.App.4th at p. 777.) On the other hand, "`[t]he [prosecutors] cannot simply place gathered evidence ... on the "back burner" hoping that it will some day simmer into something more prosecutable ....'" (Pellegrino, supra, 86 Cal.App.3d at p. 781.) Nor may "[t]he requirement of a legitimate reason for *1330 the prosecutorial delay ... be met simply by showing an absence of deliberate, purposeful or oppressive police conduct. A `legitimate reason' logically requires something more than the absence of governmental bad faith. Negligence on the part of police officers in gathering evidence or in putting the case together for presentation to the district attorney, or incompetency on the part of the district attorney in evaluating a case for possible prosecution can hardly be considered a valid police purpose justifying a lengthy delay which results in the deprivation of a right to a fair trial." (Penney v. Superior Court (1972) 28 Cal.App.3d 941, 953 [105 Cal.Rptr. 162].)
(7) As we noted in Boysen, supra, 165 Cal.App.4th 761, "[t]he balancing task is a delicate one, `a minimal showing of prejudice may require dismissal if the proffered justification for delay is insubstantial. [Likewise], the more reasonable the delay, the more prejudice the defense would have to show to require dismissal.' [Citation.]" (Id. at p. 777.)
Whether preaccusation delay is unreasonable and prejudicial to a defendant is a question of fact. (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 911-912 [55 Cal.Rptr.2d 404].) If the trial court concludes the delay denied the defendant due process or his constitutional speedy trial rights, the remedy is generally dismissal of the charge. (Id. at p. 912; Boysen, supra, 165 Cal.App.4th at p. 777.) "A trial court has discretion[, however,] to fashion a remedy [other than dismissal] when the prosecutor's conduct has resulted in [an identifiable] loss of evidence favorable to the defense. [Citations.]" (Conrad, supra, 145 Cal.App.4th at p. 1185.)
We uphold the trial court's ruling or decision on appeal if it is supported by substantial evidence. (People v. Mitchell (1972) 8 Cal.3d 164, 167 [104 Cal.Rptr. 348, 501 P.2d 916].) Moreover, "[w]e may sustain the trial court's decision without embracing its reasoning." (People v. McDonald (2006) 137 Cal.App.4th 521, 529 [40 Cal.Rptr.3d 422].) If the court's ruling or decision is "`"`right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.' [Citation.]" [Citation.]' [Citation.]" (People v. Smithey (1999) 20 Cal.4th 936, 972 [86 Cal.Rptr.2d 243, 978 P.2d 1171] (Smithey).)
Finally, when a defendant brings a motion to dismiss based on preaccusation delay, it is within the discretion of the trial court to rule on the motion before, during or after trial. (Martinez, supra, 22 Cal.4th at p. 769; Boysen, supra, 165 Cal.App.4th at pp. 781-782.) The court's ruling in this regard will be sustained on review unless it falls outside the bounds of reason. (People v. DeSantis (1992) 2 Cal.4th 1198, 1226 [9 Cal.Rptr.2d 628, 831 P.2d 1210].)
*1331 B. Analysis
At the outset, we note the parties are in agreement this matter concerns only Mirenda's federal due process rights and his state speedy trial rights because the delay complained of commenced on the filing of the felony complaint against him in March 1981 until he was arraigned on that complaint in October 2007 or until the information was filed in February 2008. Although the trial court stated it was basing its decision on state due process grounds, as noted above, we review the court's decision and not its reasoning in determining whether the decision is supported by substantial evidence under any theory applicable to the case. (Smithey, supra, 20 Cal.4th at p. 972.) Having done so here in light of the facts presented and the law regarding state constitutional speedy trial rights and federal due process rights concerning preaccusation delay, we conclude the trial court's decision to grant Mirenda's motion to dismiss is supported by substantial evidence.
Although the trial court did not expressly state Mirenda had presented evidence of actual prejudice caused by the delay of more than a quarter of a century before the People arraigned him in California for the attempted murder and assault with a deadly weapon on Villagran in 1981, it necessarily found Mirenda had done so because it specifically stated it had struggled with the competing interests of the parties in applying the balancing test which it recognized was the same for due process and speedy trial violations. If Mirenda had failed to make a showing of any prejudice, we presume the court would not have engaged in the required balancing test. And, while at first blush it appears from the parsed portions of the hearing transcript singled out by the People that the court may have presumed prejudice solely based on the length of the delay, a full reading of the transcript reveals otherwise. The record shows the court was merely expressing the real problems inherent in any prosecution of a case like this after such a long time which is caused by missing physical evidence and witnesses and the dulling of memories. That the court recognized it was difficult to articulate the actual prejudice to Mirenda caused by the lengthy delay, does not negate the fact that it necessarily found that Mirenda had shown enough prejudice to require the prosecution to justify the delay for the balancing test.
(8) Among other things, Mirenda had presented evidence and argument that the detective who had interviewed Madruga, the only independent eyewitness to the shooting, had died and was unavailable to either corroborate or impeach Madruga whose story of the incident had recently changed. It appears from the representations of counsel, which were not contested, that Madruga's earlier statement regarding Villagran making movements toward Mirenda before the shooting, would have been helpful to a defense of self-defense or at least provided some defense to the element of specific *1332 intent to kill during a heated argument. Because "`[a]ttorneys are officers of the court, and "`when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath.'"' [Citation.]" (People v. Mroczko (1983) 35 Cal.3d 86, 112 [197 Cal.Rptr. 52, 672 P.2d 835], disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [87 Cal.Rptr.3d 209, 198 P.3d 11]), this undisputed representation of facts, coupled with the preliminary hearing transcript showing that Villagran's memory was unclear, especially during cross-examination, regarding circumstances the night of the crime, provides credible evidence that prejudice to Mirenda has occurred by the preaccusation delay in his prosecution (see Catlin, supra, 26 Cal.4th at p. 107).
Although the court found the delay in prosecution justified until 1982 when the People found Mirenda in Pennsylvania because he had fled the jurisdiction, the court found it significant that the People had done nothing in this case to prosecute him after that time. The court's determination that the delay in prosecuting Mirenda from that time until 2007 or 2008 was unjustifiable under the circumstances of this case is clearly supported by the record. The prosecutor conceded at the motion hearing that nothing had been done by the DA's office from 1982 until Mirenda contacted the PD's office in San Diego to get information on the outstanding warrant preventing him from obtaining disability benefits and the PD in turn contacted the DA's office about the matter. Although the prosecutor noted that the San Diego Marshal's Office had unsuccessfully tried to locate Mirenda in 1999, he was unable to explain the circumstances of why Mirenda was sought at that time because his office was not trying to locate him then. The prosecutor only suggested that Mirenda might be the cause of the delay because he had legally changed his name in 1984. However, this is not a reasonable justification for any delay because Mirenda had kept his same Social Security number and the DA's office had not tried to locate him during the lengthy delay. It is significant that the Social Security Administration was able to quickly establish the existence of the California warrant, presumably from Mirenda's Social Security number.
As noted above, even "`a minimal showing of prejudice may require dismissal if the proffered justification for delay is insubstantial.'" (Boysen, supra, 165 Cal.App.4th at p. 777.) Here, there was absolutely no justification proffered other than Mirenda had fled the jurisdiction. There was no justification at all offered regarding the over 25-year delay since that time. The People did not attempt to show that they tried to locate either Villagran or Mirenda during the lengthy delay until Mirenda essentially contacted them.
The People fail to appreciate that in 1982, Mirenda had been arrested on the felony warrant issued in this case in 1981 and the DA's office made an *1333 intentional tactical decision at that time not to extradite Mirenda for prosecution of this case even though he had waived extradition. In fact, the People not only declined to extradite Mirenda, they changed his arrest warrant to "California only" thereby preventing the execution of the warrant outside of this state. The impact of this action was to effectively "wall off" the State of California so that there was no risk that Mirenda would again be apprehended outside the state. Ironically, had he been arrested in California in 1982, the prosecution would have been required to dismiss the complaint. Under the same facts of no action to follow up this case the statute of limitations would have expired long ago.
(9) Although the victim, Villagran, could not be located in 1982, the case was then ripe for prosecution because the investigation was complete. All the evidence of the crime had been collected, the identity of the shooter was known, and statements of the victim and eyewitness were taken and included in various police reports of the incident, and the treating physician was alive. Although we appreciate that prosecutors are under no obligation to proceed with a case before they are satisfied that guilt can be proved beyond a reasonable doubt or before all the resources are reasonably available, here charges were in fact filed and a warrant issued in 1981. After the prosecution declined to return Mirenda to California in 1982 and changed the arrest warrant to California only, no attempt was made to prosecute this case until 2007. The lack of any justification for the delay in this case after 1982 tips the balance in favor of finding a violation of Mirenda's constitutional due process and speedy trial rights and supports the trial court's decision to dismiss the prosecution against him based on preaccusation delay.
Moreover, on this record, the trial court was within its discretion to rule on the motion to dismiss before trial. The delay here was lengthy and the prejudice to Mirenda arose from the death of important witnesses, the irreparable fading of memory and the complete inability to mount a defense. As the trial court reasonably concluded, a lengthy and expensive trial would not likely provide anything more than what it had before it for the motion so that nothing would be gained by delaying its ruling on the motion to dismiss until the end of trial. No abuse of discretion is shown.
Nor is any abuse of discretion shown by the court not fashioning a remedy less than dismissal in this case. Contrary to the People's reliance on Conrad, supra, 145 Cal.App.4th 1175, in which the length of the delay was about six weeks and the loss of relevant evidence was easily identifiable (id. at pp. 1182, 1185), as the court clearly explained, the loss of evidence favorable to the defense here could not fully be identified and assessed because so much time had passed. Although the People offered to stipulate to Madruga's earlier statements made to the detective who is now deceased, such is not the only *1334 evidence missing due to the unjustifiable delay. Those statements alone do not provide the same evidence as having the detective who took them available to testify as to Madruga's demeanor when she made them or having his testimony about other aspects of his investigation of the crimes. Under the circumstances, the court properly determined it was difficult to assess the extent of the loss of such evidence with regard to Madruga's changing stories and Mirenda's ability to defend himself to satisfy due process.
In sum, the trial court properly dismissed the prosecution of Mirenda's case in its entirety pretrial.
DISPOSITION
The judgment of dismissal is affirmed.
Nares, J., and Irion, J., concurred. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266966/ | 999 F.Supp. 1016 (1998)
John RAGSDALE, Plaintiff,
v.
UNUM LIFE INSURANCE COMPANY OF AMERICA, Defendant.
No. 5:96 CV 2722.
United States District Court, N.D. Ohio, Eastern Division.
March 23, 1998.
*1017 J. Thomas Henretta, Blakemore, Meeker, Varian, Boler & Henretta, Akron, OH, Kirk W.B. Wagar, Coral Gables, FL, for John Ragsdale.
Brett K. Bacon, Michael J. Holleran, Thompson, Hine & Flory, Cleveland, OH, for Unum Life Insurance Company of America.
David H. Wallace, Kelley, McCann & Livingstone, Cleveland, OH, pro se.
ORDER
SAM H. BELL, District Judge.
Now before the court are the parties' cross-motions for summary judgment. The underlying action was brought by Plaintiff John Ragsdale under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq., seeking payment of additional disability benefits beyond what he has already been paid by Defendant Unum Life Insurance Company of America ("Unum"). Mr. Ragsdale claims that Unum's determination that he was only eligible for mental illness disability benefits, as opposed to physical disability benefits, is contrary to the evidence and in subordination of Unum's duties under the law. Unum claims that it acted within its providence in denying Mr. Ragsdale additional benefits.
The court has considered the evidence and arguments of the parties, and is now prepared to offer its decision in this matter. The court finds that Unum was in error when it denied Mr. Ragsdale's request to be reclassified as physically disabled. Mr. Ragsdale's motion for summary judgment, therefore, is granted.
Background
Plaintiff John Ragsdale is a former executive for the advertising agency of Meldrum & Fewsmith, Inc. ("Meldrum"). As an employee of Meldrum, Mr. Ragsdale was provided disability insurance under a policy issued and maintained by Unum (the "Policy"). Section *1018 IV of the Policy, dealing with "Benefits," states that:
[w]hen the Company receives proof that an insured is disabled due to sickness or injury and requires the regular attendance of a physician, the Company will pay the insured a monthly benefit after the end of the elimination period. The benefit will be paid for the period of disability if the insured gives to the Company proof of continued:
1. disability; and
2. regular attendance of a physician. The proof must be given upon request and at the insured's expense.
(Jensen Aff. Bates No. 00029.) The Policy also contains a "Mental Illness Limitation," which states that "[b]enefits for disability due to mental illness will not exceed 24 months of monthly benefit payments...." (Id. at 00033.) Benefits for disabilities due to physical illness are paid under the Policy until the claimant reaches 65. (Id.)
Mr. Ragsdale has a history of emotional and physical problems. He was born with an eye disease called congenital nystagmus. (Id. at 00411.) He has some vision, but has been legally blind all of his life. (Id.) His father was physically and sexually abusive, and his mother was a manic depressive who was in and out of hospitals most of his young life. (Id.) Despite these disadvantages, Mr. Ragsdale was able to excel in school and received an athletic scholarship for swimming to attend Notre Dame University. (Id.) While at Notre Dame, he developed an addiction to morphine when he was given the drug as treatment for a broken wrist. (Id.) Over the years, Mr. Ragsdale also developed an addiction to alcohol. (Id.) Mr. Ragsdale's emotional and physical difficulties did not prevent him, however, from becoming an important and influential employee of Meldrum Advertising Agency. His last position with Meldrum, before he discontinued work because of disabilities, was Senior Vice President and Creative Director. His emotional condition deteriorated over the years as a result of his alcoholism, the break-up of his marriage, and the death of his father. (Id.) He has unsuccessfully attempted suicide a number of times. (Id.)
On July 14, 1994, Mr. Ragsdale submitted a claim for disability benefits to Unum. (Id. at 00454.) He indicated that his symptoms were "depression, exhaustion, sleeplessness, pain, headache, nausea, and anxiety." (Id.) Mr. Ragsdale also stated that "the condition is highly aggravated by blindness and cervical spine injury" and that he was "incapacitated and unresponsive to therapy for depression." (Id.) When asked to list all physicians with whom he had sought treatment for his claimed condition, Mr. Ragsdale listed five psychiatrists. (Id. at 00455.) His treating physician, Dr. Michael Arcuri, submitted a statement dated July 18, 1994 which indicated that Mr. Ragsdale was suffering from "severe depression" and a "recent near fatal suicide attempt." (Id. at 00425.)
On August 19, 1994, Unum sent a letter to Mr. Ragsdale indicating that his request for disability benefits had been approved. (Id. at 00380.) On the same day, Unum sent an additional letter to Mr. Ragsdale instructing him that his disability was being classified as a mental illness, and that the 24 month Policy limitation was therefore in effect. (Id. at 00378.) Mr. Ragsdale's benefits were scheduled to terminate on April 1, 1996. (Id. at 00379.)
On July 18, 1995, 10 months prior to the expiration of his mental disability benefits, Mr. Ragsdale sent a letter to Unum indicating that he would be sending medical files "to support change to LT physical disability coverage." (Id. Bates No. 00212.) The physical impairments upon which Mr. Ragsdale bases his claim are: (1) his visual impairment, and (2) lingering neck and/or back pain following one or more accidents in the early 1990s.
Mr. Ragsdale submitted additional evidence relating to his back and neck condition in connection with his original effort to be reclassified as physically disabled. A January 22, 1991 report by Dr. Jon L. Weingart states that Mr. Ragsdale "was involved in a motor vehicle accident in which the car in which he was riding was struck from behind" resulting in "musculoskeletal neck pain, post-traumatic." (Id. at 00098.) An April 8, 1994 report by Dr. Robert G. Slater states that *1019 Mr. Ragsdale "reported that in 1991 he had a very bad accident on a movie set and fractured several vertebra. He had extensive back surgery and subsequently became addicted to opiate medications ... [h]e also reports back pain and right knee pain." (Id. at 0363.) An April 3, 1994 report by Dr. Edward Stump states that Mr. Ragsdale "had some sort of cervical fracture in an accident while filming a commercial in 1990. He states that he was on the exposed boom of a camera truck which ran into another truck and he has required two fusions in 1990. He is having no particular neck pain now and has no upper extremity problems." (Id. at 0372.) On July 25, 1995 the Social Security Administration notified Mr. Ragsdale that he was disabled under the terms of the Social Security Act. (Id. at 00209.)
On February 8, 1996, Unum sent Mr. Ragsdale a letter denying his request to be reclassified as physically disabled. The letter stated that:
Although it is reasonable you have some restrictions and limitations relating to your cervical fusion, you continued to work for at least two years. You have demonstrated the ability to productively and gainfully work with blindness. Under the terms of your contract your blindness is not considered your disabling condition.
The recent information you sent for consideration is quite old, therefore does not establish objective data to support a physical disability now. The supplemental form completed by Dr. Martin Loftus on January 25, 1996 indicates you could work `if employment needs and limitations are met.' This statement indicates work capacity from a physical standpoint.
(Id. at 00132.) Mr. Ragsdale responded to this letter with a letter of his own, requesting a review of his file and the opportunity to submit additional evidence. (Id. at 00118.) Unum granted this request, and spent a period of time re-evaluating Mr. Ragsdale's claims by reviewing additional evidence and discussing the matter with Mr. Ragsdale's doctors: Dr. Loftus, Dr. Yassine, and Dr. Buzney. Unum sent a letter to Mr. Ragsdale on September 23, 1996, which again communicated Unum's refusal to re-classify Mr. Ragsdale as physically disabled. The court reproduces the bulk of the letter below to both lay out Unum's analysis in denying Mr. Ragsdale's request, and as well, the medical information available to Unum at the time of re-evaluation:
Our review of your claim notes that you stopped working in your regular occupation as a creative director for an advertising agency as of 1/1/94 due to depression. Our review of your file documentation finds that you have been legally blind since birth. In 1991 you were involved in a motor vehicle accident which resulted in surgery involving a cervical fusion and laminectomy. You were admitted to the Silver Spring Hospital in January, 1994 for depression and substance abuse problems. ...
Our 2/8/96 letter acknowledged the receipt of the additional medical information submitted to support your claim that you continue to be disabled on a physical basis beyond 4/1/96 when your eligibility for long term disability benefits for your psychiatric condition ended. This letter explained to you that although it is reasonable for you to have some restrictions and limitations due to your neck pain, you continued working in your regular occupation for approximately two years following your neck surgery until your date of disability on 1/1/94. The letter also explained that you had also demonstrated your ability to work with your visual limitations prior to your date of disability on 1/1/94.
We received Dr. Loftus' 3/5/96 report which indicates that he has been treating you for approximately one year. Dr. Loftus indicates that due to the worsening of your multiple problems with addiction, depression and your neck, you have been unable to return to your previous occupation. Dr. Yassine's 3/15/96 report concludes that it is very difficult for you to continue carrying on your duties while working with a computer which causes discomfort in your neck. This is complicated by your blindness which make it more difficult to work with computers which is necessary to perform your job. Dr. Buzney's 4/16/96 report states his belief that *1020 "it is a miscalculation to believe that Mr. Ragsdale's visual function is equal to that which he enjoyed prior to his accident and ensuing difficulties."
Following our initial review of your appeal, it was determined that your medical records should be reviewed by our on-site physician. Our physician's 9/6/96 report concludes that based on his review of your claim file, there is no clear objective medical evidence to show how your neck pain and visual condition has worsened to prevent work capacity in your regular occupation. Our physician notes that neither Dr. Yassine nor Dr. Buzney have submitted objective medical data to support their recent medical opinions.
Our physician's report indicates that he made telephone calls to speak with your attending physicians to obtain a clearer picture of your medical condition. The file documentation indicates that our physician spoke with Dr. Yassine over the telephone on 9/9/96. According to our physician's documentation of that conversation, Dr. Yassine explained that he thinks that your visual problems are the cause of your disability, and he does not think that your neck problem is the major issue.
On 9/10/96 our physician spoke with Dr. Loftus, who explained that his 3/5/96 opinion letter on your behalf, as well as his 1/96 functional capacity evaluation, is not based on objective medical evidence, but upon your subjective complaints to him. Dr. Loftus stated that he thinks that your visual problem is the cause of your disability, however he seemed surprised to learn from our physician that you had previously been working with your visual condition. Dr. Loftus would not release you to return to work, and he indicated that he would need to review the medical information he has, and contact us. To date, we have [sic] are not aware that Dr. Loftus has contacted us.
Our physician also spoke with Dr. Tsai on 9/10/96, and Dr. Tsai states that as he has only seen you on one occasion, he is not in a position to evaluate your visual changes over the years. Our physician attempted to speak with Dr. Buzney on 9/6/96, but Dr. Buzney preferred that our physician send him a letter. Our physician sent Dr. Buzney a 9/6/96 letter to obtain more information regarding your visual condition and changes and to ask about the ongoing treatment of your neck condition. To date, we are not aware that Dr. Buzney has responded to our request for information. ...
[Y]ou must provide proof of continued disability and the regular attendance of a physician for the condition for which you claim disability. Although your attending physicians have provided opinion letters which support that you are disabled, our physician does not find sufficient objective medical data; i.e., ongoing treatment records and testing from 1/94 to the present; in your claim file to support the recent statements by your attending physicians.
In addition, our physician has not found sufficient evidence in your claim file that you have had the regular attendance of a physician for your neck and vision conditions for which you now claim continued disability. Moreover, our physician is not able to establish how your vision and neck conditions have worsened since 1994 to preclude work capacity in your regular occupation. You had previously been able to perform your regular occupation with your neck and vision conditions prior to 1/94 when you stopped working due to depression and substance abuse problems.
At this time, we find that there is insufficient medical evidence in your claim file to support your claim that you have been continuously disabled due to your neck and vision conditions, and that you have been under the regular attendance of a physician for these conditions for which you are claiming disability. Therefore, you do not meet the above-referenced policy requirement regarding disability and proof of your claim for disability on a physical basis, and your claim will remain closed.
However, if we receive new, objective medical evidence from Dr. Buzney or Dr. Loftus in the next 30 days from the date of this letter, the information will be reviewed by our medical department for reconsideration. *1021 (Id. at 0080.) According to Unum, no additional evidence was filed within 30 days. On December 18, 1996, Mr. Ragsdale filed the complaint in the present action.
In his motion for summary judgment, Mr. Ragsdale now argues: (1) that the court should review Unum's determination of his disability status de novo to determine whether Mr. Ragsdale is actually disabled under the terms of the Policy; (2) that, under this de novo standard, Mr. Ragsdale should be allowed to present additional evidence of his physical disability for the court's consideration, even though such evidence was not available to Unum when it denied Mr. Ragsdale's request for reclassification; and (3) that Mr. Ragsdale's evidence shows that Unum cannot produce any factual dispute as to his physically disabled status. Alternatively, in Unum's motion for summary judgment, it argues: (1) that Unum's determination of Mr. Ragsdale's disability status should be reviewed under an abuse of discretion standard; (2) that, under this standard, Unum's determination was clearly not an abuse of discretion; (3) that, in any event, Mr. Ragsdale is precluded from introducing additional evidence at this time; and (4) that, regardless of the standard of review adopted by the court, Unum's determination that Mr. Ragsdale was not physically disabled within the terms of the Policy was a correct and irreversible determination. The court will address each of these arguments in turn.
Summary JudgmentStandard of Review
The Court of Appeals for the Sixth Circuit recently summarized the standard of review governing motions for summary judgment under Federal Rule of Civil Procedure 56:
Summary judgment is appropriate where `there is no genuine issue of material fact ... and the moving party is entitled to judgment as a matter of law.' .... [The] court must view all facts and inferences drawn therefrom in the light most favorable to the non-moving party.
The moving party has the burden of conclusively showing that no genuine issue of material fact exists. Nevertheless, in the face of a summary judgment motion, the nonmoving party cannot rest on its pleadings but must come forward with some probative evidence to support its claim.
`By its very terms, this standard provides that the existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.' The dispute must be genuine and the facts must be such that if they were proven at trial, a reasonable jury could return a verdict in favor of the nonmoving party. If the disputed evidence `is merely colorable or is not significantly probative, summary judgment may be granted.'
Leo LaPointe v. United Autoworkers Local 600, 8 F.3d 376, 378 (6th Cir.1993) (citations omitted). With this standard in mind, the court shall analyze the parties' cross-motions for summary judgment.
Law and Analysis
In the court's estimation, the parties raise three legal questions in the context of this litigation. First, what standard of review is the court to use in considering whether Unum's determination of Mr. Ragsdale's disability status should be upheld? Second, is Mr. Ragsdale entitled to introduce additional evidence at this time which was not available to Unum at the time that it made its determination? Third, considering all admissible evidence and the applicable standard of review, should Unum's determination be upheld by this court?
I.
Standard of Review
In Firestone Tire & Rubber Company v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the Supreme Court held that de novo review is appropriate in an action challenging the denial of benefits based on plan term interpretation unless the plan gives the administrator discretionary authority to interpret plan terms. If the plan administrator is given discretion, then the court must apply the highly deferential abuse of discretion standard of review, under which the decision will be overruled only if it *1022 was arbitrary and capricious. Id. 489 U.S. at 115. In the present case, the parties ask the court to determine whether the following language gave Unum the necessary discretion to trigger the abuse of discretion standard:
When the Company receives proof that an insured is disabled due to sickness or injury and requires the regular attendance of a physician, the Company will pay the insured a monthly benefit after the end of the elimination period. The benefit will be paid for the period of disability if the insured gives to the Company proof of continued:
1. Disability; and
2. Regular attendance of a physician.
The proof must be given upon request and at the insured's expense.
(Jensen Aff. at Bates No. 0029.)
A.
Prior Case Law
A discussion of prior case law is necessary before the court can answer the narrow question before it.
In the case of Miller v. Metropolitan Life Ins. Co., 925 F.2d 979 (6th Cir.1991), the Sixth Circuit was asked whether certain language granted discretion to the plan administrator in determining eligibility for benefits. The language stated that a disability determination would be made "on the basis of medical evidence satisfactory to the Insurance Company." Id. at 980. The Sixth Circuit held that such language did, in fact, grant clear discretion to the plan administrator and concluded that the district court correctly applied an arbitrary and capricious standard to review the defendant's termination of benefits. Id.
In Yeager v. Reliance Standard Life Insurance Company, 88 F.3d 376 (6th Cir. 1996), the Circuit was asked to consider whether the requirement that a claimant submit "satisfactory proof of total disability to us" was a sufficient grant of discretion to warrant application of the arbitrary and capricious standard. In holding that there was a grant of discretion, the Circuit stated that:
[t]he critical requirement in Miller is that the evidence of disability be satisfactory. A determination that evidence is satisfactory is a subjective judgment that requires a plan administrator to exercise his discretion. Like the Miller plan, the Plan at issue in this case requires `satisfactory proof of total disability.' It would not be rational to think that the proof would be required to be satisfactory to anyone other than defendant Reliance. Even if the phrase `to us' is interpreted as defining to whom the proof should be submitted, there is no reason to believe that someone other than the party that received the proof would make a determination regarding its adequacy.
Id. at 381. The strength of the Yeager decision (and all inferences which might be drawn from its reasoning) is unclear, however, based on the Sixth Circuit's decision to vacate its ruling in Perez v. Aetna Life Insurance Company, 96 F.3d 813 (6th Cir. 1996). In Perez, the plan contained the following language:
[s]ubsequent written proof of the continuance of such disability must be furnished to Aetna at such intervals as Aetna may reasonably require... Aetna shall have the right to require as part of the proof of claim satisfactory evidence ... (2) that the claimant has furnished all required proofs for such benefits.
Id. at 825. The court originally held that the plan language did not give the plan administrator discretion to determine eligibility for benefits:
[f]irst, simply because Aetna has the ability to require written proof before continuing disability benefits does not mean that Aetna has the discretionary authority to decide whether that proof is sufficient within the meaning of the Plan. Second, simply because Aetna may require `satisfactory proof' does not give the insurance company discretionary authority, either. The quoted Plan provision does not specify to whom the proof should be satisfactory. Perez is probably correct in arguing that this language creates an objective standard proof `satisfactory' to a reasonable person. But all we need decide at this point is that the language does not clearly *1023 give Aetna discretion, which is what the language of an ERISA plan must do under Bruch to trigger abuse of discretion review.
Id. The Sixth Circuit has decided to vacate Perez, and, in doing so, to rethink Yeager. Perez v. Aetna Life Insurance Company, 106 F.3d 146 (6th Cir.1997):
A majority of the judges of this court in regular active service has voted to rehear the instant case en banc, having concluded that the following important issues, also presented and decided in Yeager v. Reliance Standard Life Insurance Co., 88 F.3d 376 (6th Cir.1996) ... are at stake: ...
2. Whether plain language stating that a plaintiff must `submit satisfactory proof .... to us' gives the administrator broad discretion, just as it would if the language read `must submit proof that is satisfactory to us,' see Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 983 (6th Cir.1991.)
Id. To date, the Sixth Circuit has not issued a new decision in Perez. Sixth Circuit Rule 14 states that, "the effect of the granting of a rehearing en banc shall be to vacate the previous opinion and judgment of this court, to stay the mandate and to restore the case on the docket as a pending appeal."
None of the decisions cited above deal with plan language which required "proof" without modifying that term with the word "satisfactory." Defendant, however, cites the case of Bollenbacher v. Helena Chemical Co., 926 F.Supp. 781 (N.D.Ind.1996), in which the court stated:
[a]s a practical matter, it is difficult to detect a qualitative difference between plan language that requires a claimant to submit `proof and one that requires the submission of "such due proof" or even "satisfactory proof." Indeed, adjectives like "satisfactory" seem rather redundant when teamed with the concept of "proof."' .... In short, plan language which requires a claimant to submit `proof' of a claim does, by its very nature, grant discretion to the plan administrator to determine eligibility for benefits.
Id. at 787. Recently, the district court for the Northern District of Kansas adopted the reasoning of the district court's decision in Bollenbacher:
Courts also have found the words `due proof' or simply `proof' to convey discretionary authority. See Patterson v. Caterpillar, Inc., 70 F.3d 503, 505 (7th Cir.1995) (`benefits will be payable only upon receipt by the Insurance Carrier or Company of such notice and such due proof, as shall be from time to time required, of such disability'); Bollenbacher v. Helena Chemical Co., 926 F.Supp. 781, 786 (N.D.Ind.1996) (`benefits will be paid "[w]hen the Company receives proof that the individual is disabled due to sickness or injury and requires regular attendance of a physician"').
The court finds this reasoning persuasive and will apply the arbitrary and capricious standard.
Caldwell v. Life Insurance Company of North America, 959 F.Supp. 1361 (N.D.Kan. 1997). Alternatively, in Plasman v. Unum Life Insurance Company of America, No. 90-873 (W.D.Mich. July 8, 1991) at *1, the district court, interpreting (assumedly) identical language, held that "[t]here is no dispute that Unum's decision to deny plaintiff's claim must be reviewed under a de novo standard of review."
B.
The court finds itself in uncharted waters, or perhaps, in charted waters with an outdated map. The Circuit, in Yeager, clearly emphasized the importance of the word "satisfactory" in determining whether discretion was granted to a plan administrator. Reading Yeager alone, this court would be led to the conclusion that, in the absence of a term such as "satisfactory" or some other similar modifier, the requirement that a disability claimant provide "proof" does not grant discretion to the plan administrator to determine eligibility for benefits. However, the Circuit's decision to vacate Perez, it could be argued, dilutes this message.
The court could attempt to read into the decision to vacate Perez, construing it to mean that the placement, or even presence, of the word "satisfactory" is no longer important because the Circuit is likely to decide *1024 that a requirement of "proof" is itself sufficient to establish discretion on the part of a plan administrator. A narrower reading of the decision to vacate Perez could be that the exact placement of the word "satisfactory" does not matter as long as the modifier (or another word or phrase communicating a similar idea) appears somewhere in the plan. This type of analysis, however, seems particularly speculative, and the court does not approve of side-show fortune-telling in the context of decisions of law.
In Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 1921-22, 104 L.Ed.2d 526 (1989), the Supreme Court stated: "[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." The court chooses to follow this line of reasoning in deciding the matter at hand.
Yeager has not been overruled, and is still good law. In that decision, the Circuit makes explicit that the reason why administrative discretion was found was because a disability claimant was required to provide "satisfactory" proof to the plan administrator. In the present case, Mr. Ragsdale was not required to provide "satisfactory proof" or "due proof." He was only required to produce "proof."
It is true that there are no "magic words" required to trigger the application of the abuse of discretion standard of review, and that an intent to grant discretion need only appear on the face of the plan documents. See Block v. Pitney Bowes, Inc., 952 F.2d 1450, 1453 (D.C.Cir.1992). The court does not believe that it is searching for magic words in this case. Instead, the court is interpreting the language of the Policy in light of controlling Sixth Circuit precedent.
In addition, the court notes that is not entirely persuaded by the reasoning of the Bollenbacher and Caldwell courts. In the court's mind, there is, at least arguably, a difference between the requirement that a claimant submit "satisfactory proof" or "due proof" and the requirement that a plaintiff submit simply "proof." The presence of the modifier could indicate that someone will be in a position to decide whether the proof submitted is, in fact, satisfactory or due. The absence of the modifier could indicate that "proof" will be determined according to objective, reasonable standardswould a reasonable person consider that the existence of a disability had been proved? The court admits that these are only plausible readings of the phrases discussed above, but notes that "we must construe ambiguities in an ERISA plan against the drafter and in favor of the insured." Barnes v. Independent Auto. Dealers of Cal., 64 F.3d 1389, 1393 (9th Cir.1995). Moreover, the Supreme Court stated in Bruch that the default position in these cases is de novo review.
This court finds, therefore, in favor of the insured, Mr. Ragsdale, on the issue of Unum's ability to use its own discretion in deciding whether he was physically disabled. The language of the Policy did not give Unum such discretion, and the court will review its rejection of his claim de novo.
II.
Introduction of New Evidence
Mr. Ragsdale may not introduce new evidence which was unavailable to Unum at the time that his eligibility for benefits was determined. In Miller, the Sixth Circuit held:
when reviewing a denial of benefits under ERISA, a court may consider only the evidence available to the administrator at the time the final decision was made. This limitation applies to both an `arbitrary and capricious' or a `de novo' standard of review.
Miller, 925 F.2d at 986 (citations omitted).
III.
Mr. Ragsdale's Eligibility for Benefits
Finally, the court will decide, using a de novo standard of review, whether Unum's determination that Mr. Ragsdale was not physically disabled was correct. De novo review means a review "without deference to the decision or any presumption of correctness, *1025 based on the record before the administrator." Perry v. Simplicity Engineering, 900 F.2d 963, 966 (6th Cir.1990.) "When a court reviews a decision de novo, it simply decides whether or not it agrees with the decision under review." Id.
The court must, then, determine whether Mr. Ragsdale submitted proof: (1) that he is "disabled due to sickness or injury" and that, for the period of his disability, he has (2) regularly attended a physician. (Jensen Aff. at Bates No. 00029.) Under the Policy, "disability" means that:
because of injury or sickness the insured cannot perform each of the material duties of any gainful occupation for which he is reasonably fitted by training, education, or experience.
(Id. at 00027.)
The court has carefully considered the administrative record before Unum at the time that it made its determination that Mr. Ragsdale had not submitted proof that he was physically disabled and that he has regularly attended a physician during his period of disability. The court finds that the record contains the following relevant evidence: (1) a test report from Ohio Retina Associates stating that Mr. Ragsdale's eyesight was 20-400 (Id. at 00092); (2) the January 22, 1991 report of Dr. Weingart stating that Mr. Ragsdale experienced neck pain from a motor vehicle accident in 1990 (Id. at 00098); (3) the April 16, 1996 report of Dr. Sheldon M. Buzney stating that:
Mr. Ragsdale's retinas appear stable on the basis of previous examinations with evidence for significant macular dysfunction (legal blindness) and severe peripheral retinal degeneration as lattice with holes (treated with laser photocoagulation).
Mr. Ragsdale is able to maximize available macular function OU through the use of low vision aids; but these aids require strenuous effort and incredible physical adaptability. With low vision aids, objects to be viewed must be held extremely close to the eye and often objects to be scanned must be assessed monocularly. It is quite apparent to me that Mr. Ragsdale's cervical disc disease even as optimally treated as at present and other optical devices which would allow him to recruit sufficient macular function so as to perform his profession as a creative director (advertising agency). Mr. Ragsdale should, in my opinion, definitely be considered fully disabled with regard to his previous profession as creative director what with the severe limitations placed upon use of his vision as a result of his cervical disease. I believe it is a miscalculation to believe that Mr. Ragsdale's visual function is equal to that which he enjoyed prior to his accident and the ensuing disabilities.
(Id. at 00109); (4) the 3/15/96 report from Dr. Zouhair C. Yassine, stating that Mr. Ragsdale is:
a gentleman whose job is a creative director in an advertising agency. As such, he writes at a computer, edits films and video tapes in a computer situation, he also composes music in computer situations. He works with visual material. He has to interact with the employees and he spends 30% of his time traveling.
This patient in the past had a serious industrial injury to his cervical spine which required a laminectomy and a fusion of the 5th and 6th cervical vertibrae. The patient developed an alcohol and drug abuse situation which required treatment in drug abuse centers. The present problem the patient is facing is that in spite of his pain that he has in the cervical spine he cannot take medication because of the genetic disorder of his blood with lack of Choline Esterase Enzyme. The drugs which would relieve his pain are habit forming and the patient does not dare take them.
His problem is further complicated with his visual difficulties. He is considered legally blind. He was treated for congenital nystagmus and he has had surgery on his left eye. He is presently learning braille and is learning all the techniques blind people use to be able to survive.
It is very difficulty [sic] for this patient to continue carrying on his duties working with a computer as this causes discomfort in his neck for which he cannot take any medication for relief. This is further complicated by his blindness which should *1026 make it more difficulty [sic] to work with computers which is a necessity in his job.
(Id. at 000115); (5) the 3/5/96 report of Dr. Martin Loftus stating that he has treated Mr. Ragsdale for over a year and chronicling Mr. Ragsdale's cervical pain, addiction to drugs, and vision problems; (Id. at 00125); (6) Unum report acknowledging that Mr. Ragsdale would be restricted if he returned to work: "i.e. no prolonged standing / walking, limited lifting, limited bending" but stating that no objective evidence existed to show why he could work prior to 1/1/94 but could not work after that date, (Id. at 00134) (7) Report of Dr. Loftus containing phrase that Mr. Ragsdale could return to work part time "if his employment needs and limitations are met", (Id. at 00140); (8) 2/6/95 report of Dr. Garry Pennington finding congenital nystagmus, cervical spine fusion with cervical spine pain and stiffness with diminished range of motion, and a limitation to sitting, standing, lifting, carrying, and seeing (Id. at 00149.); (9) 2/6/96 X Ray Interpretation by Dr. Szung B. finding "degenerative arthritis of the cervical spine" (Id. at 00150); (10) 8/14/93 report of Dr. Sanford Emery discussing Mr. Ragsdale's back and neck pain and his limitation of sitting for only 15 minutes, walking 200 yards and standing for 10-15 minutes (Id. at 00155); (11) the determination by the Social Security Administration that Mr. Ragsdale is disabled (Id. at 00209).
The court finds, based on this evidence and other evidence in the record, that Mr. Ragsdale is physically disabled within the meaning of the Policy, and that he has regularly seen a physician, Dr. Loftus, for the period of his disability (as well as numerous other physicians). The court finds that the combination of Mr. Ragsdale's vision problems, addiction to drugs, and cervical injuries, make him entirely unable to return to work as an executive for Meldrum.
It is true, as Unum noted in its original letter denying Mr. Ragsdale's reclassification, that the doctors who have opined as to Mr. Ragsdale's condition have not provided Unum with specific tests showing the degeneration of Mr. Ragsdale's physical condition since 1/1/94. Nevertheless, it does not appear to the court that Unum could contest that Mr. Ragsdale is now severely limited physically. He is unable to take certain pain medication because of his addictions, and is unable to continue using visual aids because of the pain from his cervical injuries. He suffers from degenerative arthritis in his back, and cannot walk, sit, or stand for any amount of time. While his vision may not be getting any worse, and the court is not even sure of this fact, his visual impairments are clearly more debilitating as his back pain and his addictions combine to limit him in other realms of activity. Numerous doctors have opined that Mr. Ragsdale is unable to work due to his physical disabilities. Mr. Ragsdale is entitled to a reclassification as physically disabled under the Policy.
Conclusion
Mr. Ragsdale is to be reclassified as physically disabled, and is entitled to back benefits from April 1, 1996, the date that his mental disability benefits ended, as well as those future benefits attendant to the Policy for physically disabled persons.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267736/ | 471 Pa. 278 (1977)
370 A.2d 301
COMMONWEALTH of Pennsylvania
v.
Samuel R. DAVENPORT, Appellant.
Supreme Court of Pennsylvania.
Submitted November 17, 1975.
Decided March 16, 1977.
*279 *280 Robert P. Paskings, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION OF THE COURT
ROBERTS, Justice.
Appellant, Samuel R. Davenport, was convicted of murder of the second degree after a jury trial. Post-trial motions were denied, and appellant was sentenced to eight to twenty years imprisonment. In this appeal,[1] he asserts that he is entitled to a new trial because a *281 statement taken from him should have been suppressed as the product of unnecessary delay between arrest and arraignment in violation of Pa.R.Crim.P. 130. Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). We conclude that there was unnecessary delay between appellant's arrest and arraignment[2] and that the statement taken from appellant while in custody should have been suppressed.[3] We reverse and remand for a new trial.
I
On April 2, 1973, Richard Kennedy, a security guard, was stabbed in the locker room of the Triangle Publications Building in Philadelphia. Appellant was arrested at approximately 1:50 a.m. on April 3, 1973, several blocks from the premises by police officers who noticed that he was wearing his jacket inside out and that it was bloodstained. Appellant was immediately taken to the hospital where Kennedy was being treated. Kennedy, who died ten days later, could not identify appellant with certainty. Appellant was taken to the Central Detective Division headquarters at 2:15 a.m. and was placed in a detention room. At 3:08 a.m. he was given his Miranda warnings, and asked to participate in a line-up. He executed a written waiver of his right to counsel at the *282 line-up. At 3:22 a.m. he was taken back to the detention room.
Appellant was held in the detention room until 5:00 a. m., when a line-up was conducted. At the conclusion of the line-up at 6:00 a.m., a detective told appellant that he had been identified as having been at the Triangle Publications Building the evening of the stabbing, and then began another interrogation session. Appellant denied any involvement in the killing. At 9:20 a.m. there was a break in the interrogation while appellant's clothing was taken for laboratory testing pursuant to a search warrant. After receiving assurances that the victim was still alive, appellant made his first admission of guilt at 9:55 a.m., eight hours after arrest. A written statement was taken at 11:30 a.m., and a formal typewritten statement was later taken, which appellant signed at 2:40 p. m. The last entry on the police department records is 2:50 p.m., when appellant was slated. At the suppression hearing, defense counsel tried to ascertain the time of arraignment, but the police did not know when he was arraigned. Appellant's uncontradicted testimony was that he was not arraigned until 9:30 p.m., 19½ hours after his arrest.
II
A. The Pennsylvania Rules of Criminal Procedure require that an individual who is arrested be brought before a judicial officer for preliminary arraignment without unnecessary delay. Pa.R.Crim.P. 122, 130.[4] The purpose of this requirement is to insure that the accused *283 is promptly afforded the protections embodied in Pa.R. Crim.P. 140.[5]Commonwealth v. Dixon, 454 Pa. 444, 311 A.2d 613 (1973); Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973). Rule 140 provides that the court shall inform the accused of the charges against him, his right to counsel, his right to bail and his right to a preliminary hearing. Thus, the requirement of a prompt arraignment serves to protect the accused's right to know "the nature and cause of the accusation against him," Pa.Const. art. I, § 9, his right to counsel, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); U.S.Const. Amends. VI, XIV; Pa.Const. art. I, § 9, and his right to reasonable bail. Pa.Const. art. I, § 14. It also protects the accused's right to be free from unreasonable seizure of his person. See Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); U.S.Const. amends. IV, XIV; Pa.Const. art. I, § 8.
The requirement of a prompt arraignment reflects the importance of having the accused informed of these rights by a neutral judicial authority, see Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973), and serves to check against abuse of an accused's rights by the arresting authority:
"The prohibition . . . against any unnecessary delay between an arrest by an accusatorial authority *284 and a preliminary arraignment minimizes the possibility of any unnecessary abridgement of a citizen's liberty. Such an abridgement would, of course, be unconstitutional. The danger of any such unnecessary and unconstitutional restriction of liberty diminishes significantly when a citizen is brought swiftly before a neutral judicial authority. . . ."
Commonwealth v. Dixon, 454 Pa. 444, 446, 311 A.2d 613, 614 (1973).
In order to enforce the prompt arraignment requirement this Court held in Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), that evidence obtained during an unnecessary delay between arrest and preliminary arraignment is inadmissible at trial. This rule was adopted not simply to guard against the coercive influence of custodial interrogation, but to ensure that the rights to which an accused is entitled at preliminary arraignment are afforded without unnecessary delay. "[T]he exclusion. . . of statements made during the illegal delay in producing a person before a magistrate . . . is premised not only on the possible coercive effect of the delay itself, but on the postponing of the additional protections which attach on production." Model Code of Pre-Arraignment Procedure § 150.2 Commentary, at 388 (1975).
B. In Commonwealth v. Williams, 455 Pa. 569, 319 A.2d 419 (1974), this Court established a three part test for determining whether evidence obtained during a pre-arraignment delay will be suppressed: (1) the delay must be unnecessary; (2) the evidence must be prejudicial; and (3) the evidence must be reasonably related to the delay.
The police records in this case indicate that appellant was not arraigned for at least thirteen hours after his arrest, and appellant's uncontradicted testimony was that he was not arraigned until 19½ hours after his arrest. After his arrest appellant was initially unwilling *285 to admit any involvement in the crime. The delay was caused by a line-up, interrogation of the accused, and execution of a search warrant.
We conclude that the eight hour delay between appellant's arrest and his first admission was unnecessary.[6] Arresting an individual and holding him over an extended period while continuing an investigation constitutes unnecessary pre-arraignment delay. Commonwealth v. Showalter, 458 Pa. 659, 328 A.2d 841 (1974); Commonwealth v. Cherry, 457 Pa. 201, 321 A.2d 611 (1974). Extended delay for the purpose of obtaining incriminating statements is also unnecessary. Commonwealth v. Barilak, 460 Pa. 449, 333 A.2d 859 (1975); Commonwealth v. Williams, 455 Pa. 569, 319 A.2d 419 (1974). The extended pre-arraignment delay in this case can be attributed to investigation and interrogation. Therefore the delay was unnecessary. See Commonwealth v. Cherry, 457 Pa. 201, 321 A.2d 611 (1974).
The second part of the Williams test requires that the evidence be prejudicial. Here, it is clear that the introduction of appellant's admission at trial was prejudicial. See e.g., Commonwealth v. Williams, 455 Pa. 569, 572-73, 319 A.2d 419, 420 (1974); cf. Stroble v. California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872 (1952) (Admission of confession is not harmless error, even though five confessions, of similar substance were properly admitted into evidence).
Finally, we must decide whether the evidence obtained is reasonably related to the delay. It is not required that the unnecessary delay be the sole cause of appellant's *286 admission; it is enough that the unnecessary delay bear some relationship to the evidence obtained. Commonwealth v. Barilak, 460 Pa. 449, 333 A.2d 859 (1975); Commonwealth v. Cherry, 457 Pa. 201, 321 A.2d 611 (1974); Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972). Here, appellant initially denied any involvement in the crime. Only after eight hours in custody, during which he was subjected to two interrogation sessions, his clothing was seized, and he was identified at a line-up, did appellant finally make an incriminating statement. We conclude that this statement was reasonably related to the unnecessary delay. See Commonwealth v. Cherry, 457 Pa. 201, 321 A.2d 611 (1974); Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973).
Accordingly, appellant's statement should have been suppressed as the product of an unnecessary pre-arraignment delay. Because this statement was admitted over objection at appellant's trial, he is entitled to a new trial.
III
In light of our experience since Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), we conclude that, pursuant to our supervisory power, we should adopt a rule under which the admissibility of any statement taken while the accused is in custody before preliminary arraignment is based on the length of the delay between arrest and arraignment. If the accused is not arraigned within six hours of arrest, any statement obtained after arrest but before arraignment shall not be admissible at trial.[7] If the accused is arraigned within six hours of arrest, *287 pre-arraignment delay shall not be grounds for suppression of such statements except as the delay may be relevant to constitutional standards of admissibility. See Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968).
This rule will assure more certain and even-handed application of the prompt arraignment requirement, and will provide greater guidance to trial courts, the bar and law enforcement authorities. Such a rule will simplify the task of determining the admissibility of statements taken before arraignment and thereby further judicial economy. It will also lessen the burden on prosecution and defense resources. In many cases this rule should eliminate the need for pre-trial litigation of the admissibility of statements by the defendant and thus help reduce pre-trial delay. Moreover, a rule based on the length of delay between arrest and arraignment will better serve to deter violations of the prompt arraignment requirement and to ensure that the protections afforded *288 at preliminary arraignment are made available without unnecessary delay.
Accordingly, we adopt a standard under which the admissibility of statements allegedly taken in violation of the prompt arraignment requirement will be determined by the length of delay between arrest and arraignment. This standard shall apply to all cases in which the accused is arrested after the date of this opinion.
Judgment of sentence reversed and a new trial granted.
JONES, former C.J., did not participate in the decision of this case.
ORDER
While we do not accept several allegations in the application of the District Attorney for stay of the new Rule of Criminal Procedure recently announced in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), and have no intention of reconsidering said Rule, we do direct that the effective date thereof be postponed until May 16, 1977.
NOTES
[1] We hear this case pursuant to the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, § 202(1), 17 P. S. § 211.202(1) (Supp. 1976).
[2] The Commonwealth contends that appellant's claim that his statement was obtained as a result of unnecessary delay between arrest and arraignment has not been preserved for appellate review. The Commonwealth argues that the claim was not raised in appellant's pre-trial suppression motion or at trial. After review of the record, we conclude that appellant has preserved his claim. It appears from the record that the Futch claim was argued at the suppression hearing: the issue was presented at another suppression hearing held to determine the admissibility of the line-up identification. At trial, appellant's counsel objected to the introduction of appellant's statement, stating that he wanted to "renew" his objection made at the suppression hearing to the confession obtained "in violation of the rules of Tingle, Dutton, Futch."
[3] In view of our resolution of this issue, it is unnecessary to address appellant's claim that his confession was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966).
[4] Rule 122, formerly Rule 116, provides:
"When a defendant has been arrested, with a warrant, within the county where the warrant of arrest was issued, where the complaint charges a court case, he shall be taken without unnecessary delay before the issuing authority whose name appears upon the warrant for preliminary arraignment."
Rule 130, formerly Rule 118, provides:
"When a defendant has been arrested without a warrant in a court case, he shall be taken without unnecessary delay before the proper issuing authority where a complaint shall be filed against him and he shall be given an immediate preliminary arraignment."
[5] Rule 140, formerly Rule 119, provides, in part:
"(a) At the preliminary arraignment, the issuing authority shall not question the defendant respecting the offense charged, but shall forthwith deliver a copy of the complaint to him. The issuing authority shall also inform the defendant:
(1) of his right to secure counsel of his choice and his right to be assigned counsel in accordance with Rule 318;
(2) of his right to have a preliminary hearing or, except as provided in these rules, to waive it;
(3) if the offense is bailable, of the amount of bail demanded and the types acceptable as provided in these rules; and
(4) where to apply for bail if the offense is not bailable before the issuing authority.
(b) If the defendant desires to post bail, secure counsel or notify others of his arrest, he shall be held but not be committed to jail until he has been given immediate and reasonable opportunity to do so."
[6] In Commonwealth v. Barilak, 460 Pa. 449, 333 A.2d 859 (1975) we held that a statement taken five and one quarter hours after arrest was the product of an unnecessary pre-arraignment delay. See Commonwealth v. Bey, 462 Pa. 533, 341 A.2d 907 (1975) (opinion of Nix, J., joined by Roberts and Manderino, JJ.) (five hours); Commonwealth v. Johnson, 459 Pa. 171, 327 A.2d 618 (1974) (opinion of O'Brien, J., joined by Roberts and Manderino, JJ.) (four hours).
[7] We recognize that it is difficult to fix any particular time limit. Nevertheless, we conclude that it is desirable to set such a standard, and that six hours provides a workable rule which can readily be complied with in the absence of exigent circumstances.
In no case have we held that a delay of six hours or more was not an "unnecessary delay." See e.g., Commonwealth v. Lasch, 464 Pa. 259, 346 A.2d 547 (1975); Commonwealth v. Cullison, 461 Pa. 301, 336 A.2d 296 (1975); Commonwealth v. Barilak, 460 Pa. 449, 333 A.2d 859 (1975); Commonwealth v. Showalter, 458 Pa. 659, 328 A.2d 841 (1974); Commonwealth v. Parker, 458 Pa. 381, 327 A.2d 128 (1974); Commonwealth v. Sanders, 458 Pa. 281, 327 A.2d 43 (1974); Commonwealth v. Cherry, 457 Pa. 201, 321 A.2d 611 (1974); Commonwealth v. Williams, 455 Pa. 569, 319 A.2d 419 (1974); Commonwealth v. Dixon, 454 Pa. 444, 311 A.2d 613 (1973); Commonwealth v. Wayman, 454 Pa. 79, 309 A.2d 784 (1973), overruled on other grounds, Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48 (1975); In re Geiger, 454 Pa. 51, 309 A. 2d 559 (1973); Commonwealth v. Dutton, 453 Pa. 547, 307 A.2d 238 (1973); Commonwealth v. Tingle, 451 Pa. 241, 301 A.2d 701 (1973).
We note also that the National Advisory Commission on Criminal Justice has recommended a maximum time limit of six hours. Standards and Goals of the National Advisory Commission on Criminal Justice, Corrections § 4.5 (1973). ("A person in the physical custody of a law enforcement agency on the basis of an arrest, with or without a warrant, should be taken before a judicial officer without unnecessary delay. In no case should the delay exceed 6 hours.") (emphasis added); see Model Code of Pre-Arraignment Procedure § 130.2 (1975) (accused may be held for two hours before he is brought before a judicial officer, except under special circumstances when an additional three hours are allowed). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266876/ | 259 Md. 228 (1970)
269 A.2d 604
VON STEINNER
v.
SORRELL, EXECUTOR OF ESTATE OF BONNIE LOVE VON STEINNER-GOLTL ET AL.
[No. 14, September Term, 1970.]
Court of Appeals of Maryland.
Decided October 15, 1970.
The cause was argued before HAMMOND, C.J., and BARNES, McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.
Harvey Rosenberg for appellant.
Edward D. Higinbothom for appellee Adelaide D. Grant. No brief filed on behalf of other appellee.
SINGLEY, J., delivered the opinion of the Court.
Bonnie Love Von Steinner-Goltl, a widow, died domiciled in Prince George's County, Maryland, on 30 September 1968. Her will, dated 9 August 1968, which was admitted *229 to probate, provided for the payment of her funeral expenses, made several specific bequests, and then provided:
"I give, devise and bequeath all my right, title and interest in my house and lots in Highlands, North Carolina, my new Buick Skylark automobile, and color television to my friend, Mrs. Adelaide Grant, who currently resides at Apartment #201, 2101 North Glebe Road, Arlington, Virginia, in the event she shall survive me. All payments on said property are to be made by Oscar McMillan."
By the next paragraph, Mrs. Von Steinner-Goltl gave and devised the residue of her estate to her step-son, Albert Von Steinner, Jr.
When W. Byron Sorrell, the executor of the will, realized that prior to the execution of the will, and on 7 August 1967, his testatrix had conveyed her property at Highlands, North Carolina to Oscar J. McMillan and wife and had taken in return their note, secured by a deed of trust, providing for monthly payments of $151.90, accounting from 1 October 1967, he brought suit in the Circuit Court for Prince George's County, Maryland, for a declaration of the rights of Mrs. Grant and Mr. Von Steinner under Mrs. Von Steinner-Goltl's will.
From an order directing that the note representing the unpaid balance of purchase price of the North Carolina property, together with the amount collected after the death of the testatrix, be delivered to Mrs. Adelaide Grant, Albert Von Steinner, the residuary legatee, has appealed.
The thrust of the appellant's argument is that the provision made for Mrs. Grant was a specific devise, which was adeemed by the sale of the property, and that the proceeds of sale do not pass to Mrs. Grant, but fall into the residuary estate, relying on Schildt v. Schildt, 201 Md. 10, 92 A.2d 367 (1952); Gardner v. McNeal, 117 Md. *230 27, 82 A. 988 (1911); and Kunkel v. MacGill, 56 Md. 120 (1881).
The inherent weakness in the appellant's contention stems from the definition of ademption. Ademption is "revocation, recalling, or cancellation, of a legacy, according to the apparent intention of the testator, implied by the law from acts done by him in his life, though such acts do not amount to an express revocation of it." Black's Law Dictionary 60 (4th ed. 1951). While in a strict sense, the doctrine is applicable only to bequests of personalty, a similar result obtains in the case of devises of realty under the name of revocation. But in either case, it is the result of the non-existence of the thing bequeathed or of the interest devised in consequence of some act of the testator subsequent to the execution of the will. "If testator did not own the property when he made his will, or if it had then ceased to exist, such failure would ordinarily not be classified as an ademption, since this term is generally used to refer to specific bequests which might have taken effect if testator had died immediately after making his will." Page on Wills, § 54.6 (1962) at 250; Miller, Construction of Wills in Maryland, § 141-1 (1927) at 381-83; Sykes, Probate Law and Practice, § 86 (1956) at 99; Walker v. Waters, 118 Md. 203, 84 A. 466 (1912).
In Frick v. Frick, 82 Md. 218, 33 A. 462 (1895), the testator devised his house in Carroll County to his widow for life, with remainder over; bequeathed his "personal property" to his daughter Lillian, absolutely; and directed that the "balance" of his estate be divided among four of his children. There was testimony that prior to the execution of the will, the testator had sold a 47-acre farm to his son, and had later taken in return a note for $1,200.
In holding that Lillian, as legatee of her father's "personal property," took no interest in the proceeds of the sale of the farm, Judge Boyd, speaking for the Court, said:
"* * * It has generally been held that if a testator devise lands and then contracts for the *231 sale of them, the devisee takes the legal estate, and only that, in equity, by reason of the revocation of the devise by the alteration of the estate. But if he has previously sold the lands and then devises them by words comprehensive enough to embrace all his interest in them, including his interest in the purchase money, we can see no valid reason why the latter should not pass to the devisee as well as the legal estate." (Emphasis in original) 82 Md. at 227.
If we remember that at the time she executed her will, Mrs. Von Steinner-Goltl had sold her North Carolina property to McMillan, Item Fourth of her will, despite the inept language, can have but one meaning. When she said:
"I give, devise and bequeath all my right, title, and interest in my house and lot in Highlands, North Carolina * * * to my friend, Mrs. Adelaide Grant * * *. All payments on said property are to be made by Oscar McMillan."
it was clearly her intention that whatever interest she might have in the property at the time of her death, including, but not limited to, the payments to be made by McMillan, was to pass to Mrs. Grant. This result is clearly distinguishable from that reached when an asset is disposed of subsequent to the execution of the will, and a bequest or devise of the asset is held not to pass the proceeds of sale. See, for example, Gardner v. McNeal, supra, 117 Md. at 36; Johns Hopkins Univ. v. Uhrig, 145 Md. 114, 125 A. 606 (1924); Elwyn v. De Garmendia, 148 Md. 109, 128 A. 913, 40 A.L.R. 553 (1925).
It is scarcely necessary to reiterate that the determination of the intention of the testator is the cardinal principle in construction cases. Veditz v. Athey, 239 Md. 435, 448, 212 A.2d 115 (1965); Shellady, Inc. v. Herlihy, 236 Md. 461, 471, 204 A.2d 504 (1964); Davis v. Mercantile-Safe Deposit & Trust Co., 235 Md. 266, 269, 201 *232 A.2d 373 (1964); Marty v. First Nat'l Bank of Baltimore, 209 Md. 210, 216, 120 A.2d 841 (1956); Fersinger v. Martin, 183 Md. 135, 138, 36 A.2d 716 (1944); Gilmer v. Aldridge, 154 Md. 632, 637, 141 A. 377 (1928); Adams v. Morrow, 42 Md. 434, 441 (1875).
Despite the inartistic phraseology, nothing could be clearer than Mrs. Von Steinner-Goltl's intention that Mrs. Grant should receive whatever interest she might have in the North Carolina property at the time of her death.
At argument before us, counsel for the parties stipulated that costs be paid from the fund, and the mandate will so provide.
Order affirmed, costs on appeal and below to be paid by appellee, Adelaide Grant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/827206/ | Order Michigan Supreme Court
Lansing, Michigan
August 24, 2011 Robert P. Young, Jr.,
Chief Justice
Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
142438-9(65) Mary Beth Kelly
Brian K. Zahra,
Justices
DELAINA PATTERSON, as Personal
Representative for the Estate of Sherrill Turner,
Deceased, and Robert Turner, a Minor, Individually,
by his Next Friend, DELAINA PATTERSON,
Plaintiff-Appellee,
SC: 142438-9
v COA: 288375, 291287
Wayne CC: 08-111034-NO
SHERRY NICHOLS,
Defendant,
and
TERRI SUTTON,
Defendant-Appellant.
_________________________________________
On order of the Chief Justice, the motion by defendant-appellant for extension of
the time for filing her brief and appendix is considered and it is granted.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
August 24, 2011 _________________________________________
Clerk | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382136/ | 538 S.E.2d 175 (2000)
245 Ga. App. 523
KNOWLES
v.
The STATE.
No. A00A1673.
Court of Appeals of Georgia.
August 10, 2000.
*176 Gary L. Knowles, pro se.
David D. McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.
*177 PHIPPS, Judge.
Gary Leon Knowles was convicted in the Douglas Superior Court of aggravated assault, aggravated battery, and possession of cocaine. His enumeration of errors begins with challenges to the sufficiency of the evidence and ends with a claim of ineffective assistance of counsel. We find no trial error or evidentiary insufficiency, and we conclude that the ineffectiveness claim has not been timely raised. The judgment is therefore affirmed.
Testimony given by Ginger Leigh Campbell and Carl Register showed that throughout the day in question, Campbell, Register, and Knowles were smoking crack cocaine at Register's house in Douglas County and at Knowles's apartment. According to Campbell, she and Knowles left Register's house in the evening and returned to Knowles's apartment, where he began acting paranoid. Because of Knowles's erratic behavior, Campbell told him that she wanted to leave. Campbell testified that while Knowles was driving her to an undisclosed location, he abruptly stopped his truck and brandished a butcher knife. Although Campbell escaped from the truck, Knowles ran her down and stabbed her repeatedly with the knife. After Knowles departed the scene, Campbell attempted to flag down vehicles to assist her. The operator of a truck saw her but did not stop. Eventually, another motorist picked her up and took her to a nearby hospital.
James Davis was the driver of the truck that failed to stop. He later called the county sheriff's department and alerted authorities to what he had seen. Douglas County Deputy Sheriff Harrell responded to the call and located Campbell at the hospital. While being treated for life-threatening stab wounds, Campbell informed Harrell of the circumstances under which Knowles had attacked her with the butcher knife. She also provided the officer with a description of the clothes Knowles was wearing, the truck he was driving, and directions to his apartment.
Deputy Harrell found Knowles at his apartment. Knowles admitted that he had been with Campbell earlier, but he claimed that she had left his apartment hours before the knife attack and that he had then fallen asleep. During a consent search of Knowles's apartment, the deputy found a knife holder with one knife missing. When asked to explain the whereabouts of the missing knife, Knowles responded that he and Campbell had been arguing and that she had taken the knife with her when she left.
A plastic bag was found floating in a toilet in Knowles's apartment. The bag fit Campbell's and Register's description of the packaging for the cocaine they had smoked with Knowles. Blood and urine taken from Knowles tested positive for cocaine and metabolites of cocaine. An item of personal property belonging to Campbell was found in Knowles's truck. Campbell's treating surgeon testified that her stab wounds could have been inflicted with a knife fitting the measurements she estimated.
Russell Sharp, Knowles's co-inmate at the Douglas County Jail, testified that Knowles had confided to him that he had stabbed Campbell because of her desire to leave his apartment after he had purchased cocaine for her rather than remaining there and having sex with him. Knowles told Sharp that he had discarded the knife in a wooded area and that he had hidden the clothes he had been wearing.
1. Knowles contests the sufficiency of the evidence to support the verdict based primarily on challenges to Campbell's credibility, the absence of blood evidence or other physical evidence linking him to the crimes, and discrepancies in the State's evidence concerning the timing of Davis's call to the sheriff's department.
The credibility of witnesses and the weight to be given their testimony are questions for the trier of fact, and it is not for us to determine or question how the jury resolved any conflicts in the evidence.[1] Viewed in a light most favorable to the verdict, the evidence was clearly sufficient to have authorized any rational trier of fact to find *178 Knowles guilty beyond a reasonable doubt of the crimes charged.[2]
2. Knowles charges the trial court with error in not recording opening statements, closing arguments, and voir dire.
Prior to trial, Knowles filed a motion pursuant to OCGA §§ 17-8-5 and 5-6-41 for complete recordation of all proceedings. Although opening statements, closing arguments, and voir dire are excepted from recordation under these statutes,[3] Knowles requested in the body of his motion that these parts of the proceeding be recorded. The court did not, however, rule on the motion, and Knowles raised no objection at trial. Therefore, Knowles has waived this claim of error.[4]
3. Knowles contends that the State failed to prove venue in Douglas County for his conviction of possession of cocaine.
There is no merit in this contention. Campbell's and Register's testimony, coupled with the evidence showing the presence of cocaine and cocaine metabolites in Knowles's blood, was sufficient to support a finding that he possessed cocaine at Register's house in Douglas County.[5]
4. Knowles complains of the trial court's refusal to declare a mistrial after Sharp testified to the length of time Knowles had been in jail awaiting trial. Reference to the length of time a defendant has been in pretrial detention is not grounds for a mistrial.[6] For this reason, this complaint is without merit.
5. Knowles contends that the trial court erred in admitting in evidence a photograph of his truck which also showed him in handcuffs during his arrest. Because all the circumstances connected with a defendant's arrest are considered proper evidence to be submitted to the jury,[7] this contention is without merit.
6. Knowles charges the trial court with error in allowing Davis to testify after the prosecutor informed defense counsel that Davis would not appear at trial.
Although the prosecution supplied the defense with the information about this witness required under the reciprocal discovery statute,[8] the prosecutor told defense counsel shortly before trial that Davis could not be located. After opening statements, the prosecutor announced that his investigators had found Davis. The trial court overruled defense counsel's objection to the witness's testimony.
Knowles states that the prosecutor's pretrial representation that the witness could not be located induced defense counsel to comment in his opening statement that the State would not be able to produce evidence that was later admitted through Davis's testimony. As a result, Knowles complains that his counsel's credibility was harmed. We find no harm to the defense sufficient to warrant a reversal.
Opening statement is intended to provide defense counsel with an opportunity to comment on what he "expects" the evidence to show.[9] If evidentiary expectations expressed by defense counsel proved inaccurate as a result of the State's belated discovery of the witness, counsel could have restored any lost credibility by explaining the reasons for his comments.[10] It does not appear that the trial court abused its discretion in permitting the witness to testify.
*179 7. Knowles contends that comments by the prosecuting attorney during closing argument concerning the defendant's failure to present a defense constituted an infringement of his right to remain silent. The court ruled that, taken in context, the remarks were not improper. Under the present record, which does not include the closing argument,[11] we must assume that this ruling was correct.
8. Knowles contends that the trial court abused its discretion in instructing the jury to disregard part of defense counsel's closing argument.
During closing argument, defense counsel produced and measured a knife fitting the description of that used by Knowles in his attack on Campbell. In response to an objection by the State after closing argument had concluded, the trial court instructed the jury to disregard this demonstration. Because counsel is not authorized to present new evidence in closing argument,[12] and because it does not appear that the knife and measuring implement utilized by defense counsel had been admitted in evidence, we find no error.
9. Knowles charges his trial lawyer with ineffective assistance.
Knowles's trial attorney filed a motion for new trial on the general grounds. Months later, a new attorney was appointed to represent Knowles. Knowles's new attorney filed an amended motion for new trial without raising any claim of ineffective assistance of counsel. Several months after the court denied the amended motion, Knowles's new attorney moved for an out-of-time appeal on the ground that he had not received the order denying the amended motion for new trial. The court granted the motion for out-of-time appeal, and counsel filed a notice of appeal on behalf of Knowles. Following the docketing of the appeal, Knowles filed a motion seeking permission to represent himself pro se, and his new attorney filed a motion to withdraw as counsel. We remanded the appeal to the trial court for the purpose of acting on these motions. After the trial court granted the motions, the present notice of appeal was filed. Knowles now claims that his trial attorney was ineffective.
The question is whether the ineffectiveness claim has been asserted in a timely fashion.
Our Supreme Court has clearly stated that "the rule that an ineffectiveness claim must be raised at the earliest practicable moment requires that that claim be raised before appeal if the opportunity to do so is available; that the ability to raise the issue on motion for new trial represents such an opportunity; and that the failure to seize that opportunity is a procedural bar to raising (that) issue at a later time." [Cit.] Accordingly, if an appellant obtains new counsel prior to appeal, and counsel has the opportunity to raise the issue of ineffectiveness through a motion for new trial but fails to do so, we will not remand the case but will find that appellant has waived his right to raise the issue.[13]
Because Knowles in consultation with his second lawyer had the opportunity to raise the claim of ineffective assistance in the amended motion for new trial, the ineffectiveness claim has been waived.[14]
Judgment affirmed.
JOHNSON, C.J., and SMITH, P.J., concur.
NOTES
[1] Davis v. State, 223 Ga.App. 346, 347(1), 477 S.E.2d 639 (1996).
[2] Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979).
[3] Primas v. State, 231 Ga.App. 861, 862(1), (2), 501 S.E.2d 28 (1998).
[4] See id. at 862(2), 501 S.E.2d 28.
[5] See Green v. State, 260 Ga. 625(1), 398 S.E.2d 360 (1990).
[6] See Ferrell v. State, 198 Ga.App. 270, 272(3), 401 S.E.2d 301 (1991) (evidence that an accused has been in jail in connection with the case at issue does not place his character in evidence).
[7] State v. Luke, 232 Ga. 815, 816, 209 S.E.2d 165 (1974).
[8] OCGA § 17-16-1 et seq.
[9] See Uniform Superior Court Rule 10.2.
[10] Compare West v. State, 213 Ga.App. 362, 444 S.E.2d 398 (1994).
[11] See Division 2, supra.
[12] See Williams v. State, 254 Ga. 508, 511(3), 330 S.E.2d 353 (1985).
[13] (Emphasis omitted.) Howard v. State, 233 Ga.App. 724, 730(7), 505 S.E.2d 768 (1998).
[14] McBride v. State, 213 Ga.App. 857(2), 446 S.E.2d 193 (1994). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382165/ | 538 S.E.2d 93 (2000)
246 Ga. App. 172
KLINE
v.
ATLANTA GAS LIGHT COMPANY.
No. A00A1721.
Court of Appeals of Georgia.
August 2, 2000.
Reconsideration Denied September 28, 2000.
*94 Talbot & Rowe, Thomas W. Talbot, Macon, for appellant.
Chambless, Higdon & Carson, John J. Makowski, Jon C. Wolfe, Macon, for appellee.
RUFFIN, Judge.
The issue presented is whether the payee of a money order is liable for conversion if, after negotiating the instrument, the payee learns that the money order was issued in the wrong amount. We hold that the payee is not liable under these circumstances.
The complaint alleges that on August 28, 1995, Helen Williams purchased a money order from the U.S. Postal Service. Although Williams only tendered $37.68, postal employee Kathy Kline erroneously issued the money order in the amount of $376.80. The money order was payable to Atlanta Gas Light Company. Williams forwarded the money order to Atlanta Gas Light which credited $17.96 toward Williams' gas bill and the remaining $358.84 toward the balance due on an installment contract between Williams and Atlanta Gas Light.
Several months later, the U.S. Postal Service apparently discovered Kline's mistake, and it required Kline to pay it $339.12, which was the amount overpaid. Kline then contacted Williams, who allegedly assigned to Kline any right to recover the overpayment from Atlanta Gas Light.
In March 1996, Atlanta Gas Light learned of the alleged error when Kline requested that the company pay her the $339.12. Atlanta Gas Light refused, and Kline filed suit against both Williams and Atlanta Gas Light for conversion.[1] Atlanta Gas Light moved for summary judgment, arguing that it could not be held liable for conversion because it was authorized to apply the overpayment to the outstanding balance on Williams' contract. The trial court granted summary judgment, and this appeal ensued.
As this Court recently stated,
[c]onversion involves an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to [her] rights. The very essence of conversion is that the act of dominion is wrongfully asserted. Thus, if a party has a right to assert ownership, the act of dominion is not wrongful and does not constitute conversion.[2]
As the money order represented money owned by the U.S. Postal Service, it is unclear whether Kline is a proper plaintiff to bring a conversion claim.[3] Neither party addresses this issue, however, and it was not a basis for the trial court's ruling. Even assuming that Kline is a proper plaintiff, she has no claim for conversion because Atlanta Gas Light did not wrongfully assert dominion over the money order.
*95 A money order is a negotiable instrument.[4] As such, it is governed by OCGA § 11-3-101 et seq. OCGA § 11-3-418 provides limited remedies for payment made by mistake, which is the situation here as Kline "mistakenly" issued the money order for the wrong amount, and Williams then gave the instrument to Atlanta Gas Light, allegedly without noticing the error. Under OCGA § 11-3-418(c), however, the remedies "may not be asserted against a person who took the instrument in good faith and for value or who in good faith changed position in reliance on the payment or acceptance."[5]
In this case, Atlanta Gas Light received a money order that was regular on its face, and it negotiated the instrument. The record does not suggestnor does Kline contendthat the company was acting in bad faith in doing so. Atlanta Gas Light then credited Williams' account, which it was authorized to do under the terms of the installment contract. By accepting the money order as payment for Williams' outstanding debt, Atlanta Gas Light took the instrument for value.[6] Thus, OCGA § 11-3-418(c) governs the situation, and neither the U.S. Postal Service nor Kline has a remedy against Atlanta Gas Light for having negotiated the instrument. Thus, Atlanta Gas Light did not act wrongfully in refusing to return the money. Accordingly, the trial court properly granted Atlanta Gas Light's motion for summary judgment.
Judgment affirmed.
ANDREWS, P.J., and ELLINGTON, J., concur.
NOTES
[1] Williams never responded to the complaint, and she is not a party to this appeal.
[2] (Punctuation and footnotes omitted.) Kilburn v. Patrick, 241 Ga.App. 214, 216(1), 525 S.E.2d 108 (1999).
[3] See Clover Cable of Ohio v. Heywood, 260 Ga. 341, 345(6), 392 S.E.2d 855 (1990) (in a conversion claim, "the plaintiff must be the true owner of the property with title thereto.").
[4] See OCGA § 11-3-104(a).
[5] Although this provision does not limit the remedies available through OCGA § 11-3-417 or § 11-4-407, neither of those Code sections applies.
[6] See Fedeli v. UAP/Ga. Ag. Chem., 237 Ga.App. 337, 343(3)(a), 514 S.E.2d 684 (1999) (checks accepted as payment for antecedent debt accepted for value). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382124/ | 200 S.W.3d 869 (2005)
Barbara MITTRY, as Personal Representative of the Estate of F.K. "Bill" Mittry, Deceased and Joseph Harvey, Both On Behalf of All Others Similarly Situated, Appellants
v.
BANCORPSOUTH BANK f/k/a/ First United Bank (Stuttgart), Appellee.
No. 04-829.
Supreme Court of Arkansas.
January 6, 2005.
Perroni, James & House, P.A., by: Samuel A. Perroni and Patrick R. James, Little Rock, for appellants.
Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Herman Ivester, Little Rock, for appellee.
ANNABELLE CLINTON IMBER, Justice.
This is an appeal from an order by the circuit court denying class certification under Rule 23 of the Arkansas Rules of Civil Procedure. The appellants in this appeal are Barbara Mittry, who is the personal representative of the Estate of F.K. "Bill" Mittry, deceased, and Joseph Harvey, as representatives in their individual capacities and of all others similarly situated. The appellee is Bancorpsouth Bank, formerly known as First United Bank (Stuttgart). On April 5, 2001, Bill Mittry filed a class-action complaint against the appellee for breach of fiduciary duty, gross negligence, and breach of contract as a result of a separate lawsuit initiated and pursued by the appellee at a time when it served as trustee in connection with the issuance and sale of bonds to the public to help finance improvements by four development districts in the city of Maumelle (the "Maumelle Bonds").[1]First United Bank v. Phase II, et al., 347 Ark. 879, 69 S.W.3d 33 (2002). According to the allegations in the *870 complaint, which Harvey later joined, the appellee's pursuit of the litigation caused a decrease in the secondary market sale price that appellants received when they sold their bonds, thereby causing them to sustain a financial loss. The appellants sought class certification of a class of Maumelle bondholders "who (a) purchased their bonds before April 5, 1998, and (b) sold their bonds between April 5, 1998 and October 7, 2002." In its answer, the appellee denied any liability to the bondholders.
Shortly after the filing of the complaint, Mittry filed a motion to certify class and the parties proceeded with discovery. In late 2003, the appellants amended their complaint and motion to certify the class. On April 8, 2004, after a hearing on the issue of class certification, the circuit court denied the appellants' motion for class certification. That ruling is the subject of this interlocutory appeal. We review a circuit court's denial of class certification under an abuse-of-discretion standard. Fraley v. Williams Ford Tractor & Equip., 339 Ark. 322, 5 S.W.3d 423 (1999); USA Check Cashers of Little Rock, Inc., v. Island, 349 Ark. 71, 76 S.W.3d 243 (2002).
The crux of the appellants' appeal concerns whether the proposed class satisfies the predominance, numerosity, and superiority requirements under Ark. R. Civ. P. 23 (2004).[2] In certifying a class action under Ark. R. Civ. P. 23, the circuit court must certify that the following conditions are satisfied:
(1) The class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defense of a class, and (4) the representative parties will fairly and adequately protect the interest of the class. Ark. R. Civ. P. 23(a). Additionally, the court must find that questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Ark. R. Civ. P. 23(b).
Fraley v. Williams Ford Tractor & Equip., 339 Ark. at 333, 5 S.W.3d at 430. Here, the circuit court's order denying class certification states in relevant part:
[T]he questions of law and fact common to the members of the proposed class do not predominate over any questions affecting individual members, and a class action is not superior to other methods for the fair and efficient adjudication of the controversy.
Although facts and legal issues may be common to the class, the heart of Plaintiffs' claim is based upon the contention that a court action by the defendant caused low bond prices and a diminished sales price. The proposed class consists of approximately nineteen (19) sales of unrated bonds in odd lots by brokers in over the counter transactions during a period of changing interest rates. Given the individual question of causation relative to these sales, joinder and individual determination would be the superior method of achieving fair adjudication. *871 The numerosity requirement is not satisfied and joinder is not impracticable.
The appellants appeal the circuit court's order, arguing that the circuit court abused its discretion when it determined that the predominance, numerosity, and superiority factors were not satisfied. We affirm the circuit court.
As stated above, Rule 23(b) provides that an action may be maintained as a class action if the prerequisite requirements of Rule 23(a) are satisfied, and the court finds that "the questions of law or fact common to the members of the class predominate over any questions affecting only individual members" and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. Ark. R. Civ. P. 23(b)(2004)(emphasis added). With regard to the predominance requirement of Rule 23, we must decide if the issues common to all plaintiffs "predominate over" the individual issues. Baker v. Wyeth-Ayerst Laboratories, 338 Ark. 242, 992 S.W.2d 797 (1999).
In concluding that the predominance factor was not satisfied in the Baker v. Wyeth-Ayerst Laboratories case, we noted the admonition by the Sixth Circuit Court of Appeals that a court should "`question the appropriateness of a class action' where `no one set of operative facts establishes liability, no single proximate cause equally applies to each potential class member and each defendant, and the individual issues outnumber common issues.'" Baker v. Wyeth-Ayerst Laboratories, 338 Ark. at 247, 992 S.W.2d at 800. (citing Sterling v. Velsicol Chemical Corp., 855 F.2d 1188 (6th Cir.1988)). Similarly, in Summons v. Missouri Pac. R.R., 306 Ark. 116, 813 S.W.2d 240 (1991), class certification was proper because the common issues of the defendant's conduct and causation predominated over and could be resolved prior to addressing the individual and less difficult issues of damages and injuries. This court reiterated in Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995), that a case with "numerous individual issues" can be better resolved on a case-by-case basis.
In contrast, the claim of misrepresentation was the "common linchpin" of every class member's case in BNL Equity Corp. v. Pearson, 340 Ark. 351, 10 S.W.3d 838 (2000), and the resolution of that issue predominated over potential individual issues. Moreover, in SEECO, Inc. v. Hales, 330 Ark. 402, 954 S.W.2d 234 (1997), because the alleged scheme to defraud royalty owners was the "overarching issue" and the starting point in resolving the matter, there was no abuse of discretion by the circuit court in certifying the class. Once again, the predominance issue was satisfied in F & G Financial Serv., Inc. v. Barnes, 349 Ark. 420, 82 S.W.3d 162 (2002), where the "overarching common questions" were whether the check casher's transactions were loans with interest accruing and whether those transactions violated the Arkansas Constitution. Finally, in Williamson v. Sanofi Winthrop Pharm., 347 Ark. 89, 60 S.W.3d 428 (2001), we concluded that class certification is not appropriate when "the questions on which the case turns" are not common to each class member.
In the instant case, the "thrust" of the appellants' complaint is that the appellee's actions in pursuing the litigation in Pulaski County Chancery Court adversely impacted and depressed the secondary market prices that the appellants received for their Maumelle bonds and thereby caused their losses. On appeal, the appellants contend that there are common questions of fact and law in this case relating to: (1) the propriety of the actions and decisions taken by the appellee in deciding *872 to file and prosecute the earlier lawsuit, such actions and decisions affecting the financial standing of each class member; (2) whether the appellee had contractual obligations to the bondholders and whether those obligations were breached; and (3) whether the appellee, in taking its actions and making its decisions, committed gross negligence and breached its fiduciary duties while acting as trustee for the bond issues. Even under the very categories listed by the appellants, however, individual issues predominate over the issues common to the class as the appellants would be required to establish that the appellee's conduct was the proximate cause for the specific low price received by each member of the proposed class. In other words, there would have to be a review of each class member's individual situation concerning the sale of his or her Maumelle Bonds. Because the over-the-counter market for municipal bonds is not a centralized exchange and offers no specific "market price" for such bonds, the price a class members obtained for his or her bonds would vary based upon at least eight factors that are unique to each seller's transaction: (1) interest rates, (2) duration of marketing, (3) block size of bond to be sold, (4) U.S. Treasury Bond rates, (5) the rating of the Maumelle Bonds, (6) publicity, (7) the broker, and (8) the seller.
The appellants state that the appellee's causation argument is a "red herring." They cite F & G Financial Serv., Inc. v. Barnes, supra, for the proposition that "challenges on the statutes of limitations, fraudulent concealment, releases, causation, or reliance have usually been rejected and will not bar predominance satisfaction because these issues go to the right of the class member to recover, in contrast to the underlying issues of the defendant's liability." F & G Financial Serv., Inc. v. Barnes, 349 Ark. at 432, 82 S.W.3d at 169 (citing SEECO, Inc. v. Hales, 330 Ark. at 413, 954 S.W.2d at 240). Their reliance on F & G Financial Serv., Inc. v. Barnes, supra, however, is misplaced. As mentioned earlier, in the F & G Financial Services case, we found that there were "overarching common questions" concerning whether the check casher's transactions were loans with interest accruing and whether those transactions violated the Arkansas Constitution. The proposition cited by the appellants merely reaffirms that individual issues and defenses regarding the recovery of individual members cannot defeat class certification where there are common questions concerning the defendant's alleged wrongdoing which must be resolved for all class members. F & G Financial Serv., Inc. v. Barnes, 349 Ark. at 432, 82 S.W.3d at 169. (emphasis added). In the absence if such common questions, the F & G Financial Services case is not apposite.
The class in the instant case, as defined by the appellants, must consist of persons who sold their bonds over a particular four-year period.[3] Furthermore, it is the appellee's "actions and decisions affecting the financial standing of each class member" that the appellants propose as a common question. The circuit court correctly noted in its order that such questions center around the contention that the appellee's participation in litigation caused low bond prices and a diminished sales price. As such, individual issues predominate over the issues common to the class because the appellants would be required *873 to establish that the appellee's conduct was the proximate cause for the specific low price received by each member of the proposed class.
For the above-stated reasons, we cannot say that the circuit court abused its discretion in ruling that the predominance requirement of Ark. R. Civ. P. 23(b) has not been satisfied. Because the circuit court's order denying class certification can be affirmed solely on the predominance factor, we need not address the numerosity and superiority requirements under Rule 23(a).
Affirmed.
GUNTER, J., not participating.
NOTES
[1] Mittry and Harvey bought certain Maumelle Bonds that they subsequently sold.
[2] While the circuit court's order reflects specific findings on the predominance, numerosity, and superiority requirements, the parties disagree as to whether the order includes a finding on the commonality requirement. Moreover, the order is completely silent on the requirement of typicality. In the instant appeal, however, the appellants do not contend that the circuit court's order should be reversed because the court failed to set forth specific findings in regard to the Rule 23 elements following a request for specific findings of fact and conclusions of law under Ark. R. Civ. P. 52 (2004).
[3] Although it is improper to consider the merits of the underlying lawsuit in the context of class certification, consideration of the elements of the underlying claim is important to determine whether any questions are common to the class and whether those questions will resolve the issue. Williamson v. Sanofi Winthrop Pharm., supra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382144/ | 200 S.W.3d 297 (2006)
J.B. "Barry" MARTEN and Sonic Motors, Inc., Appellants
v.
Phil SILVA, Appellee.
No. 05-05-01470-CV.
Court of Appeals of Texas, Dallas.
August 17, 2006.
*300 Carl A. Generes, Dallas, for appellants.
Mark H. How, Short, How & Frels P.C., Dallas, for appellee.
Before Justices MORRIS, BRIDGES, and RICHTER.
OPINION
Opinion by Justice BRIDGES.
J.B. "Barry" Marten and Sonic Motors, Inc., appeal the trial court's denial of their special appearances. In two issues, Marten and Sonic argue there is no personal jurisdiction over them, and the trial court improperly considered evidence Phil Silva offered to oppose their special appearances. We affirm the trial court's order denying Marten's and Sonic's special appearances.
In March 2005, Marten, who is Sonic's sole officer and director, contacted Silva, a Collin County resident, by telephone. Marten represented that he had the right to sell a 1970 Pontiac GTO convertible "Judge" model. Silva is a collector of automobiles known as American "muscle cars," and the GTO was of special interest to him. Marten offered to sell the GTO to Silva for $185,000. Marten emailed photographs of the GTO to Silva, and Silva agreed to purchase the GTO, provided that the GTO was in fact the represented vehicle and that the serial number was correct. Marten faxed Silva documents showing the serial number of the GTO and its options, including a rare "Ram Air IV" option. Regarding the closing of the deal, Marten contacted Silva numerous times in Texas by telephone. Silva told Marten to bring the GTO to a facility in Holly, Michigan, where Silva would bring cashier's checks and take possession of the GTO. However, on March 28, 2005, Marten called Silva to tell him that the GTO was no longer for sale. Thereafter, Silva sued Marten and Sonic for breach of contract, specific performance, misrepresentation, and DTPA violations. Marten and Sonic filed special appearances, which the trial court denied. This appeal followed.
In their first issue, Marten and Sonic argue the trial court erred in denying their special appearances. Specifically, Marten and Sonic challenge whether the evidence showed sufficient minimum contacts between them and Texas to support the exercise of personal jurisdiction and whether standards of fair play and substantial justice prevent Texas from exercising jurisdiction. The plaintiff has the initial burden of pleading facts sufficient to bring a nonresident defendant within the provisions of the Texas long arm statute. See Hotel Partners v. KPMG Peat Marwick, 847 S.W.2d 630, 633 (Tex.App.-Dallas 1993, writ denied). When a nonresident defendant challenges a trial court's exercise *301 of personal jurisdiction through a special appearance, it carries the burden of negating all bases of personal jurisdiction. See Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 203 (Tex.1985). The exercise of personal jurisdiction requires the trial judge to resolve any factual disputes before applying the jurisdictional formula. Hotel Partners v. Craig, 993 S.W.2d 116, 120 (Tex.App.-Dallas 1994, writ denied). When, as here, a trial judge fails to make findings of fact and conclusions of law, we view the trial court's judgment as impliedly finding all the necessary facts to support its judgment. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990).
On appeal, we apply a factual sufficiency of the evidence review to the trial judge's determination of disputed fact issues on the question of jurisdiction. Craig, 993 S.W.2d at 120; KPMG Peat Marwick, 847 S.W.2d at 632. Once we have determined the evidence is factually sufficient to support the trial judge's resolution of disputed fact issues, we examine de novo whether the facts negate all bases for personal jurisdiction. See Craig, 993 S.W.2d at 120.
The Texas long-arm statute authorizes the exercise of jurisdiction over nonresidents "doing business" in Texas. TEX. CIV. PRAC. & REM.CODE ANN. § 17.042 (Vernon 1997). Although the statute lists particular acts which constitute "doing business," the statute also provides that the nonresident's other acts may satisfy the "doing business" requirement. TEX. CIV. PRAC. & REM.CODE ANN. § 17.042 (Vernon 1997); see Guardian Royal Exch. Assurance, Ltd. v. English China Clays, P.L.C., 815 S.W.2d 223, 226 (Tex.1991). Because the Texas long-arm statute "reach[es] as far as the federal constitution permits," Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex.1990); U-Anchor Advertising, Inc. v. Burt, 553 S.W.2d 760, 762 (Tex. 1977), cert. denied, 434 U.S. 1063, 98 S. Ct. 1235, 55 L. Ed. 2d 763 (1978), we focus on the federal constitutional requirements for the exercise of personal jurisdiction. See Guardian Royal, 815 S.W.2d at 226. Under federal due process requirements, we determine: (1) whether the nonresident defendant has purposefully established "minimum contacts" with the forum state; and (2) if so, whether the exercise of jurisdiction comports with "fair play and substantial justice." See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-76, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985); Guardian Royal, 815 S.W.2d at 226.
Minimum contacts may be established only on "some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Burger King Corp., 471 U.S. at 475, 105 S. Ct. 2174 (quoting Hanson v. Denckla, 357 U.S. 235, 253, 78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958)). The actions of the nonresident defendant must justify a conclusion that the nonresident defendant should reasonably anticipate being called into court in the forum state. See Temperature Sys., Inc. v. Bill Pepper, Inc., 854 S.W.2d 669, 675 (Tex. App.-Dallas 1993, writ dism'd by agr.). The acts relied on must be "purposeful" rather than fortuitous. Michiana Easy Livin' Country v. Holten, 168 S.W.3d 777, 785 (Tex.2005) (dismissing claims against Michiana where Michiana's only contact with Texas was Holten's decision to place his order from Texas; "Holten called Michiana in Indiana, sent payment to Indiana, paid for delivery from Indiana, and agreed to resolve every dispute in Indiana.").
It is only the defendant's contacts with the forum that count: purposeful availment "ensures that a defendant will not be haled into a jurisdiction solely *302 as a result of . . . `the unilateral activity of another party or a third party.'" Id. (citing Burger King Corp., 471 U.S. at 475, 105 S. Ct. 2174). Sellers who "reach out beyond one state and create continuing relationships and obligations with citizens of another state" are subject to the jurisdiction of the latter in suits based on their activities. Michiana, 168 S.W.3d at 785 (citing Burger King Corp., 471 U.S. at 473, 105 S. Ct. 2174). A defendant must seek some benefit, advantage, or profit by "availing" itself of the "jurisdiction." Michiana, 168 S.W.3d at 785.
Personal jurisdiction may be either general or specific. KPMG Peat Marwick, 847 S.W.2d at 632; see Schlobohm, 784 S.W.2d at 357. Under specific jurisdiction, the cause of action must arise out of or relate to the nonresident defendant's contact with the forum state. See Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984); Guardian Royal, 815 S.W.2d at 227. With this standard in mind, we now examine whether Marten and Sonic purposefully established "minimum contacts" with Texas; i.e., whether there was a substantial connection between Marten and Sonic and Texas arising from action or conduct of Marten and Sonic purposefully directed toward Texas.
Here, Marten argues in his brief that "there is not a single allegation, nor a single piece of evidence, regarding the telephone or facsimile number(s) used, or of any mention in the parties' purported communications suggesting that Silva was not in Michigan." However, the record shows Marten, Sonic's sole officer and director, initiated contact with Silva, a Texas resident, in Texas. Marten offered to sell Silva a rare automobile for $185,000. Silva agreed to purchase the automobile for the asking price, provided Marten demonstrated proof that the automobile was as advertised. Marten faxed and emailed photographs and documentation showing the automobile was as represented. Marten and Silva made arrangements for Silva to bring cashier's checks to Michigan and pick up the automobile. Nevertheless, Marten subsequently called Silva to say the automobile was no longer for sale. Under these facts and circumstances, we conclude Marten's actions, as sole officer and director of Sonic, constituted "some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws." Burger King Corp., 471 U.S. at 475, 105 S. Ct. 2174; Michiana, 168 S.W.3d at 785. Thus, we conclude Marten and Sonic purposefully established "minimum contacts" with Texas. See Burger King Corp., 471 U.S. at 473-75, 105 S. Ct. 2174; Michiana, 168 S.W.3d at 785.
Having concluded Marten and Sonic have the necessary minimum contacts with Texas, we must now determine whether the exercise of jurisdiction comports with "fair play and substantial justice." See Guardian Royal, 815 S.W.2d at 231. In making this determination, we examine whether Marten and Sonic presented a "compelling case that the presence of some other considerations would render jurisdiction unreasonable." See Burger King Corp., 471 U.S. at 477, 105 S. Ct. 2174. Under this inquiry, we consider the following factors: (1) the burden on the nonresident defendant; (2) the interest of the forum state in adjudicating the dispute; (3) the plaintiff's interest in obtaining convenient and effective relief; (4) the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and (5) the shared interest of the several states in furthering fundamental substantive social policies. See World-Wide Volkswagen Corp. v. Woodson, 444 *303 U.S. 286, 292, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980); Guardian Royal, 815 S.W.2d at 231. Only in rare cases will the exercise of jurisdiction not comport with fair play and substantial justice when the nonresident defendant has purposefully established minimum contacts with the forum state. Guardian Royal, 815 S.W.2d at 231; see Burger King Corp., 471 U.S. at 477, 105 S. Ct. 2174.
After careful review of these factors, we conclude there is nothing in the record to indicate that litigation in Texas would be excessively burdensome to Marten and Sonic. The interests of Texas in adjudicating the dispute and Silva's interest in obtaining convenient and effective relief clearly weigh in favor of the exercise of jurisdiction. Under the facts and circumstances of this case, we conclude Marten and Sonic purposefully established minimum contacts with Texas and the exercise of jurisdiction comports with fair play and substantial justice. See Guardian Royal, 815 S.W.2d at 231; Burger King Corp., 471 U.S. at 476-78, 105 S. Ct. 2174. Consequently, the trial judge was correct in denying Marten's and Sonic's special appearances. We overrule Marten and Sonic's first issue.
In their second issue, Marten and Sonic argue the trial court improperly considered evidence submitted as exhibits to Silva's affidavit in support of his response to Marten and Sonic's special appearances. Specifically, Marten and Sonic raised a hearsay objection to a document created by Pontiac showing the GTO's serial number and a note from Marten to Silva stating the GTO was "no longer for sale." Whether to admit or exclude evidence is a matter committed to the trial court's sound discretion. State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 647 (Tex. 2001). Hearsay is a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted. TEX.R. EVID. 801(d). Here, neither the document showing the GTO's serial number nor the note from Marten was offered to prove the truth of the matters asserted therein. Instead, the documents merely evidence an ongoing series of communications and faxes between Marten and Silva concerning Silva's purchase of the GTO. Under these circumstances, we conclude the documents were not hearsay, and the trial court did not abuse its discretion in admitting the documents as exhibits to Silva's affidavit. See TEX.R. EVID. 801(d); Bristol, 65 S.W.3d at 647. We overrule Marten's and Sonic's second issue.
We affirm the trial court's order denying Marten's and Sonic's special appearances. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382195/ | 587 P.2d 1324 (1978)
William F. COOKE, Appellant,
v.
SAFECO INSURANCE COMPANY of America, a corporation, Respondent.
No. 10692.
Supreme Court of Nevada.
December 20, 1978.
Peter Chase Neumann, Reno, for appellant.
Hibbs & Newton, Reno, and Frank H. Roberts, Reno, for respondent.
OPINION
PER CURIAM:
Appellant's wife was severely injured in an automobile accident in November, 1976, and as a result of those injuries, she died. Appellant claims to have incurred medical expenses in excess of $23,000.00 on account of his wife's injuries.
Pursuant to the no-fault provisions of an automobile insurance policy covering appellant's two vehicles, respondent paid basic reparation benefits of $10,000.00.
Appellant contends respondent owes an additional $10,000.00 in basic reparation benefits because the policy insured two vehicles and charged a separate premium for each. Respondent on the other hand argues a limits of liability clause precludes this type of "stacking" of no-fault coverage.[1] We disagree.
In Travelers Insurance Co. v. Lopez, 93 Nev. 463, 567 P.2d 471 (1977), we held that the Nevada Motor Vehicle Insurance Act, Chapter 698, NRS, did not preclude stacking two or more obligations to pay basic reparation benefits where two policies insuring the same vehicle were on the same level of priority, but that the Act merely precluded recovery for the same items of damage. Both policies issued to Lopez provided *1325 for payment of basic reparation benefits of $10,000.00 and both contained "other insurance" clauses purporting to limit the maximum amount recoverable from all sources to $10,000.00. Lopez was involved in an accident with an uninsured motorist and incurred medical expenses in excess of $20,000.00. Travelers denied liability on the ground that the insured had already received benefits of $10,000.00 from Ambassador Insurance Co., Lopez' other insurer. We had little difficulty in declaring the "other insurance" clause null and void.[2] Travelers was required to pay $10,000.00 under the basic reparations provision of its policy.
Respondent attempts to distinguish Lopez on the grounds that (1) the "limitation of liability" clause herein involved is valid, and (2) the separate premiums Cooke paid were for no-fault coverage on two separate vehicles. These distinctions do not require a contrary result. Compare, Travelers Indem. Co. v. Wolfson, 348 So. 2d 661 (Fla. App. 1977); Chappelear v. Allstate Ins. Co., 347 So. 2d 477 (Fla.App. 1977); and Fla. Stat. Ann. 627-736 which specifically limits the maximum amount of no-fault benefits recoverable to $5,000.00.
Here, appellant paid two premiums for two separate no-fault coverages. The public policy of this state prevents the insurance company from limiting its liability to a single recovery under such circumstances. Allstate Insurance Co. v. Maglish, 94 Nev.Ad.Op. 200, 586 P.2d 313 (1978); Travelers Insurance Co. v. Lopez, supra. The insured is entitled to the protection he may reasonably expect for the premiums he pays.
Recently, in Allstate Insurance Co. v. Maglish, supra, we permitted stacking of uninsured motorist coverage where a single policy insured two vehicles. Separate premiums were charged for the coverage and we declared the liability limiting clause in that case contrary to public policy.[3] Respondent offers no compelling reason why the same result should not obtain in the instant case regarding no-fault coverage. See also, State Farm Mut. Auto. Ins. v. Hinkel, 87 Nev. 478, 488 P.2d 1151 (1971); United Services Auto. Ass'n v. Dokter, 86 Nev. 917, 478 P.2d 583 (1970).
Accordingly, we reverse the summary judgment and remand to the district court for further proceedings consistent with our opinion.
NOTES
[1] A provision of respondent's Nevada Basic Reparation Benefits Endorsement reads as follows:
f. LIMITS OF LIABILITY
Regardless of the number of persons insured, policies or bonds applicable, claims made, or insured motor vehicles to which this coverage applies, the company's liability for all basic reparation benefits with respect to bodily injury sustained by any one eligible insured person in any one motor vehicle accident shall not exceed $10,000.00 in the aggregate.
[2] The Court held:
Accordingly, the better view favors [Lopez'] position that an insured is entitled to payment in full up to the policy limit, with respect to each policy under which coverage is afforded, and that "other insurance" clauses and similar clauses which purport to limit liability are void. [Citations omitted.] Travelers Insurance Co. v. Lopez, supra, 93 Nev. at 468, 567 P.2d at 474.
[3] The clause provided:
The limit of liability stated in the declarations as applicable to `each person' is the limit of Allstate's liability for all damages ... suffered by one person as the result of any one accident and, ... the limit of liability stated in the declarations as applicable to `each accident' is the total limit of Allstate's liability for all damages ... sustained by one or more persons as the result of any one accident. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8312920/ | SARA L. ELLIS, United States District Judge *627Plaintiffs, eight Chicago Public School ("CPS") students and their parents, have filed this putative class action against Defendants the Board of Education of the City of Chicago and Dr. Janice Jackson, the Chief Executive Officer of CPS (collectively, the "CPS Defendants"), and the Illinois State Board of Education ("ISBE") and Dr. Tony Smith, the State Superintendent of Education (collectively, the "ISBE Defendants"). Plaintiffs claim that the CPS and ISBE Defendants systematically fail to provide CPS students with disabilities, whose parents are Limited English Proficient ("LEP"), with a free appropriate public education ("FAPE") as required by federal law because the CPS and ISBE Defendants do not provide translations of documents or competent interpretation services for the LEP parents during the individualized education program ("IEP") process. Specifically, in the first amended complaint ("FAC"), Plaintiffs allege violations of the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. § 1400 et seq. (count I against the CPS and ISBE Defendants and count II against the ISBE Defendants); Title VI of the Civil Rights Acts of 1964 ("Title VI"), 42 U.S.C. § 2000d et seq. (count III against the CPS and ISBE Defendants and count IV against the ISBE Defendants); the Equal Educational Opportunities Act, 20 U.S.C. § 1701 et seq. (count V against the CPS and ISBE Defendants and count VI against the ISBE Defendants, with both counts solely on behalf of the Student Plaintiffs); and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (count VII against the CPS Defendants).
The CPS Defendants have moved for dismissal of all the claims against them (Counts I, III, V, and VII).1 Although the Court concludes that no exception exists to the exhaustion requirement, because E.V. and his parents exhausted their claims and they are not moot, the remaining Plaintiffs need not pursue the administrative process before proceeding on similar claims here. H.P. and his parents, however, cannot proceed on their claims against the CPS Defendants because they received the relief requested in this lawsuit through the administrative process. Although further development may prove otherwise, the Court finds that, at this stage, the remaining Plaintiffs have sufficiently alleged a claim under the IDEA and for intentional discrimination in violation of Title VI.
BACKGROUND2
I. The IDEA
The IDEA requires local educational authorities, like CPS, to provide a FAPE to eligible children with disabilities between ages three and twenty-one. Under the IDEA, CPS "must provide a disabled child with such special education and related services 'in conformity with the [child's] individualized education program,' or IEP." Endrew F. ex rel. Joseph F. v. Douglas County Sch. Dist. RE-1 , --- U.S. ----, 137 S. Ct. 988, 994, 197 L.Ed. 2d 335 (2017) (quoting 20 U.S.C. § 1401(9)(D) ).
*628The IEP is a "comprehensive plan" prepared by CPS officials, teachers, and the child's parents. Id. Certain procedural safeguards exist to ensure a parent's meaningful participation in the IEP process. As relevant here, CPS must obtain informed written parental consent to provide special education services, initial evaluations, and reevaluations. Consent means that "[t]he parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or through another mode of communication." 34 C.F.R. § 300.9(a). Additionally, CPS must provide certain notices to parents and ensure that such notice "is in the native language of the parents, unless it clearly is not feasible to do so." 20 U.S.C. § 1415(b)(4), (d)(2) ; 34 C.F.R. § 300.503(c). And, for IEP meetings, CPS "must take whatever action is necessary to ensure that the parent understands the proceedings of the IEP Team meeting, including arranging for an interpreter for parents with deafness or whose native language is other than English." 34 C.F.R. § 300.322(e).
Parents have the right to file a due process hearing complaint and participate in mediation under the IDEA. The due process hearing system is the primary way to challenge decisions made with respect to the IEP process and the provision of a FAPE to a child with disabilities. The ISBE is responsible for establishing and administering this administrative review process.
II. CPS' Provision of Services Required Under the IDEA
For the 2016-2017 school year, CPS reported that 52,093 students enrolled in CPS had IEPs. Of those students, forty-two percent have LEP parents. Over 19,000 LEP households communicate in Spanish, over 300 in Polish, almost 300 in Arabic, and almost 200 in Chinese. CPS collets information regarding the household language of all CPS students through a Home Language Survey. Every IEP notes the parents' primary language and whether an interpreter is needed to communicate with the parents.
Despite having such information, CPS does not have a policy or practice of providing written translations of IEP process documents to LEP parents.3 CPS does not provide independent interpreters for LEP parents at IEP and other special education meetings. It sometimes uses CPS personnel as interpreters on an ad hoc basis, but CPS has no policy to determine their competence, including their proficiency and knowledge of specialized IEP terms and vocabulary in both languages and their ability to adhere to their roles as interpreters without deviating to another role. CPS also does not provide training or guidance on the standards of interpretation. As a result, CPS personnel acting as interpreters have often summarized reports instead of providing them in full, editorialized reports, failed to fully and accurately interpret parents' statements, and failed to properly convey technical vocabulary to the parents.
III. Individual Plaintiffs' Experiences
A. H.P., Victoria G., and Hector P.
H.P., a twelve-year-old seventh grade student at Finkl Elementary School, qualifies *629for special education services. His parents, Victoria G. and Hector P., are native Spanish speakers. H.P.'s IEPs indicate that his household mainly speaks Spanish and that his parents need an interpreter.
On May 11, 2016, Victoria G. and Hector P. attended H.P.'s IEP meeting to discuss plans for the following school year. H.P.'s school social worker, who has no interpretation training, served as the interpreter in addition to providing input for the IEP. The IEP team discussed transferring H.P. to his neighborhood school and removing his bus transportation. Victoria G. and Hector P. believed they voiced their disagreement with these recommendations, but the IEP team adopted them. At the end of the meeting, Hector P. signed an Agreement to Proceed with IEP Meeting, which was only in English. Hector P. did not understand the document, which gave consent to CPS to complete the IEP and provide a copy to H.P.'s parents the following day. H.P.'s parents did not receive the IEP the following day, and, when they did, it was only in English. The IEP removed H.P.'s transportation and behavioral support services and returned H.P. to his neighborhood school. H.P.'s parents did not understand the IEP's conclusions and instead returned to Finkl several days before the 2016-2017 school year's start to obtain a supply list for H.P. Finkl reported that H.P. was not enrolled there. On September 3, 2016, Victoria G. and Hector P. requested mediation, and H.P. missed the first week of school while CPS considered their complaint. Ultimately, H.P. returned to Finkl but without bus transportation or behavioral support services.
On April 5, 2017, Victoria G. and Hector P. filed a due process complaint notice contending that CPS' failure to provide translated IEP process documents and competent interpreters denied H.P. a FAPE. In a pre-hearing ruling on their complaint, the hearing officer struck all systemic requests for relief for lack of jurisdiction. After the filing of the due process complaint, CPS continued to send Victoria G. and Hector P. documents only in English, including a document seeking consent for psychological and other evaluations of H.P., which Hector P. signed despite not understanding its content. On June 9 and June 19, 2017, Victoria G. and Hector P. participated in eligibility and IEP meetings for H.P. The bilingual specialist at H.P.'s school served as an interpreter, but she did not have any interpretation training and indicated confusion with special education terminology. Victoria G. and Hector P. requested the IEP process documents in Spanish but did not receive them. They also did not fully understand the discussions that took place at these meetings.
A hearing officer held a four-day hearing in September 2017 on H.P.'s parents' due process complaint. She ruled in H.P.'s favor, concluding that CPS' failure to provide qualified translators and translated documents violated H.P. and his parents' rights under the IDEA. The hearing officer ordered CPS to provide qualified interpreter services to H.P.'s parents at all future IEP meetings and required those interpreters to undergo specific training and have certain certifications. The hearing officer indicated that the interpreters were not to play any other role at IEP meetings to ensure neutrality and impartiality. The hearing officer also required CPS to translate H.P.'s vital IEP process documents into Spanish. As of the filing of the FAC, CPS had not complied with the order, failing to provide a translated IEP document from a November 7, 2017, IEP meeting and H.P.'s IEP progress report. Victoria G. and Hector P. also did not receive a copy of the hearing officer's October 2, 2017, order or any other documents *630related to the due process hearing in Spanish.
Hector P. participated in additional state-sponsored mediation on January 9, 2018, to address another issue with H.P.'s placement. The initial interpreter was a CPS aide who had not received training in interpretation and did not interpret significant portions of the initial statements and summarized key information. Hector P. requested a new interpreter. Subsequently, H.P.'s case manager, who has not received interpretation training, translated for Hector P. The parties did not reach a resolution during the mediation.
B. E.V., Aixia H., and Carlos V.
E.V., a twelve-year-old seventh grade student in the cluster program at Talcott Elementary, qualifies for special education services. His parents, Aixia H. and Carlos V., are native Spanish speakers. E.V.'s IEPs indicate that the family primarily speaks Spanish at home and that his parents need an interpreter. Despite this knowledge, CPS did not provide Aixia H. and Carlos V. with vital IEP process documents in Spanish, causing Aixia H. to use web-based translation services, such as Google Translate, in an attempt to understand the documents.
Both Aixia H. and Carlos V. attended an IEP meeting on March 7, 2016, at which CPS did not provide an interpreter. Aixia H. and Carlos V. did not understand much of the meeting and could not convey information to the IEP team about E.V.'s behavior and transition difficulties. CPS provided the IEP to E.V.'s parents only in English, with Aixia H. again spending several hours using Google Translate to understand the IEP. Aixia H. then wrote a letter to CPS in Spanish, using Google Translate to translate it into English, expressing her concerns about services not included in E.V.'s IEP. CPS thereafter asked Aixia H. to sign an IEP Revision, which Aixia H. did not understand but signed because she believed that E.V. would not get the IEP services unless she signed it. The IEP did not address Aixia H. and Carlos V.'s concerns about E.V.'s behavior and instead reduced E.V.'s social work support and kept in place the same behavior intervention plan. Aixia H. spoke with E.V.'s social worker on February 14, 2017, to request that further communications occur only in Spanish. Because CPS continued sending documents only in English, Aixia H. and Carlos V. did not understand that CPS was reevaluating E.V. and trying to schedule an IEP meeting in March 2017. Aixia H. wrote a letter in Spanish asking for an IEP meeting on March 7, 2017, but CPS never responded. No IEP meeting took place in March 2017.
On June 29, 2017, Aixia H. and Carlos V. filed a due process complaint notice, claiming that E.V. did not receive a FAPE because CPS failed to translate vital IEP process documents and interpreters for special education meetings. The hearing officer struck E.V.'s systemic requests for relief for lack of jurisdiction in a prehearing ruling. On November 24, 2017, after a five-day hearing, the hearing officer concluded that CPS' failure to provide interpreters or translated documents did not deny E.V. a FAPE. E.V. and his parents received a copy of the hearing officer's decision in Spanish on January 3, 2018. But ISBE has not provided them with any of the other documents related to the due process hearing in Spanish.
After receiving the hearing officer's order, CPS held a meeting on November 27, 2017, to plan for E.V.'s reevaluation. Aixia H. and Carlos V. asked for written translations of the documents discussed, which CPS did not provide them before or at the meeting. The principal served as the interpreter and failed to interpret large parts of *631the meeting. On December 4, 2017, CPS held an eligibility and IEP meeting to discuss the evaluation reports. CPS again did not provide these reports in Spanish to Aixia H. and Carlos V. Both the principal and assistant principal acted as interpreters and again did not interpret significant parts of the meeting.
C. R.L. and Mireya L.
R.L., a nineteen-year old post-twelfth grade student at Whitney Young High School, qualifies for special education services. Mireya L., R.L.'s mother, is a native Spanish speaker. R.L.'s IEPs indicate that his household primarily speaks Spanish and that parent communications require an interpreter. Despite knowing this, CPS did not provide Mireya L. with translated vital IEP process documents or competent interpretation services. To the extent an interpreter was present during IEP meetings, the translator inaccurately summarized information, added her own opinions, answered questions herself, and misinterpreted technical terms.
On January 12, 2017, Mireya L. attended an IEP meeting. Although CPS indicated a school staff member would act as an interpreter, no interpreter attended. Mireya L. did not understand the substance of the meeting, which took place in English, and she received an English copy of R.L.'s IEP. She believed R.L. would continue attending Whitney Young and receiving vision itinerant services, transportation, speech therapy, and orientation and mobility services for the next school year. But instead, R.L. was scheduled to graduate, terminating his special education eligibility. Mireya L. only learned of this at the start of the 2017-2018 school year. Ultimately, CPS reversed R.L.'s graduation and reinstated him three months into the school year.
D. O.L. and Xi Long L.
O.L., a nine-year-old fourth grade student at Finkl, qualifies for special education services. O.L.'s father, Xi Long L., is a native Mandarin speaker and reads and writes Chinese Simplified. Xi Long L. completed CPS' Home Language Survey and believed he requested to receive documents in Chinese Simplified and Mandarin interpretation services. O.L.'s IEPs indicate that her family primarily speaks Mandarin at home and that parent communications require an interpreter. But CPS did not provide translated IEP process documents or an interpreter to Xi Long L.
At O.L.'s October 3, 2017, IEP meeting, Xi Long L. requested at least a teleinterpreter, but CPS denied the request, indicated it could not find a Mandarin interpreter, and used Google Translate to communicate with Xi Long L. Xi Long L. attempted to request additional speech and occupational therapy services and use of an augmentative communication device for O.L. He also wanted to ask more about O.L's academic program, her lack of progress, and what he could do to support O.L.'s progress at home, but the lack of an interpreter hindered his ability to do so. Upon receiving O.L.'s IEP, Xi Long L. took it to O.L.'s private speech pathologist, who informed him that the IEP did not incorporate changes recommended by O.L.'s private therapists. In December 2017, Xi Long L. found an assistive technology referral in English in O.L.'s backpack, which O.L.'s private speech pathologist explained to him. Xi Long L. sought to discuss the referral more fully with O.L.'s IEP team, but no such meeting was held.
E. J.M. and Rosalba C.
J.M., a seven-year-old second grade student at Octavio Paz charter school, qualifies for special education services. Rosalba *632C., J.M.'s mother, is a native Spanish speaker. J.M.'s IEPs indicate that his household primarily speaks Spanish and that his mother needs an interpreter.
At a November 10, 2016, eligibility meeting to discuss J.M.'s speech evaluation, CPS did not provide an interpreter, and Rosalba C. did not receive a copy of the evaluation report in Spanish. The IEP team told Rosalba C., in English, that J.M. would be exited fully from special education services. Rosalba C. could not properly respond to this decision. She requested additional evaluations on November 16, 2016, and January 10, 2017, but CPS, in English, denied these requests. CPS did reevaluate J.M. after he obtained legal representation and again found him eligible for special education services on December 7, 2017.
F. J.B. and Miriam B.
J.B., an eight-year-old third grade student at Mozart Elementary School, qualifies for special education services. Her mother, Miriam B., is a native Spanish speaker. J.B.'s IEPs indicate that the household primarily speaks Spanish and that her mother needs an interpreter.
On March 24, 2016, during a meeting to discuss a reevaluation, the school special education case manager served in the dual roles of interpreter and case manager. The case manager did not interpret the entire discussion or fully explain the evaluation process to Miriam B. Miriam B. also did not receive Spanish translations of documents describing the assessments CPS intended to conduct. Nonetheless, Miriam B. signed the Consent for Reevaluation form. The plan did not provide for assessments required to determine whether J.B. would receive certain services that Miriam B. requested at the meeting. On June 9, 2016, CPS held an eligibility meeting to discuss the results of J.B.'s evaluations. Miriam B. again did not receive Spanish translations of the evaluation reports. The IEP team determined J.B. did not qualify for social work services because she had not had a social work evaluation. The IEP team agreed to conduct this additional assessment and, on December 15, 2016, ultimately determined that J.B. qualified for social work services.
G. G.G. and Asencion G.
G.G., a sixteen-year-old tenth grade student at Acacia Academy, qualifies for special education services. Her mother, Asencion G., is a native Spanish speaker. G.G.'s IEPs indicate that her household primarily speaks Spanish and that her mother needs an interpreter. Despite multiple requests from Asencion G. to receive written translations of IEP documents, CPS did not provide her with such Spanish translations, except for IEP progress reports in G.G.'s sixth grade year. Asencion G. has turned to a bilingual advocate or attorney outside of CPS to understand the IEP documents she receives.
At a February 16, 2016, IEP meeting, CPS changed G.G.'s placement to a therapeutic day school. CPS provided an interpreter who served in another role at the meeting as well and did not accurately interpret the conversation. CPS also denied Asencion G.'s request to translate the IEP into Spanish and her request for information on therapeutic day schools in Spanish. Around March 23, 2016, Asencion G. received a letter assigning G.G. to Acacia, a therapeutic day school with which CPS contracts. After she obtained a translation of the letter, on April 4, 2016, Asencion G. visited Acacia and began the intake process.
H. M.P. and Izabela P.
M.P., an eighteen-year-old student at New Horizon Center for the Developmentally Delayed, qualifies for special education *633services. M.P.'s mother, Izabela P., is a native Polish speaker. M.P.'s IEPs indicate that the household speaks primarily Polish and that parent communications require an interpreter.
At a March 1, 2017, IEP meeting, CPS did not provide Izabela P. with a written translation of M.P.'s progress reports. Izabela P. also did not receive a written translation of the IEP that resulted from that meeting. Izabela P. defers many educational decisions to her daughter, who speaks English, and relies on her daughter to understand the IEP documents.
LEGAL STANDARD
A motion to dismiss under Rule 12(b)(6) challenges the sufficiency of the complaint, not its merits. Fed. R. Civ. P. 12(b)(6) ; Gibson v. City of Chicago , 910 F.2d 1510, 1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion to dismiss, the Court accepts as true all well-pleaded facts in the plaintiff's complaint and draws all reasonable inferences from those facts in the plaintiff's favor. AnchorBank, FSB v. Hofer , 649 F.3d 610, 614 (7th Cir. 2011). To survive a Rule 12(b)(6) motion, the complaint must not only provide the defendant with fair notice of a claim's basis but must also be facially plausible. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L.Ed. 2d 868 (2009) ; see also Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L.Ed. 2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.
ANALYSIS
I. Exhaustion of Administrative Remedies
The CPS Defendants argue that because Plaintiffs have not properly exhausted their administrative remedies under the IDEA or, for those who did, the administrative process mooted their claims, the Court should dismiss all of Plaintiffs' claims against the CPS Defendants. The IDEA requires a plaintiff to first exhaust available administrative remedies before filing suit under the statute. See 20 U.S.C. § 1415 ; Jamie S. v. Milwaukee Pub. Schs. , 668 F.3d 481, 494 (7th Cir. 2012). The exhaustion requirement extends to claims under other statutes to the extent those claims "seek[ ] relief that is also available" under the IDEA. 20 U.S.C. § 1415(l) ; Fry v. Napoleon Cmty. Schs. , --- U.S. ----, 137 S.Ct. 743, 752, 197 L.Ed.2d 46 (2017) (clarifying that, for IDEA exhaustion to apply to other statutory claims, "a suit must seek relief for the denial of a FAPE"). The parties do not dispute that the exhaustion requirement extends to all of Plaintiffs' claims.
Only H.P., E.V., and their parents sought relief through the administrative process prior to filing this suit. The hearing officers in H.P. and E.V.'s cases determined that they did not have jurisdiction under the IDEA to address CPS' failure to provide all Spanish-speaking LEP parents with children with disabilities with qualified interpreters and translation of documents or to grant relief to all Spanish-speaking LEP parents with children with disabilities. However, both hearing officers did provide some individual relief to H.P. and E.V. and their parents with respect to translation and interpretation services. In H.P.'s case, the hearing officer concluded that CPS denied H.P. a FAPE because it significantly impeded his parents' opportunity to participate in the IEP process by failing to provide trained and certified interpreters and translations of vital documents. The hearing officer ordered that CPS provide qualified interpretation services *634at all future IEP meetings and translations of key special education documents to H.P.'s parents. In E.V.'s case, the hearing officer did not find that E.V. was denied a FAPE because CPS did not provide his parents with translations and did not have competent interpreters, where Aixia H. demonstrated sufficient understanding of her rights under the IDEA and she meaningfully participated in IEP meetings. The hearing officer did order CPS to provide translations of various documents concerning special education but denied relief with respect to interpretation services.
The CPS Defendants argue that the results of these proceedings have rendered H.P., E.V., and their parents' claims moot. Before addressing these Plaintiffs' claims, the Court must consider Plaintiffs' argument that they only seek systemic relief, for which exhaustion would be futile or inadequate. See, e.g. , Beth V. by Yvonne V. v. Carroll , 87 F.3d 80, 88 (3d Cir. 1996) ("In the IDEA § 1415 context, plaintiffs may thus be excused from the pursuit of administrative remedies where they allege systemic legal deficiencies and, correspondingly, request system-wide relief that cannot be provided (or even addressed) through the administrative process."). The Seventh Circuit has questioned whether allegations of systemic violations automatically exempt an IDEA claim from exhaustion requirements, stating that "[w]hile some IDEA violations may implicate the structure of a school district's special-education program and may not be remediable through ordinary administrative review, it does not necessarily follow that administrative review is futile or inadequate for all violations that are alleged to be 'systemic.' " Jamie S. , 668 F.3d at 494 n.3. Jamie S. did not foreclose an exception to exhaustion for systemic violations, however. Id. (noting that the court did not need to decide issues related to the futility of exhaustion of systemic violations). But the Court must determine whether Plaintiffs' claims qualify as systemic violations before any such exception to exhaustion becomes relevant.
In an unpublished decision before Jamie S. , the Seventh Circuit discussed systemic claims under the IDEA and adopted the Ninth Circuit's definition:
[A] claim is "systemic" if it implicates the integrity or reliability of the IDEA dispute resolution procedures themselves, or requires restructuring the education system itself in order to comply with the dictates of the Act; but that it is not "systemic" if it involves only a substantive claim having to do with limited components of a program, and if the administrative process is capable of correcting the problem.
Waters v. S. Bend Cmty. Sch. Corp. , 191 F.3d 457 (Table), 1999 WL 528173, at *4 (7th Cir. 1999) (quoting Doe v. Az. Dep't of Educ. , 111 F.3d 678, 681 (9th Cir. 1997) ). Plaintiffs allege that CPS has no policy or practice to ensure that LEP parents receive competent interpretation or translation services. They claim to seek systemic, not individual, relief, specifically that CPS: (1) "institute an express policy and consistent practice of providing interpretation services by impartial and competent interpreters at IEP meetings and written translations of vital IEP process documents to LEP parents," (2) "develop a protocol to identify LEP parents who may need translation and interpretation services," (3) "timely translate all vital IEP process documents for LEP parents," and (4) "notify all LEP parents of children with disabilities enrolled in CPS schools in writing in their native language of their right to receive translated vital IEP process documents and competent interpretation services." Doc. 72 at 59.
*635"[P]laintiffs cannot simply assert that their allegations are systemic in order to survive the exhaustion requirement, and courts have not excused claims that are merely couched as allegations of systemic violations." M.O. ex rel. Ondrovic v. Ind. Dep't of Educ. , No. 2:07-CV-175-TS, 2008 WL 4056562, at *10 (N.D. Ind. Aug. 29, 2008) (collecting cases). Plaintiffs' allegations of systemic violations ignore the fact that, under the IDEA, CPS need only provide translation and interpretation services to the extent necessary to ensure meaningful parent participation. See T.R. v. Sch. Dist. of Philadelphia , No. 15-4782, 2019 WL 1745737, at *14-15 (E.D. Pa. Apr. 18, 2019). And under the IDEA, meaningful participation "does not proscribe a certain course of conduct by a school district, but rather requires a fact-intensive inquiry into the individual circumstances." Id. at *15 ; see also 20 U.S.C. § 1415(f)(3)(E)(ii) (procedural inadequacies amount to a FAPE denial where they "significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a [FAPE] to the parents' child"). Even in this case, the FAC demonstrates the individualized nature of the inquiry because the hearing officers in H.P. and E.V.'s cases came to different conclusions when assessing the extent to which the lack of interpretation and translation services affected the parents' ability to meaningfully participate in the decisionmaking process for their children. See T.R. , 2019 WL 1745737, at *17 ("[W]hile the School District's provision of translation or interpretation services might, in some cases, deny a parent the right of meaningful participation, that same conduct may, in other cases, sufficiently allow a parent to meaningfully participate in their child's IEP process."). Plaintiffs contend that because of the inconsistent results, they need systemic relief, but, considering Plaintiffs' claims against the IDEA's requirements, they require a case-by-case inquiry into how CPS' policies or practices regarding translation and interpretation services affect each student and his or her parents individually. See Blackman v. District of Columbia , 633 F.3d 1088, 1094 (D.C. Cir. 2011) ("IDEA's singular focus on an individualized, cooperative educational approach providing customized remedies makes Congress's neglect of broad-based actions understandable and renders IDEA action ill-suited to class-wide relief.").
This conclusion is bolstered by the fact that, in H.P. and E.V.'s cases, the hearing officers in the due process hearings addressed their individual requests for relief related to translation and interpretation services, suggesting that structural relief is not the only solution to the alleged violations. See Doe , 111 F.3d at 682 (holding that a claim is not systemic "if the administrative process is capable of correcting the problem," with exhaustion required where a plaintiff "does not challenge a Departmental policy that cannot be changed, so far as he and other class members are concerned, absent structural relief that only a court can order"). And even systemic relief, which the hearing officers determined they could not grant, would only lead to individualized determinations related to each parent's ability to meaningfully participate in the IEP decisionmaking process. See T.R. , 2019 WL 1745737, at *22 ("Ultimately, ordering the relief that Plaintiffs seek-that the School District 'adopt and implement a new written special education plan and District policy to provide legally mandated translation and sufficient interpretation services to members of the Parent Class and the Student Class'-simply initiates a process through which highly-individualized determinations of liability and remedy are to be made."). Therefore, the Court finds that the alleged systemic *636nature of Plaintiffs' claims does not render exhaustion futile or inadequate.
Having found exhaustion necessary in this case, the Court turns to whether H.P., E.V., and their parents' pursuit of administrative remedies suffices to allow all Plaintiffs to proceed. The CPS Defendants argue that H.P., E.V., and their parents' claims are moot because the hearing officers provided both families with the relief they request in this case, which would also mean that the other Plaintiffs cannot piggyback on their compliance with the administrative process. Plaintiffs first argue that H.P.'s claim remains viable because CPS has not complied with the hearing officer's order. But to the extent that H.P. and his parents have issues with CPS' compliance with the ordered relief, their recourse lies in an action to enforce the hearing officer's decision, not in this action raising the same issues addressed by the hearing officer in a favorable manner. See Robinson v. Pinderhughes , 810 F.2d 1270, 1272-75 (4th Cir. 1987) (concluding that school district's failure to comply with hearing officer's decision in favor of plaintiffs gives rise to a § 1983 claim to enforce compliance); A.T. v. N.Y. State Educ. Dep't , No. 98-CV-4166(JG), 1998 WL 765371, at *6-7 (E.D.N.Y. Aug. 4, 1998) ("[P]arties seeking to enforce favorable decisions under the IDEA have 'neither the responsibility nor the right to appeal the favorable decision by the local hearing officer since they were not aggrieved by [her] decision.' ... [P]arties seeking to enforce favorable administrative decisions are precluded from doing so under the IDEA because they are not aggrieved parties, but ... these same parties may seek to enforce their claims under § 1983." (second alteration in original) (citation omitted)). The Court therefore dismisses H.P. and his parents' claims against the CPS Defendants.4
As for E.V. and his parents, the hearing officer determined that the lack of translation and interpretation services did not deny E.V. a FAPE and so did not provide them with all the relief they seek here.5 This, then, allows E.V. to challenge the hearing officer's decision concerning the provision of interpretation and translation services. And because E.V. and his parents exhausted their claims, the remaining Plaintiffs may also pursue their similar claims without going through the administrative process.6 See Ass'n for Cmty. Living v. Romer , 992 F.2d 1040, 1045 (10th Cir. 1993) ("[W]e do not hold that every plaintiff in a class action must exhaust the IDEA's administrative remedies.... Even where exhaustion is necessary, the exhaustion of a few representative claims may be sufficient to secure statutory compliance and, if not, would at least serve the purposes of the exhaustion requirement and properly frame the issues *637for judicial review."); DL v. District of Columbia , 450 F. Supp. 2d 11, 17 n.2 (D.D.C. 2006) (collecting cases concerning vicarious exhaustion and extending the concept to IDEA claims to conclude that only one plaintiff need have exhausted his claims to meet the IDEA's exhaustion requirement). Therefore, the Court proceeds to address the CPS Defendants' remaining arguments for dismissal.
II. IDEA Claim
With respect to their IDEA claim, Plaintiffs allege that, because of CPS' refusal to translate vital IEP process documents and to provide competent and impartial interpreters to LEP parents, CPS denied the Student Plaintiffs a FAPE. The CPS Defendants first argue that Plaintiffs have failed to state an actionable IDEA claim because their allegations confirm that CPS' policies and practices did not deny any of the Student Plaintiffs a FAPE or any of the Parent Plaintiffs denied meaningful participation in the IEP process.
Procedural flaws in the IEP process do not automatically rise to the level of a denial of a FAPE. See Hjortness ex rel. Hjortness v. Neenah Joint Sch. Dist. , 507 F.3d 1060, 1065 (7th Cir. 2007). Procedural inadequacies in the IEP process rise to the level of a FAPE denial where the procedural inadequacies (1) impeded the student's right to a FAPE; (2) "significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a [FAPE] to the parents' child," or (3) "caused a deprivation of educational benefits."7 20 U.S.C. § 1415(f)(3)(E)(ii). The CPS Defendants argue that Plaintiffs' allegations demonstrate that each parent meaningfully participated in the IEP process and obtained substantive relief for their child through that participation. But the Court cannot make this determination at the motion to dismiss stage, where it must take Plaintiffs' allegations as true and draw all reasonable inferences in their favor. Plaintiffs have sufficiently alleged that the Parent Plaintiffs faced significant difficulties in their attempts to participate in the IEP process because CPS did not provide translations of vital documents or competent interpreters. The allegations do suggest that many of the Parent Plaintiffs ultimately obtained modifications to their children's IEPs, and the Court acknowledges that "delay in itself" does not amount to a violation. Heather S. , 125 F.3d at 1059. But here, Plaintiffs do not rely solely on the delay in receipt of services to support a violation, and the allegations suggest that the lack of translation and interpretation significantly impeded the Parent Plaintiffs' participation in the IEP process and caused additional harms to the Student Plaintiffs. While the evidence may ultimately undermine Plaintiffs' claim, at this stage, the Court finds Plaintiffs have sufficiently stated an IDEA claim to proceed.
III. Title VI Claim
Finally, the Court considers Plaintiffs' Title VI claim, in which they allege that the CPS Defendants have engaged in language-based, and therefore national origin, discrimination prohibited by Title VI by failing to translate vital IEP process documents and to provide competent interpretation services for LEP parents *638of children with disabilities.8 This failure, according to Plaintiffs, has denied the Parent Plaintiffs the right to meaningfully participate in the IEP process to the same extent as parents who read and speak English proficiently. The parties agree that Title VI provides a private cause of action only for intentional discrimination and not for disparate impact. Alexander v. Sandoval , 532 U.S. 275, 281, 293, 121 S. Ct. 1511, 149 L.Ed. 2d 517 (2001) (holding that, although "regulations promulgated under § 602 of Title VI may validly proscribe activities that have a disparate impact on racial groups, even though such activities are permissible under § 601," no private right of action exists to enforce those regulations). Although a failure to comply with regulations promulgated under § 602 may be actionable to the extent that failure also amounts to a failure to comply with § 601, this requires intentional discrimination because § 601 only reaches intentional discrimination. Id. at 280, 286, 121 S. Ct. 1511.
The CPS Defendants argue that Plaintiffs only allege a disparate impact on the Parent Plaintiffs, with CPS' alleged failure to provide translation and interpretation services potentially disproportionately impacting parents whose country of national origin does not speak English as a native language. Plaintiffs, on the other hand, contend that they have alleged intentional discrimination, specifically that CPS knows of the Parent Plaintiffs' need for competent interpretation and translation services but nonetheless intentionally and systematically fails to provide these services. They provide specific instances where CPS has denied requests for such services. According to Plaintiffs, these actions, done with knowledge of the LEP parents' need for services, deny the Parent Plaintiffs the ability to meaningfully participate in the IEP process. At this stage, this is all Plaintiffs must allege to suggest intentional discrimination. See Marcial v. Rush Univ. Med. Ctr. , No. 16-cv-6109, 2017 WL 2180503, at *4 (N.D. Ill. May 18, 2017) (finding plaintiff stated Title VI claim where she alleged "she was treated differently than other students because of her race or national origin, and has provided specific examples of the ways in which she was treated differently"). To the extent discovery reveals that Plaintiffs' Title VI claim amounts only to one for disparate impact, or that language-based discrimination should not be considered a proxy for protected national origin discrimination, the CPS Defendants can make these arguments to the Court based on a more complete record.
CONCLUSION
For the foregoing reasons, the Court grants in part and denies in part the CPS
*639Defendants' motion to dismiss [53]. The Court dismisses H.P., Victoria G., and Hector P.'s claims against the CPS Defendants.
The ISBE Defendants have answered the FAC. Although the CPS Defendants filed their motion to dismiss with respect to Plaintiffs' initial complaint, the FAC only removes two of the named Plaintiffs and does not affect the CPS Defendants' arguments. Therefore, the Court considers the motion to dismiss in light of the FAC.
The facts in the background section are taken from Plaintiffs' FAC and exhibits attached thereto and are presumed true for the purpose of resolving the CPS Defendants' motion to dismiss. See Virnich v. Vorwald , 664 F.3d 206, 212 (7th Cir. 2011) ; Local 15, Int'l Bhd. of Elec. Workers, AFL-CIO v. Exelon Corp. , 495 F.3d 779, 782 (7th Cir. 2007).
The process documents that Plaintiffs claim should be translated include the IEP, Notification of Conference, Conference Recommendations, Procedural Safeguards Notice, Consent for Initial Evaluation, Consent for Reevaluation, Evaluation Reports, Eligibility Determination, Manifestation Determination, IEP Progress Reports, and Medicaid Consent Forms.
The ISBE Defendants have not made an argument that H.P. and his parents' claims against them are moot. The Court allows these claims to proceed, where a conceivable basis for a valid controversy exists.
Although the hearing officer did indicate that certain documents should be provided to E.V.'s parents in Spanish, the decision does not specify whether these translated documents encompass those requested in this lawsuit. Further, the hearing officer did not include the translation order in the concluding summary of the relief she granted to E.V. and his parents.
The Court acknowledges that this may require the use of different standards of review for the exhausted and non-exhausted Plaintiffs but leaves discussion of this issue for another day. See Heather S. v. Wisconsin , 125 F.3d 1045, 1052-53 (7th Cir. 1997) (describing the standard of review for an administrative decision under the IDEA where the parties have not asked the court to hear additional evidence).
The Seventh Circuit refers to those procedural inadequacies that result in the denial of a FAPE as those "that result in the loss of educational opportunity." Hjortness , 507 F.3d at 1065. The parties rely on the categories outlined in the IDEA statute, and so the Court does the same for purposes of this motion to dismiss.
The CPS Defendants argue in reply that language-based discrimination does not equate to national origin discrimination. See Mumid v. Abraham Lincoln High Sch. , 618 F.3d 789, 795 (8th Cir. 2010) ("While Title VI prohibits discrimination on the basis of national origin, language and national origin are not interchangeable."). But the Seventh Circuit has not taken a definitive stance on the issue, noting instead that the question is unsettled and that "[i]t may well be, for certain ethnic groups and in some communities, that proficiency in a particular language, like skin color, should be treated as a surrogate for race under an equal protection analysis." Kikumura v. Turner , 28 F.3d 592, 599-600 (7th Cir. 1994) (quoting Hernandez v. New York , 500 U.S. 352, 369-70, 111 S. Ct. 1859, 114 L.Ed. 2d 395 (1991) ). The Court at this stage treats language as a surrogate for national origin with respect to Plaintiffs' claims. See EEOC v. Wis. Plastics, Inc. , 186 F Supp. 3d 945, 948 (E.D. Wis. 2016) ("It is true that language ability per se is not the legal equivalent to a protected class like race or national origin, but language can sometimes serve as a proxy, or stalking horse, for discrimination against a protected class."). | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3341931/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]MEMORANDUM OF DECISION ON MOTIONS TO SET ASIDE VERDICTS
I
Introduction and Factual Background
A.
The plaintiffs Karen and Randall Simard, passenger and driver, respectively, have brought the present action seeking damages for personal injuries allegedly resulting from a car accident which occurred in Farmington, Connecticut on September 19, 1990. The defendant Maryland Casualty Co. was the owner and the defendant David Bennett was the driver of the car which collided with that of plaintiffs.
The case was tried to the jury and on May 12, 1995, the jury returned a verdict in the sum of $3390 ($3390 in economic damages, $0 in non-economic damages) for Karen Simard and a defendant's verdict as to Randall Simard. Neither party had requested interrogatories and none were submitted to the jury. No exceptions had been taken to the court's charge.
On May 9, 1995, the plaintiffs moved to set aside the CT Page 11881 verdicts on the grounds that they were contrary to the evidence and to Connecticut law.
B.
While Mr. Bennett had no memory of the accident, Mr. Simard testified that while traveling north on New Britain Avenue at the intersection of Meadow Road, Mr. Bennett proceeded through a stop sign and collided with his car. He stated that it was raining that night and there was no stop sign for traffic proceeding in his direction. Mr. Simard also testified that the defendant admitted to him at the accident scene that he did not see the stop sign. The plaintiff estimated his own speed between 35 to 40 miles per hour — in excess of the posted speed limit of 35 miles per hour. The front end of the defendant's vehicle collided with the front end of the plaintiffs' vehicle.
Mr. Simard testified that as a result of the accident he suffered back injuries and sustained economic damages of $40,894.00 for medical treatment, including back surgery and lost wages. Karen Simard's testimony concerning the accident was similar to her husband's. She also claimed damages of $11,589 for medical treatment and $1,945.68 for lost wages.
II Discussion
A.
The decision to set aside a jury verdict is within the discretion of trial court. Ginsberg v. Fusaro, 225 Conn. 420, 425
(1993). A verdict should be set aside "where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles, or as to justify the suspicion that the jurors or some of them were influenced by prejudice, corruption or partiality." (Internal quotation marks omitted). AmericanNational Fire Ins. Co. v. Schuss, 221 Conn. 768, 774 (1992).
The trial court should be hesitant to set aside a verdict,Donahue v. State, 27 Conn. App. 135, 139 (1992) and the trial court must give the evidence "the most favorable consideration in support of the verdict of which it is reasonably capable."Shelnitz v. Greenberg, 200 Conn. 58, 67 (1986). "[A] verdict CT Page 11882 should not be set aside when it is apparent that some evidence exists upon which the jury might have reasonably reached its conclusion." Klingeman v. MacKay, 25 Conn. App. 217, 225 (1991).
B.
This court recognizes that the lion's share of evidence came from the plaintiffs. As the defendant had essentially no recollection of the collision, Randall and Karen Simard provided the jury with the facts. The question becomes one of weight; did the jury believe Mr. and Mrs. Simard? "The credibility of the witnesses is solely within the province of the jury." Martino v.Palladino, 143 Conn. 547, 548 (1956). "[I]t is only in a rare case, for instance, that, as a matter of law, it can be said that the jury are compelled to accept as true the plaintiff's evidence supporting the essential allegations of his complaint, even if it appears such evidence might be uncontradicted." Nielson v.D'Angelo, 1 Conn. App. 239, 247 (1984) citing Silva v. Hartford,141 Conn. 126, 127-28 (1954).
In this case, the jury heard and viewed Mr. Simard during cross-examination as he attempted to explain the inconsistencies between a job application and his resume with his in-court testimony.1 They heard his testimony about playing basketball and about the origins of his back problems. Additionally, they heard Mr. Simard's statement that he was driving between 35-40
miles per hour on that rainy night while the speed limit was 35 miles per hour. Moreover, Mrs. Simard testified that she was working for Colonial Realty at the time of the accident and there were questions about her attendance record. The jury heard her doctor's testimony concerning her positive response to medical treatment. Apparently the jury "did not buy the plaintiff's testimony and his supporting medical evidence that he was injured at all in the accident." Murteza v. State, 7 Conn. App. 196, 210
(1986).
Under the general verdict rule, the jury is presumed to have found all issues in favor of the defendants. Gajewski v. Pavelo,229 Conn. 829, 835 (1994). In Palomba v. Gray, 208 Conn. 21, 24
(1988), the court stated that
. . . [The trial court] should not set aside a verdict where it is apparent that there was some evidence upon which the jury might reasonably reach their CT Page 11883 conclusion, and should not refuse to set it aside where the manifest injustice of the verdict is so plain and palpable as clearly to denote that some mistake was made by the jury in the application of legal principles, or as to justify the suspicion that they or some of them were influenced by prejudice, corruption or partiality.
C.
Karen Simard also seeks to set aside her verdict arguing that the jury's failure to award noneconomic damages requires an additur, pursuant to General Statutes § 52-228b, or a new trial. Such was seemingly the law at trial under Childs v.Bainer, 35 Conn. App. 301 (1994) where it was held that an award of economic damages coupled with an award of zero noneconomic damages was inadequate as a matter of law. In such a situation General Statutes § 52-228b allows a prevailing party to seek an additur and "to give the parties an opportunity to accept the additur and if they do not accept the additur, a new trial is ordered as to all issues." Childs v. Bainer, supra, 35 Conn. App. 305. This court initially ordered an additur in the sum of $20,000 on July 28, 1995 but on its own motion that same day and prior to even mailing notice to the parties, it vacated the additur. Further conferences were then held with the parties.
On August 15, 1995, the Supreme Court reversed the Appellate Court decision at 235 Conn. 107 (1995). The court held that a trial court need not grant an additur in an economic but zero noneconomic damage award scenario. In Childs, as in this case, "the cause, nature and extent of the plaintiff's injuries were `hotly contested'." Id., 116. The court stated that "the existence of conflicting evidence limits the court's authority to overturn a jury verdict." Id. Additionally (as in this case), the court noted that "the jury did not award the entire amount of claimed economic damages." Id., 117. Finding that the verdict was not ambiguous and that in an earlier decision, Rickert v. Fraser,152 Conn. 678 (1965), it upheld a refusal to set aside a verdict which was less than the claimed special damages, the court found that an additur was not mandated.
As noted by the Supreme Court, "this right [to have factual issues determined by the jury] embraces the determination of CT Page 11884 damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded. . . . The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case the jury." Id., 112 citing Mather v. Griffin Hospital, 207 Conn. 125,138 (1988). In light of this decision, the request for the additur must be denied.
III Conclusion
This court finds first, that there was certainly some evidence that would allow the jury to reach its conclusion and second, that the verdicts were not so manifestly unjust that they clearly note a mistake by the jury. There was, and is, no indication that the jury was influenced by any prejudice, corruption or impartiality. Accordingly, to the extent litigants have a constitutional right to have issues determined by the jury, Mather v. Griffin Hospital, supra, 207 Conn. 133, and the issues were so determined, with some evidence and no objection to the instructions and no interrogatories, this court denies the plaintiff Randall Simard's motion to set aside the verdict and the plaintiff Karen Simard's motion for either an additur or to set aside the verdict.
Berger, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3341933/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]
MEMORANDUM RE: MOTION FOR SUMMARY JUDGMENT (#120)
On December 27, 1991, plaintiff, Centerbank Mortgage Company ("Centerbank"), filed a single-count complaint alleging that defendants, Brice J. Vickery and Caren C. Vickery failed to make the monthly payments on a promissory note. The Vickerys filed their respective answers on February 11, 1992, and Centerbank filed a response to the Vickerys' answers on April 14, 1992.
Plaintiff filed an amended complaint on March 30, 1992, which is identical in all respects to the original complaint, except that it states facts "showing the interest of Union Trust Company in this action," and it summons "Union Trust Company to appear as a Defendant in this action."
In its complaint, Centerbank specifically alleges that the Vickerys, by virtue of a promissory note, dated February 13, 1984, promised to pay Centerbank the principal sum of $54,000, plus interest, and that the Vickerys secured the note by a mortgage deed. Centerbank asserts that "[t]he installment of interest and principal due on May 1, 1991 and each and every month thereafter have not been paid, and the Plaintiff has exercised the option to declare the entire balance due on the Note due and payable." Amended Complaint, para. 4. Centerbank seeks various forms of relief, including a foreclosure of the mortgage, immediate possession of the premises and a deficiency judgment against the Vickerys.
The Vickerys each filed an answer in which they admit only that they are the record owners of the premises and that they are currently in possession of said premises. They neither admit nor deny the remaining allegations, but "leave it to the Plaintiff's proof."
On May 28, 1992, Centerbank filed a motion for summary judgment against the Vickerys, interlocutory in nature, claiming that there is no genuine issue of fact concerning liability. The Vickerys filed their respective oppositions on June 11, 1992.
Summary judgment "shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Citation omitted.) Hammer v. Lumberman's Mutual Casualty CT Page 8342 Co., 214 Conn. 573, 578, 573 A.2d 699 (1990). "`[T]he party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . .'" (Citation omitted.) Connell v. Colwell, 214 Conn. 242, 246,571 A.2d 116 (1990). "`[A] party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue.'" (Citations omitted.) Id., 246. A "`genuine' issue . . . has been defined as one which can be maintained by substantial evidence." (Citations omitted.) United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364,378, 260 A.2d 596 (1969). A material fact is a fact which will make a difference in the outcome of the case. (Citation omitted). Catz v. Rubenstein, 201 Conn. 39, 48, 513 A.2d 98 (1986).
Practice Book 380 provides that a "motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like."
In the instant matter, plaintiff's sole support for its motion consists of uncertified copies of an Open-End Mortgage, Adjustable Rate Rider, an Agreement Changing Mortgage and Note, a document entitled Schedule A, and an Adjustable Rate Note.
Accordingly, the plaintiff has not met its burden of proving that defendants have failed to pay their monthly installments on the note. Therefore, the plaintiff's motion for summary judgment is denied.
PICKETT, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1867436/ | 561 So. 2d 1065 (1990)
Howard DEES and Sara Dees
v.
Margaret PENNINGTON, et al.
88-487.
Supreme Court of Alabama.
March 30, 1990.
*1066 Claiborne P. Seier and Hayes D. Brown of Seier, Johnston & Trippe, Birmingham, for appellants.
Jonathan A. Brown of Young & Brown, Vernon, for appellees.
PER CURIAM.
This is a boundary line dispute between coterminous landowners. Following a disagreement between Howard Dees and Margaret Pennington concerning the boundary line between their properties, Dees filed this action[1] to have the court determine the boundary line. Alternatively, Dees alleged that he had gained title to the disputed strip of property by adverse possession. The court fixed the property line as advocated by Pennington. Dees appeals.
The property is located in Lamar County, Alabama. Both parties trace their chain of title to W.C. Dees, the plaintiff's grandfather. W.C. Dees conveyed the western parcel to his son, L.H. Dees, in 1926. L.H. Dees conveyed that parcel to the plaintiff, Howard Dees, in 1972. The property description in both of those conveyances reads:
"All of the land lying west of the Old Fernbank Road in the west ½ of the northeast ¼ of Section 5, Township 16, Range 15 West, containing fifty acres more or less."
Mr. and Mrs. Pennington obtained title through a series of conveyances that began when W.C. Dees first conveyed the land in 1936 and that was completed in 1983. The property description in those conveyances reads, in relevant part:
"All that part of the W ½ of the NE ¼ lying east of the Fernbank Public Road,... in Section 5, Township 16 South, Range 15 West, in Lamar County, Alabama, containing 30 acres, more or less."
Since 1920 there have been three roads in the disputed area, separated in some places by less than thirty feet. According to testimony elicited at trial, each of those roads has been known, among other names, as the Old Fernbank Road or the Fernbank Road. This dispute concerns which of those roads the original grantor intended to be the boundary line. Dees contends that the newest, and most easterly of the three roads is the proper boundary line. That road has also been known as the Fernbank Public Road and is presently known as Moore's Mill Road. Dees testified that his father, L.H. Dees, had pointed this road out as the eastern boundary line of their property on many occasions. Dees also testified that he has paid property taxes on the land west of the present road. Pennington contends that the oldest and most westerly of the three roads is the correct boundary.
The oldest of the three roads was an unpaved road that was abandoned at some time between 1915 and 1926. Morris Cole, a lifelong resident of Lamar County born in 1901, testified that that road was known as the Fernbank and Vernon Road, and that he last travelled over it around 1915. That road was replaced by a paved road some years later. The second road was subsequently straightened and moved a short distance east from its original roadbed, resulting in the road presently in use. Mr.
*1067 Cole acknowledged that both of those roads had also been known as the Old Fernbank Road.
Ms. Lois Finch, who was 78 years old at the time of trial, stated that she grew up on the land now owned by Pennington and that she had lived in Lamar County until 1941. Ms. Finch identified a photograph she had taken in 1926 as being of the oldest, most westerly roadbed. She testified that that road had been known to her as the Old Fernbank Road. Ms. Finch also stated that that road had been replaced and was no longer used at the time the photograph was taken. It is important to note that the photograph identified by Ms. Finch was taken the same year that W.C. Dees, the original grantor, conveyed the western parcel of land to L.H. Dees, the plaintiff's father and predecessor in title. This would indicate that there were two roads in the vicinity at the time of this conveyance. Neither Mr. Cole nor Ms. Finch indicated that they knew which of the three roads was the boundary line between the property owned by Dees and that owned by Pennington.
The trial judge heard the testimony of these and several other witnesses, personally viewed the area in dispute, and reviewed the exhibits, including several deeds. The judge found that the testimony of Ms. Finch was crucial and that it established that the oldest, most westerly road was the Old Fernbank Road. He also found that Mr. Cole's testimony indicated that there were two roads in the vicinity in 1926, thus explaining the reference to the Old Fernbank Road in the 1926 deed from W.C. Dees to L.H. Dees. He therefore decided that the most westerly road was the correct boundary line between the property owned by Dees and that owned by Pennington. He ordered a survey to determine the center line of that road and ordered the positioning of judicial markers along that line.
In reviewing cases such as these, where evidence is presented ore tenus and the trial judge views the property in dispute, this Court will not reverse unless the judgment of the trial court is palpably erroneous or manifestly unjust. Jemison v. Belcher, 368 So. 2d 849 (Ala.1979); Smith v. Nelson, 355 So. 2d 359 (Ala.1978).
It is clear that there is credible evidence supporting the trial judge's determination that the oldest, most westerly road has been known as the Old Fernbank Road. However, it is not clear from the evidence presented that the original grantor intended that road to be the eastern boundary line of the property now owned by Dees. What is clear, from the unambiguous language of the property descriptions in each deed concerning the property now owned by Pennington, is that the oldest road was never intended to be the western border of that parcel of land. Each deed, beginning in 1936, names the Fernbank Public Road as the western border of that parcel. There is no indication that the oldest, most westerly road has ever been referred to as the Fernbank Public Road, despite its various other names. It is clear, therefore, that the original grantor intended that the road being travelled in 1936 be the western boundary of that parcel, and, by inference, the eastern boundary of the property now owned by Dees. By naming the oldest road as the boundary line, the trial court, in effect, gave Pennington a strip of land approximately 30 feet wide and of some considerable length. This strip of land was never conveyed to the Penningtons or to their predecessors in title, nor have they claimed title to it by adverse possession.
The trial court's determination is in conflict with a logical interpretation of the relevant deeds. It is difficult to believe that the original grantor would convey the western parcel of land to his son in 1926 without providing access to what was apparently the only travelled road in the vicinity, and then in 1936 convey the eastern parcel of land, with frontage along the travelled road, to someone not a member of his family. Nor does it seem likely that the original grantor intended for the grantee of the eastern parcel of land to have access to the road, while retaining a 30-foot-wide strip of land, thereby denying access to the road to his own son. Normally the grantor is presumed to intend to convey the fee *1068 owned by him to an abutting right-of-way along with, and as part of, the conveyance of land the right-of-way abuts. This presumption is based on the theory that the grantor would not retain a narrow strip of land that could be of little use or value to anyone other than the adjoining landowner. Standard Oil Co. v. Milner, 275 Ala. 104, 152 So. 2d 431, 436 (1962).
The presumption stated in Standard Oil, supra, concerned whether the grantor conveyed the fee to the center line of the right-of-way or only to its edge, and it arose in the context of disputed ownership of the land covered by the right-of-way after its abandonment. The same principles should apply in this less common situation where the question is whether the grantor intended to convey only to the nearer and abandoned of two roads known by the same name, thereby retaining a narrow strip of land and blocking the grantee's access to the only road in the vicinity then in use, or intended to convey to the further of the two roads, thereby providing access to that road.
Although there is credible evidence that the oldest road has been known as the Old Fernbank Road, there is also evidence that the other two roads in the vicinity have been known by the same name. In the absence of evidence to the contrary, where a street is named in a deed as a boundary line, it must be taken that the parties intended the boundary to be the street as actually opened up and in use. Southern Iron Works v. Central of Georgia Ry., 131 Ala. 649, 31 So. 723, 725 (1901). Despite the fact that there was conflicting evidence concerning which road actually was the Old Fernbank Road, none of that evidence addressed the original grantor's intent. Applying the presumptions cited above, it follows that W.C. Dees intended the Fernbank Public Road, as travelled in 1936, to be the boundary line between the two parcels of land. This is the most logical construction of the two original deeds, as it would have provided both grantees with frontage along the road as it existed at the time of the conveyances. It remains for the trial court, on remand, to determine the course of the Fernbank Public Road at the time of the conveyance in 1936, and to order a survey to mark that course.
Dees's allegation that he gained title to the disputed strip of land by adverse possession was not addressed by the trial court. However, there was testimony at trial that both parties repeatedly cut timber in the disputed strip over the years. Dees has therefore failed to prove that he has been in exclusive possession of the disputed area for ten years, a vital element of adverse possession. Sylvest v. Stowers, 276 Ala. 695, 166 So. 2d 423 (1964).
Because the determination of the trial court is in conflict with the unambiguous property descriptions in the deeds concerning the eastern parcel, and because of the other reasons stated above, the judgment is reversed and this cause is remanded for a determination of the course of the Fernbank Public Road as travelled in 1936. Following this determination a survey shall be ordered to allow the placement of judicial markers along the boundary line.
REVERSED AND REMANDED.
HORNSBY, C.J., and ALMON, SHORES, ADAMS and STEAGALL, JJ., concur.
NOTES
[1] Dees's wife, Sara, joined the action as a plaintiff, and the complaint named Pennington's husband, Fred, as a defendant, but, for simplicity, we shall refer to each party in the singular. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1867723/ | 103 B.R. 1021 (1988)
In re Darrell Lee YOUNG, Debtor.
Bankruptcy No. IP87-2728FP V.
United States Bankruptcy Court, S.D. Indiana, Indianapolis Division.
July 26, 1988.
Kevin B. McCarthy, Indianapolis, Ind., U.S. Trustee.
John D. Hoover, Indianapolis, Chapter 12 Trustee.
Martin Shields, New Castle, Ind., for debtor.
ORDER ON MOTION REQUESTING DETERMINATION OF DISPOSABLE INCOME
RICHARD W. VANDIVIER, Bankruptcy Judge.
This matter comes before the Court on the Motion Requesting Court Intervention for the Determination of Disposable Income filed by the Trustee on February 22, *1022 1988. A hearing was held on April 4, 1988. The Court now decides as follows:
1. The Debtor filed for relief under Chapter 12 of the Bankruptcy Code on May 5, 1987. The Debtor and the Trustee have been unable to agree on how to determine what receipts from the 1987 season is disposable income available for distribution to unsecured creditors.
2. At the April 4, 1988, hearing, the evidence showed that at the end of 1987, the Debtor had a net operating balance of approximately $20,000.00. Federal and state taxes for 1987, payable in 1988, were approximately $3400.00 and $500.00 respectively. Projected living expenses for 1988 were $5000.00. The Debtor estimates his 1988 operating expenses will be about $12,000.00. The Debtor had no outside income at the time of the hearing, but thought he would probably have to find a job later when money would get tight. In 1987, he received a loan of $3000.00 from his father, but his father cannot lend him money this year. The Debtor has made some efforts to secure loans or credit for 1988, without success. The net operating balance for 1987 is roughly equal to the amount the Debtor estimates he will pay in 1988 for 1987 taxes, living expenses and operation expenses.
3. The Trustee contends that part of the 1987 net operating balance should go to unsecured creditors rather than entirely to the Debtor's 1988 expenses. The Trustee contends that the Debtor should finance his 1988 operations in part through credit, arguing that Chapter 12 was not intended to eliminate a farmer's need to borrow. The Debtor argues that one reason for his troubled financial situation was being overextended and that he should not have to incur credit obligations he may not be able to pay.
4. If the Trustee or any unsecured creditor objects, a Chapter 12 plan cannot be confirmed unless it provides that all of the Debtor's projected disposable income to be received during the term of the plan will be applied to make payments under the plan. 11 U.S.C. section 1225(b)(1)(B). Disposable income is defined as income that is not reasonably necessary for the maintenance or support of the debtor or a dependant of the debtor or for expenditures necessary for the continuation, preservation and operation of the debtor's business. 11 U.S.C. section 1225(b)(2). This definition closely tracks the definition of disposable income in 11 U.S.C. section 1325(b)(2), applicable to Chapter 13 cases.
5. The Trustee has cited and the Court has found no authority, under Chapter 12 or Chapter 13, addressing the question of whether a debtor may be required to operate in part on credit to free funds for distribution to unsecured creditors as disposable income. The Court believes such a requirement would impede the congressional goal of enabling debtors to reorganize successfully. For reorganization to succeed, a farmer will most likely have to break the chain of borrowing that contributed to his financial distress. Under Chapter 12, the Court therefore interprets disposable income to mean that part of net operating income above what is reasonably necessary to pay the upcoming year's expenses without obtaining credit.
6. Applying this conclusion to the facts adduced at the hearing, the Court finds that the Debtor has no disposable income from 1987 for distribution to unsecured creditors. Accordingly, the Trustee is directed to accept the Debtor's estimates of 1988 operating expenses.
SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266878/ | 4 F. Supp. 236 (1933)
DANCIGER OIL & REFINING CO. OF TEXAS et al.
v.
SMITH et al.
No. 391.
District Court, N. D. Texas, Amarillo Division.
June 25, 1933.
As Amended on Denial of Rehearing August 3, 1933.
Nelson Phillips, of Dallas, Tex., I. J. Ringoldsky and W. G. Boatright, both of Kansas City, Mo., and D. H. Culton and S. A. L. Morgan, both of Amarillo, Tex., for complainants.
James V. Allred, Atty. Gen., Willis E. Gresham and Maurice Cheek, Asst. Attys. Gen., and Robert E. Hardwicke, Sp. Counsel, of Ft. Worth, Tex., for defendants.
Before HUTCHESON, Circuit Judge, and WEST and WILSON, District Judges.
HUTCHESON, Circuit Judge.
Plaintiffs, producing and refining companies owned by the same interests, bring this bill to enjoin the orders of the commission limiting the production from wells of the oil and refining company in accordance with the proration orders promulgated for the Panhandle field.[1]
*237 The petition alleged that the plaintiffs' wells were being produced to the full producing capacity permitted by the use of a sufficient gas oil ratio, and that no waste of the state's resources is being caused by the method or rate of production. The Refractionating Corporation, alleging that, under special contracts requiring it to deliver oil and its products, it had sold and contracted to sell the products which it would obtain from the wells of the producing company, alleged its inability both to get oil elsewhere to fill these contracts, and to require its customers to take other oil, if it could obtain it. It prayed an order of the court pending the decision of the questions presented, permitting it to continue its operations.
On the balancing of conveniences, a restraining order was entered, permitting the wells to produce until the case could be submitted on full testimony and briefs. These have now been furnished, and the case stands for submission on the merits. So standing, it presents the question whether the order challenged is so arbitrary and confiscatory as that within the meaning of the applicable decisions [People's Petroleum Producers v. Smith (D. C.) 1 F. Supp. 361; Henderson v. R. R. Comm. (D. C.) 56 F.(2d) 218; MacMillan v. R. R. Comm. (D. C.) 51 F.(2d) 400; Nectow v. Cambridge, 277 U.S. 183, 48 S. Ct. 447, 72 L. Ed. 842; Pa. Coal Co. v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322, 28 A. L. R. 1321; MacLeaish v. Binford (D. C.) 52 F.(2d) 151] it has no foundation in reason, is a mere arbitrary exercise of power having no substantial relation to the authority justly conferred, or whether, within the meaning of Champlin Ref. Co. v. Corp. Comm., 286 U.S. 210, 52 S. Ct. 559, 76 L. Ed. 1062, and of People's Petroleum Producers v. Sterling (D. C.) 60 F.(2d) 1041, the evidence is insufficient to overcome the prima facies of the commission's action, and the order stands as valid.
A merely casual examination of the pleadings, the proof, and the arguments in this case make it at once clear that on its face this is a different case from the others we have decided. Unlike in those cases, the allowable here is fixed at a very large proportion of the potential of the field. According to the commission, it is fixed at a little less than one-third of the potential; according to Danciger, at about one-half of it. He claims that the total potential production is only 88,000 barrels; they claim it is from 130,000 to 142,000. Again, unlike the orders in those cases which apportioned the allowable to the field on a per well basis rather than in accordance with the potential of the wells, so as to give to each well reasonably its proportion of the allowed production, this order distributed the allowable on a potential basis in an effort to fairly allocate to each producer that portion of the production which the situation and nature of his properties entitles him to have. It is therefore plain that it cannot be said that there is anything arbitrary or unreasonable on the face of the order, either in the amount of production to which a particular field is limited or in the method of its distribution. The question here is not as it was in those cases, whether the allowable is a fairly reasonable one for the field, or whether it is fairly apportioned, but the question is the ultimate one, of the validity in this field, of proration orders. Upon the evidence before us, plaintiffs ask us to say that reasonable minds could not reach the conclusion the commission reached, that limiting the production as they did would have at least some tendency to conserve, and to prevent, the waste of the state's natural resources of oil and gas. In short, this is a case in which proration itself is contested on the ground that the facts in evidence conclusively establish that a general limitation on production, so as to require wells to ratably produce, has no tendency whatever to prevent waste.
Plaintiffs assert that the only valid limitations on their production which the commission ought to or can make would be to require *238 the use of a proper gas oil ratio, and to supervise the field operations to prevent the use of wasteful production methods there. They say that the evidence is conclusive, that there will be no waste whatever if all the wells are allowed to flow to the full capacity permitted by a proper gas oil ratio, and that a finding to the contrary is capriciously arbitrary; that there is ample market demand and transportation facilities for all of the production which under such ratio the wells will produce, and that for these reasons an order limiting the oil to any fixed amount must be regarded as merely arbitrary and without relation to the powers conferred. In addition to this contention, plaintiffs reargue with learning and ability, the power of the state to authorize the commission to, and the power of the commission to, prevent, by limitation on production, wastage of oil and gas.
Without following these arguments, it is sufficient to say that we are fully committed, by the decisions already rendered, to the proposition that the Legislature has the power to prevent such waste, and that it has lawfully and effectively delegated that power to the commission. The difficulty confronting the defendants in their efforts to prevent waste is not now, it has never been, one of defect in the statutes. It has been one, when it has appeared, of defect in their orders, in that they did not have a reasonable relation to the power conferred, were drastic and oppressive beyond the necessities of the case, went further in limitation of private use than the public interest demanded. We have no difficulty in finding, we have never had, under the statutes of this state, that the commission has the power to regulate production in all of the oil and gas fields of Texas, to prevent the occurrence of waste therein. In the cases cited above in which we have found the orders confiscatory, the evidence has overwhelmingly established that, instead of exercising the adequate powers they had to prevent waste, defendants had exercised those powers to effect an unauthorized, in fact, a prohibited, end, the keeping of Texas production down to the arbitrary, the artificial amount fixed as the quota of Texas oil, under agreements and arrangements by which the production from Texas and other states was to be limited and allocated so that each state could have a share in the general market for oil and its products, at a price which those interested in limiting production held out as reasonably to be expected, if the desired limitation were maintained. People's Petroleum Producers v. Smith, supra.
In addition to their reliance on the other statutory provisions in denunciation of waste, which we have considered in the other cases, defendants put forward here as a further support subdivision (k) of article 6014 of the amended statute (Acts 1932 [4th Called Sess.] c. 2, § 1, Vernon's Ann. Civ. St. art. 6014 subd. (k). This article in terms prohibits the "production, storage or transportation of crude petroleum oil or of natural gas in such manner, in such amount, or under such conditions as to constitute waste," and provides:
"The term `waste' among other things shall specifically include: * * *
"(k) The production of crude petroleum oil in excess of transportation or market facilities or reasonable market demand. The Commission is authorized to determine when such excess production exists or is imminent, and to ascertain the reasonable market demand. The Commission is expressly authorized to consider any or all of the above definitions in making rules, regulations or orders to prevent waste of oil or gas."
They declare that the provision is in substance the same as that contained in the Oklahoma statute, upheld in Champlin Refining Company v. Corp. Comm., 286 U.S. 210, 52 S. Ct. 559, 76 L. Ed. 1062. They argue that there is no substance in the point that, because of the different legal theories as to ownership of oil in place in the two jurisdictions, regulations against waste, valid in Oklahoma, are invalid in Texas.
We agree with defendants. In People's Petroleum Producers v. Smith (D. C.) 1 F. Supp. 361; People's Pet Producers v. Sterling (D. C.) 60 F.(2d) 1041, and cases cited, we have definitely said so as to underground waste. No reason presents itself to us for thinking that the Legislature of Texas has less power to prevent waste overground than it has to prevent it underground. Nor do we have any doubt that the enactment of subdivision (k) was intended to, or that it did, fully empower the commission to prevent such excess production beyond transportation and market facilities as would result in the physical waste of the oil by evaporation or otherwise, or the energy by which it is brought to the surface and saved. At the same time we are equally without doubt that the Legislature did not intend, by that subdivision, to authorize, that it has not authorized, the Railroad Commission to limit the production of oil from Texas to any figure arrived at either arbitrarily, or by arrangement *239 or agreement, as a part of a scheme of controlling production to control prices. Whether the Legislature under the state and Federal Constitutions could confer such authority upon the commission we are not now called upon to say. That question is not before us. What we do find is that nothing in subdivision (k), nor in any other provision of the act as it now stands, purports to confer such authority upon the commission, and certainly, without such authority having been definitely conferred, the commission may not exercise it.
We return again to the controlling question in this case, whether under the evidence in it, conceding the power of the commission to act to prevent waste, we can say that reasonable minds cannot find in the orders challenged any reasonable relation between them and the power conferred.
Plaintiffs vigorously press as grounds for relief the granting of the stripping permits by the commission, since in effect, authorized by the Legislature, the wasteful conditions attending the production in many of the wells in the field, of small amounts of oil by the use of huge amounts of gas. They urge these conditions as pointing their claim that the commission's order limiting their production while the gas which they might utilize is being otherwise wasted by others is confiscatory. They assert that in the face of the inevitable loss of gas pressure through these wasteful uses it is not reasonable to limit plaintiffs in the amount of oil they can produce with a reasonable gas-oil ratio. Defendants, countering these contentions, assert that, while it is true that the field is in a very general sense one gas reservoir, it is also true that for practical purposes the commission must administer the field in its separate parts, that it has in the exercise of its judgment done so, and that the evidence has not overthrown the prima facie validity of its actions and orders.
Complaint is also made of the fact that some of the wells where water damage danger is present are being allowed a greater amount of their potential than some of plaintiffs' wells. Defendants counter that the proof that these are small wells, and, in order to save them from water destruction, it is necessary to allow them to produce at a fuller flow than some of the others, presents a sufficient basis for making the distinction to justify the commission's action; and that, besides, plaintiffs may not complain of the order in this respect, for the record shows that plaintiffs, too, have wells of the same kind, and there is no proof that this phase of the orders has resulted in any injury to plaintiffs. They say that it is not every inequality in the administrative handling of a difficult situation like this which strikes administrative action down; that if in general the proof shows that the orders are not contrary to reason and fair dealing, slight and immaterial inequalities in their operation, such as this, will not strike them down.
We agree with defendants' views. Impressed as we are with the strength of plaintiffs' contention, and inclined as we might be to hold that upon the very clear, vigorous, and convincing affidavits which they have furnished the preponderance of the evidence is with them on the issue that the best, the most reasonable way to prevent waste in that field, in view of all the conditions there, would be to produce each well at its proper gas-oil ratio, abandoning all attempts at proration or ratable taking, it must be kept in mind that the case is not before us for trial de novo of that issue on the preponderance of the evidence. The issue before us is one of a claimed confiscation through arbitrary and unreasonable orders. In reaching our conclusion upon that issue we are only authorized, we are only trying, to determine whether the evidence is such as that we must say that reasonable minds, charged with the duty of protecting the state's natural resources in that field, could not reasonably have reached the conclusion which the commission reached, that the order it entered would have at least some effect to fairly prevent waste.
Looking at the case in that light, we are clear that we cannot say that the evidence establishes that reasonable minds must conclude that the commission's order is, as to plaintiffs, arbitrary or excessive, without reasonable relation to the prevention in a reasonable way, of waste, and therefore confiscatory, in violation of their constitutional rights. On the contrary, we are clear that the evidence has not overcome the presumption of validity attending the commission's orders. In the light of that presumption, and of the proof that the order in the amount fixed for the field, and in the allocation of it, is not excessive, unreasonable, or unfair as to plaintiffs, we think we are bound to find, from the evidence upon the issue before us, not that the orders of the commission are arbitrary, excessive, and irrational, and therefore confiscatory, but that, whether in our opinion wise or unwise, they represent an exercise, neither unreasonable *240 nor arbitrary, of the judgment and discretion of the commission in the discharge of the difficult administrative duties which the statute has imposed upon them, and that they are not subject to be enjoined.
A decree refusing the injunction and dismissing the bill may be presented to the District Judge for allowance and entry.
NOTES
[1] The so-called Panhandle field is a gigantic geological structure, extending a distance of approximately 125 miles, with an average width of about 15 miles. The entire area constitutes one gas reservoir. Scattered through practically the entire length of that area are more than thirty pools known to be productive of oil, more or less separated by reason of their position in and on the structure, in the sense that there is no migration of oil from one pool to another, but all of the fields are indirectly connected with each other through the formations containing gas. These formations, besides oil and gas, also contain water. In a well drilled within any of the known oil pools, two or more producing formations are often encountered. In such cases the higher formation usually produces gas only, while both gas and oil are found in the lower formation. By reason of the fact that this field is one gas reservoir more or less intimately connected, production either of gas, or of oil and gas, in any part of the reservoir theoretically affects the pressure all over it. As a practical matter, of course large productions of gas quickly and directly affect the formation in the vicinity of the production. Because of the character of the field, some sections produce gas only, some gas and oil, some sweet gas, some sour gas, because of the fact that for a part of the gas produced only is there an outlet for light and fuel, while for other parts of it there is none, and that the only use that can be made of it is for carbon black or for stripping. Because of the fact that some of the so-called oil wells produce a very small quantity of oil and enormous quantities of gas, the commission has found itself, through the diversity which the situation presents, confronted with a disturbed and disturbing condition. The regulations which it has made and undertaken to make, in an effort to conserve the natural resources of the product and energy so richly stored there, while at the same time giving the proper consideration to the rights and interests of the producers and owners, have brought about almost continual litigation and turmoil of a conflicting and changing character. For instance, until just before this suit was filed, plaintiffs had had litigation pending against the commission in the state courts since the spring of 1931, in the course of which, by agreement of parties, pending the final decision of the matter, plaintiffs had been permitted to produce unrestricted. Danciger Oil & Ref. Co. v. R. R. Comm. (Tex. Civ. App.) 49 S.W.(2d) 837. In addition, the commission has had several litigations with gas companies, Texoma Natural Gas Co. v. Railroad Comm. (D. C.) 59 F.(2d) 750, with a stripping plant, Henderson v. Railroad Comm. (D. C.) 56 F.(2d) 218. This was a controversy over the attempt of the commission to prohibit, as wasteful, the use of natural gas for stripping, after the passage of the then statute. Notwithstanding this suit terminated favorably to the commission, in view of the general chaotic conditions in that section, the commission has latterly been issuing permits, permitting such stripping, while the Legislature has declared that the use to the extent of 25 per cent. of the open flow of the wells producing gas is not wasteful, if there is no use for the gas for light or fuel. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266881/ | 269 A.2d 407 (1970)
Robert SHERROCK and Edward Sherrock, Co-partners trading as Sherrock Brothers, Plaintiffs,
v.
COMMERCIAL CREDIT CORPORATION, a Maryland corporation, Defendant.
Superior Court of Delaware, New Castle.
July 23, 1970.
John M. Bader, Wilmington, for plaintiffs.
Arthur J. Sullivan and Daniel L. Twer, Morris, James, Hitchens & Williams, Wilmington, for defendant.
STIFTEL, President Judge.
In plaintiffs' motion for summary judgment the facts set out below are not in dispute. On September 27, 1968, Bernard McSweeney of Dover Motors, Dover, Delaware, called plaintiffs' American Motors dealership in Hazleton, Pennsylvania, and spoke to Robert Sherrock concerning whether Sherrock Brothers would be interested in purchasing two new automobiles, since Dover Motors was overloaded with new cars. Robert Sherrock said he would take the cars and was instructed by McSweeney to transfer funds to Bank of Delaware, Dover branch, to cover the agreed price of $6,701.15. Mr. Sherrock assumed that this transmittal of funds to the bank related to clearing any financing arrangements relating to the automobiles involved. McSweeney said that Dover Motors would deliver the vehicles to Hazleton, but asked if Sherrock Brothers would wait for a couple of days after October 1, which was announcement day for the new models. Mr. Sherrock assented.
On the same day, September 27, 1968, Peoples First National Bank and Trust Co., Hazleton, Pennsylvania, sent to the Bank of Delaware, Dover branch, a check for $6,701.15 to be deposited in the account of Dover Motors. The two vehicles were specified as a 1969 Ambassador, Model #86-5, Serial #S113116, which was priced at $3,243.05, and a 1969 Ambassador Station Wagon, Model #88-5, Serial #S108617, priced at $3,458.10.
On October 4, 1968, the aforesaid vehicles were repossessed by defendant, pursuant to a perfected security interest in the form of a floor-plan agreement. It had learned on October 2, 1968, that the vehicles sought to be sold by Dover Motors were subject to the same financing plan or floor plan. The two vehicles in question were subsequently sold by the defendant.
The matter for decision is set forth in defendant's brief:
"Whether an automobile dealer who buys automobiles from another automobile *408 dealer and who is therefore a merchant-buyer, and who pays the price therefor knowing that a security interest exists therein, before delivery of said vehicles is a buyer-in-the ordinary-course-of-business under 5A Del.C. § 9-307(1) so as to cut off the perfected security of third parties therein."
5A Del.C. § 9-307(1) reads in pertinent part as follows:
"A buyer in ordinary course of business (subsection (9) of Section 1-201) takes free of a security interest * * * created by his seller even though the security interest is perfected and even though the buyer knows of its existence."
Thus, the question is whether Sherrock Brothers, as dealers in the trade of automobile sales, can qualify as buyers in the ordinary course of business.
5A Del.C. § 1-201(9) defines a "buyer in the ordinary course of business" to mean:
"* * * a person who in good faith and without knowledge that the sale to him is in violation of the ownership rights or security interest of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind * * *".
Knowledge of the existence of the security interest is made specifically irrelevant by the language of § 9-307(1), notwithstanding the good faith requirement. A buyer, therefore, who fits the description in § 1-201(9) takes free and clear of a security interest even though perfected and even though he knows of its existence.[1]
Finally, in order to qualify for the status of priority under § 9-307(1), the buyer must have acted in good faith. Good faith as defined at § 1-201(19) simply means "honesty in fact". This definition is enlarged by an additional requirement for a merchant in a transaction. § 2-103(1) (b) says he must also "observe reasonable commercial standards of fair dealing in the trade". Throughout Article 2, therefore, whenever a merchant takes part in a Code transaction, an inquiry into his observance of a standard of commercial reasonableness is necessary to determine his good faith.
It is to be noticed that the more demanding standard for the merchant as defined in § 2-103(1) (b) is said to apply according to the language of that section to "this Article", that is, to Article 2. The question is whether this restriction means that the standard of good faith to be applied to the "merchant buyer" in an Article 9 secured transaction is only "honesty in fact", or if the merchant buyer also should be held to the Article 2 standard of commercial reasonableness in a transaction that involves Article 9 characteristics.
If the standard were different, the result would be that in the same transaction a merchant party would be subject to two distinctly different standards, the application of which would depend on what part of the total transaction is under consideration. For example, in our case, the original sale transaction between Sherrock Brothers and Dover Motors would be subject to the good faith inquiry of "honesty in fact" and "commercial reasonableness". At the same time the issue of priority under Article 9 would be limited only to an "honesty in fact" inquiry. The result would be *409 strange when we consider that although Articles 2 and 9 serve two different functions, the transactions are related and center around dealings with the same goods.
It seems reasonable that the drafters would intend a different standard to apply to a merchant buyer than to a consumer buyer in an Article 9 transaction. It would be commercially unreasonable to expect a consumer to be aware of the technicalities and complexities of a "floor planning trust". It is not unreasonable to require the merchant buyer the individual that might buy inventory in quantity, to act in a manner that is commercially reasonable under the facts and circumstances of the case.[2] If the standard of good faith is to have meaning in Article 9 with regard to merchants, it should not vary with that applied to merchants under Article 2.[3]
The issue of "commercial responsibility" is a factual one. The trier of fact must determine if under the circumstances of the transaction, the plaintiffs acted in a commercially reasonable manner. Plaintiffs explain in their depositions they followed accepted standard procedures of the automobile trade. Defendant, on the other hand, through the affidavit of Willard C. Campbell, maintains the opposite view. Thus, since there is a triable issue of fact, plaintiffs are not entitled to judgment as a matter of law.
Motion for summary judgment is denied.
It is so ordered.
NOTES
[1] According to the Official Code comment to 9-307(1), not adopted by Delaware, reading §§ 9-307(1) and 1-201(9) together produces the result that the buyer takes subject to the security interest only if in addition to his knowledge of the existence of the interest, he knows that the sale is in violation of some term of the security agreement not waived by words or conduct of the secured party. The comment further notes another restriction, namely, that the sale be "from a person in the business of selling goods of that kind"; that is, in the terminology of the Article, primarily sales of inventory.
[2] As pointed out in 1 Anderson's Uniform Commercial Code, Section 2-104.3:
"The code carries further the attitude of the prior law that a professional seller or dealer should be held to different and higher standards in some cases than a casual or ordinary buyer or seller."
Speaking with reference to Article 2, the commentary states further:
"The fact that `merchant' is thus used in some sections does not mean that only those sections are applicable to merchants. Accordingly, all sections are applicable to merchants and some sections are applicable only to them."
[3] This separate standard for merchants in an Article 9 inquiry is supported by language in Stanley v. Fabricators, Inc., 459 P.2d 467, 475, n. 16 (Alaska 1969). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266883/ | 217 Pa. Super. 159 (1970)
Commonwealth
v.
Gillis et al., Appellants.
Superior Court of Pennsylvania.
Argued June 9, 1970.
September 18, 1970.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.
Harold B. Vikoren, Assistant Public Defender, for appellants.
Michael F. O'Brien, Assistant District Attorney, with him Ward F. Clark, District Attorney, for Commonwealth, appellee.
OPINION PER CURIAM, September 18, 1970:
Judgments of sentence affirmed.
*160 CONCURRING OPINION BY HOFFMAN, J.:
Appellants were convicted by a jury on indictments charging them with burglary, larceny, receiving stolen goods, and conspiracy. From judgment of sentence, they bring this appeal. The relevant facts are as follows:
Shortly after 7:00 P.M., on January 10, 1968, one Mildred Kaufman heard running footsteps in her house, when she returned home. Upon opening the door, she saw a man whom she described as short, white, and in dark or black clothing. The police arrived minutes later and found the rear door ajar, its lock assembly bent and open. They also saw two sets of adult footprints in the snow, leading from the back of the house. One officer remained in the Kaufman house to determine the extent of the burglary. Rooms were found in disarray, and Mrs. Kaufman confirmed that certain pieces of jewelry and money were missing. The other officer followed the footprints for approximately two city blocks, in the direction of the Big Oak Service Station.
While this investigation was taking place, two other officers, unaware of the burglary, were summoned to the Big Oak Service Station as a result of the owner's complaint about two suspicious men soliciting rides from customers. When they arrived, one officer interrogated the station owner. The owner stated he was suspicious of the pair because they seemed anxious to get a ride and had stationed themselves in the area where he kept his unattended cars awaiting service. The officers proceeded to question both appellants, not having found it necessary to frisk them first. Appellant Gillis told the officers that he and appellant Boykins were from out of town and that they were looking for rides home. He asserted that they were in town to see a girl, one Betty Jackson whom they had met at *161 Bono's Cafe. They had been riding with her, but following an argument, she ordered them out of her car.
The officers were dissatisfied with the appellants' stories and decided to place them under "technical arrest" and take them to the police station. They frisked them pursuant to that arrest. On frisking appellant Boykins, the officer heard jingling and, upon reaching into his pockets, felt quarters. They then patted down appellant Gillis and, on feeling a bulge, reached in and felt watch bands and other items.
At about the same time, the officer who had been investigating the Kaufman burglary arrived at the service station, advised the officers of the burglary, and noted that Gillis fitted the description of one of the burglars. The appellants were then told that they were under arrest for burglary and were taken to the police station, where the items found in appellants' pockets were seized.
Numerous trial errors were raised by counsel, but only one alleged error merits our attention here. Both appellants argue that their Fourth Amendment rights were violated by an unlawful search and seizure and that the court below erred in denying appellants' motion to suppress the evidence thereby discovered.
The Commonwealth contends that the officers acted within the scope of their constitutional authority in conducting a limited frisk of appellants. They argue that where a police officer observes unusual conduct which reasonably leads him to conclude that criminal activity may be afoot and that the person with whom he is dealing may be armed and dangerous, he is authorized to conduct a carefully limited search of the outer clothing of such person in an attempt to discover weapons which may be used against him. Terry v. Ohio, 392 U.S. 1, 30-31, 88 S. Ct. 1868, 1884-1885 (1968); Commonwealth v. Hicks, 434 Pa. 153, 158-159, 253 A.2d 276, 279 (1969).
*162 To justify this type of protective search, however, a police officer must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous; good faith on the part of the officer is not enough. Sibron v. New York, 392 U.S. 40, 64, 88 S. Ct. 1889, 1903 (1968); Terry v. Ohio, supra; Commonwealth v. Berrios, 437 Pa. 338, 341, 263 A.2d 342, 343 (1970); Commonwealth v. Hicks, supra.
In the case at bar, the police officer who frisked appellants observed no such conduct. There is no testimony that indicated that the officers had reason to believe that appellants were armed and dangerous. If the officers did believe that they were in danger of harm from concealed weapons, they would have been justified in frisking appellants for weapons before they had begun their interrogation. The fact that they frisked appellants only after questioning them indicates that they were not fearful for their own safety or that of others in the area.
The frisk would also be lawful if it were incident to a legal arrest. Commonwealth v. Ellsworth, 421 Pa. 169, 177, 218 A.2d 249, 253 (1966). A lawful arrest, however, must be predicated upon probable cause, and if a warrantless arrest cannot be justified by probable cause, a warrantless search incident thereto is unlawful. Commonwealth v. Goslee, 427 Pa. 403, 406-407, 234 A.2d 849, 850 (1967). The police officer who put appellant under "technical arrest" had no knowledge that a burglary or any other crime had been committed at the time of the frisk. His assertion that appellants looked suspicious and that he did not believe their story is insufficient justification for an arrest. Though the arresting officer need not have in hand evidence which would suffice to convict, an arrest with or without a warrant must stand upon firmer ground than mere suspicion. Commonwealth v. One 1958 Plymouth Sedan, 418 Pa. 457, 464, 211 A.2d 536, 539-540 (1965).
*163 However, the instant search may be sustained upon another ground. If the evidence discovered through the unlawful frisk would have been obtained by independent means, then the evidence so obtained is not "tainted" by the original illegality. Wong Sun v. United States, 371 U.S. 471, 487-488, 83 S. Ct. 407, 417 (1963). Here, upon the arrival of the officer investigating the burglary, probable cause for an arrest came into existence. At this point, there was evidence of a specific crime committed nearby a few minutes before, and there was also a description given which fitted one of the appellants. Had the first two officers released appellants after a brief detention for the purpose of questioning as they should have done, the gap in time between their release and the arrival of the third officer would have been only a matter of seconds. It is highly unlikely under these circumstances that appellants could have avoided capture and a subsequent search of their persons.
The items discovered during the illegal frisk thus would have been found as a result of a search incident to a legal arrest after the arrival of the officer who had been investigating the burglary. The search and seizure which occurred at the police station, therefore, was also sufficiently distinguishable to be purged of the taint of the bad frisk.
I therefore concur in affirming the convictions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266887/ | 4 F. Supp. 204 (1932)
UNITED STATES
v.
LILLIBRIDGE et al.
District Court, S. D. California, C. D.
December 13, 1932.
Samuel W. McNabb, U. S. Atty., and Lewis M. Andrews, Asst. U. S. Atty., both of Los Angeles, Cal., and H. P. Dechant, Asst. to Sol., Department of Agriculture, of San Francisco, Cal.
Calvert Wilson, Charles S. McKelvey, and J. Everett Brown, all of Los Angeles, Cal., for defendants.
McCORMICK, District Judge.
This is a suit in equity for a perpetual injunction to restrain defendants from mining on certain land included within the San Bernardino National Forest. A temporary injunction forbidding mining on the property in controversy pendente lite was issued by Judge Hazel after a full hearing in court. The areas involved are not part of the public domain. They have been set apart and reserved from settlement for forest usages by presidential proclamation. See 26 Stat. 1103, and 27 Stat. 1049 and 1068.
The Secretary of Agriculture, under the authority of congressional act of June 4, 1897 (30 Stat. 35), and Act March 4, 1915 (38 Stat. 1101 [16 USCA § 497]), and prior to 1927, caused to be surveyed and laid out on such lands what are known as "special use areas," and long prior to any of the mining locations or activities of defendants there have been issued to numerous parties permits to use portions of such special use areas of the National Forest for public camp grounds, summer home sites, resort sites, and *205 recreational developments. See Reg. L-1, Dept. of Agriculture; also, Use Book, p. 151, Dept. of Agriculture. Pursuant to such permits, many entries have been made upon such land, and valuable and extensive improvements have been made by the permittees who have been paying to the government in consideration of the permits and use, amounts varying from $15 to $120 per annum. The later claims of defendants are based solely upon the validity of mining locations made in said National Forest. The locations were made by various defendants at different times from 1927 to 1931, inclusive. The first locations were of approximately 20 lode claims which were later changed to placer claims and still later to associated placer claims, and finally, subsequent to the filing of this suit, a number of quartz or lode locations were filed by defendant Standley. It is conceded that all the placer locations are invalid, and the case therefore rests entirely upon the validity of the lode claims.
It is definitely settled by decisions of the Supreme Court that the locations of mining claims confer no right in the absence of discovery. Cole v. Ralph, 252 U.S. 296, 40 S. Ct. 321, 64 L. Ed. 567. In other words, two elements are essential in a valid mining location: (1) Properly marking the boundaries of the claim. (2) Making a proper discovery of valuable mineral upon the claim.
The defendants do not contend that they have made any discovery of precious metals upon the lands on which they have filed location notices. Their claim is of a discovery upon the claims of deposits of certain nonmetallic industrial minerals known as feldspar and silica.
The Act of June 4, 1897, supra, expressly recognizes the right of persons to prospect, locate, and develop any mineral resource in forest reserves in the following language:
"It is not the purpose or intent of these provisions, or of the act providing for such reservations, to authorize the inclusion therein of lands more valuable for the mineral therein, or for agricultural purposes, than for forest purposes." 16 USCA § 475.
"Nor shall anything herein prohibit any person from entering upon such forest reservations for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof: Provided, That such persons comply with the rules and regulations covering such forest reservations." 16 USCA § 478.
"Upon the recommendation of the Secretary of the Interior, with the approval of the President, after sixty days' notice thereof, published in two papers of general circulation in the State or Territory wherein any forest reservation is situated, and near the said reservation, any public lands embraced within the limits of any forest reservation which, after due examination by personal inspection of a competent person appointed for that purpose by the Secretary of the Interior, shall be found better adapted for mining or for agricultural purposes than for forest usage, may be restored to the public domain. And any mineral lands in any forest reservation which have been or which may be shown to be such, and subject to entry under the existing mining laws of the United States and the rules and regulations applying thereto, shall continue to be subject to such location and entry, notwithstanding any provisions herein contained." 16 USCA § 482.
There has been no finding or determination by the Secretary of the Interior, or by his successor, the Secretary of Agriculture, that the lands in controversy are better adapted for mining or for agricultural purposes than for forest usages. The only official inspection or examination that has been made under the authority of the Land or Forestry Departments of the government resulted in all the forest lands being designated as non-mineral in character.
So, assuming that under the applicable statutes mining locations can be validly made in forest reservations without obtaining a permit from forest officers of the government, it is clear that the validity of such mining locations is to be determined by a comparison of the relative value of the lands in question for forest or mineral purposes. This is particularly true where the mining claim is for industrial or nonmetallic minerals. In order to constitute a valid location where the discovery is only of such minerals, it must reasonably appear that the mineral has been found in place in sufficient quantities and of such quality as would justify a person of ordinary prudence in the further expenditure of his time and money in an effort to develop a paying mine. Cameron v. U. S., 252 U.S. 450, 40 S. Ct. 410, 64 L. Ed. 659. And, although a discovery is made, the showing must reveal the probability of a mineral deposit of commercial value, or, in other words, one that can be mined with profit. The Circuit Court of Appeals for the Ninth Circuit in Steele v. Tanana Mines R. Co., 148 F. 678, 680, in discussing the requirements of a valid mineral discovery where there is a question as *206 to whether land is more adaptable for mining than for other purposes under land laws, said:
"But such prospects are not sufficient to show that the land is so valuable for mineral as to take it out of the category of agricultural lands and to establish its character as mineral land when it comes to a contest between a mineral claimant and another claiming the land under other laws of the United States. In Chrisman v. Miller, 197 U.S. 313, 25 S. Ct. 468, 49 L. Ed. 770, the Supreme Court affirmed the doctrine, which had previously been announced (1 Lindley on Mines, § 336, and cases there cited), that, when the controversy is between two mineral claimants, the rule respecting the sufficiency of a discovery of mineral is more liberal than when it is between a mineral claimant and one seeking to make an agricultural or other entry under the land laws. The reason for this distinction is said to be that, when land is sought to be taken out of the category of agricultural lands, the evidence of its mineral character should be reasonably clear, while in respect to a controversy between rival claimants to mineral land the question is simply which is entitled to priority."
And in United States v. Lavenson (D. C.) 206 F. 755, 762, the rule concerning mining claims in forest reserves is thus stated:
"Discovery is necessary to initiate a mining right. To constitute discovery, it is necessary that mineral-bearing rock in place be found, under such circumstances and of such a character that a reasonably prudent man, not necessarily a skilled miner, would be justified in expending time and money developing it, with the reasonable expectation of finding ore in paying quantities. This implies, not only that the conditions warrant a reasonably prudent man in so proceeding, with such reasonable expectation, but that the applicant for patent has that expectation."
See, also, Diamond Coal & Coke Co. v. U. S., 233 U.S. 240, 34 S. Ct. 507, 58 L. Ed. 936; In re Jefferson Montana Copper Mine, 41 Lans. Ch. D. 322.
If the established rule is applied to the evidence in this suit, it is clear that no valid mining location has been made by the defendants.
It appears from the evidence that throughout the mountains in this forest reserve outcroppings of feldspar appear, but in pockets or lenses that are generally shallow and there does not seem to be any substantial ledge deposits such as are found in other localities where feldspar is profitably mined. It is also clear that the quality of feldspar found in the mining locations of defendants is inferior to that found in abundance in other mining districts in California and Arizona.
It is urged by defendants that it is only by development work that there can be any demonstration of the commercial success of their claims, and therefore they should be permitted to pursue such work. I think, however, that the fair preponderance of the evidence establishes that only in two tunnel sites is there any prospect of feldspar ore recovery in substantial quantities, and, when the cost of transportation is added to that of mining, it shows that the venture is not commercially feasible. Moreover, the only actual mining that has been done on these locations has been at a loss and the available supply of marketable mineral has been so reduced by the work already done that continued exploratory operations do not appear to justify further expenditure of money, time, and energy. Under these circumstances, it is not probable that mining feldspar on the land in question can be carried on with profit, and, if we compare the relative adaptability of the land in question for forest and for mining purposes, it is obvious that the defendants' contentions are devoid of merit. It was long prior to 1927 that the area was set apart for forest usage and approximately $250,000 had been spent by the permittees in improving the special use areas before any of the feldspar claims were located. Many of these improved areas will be destroyed for the usages for which they have been set apart and for which they are peculiarly adapted if the later mineral claims of defendants are validated. Furthermore, there is evidence that points strongly to the conclusion that some of the mineral locations have not been claimed for mining purposes but really for land exploitation.
My conclusion is that under the evidence the land in question in this case has been set apart and reserved for forest usage and is nonmineral, and that it is established that feldspar cannot be profitably mined on the lode locations in controversy, and therefore the mining claims are invalid in law, and the temporary injunction should be made permanent, and it is so ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266899/ | 440 Pa. 81 (1970)
Commonwealth
v.
McBride, Appellant.
Supreme Court of Pennsylvania.
Submitted November 10, 1969.
October 9, 1970.
Before BELL, C.J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
*82 W. Bourne Ruthrauff, for appellant.
James D. Crawford, Deputy District Attorney, with him Arthur R. Makadon, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
OPINION BY MR. JUSTICE ROBERTS, October 9, 1970:
On June 23, 1965, appellant pleaded guilty to murder generally. At his degree of guilt hearing, the Commonwealth certified that the case would rise no higher than voluntary manslaughter, and the judge found appellant guilty of that offense, sentencing him to a term of one and one-half to five years in prison. No appeal was taken. On September 18, 1968, appellant filed a petition pursuant to the Post Conviction Hearing Act, alleging that his plea was not knowingly and voluntarily entered, and that his plea was motivated by an unconstitutionally obtained confession. After an evidentiary hearing, with counsel, the hearing court decided these claims adversely to appellant and this appeal followed.
On January 30, 1970, the appeal having been submitted on the briefs, we held that appellant was entitled to a new evidentiary hearing on his claims. Since the record was silent as to what transpired when appellant entered his plea of guilty, the hearing court, we found, had incorrectly placed on appellant the burden of proving at the PCHA hearing that his plea was involuntary, when the burden should have been placed on the Commonwealth to prove that it was voluntary. Our holding was in accord with three recent decisions of the Third Circuit United States ex rel. Fink v. Rundle, *83 414 F.2d 542 (3d Cir. 1969), United States ex rel. Crosby v. Brierley, 404 F.2d 790 (3d Cir. 1968), and United States ex rel. McCloud v. Rundle, 402 F.2d 853 (3d Cir. 1968) as well as what we perceived to be the implications of two recent decisions of the Supreme Court of the United States Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709 (1969), and McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166 (1969).
Following our decision the Commonwealth timely petitioned for reconsideration and oral argument, asserting, inter alia, that the Third Circuit was considering the abandonment of its holdings in McCloud, Crosby and Fink. The Commonwealth's petition was granted, and oral argument held. Following oral argument the Third Circuit handed down its en banc decision in United States ex rel. Grays v. Rundle, 428 F.2d 1401 (3d Cir. 1970), in which it did overrule the above cases, holding that even in "silent record" cases the burden of persuasion must rest with the petitioner.
Accordingly, under the Third Circuit's view of federal law, the hearing court in this case properly placed the burden of proof on appellant. The hearing court's allocation was likewise correct under our own decisions, which have held that only in silent record cases tried after Commonwealth ex rel. West v. Rundle, 428 Pa. 102, 237 A.2d 196 (1968), would the Commonwealth "be faced with at least a shift in the burden of proof." Commonwealth v. Cushnie, 433 Pa. 131, 135, 249 A.2d 290, 293 (1969). The burden having been properly placed on appellant, and no abuse of discretion having been shown in the hearing court's finding that appellant has not carried that burden, the finding must be affirmed.
Appellant's second contention is that an unconstitutionally obtained confession motivated the guilty plea. The hearing court stated that "[t]he defendant *84 did not testify before us that his confession in any way motivated him to plead guilty, and it is apparent that such confession played no part in his subsequent guilty plea." In view of this finding, the hearing court quite properly denied appellant relief on this ground. See, e.g., Commonwealth v. Copeland, 439 Pa. 293, 268 A.2d 751 (1970).
The order of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266983/ | 999 F.Supp. 59 (1998)
HORSEHEAD INDUSTRIES, INC. and Lauren H. Kravetz, Plaintiffs,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendant.
No. CIV. A. 94-1299 JHG.
United States District Court, District of Columbia.
March 23, 1998.
*60 *61 Paul Eric Gutermann, Laura M. Reifschneider, Akin, Gump, Strauss, Hauer & Feld, L.L.P., Washington, DC, for Plaintiffs.
Sherri Lanette Evans, Lisa MacPhee, U.S. Attorney's Office, Washington, DC, for Defendant.
MEMORANDUM OPINION AND ORDER
JOYCE HENS GREEN, District Judge.
Plaintiffs, Horsehead Industries, Inc. and its former attorney, Lauren H. Kravetz, (collectively "Horsehead") filed this action to obtain documents from the Environmental Protection Agency ("EPA") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (1994).[1] In two unpublished opinions, this Court resolved the merits of the disputes over Horsehead's FOIA requests, ordering a portion of the requested records to be disclosed and holding that other documents were exempt from the FOIA disclosure requirements. Horsehead Indus., Inc. v. EPA, No. 94-1299 (Oct. 1, 1996) (hereafter "October 1996 Opinion"); Id. (Jan. 3, 1997) (hereafter "January 1997 Opinion"). What remains to be resolved is Horsehead's request for attorneys' fees. The Court finds that, under the FOIA, Horsehead is eligible to be awarded attorneys' fees, but that, upon consideration of the four principal factors that guide the Court's discretion in awarding fees, Horsehead is not entitled to a fee award. Therefore, Horsehead's request shall be denied.
BACKGROUND
In 1981, Horsehead acquired 2,137 acres of land in Palmerton, Pennsylvania, on which it conducted zinc-based manufacturing activities. On a portion of the site, Horsehead later operated a facility called Horsehead Resource Development Co., which recycled a lead-laden dust. Prior to Horsehead's acquisition of the land, primary zinc smelting activities were conducted on the site dating to 1898.
In 1983, EPA listed the Palmerton Zinc Superfund Site on the National Priority List. 48 Fed.Reg. 40666 (Sept. 8, 1983). While studies were conducted regarding the nature of the contamination at the Palmerton Site, and although EPA may have developed preliminary conclusions that Horsehead was potentially responsible, it was not until 1991 that EPA Region III directed the National Enforcement Investigation Center ("NEIC") to conduct an investigation to determine the source or sources of the contamination and to provide support for possible enforcement action.
In June 1993, the NEIC completed its draft report and circulated it for peer review. The peer review comments were submitted on June 8, 1993 ("Peer Review memorandum"). And, by way of his memorandum of July 3, 1993, Frederick MacMillan, Remedial Project Manager for Eastern Pennsylvania and the manager for the Palmerton site, provided comments on the draft report ("MacMillan memorandum").
On July 7, 1993, EPA provided Horsehead with a "Notice of Potential Liability." This notice stated in relevant part: "This letter confirms notification of potential liability, as defined by [CERCLA] that your company, Horsehead Industries, Inc. (HII), including its division Zinc Corporation of America (ZCA), may have incurred with respect to the [Palmerton] Site." Pls. Mem. in Opp'n to *62 Summ. J. Ex. 24 (EPA Region III Letter of July 7, 1993).
In January 1994, prior to finalization of the NEIC report, EPA Region III issued a press release that disseminated the preliminary results of the source identification study. In this press release, EPA stated that "[t]he study confirms that contamination remaining from historical primary zinc smelting significantly contributes to lead, cadmium and zinc contamination with Palmerton soil and homes." Pls. Summ. J. Mem. Ex. D (EPA Press Release 94-63 (Jan. 27, 1994)). The press release also stated:
These results, among others, support EPA's assertion that Horsehead Industries and Paramount Communications, both of which owned the zinc smelting plant at one time, are responsible for major portions of the residential contamination.
Final results of the source identification study are due soon and should show remaining major sources of contamination. No other information about source identification is available at this time, though EPA will deliver the report as soon as it is available.
Id. at 2.
In February 1994, Horsehead submitted FOIA requests to EPA Region III and to the NEIC seeking all drafts of the NEIC report, all comments on drafts of the report, and all data underlying the preliminary conclusions reported by EPA the previous month. EPA Region III provided one document responsive to Horsehead's request (a draft press release). NEIC stated that the only documents it had that were responsive to the request were exempt from disclosure under FOIA Exemption 7(A), claiming that their release could reasonably be expected to interfere with an enforcement proceeding. Horsehead appealed the denials within EPA, but received no response.
In June 1994, the final report was released. The preliminary findings reported earlier that year were adopted as final. Also in June 1994, Horsehead filed the instant suit. In its Amended Complaint, Horsehead sought an order directing EPA to produce all documents responsive to its FOIA requests. EPA invoked FOIA Exemption 5, 5 U.S.C. § 552(b)(5), deliberative process, with respect to three documents: (1) the 1993 draft NEIC report; (2) the Peer Review memorandum dated June 8, 1993; and (3) the MacMillan memorandum dated July 2, 1993.[2] After conducting in camera review of these documents, the Court largely sustained EPA's position, requiring disclosure of only a very slightly redacted version of Appendix III attached to the 1993 draft NEIC report. October 1996 Opinion at 20-21.
The dispute was not fully resolved at that juncture, however, because EPA had failed to show that it had conducted an adequate search for documents at NEIC. EPA was directed to file an affidavit from a person at NEIC with personal knowledge demonstrating that EPA had "made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." October 1996 Opinion (quoting Oglesby v. Department of the Army, 920 F.2d 57, 68 (D.C.Cir.1990)).
Horsehead's FOIA requests had been made by its attorney, Kravetz, see Amended Compl. ¶¶ 25, 26 & Exs. C & D, and for present purposes, the relevant request is that issued to NEIC seeking
5. Any other data or other material in NEIC's possession that were used, reviewed or considered in preparing the Agency's statements in the January 27, 1994, public press release or the February 1994 Palmerton Zinc Superfund Site "Superfund Update," or that *63 for[m] [sic] the basis for the Agency's statements in these documents.
Amended Compl. Ex. C.
In response to the Court's Order, EPA ultimately filed two affidavits from Joe H. Lowry ("Lowry"), Senior Scientist at NEIC who, since July 1993, had been the principal person investigating the Palmerton Site. Nov. 5, 1996 Affidavit of Joe H. Lowry, Ph.D. ¶ 2. In the first affidavit, it appears that an EPA FOIA officer described Horsehead's request to Lowry without providing him a copy, and in the process the request was construed too narrowly. See id. ¶¶ 6-7. Subsequently, however, Lowry reviewed the request itself, and he continued to believe it did not seek underlying factual data supporting the draft NEIC report. See Dec. 6, 1996 Affidavit of Joe H. Lowry, Ph.D. ¶ 5.
As a result, while conceding that such underlying factual data would not be exempt under FOIA, EPA's counsel argued to the Court that Horsehead's FOIA request only sought data that was generated in connection with the preparation of the press release or the Superfund Update. Claiming that agency personnel did not use, review or consider any specific documents or data in creating and discussing the press release or the Superfund Update, EPA argued that the documents containing the underlying data were not subject to Horsehead's FOIA request. EPA stated: "To the contrary, these documents were based upon the overall knowledge of the analytical work done to date." EPA Mem. in Response at 4 (emphasis added).
This Court disagreed:
EPA's interpretation of the plaintiff's FOIA request is untenable. By construing the FOIA request narrowly, EPA seeks to avoid disclosing information that it concedes is subject to disclosure under FOIA..... Significantly, EPA does not claim that the "overall knowledge" obtained by agency personnel was not derived from the underlying factual data that the agency gathered regarding the Palmerton site, and it is this data that the plaintiffs sought in their request of February 18, 1994 (and which they continue to seek today).
January 1997 Opinion at 4 (footnote and citation omitted).
The Court then ordered that "any and all such factual data regarding the Palmerton site that were used, reviewed or considered by agency personnel to develop their `overall knowledge of the analytical work done' are responsive and shall be disclosed." Id. at 5. Following resolution of a final point discussed in note 2, supra, the parties were directed to meet and confer regarding Horsehead's motion for fees and litigation costs. The parties were unable to resolve that issue, and left it to the Court to do so.
DISCUSSION
In 1974, Congress amended the FOIA to provide courts with the discretion to award "reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed." See Amendments to the Freedom of Information Act, Pub.L. No. 93-502, 88 Stat. 1561 (1974) codified as 5 U.S.C. § 552(a)(4)(E) (1994). That discretion "is best exercised by the court most closely associated with the case." Nationwide Bldg. Maintenance, Inc. v. Sampson, 559 F.2d 704, 716 (D.C.Cir.1977).
A two-step analysis is required before a court awards fees. First, the court must determine whether the plaintiff is eligible for a fee award because it "substantially prevailed." If so, then the court must determine whether the plaintiff is entitled to a fee award by balancing at least four factors: (1) the public benefit derived from the case; (2) the commercial benefit to the plaintiff; (3) the nature of the plaintiff's interest in the records; and (4) whether the Government had a reasonable basis for withholding the requested information. Chesapeake Bay Found., Inc. v. United States Dep't of Agriculture, 11 F.3d 211, 216 (D.C.Cir.1993) (hereafter "Chesapeake Bay Found. I").
A. Eligibility
To show that it "substantially prevailed" in the FOIA litigation, Horsehead must demonstrate that the lawsuit was reasonably necessary to obtain the documents *64 sought and that the litigation substantially caused the requested records to be released. See Chesapeake Bay Found. I., 11 F.3d at 216. EPA modestly protests that Horsehead is ineligible, but in light of the Court's January 1997 Opinion, EPA doth protest too much.
As a result of its lawsuit, Horsehead successfully forced disclosure of one appendix, with redactions, of the 1993 draft NEIC report. In addition, EPA turned over 10,000 pages of background data, which it claims "were never withheld or considered exempt in this lawsuit." Def.'s Fee Opp'n Mem. at 4. The only basis for EPA's argument that these documents were never withheld is its narrow construction of Horsehead's FOIA request, a construction that this Court has already rejected. January 1997 Opinion at 4. The Court finds that these documents were withheld and were produced only as a result of this Court's order. Thus, Horsehead substantially prevailed and is eligible for a fee award.
B. Entitlement
Having determined eligibility, the Court must still give due consideration to the relevant factors that guide her discretion in making a fee award.
1. Whether the Government Has a Reasonable Basis for Withholding Records
The reasonableness of the Government's withholding documents often is considered as the last factor in evaluating a plaintiff's entitlement to a fee award, but because it is the only factor that is potentially dispositive, prudence dictates that it should be considered first.
a. Legal Standard
Under this factor, where the agency's interpretation of its entitlement to withhold information is correct as a matter of law, even if it later allows a discretionary release of records, fees will not be awarded. Cotton v. Heyman, 63 F.3d 1115, 1117 (D.C.Cir. 1995); Chesapeake Bay Found. I, 11 F.3d at 216.
In cases where the agency erroneously interprets the law, its withholding will be considered reasonable if its interpretation had a colorable basis in law, and that is to be considered along with the other factors. Chesapeake Bay Found. I, 11 F.3d at 216; Fenster v. Brown, 617 F.2d 740, 742-43 & n. 4 (D.C.Cir.1979); Cuneo v. Rumsfeld, 553 F.2d 1360, 1365-66 (D.C.Cir.1977).
Where the Government has unreasonably withheld records, a fee award is appropriate if the agency was "recalcitrant in its opposition to a valid claim or otherwise engaged in obdurate behavior." See Tax Analysts v. United States Dep't of Justice, 965 F.2d 1092, 1097 (D.C.Cir.1992) (citations omitted); Cazalas v. United States Dep't of Justice, 709 F.2d 1051, 1054 (5th Cir.1983); Matlack, Inc. v. United States Environmental Protection Agency, 868 F.Supp. 627, 632 (D.Del.1994).
Some courts seem to suggest that a finding of unreasonable withholding alone is dispositive in favor of awarding attorneys' fees.[3]*65 This Court does not adopt that view. The precedent from this Circuit, the legislative history, and the weight of the case law suggest that all four factors are to be considered and depending on the facts of the case even when a court finds that the Government has unreasonably withheld documents, it may still decline to award attorneys' fees to the plaintiff.[4]
b. Whether EPA's Withholding Was Unreasonable
In the instant case, the reasonable-basis factor must be applied both to EPA's withholding Appendix III from the draft report and to its withholding the 10,000 + pages of data that it claimed were not encompassed by Horsehead's FOIA request.
i. Appendix III
As to Appendix III of the 1993 draft NEIC report, the inquiry is the standard one: did EPA reasonably believe that the Appendix was exempt from disclosure? The answer is no. As is set forth more fully in the Court's October 1996 Opinion, EPA was obliged to disclose those records containing purely factual information that were reasonably segregable from the remainder of the draft report. See also Lurie v. Department of the Army, 970 F.Supp. 19, 34 (D.D.C.1997) ("The agency is required to make a `segregability' determination ... stating that `all reasonably segregable' non-exempt (i.e., factual) information has been disclosed to a requester unless the `nonexempt portions of a document ... are inextricably intertwined with exempt portions.'") (citations omitted). Having determined that all but three sentences of the Appendix were segregable, factual information subject to disclosure, the Court stated that "it would be a stretch indeed to contend that this information was inextricably linked to policy judgments." October 1996 Opinion at 18.
To be sure, EPA had a reasonable, indeed correct, basis for resisting disclosure of the majority of the documents discussed in the October 1996 Opinion, but EPA's failure to perform the separability analysis and treat the Appendix as segregable and subject to disclosure lacked a colorable basis in law. Nonetheless, while EPA could have parsed its draft report more finely, the withholding of the Appendix is not the kind of recalcitrant or obdurate behavior that this factor is designed to weed out. The unreasonable withholding of the Appendix tips this factor only slightly in favor of a fee award.
ii. Factual Data Related to Palmerton Site
Consideration under this factor is more nuanced with respect to EPA's withholding more than 10,000 pages of documents that undisputedly do not fall within any FOIA exemption. The reasonable-basis inquiry generally is stated as whether the agency has a reasonable basis in law to withhold the requested records. E .g., Chesapeake Bay Found. I, 11 F.3d at 216. In most cases, this factor involves the agency's interpretation of *66 one or more of the nine FOIA exemptions, see id., but in some cases, the factor has been applied more broadly. See Cotton, 63 F.3d at 1121. In Cotton, our Court of Appeals applied the reasonable-basis inquiry to the Smithsonian Institution's interpretation of the FOIA's definition of an "agency," and found that interpretation to have been reasonable. Id.
In this case, the reasonable-basis inquiry is focused on whether EPA reasonably believed that these documents fell outside the ambit of Horsehead's FOIA request. This inquiry also involves an interpretation of law in that EPA was obliged to look to the rules of construction for FOIA requests. The rule is simple: "The agency [is] bound to read [a FOIA request] as drafted, not as either agency officials or [complainant] might wish it was drafted." Miller v. Casey, 730 F.2d 773, 777 (D.C.Cir.1984). And, as this Court has explained, "the agency must be careful not to read the request so strictly that the requester is denied information the agency well knows exists in its files, albeit in a different form from that anticipated by the requester." Hemenway v. Hughes, 601 F.Supp. 1002, 1005 (D.D.C.1985). Thus, the function of the reasonable-basis inquiry is to evaluate whether the agency had a reasonable basis for withholding the information, whether that basis be because the agency reasonably believed the records to have been requested but exempt from disclosure or not requested at all.
EPA withheld more than 10,000 pages of data, arguing that these documents were "based upon the overall knowledge of the analytical work done to date" rather than linked to the press release or Superfund Update cited in the request. January 1997 Opinion at 3. This Court found that reading to be "untenable." Id. Closer inspection is required to determine whether that untenable reading amounted to an unreasonable withholding of the records.
EPA's Withholding Was Not Done in Bad Faith
No evidence in the record suggests that EPA's narrow construction was the result of an effort to thwart Horsehead. The text of Horsehead's request focuses on documents used or relied upon with respect to the press release and the draft 1993 NEIC report. It is only the last sentence of the request, which asks for the data that "for[ms] the basis" for the statements made in the press release and draft report, that broadens the request to include these documents.
The evidence suggests that, at least initially, the EPA FOIA officer did not properly relay the final, broadening sentence of the request to Lowry. Even after he read the request, his interpretation rested on the first part of the request, and he failed to consider the complete request. This Court cannot find that EPA's narrow construction of Horsehead's FOIA request rises to the level of bad faith. Cf. Knight v. Food and Drug Admin., 1996 WL 707020 *2 (D.Kan. Nov.26, 1996) ("The FDA's delay in responding to Knight's FOIA requests and then its narrow construction of Knight's second request simply do not sustain an inference of bad faith.").
EPA Was Neither Recalcitrant Nor Obdurate
The Court similarly cannot find that EPA was recalcitrant or obdurate in its opposition to Horsehead's requests.[5] As this Court previously ruled, EPA had a legally correct basis for resisting disclosure of most of the documents discussed in the October 1996 Opinion. The narrow construction of one request does not evidence a stubborn resistance to the dictates of the FOIA. Rather EPA's defense of its narrow construction of the FOIA request evidences the kind of sharp practice that the Court has had occasion to witness among private civil litigants responding to discovery requests propounded under the Federal Rules of Civil Procedure. That is not entirely surprising in the context of this FOIA request, submitted as it was, by *67 the attorney for a corporation that EPA had designated as a Potentially Responsible Party (PRP) for the clean-up of a Superfund site. It is quite likely that EPA viewed Horsehead's FOIA request as a pre-litigation discovery request, which some FOIA requests undoubtedly are.[6]
Nonetheless, EPA's Withholding Was Unreasonable
But the fact that a FOIA request is made by a potentially adverse party in civil litigation does not provide a reasonable basis for the Government to read such requests more narrowly than others. It is true that one occasionally finds evidence of judicial disapproval when FOIA requests have been used in lieu of discovery.[7] There is, however, no legal basis for such commentary. On the contrary, Congress clearly recognized that the FOIA would be used as a means of obtaining discovery from the Government and, significantly, in such cases attorneys' fees would not ordinarily be awarded. Nationwide, 559 F.2d at 712 (court "would not award fees if a business was using the FOIA ... as a substitute for discovery in private litigation with the government") (quoting S.Rep. No. 93-854, 93d Cong., 2d Sess. (1974)). Congress certainly did not enact the FOIA to benefit civil litigants, but it also did not authorize the Government to discriminate against FOIA requests made by such litigants. National Labor Relations Board v. Sears, Roebuck & Co., 421 U.S. 132, 148-49, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975); United Technologies Corp. v. Federal Aviation Admin., 102 F.3d 688, 690-91 (2d Cir.1996) (Oberdorfer, J., sitting by designation).
On the contrary, the FOIA confers on members of the public a right to information from the Government independent of the contextually-based right provided by Rule 26 of the Federal Rules of Civil Procedure. See John Doe Agency v. John Doe Corp., 493 U.S. 146, 151-52, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989). Although there are occasional comparisons, particularly with respect to the scope of Exemption 5, the FOIA is animated by different policies than those informing the rules governing civil discovery in the federal courts. See Baldridge v. Shapiro, 455 U.S. 345, 360, 102 S.Ct. 1103, 71 L.Ed.2d 199 (1982).
Unlike Rule 26, the FOIA is founded on an equality principle or non-discrimination principle that makes irrelevant, with one exception, the identity of requester or her particular interest in the information sought.[8] Thus, all members of the public, including those who happen to be parties litigant against their government, are entitled to access to government records subject to disclosure under FOIA. Those litigating against the Government may not use the FOIA to circumvent limitations placed on discovery by, for example, obtaining otherwise privileged material, e.g., United States v. Weber Aircraft Corp., 465 U.S. 792, 801-02, 104 S.Ct. 1488, 79 L.Ed.2d 814 (1984), but such *68 requesters also are not to be denied equal access to government records.
In theory, it should be enough to declare, as Congress has done, that all members of the public share an equal right to access to government records. In practice, however, agencies retain significant discretion when interpreting either FOIA requests or requests for discovery in civil litigation. To avoid frustration of the FOIA, agency personnel are obliged to read a FOIA request somewhat more generously than they might read an identically-worded discovery request. This holds true even if the FOIA request is made by an adverse party or a potentially adverse party in litigation against the Government. A FOIA request is made in a nonadversarial proceeding in which the requester must simply "reasonably describe" the records, 5 U.S.C. § 552(a)(3)(A); whereas, civil litigants understand from the adversarial nature of a civil action that their requests for documents will be read narrowly, and they are under the more stringent burden to describe the documents sought with "reasonable particularity." See Fed.R.Civ.P. 34(b).
Therefore, when a FOIA request is made to further a complainant's litigation objectives against the government, an agency may not discriminate and construe such a request more narrowly, as if, perhaps, the request been made pursuant to the Federal Rules of Civil Procedure, than a request made by a non-litigant complainant. The current Administration's policy regarding FOIA requests reinforces the point.[9]
Against this backdrop, the Court finds that EPA lacked a reasonable basis for withholding the 10,000 pages of data as well. It is possible, although doubtful, that EPA's narrow construction of Horsehead's request may have passed muster under Rule 34, but it certainly does not under the FOIA. Reasonably interpreted, Horsehead's FOIA request included the documents disclosed in response to the Court's January 3, 1997 Order.
On the one hand, the Court is less than pleased with EPA, which should have acknowledged its mistake forthrightly rather than attempt to defend an indefensible reading of Horsehead's request. On the other hand, the FOIA request certainly could have been written more clearly, and once the Court instructed the agency on the proper reading of the request, the documents at issue were identified and disclosed promptly and without resistance or need for further litigation. See Fenster, 617 F.2d at 742 n. 4 (quoting legislative history to the effect that court should consider whether complainant was forced to resort to further litigation under this factor).
Therefore, upon consideration, the Court finds that EPA lacked a reasonable basis for withholding both Appendix III of the draft 1993 NEIC report and the 10,000 pages of data that it erroneously considered not to have been the subject of Horsehead's FOIA request. While this factor weighs in favor of a fee award, the Court finds that it must be balanced against the other factors; EPA's behavior here simply was not mulish enough to require slapping on it the costs of Horsehead's attorneys' fees without consideration of the other factors.
2. Benefit of the Litigation to the Public
Because the FOIA was enacted to provide the public with access to government records, an important factor in assessing whether an award of attorneys' fees is appropriate is the benefit to the public of the complainant's success. To gauge this benefit, the Court considers, with reference to the specific documents at issue in the case at hand, whether plaintiffs' victory is likely to add to the fund of information that citizens may use in making vital political choices. See Cotton, 63 F.3d at 1120. The inquiry is furthered by considering the likely degree of dissemination and the public impact that can be expected from a particular disclosure, Blue, 570 F.2d at 533, but it is the benefit that derives from the litigation not simply *69 the request that is considered. See Chesapeake Bay Found. II v. Department of Agriculture, 108 F.3d 375, 377 (D.C.Cir.1997).
Here, the information released is data pertaining to hazardous substances found at a Superfund site. Horsehead claims that there is a substantial public benefit from the release because citizens in the affected community want to know more about the sources of the hazardous substances. However, there is no suggestion in the record that any person or entity other than Horsehead has an interest in the data itself; rather Horsehead claims that a substantial public benefit will result from the release of its self interested interpretation of the data.[10] Further, the likelihood that the data will be disseminated at all remains speculative. Therefore, the conclusion must be that the public benefit from the release is minimal and weighs against an award of fees. See Matlack, 868 F.Supp. at 632 (release of similar data to party that could be liable for clean-up of Superfund site yields minimal public benefit); cf. Chesapeake Bay Found. II, 108 F.3d at 377; Northwest Coalition for Alternatives to Pesticides v. Browner, 965 F.Supp. 59, 63-64 (D.D.C.1997).
3. Commercial Benefit to Horsehead and the Nature of Horsehead's Interest
Although set out as separate factors, the commercial benefit of the disclosure to a FOIA complainant and the nature of the complainant's interest in the records are routinely merged for consideration. See Cotton, 63 F.3d at 1120. The functional inquiry under these factors is to assess the probability that the complainant had sufficient private incentive and means to seek disclosure of the records regardless of the availability of fees. Tax Analysts, 965 F.2d at 1096. Where the purpose of a FOIA suit is to advance the private commercial interest of the complainant, there will seldom be a fee award. Id.; see also Fenster, 617 F.2d at 742 & n. 4 (quoting relevant legislative history to the same effect).
Extensive discussion under this factor is unwarranted because plaintiffs concede that "Horsehead obviously has a commercial interest in obtaining the records." Pls. Fee Mem. at 8. There is little question from the record that Horsehead brought this suit to advance its private, commercial interest and that it would have brought the suit regardless of the availability of fees. With respect to these factors, this is precisely the kind of case in which an award of attorneys' fees would serve as an inappropriate windfall. As a result, these combined factors weigh very heavily against a fee award. See Cotton, 63 F.3d at 1120; Matlack, 868 F.Supp. at 632 (commercial interest weighing against fee award where plaintiff's "underlying incentive to engage in this FOIA litigation was to evaluate the possibility of avoiding liability for the clean-up of the Site").
CONCLUSION
Upon careful consideration, the Court finds that Horsehead is eligible for an award of attorneys' fees under FOIA, but that under the unique circumstances of this case, Horsehead is not entitled to a fee award. EPA's narrow construction of one of Horsehead's FOIA requests was unreasonable but insufficiently recalcitrant or obdurate to outweigh the other factors, all of which weigh more heavily against an award of attorneys' fees and litigation costs. EPA reasonably withheld a number of documents, and Horsehead successfully obtained additional ammunition for its potential dispute with EPA over the clean-up of the Palmerton site. It is appropriate that the parties bear their own costs. Accordingly, it is hereby
ORDERED that Horsehead's Motion for an Award of Attorneys' Fees and Costs of Litigation shall be, and hereby is, DENIED. IT IS SO ORDERED.
NOTES
[1] Initially, Horsehead Industries, Inc. was the sole plaintiff, however, the FOIA requests at issue had been sent by Kravetz. To moot a jurisdictional dispute and resolve the merits of this dispute without resort to refiling, the Court granted Horsehead Industries' motion to amend its complaint to include Kravetz as a party plaintiff.
[2] EPA invoked Exemption 6 to protect a page in the draft report entitled "Confidential Reference Chart Associating Palmerton Residence Codes With Street Addresses." 1993 draft NEIC report, at 52. Horsehead initially made no objection to the assertion of Exemption 6 to protect this document. When this list reappeared in the documents discovered in the search at NEIC, Horsehead sought disclosure, and on EPA's motion for partial reconsideration, this Court ruled in EPA's favor on its assertion of Exemption 6. See Horsehead Indus., Inc. v. EPA, No. 94-1299 (Order of Mar. 13, 1997).
[3] The Sixth Circuit has suggested that in practice unreasonable withholding by itself is dispositive. See American Commercial Barge Lines Co. v. National Labor Relations Board, 758 F.2d 1109, 1111 (6th Cir.1985); Seegull Manufacturing Co. v. National Labor Relations Board, 741 F.2d 882, 885-86 (6th Cir.1984). The Tenth Circuit may also share this view. See Anderson v. Secretary of Health and Human Services, 80 F.3d 1500, 1505 (10th Cir.1996) (where plaintiff's FOIA request is motivated by private interest, attorneys' fees should be awarded "only upon a record which reveals a clear and positive public benefit or when government representatives have withheld information without any reasonable or colorable basis in the law") (internal quotation and citation omitted). But see Nationwide, 559 F.2d at 712 n. 34.
In Nationwide, the Government argued that a finding of unreasonable withholding should be a prerequisite for even considering a fee award. The Nationwide court did not adopt that approach, but it certainly did not endorse the converse that a finding of unreasonable withholding by itself mandates a fee award. See id.
Other courts appear to suggest that a finding of unreasonable withholding combined with a showing of bad faith would be dispositive. See, e.g., Solone v. Internal Revenue Serv., 830 F.Supp. 1141, 1143 (N.D.Ill.1993) (agency was dilatory but not seeking to avoid embarrassment or harass complainant); Simon v. United States, 587 F.Supp. 1029, 1032 (D.D.C.1984) ("without evidence of bad faith, the court declines to impose a fee award to sanction [a] sluggish agency response").
[4] In this Circuit, see Chesapeake Bay Found., Inc. v. Dep't of Agriculture, 108 F.3d 375, 376-77 (D.C.Cir.1997) (hereafter "Chesapeake Bay Found. II"); Church of Scientology of California v. Harris, 653 F.2d 584, 590-91 (D.C.Cir.1981) ("[t]he propriety of the government's conduct is but one variable in the section 552(a)(4)(E) equation" and all relevant factors are to be considered); Fenster, 617 F.2d at 742-43 & n. 4; Nationwide, 559 F.2d at 714 (extensively reviewing the legislative history, concluding that "courts should consider the four factors ... although they must be careful not to give any particular factor dispositive weight"); Cuneo, 553 F.2d at 1365-66; see also Ralph Hoar & Assoc. v. National Highway Traffic Safety Admin., 985 F.Supp. 1, 9 (D.D.C.1997) (finding no reasonable basis for withholding and weighing that along with other factors).
In other Circuits, see United Assoc. of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 598 v. Department of the Army, 841 F.2d 1459, 1463-64 (9th Cir.1988) (withholding was unreasonable but remanded so that district court could weigh that against other factors); Miller v. United States Dep't of State, 779 F.2d 1378, 1389-90 (8th Cir.1985) (finding unreasonable withholding and weighing it along with other factors); Cazalas, 709 F.2d at 1054-55 (same); Blue v. Bureau of Prisons, 570 F.2d 529, 534 (5th Cir.1978) ("it is clear that all four criteria are to be weighed as guides to the court's discretion in FOIA attorneys' fees awards"); Matlack, 868 F.Supp. at 633-34 (finding EPA to have lacked a reasonable basis for withholding but refusing to grant a fee award nonetheless).
[5] "Recalcitrant" means "Stubbornly resistant to authority, domination, or guidance." WEBSTER'S II NEW RIVERSIDE UNIVERSITY DICTIONARY 981 (1994). "Obdurate" means "Persistent in wrongdoing" or "Not yielding to persuasion." Id. at 809. This effectively sets out a "stubbornness" or "mulishness" standard for assessing whether fees are appropriate under this factor.
[6] See, e.g., Cotton, 63 F.3d at 1116 (request to Smithsonian Institution to prepare an employment discrimination suit); Cazalas, 709 F.2d at 1052 (FOIA request by former Assistant United States Attorney who filed employment discrimination complaints); Chamberlain v. Kurtz, 589 F.2d 827, 831-32 (5th Cir.1979) (request by subject of civil and criminal tax fraud investigation to prepare his defense); Matlack, 868 F.Supp. at 632 (request to aid in fight of designation as PRP for Superfund Site); Solone, 830 F.Supp. at 1143 (request to prepare defense against IRS action); Hill Tower, Inc. v. Department of the Navy, 718 F.Supp. 568, 572 (N.D.Tex.1989) (request to aid in Federal Tort Claims Act litigation).
[7] See Pederson v. Resolution Trust Corp., 847 F.Supp. 851, 856 (D.Colo.1994) ("The FOIA is not to be used as a discovery tool."); Simon, 587 F.Supp. at 1033 (use of FOIA request in lieu of discovery "not proper").
[8] See Federal Open Market Comm. of the Federal Reserve Sys. v. Merrill, 443 U.S. 340, 362-63, 99 S.Ct. 2800, 61 L.Ed.2d 587 (1979); Sears, 421 U.S. at 148-49; In re Sealed Case, 121 F.3d 729, 737 n. 5 (D.C.Cir.1997); Maricopa Audubon Soc'y v. United States Forest Serv., 108 F.3d 1082, 1088 (9th Cir.1997) ("the FOIA does not permit selective disclosure of information only to certain parties").
In the one, limited, exception to the non-discrimination principle, the Court held that prisoners are entitled to receive copies of their presentence investigation reports through FOIA requests even though other members of the public would not enjoy similar access to those records under the FOIA. United States Dep't of Justice v. Julian, 486 U.S. 1, 12-13, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988) (implying a limitation on Exemption 5 in this circumstance).
[9] See President Clinton's FOIA Memorandum of October 1993, reprinted in FOIA Update, at 1 (Summer/Fall 1993); Attorney General Reno's Memorandum for Heads of Departments and Agencies regarding the Freedom of Information Act (Oct. 4, 1993), reprinted in FOIA Update, at 4-5 (Summer/Fall 1993). See generally U.S. Dep't of Justice, Freedom of Information Act Guide & Privacy Act Overview 11-12 (1996).
[10] See Pls. Fee Mem. at 8. Throughout its brief, Horsehead repeatedly argues the merits of its defense to CERCLA liability to this Court, as if that were relevant to the fees issue pending. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382121/ | 200 S.W.3d 57 (2006)
Edna HAWKINS, Appellant,
v.
Charles Dennis LEMASTERS, et al., Respondents.
No. WD 65677.
Missouri Court of Appeals, Western District.
May 9, 2006.
Motion for Rehearing and/or Transfer Denied June 27, 2006.
Application for Transfer Denied September 26, 2006.
James M. Roberts, Blue Springs, MO, appellant.
Timothy J. Murphy, Kansas City, MO, respondent.
Before JAMES M. SMART, JR., P.J., ROBERT G. ULRICH, and LISA WHITE HARDWICK, JJ.
Motion for Rehearing and/or Transfer to Supreme Court Denied June 27, 2006.
JAMES M. SMART, JR., Judge.
This is an appeal from the dismissal of a will contest petition for lack of standing. Edna Hawkins appeals the trial court's grant of its own motion to dismiss for lack of standing. Hawkins' main contention is *58 that the trial court erred in not granting standing based upon a signed copy of a purported will incorporated in her will contest petition. We affirm.
Procedural and Factual Background
Elsie Lemasters died on March 16, 2002. At the time of her death, Lemasters was a widow. On March 25, 2002, a will, executed by Lemasters on July 13, 2000, and a codicil, executed by Lemasters on February 20, 2001, were presented to the Probate Division of the Circuit Court of Jackson County, Missouri. Both were admitted to probate. Letters Testamentary were issued on April 3, 2002, to Charles Dennis Lemasters (a nephew of Lemasters' late husband) as personal representative under the will dated July 13, 2000.
Appellant Edna Hawkins is a niece of Lemasters' late husband. Respondent Anna Lemasters is the wife of Charles Dennis Lemasters. Respondent Dorothy Keith is a great niece of Lemasters' late husband. None of the parties are blood relatives of Lemasters; therefore, none are heirs at law.
On August 6, 2002, Hawkins filed a "Statement as to Death and Presentment of Instrument in Writing for Probate." The statement said that an instrument purporting to be a will of Mrs. LeMasters, dated May 6, 1996, was attached. The attached document was undated, unsigned, and unwitnessed. In the purported unsigned will, the document named Edna Hawkins a beneficiary and personal representative. Hawkins did not file any other documents to explain why only an unsigned copy was presented. The Probate Division, on August 26, 2002, rejected the purported will because it was not signed.
Shortly thereafter, Hawkins filed a "Petition to Contest Will and to Probate Rejected Will." Respondents filed their answer to the petition on October 3, 2002.
Hawkins filed an "Amended Petition to Contest Will and to Probate Rejected Will" on November 26, 2002. Attached to the amended petition was a document purporting to be a signed copy of the same purported 1996 will which had been presented on August 6, 2002. Someone had written on the will the words "old/superceded" and had drawn a line diagonally through each page. Respondents filed a motion for summary judgment and Hawkins responded. On June 24, 2005, the trial court dismissed the petition on its own motion for lack of standing while considering the motion for summary judgment. The trial court based its decision on the prior ruling rejecting the 1996 purported will. The court noted that under section 474.320[1] every will must be in writing, signed, and attested by witnesses in the presence of the testator. Because the purported will was presented without the statutory requirements, it was rejected. Accordingly, the court ruled that Appellant Hawkins had no financial interest in the estate that would give her standing. Neither the motion for summary judgment nor the response to the motion are in the legal file.[2]
*59 Standard of Review
Because there is no dispute as to the basic procedural facts, our review of the legal issues is conducted de novo, and issues involving the interpretation of statutory language are questions of law. Lakin v. Gen. Am. Mut. Holding Co., 55 S.W.3d 499, 503 (Mo.App.2001). "In cases involving questions of law, this court reviews the trial court's determination independently, without deference to that court's conclusions." Id.
Analysis
Hawkins' only point on appeal is that the trial court erred in dismissing her petition for lack of standing because her will contest petition incorporated a signed copy of the purported 1996 will. She argues that she satisfied the presentment requirement of the statute and provided the necessary financial interest to contest the 2000 will and 2001 codicil. We disagree.
The first document was submitted to the court on August 6, 2002. This version was not signed. Section 474.320 states that "[e]very will shall be in writing, signed by the testator, or by some person, by his direction, in his presence; and shall be attested by two or more competent witnesses subscribing their names to the will in the presence of the testator." Without a signature by the testator or witnesses, the document did not satisfy the mandatory requirements for a valid will, and was rejected by the court. See Brownfield v. Brownfield, 249 S.W.2d 389, 391 (Mo.1952).
We first consider whether the document submitted to the court fulfilled the requirements of section 473.050 (governing presentment) in order to be rejected affording standing for a will contest. Section 473.050 states that
1. A will, to be effective as a will, must be presented for and admitted to probate.
2. When used in chapter 472, RSMo, chapter 474, RSMo, chapter 475, RSMo, and this chapter, the term "presented" means:
(1) Either the delivery of a will of a decedent, if such will has not previously been delivered, to the probate division of the circuit court which would be the proper venue for the administration of the estate of such decedent, or the delivery of a verified statement to such court, if the will of such decedent is lost, destroyed, suppressed or otherwise not available, setting forth the reason such will is not available and setting forth the provisions of such will so far as known; and
(2) One of the following:
(a) An affidavit pursuant to section 473.097, which requests such will be admitted to probate; or
(b) A petition which seeks to have such will admitted to probate; or
(c) An authenticated copy of the order admitting such will to probate in any state, territory or district of the United States, other than this state.
§ 473.050 (emphasis added).
In construing a statute,[3] the court will take words in the ordinary and usual sense *60 unless the words are technical and have a peculiar and appropriate meaning in the law. § 1.090. "The primary rule of statutory interpretation is to ascertain the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words in their plain and ordinary meaning." In re Boland, 155 S.W.3d 65, 67 (Mo. banc 2005) (citing Landman v. Ice Cream Specialties, Inc., 107 S.W.3d 240, 251 (Mo. banc 2003)). "Statutory construction should not be hyper technical but instead should be reasonable, logical, and should give meaning to the statutes." Id.
Section 473.050 was substantially amended in 1996. 1996 Mo. Laws 857. Prior to this amendment, the statute did not contain a definition for "presentment."[4]Id. "When the legislature amends a statute, that amendment is presumed to change the existing law." Cox v. Dir. of Revenue, 98 S.W.3d 548, 550 (Mo. banc 2003). In the new section, the addition of the definition for "presentment" changed how the courts had defined the term.
The St. Louis District, now Eastern District, of this court first defined "presentment" as used in section 473.050 in State ex rel. Shriners' Hospitals v. Hensley, 385 S.W.2d 820, 825 (Mo.App.1964). In that case, the court stated that something more than merely filing a will is required for presentment. Id. at 825-26. This requirement continued through the case law preceding the amendment in 1996. See, e.g., Gillman v. Mercantile Trust Co., 629 S.W.2d 441, 445 (Mo.App.1981); In re Estate of Bridges, 710 S.W.2d 327, 330-31 (Mo.App.1986); Lopiccolo v. Semar, 890 S.W.2d 754, 757 (Mo.App.1995).
The amendment of section 473.050 presumes a change from the definition that was previously applied to "presentment." Cox, 98 S.W.3d at 550. The new definition provides two means to "present" a will to probate. First, the will can be delivered to the probate division of the circuit court. § 473.050.2(1). This presumes the document delivered is a will satisfying the requirements of section 474.320. Second, if a will is not available, a verified statement stating why the will is not available and setting forth the known provisions of the will can be filed. Id. Either of these methods for presenting a will must also have either an affidavit requesting probate, a petition seeking to admit to probate, or an authenticated copy of the order admitting the will elsewhere. § 473.050.2(2).
In this case, a statement was not made to the court in August to alert it that a signed original was in existence, or that there had been one in existence but it could not be found. Rather, only the "known provisions" of the purported will were supplied with the unsigned and undated copy. This did not satisfy the requirements of section 473.050.
*61 The second version, purportedly signed by Lemasters and witnesses, was attached to and incorporated into the will contest petition filed on November 26, 2002. However, in order for the court to take proof or issue a certificate for the purported will, the purported will must be presented within six months "of the first publication of the notice of granting of letters, or within thirty days after the commencement of an action under section 473.083 to establish or contest the validity of a will of the testator named in such will, whichever later occurs." § 473.050.3(1). The letters testamentary for the 2000 will and 2001 codicil were issued on April 3, 2002. Section 473.033 states that notice should be published as soon as the letters testamentary are issued. Accordingly, it appears that the six-month period for presenting a will to the court would have begun to run in the first week of April, and lapsed in the first week of October.[5]See Bosworth v. Sewell, 918 S.W.2d 773, 776 (Mo. banc 1996). Hawkins did, of course, file the purported signed will after filing her own "petition to contest will and to probate rejected will." However, the purported will was not filed within 30 days after the petition was filed because it was not filed until November 26. Thus, however, we look at it, because there was no proper presentment within the time set by section 473.050.3(1), the presentment was not timely. Hawkins' failure to comply with presentment within the period of limitations prevents the court from considering it as either accepted or rejected for the purposes of a will contest.[6]State ex rel. Estate of Perry ex rel. Perry, 168 S.W.3d 577, 583 (Mo.App.2005).
Hawkins relies upon Lopiccolo v. Semar, 890 S.W.2d 754 (Mo.App.1995), for her point that presenting an unsigned copy of a will still provides standing. In Lopiccolo, a 1989 will was admitted to probate and letters testamentary were issued. 890 S.W.2d at 756. Exactly six months later, a 1987 will was presented. Id. The court determined that this presentation was timely because it was within the six-month time frame. Id. at 757. The court also found that the defendant asserted the validity of the 1987 will in her initial Answer filed prior to the presentation of the 1987 will and then again in the Third-Party Petition filed after the presentation of the 1987 will. Id. Those assertions of validity differ from those of the current statute requiring a verified statement as to the reason the will is not available, which Hawkins did not provide with the unsigned 1996 will in this case.
As noted above, the legislature substantially rewrote section 473.050 in 1996, a year after Lopiccolo. 1996 Mo. Laws 857. That amendment provided a more detailed definition and process for presenting and admitting a will to probate. Id.; § 473.050. Prior to the amendment, for instance, there was no requirement for a verified statement of explanation as to an unavailable will. 1996 Mo. Laws 857.
In Lopiccolo, standing was found because the contesting parties stood to either gain or lose under the contested will. Id. at 758. Here, due to the lack of proper *62 presentment of the unsigned 1996 will (without, inter alia, a verified statement to accompany it), Hawkins cannot be in a position to lose or gain by contesting the 2000 will and 2001 codicil because she is neither a beneficiary under a presented will, nor an heir at law. Graham v. Manche, 974 S.W.2d 580, 584 (Mo.App. 1998) (citing Lopiccolo, 890 S.W.2d at 758); see also Brug v. Mfrs. Bank & Trust Co., 461 S.W.2d 269, 276 (Mo. banc 1970). Hawkins failed to demonstrate that she has standing to challenge the 2000 will and 2001 codicil. Id. Her point is denied.
Conclusion
The judgment of the trial court is affirmed.
ULRICH and HARDWICK, JJ., concur.
NOTES
[1] All statutory references are to the Revised Statutes of Missouri, 2000, unless otherwise indicated.
[2] Apparently there was another will signed by Lemasters on May 12, 2000, that benefited Hawkins (LF 9). That will was included as Appendix A to the "Amended Petition to Contest Will and to Probate Rejected Will" filed on November 26, 2002. Hawkins does not reference that document specifically in the petition (although she does reference Appendix A in paragraph 7, she is actually referring to Appendix B, and in paragraph 8 she refers to Appendix B when she is actually referring to Appendix B-1). Neither party mentions the May 12, 2000, will in the appellate briefs. This document was never presented or an attempt made for it to be presented to the probate court. However, in the Supplemental Legal File, the three documents referred to in the petition as Appendixes A, B, and C (the July 13, 2000, will; the February 20, 2001, codicil; and the signed 1996 will) are laid out in that order with the identification referred to in the petition. The May 12, 2000, will is not included in the Supplemental Legal File.
[3] Section 473.050 has previously been construed in Croom v. Bailey (In re Estate of Croom), 107 S.W.3d 457 (Mo.App.2003), but that opinion examined whether as a prerequisite to presentment the person delivering and/or applying for probate must be either an "interested" or "entitled" party. The opinion does not construe the term "presentment."
[4] Prior to the amendment, section 473.050 stated:
No proof shall be taken of any will nor any certificate of probate thereof issued, unless the will has been presented to the judge or clerk of the probate division of the circuit court, within six months from the date of the first publication of the notice of granting letters testamentary or of administration by the probate division of any circuit court in the state of Missouri, or within thirty days from the commencement of an action under section 473.083 to establish or contest the validity of a will, whichever is later, on the estate of the testator named in the will so presented.
§ 473.050 RSMo 1994.
[5] The facts do not provide the date when notice was given, but would have been shortly after the date the letters were issued. If the court erred because the filing was timely, it is appellant's responsibility to demonstrate error. We assume the correctness of the trial court ruling in the absence of information to the contrary.
[6] Hawkins relies upon the amended petition filed outside of the six-month window rather than the original petition filed within six months. A copy of the original petition was not provided to this court in the legal file. Therefore, this court can base its decision only on the amended petition filed outside of the six-month period. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382172/ | 200 S.W.3d 242 (2006)
In re A.W.P., C.D.P., C.A.P., Children.
No. 05-05-00638-CV.
Court of Appeals of Texas, Dallas.
July 18, 2006.
*243 Paul A. Lockman, The Law Office of Paul A. Lockman, Dallas, for Appellant.
William Henry Underwood, McKinney, for Appellee.
Before Justices WHITTINGTON, O'NEILL, and MAZZANT.
OPINION
Opinion by Justice O'NEILL.
Appellant Larry Wayne Parent (Larry) appeals the denial of his motion to modify. In three issues, Larry contends (1) the trial court erred in denying his motion for new trial, (2) the trial court erred in deeming appellee Kimberlee Ann Parent's (Kimberlee) requests for admissions, and (3) there is no evidence to support the trial court's award of attorney fees. For the following reasons, we affirm the trial court's judgment.
*244 Larry and Kimberlee were divorced in May 2004 and Larry was ordered to pay child support for their three minor children. In February 2005, Larry filed a motion to modify seeking to reduce the amount of court-ordered child support. At the hearing on the motion to modify, Kimberlee asserted Larry had failed to timely answer her requests for admissions. She thus asserted the requests were automatically deemed admitted as a matter of law. See TEX.R. CIV. P. 198.3. She objected to any evidence contrary to Larry's admissions. Larry did not dispute that his responses were late. Nor did he request to withdraw the deemed admissions. The trial court deferred ruling on the issue of the deemed admissions and granted Kimberlee a running objection to any evidence contrary to the admissions. The trial court proceeded to hear the motion to modify. One week later, the trial court signed an order (1) denying the motion to modify, (2) deeming Kimberlee's requests for admissions admitted for all purposes, and (3) ordering Larry to pay Kimberlee's court costs and attorney fees.
Larry subsequently filed a motion for new trial asserting the trial court erred in deeming the requests for admission admitted because he timely answered the requests. Larry acknowledged that he served untimely responses on Kimberlee, but claimed he did so due to a secretarial error. Larry claimed that, in addition to serving the late responses, he had also previously timely served Kimberlee with the responses. In Kimberlee's response to the motion for new trial, she disputed Larry's claim, maintaining she did not receive any timely responses. The motion for new trial was overruled by operation of law. This appeal followed.
In his first issue, Larry contends the trial court erred in "not hearing" his motion for new trial. According to Larry, the trial court refused to hear his motion for new trial because it incorrectly concluded it had lost plenary jurisdiction over the case.[1] Larry cites no place in the record to support his contention that the trial court refused to consider his motion for new trial. Statements in a brief that are not supported by the record will not be considered on appeal. Marshall v. Housing Auth., 198 S.W.3d 782 (Tex. 2006); TEX. R. APP. P. 38.1(h) (requiring argument to be supported by appropriate references to the record). Further, Larry cites no legal authority under this issue. Therefore, this issue is inadequately briefed and present nothing to review. See Hope's Fin. Mgmt. v. Chase Manhattan Mortgage Corp., 172 S.W.3d 105, 107 (Tex.App.-Dallas 2005, pet. denied). We resolve the first issue against Larry.
In his second issue, Larry contends the trial court improperly deemed admitted Kimberlee's requests for admissions. This Court has only a partial reporter's record of the trial court's hearing on the motion to modify. Generally, in an appeal with only a partial reporter's record, we must presume the omitted portions of the record are relevant and support the trial court's judgment. Feldman v. Marks, 960 S.W.2d 613, 614 (Tex.1996). Texas Rule of Appellate Procedure 34.6(c) provides an exception to the general rule. See TEX.R.APP. P. 34.6(c). Under that rule, an appellant may present an appeal on a partial reporter's record if he includes in *245 his request for the reporter's record a statement of the points or issues to be presented on appeal. Id. The appellant must file a copy of his request with the trial court clerk. See TEX.R.App. P. 34.6(b)(2). If an appellant fails to file a notice of issues with the clerk, we assume the missing portions of the record support the trial court's judgment. See Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex.2003) (per curiam).
In this case, the clerk's record does not include a request to the court reporter showing a statement of the points or issues relied upon or other document showing the points or issues relied upon. We sent the clerk a letter requesting her to file with this Court Larry's designation of the record to the court reporter, including any statement of points or issues under rule 34.6(c). The clerk responded that Larry never filed a designation with the clerk. Under these circumstances, we must presume the missing portions of the record support the trial court's judgment. See Bennett, 96 S.W.3d at 229; see also Farahmand v. Thang Do, 153 S.W.3d 601, 602 (Tex.App.-Dallas 2004, pet. denied) (affirming trial court's refusal to withdraw deemed admissions where appellant failed to file record of hearing on motion to withdraw). Thus, we cannot conclude the trial court erred in granting judgment on Larry's deemed admissions.
Furthermore, under this issue, Larry relies solely on evidence he presented to the trial court in his motion for new trial. However, Larry attacks only the trial court's decision to grant judgment on the deemed admissions.[2] In determining whether the trial court properly granted judgment on the deemed admissions, we consider only the evidence before the trial court at the time it made that decision. Cf. Deerfield Land Joint Venture v. Southern Union Realty Co., 758 S.W.2d 608, 611 (Tex.App.-Dallas 1988, writ denied) (reviewing court considers only evidence before trial court at time of summary judgment hearing); Clark v. Noyes, 871 S.W.2d 508, 518 & n. 5 (Tex.App.-Dallas 1994, no writ) (refusing to consider evidence that was not presented at time of hearing on special appearance). Because Larry has not shown the trial court's decision was incorrect when made, he presents no reversible error. We resolve the second issue against Larry.
In the third issue, Larry asserts there is no evidence to support the trial court's award of attorney's fees to Kimberlee. Because we have only a partial reporter's record, we must assume the missing portions of the record support the trial court's judgment. See Tull v. Tull, 159 S.W.3d 758, 761 (Tex.App.-Dallas 2005, no pet.). We resolve the third issue against Larry.
In this appeal, Kimberlee has requested damages for filing a frivolous appeal. This Court is authorized to award "just damages" if an appeal is objectively frivolous and injures the appellee. Njuku v. Middleton, 20 S.W.3d 176, 178 (Tex. App.-Dallas 2000, pet. denied). An appeal is frivolous if, at the time asserted, the advocate had no reasonable grounds to believe the judgment would be reversed or when an appeal is pursued in bad faith. Id.
Here, Kimberlee's motion for frivolous appeal damages is largely based on Kimberlee's allegation that the evidence attached to Larry's motion for new trial was falsified. We have disposed of this appeal primarily based on Larry's failure to present *246 a complete record. This failure does not alone render his appeal frivolous. See Sam Houston Hotel, L.P. v. Mockingbird Rest., Inc., 191 S.W.3d 720, (Tex.App.-Houston [14th Dist.] 2006, no pet.). Nor can we conclude Larry's appeal was otherwise frivolous. See TEX.R.APP. P. 45. We decline to award frivolous appeal damages under the facts of this case.
Additionally, both Kimberlee and Larry seek damages under section 10.001 of the civil practice and remedies code accusing the other party of filing improper motions in this Court. See TEX. Civ. PRAC. & REM.CODE ANN. § 10.001 (Vernon 2002). Section 10.001, by its own terms, applies only to motions filed in the trial court under the rules of civil procedure. See TEX. CIV. PRAC. & REM.CODE ANN. § 10.001 (Vernon 2002). It does not apply to motions filed in this Court or to sanctions requested for the first time in this Court. We deny both parties motions for sanctions under the civil practice and remedies code.
We affirm the trial court's judgment.
NOTES
[1] In his "summary of the argument," appellant represents that his argument under the first issue will attack the merits of the trial court's refusal to grant the motion for new trial. However, the substance of his brief attacks only the trial court's alleged determination that it had lost plenary jurisdiction to consider the motion for new trial. We will consider only the issue actually presented in appellant's brief. See TEX.R.APP. P. 38.1(h).
[2] Particularly, Larry does not attack the trial court's ruling on the motion for new trial which is a obviously a different issue than the trial court's initial decision to grant judgment and is governed by a different standard of review. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382207/ | 587 P.2d 71 (1978)
284 Or. 343
Mary Jane JOHNSON, Aka Jerry Johnson, and Harry Whitson, Respondents,
v.
Emil BERGSTROM, Appellant, and
Claude W. Smith and Juwana F. Smith, Defendants.
TC 75-5125; SC 25428.
Supreme Court of Oregon, In Banc.
Argued and Submitted October 10, 1978.
Decided November 29, 1978.
*72 Terence J. Hammons of Hammons, Phillips & Jensen, Eugene, argued the cause for appellant. With him on the brief was David L. Jensen of Hammons, Phillips & Jensen, Eugene.
Donald K. Hutchinson of Hoffman, Morris, Van Rysselberghe & Giustina, Eugene, argued the cause and filed the brief for respondents.
TONGUE, Justice.
This is an action by the assignees of a contract who bring a tort claim for wrongful interference with contract rights. The case was tried before the court, without a jury. Plaintiffs were awarded a judgment of $2,975 in general damages and $3,500 in punitive damages. Defendant appeals.
Norman Bergstrom, brother of defendant Emil Bergstrom, is a real estate broker. He obtained a listing on a tavern owned by a couple named Smith under which the Smiths were required to pay him a commission if he sold the tavern.[1]
Plaintiffs are salespeople in the office of Norman Bergstrom. They obtained a signed earnest money agreement from defendant Emil Bergstrom to purchase the tavern. They were then entitled to share in the commission on that sale.
Defendant Emil Bergstrom, however, did not close the transaction through the real estate brokerage office of his brother, as provided by the earnest money agreement. Instead, he purchased the tavern directly from the Smiths and no commission was ever paid.
Plaintiffs became concerned about their share of the commission and talked to Mr. Smith about it, without success. Plaintiff Johnson then talked to her employer, Norman Bergstrom. She testified as follows:
"A. I told him I wanted my commission, and he said he would not sue his own brother. And I said all right, fine, then is it all right with you if I go to an attorney and find out what can be done for someone who does this to you? And he said he had no objection.
"Q. And then thereafter did you take an assignment from him you and Mr. Whitson of the commission rights?
"A. Yes, sir."
The pertinent parts of the assignment are as follows:
"* * *
*73 "WHEREAS, the right to payment under the contract is assignable and the duties have been fully performed, and the Assignee desires to acquire the rights of the Assignor thereunder;
"IT IS THEREFORE AGREED:
"Assignment. For valuable consideration, receipt of which is hereby acknowledged, the Assignor hereby assigns to the Assignee all of his interest in the contract as constituted by Assignor's employment contract dated May 7, 1975, a sale agreement and receipt for earnest money dated May 20, 1975 regarding the sale of the Ron-De-Voo Tavern together with the earnest money note dated May 15, 1975 and executed by Emil Bergstrom pursuant to the sales agreement of May 20, 1975, and to all of the commissions and other rights now due arising from this transaction." (Emphasis added)
Plaintiffs then filed this action alleging that as a result of the "willful and fraudulent conduct" of the defendants the plaintiffs had been unable to secure payment of the $2,975 commission payable under the earnest money agreement obtained by their efforts, and alleging general damages in that amount.[2]
Defendant's primary contention is that the trial court erred in denying his motion for a directed verdict based upon the ground that "this tort claim was not assignable."[3] In support of that contention defendant says that "the assignment of a tort claim the gist of which is the injury to personal rights, rather than property, has almost universally been held void as against public policy."[4]
Defendant recognizes that some Oregon cases hold that survivability is the test of assignability and that in 1969 a statute was adopted in Oregon providing that all causes of action or suit survive to personal representatives (ORS 115.305). Defendant contends, however, that survivability should not be the test of assignability, and cites decisions from other states to that effect.
Regardless of the proper basis for the rule that actions for injury to the person are not ordinarily assignable, the rights acquired by plaintiffs under the assignment involved in this case were of a different nature. In our view, the tort of interference with contract rights is a tort relating to a property interest, rather than a personal interest, and the assignment of such a tort claim is not void as against public policy.[5] The reasons of policy against the assignment of personal injury claims have little relevance with respect to property damage claims.[6] It follows that the trial court did not err in denying defendant's motion for a directed verdict based on defendant's contention that this tort claim was not assignable.
*74 Defendant also contends that the court erred in finding in favor of plaintiffs on a tort claim when plaintiffs' proof was only that they had been assigned a claim for breach of contract against the Smiths. In support of that contention defendant says, in effect, that even if a tort claim of interference with a contract is assignable, the terms of this assignment were not broad enough to assign such a claim; that what was assigned was the right to payment of the commission; that this assignment was also ambiguous, and that because it was prepared by plaintiffs' attorney all such ambiguities must be resolved against plaintiffs.
In response, plaintiffs do not directly answer these contentions. Plaintiffs contend that "the assignment of the claim carries with it the right to employ any remedy which is open to the assignor," citing Sperry v. Stennick, 64 Or. 96, 129 P. 130 (1913), and Cooper v. Hillsboro Garden Tracts, 78 Or. 74, 152 P. 488 (1915); that "once [a contract is] assigned, the assignee can maintain a tort action upon that contract," and that plaintiffs "took a valid assignment of the assignor's contract rights and were proper plaintiffs in the action below for intentional interference with those contract rights."
Neither Stennick nor Cooper involved an action for tort brought by an assignee, as in this case. As previously stated, however, we are of the opinion that the right to bring a tort action for interference with a contract may be assigned. It may also be true that an unqualified and unambiguous assignment of not only a contract, but of all rights arising from a contract, would carry with it all remedies appropriate for the protection of such rights, including the right to bring a cause of action in tort for interference with that contract. The question to be decided in this case, however, is whether this assignment was such an unqualified and unambiguous assignment.
Upon examination of the assignment, as previously set forth, it appears that although reference is made to an assignment of the "rights" of the assignor and to "all of his interest in the contract," specific reference is also made to "all of the commissions and other rights now due arising from this transaction." In addition, one of the preliminary recitals is that "the right to payment under the contract is assignable."
In our opinion, these terms, when considered together, were sufficiently ambiguous so as to make it proper to receive and consider testimony of the intention of the parties in the execution of that assignment, particularly when, as in this case, such testimony was offered and received without objection.
It appears from such testimony that the intent of the parties was to assign the right of Norman Bergstrom to payment of the commission on the sale of the tavern. Thus, plaintiff Johnson testified, on direct examination, and in response to a leading question from her own attorney, that before the written assignment was prepared she told Norman Bergstrom that she "wanted my commission" and that "thereafter" she took "an assignment from him * * * of the commission rights." She also testified on cross-examination as follows:
"Q. So he, in this assignment, is giving you something, his right to a commission.
"A. That's right."
To the same effect, plaintiffs offered the testimony of Norman Bergstrom, who testified as follows, in response to a question by plaintiffs' attorney:
"Q. Then subsequently you turned over to them or assigned to them the right to the commission?
"A. Right."
Plaintiffs have not called to our attention any testimony to the contrary or from which it could be properly found that the parties intended by this assignment to convey anything other than the contract right to payment of a commission, including such remedies as appropriate to enforce the payment of that commission.
On this state of the record we are of the opinion that plaintiffs failed to sustain their burden of proving that the parties intended to convey by this assignment the right to bring an action in tort for damages (including *75 punitive damages) resulting from interference with the listing contract.
Reversed and remanded.
NOTES
[1] The Smiths were also named as defendants in the complaint, but made no appearance.
[2] Plaintiff's complaint also prayed for punitive damages, which are not in issue on this appeal.
[3] No contention is made that defendant would not be liable if the cause of action is assignable and was in fact assigned. But see Annot., 29 A.L.R. 2d 1229, 1232-34 (1967).
[4] In support of this contention defendant cites Restatement of Contracts § 547(1)(d) (1932); Dahms v. Sears, 13 Or. 47, 58, 11 P. 891 (1885); Sperry v. Stennick, 64 Or. 96, 101-02, 129 P. 130 (1913); Rorvik v. North Pac. Lumber Co., 99 Or. 58, 91, 190 P. 331, 195 P. 163 (1921); Nichols v. Jackson County Bank, 136 Or. 302, 307-08, 298 P. 908 (1931); Nordling v. Johnston, 205 Or. 315, 328, 283 P.2d 994, 287 P.2d 420 (1955); Geertz v. State Farm Fire, 253 Or. 307, 309-10, 451 P.2d 860 (1969); State Farm Ins. v. Pohl, 255 Or. 46, 49, 464 P.2d 321 (1970); and Fireman's Fd. Am. Ins. Cos. v. Turner, 260 Or. 30, 41-42, 488 P.2d 429 (1971).
[5] See Bethlehem Fabricators v. H.D. Watts Co., 286 Mass. 556, 190 N.E. 828, 834 (1934). Cf. Sperry v. Stennick, 64 Or. 96, 102-03, 129 P. 130 (1913); Nichols v. Jackson County Bank, 136 Or. 302, 307-08, 298 P. 908 (1931); Groce v. Fidelity General Insurance, 252 Or. 296, 302-04, 448 P.2d 554 (1969); Geertz v. State Farm Fire, 253 Or. 307, 310, 451 P.2d 860 (1969); and Collins v. Fitzwater, 277 Or. 401, 409, 560 P.2d 1074 (1977). See also generally, Wampler v. Palmerton, 250 Or. 65, 73, 439 P.2d 601 (1968), and cases and authorities cited therein relating to the tort of wrongful interference with contract rights. See also Prosser on Torts 930-31, § 129 (1971).
[6] See Southern Farm Bureau Casualty Insurance Co. v. Wright Oil Co., 248 Ark. 803, 454 S.W.2d 69, 70 (1970). See also Haymes v. Halliday, 151 Tenn. 115, 268 S.W. 130 (1925). Cf. cases and authorities cited, supra, n. 5. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2447850/ | 282 S.W.2d 826 (1955)
LOUISVILLE & NASHVILLE RAILROAD CO., Appellant,
v.
Ronnie Dean SPENCE'S ADM'R (Charles Spence), Appellee.
Court of Appeals of Kentucky.
March 4, 1955.
As Modified on Denial of Rehearing October 28, 1955.
*827 C. S. Landrum, C. E. Rice, Jr., Lexington, Stephen Combs, Jr., Whitesburg, for appellant.
Hinton & Young, Pikeville, Emmett G. Fields, Whitesburg, for appellee.
STANLEY, Commissioner.
The record is of the tragic death of a ten year old boy, Ronnie Spence. He and his brother, Billy, twelve years old, and two other lads, Bobby and Andy Ferrell, about the same ages, played hookey from school one afternoon in September, 1952, in order to avoid hypodermic injections of health serum. They walked some distance and hid in the bushes at a place, they said, where they would not be seen and waited for the train. After the locomotive and some cars had passed the point and stopped, the four boys got on the train inside a car and stooped down so they could not be seen. The train consisted of 48 empty coal cars. It backed up a spur track to a mine tipple. It appears the boys stayed inside the car until the train went by the schoolhouse, which was about two miles from the place they boarded it. Then they began jumping off and on the slowly moving train. With reckless abandon that it is hard for an adult to conceive, Ronnie Spence got between two cars and, holding onto the one in front of him, began to walk the rail as the train moved along. When he had gone a few feet, he stumbled or slipped and fell beneath the train. One of his companions called to him to lie flat and he did so momentarily but turned over and the wheels ran over him.
The administrator of the child's estate has recovered a judgment of $15,225 against the appellant, Louisville & Nashville Railroad Company, for his death and burial expenses.
The defendant introduced no evidence. It rested the case on a tendered peremptory instruction based on the grounds that there was no proof of its negligence and that the boy was guilty of contributory negligence as a matter of law. The peremptory was denied and the case was submitted to the jury by an instruction which predicated liability of the railroad company on the condition that its employees in charge of the train knew that Ronnie or his playmates were "riding on the train or jumping on and off the coal cars" and had failed to use ordinary *828 care with the available means to avoid injuring the deceased boy and the other boys with him and such failure was the proximate cause of his death.
Evidence was admitted, over the defendant's objection, for the purpose of showing a custom of children to hop or ride coal trains on this spur track so as to convert their status of trespassers into that of licensees or invitees of a sort. The witnesses did not undertake to testify to anything that occurred on the day of the fatal accident.
In Durbin v. Louisville & N. R. Co., 310 Ky. 144, 219 S.W.2d 995, 997, we considered this character of evidence and held it to be irrelevant and incompetent, for "a person may be an invitee today, a licensee tomorrow, and the next day a trespasser." We expressed the view that even if there was such custom and the railroad employees knew of it, no additional duties were imposed on the company. But, accepting what was attempted to be proved as true, the court held that because of the absence of evidence that any of the crew knew of the presence or position of the boy who was injured on the train on the particular occasion, a directed verdict for the railroad company was proper. In the instant case the evidence adduced for the purpose of showing such custom and an implied permission for the deceased boy and his companions to ride the train, or of showing that their presence should have been anticipated and their danger should have been discovered, fell short of proving either permission or reasonable anticipation or discovery.
We look to the evidence tending to prove knowledge of the trainmen of the presence of these four little boys on the train just before the fatal accident.
The testimony of the children as to the distance traveled before they emerged from inside the coal car is variable and unsubstantial. It seems to have been about the time the train passed their schoolhouse. They got off and began running along the track and jumping on and off the train "next to the hill side", which was the east side of the track. The engineer was on the west side. How far the train had traveled while they were doing this is indefinite. One of them said it was "about 100 feet" and then in answer to a question as to how many car lengths, said "about 25." Another boy testified it was "about half a mile." All agree they were on the outside of the curve in the track. The oldest of the three testified no one on the engine saw them hopping off and on the cars. Ronnie's brother, Billy, testified that when Ronnie was killed, they were about 10 or 12 car lengths from the engine but had been closer to it. He was asked by the court if he knew whether any of the train crew saw the boys hopping on and off the cars and answered that he could see one man with his head out of the engine window looking in his direction, but "I don't know whether he saw me or not." Bobby Ferrell testified Ronnie Spence could not have been seen by the engineer because of the curve at the place where he jumped off the train and because he had got between the cars. Andy Ferrell, in answer to a question whether the trainmen saw him, stated that none of them saw him get on but after he got on, "I seen them looking at me." It was not the engineer but the "one toward the hill." Upon cross-examination, however, it was developed that the boy was referring to the time the boys first got on the train some distance away from the scene of the accident. He testified that it was then that "someone on the train saw us." There was no interrogation seeking to develop the matter further.
After Ronnie Spence had fallen under the train, two of the boys got over on the other side, ran towards the engine, 8 or 9 car lengths, and called to the engineer and told him of the accident. He stopped the train and went to the place where the child's body lay. Some of the boys told the engineer they had not been on the train but had been walking along the side of the track. The engineer then shook his finger at them and said, "Don't you lie. I seen you on the train." A Mrs. Seals testified that she arrived at the scene in a few minutes; that one of the trainmen, whom she believed had *829 come from the engine, "put his hands up over his face and said, `Lord, what have I done?'."
We have a statute making it a misdemeanor for any person who is not a passenger or employee to "get on or off, or swing or ride on, or hang from the outside of, any engine, train or car while it is in motion or switching, or immediately preceding its moving or switching." KRS 277.250, 277.990. This makes a person doing such things a trespasser as a matter of law although he is known to be on the train. A railroad company is not required to police its trains to protect trespassers from injury. Louisville & N. R. Co. v. Bennett's Adm'r, 207 Ky. 498, 269 S.W. 549. But it is a humanitarian principle of justice that when a party violates a plain and manifest duty to protect human life and limb he will not be heard to say in justification that the person injured was merely a trespasser. And this rule of law that a party owes a negative or passive duty to a trespasser or bare licensee to refrain from injuring him after discovering his presence in a place of danger applies to trespassers on railroad cars. Louisville & N. R. Co. v. Popp, 96 Ky. 99, 27 S.W. 992; Swartwood's Guardian v. Louisville & N. R. Co., 129 Ky. 247, 111 S.W. 305, 19 L.R.A., N.S., 1112, 130 Am. St. Rep. 465; Louisville & N. R. Co. v. Steele, 179 Ky. 605, 201 S.W. 43, L.R.A.1918D, 317; Durbin v. Louisville & N. R. Co., 310 Ky. 144, 219 S.W.2d 995.
Ordinarily, trespassing children occupy the same position as trespassing adults except for special responsibility in case of attractive nuisances. Jones v. Louisville & N. R. Co., 297 Ky. 197, 179 S.W.2d 874, 152 A.L.R. 1259; Gray v. Golden, 301 Ky. 477, 192 S.W.2d 371. But the doctrine of attractive nuisance is not applicable to a moving car or train. Swartwood's Guardian v. Louisville & N. R. Co., 129 Ky. 247, 111 S.W. 305, 306, 19 L.R.A., N.S., 1112, 130 Am. St. Rep. 465. As said in the Swartwood case, "All who venture unbidden by the company and unknown to it upon its trains do so at their own peril, as they can have no right, and the company therefore owes them no duty, in such case. This rule also applies from the very necessity of the matter, without respect to the age or condition of the trespasser, for the court must deal with the question first of legal duty, not compassionable innocence." So the fact that a trespasser is a child does not enlarge his rights or raise any corresponding duty on the other party where no duty existed at all. The duty of a railroad company towards a trespasser, either an immature or mature person, infant or adult, rises only where and when its trainmen actually discover the trespasser exposed to danger and not before. Louisville & N. R. Co. v. Bennett's Adm'r, 207 Ky. 498, 269 S.W. 549, and earlier cases cited therein. When they find him in a situation of peril, there comes into existence the duty of exercising reasonable care under the circumstances to prevent injury. But discovery is not merely of presence but of peril; not of a possibility but of exposure to injury in time to avoid it by the use of the means or resources at hand. Frankfort & C. R. Co. v. Holder's Adm'r, 307 Ky. 11, 209 S.W.2d 722.
In the instant case, the burden was on the administrator to prove that the defendant's employees in charge of the train learned not only of the presence of the boy or his companions on the train, but discovered his exposure to injury in time to have avoided injuring him. We focus our attention upon the evidence which tends to prove this and the failure of the trainmen to protect him or them from harm.
We have the testimony of the little boys that at some indefinite time and place on the train someone on the engine was looking towards them. The undenied testimony that at some indefinite time after the accident but at that place the engineer, in refuting their statement they had never been on the train, stated he had seen them on the train is of doubtful competency under the res gestae rule. See Chesapeake & O. Ry. Co. v. Carter's Adm'r, 243 Ky. 268, 47 S.W.2d 1014. But accepting it in connection with the other testimony, proof is still lacking that any of the train crew saw any of *830 these boys hopping on and off the moving train or doing anything other than riding on the train. They were doing so where the engineer could not have seen them. There is no evidence they were ever seen in any place of danger or in any hazardous position nor in a place where injury was likely to be foreseen or apprehended or where special care and watchfulness should have been exercised to prevent them or the dead boy from exposing himself to grave peril.
In Louisville & N. R. Co. v. Webb, 99 Ky. 332, 35 S.W. 1117, 1120, some boys had been permitted to ride from a station to a water tank in a caboose of a freight train, although the conductor did not learn of the presence of the boy who was injured in the group until after the train was moving. On the return trip to the station, the boys, unknown to the railroad men, rode outside on the car ladders. From such a place the eleven year old Webb boy had jumped and fallen under the wheels of the train. The court held there was no liability on the part of the railroad company. In the course of the opinion it is said:
"He was not carried to a place where danger was naturally to be apprehended, nor was there any evidence that indicated that the infant appellee was so deficient in intelligence, by reason of immature age, or the want of natural capacity, as to render it necessary that especial care and watchfulness should be exercised to prevent him from exposing himself to danger whenever it might become apparent."
And the opinion adds that in order to hold the company liable, it was necessary that the plaintiff should have proved, inter alia, "that the accident that happened there in which he was injured was one that was likely, or might reasonably have been expected to happen to him, in the ordinary or natural course of events".
The facts in Louisville & N. R. Co. v. Bennett's Adm'r, supra, which quotes from the Webb opinion, are of like kind. A judgment for the plaintiff was reversed because a recovery was not warranted.
Other questions raised on the appeal are not reached for we are of opinion the evidence did not prove the boy's tragic death was caused by negligence of the defendant, hence, its motion for a directed verdict should have been sustained. Perhaps on another trial the evidence may be different, but on this record we are constrained to reverse the judgment.
Judgment reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382218/ | 587 P.2d 33 (1978)
Earl Douglas STUART, Jr., Appellant,
v.
The STATE of Nevada, Respondent.
No. 9715.
Supreme Court of Nevada.
December 5, 1978.
Horace R. Goff, Nevada State Public Defender, J. Thomas Susich, Chief Deputy Public Defender, and J. Gregory Damm, Deputy Public Defender, Carson City, for appellant.
Robert List, Atty. Gen., Carson City, William Macdonald, Dist. Atty., and James M. Fallman, Jr. Asst. Dist. Atty., Winnemucca, for respondent.
OPINION
PER CURIAM:
Appellant stands convicted, by jury verdict, of possession of a controlled substance (NRS 453.336) and escape from lawful custody (NRS 212.090). His sole contention in this appeal is that the district court erred by denying his motion to suppress evidence of the contraband.
On September 12, 1975, a Nevada Highway Patrol officer observed a 1969 Ford Galaxie 500 automobile with Oregon license plates near the Button Point interchange on Interstate 80 east of Winnemucca, Nevada. The officer noticed that the trunk lock on the vehicle was missing and stopped the vehicle to ascertain whether it was stolen. The officer approached the vehicle and asked appellant, the driver, for his driver's license and vehicle registration. During this investigation the officer noticed what appeared to be marijuana seeds on the floor in the front seat of the vehicle and detected an odor of marijuana in the car. Appellant was then arrested for possession of a controlled substance.
Appellant contends evidence of the marijuana should have been suppressed because the vehicle was stopped without probable *34 cause and any evidence obtained as a direct result of this unlawful police conduct is inadmissible. We disagree.
NRS 171.123(1) authorizes a police officer to "detain any person whom such officer encounters under circumstances which reasonably indicate that such person has committed ... a crime." Pursuant to this standard, in order to justify a stop and detention, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, lead the officer reasonably to conclude, in light of his experience, that criminal activity may be afoot. See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Jackson v. State, 90 Nev. 266, 523 P.2d 850 (1974).
The officer, in this case, had observed the missing trunk lock and, based upon training he had received at the Highway Patrol Academy, inferred that the vehicle might be stolen.[1] Under these circumstances, we believe the officer's conclusion was reasonable and he was justified in stopping the vehicle for routine questioning and investigation. See Washington v. State, 94 Nev. 181, 576 P.2d 1126 (1978); Jackson v. State, supra. Cf. United States v. Leal, 460 F.2d 385 (9th Cir.1972); People v. Chapman, 34 Cal. App. 3d 44, 109 Cal. Rptr. 840 (1973); People v. Perez, 243 Cal. App. 2d 528, 52 Cal. Rptr. 514 (1966).
Since the officer had lawfully attained the position from which he observed the marijuana in plain view, he had a right to seize it and, therefore, the marijuana was properly admitted into evidence. Woerner v. State, 85 Nev. 281, 453 P.2d 1004 (1969). See State v. Taras, 19 Ariz. App. 7, 504 P.2d 548 (Ariz. App. 1972). Cf. Harris v. United States, 331 U.S. 145, 67 S. Ct. 1098, 91 L. Ed. 1399 (1947).
Accordingly, the district court properly denied appellant's motion to suppress.
Affirmed.
NOTES
[1] The officer's training included classroom instruction on material in an Academy pamphlet entitled "Detection and the Development of Probable Cause in Stolen Automobile Investigations." The pamphlet provided, in pertinent part:
"Evidence of damage to a deck lid, indicating forced entry into the trunk of an automobile, is particularly indicative of irregularity. Certainly few, if any, owners resort to willful damage to gain entry to a locked trunk compartment. This condition is easily recognizable, even at a considerable distance. Occasionally, thieves gain entry to trunk compartments by drilling, punching or forcefully removing or damaging the deck lid, lock cylinder or handle. The damage or complete absence of a trunk cylinder is easily observed and invites suspicion." (Emphasis added.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266901/ | 238 P.3d 855 (2008)
SNAPP (BRIAN)
v.
STATE.
No. 48935.
Supreme Court of Nevada.
July 11, 2008.
Decision Without Published Opinion Affirmed/Vacated/Remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266904/ | 238 P.3d 763 (2010)
STATE
v.
FOBIAN.
No. 101976.
Court of Appeals of Kansas.
September 17, 2010.
Decision Without Published Opinion Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266935/ | 4 F. Supp. 953 (1933)
THE HENRY S.
REED & RICE CO., Inc.,
v.
ADAMS et al.
No. 5795.
District Court, E. D. Virginia.
July 22, 1933.
*954 C. S. Towles, of Reedville, Va., and Kelsey & Jett, of Norfolk, Va., for libelant.
John W. Oast, Jr., of Norfolk, Va., for respondent.
F. J. Dean, Jr., of Norfolk, Va., and Charles Ruzicka, of Baltimore, Md., for intervener.
R. O. Norris, Jr., of Lively, Va., and John W. Oast, Jr., of Norfolk, Va., for cross-libelant Northern Neck Finance Co.
WAY, District Judge.
The libel in this proceeding is against the fishing boat Henry S, a motorboat about 52 feet long, her fishing outfit and equipment, "including three nets and rings and lines thereto, and 400 fishing stakes or poles."
The title to the Henry S was in respondents, R. F. and Carroll Adams, doing business as Adams Brothers, from some time in 1927 until certainly as late as December 13, 1932. On or about December 13, 1932, R. B. Moore, Incorporated, at the instance of Adams Brothers, installed in the Henry S an engine at the contract price of $864. Following the installation Moore executed and delivered to Adams Brothers a writing signed by both parties designated, "Contract of Sale of Goods and Chattels Reserving Title," in an attempt to comply with the provisions of section 5189 of the Code of Virginia as amended by Acts 1923 (Ex. Sess.) c. 159 relating to conditional sales of personal property, where the title thereto is reserved in the vendor until the purchase price is fully paid. This contract purports to transfer conditionally to Adams Brothers title, not only to the engine, but also to "1-50 boat," and "fishing outfit including three nets and equipment."
The evidence signally fails to disclose any prior valid transfer of the Henry S to Moore, so that the attempt of the latter to reserve title to the boat was futile, since that company had never been the owner of the boat and was, therefore, not in a position conditionally to transfer title to any one, much less to Adams Brothers who were already the owners. On account of this and other facts rendering the contract invalid as an instrument reserving title, it is not necessary for the court to determine the relative dignity as between a valid conditional sale contract and maritime liens. The intervener, Northern Neck Finance Corporation, elected to assert a maritime lien against the boat for $764, the balance of the purchase price of the engine.
On December 13, 1932, Moore duly assigned for full value the contract covering the sale of the engine to said Northern Neck Finance Corporation. The delivery and installation of the engine by Moore, and the assignment and transfer of its claim against the boat, engine, and equipment, to the finance corporation are parts and parcels of one transaction, so that the finance corporation, I think, clearly occupies the same position as to the Henry S and its proper equipment which Moore did, unless the finance corporation has by other proceedings on its claim waived its right to assert a maritime lien in this proceeding.
Adams Brothers failed to make the required payments on the engine, and on April 6, 1933, the finance corporation obtained a judgment by confession against them in the circuit court of Northumberland county, on *955 their homestead waiving note for $764, covering the balance of the purchase price of the engine. Execution issued on the judgment, upon which execution the sheriff has made the following return: "May 20, 1933, at the request of the plaintiff the return `no property' is hereby made. J. E. Anderson, Sheriff."
It further appears that respondents, R. F. and Carroll Adams, have filed homestead deeds claiming their respective homestead exemptions in certain property, among which are the nets and poles in question.
At the trial it was urged by libelant, but denied by the finance corporation, that this judgment has been paid, or at least that it is a lien on real estate of ample value to satisfy it in full, without the necessity of the finance corporation asserting any claim against the Henry S, or her equipment, but no evidence was offered by libelant to support that contention.
It was also urged that the finance corporation by taking said proceedings in the state court has waived its right, if any, to assert a maritime lien against the Henry S. The finance corporation has filed exceptions to the libel, urging, among other points, that the three nets and poles are no part of the equipment of the Henry S.
The nets in question are what are ordinarily known as "pound" nets. When libeled the marshal found them in Chesapeake Bay, about three miles off shore, and southeast of the Great Wicomoco Lighthouse. The pound poles referred to are from 48 to 62 feet in length and were driven into the ground to a depth of from 6 to 15 feet. The nets were permanently attached to the poles by rings and other fastenings, for the duration of the fishing season, which usually commences some time in March and lasts for about three months, or until around the middle of June. The Henry S was not used in driving the pound poles and the nets were never delivered to and have never been on her.
During the fishing season respondents used the Henry S for towing a 32-foot boat to and from the nets. This latter boat alone was used for taking fish from the nets and bearing them ashore. At the close of a fishing season it is the regular practice to take these nets and such of the pound poles as are pulled up ashore and to store them there until the fishing season the following year. The work of repairing the pound nets is performed while they are on shore. In the autumn and winter the Henry S was used by Adams Brothers in oystering. Apparently, the Henry S, the three nets, and the poles are all of the property owned and used by respondents, Adams Brothers, in their fishing operations, and the nets referred to in the contract between R. B. Moore, Incorporated, and Adams Brothers, are the same that were libeled in this cause. The 32-foot boat mentioned above does not belong to Adams Brothers and was not attached. In order legally to operate these nets Adams Brothers were required to obtain a license from the Virginia oyster inspector covering the place at which they were located, which license covered a period of 12 months.
The defense that Moore, Incorporated, has been paid for the engine, and consequently that no debt representing the purchase price of the engine now exists, is without merit. The situation on which libelant relies to sustain that contention results solely from Moore's selling and assigning its claim against the vessel for a necessary furnished to and installed therein. The finance corporation, upon taking the assignment and paying Moore the balance due for the engine, assumed the position theretofore occupied by Moore. A complete answer to the contention is that Adams Brothers, the debtors, have paid only $100 of the $864 representing the original purchase price of the engine.
1. Is the finance corporation entitled to assert a maritime lien against the Henry S and her equipment?
It seems to me that this question must be answered in the affirmative. That corporation's assignor furnished and installed in the boat a new engine to replace an old one. That the engine was such a supply or necessary as entitled the person furnishing it to a maritime lien against the boat is not open to debate. And while the finance corporation's assignor attempted unsuccessfully to retain title to the boat and engine pursuant to provisions of the Virginia statute, I can see no sound reason why that act barred Moore or its assignee from claiming a maritime lien on the boat for the value of the engine. The Pearl (D. C.) 189 F. 540; In re Gambrill Mfg. Co. (D. C.) 283 F. 349; The E-270 (D. C.) 16 F.(2d) 1005, engine installed in boat; Ricou & Sons v. Fairbanks, Morse & Co. (C. C. A.) 11 F.(2d) 103, engine and other equipment installed in boat; The Fannie F. Hickey,[1] 1931 A. M. C. 794, 800. And see the comment of the court in The Katherine (D. C.) 15 F.(2d) 387, at page 388.
*956 2. Has the finance corporation, by taking judgment in the state court on the note covering the purchase price of the engine, waived its right to assert a maritime lien against the Henry S?
The finance corporation as a result of the assignment from Moore acquired a promissory note which represented a personal claim against the makers, R. F. and Carroll Adams, and at the same time acquired a lien against the Henry S for the value of a necessary or supply furnished to and installed in that vessel. By pursuing the personal claim the finance corporation has obtained a personal judgment against the makers, but that judgment remains unsatisfied. How may it properly be said that as a result of that unfruitful proceeding the finance corporation has lost its other remedy for the collection of at least a part of its claim by enforcing its lien against the vessel? It would seem that the creditor should be permitted to pursue each of the remedies open to it until it finally collects. In The Eastern Shore (D. C. Md.) 24 F.(2d) 443, 444, the court so held, quoting from the opinion by Judge Benedict in The Brothers Apap (D. C.) 34 F. 352, as follows: "`The only question in the case arises out of the fact that prior to instituting this proceeding the libelant brought suit against the master of the vessel in a state court for these same supplies, in which action he recovered a judgment against the master, but of which judgment he has been unable to obtain any satisfaction. The contention on the part of the claimant is that the libelant lost his lien upon the ship by suing the master as he did. I cannot agree with the claimant in this contention. Upon principle, it seems to me that in cases where a lien upon the ship arises, and also a personal liability on the part of the master and the owner as well, the creditor must be allowed to pursue each of these remedies in succession, until he obtains satisfaction of his debt. That he should be able to do this seems to me to be the reason why these several remedies are given by law. Surely the value of the rule will be largely diminished if it be held that a futile attempt to enforce the master's personal liability deprives the creditor of the benefit of the ship's liability.'"
Libelant relies on The Kalorama, 10 Wall. 204, 218, 19 L. Ed. 941, where the court, referring to the effect of another proceeding then pending for the enforcement of the same claim, said that, "Had the judgment been rendered it might be different." The court in The Eastern Shore Case points out that this expression was a mere dictum and clearly was not intended by the Supreme Court to indicate its views as to what would be the effect of reducing the claim to judgment in the other proceeding.
3. Are the pound nets and poles part of the equipment of the Henry S?
I think it is clear that this question should be answered in the negative. It is true that the decisions have been liberal, holding "not merely those things which are physically material and absolutely necessary to her existence or preservation which are incorporated into her, or used on board" to be necessaries for a vessel, "but also those which a careful and provident owner would provide, to enable her to perform well the functions which, as a maritime agent, she is designed to perform." 1 Benedict On Admiralty, pp. 87-89 and 138-139; The Artemis (D. C.) 53 F.(2d) 672; The Pinthis (C. C. A.) 286 F. 122.
However, no decision has been called to the attention of the court which holds that "necessaries," as used in the statute, includes pound nets and poles operated as those in controversy are shown to have been operated at the time they were attached. Cases holding that seines, seine boats, and purse nets were necessary to enable a fishing vessel properly to perform the functions for which such vessel was designed, are cited on behalf of libelant. The Hiram R. Dixon (D. C.) 33 F. 297, nets furnished to a vessel for the purposes of a menhaden fishing voyage; The Mountaineer (C. C. A.) 286 F. 913, vessel designed and built to be used for purse seine fishing only; The Geisha (D. C.) 200 F. 865, seine boat towed by steamer and used by her on fishing trips; The Sam & Priscilla (D. C.) 275 F. 937, purse seine for catching mackerel, and the same case on appeal, Linen Thread Co. v. Shaw et al. (C. C. A. 1) 9 F. (2d) 17. But I think that the radically different manner in which these pound nets were operated is decisive of the question now under consideration. The owners had set and were operating the nets in stationary and permanent positions. While the pound nets were set, the power of the Henry S was not used to move, manipulate, or handle them. That vessel was used merely as a means of conveying the owners to and from the nets and to tow the smaller boat. The pound nets were not a necessary or even convenient part of the equipment of the Henry S and were never carried aboard her. In the cases last above referred to, the owner was operating a fishing boat as a business, using its power to move, manipulate and handle the nets and *957 seines which were in no way attached to land, but were regularly carried and used by the fishing boat as a part of its equipment. In the instant case each pound net, at the time it was attached, constituted a mechanical fisherman complete in itself and in no way dependent upon the Henry S to aid in capturing fish, while in the cases referred to, the boat itself was the mechanical fisherman and the nets, seines, or seine boats were merely parts of its equipment.
The court's conclusions, therefore, are that the nets and poles do not constitute a part of the equipment of the Henry S; that as to them the libel will be dismissed, and all claims for materials supplied to the nets will be disallowed.
The claims of libelant, Reed & Rice, Incorporated, and interveners for materials supplied or repairs made to the Henry S will be allowed.
The claims filed by or on behalf of seamen for wages earned while working on the Henry S will be allowed in the amounts shown by the testimony of the respondent R. F. Adams, with leave for such claimants, in case they desire to contest the correctness of the amounts testified to be due them by said respondents, to offer additional testimony on that question.
Upon presentation, an order in conformity with the foregoing conclusions will be entered.
NOTES
[1] Commissioner's report. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266960/ | 4 F. Supp. 727 (1933)
THE G. W. GLENN.
BROWN
v.
DONOHO et al.
No. 1380.
District Court, D. Delaware.
September 19, 1933.
*728 Ward & Gray, of Wilmington, Del., and George P. Whip, of Baltimore, Md., for libelant.
John Biggs, Jr., of Wilmington, Del., and Melvin Hopkins, of Dover, Del., for respondents.
NIELDS, District Judge.
This is a libel by Isaac R. Brown, Jr., ancillary administrator of the personal estate of Kirvan S. Phillips, deceased, against Benjamin Donoho and Hiram B. Donoho, as owners of the schooner or motorboat G. W. Glenn, to recover damages for the death of Phillips. It is filed under the provisions of the Merchant Marine Act of 1920, § 33, commonly known as the Jones Act [USCA title 46 § 688], and is based upon the alleged negligence of defendants.
April 14, 1930, Phillips, a sixteen year old lad of Cambridge, Md., was employed as a deck hand on the oyster schooner G. W. Glenn by her master, John R. Hardy. The Glenn was over 50 feet long and was equipped with sails, an auxiliary gasoline engine, and another gasoline engine called a "winder" with which to draw the oyster dredges aboard. The crew consisted of four seamen and a cook, including Phillips. The Glenn had been dredging a week and at sunrise on April 23, 1930, sailed from Mahon's Ditch back to Silver Bed on Oyster Rock in the Delaware river 1¼ miles from the Delaware shore. At 9 o'clock that morning the dredges were drawn aboard, and the crew had "early dinner" while the cook at the wheel held the schooner above the oyster bed. The weather was fair, the wind blowing north northwest, the tide ebbing, and the sea rather rough. About 9:20 the captain resumed the wheel and was bringing the schooner back for dredging. She was proceeding under full sail in a west southwesterly direction and making six knots an hour. Three of the seamen were on deck trimming oysters. Phillips was shoveling oysters aft on the port side of the schooner, and as he passed the port side of the wooden casing about the winder there was a loud explosion from the exhaust of the winder, and Phillips went over the low rail with his shovel into the river. Captain Hardy at the wheel faced Phillips. With apparent candor he explained the accident on the witness stand in these words: "Well, it could have been an urge of the sea, or made a misstep, or low railing, and it could have tripped him that way."
The only life-saving equipment provided by the owner was a lifeboat. As is customary, the lifeboat of the Glenn was suspended from davits overhanging her stern. At the time of the accident it was lashed to a davit so that the stern of the boat could not be lowered into the water. The lifeboat was raised or lowered by operating a rope or davit fall carried through the pulleys of 4 blocks 2 blocks at the bow and 2 at the stern. At the stern the upper block is hooked to the davit and the lower block is hooked to an eyebolt in the bottom of the lifeboat. This eyebolt in the bottom was missing and a loop of rope had been substituted. The rope loop was insufficient and unsafe. To secure the stern of the lifeboat after it was raised to the davit, the rope or davit fall was carried through a hole bored in the lifeboat and then carried around the davit and tied in a hard or "granny" knot.
With this equipment and a man overboard, Captain Hardy gave the usual alarm. He shouted to lower the jib. He threw a rope to the boy. He joined the three seamen and cook in a futile effort to lower the lifeboat. A seaman at the stern davit obtained a knife from the cook and cut the davit fall. The stern of the lifeboat then dropped within a foot of the water, but a knot in the rope jammed the pulley. With the bow of the lifeboat in the water and the stern suspended above the water, the boat capsized and a seaman in the boat with difficulty clambered aboard. However, the lifeboat had only half of one oar, so that if she had floated there was no equipment provided for navigating her. The schooner covered 100 yards before the captain headed her about. There was additional delay in lowering the sail and starting the auxiliary engine. Ten minutes elapsed before the schooner was back where the lad went overboard. When asked why it took ten minutes to get back, a seaman testified: "This fooling with the lifeboat and the sails too, and then we had to go down and start the engine." Meanwhile the "hollering" of Phillips was heard on board the schooner. He was a poor swimmer and was handicapped with very heavy clothing. After keeping afloat for three minutes or longer he sank, and his body was recovered some weeks later. When asked *729 whether there was not some one aboard that had the heart to get out after the boy, another seaman testified, "They had nothing to get after him with."
The libel charges that the death of Phillips resulted from an injury due to "negligence on the part of the respondents, their agents, servants and/or employees" in providing a lifeboat that was defective, improperly carried, and not supplied with adequate oars; in not providing life preservers; and in furnishing a gasoline engine for winding the oyster dredge so defective that "the head blew off and went through the wooden covering" so that one or more pieces of said covering striking the deceased caused him to go overboard. The libel also charges that the Glenn was in an unseaworthy condition. By their amended answer respondents (1) deny the charge of negligence, and (2) for further answer aver that at the time of the injury to Phillips respondents were not and never had been the beneficial owners of the Glenn, but were only mortgagees out of possession; that John R. Hardy was both master and beneficial owner hiring the crew and having sole use and control of the schooner. Both defenses will receive consideration.
Section 33 of the Jones Act (46 USCA § 688), under which the libel was brought, provides that in case of the death of a seaman, as the result of an injury in the course of his employment, his personal representatives may maintain an action for damages, and in such action, all statutes of the United States conferring or regulating the right of action for death in case of railway employees shall be applicable. The Federal Employers' Liability Act [45 USCA § 51] is such a statute and provides that every common carrier by railroad shall be liable in damages in case of death of the employee resulting in whole or in part from negligence of any of the officers, agents, or employees of the carrier. The Federal Employers' Liability Act makes negligence the basis of a railroad's liability. Section 33 of the Jones Act extends to the personal representatives of a seaman, incurring personal injuries in the course of his employment which result in his death, the rights accorded by federal law to railway employees. Section 33 of the Jones Act is the death statute affording relief to the beneficiaries of a seaman whose death results from an injury occasioned by negligence and suffered within a league of the shore.
Quite recently the Supreme Court has ruled that the Jones Act should be liberally construed. "The rule that statutes in derogation of the common law are to be strictly construed does not require such an adherence to the letter as would defeat an obvious legislative purpose or lessen the scope plainly intended to be given to the measure. * * * The act is not to be narrowed by refined reasoning or for the sake of giving `negligence' a technically restricted meaning. It is to be construed liberally to fulfill the purposes for which it was enacted, and to that end the word may be read to include all the meanings given to it by courts, and within the word as ordinarily used." Jamison v. Encarnacion, 281 U.S. 635, 640, 50 S. Ct. 440, 442, 74 L. Ed. 1082. "This court has held that the act is to be liberally construed in aid of its beneficent purpose to give protection to the seaman and to those dependent on his earnings." Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 375, 53 S. Ct. 173, 176, 77 L. Ed. 368.
The duty to rescue a seaman overboard is a duty of the ship and of the owner under the general maritime law of the sea. "There is little doubt that rescue is a duty when a sailor falls into the sea." Cortes v. Baltimore Insular Line, Inc., supra. "Equally clear is the obligation upon the part of the ship to save the life of a sailor who falls overboard through a misadventure, not uncommon in his dangerous calling. It is absurd to admit the duty to extend aid in the lesser emergency [seaman's illness], and to deny it in the greater. In both cases, it is implied in the contract that the ship shall use every reasonable means to save the life of a human being who has no other source of help. The universal custom of the sea demands as much wherever human life is in danger. The seaman's contract of employment requires it as a matter of right." Harris v. Pennsylvania Railroad Co. (C. C. A.) 50 F.(2d) 866, 868; Salla v. Hellman (D. C.) 7 F.(2d) 953. "There appears to be recognized a further duty on the part of a ship to its sailors, to make all reasonable efforts to rescue them if they fall overboard from any cause whatsoever. And it would appear that this is a not improper extension of the ship's duty. The very nature of the employment is one subjecting the sailor to grave risk of just such peril, and his helplessness and the master's ability to protect him, is manifest." Bohlen's Studies in the Law of Torts, 312. Mr. Justice Field, charging a jury in a manslaughter case back in 1864, said: "Now, in the case of a person falling overboard from a ship at sea, whether passenger or seaman, when he is not killed by the fall, there is no question as to the duty of the commander. He is bound, both by law *730 and by contract, to do everything consistent with the safety of the ship and of the passengers and crew, necessary to rescue the person overboard, and for that purpose to stop the vessel, lower the boats, and throw to him such buoys or other articles which can be readily obtained, that may serve to support him in the water until he is reached by the boats and saved. No matter what delay in the voyage may be occasioned, or what expense to the owners may be incurred, nothing will excuse the commander for any omission to take these steps to save the person overboard, provided they can be taken with a due regard to the safety of the ship and others remaining on board. Subject to this condition, every person at sea, whether passenger or seaman, has a right to all reasonable efforts of the commander of the vessel for his rescue, in case he should by accident fall or be thrown overboard." United States v. Knowles, 26 Fed. Cas. 800, 802, No. 15,540.
The duty of the ship and owner to rescue a seaman overboard necessarily implies the duty to provide the means of rescue. Normally these means include an effective lifeboat, available life preservers, or life rings. Applying this law to the facts, I find that the owner of the Glenn violated the provision of the Jones Act recited above by neglecting to provide proper means to discharge the duty to rescue Phillips.
It may be objected that the Federal Employers' Liability Act (45 USCA §§ 51-59) imposes its limitations upon the Jones Act and that the duty to rescue does not apply to railroads. Or it may be objected that the duty to rescue a seaman overboard arises from the seaman's contract of employment; such duty being contractual and not delictual cannot be within the act affording a remedy for negligence. The Supreme Court disposes of both of these objections in the following passages from Cortes v. Baltimore Insular Line, Inc., supra:
"We think the origin of the duty [cure of seaman] is consistent with a remedy in tort, since the wrong, if a violation of a contract, is also something more. The duty, as already pointed out, is one annexed by law to a relation, and annexed as an inseparable incident without heed to any expression of the will of the contracting parties. For breach of a duty thus imposed, the remedy upon the contract does not exclude an alternative remedy built upon the tort. The passenger in a public conveyance who has been injured by the negligence of the carrier, may sue for breach of contract if he will, but also at his election in trespass on the case. * * * We do not read the act for the relief of seamen as expressing the will of Congress that only the same defaults imposing liability upon carriers by rail shall impose liability upon carriers by water. The conditions at sea differ widely from those on land, and the diversity of conditions breeds diversity of duties. * * * There is doubt, and that substantial, whether the administrator of a railroad engineer who by misadventure has fallen from his locomotive while the train is on a bridge has a cause of action under the Federal Employers' Liability Act (45 USCA §§ 51-59) because of the failure of the crew of the train to come to the rescue of their comrade. Harris v. Penn. R. Co. (C. C. A.) 50 F.(2d) 866, 868. There is little doubt that rescue is a duty when a sailor falls into the sea, United States v. Knowles, 4 Sawy. 517, Fed. Cas. No. 15,540, and that a liability to respond in damages is cast upon the shipowners if he is abandoned to his fate. Harris v. Penn. R. Co., supra.
"The act for the protection of railroad employees does not define negligence. It leaves that definition to be filled in by the general rules of law applicable to the conditions in which a casualty occurs. * * * Congress did not mean that the standards of legal duty must be the same by land and sea. Congress meant no more than this, that the duty must be legal, i. e., imposed by law; that it shall have been imposed for the benefit of the seaman, and for the promotion of his health or safety; and that the negligent omission to fulfill it shall have resulted in damage to his person. When this concurrence of duty, of negligence and of personal injury is made out, the seaman's remedy is to be the same as if a like duty had been imposed by law upon carriers by rail."
The second defense arises from certain facts not unfamiliar in maritime dealings but somewhat misunderstood after this libel was filed. The records of the Custom House at Wilmington, Del., where she was registered, show that the schooner Glenn was conveyed December 22, 1928, by Z. S. Mears to John R. Hardy for a consideration of $2,800. On the same day a mortgage in like amount was given by Hardy to Mears. August 27, 1929, Hardy reconveyed the schooner to Mears. On September 6, 1929, a satisfaction of the mortgage from Hardy to Mears was recorded, and on November 21, 1929, Mears conveyed the vessel to the respondents, the consideration given in the transfer record in the office of the collector of customs being $5 and other valuable consideration. As to the circumstances *731 under which he became possessed of the schooner, Captain Hardy testified: "I bought her and did not pay for her. I had a mortgage on her. I wanted that mortgage lifted, and he did, and I could not lift it, and I did not have all the money, and I went to Donoho & Son and asked them if they would take this mortgage of $1800., which they did, to save me from losing mine, because I would have lost all, and they simply took a bill of sale on it to protect themselves, and they were in no benefit of the proceeds, I kept the balance of the money, and of course, I was to pay that back." Hiram B. Donoho, one of the respondents, testified that he loaned $1,800 to Captain Hardy to pay off the mortgage on the Glenn given by Hardy to Mears, such payment being necessary to save to Hardy the money he had already invested in the boat. "Jack was going to lose his money and that was all that he had in the world and I came to his rescue." Neither of the respondents engaged Hardy as master, hired any of the crew, furnished any of the food and supplies, or had anything whatever to do with her navigation and operation.
At the time of the accident the schooner was registered in the United States Custom House in Wilmington, Del. Incident to this registration a "Managing Owner's Oath," signed "Hiram B. Donoho, Managing Owner," and verified by him, was filed. This document recites that John R. Hardy "is at present Master" and that the schooner "is wholly the property of citizens of the United States of America owning and residing as follows: Benjamin Donoho, Dover, Delaware, Hiram B. Donoho, Dover, Delaware Managing Owner." April 29, 1930, six days after the accident, a "report of casualty" was filed in the Custom House, signed by John R. Hardy. This report gives the name of the master as "John R. Hardy, Little Creek, Del.," and the names of the owners as "H. B. Donoho and Benjamin Donoho."
The libel was filed April 13, 1931. April 30, 1931, respondents filed their answer, verified by Benjamin Donoho. The libel having alleged in paragraph 2 that the respondents were "the owners of the auxiliary schooner or motor boat G. W. Glenn," the answer stated, "As to the allegations of the second paragraph of the said libel, the same are admitted." The answer concludes: "Wherefore, the said Benjamin Donoho and Hiram B. Donoho, owners of the said Glenn as aforesaid * * * pray that the said libel against them and against the said Glenn be dismissed," etc. Afterwards and before the case came on for trial, the respondents by leave of the court filed an amended answer with an affidavit of one of the proctors for respondents. The amended answer admits that the legal title to the schooner "is and was registered in the names of the respondents," but denies that respondents are "the equitable and beneficial owners" of the vessel. The affidavit of the proctor for respondents attributes the admissions in the first answer to the fact that respondents "did not inform him, until after the said answer had been filed, the said John R. Hardy, master of the `Glenn,' was a gratuitous bailee of him, the said Hiram B. Donoho, and that he had given the said `Glenn' to the said John R. Hardy without consideration for the balance of the oyster season."
It is clear that the Glenn was transferred to respondents by Hardy as security for a loan of $1,800 by the Donohos to Hardy to pay off a mortgage on the vessel, and that the Donohos took title to the vessel as security for the repayment of this loan. In other words, respondents were mere mortgagees out of possession. It is true that a bill of sale was given to the Donohos by Hardy and recorded and that on the records of the Custom House the Donohos appear as "owners." But the recording of the bill of sale in the Custom House was necessary whether it was an absolute transfer or as security. There must be some conduct other than the registry of title in their name to estop respondents to deny that they are owners. Morgan's Assignees v. Shinn, 15 Wall. 105, 21 L. Ed. 87; 24 Rawle C. L. §§ 100, 101.
The uncontradicted testimony is that Captain Hardy hired the members of the crew, including Phillips, equipped the vessel with food and supplies, received all income from the operation of the vessel, and was at all times in absolute possession and control of her. The proof establishes that Captain Hardy was sole owner of the Glenn.
The libel must be dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1726549/ | 465 So. 2d 634 (1985)
Dennis RIVERS, Appellant,
v.
SCA SERVICES OF FLORIDA, INC. and Hartford Insurance Group, Appellees.
No. AZ-303.
District Court of Appeal of Florida, First District.
March 21, 1985.
Rehearing Denied April 10, 1985.
Ben R. Patterson of Patterson & Traynham, Tallahassee, for appellant.
*635 James N. McConnaughhay of Karl, McConnaughhay, Roland & Maida, P.A., Tallahassee, for appellees.
MILLS, Judge.
Rivers appeals from a workers' compensation order determining average weekly wage (AWW) and denying attorney's fees. He contends the deputy erred in calculating AWW pursuant to Section 440.14(1)(b), Florida Statutes (1983), and in denying attorney's fees based on the employer/carrier's alleged bad faith. We agree on both issues and reverse.
The deputy calculated AWW for the period following the industrial accident of 8 August 1983 based on the wages of a similar employee as provided in Section 440.14(1)(b). He found Rivers did not work for the 13 weeks preceding the industrial accident.
The wages of a similar employee should be used to determine AWW only if the injured employee has not worked "during substantially the whole of 13 weeks immediately preceding the injury." Section 440.14(1)(b). "Substantially the whole of 13 weeks" is defined in Section 440.14(1)(a), Florida Statutes (1983), as "not less than 90 percent of the total customary full-time hours of employment within such period considered as a whole."
Although Rivers worked less than 90 percent of the total working days within the 13 week period, the record shows he worked more than 90 percent of the total customary full-time hours of employment within the 13-week period. The deputy should have calculated AWW pursuant to Section 440.14(1)(a) rather than Section 440.14(1)(b).
Rivers' claim for attorney's fees was denied based on the deputy's finding that the employer/carrier did not act in bad faith. Among other things, Rivers contends the denial was premature because the deputy did not conduct a separate factfinding proceeding before deciding the issue.
Section 440.34(3)(b), Florida Statutes (1983), does not require a separate hearing on entitlement to attorney's fees based on bad faith, but only that entitlement be specifically litigated as a separate issue with factual evidence presented going directly to that issue. The deputy may not infer bad faith, or lack of bad faith, from general testimony. Veterans Septic Tank Service v. Wallace, 445 So. 2d 389 (Fla. 1st DCA 1984); Embry-Riddle Aeronautical University v. Vestal, 399 So. 2d 1033 (Fla. 1st DCA 1981).
Here, the issue was never separately litigated with factual evidence going directly to it. The fee denial must be reversed and remanded for further hearing.
Reversed and remanded for proceedings consistent with this opinion.
JOANOS and BARFIELD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1436475/ | 181 Ariz. 235 (1995)
889 P.2d 28
Cary D. PEARSON, Plaintiff-Appellant,
v.
MOTOR VEHICLE DIVISION, Arizona DEPARTMENT OF TRANSPORTATION, Defendant-Appellee.
No. 1 CA-CV 94-0140.
Court of Appeals of Arizona, Division 1, Department C.
January 12, 1995.
Reconsideration Denied February 1, 1995.
Grant Woods, Atty. Gen. by Peter C. Gulatto, Asst. Atty. Gen., Phoenix, for defendant-appellee.
Mark S. Whitney, Mesa, for plaintiff-appellant.
OPINION
VOSS, Judge.
Appellant Cary D. Pearson appeals the superior court's judgment affirming the suspension of his driver's license by the Arizona Department of Transportation Motor Vehicle Division (ADOT). We have jurisdiction pursuant to Arizona Revised Statutes Annotated (A.R.S.) section 12-120.21(A)(1) (1989) and affirm.
*236 FACTS AND PROCEDURAL HISTORY
On the night of December 30, 1992, an Arizona Department of Public Safety officer observed Appellant's vehicle fail to yield the right of way when pulling out of a parking lot, causing other vehicles to take evasive action. The vehicle then proceeded down the street, weaving in traffic. This prompted the officer to make a traffic stop. Once Appellant's vehicle was stopped, the officer observed Appellant and the passenger lean forward inside the vehicle. The officer approached Appellant and asked what he was doing while leaning forward. Appellant responded that he was hiding the beer. The officer smelled liquor on Appellant's breath and Appellant admitting having consumed between eight and ten drinks. After Appellant stepped out of the vehicle, the officer observed Appellant to be unsteady on his feet. Appellant then refused to take a field sobriety test, and he was arrested and transported to the East Valley Task Force DUI command post.
At the command post, the officer read the DUI Implied Consent Affidavit to Appellant and then asked him to take a breath intoxilyzer test. Appellant refused. The officer informed him that refusing to take the test would result in a suspension of his driver's license for twelve months. Appellant still refused to take the breath intoxilyzer test.
As a result, the officer suspended Appellant's driver's license and required him to surrender it. The officer then filled out a certified report, which later was filed with ADOT, stating:
On [December 30, 1992, at 10:55 p.m.] ... I had reasonable grounds to believe the person named had been driving or was in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs. Among the actions which led me to that belief were: failed to yield from a private drive, weaving from left to right in traffic. (Emphasis added.)
The report gave Appellant notice that he could request a hearing within fifteen days. Appellant timely requested a hearing.
At the hearing, Appellant challenged the suspension of his license. He argued that the report did not comply with A.R.S. section 28-691(D) (1989) because it failed to set forth reasonable grounds to believe that Appellant was driving under the influence of intoxicating liquor. The hearing officer rejected Appellant's argument and concluded that the observations contained in the report and presented in the hearing constituted reasonable grounds to believe that Appellant was driving under the influence of liquor. The suspension of Appellant's driver's license was affirmed.
Appellant filed a Petition for Judicial Review of Final Administrative Decision to superior court, which affirmed the suspension. On appeal to this court, Appellant argues that the superior court misinterpreted and incorrectly applied A.R.S. section 28-691(D).
STANDARD OF REVIEW
Statutory interpretation involves a question of law. Siegel v. Arizona State Liquor Bd., 167 Ariz. 400, 401, 807 P.2d 1136, 1137 (App. 1991). Our review, therefore, is de novo. Blum v. State, 171 Ariz. 201, 204, 829 P.2d 1247, 1250 (App. 1992).
DISCUSSION
Appellant argues that because the report described observations concerning only the vehicle and not about Appellant's condition, it did not contain reasonable grounds to believe that he was operating a vehicle under the influence of intoxicating liquor or drugs. Therefore, Appellant concludes that the report did not comply with the requirements of A.R.S. section 28-691(D). We agree.
A.R.S. section 28-691 provides:
D. If a person under arrest refuses to submit to the test designated by the law enforcement agency ... none shall be given.... However, the law enforcement officer directing administration of the test shall file a certified report of the refusal with [ADOT] and serve, on behalf of [ADOT], an order of suspension on the person which is effective fifteen days after that date.... The officer shall forward the report of refusal ... to the motor vehicle division [of ADOT] within five days after the issuance of the notice of suspension. *237 The certified report ... shall state the officer's reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor or drugs. ...
....
G. A timely request for a hearing also operates to stay the suspension until a hearing is held.... The scope of the hearing for the purposes of this section shall include only the issues of whether a law enforcement officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor or drugs....
(Emphasis added.)
As a threshold matter, we recognize that this statute was amended in 1987.[1] Prior to the 1987 amendment, suspensions were made by ADOT after receiving reports from law enforcement officers. Once amended, however, the statute empowered officers to suspend licenses at the time drivers refused to take drug or liquor tests. Thus, the legislature intended to promptly suspend the licenses of drivers who did not consent to drug or liquor tests. See Minutes of Arizona State Senate Committee on the Judiciary, H.B. 2273, at 14-16 (April 7, 1987) cited in Schade v. Department of Transp., 175 Ariz. 460, 462, 857 P.2d 1314, 1316 (App. 1993). As part of this expedited process, the legislature also amended A.R.S. section 28-691(D) so that certified reports are required to "state the officer's reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor or drugs...." A.R.S. § 28-691(D). Although the plain language of the statute makes it mandatory that the report contain reasonable grounds, it stops short of requiring that the report list all reasonable grounds. Therefore, at issue here is whether the certified report contained reasonable grounds to believe that Appellant was driving his vehicle under the influence of drugs or liquor.
The Arizona Supreme Court has defined "reasonable grounds" as "facts and circumstances which would warrant the same belief in a prudent person." See Barrett v. Thorneycroft, 119 Ariz. 389, 391, 581 P.2d 234, 236 (1978). Moreover, this court has added that officers have reasonable grounds to believe a person has been driving under the influence of intoxicating liquor when they have enough evidence to demonstrate the probability of intoxication. See Smith v. Department of Transp., 146 Ariz. 430, 432, 706 P.2d 756, 758 (App. 1985).
Here, no observations about Appellant's condition were included in the report. It merely contained the officer's description of the vehicle that it failed to yield to traffic, and that it weaved while driving down the street. Alone, these observations are insufficient evidence to demonstrate the probability of Appellant's intoxication to a reasonable person; indeed, they could just as easily indicate the probability of fatigue, a medical problem, or even a driver's inattention. Therefore, we hold that a description or reference to a driver's condition is required to establish reasonable grounds to believe that a person was driving under the influence of liquor or drugs. Because no such description or reference was included in the officer's report, the report erroneously failed to state reasonable grounds in violation of A.R.S. section 28-691(D).
We now examine the effect of such an error. Although Appellant argues that this *238 error is jurisdictional, he offers no authority for such a proposition and we have found none. Therefore, we consider whether this error was reversible or harmless.
The Arizona Supreme Court has held that driver's license "suspension proceedings are civil in nature and are therefore governed by the rules of civil procedure." Campbell v. Superior Court, 106 Ariz. 542, 550, 479 P.2d 685, 693 (1971). Rule 61, Arizona Rules of Civil Procedure, defines harmless error and provides:
No error or defect ... in anything done or omitted by ... any of the parties is ground[s] ... for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.
Rule 61 is consistent with Article 6, section 27 of the Arizona Constitution, which provides in pertinent part: "[n]o cause shall be reversed for technical error in pleadings or proceedings when upon the whole case it shall appear that substantial justice has been done."
Here, Appellant was not prejudiced and substantial justice was done, despite the error in the report. First, we note that A.R.S. section 28-691(D) does not require that the report containing reasonable grounds be given to the driver. Rather, it only requires that the report to be sent to ADOT. Moreover, if a driver requests a hearing, the scope of the hearing is not whether the report listed the officer's reasonable grounds, but rather whether the officer had reasonable grounds. A.R.S. § 28691(G). Within this statutory scheme, a technical error in a report prepared solely for the purposes of ADOT is hardly prejudicial to a driver, especially when a driver can, and does, challenge the reasonable grounds in a hearing.[2]
Second, the evidence produced at the hearing demonstrated that the officer had reasonable grounds to believe that Appellant was driving under the influence of intoxicating liquor. The officer testified that he smelled liquor on Appellant's breath, that Appellant admitted having between eight and ten drinks, and that Appellant swayed slightly while standing. Moreover, Appellant had the opportunity to cross-examine the officer and to present witnesses to refute the officer's testimony. Erroneously failing to list these reasonable grounds in the report did not prejudice Appellant. Accordingly, such error was harmless.
Finally, we note that our conclusion today furthers the policies underlying A.R.S. section 28-691: to remove from Arizona highways those drivers who may be a menace to themselves and others because of intoxication; to assure prompt revocation of the licenses of dangerous drivers; and to increase the certainty that impaired drivers are penalized even if they refuse to provide evidence of intoxication. Schade, 175 Ariz. at 462, 857 P.2d at 1316; see also Minutes of Arizona State Senate Committee on the Judiciary, H.B. 2273, at 14-16 (April 7, 1987); Campbell, 106 Ariz. at 546, 479 P.2d at 689.
CONCLUSION
Although the report violated A.R.S. section 28-691(D) because it did not contain the officer's reasonable grounds to believe that Appellant was driving under the influence of intoxicating liquor, the violation here was harmless error. Accordingly, we affirm the trial court's judgment affirming ADOT's suspension of Appellant's driver's license.
EHRLICH, P.J., and WEISBERG, J., concur.
NOTES
[1] In pertinent part, former A.R.S. section 28-691 provided:
D. The department, upon the receipt of a report ... that there are reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor or drugs and that the person had refused to submit to the test, shall suspend for a period of twelve months his license or permit to drive....
....
E. [The driver may request a hearing and] [t]he scope of such hearing for the purposes of this section shall cover the issues of whether a law enforcement officer had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor or drugs....
[2] Appellant does not argue that his due process rights are violated by A.R.S. section 28-691. The Arizona Supreme Court has stated that Arizona's implied consent statutory scheme, prior to the 1987 amendments, is consistent with due process. Barrett v. Thorneycroft, 119 Ariz. 389, 393, 581 P.2d 234, 238 (1978) (citing State v. Parra, 119 Ariz. 201, 580 P.2d 339 (1978)). Because the amended statute affords drivers no less notice, still provides drivers with the right to a hearing, and also issues drivers a temporary driving permit during the pendency of the suspension proceedings, it does not implicate due process. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382324/ | 538 S.E.2d 900 (2000)
245 Ga. App. 821
NOWLIN
v.
DAVIS et al.
No. A00A0921.
Court of Appeals of Georgia.
September 8, 2000.
Glenville Haldi, for appellant.
Giddens, Davidson & Mitchell, Atlanta, Earl A. Davidson, Regina E. McMillan, Riverdale, for appellees.
MILLER, Judge.
Valesta Faye Nowlin contracted to sell certain land to Pamela Davis for $24,000 with the transaction to close on or before March 13, 1996. On March 8, Davis called Nowlin and offered to bring over the money immediately *901 to close the transaction, but Nowlin adamantly refused, claiming (despite Davis's protests) that the contract had already expired. Thereafter Nowlin refused to take Davis's calls. A jury awarded Davis specific performance, and judgment was entered accordingly. Nowlin enumerates the denial of her motion for new trial, arguing that the contract was indefinite and that tender was not waived. We disagree and affirm.
1. A party seeking specific performance of a real estate contract must show that the terms of the contract are definite and specific as to subject matter, purpose, parties, and consideration, and even as to the time and place of performance where these are essential.[1] Although the written contract here was definite and specific as to all essential elements, Nowlin argues that because Rob Williams, Sr. was added to the suit as a plaintiff,[2] the contract thereby became indefinite as to parties. The procedural act of adding a plaintiff to the suit did not in any way change the terms of the contract at issue.
Moreover, Williams was added as a result of Nowlin asserting the affirmative defense that Williams was an indispensable party, pursuant to which Nowlin moved to dismiss the suit at trial. To resolve the issue, Davis moved to amend the complaint to add Williams as a party, which the court permitted. "[A] party will not be heard to complain of error induced by his own conduct, nor to complain of errors expressly invited by him during the trial of the case."[3]
2. Nowlin next claims that Davis never formally tendered the $24,000 to her nor showed that she had the money in hand. It is true that to be entitled to specific performance on a real estate contract, the purchaser must make an unconditional tender of the purchase money due.[4] This tender is excused or waived where the seller, by conduct or declaration, proclaims that if a tender should be made, acceptance would be refused.[5] The law does not require a futile tender or other useless act.[6] Here Davis testified that she had the money and that she told Nowlin she wanted to bring it to Nowlin; Nowlin refused, adamantly declaring that the contract had expired. A formal tender was thereby waived or excused.
Nowlin further claims that Davis failed to show that she had the money available for tender at the time of trial. This means nothing. Once the right to acquire the real property is established by the tender waiver, no additional tenders need be shown to preserve that right.[7] Moreover, Davis showed at trial that the money was still available.
3. In her final enumeration of error, Nowlin claims that the court erred in failing to rule on her post-trial motion to terminate Davis's right to purchase the property. In that motion Nowlin claimed Davis failed to tender the money within the 30 days following the verdict, as required by the judgment. Although Nowlin filed this motion simultaneous with other post-trial motions, at the post-trial motions hearing she failed to raise the issue. It was the duty of her counsel to invoke a final ruling, and counsel's failure to do so precludes our review.[8]
Judgment affirmed.
POPE, P.J., and MIKELL, J., concur.
NOTES
[1] Williams v. Manchester Bldg. Supply Co., 213 Ga. 99, 101(1), 97 S.E.2d 129 (1957).
[2] Williams was the real estate agent signing for the broker in the contract at issue.
[3] (Citations and punctuation omitted.) Clark v. Stafford, 239 Ga.App. 69, 72(2), 522 S.E.2d 6 (1999).
[4] Smith v. Standard Oil Co., 226 Ga. 339, 340(1), 175 S.E.2d 14 (1970).
[5] Id.; Holden v. Smith, 236 Ga.App. 205, 208-209, 511 S.E.2d 569 (1999).
[6] Jackson v. Southern Pan &c. Co., 260 Ga. 150, 151(1)(b), 390 S.E.2d 393 (1990).
[7] Cf. Gallogly v. Bradco, Inc., 260 Ga. 311(1), 392 S.E.2d 529 (1990).
[8] McGuire v. Norris, 180 Ga.App. 383, 385(2), 349 S.E.2d 261 (1986). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2573838/ | 210 P.3d 762 (2007)
RENO DISPOSAL
v.
CASTAWAY TRASH HAULING.
No. 44997.
Supreme Court of Nevada.
November 8, 2007.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3353091/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM
On August 28, 1998, the plaintiff, Joseph Santone, filed a two-count amended complaint against the defendants, Huntington Condominium Association (Huntington) and Consolidated Management Services, Inc (Consolidated). This action arises out of injuries and losses allegedly sustained as a result of the defendants initiating a foreclosure action against the plaintiff on January 16, 1996 for the nonpayment of common CT Page 9243 charges and assessments allegedly due Huntington. It was alleged in the January, 1996 action that the plaintiff, as possessor of the property, was responsible for these payments.1
In the present action, count one of the complaint alleges vexatious litigation against Huntington for bringing the foreclosure action against the plaintiff without a good faith basis and with the intent to annoy and unjustly trouble the plaintiff. Count two of the complaint alleges intentional infliction of emotion distress against both Huntington and Consolidated for mental distress resulting from the defendants unjustly bringing the foreclosure action against him.
On March 7, 2002, the defendants filed a motion for summary judgment as to both counts of the complaint, accompanied by a memorandum in support. On April 4, 2002, the plaintiff filed a memorandum in opposition.
DISCUSSION
"Practice Book [§ 17-49] provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law . . . In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Cunha v. Colon, 260 Conn. 15, 18 n. 6,792 A.2d 832 (2002). "[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred. . . . A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case." (Brackets in original; citation omitted; internal quotation marks omitted.) Buell v. Greater New YorkMutual Ins., 259 Conn. 527, 556, 791 A.2d 489 (2002).
A. Count One
The defendants move for summary judgment as to count one on the ground that the plaintiff "cannot satisfy the elements of vexatious litigation". (Defendant's Motion for Summary Judgment, p. 1). The defendants argue that the plaintiff cannot show either that the defendants acted without probable cause when they brought the foreclosure action or that the foreclosure action was terminated in the plaintiff's favor, as required to substantiate a vexatious litigation claim. (Defendant's Memorandum of Law in Support of Motion for Summary Judgment, pp. 4-6). The defendants argue that there is no genuine issue of material fact and that they are entitled to judgment as a matter of CT Page 9244 law.
The plaintiff counters that he has set forth triable issues of material fact on each element of the cause of action. He argues that his amended complaint and supporting documentation demonstrate that the defendants brought the foreclosure action against him maliciously and without probable cause and that the action was withdrawn by the defendants in the plaintiffs favor. (Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment, p. 2). Therefore, he argues that summary judgment should be denied because there exist genuine issues of material fact.
In a vexatious litigation action, "it is necessary to prove want of probable cause, malice and a termination of [the] suit in the plaintiffs' favor." (Brackets in original; internal quotation marks omitted.) QSP,Inc. v. Aetna Casualty Surety Co., 256 Conn. 343, 361, 773 A.2d 906
(2001).
1. Probable Cause
The defendants claim that circumstances warranted the initiation of the foreclosure proceedings against the plaintiff. In support, they offer condominium records revealing that the subject unit was registered to the plaintiff at the time the foreclosure was commenced and that at such time, all communications from Huntington pertaining to the premises was addressed to the plaintiff at the subject unit. The defendants further argue that at no time did anyone notify Huntington that the plaintiff was not living at the unit, did not have an interest in the unit, or that any other person was living in the unit. (Defendant's Memorandum, pp. 4.-5).
The plaintiff counters that the defendants did not have cause to bring the foreclosure action. In support, he offers affidavit testimony of one Anthony Santone attesting that at the time of the foreclosure action and for several years prior, the third party, not the plaintiff, was the sole occupant of the subject premises and that on numerous occasions notice of his exclusive occupancy was relayed to the defendants and/or their attorneys. (Affidavit of Anthony Santone).
"Probable cause is the knowledge of facts sufficient to justify a reasonable person in the belief that there are reasonable grounds for prosecuting an action. . . . The existence of probable cause is an absolute protection . . . and what facts, and whether particular facts, constitute probable cause is always a question of law." (Internal quotation marks omitted.) Zeller v. Consolini, 59 Conn. App. 545, 554 n. 5, 758 A.2d 376 (2000). "For purposes of a vexatious suit action, the legal idea of probable cause is a bona fide belief in the existence of CT Page 9245 the facts essential under the law for the action and such as would warrant a man of ordinary caution, prudence and judgment, under the circumstances, in entertaining it." (Internal quotation marks omitted.)Norse System, Inc. v. Tingley Systems, Inc., 49 Conn. App. 582, 594,715 A.2d 807 (1998). "[W]hen [however] the facts themselves are disputed, the court may submit the issue of probable cause in the first instance to a jury as a mixed question of fact and law." DeLaurentis v.New Haven, 220 Conn. 225, 252, 597 A.2d 807 (1991).
The plaintiff has presented sufficient evidence to establish a genuine issue of material fact as to whether the defendant had probable cause to bring the underlying foreclosure action. Specifically, the plaintiff has called into question whether the defendants knew the plaintiff no longer resided at the subject premises. There remain in this case genuine issues of material fact that must be resolved before the court can determine as a matter of law whether the defendants acted with probable cause.
2. Termination of Underlying Action in Plaintiff's Favor
The defendants claim that the underlying action did not terminate in the plaintiffs favor. They argue that the foreclosure action was settled and subsequently withdrawn on April 2, 1997, by payment on behalf of the unit owners and/or the tenant in the amount of $6,783.00. (Defendants' Memorandum, p. 9). In support of this contention the defendants offer a photocopy of a cashier's check in that amount and a signed acknowledgment by the plaintiff's attorney of payment in full satisfaction of all debts owed in the foreclosure action.
The plaintiff counters that he did not settle with the defendants and that the foreclosure action was withdrawn as to him alone on February 12, 1996, but continued as to the other defendant until that action was withdrawn in April of 1997. (Plaintiff's Memorandum, pp. 4, 11). In support, the plaintiffs offer a photocopy of the withdrawal of action against the plaintiff in the foreclosure action dated February 12, 1996.
"In suits for vexatious litigation, it is recognized to be sound policy to require the plaintiff to allege that prior litigation terminated in his favor. This requirement serves to discourage unfounded litigation without impairing the presentation of honest but uncertain causes of action to the courts." Zeller v. Consolini, supra, 235 Conn. 417. "Courts have taken three approaches to the `termination' requirement. The first and most rigid, requires that the action have gone to judgment resulting in a verdict of . . . no liability, in the civil context. The second permits a vexatious suit action even if the underlying action was merely withdrawn so long as the plaintiff can demonstrate that the withdrawal took place under circumstances creating an inference that the plaintiff CT Page 9246 was . . . not liable in the civil context. The third approach, while nominally adhering to the `favorable termination' requirement, in the sense that any outcome other than a finding of . . . liability is favorable to the accused party, permits a . . . vexatious suit action whenever the underlying proceeding was abandoned or withdrawn without consideration, that is, withdrawn without . . . a settlement favoring the party originating the action." DeLaurentis v. New Haven, supra,220 Conn. 250. "When a lawsuit ends in a negotiated settlement or compromise, it does not terminate in the plaintiff's favor and therefore will not support a subsequent lawsuit for vexatious litigation" (Internal quotation marks omitted.) Blake v. Levy, 191 Conn. 257, 264, 464 A.2d 52
(1983).
In the present case, the full circumstances of the withdrawal of the underlying foreclosure action are not known. It is not clear whether the settlement and accompanying withdrawal of April, 1997, involved the plaintiff or if all claims against the plaintiff were withdrawn in February, 1996. If the action was withdrawn as to the plaintiff on February, 1996 as the plaintiff alleges and some evidence suggests, then it is possible that the action was terminated in the plaintiffs favor. Accordingly, the defendant's motion for summary judgment as to count two on the ground that previous litigation did not terminate in the plaintiff's favor is denied.
B. Count Two
The defendants also move for summary judgment on count two, which alleges intentional infliction of emotional distress as to both defendants. They move on two grounds: (1) that the plaintiff fails to state a cause of action for intentional infliction of emotional distress; and (2) that the allegations in the original foreclosure action cannot serve as the basis for an intentional infliction of emotional distress claim. The defendants argue that the plaintiff cannot demonstrate that the defendants' conduct in bringing the foreclosure action was extreme and outrageous and that allegations in a civil complaint are absolutely privileged and cannot sustain an intentional infliction of emotional distress claim. (Defendants' Memorandum, p. 11). The defendants argue that there is no genuine issue of material fact and that they are entitled to judgment as a matter of law.
The plaintiff counters that he has presented triable issue of fact as to his claim for intentional infliction of emotional distress. The plaintiff argues that the defendants' conduct was extreme and outrageous and that the privilege the defendants assert does not apply to this case. (Plaintiff's Memorandum, pp. 13-14). Therefore, they argue that summary judgment should be denied because there are genuine issues of CT Page 9247 material fact.
1. Extreme and Outrageous Conduct
To prevail on a cause of action for intentional infliction of emotional distress, four elements must be established. It must be shown: "(1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Appleton v. Board of Education,254 Conn. 205, 210, 757 A.2d 1059 (2000).
"Extreme and outrageous conduct is an essential element in the tort of intentional infliction of emotional distress." Brown v. Ellis,40 Conn. Sup. 165, 167, 484 A.2d 944 (1984). "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! . . . Conduct on the part of the defendant that is merely insulting or displays bad manners or results in hurt feelings is insufficient to form the basis for an action based upon intentional infliction of emotional distress." (Citation omitted; internal quotation marks omitted.) Appleton v. Boardof Education, supra, 254 Conn. 210-11. "Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine. . . . Only where reasonable minds disagree does it become an issue for the jury." (Citation omitted.) Id., 210.
The plaintiff has presented sufficient evidence to establish a genuine issue of material fact as to whether the defendants' actions meet the threshold of extreme and outrageous conduct. As noted previously, the facts and circumstances surrounding the initiation of the foreclosure action are in dispute. Therefore, the defendants' motion for summary judgment as to count two on the ground that the plaintiff has not stated a cause of action for intentional infliction of emotional distress is denied.
2. Privilege
The defendants maintain that the "plaintiff cannot sustain his intentional infliction of emotional distress claim on the grounds that CT Page 9248 the defendants allegedly wrongfully brought suit against him" because the foreclosure action is privileged. (Defendants Memorandum, p. 11). The defendants rely on DeLaurentis v. City of New Haven, supra, 220 Conn. 225, wherein the Connecticut Supreme Court held that allegations in a civil complaint "are absolutely privileged at common law and that no cause of action for intentional infliction of emotional distress based on those statements can lie." Id., 263. (Defendants' Memorandum, p. 11).
The plaintiff counters that DeLaurentis is distinguishable from the facts of this case and that a vexatious lawsuit can be the basis for a cause of action for intentional infliction of emotional distress.
In DeLaurentis, the plaintiff sought damages for, inter alia, vexatious suit and intentional infliction of emotional distress. The basis of the intentional infliction of emotional distress claim was the defendant's repetition to the media of the statement of charges contained in a summons issued to the plaintiff. The court held that "statements contained in the summons and statement of charges are absolutely privileged at common law and that no cause of action for intentional infliction of emotional distress based on those statements can lie."DeLaurentis, supra, 220 Conn. 263. Indeed, our case law is clear that the allegations of a complaint are absolutely privileged. "There is a long-standing common law rule that communications uttered or published in the course of judicial proceedings are absolutely privileged so long as they are in some way pertinent to the subject of the controversy." (Internal quotation marks omitted.) Petyan v. Ellis, 200 Conn. 243,245-46, 510 A.2d 1337 (1986).
Here, however, the plaintiffs cause of action for intentional infliction of emotional distress is not based on any particular statements or allegations contained in the foreclosure action which are, without question, accorded an absolute privilege. Rather, the plaintiff's claim is based upon the foreclosure action being brought at all, insofar as it was initiated with malice and without probable cause.
This distinction between liability for bringing a vexatious suit and liability for the particular words uttered within the suit was noted by the court in DeLaurentis. The court stated that "whether or not a party is liable for `vexatious suit' in bringing an unfounded and malicious action, he is not liable for the words used in the pleadings and documents used to prosecute the suit." DeLaurentis, supra, 220 Conn. 264. Thus, the court recognizes that in the first instance, there can be liability but in the second, there can't be liability.
"The `absolute privilege' which attaches to the words used in a complaint does not . . . preclude a party from bringing an action for CT Page 9249 abuse of process or vexatious suit." Vallombroso v. Brockett, Superior Court, judicial district of New Haven, Docket No. CV 323074 (June 11, 1992, Maiocco, J.)
Therefore, the bringing of a vexatious suit is not an activity that is accorded an absolute privilege. Accordingly, the defendants' motion for summary judgment as to count two on the ground of absolute privilege is denied.
For the foregoing reason, the defendants' motion for summary judgment as to counts one and two of the plaintiffs amended complaint is denied.
GALLAGHER, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1382751/ | 248 S.W.3d 630 (2008)
Kurt DANIELS, Plaintiff-Appellant,
v.
STATE of Missouri DIVISION OF EMPLOYMENT SECURITY, Defendant-Respondent, and
Breech Regional Medical Center, Defendant-Respondent.
No. 28614.
Missouri Court of Appeals, Southern District, Division Two.
March 24, 2008.
*631 Kurt Daniels, Phillipsburg, MO, Acting pro se.
Shelly A. Kintzel, Jefferson City, MO, for Respondent Missouri Department of Labor and Industrial Relations Division of Employment Security.
NANCY STEFFEN RAHMEYER, Judge.
This is an appeal from the decision of the Labor and Industrial Relations Commission ("the Commission") disqualifying Kurt Daniels ("Appellant") from receiving unemployment benefits. Appellant contends that the Commission erred in denying those benefits on the ground that the Commission did not consider all of the possible evidence. We find that Appellant has failed to state a reviewable claim under section 288.210, and Appellant's brief does not comply with Rule 84.04(d) in a manner to allow for meaningful review;[1] therefore, the judgment is affirmed.
Our review of the decision by the Commission is governed by section 288.210, which provides, "[t]he findings of the [C]ommission as to the facts, if supported by competent and substantial evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the appellate court shall be confined to questions of law." Section 288.210. When reviewing a decision of the Commission in an unemployment compensation proceeding,
[w]e examine the whole record to determine the sufficiency of the evidence to support the Commissions decision. Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 222-23 (Mo. banc 2003). A decision that is contrary to the overwhelming weight of the evidence in the record is not supported by competent and substantial evidence. Id.
Barlynn Enterprises, Inc. v. Foell, 223 S.W.3d 168, 170 (Mo.App. S.D.2007).
Following this standard, the record indicates that Appellant was employed by Breech Regional Medical Center ("Employer") as a registered nurse on December 25, 2006. While on duty, Appellant was responsible for performing an assessment on each of the patients in his care during his shift. One of the patients in Appellant's care was Shannon Dooley ("Patient"), a registered nurse who was also employed by Employer. Patient had been admitted for a fractured foot and vertigo. On December 25, 2006, Patient was on Lovenox, a blood thinner, but was not on any pain medication.
On December 26, 2006, Patient reported to the Vice-President of Nursing that Appellant never conducted an assessment on her during his December 25, 2006 shift. Patient stated that Appellant never physically touched her except to administer an injection about 9:00 p.m., and Patient was certain that Appellant did not conduct an assessment on her. Patient's chart, however, indicated that Appellant had completed the required assessment of Patient at 7:30 p.m., on December 25, 2006, including listening to Patient's lungs and her bowel sounds in all quadrants. Patient's report to the Vice-President of Nursing and the conflicting chart prompted an investigation by Ms. Irish, the Director of Medical Surgery. Ms. Irish conducted her investigation by interviewing Patient, Appellant, a nurse's aid, and others who were patients during Appellant's December 25, 2006 shift.
At the hearing, Appellant testified that he conducted his assessment of Patient *632 while she was talking on the telephone. Specifically, Appellant testified, "As she was on the phone I did a quick assessment on here [sic], whereas I listened to her lungs, felt her belly was soft, she had bowel sounds, and she had good circulation to her feet. I could not see any distress of the patient or anything, and that is as I charted it." Appellant stated that the assessment took three minutes or less.
Appellant's version of events was rebutted by the testimony of Ms. Irish, who stated that a thorough assessment would have taken longer than three minutes and should not have been conducted while the patient was on the telephone because "you're not going to hear what you need to hear" while the patient was talking. Patient testified that she was awake until at least midnight on December 25, 2006, and would have known if Appellant had conducted an assessment while she was on the telephone because it would have involved physical touching and it would have required that Appellant pull the covers away to look at her leg.
Appellant was discharged for falsifying Patient's medical records. Appellant filed for unemployment compensation on January 3, 2007; however, the Division of Employment Security ("the Division") determined that Appellant was disqualified from receiving benefits because he was discharged for misconduct connected with work. Appellant appealed the decision of the Division to the Division's Appeals Tribunal, pursuant to section 288.190. A telephone hearing was held on February 28, 2007, where Appellant testified and was represented by counsel. The Appeals Tribunal reversed the determination of the Division finding, "the testimony of [Appellant] and [Patient] equally credible," and, therefore, Employer did not meet its burden of demonstrating misconduct.
Employer then appealed to the Commission, pursuant to section 288.200. The Commission reversed the decision of the Appeals Tribunal and disqualified Appellant from receiving unemployment benefits because he committed misconduct connected with work. The Commission found:
The best evidence shows that [P]atient was awake and alert between the hours of 5:00 p.m. and 12:00 midnight. During that time [Appellant] did not perform an assessment on [P]atient, and in fact never physically touched her aside from giving her an injection at 9:00 p.m. This indicates that [Appellant] was not truthful in filling out his paperwork. Such conduct demonstrated a willful and deliberate disregard of [E]mployer's interests and of the standards of behavior that [E]mployer had a right to expect from [Appellant]. This is especially true in light of [Appellant's] line of work as a nurse and the potential seriousness of his actions.
Appellant appeals the decision of the Commission.
Appellant has filed this appeal pro se. Appellant is entitled to appear pro se and is bound "by the same rules of procedure as those admitted to practice law and is entitled to no indulgence [he] would not have received if represented by counsel." Johnson v. St. Mary's Health Center, 738 S.W.2d 534, 535 (Mo.App. E.D. 1987). "Failure to comply with the rules of appellate procedure is a proper ground for dismissing an appeal." Brown v. Ameristar Casino Kansas City, Inc., 211 S.W.3d 145, 146 (Mo.App. W.D.2007).
A cursory review of Appellant's brief shows extreme violations of most provisions of Rule 84.04. In the statement of facts, Appellant does not include one reference to the transcript or legal file. Additionally in the statement of facts, Appellant makes reference to facts that cannot be verified, even after a lengthy review of the transcript. As this evidence is not in the transcript, it is apparent that this evidence *633 was never offered at the original hearing; therefore, it would have been improper for the Appeals Tribunal to hear this information, for the Commission to consider this information, and, likewise, for this Court to consider this evidence since it is squarely outside the record. This Court is unable to review evidence which is presented for the first time on appeal, even when Appellant is appearing pro se. Tucker v. United Healthcare Services, Inc., 232 S.W.3d 636, 638-39 (Mo.App. S.D. 2007).
In addition, Appellant's point relied on is defective.[2] Appellant expresses an error that is simply not reviewable by this Court under section 288.210. "Under that section, appellate review in unemployment compensation cases is limited to whether the Commission's decision is supported by competent substantial evidence and authorized by law." Streitz v. Juneau, 940 S.W.2d 548, 550 (Mo.App. S.D.1997). Appellant has not challenged whether the decision made by the Commission is supported by competent and substantial evidence. Instead, Appellant argues that, had the court reviewed further evidence, they would have come to a different determination. Specifically, Appellant argues the Commission should have (1) heard from an additional witness, who Appellant did not attempt to call himself, (2) considered certain medical and work history files which were not included in the record, and (3) considered that Patient was under the influence of medication, even though those facts were not presented in the record on appeal.
Appellant, however, fails to recognize two important points. First, Appellant was responsible for presenting all evidence at the hearing. 8 C.S.R. 10-5.015(7)(B). Any evidence which was not before the Commission that may have been relevant to his case should have been presented by Appellant during the initial hearing. It is noteworthy that Appellant was represented by counsel at each of the underlying stages and some evidence was presented at each stage to support Appellant's positions. Second, if Appellant wanted the Commission to consider "new evidence," there is a specific procedure laid out in 8 C.S.R. 20-4.010(5) that would allow Appellant to request the Commission to consider additional evidence. Appellant did not attempt this procedure. Further, as Respondent correctly points out, even if Appellant had followed this procedure, he would have been denied because the relevant evidence was not "new evidence," which is the only additional evidence than can be heard by the Commission at that stage in the proceeding. 8 C.S.R. 20-4.010(5).
"A failure to substantially comply with Rule 84.04 preserves nothing for appellate review." Burton v. Tucker, 937 S.W.2d 775, 776 (Mo.App. S.D.1997). If this Court were to review Appellant's points we would be acting as an advocate for him, which we will not do. Thummel, 570 S.W.2d at 686. Accordingly, we affirm the judgment.
BARNEY, P.J., and BURRELL, J., concur.
NOTES
[1] All references to statutes are to RSMo 2000, unless otherwise specified. All rule references are to Missouri Court Rules (2007), unless otherwise specified.
[2] Although, in argument, Appellant identifies the proper judgment being appealed, in his point relied on Appellant indicates that the "Division of Employment Security erred" rather than referring to the Commission, who issued the reviewable judgment. A point relied on which does not inform the opposing party and the court of the decision being challenged is improper and it should be stricken. Thummel v. King, 570 S.W.2d 679, 686 (Mo. banc 1978). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382466/ | 248 S.W.3d 418 (2008)
Paul Martin CLARK and Black Citizens for Justice, Law and Order, Inc., Appellants,
v.
Gladys Elaine Blanton JENKINS, Appellee.
No. 07-06-0385-CV.
Court of Appeals of Texas, Amarillo.
February 22, 2008.
Rehearing Overruled April 3, 2008.
*423 Chad E. Baruch, Law Office of Chad Baruch, Rowlett, Kent W. Starr, Starr & Associates, PC, Eliot D. Shavin, Law Office of Eliot Shavin, Dallas, TX, for Appellant.
Shelli Morrison, Attorney At Law, Athens, E. Leon Carter, Attorney At Law, Susan Hays, Law Office of Susan Hays, P.C., Dallas, TX, for Appellee.
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
OPINION
PATRICK A. PIRTLE, Justice.
Appellants, Paul Martin Clark and Black Citizens For Justice, Law and Order, Inc. (BCJLO), appeal from a judgment rendered in favor of Appellee, Gladys Elaine Blanton Jenkins, in a libel action. By a sole issue, Clark and BCJLO assert the trial court erred in denying their motions for directed verdict and judgment notwithstanding the verdict because: (1) the defamatory statements about Jenkins were made in a written request for governmental action, making actual malice an essential element of her claim, and the evidence was insufficient to establish actual malice, (2) their statements were absolutely privileged because they were made in a petition for redress pursuant to the Texas Constitution, and (3) there was an absence of any finding and/or evidence in support of a presumed finding their petition was a "sham" or was made in bad faith. We affirm.
Background
Jenkins,[1] a member of the Athens City Council, filed an action for libel based upon statements made in a memorandum (hereinafter the "Clark Memorandum") authored by Clark, BCJLO's President. The Clark Memorandum was addressed and published to Daisy Evella Joe, BCJLO's Chief Executive Officer, the Honorable Pete Sessions, United States Representative, and the United States Department of *424 Justice (DOJ), Civil Rights Division. The Clark Memorandum was subsequently published to the Mayor of Athens, its City Council, the City Administrator, and Police Chief. The existence of the Clark Memorandum and its contents were generally known in Athens.
BCJLO was originally incorporated in 1969 in response to incidents involving black citizens and police officers in the Dallas metropolitan area. BCJLO's initial purpose was to bring citizen complaints against the Dallas police to the attention of the proper authorities. Over the years, BCJLO's purpose has evolved to include assisting persons in pursuing claims before the Equal Employment Opportunity Commission.
Joe became BCJLO's volunteer director in 1982 and subsequently, CEO.[2] Clark became BCJLO's President of Membership in 2002-03. He had received training and certification as a federal records management officer at the National Archives located in Washington, D.C. At the National Archives, Clark was taught to simply record an event through note-taking without filtering what was said. Joe testified at trial that Clark had a knack for notating meetings in a very detailed manner writing down every "and," "the," and "that."
In the mid-nineties, tension existed between North Athens' black citizens and the Athens Police Department. DOJ's Civil Rights Division assisted the parties in developing an agreement designed to open lines of communication between the Athens Police Department and the North Athens community. In 1999, a Memorandum Agreement was entered into between Athens Police Chief, the NAACP, and an organization known as the Concerned Citizens of North Athens (CCNA). A Citizens Advisory Committee was created to meet on a regular basis with the Athens Police Chief to discuss problems and issues. If necessary, these issues and problems would be brought to the attention of the City Council. The Texas Rangers also offered their assistance by investigating citizens' complaints of harassment and intimidation. From 1999 until 2006, there were six complaints filed with the Citizens Advisory Committee.
In mid-2001, Joe began receiving calls from black residents in Athens including Barbara Bowman and Fred Burke. Bowman and Burke were CCNA members and, subsequently, became BCJLO members. Bowman and Burke complained of intimidation and harassment by the Athens Police Department and wanted BCJLO's assistance because they believed they did not have a voice in Athens. Joe received so many calls from Athens' citizens she was hesitant to get involved. Subsequently, they started calling in on Joe's radio show, Worker's Beat, on KNON, with complaints related to the Athens Police Department. Bowman and others called Joe's radio show complaining that a pregnant woman was taken to jail, underwent a miscarriage, and was refused medical attention. Joe found the story hard to believe. She suggested they compile their information and submit their complaints to the authorities.
In the Fall of 2002, Pam Burton, Athens City Administrator, received letters from Joe Baggett, President of the NAACP's local chapter, and Mickey Williams of the CCNA asking to appear before the City Council to discuss the Memorandum Agreement. The agreement had expired and a new Athens Police Chief, Jim Vance, was replacing the current Chief who was a signatory to the Memorandum Agreement. Burton placed discussion of the agreement on the City Council's agenda. She also *425 sent Baggett a letter, with a copy to Williams, indicating the City Council would be discussing the agreement at a regularly scheduled workshop to be held before the City Council meeting scheduled for November 20, 2002. Burton's letter invited them to attend and encouraged them to invite other interested parties.
CCNA members faxed Joe a letter related to the workshop and asked Joe to approach Congressman Sessions. Joe indicated she would send someone to the meeting to take notes on their concerns and then turn the information over to Sessions. Because Joe was unable to attend the meeting personally, she asked Clark to attend. Clark was to meet Reverend Stovall, Pastor of the Camp Wisdom United Methodist Church of Dallas, in Athens, and accompany him to the meeting.
Bowman, Stovall, Clark, and others attended the City Council workshop to discuss the agreement. Mayor King, the City Council members, and Burton were also present. Jenkins attended the meeting in her capacity as a City Council member.
After the Council meeting, Bowman, Stovall, Clark, and other attendees convened at the house of a CCNA member to discuss their concerns. Clark took notes during this after-meeting. The meeting lasted approximately twenty minutes. Bowman told Clark that Jenkins was controlled by Mayor King and that she was ineffective and failed to communicate the concerns of the citizens of North Athens to the City Council.[3] Joe instructed Clark to take down their complaints and draft a memorandum that would prompt an investigation by Congressman Sessions and DOJ's Civil Rights Division.
Clark drove home that night, and the next morning he delivered his memorandum to Joe. Joe testified she prepared a cover page,[4] and the Clark Memorandum was delivered to a staff member at Sessions's office. The Clark Memorandum was also mailed to DOJ's Civil Rights Division. Although it was Joe's practice to scan such a memorandum before it was sent, she only glanced at the Clark Memorandum and did not notice the criminal allegations related to Jenkins.
In paragraph four of the Clark Memorandum, the following statement was made regarding Jenkins:
The only black female Athens City Council member is Gladys Elaine Blanton Jenkins. She is a convicted felon having served time in Texas and California for Prostitution and Drugs. She is controlled by Mayor Jerry King. No one in the State of Texas can hold elective office who has felony convictions. She must be removed from office immediately.
See Appendix for full text of the Clark Memorandum.
*426 Joe was unconcerned whether the statements in the Clark Memorandum were true or false. Neither Clark, Joe, nor BCJLO performed any investigation to determine the validity of any factual statements contained in the memorandum including the criminal allegations against Jenkins.[5] Joe agreed the memorandum's statements regarding Jenkins were "very defamatory," "horrible," and she "wouldn't want them published about anyone." She also believed the contents of the memorandum were confidential and she was relying on Sessions and the DOJ to determine whether the statements made were true.
Clark did not appear at trial, but testified by deposition. He indicated he had no belief or disbelief as to the truth of the memorandum's contents. He did not know Jenkins and had no belief as to the statements he made about her. He did not know the people who attended the Council meeting and after-meeting, and had no baseline for the veracity of their statements. He stated he recorded the information the attendees supplied to him. He indicated, however, he did not believe the statement in his memorandum that "[t]he Athens Police intimidate, harass and murder black residents on a daily basis." If it was the case, he stated he would have heard about it on television or in a newspaper.
After receiving the Clark Memorandum, Congressman Sessions attempted to learn if there was any truth to the allegation tying Charles Hawn, Sessions's only staff member in the Athens office, to the Ku Klux Klan.[6] Hawn received a call from a Dallas staff member asking if he had seen the Clark Memorandum. Sessions's Dallas office faxed the memorandum to Hawn for comment. Hawn indicated he had no association or knowledge of the BCJLO, Joe, or Clark. He had also never received any complaints from North Athens citizens about a pattern, or instance, of murder or intimidation of black residents by Athens police. He stated he absolutely had no ties to the Ku Klux Klan.
Sessions's office subsequently mailed the original Clark Memorandum to Mayor King and faxed him a copy for his comments. King provided a copy of the memorandum to Burton and Chief Vance. Burton arranged a meeting between King, Jenkins, and Vance to determine whether there was any substance to the charges against Jenkins in the Clark Memorandum. Jenkins was fingerprinted and criminal histories were run by the Athens Police Department and the Texas Rangers. Neither found any criminal history. City Council members also received a copy of the Clark Memorandum, held an Executive Session to discuss its contents and determine what action, if any, the Council should take. The Council decided against taking action.
On February 23, 2003, Jenkins filed this suit against Clark and BCJLO for damages due to defamation and libel. Jenkins's claims were tried to a jury and after *427 a two day trial, the jury returned a verdict against Clark and BCJLO. Jenkins was awarded $300,000 for past and future damages due to mental anguish, injury to character and/or reputation and injury to her standing in the community. She was also awarded exemplary damages of $100,000 against Clark and $100,000 against BCJLO.
At trial, the jury was given the following instruction on the "actual malice" element of Jenkins's cause of action, and they made the following findings:
Question No. 2
Do you find by clear and convincing evidence that Paul Martin Clark and/or Black Citizens for Justice, Law and Order, Inc. acted with actual malice in committing the libel, if any, against Gladys Elaine Blanton Jenkins?
a. Paul Martin Clark Yes
b. BCJLO Yes
Instruction: Actual malice means the false statement was made with actual knowledge that it was false or with reckless disregard of whether it was false.
Reckless disregard means the author actually entertained serious doubts as to the truth of the statement.
"Clear and convincing evidence" which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.
Discussion
Clark and BCJLO[7] contend Jenkins failed to present clear and convincing evidence of actual malice to controvert the testimony of Clark and Joe that the truth or falsity of the statements in the Clark Memorandum was never considered. Because Clark never considered whether the statements were true or false, he maintains he could not have entertained any doubts as to their truth or falsity. He also asserts his statements were absolutely privileged as a legitimate attempt to petition the government for a redress of grievances under the Texas Constitution article 1, § 27. As such, he would have this Court find his statements are not subject to Texas defamation laws.
Notwithstanding the order in which Clark briefed his issues, logic dictates that we first consider whether his statements are absolutely privileged before proceeding to consider the sufficiency of evidence of actual malice.
I. Right To Petition
A. Absolute Privilege
Clark asserts the statements in his memorandum are subject to an absolute privilege because the Texas Petition Clause provides greater protection for communications made in petitions for redress than exist for those who generally exercise their right to free speech. He contends the Free Speech and Petition Clauses establish separate and distinct constitutional rights, the violation of which requires differing standards for determining liability in defamation actions. Rather than permit plaintiffs to recover for defamation against a petitioner for redress if they establish "actual malice" under the *428 New York Times standard[8] in accord with the United States Supreme Court's holding in McDonald v. Smith,[9] Clark would have this Court adopt the Noerr-Pennington doctrine created by the United States Supreme Court for use in antitrust cases,[10] and require such plaintiffs to establish the petition itself is a "sham" before liability attaches. In sum, Clark urges this Court to elevate communications under the Petition Clause to "special" First Amendment status and accept his claim of absolute privilege.
The Petition Clause of the Texas Constitution reserves the right to petition the government for a redress of grievances as follows:
RIGHT OF ASSEMBLY; PETITION FOR REDRESS OF GRIEVANCES. The citizens shall have the right, in a peaceable manner, to assemble together for their common good; and apply to those vested with the powers of government for redress of grievances or other purposes, by petition, address or remonstrance.
Texas Const. art. 1, § 27.[11]
Contrary to Clark's assertion, the right to petition is inseparable from the right of free speech. Puckett v. State, 801 S.W.2d 188, 192 (Tex.App.-Houston [14th Dist.] 1990), cert. denied, 502 U.S. 990, 112 S. Ct. 606, 116 L. Ed. 2d 629 (1991). "Although the rights are distinct guarantees, they were cut from the same constitutional cloth, inspired by the same principles and ideals. Thus, as a general rule, the rights are subject to the same constitutional analysis." Id. (citations omitted).
That the Texas Constitution expressly guarantees a right to bring suits for reputational torts and provides access to courts for injuries to reputation, supports the notion that First Amendment speech safeguards should apply to those who petition for redress.[12] Nowhere in the Petition Clause is there language that militates against applying these free speech safeguards to petitioners, or that supports any "special" First Amendment status for petitioners.[13] Rather, defamation *429 defendants seeking greater protection than that offered by the Texas and United States Constitutions must look to Texas common law. The Texas Supreme Court has observed:
[a]lthough we have recognized that the Texas Constitution's free speech guarantee is in some cases broader than the federal guarantee, we have also recognized that `broader protection, if any, cannot come at the expense of a defamation claimant's right to redress.' Unlike the United States Constitution, the Texas Constitution expressly guarantees the right to bring reputational torts. The Texas Constitution's free speech provision guarantees everyone the right to `speak, write or publish his opinions on any subject, being responsible for abuse of that privilege.' Likewise, the Texas Constitution's open courts provision guarantees that `[a]ll courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.' While we have occasionally extended protections to defamation defendants greater than those offered by the United States Constitution, we have based these protections on the common law, not the Texas Constitution.
Bentley v. Bunton, 94 S.W.3d 561, 578 (Tex.2003) quoting Turner v. KTRK Television, Inc., 38 S.W.3d 103, 116-17 (Tex. 2000) (emphasis in original).
Thus, unless Texas common law creates an exception, persons who exercise their right to petition do so in the absence of absolute immunity and may be held liable for their communications if the plaintiff is able to make a showing sufficient to satisfy the New York Times standard for "actual malice." We also find the United States Supreme Court's holding in McDonald v. Smith, persuasive and agree that, although "[t]he right to petition is guaranteed, the right to commit libel with impunity is not." 472 U.S. at 485, 105 S.Ct. at 2790.
In McDonald, the plaintiff was a candidate for appointment as a United States Attorney. The defendant sent defamatory letters to various federal governmental officials, including President Reagan, concerning the plaintiff's ethical qualifications to serve as United States Attorney. Based upon those communications, the plaintiff sued for defamation. The defendant argued the Petition Clause of the First Amendment, which guarantees "the right of the people . . . to petition the Government for a redress of grievances," should provide him with absolute immunity. Id. The Court disagreed, noting that "[u]nder state common law, damages may be recovered only if [the defendant] is shown to have acted with malice. . . ." Id. The Court held that requiring plaintiffs to show actual malice was sufficient protection for petitioners, and "the Petition Clause does not require the State to expand this privilege into an absolute one." Id.
The McDonald ruling is compatible with Texas common law which recognizes two classes of privileges absolute and qualified either of which may apply to a petition for redress. Two cases are illustrative. *430 In Koehler v. Dubose, 200 S.W. 238 (Tex.Civ.App.-San Antonio 1918, writ ref'd), the court considered allegations of libel contained in letters addressed to the state comptroller related to the issuance of a new liquor license to the plaintiff. The letters accused the plaintiff of selling alcohol to minors through others and petitioned the state comptroller, who had authority to grant, revoke, or refuse licenses to sell intoxicating liquor, to refuse to issue a new license. The court recognized that, under the common law, there were two classes of privilege that might apply to petitioners' communications absolute and qualified. Id. at 242. After finding the letters were not part of a judicial proceeding and subject to an absolute privilege, the court found the communications were subject to a qualified privilege and stated, "the publishers of the statements will be guilty of libel if it be shown that the accusations were made in bad faith and with malice towards appellant." Id. at 243.
In Connellee v. Blanton, 163 S.W. 404 (Tex.Civ.App.-Fort Worth 1913, writ ref'd), the court extended the absolute privilege recognized under the common law for statements made in judicial proceedings to petitions to the Governor requesting pardons. In Connellee, plaintiff's petition, a letter applying to the Governor for a pardon, complained that a district judge had changed the venue of the defendant's case for the purpose of making the costs excessive. Id. at 405. The Connellee court also recognized two classes of privilege, qualified and absolute, that might apply but determined the petition was subject to an absolute privilege because it was an extension of the judicial proceedings whereby the person sought to be pardoned was convicted. Id. at 407. The Connellee court held:
[t]he same principle of public policy which supports the absolute privilege extended to judicial proceedings applies with equal force in favor of petitions to the Governor of the state for the exercise of the pardoning power, a power superior to that of the court which rendered the judgment of conviction. If the judicial proceedings which culminated in the conviction were absolutely privileged, why should not the same immunity be extended to the petition to a higher power to annul that judgment, in part?
Id.
Thus, the courts' rulings in Koehler and Connellee on the issue of whether a petition is subject to an absolute or qualified privilege under the common law turned on whether the petition was submitted in connection with a judicial proceeding. The Koehler court recognized the principle that, at a minimum, all petitions are subject to a qualified privilege under the common law, and Connellee recognized an absolute privilege where the petition is submitted as an extension of a judicial proceeding.[14] Neither court recognized an *431 absolute privilege for all communications under the Petition Clause.[15]
Accordingly, when a person exercises their constitutional right to petition for redress, their communications may be subject to an absolute privilege or qualified privilege depending on the context, or occasion, in which their communication is made. See Koehler, 200 S.W. at 242-43. An absolute privilege is analogous to an immunity because absolutely privileged communications are not actionable and may not form the basis for civil liability, Reagan v. Guardian Life Ins., Co., 140 Tex. 105, 166 S.W.2d 909, 911 (1942); Randolph v. Walker, 29 S.W.3d 271, 278 (Tex. App.-Houston [14th Dist.] 2000, pet. denied), even though the communication is false and published with express malice. Associated Telephone Directory Publishers, Inc. v. Better Business, 710 S.W.2d 190, 192 (Tex.App.-Corpus Christi 1986, writ ref'd. n.r.e.). This privilege attaches to communications made in proceedings of legislative, executive, and judicial bodies, Zarate v. Cortinas, 553 S.W.2d 652, 654 (Tex.Civ.App.-Corpus Christi 1977, no writ), and to only a limited and select number of situations which involve the administration of the functions of the branches of government such as the opinions of judges and the speeches of members of congress or legislatures. Hurlbut v. Gulf Atlantic Life Insurance Co., 749 S.W.2d 762, 768 (Tex.1987); Knapp & Co. v. Campbell, 14 Tex. Civ. App. 199, 36 S.W. 765, 767 (Tex.Civ.App.-El Paso 1896, no writ).
Absolute privilege attaches to all communications published in the course of judicial proceedings, IBP, Inc. v. Klumpe, 101 S.W.3d 461, 470 (Tex.App.-Amarillo 2001, pet. denied), and similarly applies to quasi-judicial proceedings before executive officers, boards, or commissions. Reagan, 166 S.W.2d at 912; 5-State Helicopters, Inc. v. Cox, 146 S.W.3d 254, 256-57 (Tex.App.-Fort Worth 2004, pet. denied). To apply, the executive officer, board, or commission must exercise quasi-judicial powers. Putter v. Anderson, 601 S.W.2d 73, 76 (Tex.Civ.App.-Dallas 1980, writ ref'd. n.r.e.). That is, the governmental entity must have the authority to investigate and decide the matters at issue, 5-State Helicopters, Inc., 146 S.W.3d at 259; Crain v. Smith, 22 S.W.3d 58, 60-61 (Tex. App.-Corpus Christi 2000, no pet.); Lane v. Port Terminal R.R. Ass'n, 821 S.W.2d 623, 625 (Tex.App.-Houston [14th Dist.] 1991, pet. denied), and the communication must bear some relationship to a pending or proposed judicial proceeding in order for the absolute privilege to apply. Bennett v. Computer Assocs. Int'l., Inc., 932 S.W.2d 197, 201 (Tex.App.-Amarillo 1996, writ denied).[16]
*432 Clearly, all communications to public officials are not absolutely privileged. Hurlbut, 749 S.W.2d at 768. Initial communications "to a public officer . . . who is authorized or privileged to take action" are subject to only a qualified privilege, not absolute immunity. Id. The filing of a criminal complaint is not absolutely privileged because, at that point, no judicial proceedings have been proposed and no investigating body has discovered sufficient information to present to a grand jury or file a misdemeanor complaint. San Antonio Credit Union v. O'Connor, 115 S.W.3d 82, 99 (Tex.App.-San Antonio 2003, pet. denied). See Caller Times Pub. Co. v. Chandler, 122 S.W.2d 249, 251 (Tex. Civ.App.-San Antonio 1938), aff'd, 134 Tex. 1, 130 S.W.2d 853 (1939) (confessions under oath to a district attorney implicating plaintiff in the commission of a crime not absolutely privileged); Houston Chronicle Pub. Co. v. Tiernan, 171 S.W. 542, 546 (Tex.Civ.App.-Galveston 1914, no writ) (affidavits alleging attorneys committed crimes were not absolutely privileged). Thus, the initial communication of alleged wrongful or illegal acts to an official authorized to protect the public from such acts is subject to a qualified privilege. See Hurlbut, 749 S.W.2d at 767-68 (criminal allegations made to assistant attorney general not absolutely privileged); Zarate, 553 S.W.2d at 655.
This common law "qualified privilege" has been described as follows:
[q]ualified privileges against defamation exist at common law when a communication is made in good faith and the author, the recipient or a third person, or one of their family members, has an interest that is sufficiently affected by the communication. See Holloway v. Texas Medical Ass'n, 757 S.W.2d 810, 813 (Tex.App.-Houston [1st Dist.] 1988, writ denied). A communication may also be conditionally privileged if it affects an important public interest. See generally Bruce W. Sanford, Libel and Privacy, at 701-94.1 (collecting libel privilege statutes from all fifty states).
Cain v. Hearst Corporation, 878 S.W.2d 577, 582 (Tex.1994).
Unlike an absolute privilege, this "conditional privilege is defeated when the privilege is abused," Hurlbut, 749 S.W.2d at 768, and the "qualifying criterion . . . is that the statements must be made in good faith and without malice." Zarate, 553 S.W.2d at 655 (collected cases cited). To hold otherwise would "unnecessarily deny those innocent victims of maliciously or recklessly filed complaints an opportunity to seek remuneration for their injury." Id. In making a determination whether statements are subject to a qualified privilege, courts must examine the "occasion" of the communication, i.e., the totality of the circumstances including the communication itself, its communicator, its recipient and the relief sought. Cranfill v. Hayden, 22 Tex. Civ. App. 656, 55 S.W. 805, 809 (Tex.Civ.App.-Dallas 1900, no writ).[17] And, the question of privilege is ordinarily one of law for the court. Denton Publishing Co. v. Boyd, 460 S.W.2d 881, 884 (Tex. 1970).
Clark addressed his Memorandum to Congressman Sessions and DOJ's Civil Rights Division. By his Memorandum, Clark generally sought to instigate an investigation of alleged civil rights violations *433 in Athens and, more specifically, Jenkins's immediate removal from the Athens City Council. As such, the Clark Memorandum was a preliminary report, not communicated to Congressman Sessions as part of a legislative proceeding. Moreover, Congressman Sessions lacked the subpoena power necessary to conduct a formal investigation as well as the authority to grant the ultimate relief sought by Clark. At best, the Congressman could make calls, gather information, and refer Clark's allegations to public officials and/or agencies empowered to investigate, litigate, or adjudicate Clark's complaints. Congressman Sessions's ability to gather information and refer matters to the appropriate authorities does not constitute a "legislative proceeding." See A.H. Belo & Co. v. Wren, 63 Tex. 686, 1884 WL 8996, *26-27 (Dec. 19, 1884). Thus, Clark's statements to Congressman Sessions were not part of a legislative proceeding and were not subject to an absolute privilege. Neither were Clark's statements to DOJ's Civil Rights Division communicated in an executive, judicial, or quasi-judicial proceeding.
A privilege "is an affirmative defense to be proved and is in the nature of confession and avoidance." IBP, Inc., 101 S.W.3d at 471. As such, Clark had the burden of establishing this affirmative defense to defamation. Id. Clark produced no evidence indicating DOJ was actively contemplating, investigating, or litigating any civil rights violations related to Athens. In addition, Clark's allegations were preliminary in nature, i.e., designed to launch an investigation that might lead to legal action. Thus, Clark's statements to DOJ were not part of an executive, judicial, or quasi-judicial proceeding, and were not subject to an absolute privilege.
Under Texas common law, damages for defamation and libel may be recovered only if a defendant is shown to have acted in bad faith with malice. Zarate, 553 S.W.2d at 655; Koehler, 200 S.W. at 243. This standard is consistent with that expressed by the United States Supreme Court in New York Times, supra, and is applicable to a plaintiff's claims against those who have exercised their First Amendment right under the Petition Clause. McDonald, 472 U.S. at 485, 105 S.Ct. at 2791. See generally Dixon v. Southwestern Bell Tel. Co., 607 S.W.2d 240, 242 (Tex.1980); Little v. Bryce, 733 S.W.2d 937, 945 (Tex.App.-Houston [1st Dist.] 1987, [no writ]. While we recognize the Petition Clause is undoubtedly an important part of self-government, one person's right to petition, in the absence of a common law privilege that is absolute, ends where his neighbor's reputational rights begin. Like the McDonald court, we are not prepared to conclude that the Petition Clause "include[s] an unqualified right to express damaging falsehoods in exercise of that right." 472 U.S. at 484, 105 S.Ct. at 2790.
We also decline to apply the "sham exception" doctrine established by the United States Supreme Court for antitrust litigation, i.e., the Noerr-Pennington doctrine. See City of Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 379-80, 111 S. Ct. 1344, 1353-54, 113 L. Ed. 2d 382 (1991). The Noerr-Pennington doctrine basically holds that petitioning the government to take anticompetitive action does not violate antitrust laws. Id. The Omni court described the doctrine as follows:
[a] classic example is the filing of frivolous objections to the license application of a competitor, with no expectation of achieving denial of the license but simply in order to impose expense and delay.
Id.
The Noerr-Pennington doctrine has no application here. Jenkins filed suit for *434 defamatory statements made in a memorandum intended to instigate an investigation by the federal government and thereby result in her removal from office. Jenkins did not sue Clark for improperly attempting to influence governmental decision-making or obtain an unlawful economic result, i.e., anticompetitive action. We recognize, as did the Omni Court, that the Noerr-Pennington doctrine is "tailored . . . for the business world," id., and find the United States Supreme Court's holding in McDonald to be apropos.[18] Having concluded the statements in the Clark Memorandum are subject to a qualified privilege permitting liability in a defamation action if his statements were made with actual malice, we may now consider his contention that Jenkins failed to prove actual malice by clear and convincing evidence
II. Actual Malice
A public figure may not recover damages for a defamatory falsehood without clear and convincing proof the false statement was made with "actual malice," i.e., with knowledge the statement was false or with reckless disregard of whether it was false or not. Doubleday & Co., Inc. v. Rogers, 674 S.W.2d 751, 755 (Tex.1984); New York Times Co., 376 U.S. at 279-280, 84 S.Ct. at 726. Although a bright line definition of "clear and convincing evidence" for purposes of determining actual malice does not exist, the phrase has been used to mean evidence which produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations to be established, or evidence sufficient to support a firm conviction that the fact to be proved is true. Bentley, 94 S.W.3d at 596-97; Huckabee v. Time Warner Entertainment Co., 19 S.W.3d 413, 422 (Tex. 2000).
Knowledge that the statement is false is a "relatively clear standard; reckless disregard is much less so." Bentley, 94 S.W.3d at 591. Reckless disregard is a subjective standard focusing on the declarant's belief in, or attitude toward, the truth of the communication at issue. New Times v. Isaacks, 146 S.W.3d 144, 165 (Tex.2004). The standard requires more than a departure from conduct that is reasonably prudent. Mere negligence is not enough. Bentley, 94 S.W.3d at 591. There must be evidence the defendant made the false publication with a high degree of awareness of probable falsity, or entertained serious doubts as to the truth of his publication. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 667, 109 S. Ct. 2678, 2686, 105 L. Ed. 2d 562 (1989). For instance, a failure to investigate by itself does not evidence a reckless disregard for the truth, but evidence that a failure to investigate was contrary to the speaker's usual practice and motivated by a desire to avoid the truth may demonstrate the reckless disregard necessary for a finding of actual malice. Bentley, 94 S.W.3d at 591.
While recognizing that the test for reckless disregard "may be said to put a premium on ignorance, encourage the irresponsible publisher not to inquire, and *435 permit the issue to be determined by the defendant's testimony that he published the statement in good faith and unaware of its probable falsity," St. Amant v. Thompson, 390 U.S. 727, 732, 88 S. Ct. 1323, 1326, 20 L. Ed. 2d 262 (1968), the United States Supreme Court has cautioned that:
[t]he defendant in a defamation action brought by a public official cannot, however, automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher's allegations are so inherently improbable that only a reckless man would have put them in circulation. Likewise, recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.
Id.
In addition, although courts must be careful not to place too much reliance on factors such as motive, a plaintiff is entitled to prove the defendant's state of mind through circumstantial evidence. Bentley, 94 S.W.3d at 591; Harte-Hanks, 491 U.S. at 668, 109 S.Ct. at 2685. A lack of care or an injurious motive in making a statement is not alone proof of actual malice, but care and motive are factors to be considered. Bentley, 94 S.W.3d at 596. Moreover, although an understandable misinterpretation of ambiguous facts does not show actual malice, inherently improbable assertions and statements made on information that is obviously dubious may show actual malice. Hearst Corp. v. Skeen, 159 S.W.3d 633, 638 (Tex.2005). Actual malice may be inferred from the "relation of the parties, the circumstances attending the publication, the terms of the publication itself, and from the defendant's words or acts before, at, or after the time of the communication." Dolcefino v. Turner, 987 S.W.2d 100, 111-12 (Tex.App.-Houston [14th Dist.] 1998), aff'd, 38 S.W.3d 103 (Tex.2000).
In Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984), the United States Supreme Court held that judges have a constitutional duty to "exercise independent judgment and determine whether the record establishes actual malice with convincing clarity" in defamation suits brought by public officials. 466 U.S. at 514, 104 S.Ct. at 1967. In determining whether the constitutional standard has been satisfied, the reviewing court must consider the factual record in full, Harte-Hanks, 491 U.S. at 688, 109 S.Ct. at 2696, and determine whether the evidence in the record is sufficient to support a finding of actual malice as a matter of law. Bentley, 94 S.W.3d at 597-98.
In making credibility determinations the reviewing court must make an independent examination of the statements at issue and the circumstances under which they were made to see whether they are of a character which the principles of the First Amendment protect. New York Times Co., 376 U.S. at 285, 84 S.Ct. at 728-29. Where the credibility of witnesses is a factor in determining whether the constitutional standard has been satisfied, "the First Amendment does not forbid any deference to a fact finder's determinations; it limits that deference." Bentley, 94 *436 S.W.3d at 598.[19] The findings the jury must have made to reach its verdict are considered alongside the undisputed evidence to determine whether the plaintiff has met its burden of proof on the element of actual malice. Harte-Hanks, 491 U.S. at 690-91, 109 S.Ct. at 2678.
Thus, we follow the approach set forth in Bentley and Harte-Hanks. First, we begin with a determination of the evidence the jury must have found incredible. Bentley, 94 S.W.3d at 599. If the fact finder chose to disregard the defendant's testimony, so must we, so long as the jury's credibility determinations are reasonable. Id. However, "it is not enough for the jury to disbelieve defendant's testimony," Casso v. Brand, 776 S.W.2d 551, 558 (Tex.1989), the credible evidence must rise to the level of clear and convincing. Bentley, 94 S.W.3d at 599. Thus, once we have resolved credibility determinations in favor of the jury's verdict, we must independently evaluate the statements at issue and the circumstances under which they were made to see whether they are of a character which the principles of the First Amendment protect. Turner, 38 S.W.3d at 120. We then identify the undisputed facts and make a determination whether the "undisputed evidence along with any other evidence that the jury could have believed provides clear and convincing proof of actual malice." Bentley, 94 S.W.3d at 599.
A. Evidence The Jury Found Not Credible
The jury's finding that Clark acted with actual malice does not differentiate whether Clark had actual knowledge the statements regarding Jenkins were false or acted with reckless disregard of whether the statements were false, but we know, based upon the definition of actual malice given to the jury, that it was one or the other. That said, the jury's finding supports an inference that the jury believed, by clear and convincing evidence, that Clark either knew the statements were false, or he actually entertained serious doubts as to the truth of the statements.
Neither Clark nor Joe offered any evidence that they believed the statements were true or made in good faith at the time they were published.[20] Rather, Clark and Joe testified the statements were published without a point of reference that would assist them in determining the veracity of their sources or the truthfulness of the statements about Jenkins, and performed *437 no investigation to determine the accuracy of the information.
In essence, Clark testified he was just a scrivener. He stated he simply wrote down, or recorded, what was said by the attendees at the Council meeting and gathering afterwards. He had no belief or disbelief as to the truth of the statements contained in his Memorandum. He had no basis for believing or disbelieving the speakers at the meeting. If the jury determined Clark knew the statements were false, Clark's testimony must be ignored. Bentley, 94 S.W.3d at 599. To the extent the jury determined that Clark actually entertained serious doubts as to the truth of the statements, his testimony must also be ignored. Id.
Clark also identified Barbara Bowman as a person at the after-meeting who told him Jenkins was a convicted felon and served time in Texas and California for prostitution and drugs. To the contrary, Barbara Bowman testified at trial in the plaintiff's case-in-chief that Fred Burke told Clark that Jenkins had engaged in drugs and prostitution in California, but said nothing about Texas, Jenkins serving time in prison, or being convicted. Bowman unequivocally testified no one at the meeting accused Jenkins of being a convicted felon. Clark did not appear at trial. Rather, Clark's deposition testimony was read. Neither did Clark's counsel call Burke to testify. Given the jury's finding regarding actual malice, we ignore Clark's testimony and find the jury determined Bowman's testimony to be credible.
B. The Clark Memorandum
The Clark Memorandum falsely stated that Jenkins was "a convicted felon having served prison time in Texas and California for Prostitution and Drugs." The Memorandum was addressed to a United States Congressman and DOJ's Civil Rights Division. Based upon this statement, Clark unequivocally demanded Jenkins "be removed from office immediately."
The law does not allow someone the unrestricted right to publish statements about public officials that are untrue, and in upholding this principle the courts of this State have held that, "[a]s a general rule a publication concerning a public officer, in order to be libelous per se, must be of such a character as, if true, would subject him to removal from office." Fitzjarrald v. Panhandle Publishing Co., 149 Tex. 87, 228 S.W.2d 499, 503 (1950); Rawlins v. McKee, 327 S.W.2d 633, 637 (Tex.Civ.App.-Texarkana 1959, writ ref'd. n.r.e.) (collected cases cited therein); see 50 Tex.Jur.3d Libel and Slander § 34 (2000); Marshall v. Mahaffey, 974 S.W.2d 942, 949 (Tex.App.-Beaumont 1998, pet. denied); Houston Chronicle Pub. Co. v. Flowers, 413 S.W.2d 435, 438 (Tex.Civ. App.-Beaumont 1967, no writ). Libel per se means the written or printed words are so obviously hurtful to the person aggrieved that they require no proof of their injurious character to make them actionable. Morrill v. Cisek, 226 S.W.3d 545, 549-50 (Tex.App.-Houston [1st Dist.] 2006, no pet.).
Having considered the statement in issue and the circumstances under which it was made, we find that the Clark Memorandum is not of a character that should receive protection under the principles of the First Amendment. "The Constitution seeks to secure liberty and not licentiousness." Koehler, 200 S.W. at 244.
C. Clear and Convincing Proof of Actual Malice
A plaintiff is entitled to prove the defendant's state of mind through circumstantial evidence. Bentley, 94 S.W.3d at 591; Harte-Hanks, 491 U.S. at 668, 109 S.Ct. at 2685. In general, the Texas and United States Supreme Courts recognize *438 three types of circumstantial evidence that would likely support a finding of actual malice: (1) where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified, anonymous account; (2) when the allegations made are so inherently improbable that only a reckless man would have put them in circulation; and (3) there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports. Bentley, 94 S.W.3d at 596; St. Amant, 390 U.S. at 732, 88 S.Ct. at 1326. The Clark Memorandum must also be construed as a whole, in light of the surrounding circumstances based upon how a person of ordinary intelligence would perceive the entire statement. See Turner, 38 S.W.3d at 114; Wood v. Dawkins, 85 S.W.3d 312, 317 (Tex.App.-Amarillo 2002, pet. denied).
Our analysis begins with the origination of the Clark Memorandum. Clark testified he took notes at the after-meeting and simply recorded what the attendees stated. He testified that everything in his Memorandum originated with statements people made at the after-meeting. Clark also testified he was trained as a federal records management officer to objectively record events, and Joe testified Clark was sent to Athens because of his detailed note-taking abilities. Furthermore, Clark testified he had no belief or disbelief regarding his statement about Jenkins.
We have already determined that the jury's answer to the charge indicates that they disbelieved Clark's testimony that he had no belief or disbelief as to the truth or falseness of his statement about Jenkins and that they could have believed Bowman's testimony that Clark did not learn all of the information contained in his statement about Jenkins at the after-meeting. Therefore, relying on Bowman's testimony and Clark's testimony that his information came only from statements at the after-meeting, the jury could have inferred he "made up" or "imagined" the facts underlying his statement related to Jenkins. We find this inference reasonable and supported by the evidence.
Clark and Joe testified Clark was dispatched to Athens to take notes of what transpired and draft a memorandum to prompt an investigation by Congressman Sessions and DOJ. The Clark Memorandum is clearly an "action" memorandum, i.e., an advocacy document designed not only to prompt an investigation, but to remove Jenkins from office immediately. Nowhere in the Memorandum are the facts or information described as merely the recordation of statements made during meetings of Athens's city government or its concerned citizens. Rather, Clark describes himself as an eyewitness in attendance at the City Council workshop and, with the exception of one paragraph,[21] his factual recitations and opinions are wholly unqualified. The Clark Memorandum's authoritative tone, unqualified language, use of the first person, formal format, and author's signature line, give the appearance Clark is writing with some command of the facts underlying his discrimination claims. Regardless whether Clark was simply a note-taker at the Athens meetings, when he returned to Dallas and drafted the memorandum, he plainly became an advocate for an investigation in *439 Athens and Jenkins's removal from office.[22]
Moreover, there was substantial testimony at trial that a significant number of additional allegations in the Clark Memorandum were untrue and Clark's "eyewitness account" of the City Council workshop was a gross misrepresentation of the events that transpired.[23] The uncontroverted testimony indicated it was not true that: black people were being murdered on a daily basis in Athens; a black man was killed by the Athens police some three weeks prior to the Clark Memorandum; a black woman was tortured by the Athens Police Department and denied medical care; Vance was at the helm of the Garland Police Department when a racial incident occurred; Athens recruited its new police chief because of his racist credentials; peaceful picketing was not allowed in Athens; and picketers were harassed.
Regarding Clark's "eyewitness account" of what transpired at the City Council workshop, the uncontroverted testimony indicated it was not true that the Mayor told only black people to leave the meeting; the Mayor vented extreme hatred by telling the black attendees he did not appreciate the attendance of outsiders; black citizens were refused copies of the minutes of the meeting; the workshop never took place and was a mere future agenda item; only three people were allowed to speak at the workshop; workshop only lasted nine minutes; and black citizens were told to meet with the new police chief individually, not as a group.
Thus, the uncontroverted evidence indicates Clark purposefully drafted an incendiary instrument designed to prompt an investigation in Athens and remove Jenkins from office. Given the gross discrepancies regarding Clark's account of what transpired at the City Council workshop and apparently false allegations and statements contained in his Memorandum, a jury could readily infer that Clark misrepresented facts and stated false allegations and opinions in order to attain his predetermined goals. This includes embellishing Burke's allegations related to Jenkins to include convictions as well as imprisonment in multiple states. See Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517, 111 S. Ct. 2419, 2433, 115 L. Ed. 2d 447 (1991) (deliberate alteration of a statement resulting in a material change in the meaning conveyed by the statement is proof of reckless disregard); Cantrell v. Forest City Publishing Co., 419 U.S. 245, 253, 95 S. Ct. 465, 470-71, 42 L. Ed. 2d 419 (1974) (where reporter fabricated and imagined false facts for purposes of bolstering theme of feature article, jury was "plainly justified" in finding that reporter portrayed the Cantrells in a false light through knowing or reckless untruth); Carson v. Allied News Company, 529 F.2d 206, 213 (7th Cir.1976) (defendants, in fabricating and imagining facts, necessarily entertained serious doubts as to the truth *440 of the statements and had a high degree of awareness of their probable falsity).
In reaching our conclusion, we find two cases instructive. In Cantrell, a reporter was writing a feature article discussing the impact upon a family whose father died in a well-documented bridge collapse. 419 U.S. at 247, 95 S.Ct. at 467. The reporter visited the Cantrell's residence where he interviewed Cantrell's children. Although Mrs. Cantrell was not at home, his article contained a description of her demeanor as well as a statement attributed to her. The article also contained significant misrepresentations pertaining to the dilapidated state of the Cantrell home and their poverty condition. Based upon these facts, the Cantrell Court affirmed a jury finding and appellate determination that the reporter and his publisher had "published knowing or reckless falsehoods about the Cantrells." 419 U.S. at 252-53, 95 S.Ct. at 470.
In Guam Federation of Teachers, Local 1581, of the American Federation of Teachers v. Ysrael, 492 F.2d 438 (9th Cir. 1974), cert. denied, 419 U.S. 872, 95 S. Ct. 132, 42 L. Ed. 2d 111 (1974), the defendant caused various defamatory statements concerning a Union and its officers opposed to his appointment to a school board to be published in a newspaper. The court determined that the defendant's testimony at trial as an adverse witness was sufficient alone to get the plaintiffs to the jury under the New York Times standard and described his testimony as follows:
[h]e repeatedly admitted that he did not know whether what he said was true. He repeatedly admitted that he did nothing, or almost nothing, to verify his charges. As to most of his statements, he repeatedly admitted that he knew of no facts to support them; he either relied upon unspecified rumor or nothing at all. He simply asserted that he believed what he said was true.
Id. at 439.
Given the facts presented at trial, the jury could have reasonably inferred that Clark either falsely reported the information he received about Jenkins at the after-meeting, or imagined additional facts he was not told to further his purpose of seeking an investigation of her past activities or immediate removal from office. This inference is reasonable under circumstances where the Clark Memorandum itself is riddled with numerous other falsehoods, misrepresentations, and innuendoes designed to achieve his predetermined result.
Like the defendant in the Guam Federation case, Clark also repeatedly admits he did not know whether the statements related to Jenkins were true; he did nothing to verify the alleged criminal convictions and knew of no facts to support the statements. According to Clark, he relied on the word of complete strangers who were interested parties with whom he had no reference for determining the veracity of what they were telling him about a person he had never met. Although the defendant in Guam Federation at least testified he believed his statements to be true, Clark testified he had no belief, good faith or otherwise, in the truth of his statements about Jenkins. The behavior exhibited by Clark is more than reckless disregard of the truth or falsity of the information he published it is simply no regard.
Putting aside for a moment the evidence indicating Clark "made up" or "imagined" the information, the jury's verdict is also buttressed by the "inherently improbable" nature of the statements in the Clark Memorandum, i.e., an elected, sitting official had earlier been convicted and imprisoned in two states for crimes related to drugs and prostitution. This is even more *441 so where one of the crimes allegedly committed was in the very state where the person is serving office, and the validity of the claims could be easily determined by a public records search. See Burger v. McGilley Memorial Chapels, Inc., 856 F.2d 1046, 1052 (8th Cir.1988) (jury could find employer did not rely in good faith on employee's statement easily refutable either by confronting the former employee or making a simple check of the employer's records).
All this, in addition to Clark's departure from his training and past performance as a detailed, objective note-taker and the fact that Clark did not perform a simple public records check despite his apparent disbelief regarding the extreme allegations being made about the routine murder of black citizens in Athens coupled with the complete absence of any information regarding the veracity of his sources, provide more than adequate support for a finding of actual malice by clear and convincing evidence. See Goldwater v. Ginzburg, 414 F.2d 324, 337 (2nd Cir.1969), cert. denied, 396 U.S. 1049, 90 S. Ct. 701, 24 L. Ed. 2d 695 (1970), reh'g denied, 397 U.S. 978, 90 S. Ct. 1085, 25 L. Ed. 2d 274 (1970) ("[r]epetition of another's words does not release one of responsibility if the reporter knows that the words are false or inherently improbable, or there are obvious reasons to doubt the veracity of the person quoted or the accuracy of his reports").
Clark asserts this case is most similar to St. Amant v. Thompson. In St. Amant, a candidate for public office, the defendant, St. Amant, made a televised speech in which he quoted a statement from a single source, Albin, who indicated that the plaintiff, Thompson, had engaged in criminal activity. The Supreme Court determined there was nothing in the record to indicate any awareness by the defendant of the probable falsity of the source's statement and that a failure to investigate alone does not itself establish bad faith. 390 U.S. at 732-33, 88 S.Ct. at 1326. At first blush, these facts appear somewhat similar to our own.[24] There is, however, a defining difference between St. Amant and this case. Here, none of the statements made to Clark at the after-meeting had any indicia of truthfulness because, according to his testimony, Clark had absolutely no reference to judge the veracity of any statement he received. On the other hand, in St. Amant, the defendant had substantial evidence upon which he could judge the veracity of his source:
St. Amant made his broadcast in June 1962. He had known Albin since October 1961, when he first met with members of the dissident Teamsters faction. St. Amant testified that he had verified other aspects of Albin's information and that he had affidavits from others. Moreover Albin swore to the answers, first in writing and later in the presence of newsmen. According to Albin, he was prepared to substantiate his charges. St. Amant knew that Albin was engaged in an internal struggle in the union; Albin seemed to St. Amant to be placing himself in personal danger by publicly airing the details of the dispute.
390 U.S. at 733, 88 S.Ct. at 1326-27.
At best, Clark repeated in writing a false, scandalous rumor consisting of *442 trumped up felony charges, convictions, and imprisonment in furtherance of removing Jenkins from office. At worst, Clark made up or imagined the felony charges, convictions, and imprisonment of Jenkins to further a predetermined result. In either instance, Jenkins has established Clark acted with "actual malice" by clear and convincing evidence.
Conclusion
Clark's sole issue and the subparts thereto are overruled. Accordingly, we affirm the judgment of the trial court.
QUINN, C.J., concurring in result only.
Appendix
DATE: Thursday, November 20, 2002
MEMORANDUM FOR: Ms. Daisy Evella Joe, CEO, B.C.J.L.O. Incorporated
The Honorable Pete Sessions, United States Representative
United States Department Of Justice Civil Rights Division
REASON: Murder and Intimidation of Black Citizens in Athens, Texas (Henderson County)
FROM: Paul Martin Clark, President, B.C.J.L.O. Incorporated
The City of Athens, Texas (Pam Burton-Athens City Manager) extended an invitation to the Blacks in North Athens to discuss a pattern of murders and intimidation of Athens Black Residents by the Police Force of Athens. The Workshop as they labeled it was to be held at the Athens City Hall at 11:30 a.m. on 501 North Pinkerton Street (Annex Building). The Reverend Charles Stovall, Pastor of the Camp Wisdom United Methodist Church of Dallas, 12 Black Residents of Athens and myself were in attendance. The workshop never took place and was a mere future agenda item in their regular Athens City Hall Meeting Session. Only 3 people were allowed to speak. So, as you can see it lasted for only 9 minutes. One additional black resident attempted to speak and was abruptly cut off by Athens Mayor Jerry King who asked all of the black residents to leave the building because they had other city business to discuss. Mayor King also vented extreme hatred by telling the entire group of black Athens citizens that he did not appreciate them inviting, "OUTSIDERS" like Reverend Stovall and myself. He told us, the black group to speak with new Police Chief Jim Vance individually and not as a group. Here are some observations that need attention and immediate action by Congress and the Justice Department.
1. The memorandum of Agreement and Understanding between The Athens Police Department and the Black Citizens of Athens is null and void. It was signed by the former Police Chief of Athens Dave Harris who retired and still runs the Athens Police Department in an ex-officio capacity as a paid consultant. All memorandums of agreement and understanding are not recognized by law because they are not a law, rule or regulation.
2. The new police chief of Athens came from Garland, Texas Police Department which has a long standing legacy of hatred and abuse of black citizens. Athens Police Chief Jim Vance was at the helm of the Garland Police Department when a black pharmacist from the Eckerd's Drug Store in Garland was beaten beyond recognition by a Garland Police Officer in 1999. Athens in effect recruited a police chief with racist credentials to continue the legacy of unchecked murder of black citizens in Athens.
*443 3. No one from Congressman Pete Sessions Athens office or East Dallas Office showed up at the so-called workshop. The citizens called Congressman Pete Sessions toll free number in Dallas and never received a call back. There is a perception on the part of these citizens that the staff of Congressman Sessions Athens office has ties to the local Ku Klux Klan chapter in Athens and are large wealthy contributors to Congressman Pete Sessions election campaigns.
4. The only black female Athens City Council member is Gladys Elaine Blanton Jenkins. She is a convicted felon having served prison time in Texas and California for Prostitution and Drugs. She is controlled by Athens Mayor Jerry King. No one in the State of Texas can hold elective office who has felony convictions. She must be removed from office immediately.
5. A black man was killed by the Athens Police some three weeks ago. Nothing was investigated.
6. Shaneque Tilley, a black female from Athens (DOB 7-22-1982) was arrested by the Athens Police as the (sic) crawled into the window of Tilley's North Athens home. The Athens Police beat her as she was 9 months pregnant and killed her unborn child who was aborted. Tilley is now chained naked to a prison bed in the Athens City Jail (Henderson County Seat), bleeding, has no access to medical care or sanitary napkins. We asked Mayor Jerry King to give us access to Tilley he denied it. Tilley is also not allowed any bond from a black bail bondsman named Barbara and Clyde Bowman Sr. who can be reached at (903) 675-5474. No hospital or doctor for a woman that had a miscarriage of a child at the brutal hands of the Athens City Police.
7. The Athens Police intimidate, harass and murder black residents on a daily basis. They come out of their police cars and approach black teens with their weapons drawn. They follow black residents around the city, pulled over Ms. Barbara Bowman who had prom dresses. dumped the prom dresses into the grass and then stomped over them to make them unusable. They ticket black citizens even if they don't turn on a car turn indicator 100 feet from the stop sign to increase revenue and land all black into the jail system. They intimidate black older citizens of Athens calling them nigger girl and nigger boy. Ms. Bowman has a list of all the black citizens in Athens that have been murdered by the Athens police and the Klan who are one in the same.
8. Peaceful picketing is not allowed in Athens and it is a law. If blacks picket, they will be met head on by Athens Police. The Police have taunted Ms. Bowman in Court during Trial in Judge Elaine Coffman's Court.
9. Lee Alcorn, of the Coalition of Civil Rights took $6,700 from the black citizens of North Athens to represent them. He turned around and sold their confidential information to Mayor Jerry King and the outgoing Athens Police Chief. Now these citizens are targeted by the Police.
10. Councilwoman Elaine Jenkins threatened Mrs. Barbara Bowman because Mrs. Bowman called radio station KNON in Dallas and spoke about how the Athens Police were killing blacks and torturing them on a routine basis.
11. The Athens police does racial profiling. The only people punished in Athens Teen Court are blacks. The other white kids that get in trouble just merely pay a fine and never appear in court.
*444 12. Mayor Jerry King refused to give the black citizens of Athens the minutes to the meeting. We demanded and he stated that 10 copies was basically too much. We would have to come back because the feeder on the Xerox machine was not working properly and would have to be manually fed. A woman whose son was murdered by the Athens Police is not allowed to visit her birthplace which is Athens, Texas. She can not visit her elderly mother. The last time she visited Athens, she was at the Dollar General Store, confronted by the Police and told to leave. Her elderly mother was visited by the Athens Police and threatened.
In closing, it was best summed up by Reverend Charles Stovall. "The Athens Police Force is responsible for the suffering and intimidation of Black citizens. The memorandum and it's (sic) revisions mean nothing to the City of Athens and the Police Force. Mrs. Bowman was not even listed on the Bonding List and the Police Chief issued her a letter of Apology. We do not know if Ms. Tilley is alive or dead.
Signed,
/s/
Paul Martin Clark
President
BCJLO Inc. (214) 328-3722
NOTES
[1] Jenkins was born and raised in Athens. She is a mother of three children, employed as the lead teller at the Texas Trust Credit Union, and an ordained minister who practices her ministry at the Church of Living God in Athens. She was elected to the Athens City Council by the city at large, and her area of representation included North Athens.
[2] Joe appeared at trial on BCJLO's behalf.
[3] Bowman believed Jenkins was unresponsive to her concerns related to harassment by the Athens Police Department and, more specifically, the death of a North Athens resident. Jenkins indicated that, when she asked Bowman for facts to back up her accusations, Bowman did not provide any information. Jenkins believed that, in some areas of the black community, she was considered an outsider because she would not take unsubstantiated allegations to the City Council. Jenkins testified that Bowman, CCNA, and BCJLO wanted her removed from the City Council.
[4] Joe testified she slid a loose cover page into the envelopes containing the Memorandum that stated "Summary and accounting of meeting in Athens, Texas on 11-20-02 of the city meeting and after meeting with North Athens Black Citizens of Concern approximately 10 people present." Aside from her testimony, there is no evidence of record of the cover page or its receipt by Sessions or the Department of Justice.
[5] Joe testified she could have verified whether the criminal charges alleged against Jenkins were legitimate by performing a public records search which she had performed in the past.
[6] Sessions testified by videotape that his office investigates constituents' complaints. The complaints are typically investigated by his local staff members and are generally carried out by interacting with people and asking questions. He also indicated this type of investigation is separate from his ability to participate in formal investigations initiated by Congress. He further testified Congressional Committees have the power to issue subpoenas and compel testimony but, as a Congressman investigating a constituent's complaint, Sessions had no subpoena power and could only effectuate change through informal methods.
[7] In its answer to Question No. 3, the jury found BCJLO either authorized, or ratified, Clark to commit libel against Jenkins. The jury also found Clark and BCJLO jointly and severally liable for the actual damages of $300,000, and individually liable for their share of exemplary damages, $100,000 each. Neither Clark nor BCJLO raise any issue related to their joint liability nor the jury award of exemplary damages. They also filed a joint notice of appeal. Accordingly, in our Discussion, we will refer to "Clark and BCJLO" collectively as "Clark."
[8] New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964).
[9] 472 U.S. 479, 105 S. Ct. 2787, 86 L. Ed. 2d 384 (1985).
[10] Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961), and United Mine Workers v. Pennington, 381 U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 626 (1965).
[11] Unlike the Texas Constitution, the federal counterpart combines the right to freedom of speech with the right to assemble and petition for redress as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of people peaceably to assemble, and to petition the Government for a redress of grievances.
U.S. Const. amend. 1.
[12] In fact, the Framers of the Texas Constitution first considered an absolute guarantee of free speech and subsequently adopted a provision making communicators responsible for an abuse of the right to free speech. The Texas Supreme Court in O'Quinn v. State Bar of Texas, 763 S.W.2d 397, 402 (Tex. 1988), observed:
[t]he original draft of section 4 of the Declaration of Rights of the 1836 Constitution for the Republic of Texas provided: `No law shall ever be passed to curtail the liberty of speech or the press.' 1 Gammel, Laws of Texas 868 (1898). But, by the time of its adoption the Fourth Declaration of Rights of the Texas Constitution of 1836 stated: `Every citizen shall be at liberty to speak, write, or publish his opinions on any subject, being responsible for the abuse of that privilege.
Emphasis added.
[13] When interpreting the Texas Constitution, we "rely heavily on its literal text and must give effect to its plain language." Stringer v. Cendant Mortgage Corp., 23 S.W.3d 353, 355 (Tex.2000); Republican Party of Tex. v. Dietz, 940 S.W.2d 86, 89 (Tex. 1997). Clark contends the three words "or other purposes" somehow expands the Petition Clause to protect statements by petitioners with an "absolute privilege." However, we interpret these three words as modifying the phrase "for redress of grievances" to include petitions for "purposes other" than the "redress of grievances." The phrase "or other purposes" does not speak or relate to the granting of any special privileges or protections for those who exercise their rights under the Petition Clause.
[14] Hott v. Yarborough, 112 Tex. 179, 245 S.W. 676 (Tex.Comm'n App.1922, judgm't adopted), also cited by Clark, is similar to Connellee. In Hott, the court held that the contents of a letter to a grand jury foreman were absolutely privileged because communications to the grand jury in the regular performance of its duties were subject to the common law rule applicable to judicial proceedings. Id. at 678. That the Hott court cites to a Vermont Supreme Court case, Harris v. Huntington, 2 Tyl. 129, 1802 WL 777, (Vt.1802), for a general discussion of the scope of absolute privileges is not persuasive authority that the Hott court intended to extend an absolute privilege to all petitioners. In Harris, the Vermont Supreme Court extended an absolute privilege to a petition addressed to the Vermont Legislature asking the legislative convention not to reappoint a particular Justice of the Peace. In Harris, the Vermont House of Representatives was empowered by its Constitution to impeach state criminals and acted as the "grand inquest of the State to charge such criminals." As such, the Vermont Legislature acted in a capacity similar to that of a grand jury determinating whether to issue indictments.
[15] Wood v. State, 577 S.W.2d 477 (Tex.Crim. App.1978), also cited by Clark, is anomalous. In Wood, the defendant challenged the constitutionality of the Penal Code provision making it a crime to file a false police report under the Petition Clause. The officer who was the subject of her complaint did not bring an action for defamation. Moreover, the court decided the case on the sufficiency of the evidence under the Penal Code provision making it a crime to file a false police report, ignored any constitutional issues, and tied its ruling to the case. Id. at 480 n. 2.
[16] Examples where the privilege has been held to apply include statements made in correspondence sent, and conferences convened, in anticipation of litigation; in pretrial hearings, depositions, affidavits, pleadings or papers filed in the case; pleadings delivered to the media and settlement letters sufficiently connected with a pending or potential suit. Bennett, 932 S.W.2d at 201.
[17] This is an objective test. Whether Clark and/or Joe "believed" that Sessions and/or DOJ were under a duty to keep their communications confidential or their communications were absolutely privileged, is irrelevant. We also note the Memorandum contains no language, legends, or banners indicating the information contained therein was, or should be treated as, confidential.
[18] Likewise, United States v. Hylton, 558 F. Supp. 872 (D.C.Tex.1982), aff'd, 710 F.2d 1106 (5th Cir.1983), is of no assistance to Clark's appeal. In Hylton, the defendant sought an acquittal on federal charges of attempting to intimidate and impede an IRS investigation. After defendant filed a criminal complaint against two IRS agents, the IRS filed an action claiming defendant filed her complaint intending to obstruct an IRS investigation rather than assert her own rights. Id. at 874. No one alleged a claim for defamation. Rather, the IRS alleged the defendant attempted to utilize legal processes to attain an improper result. Here, Jenkins does not assert Clark improperly petitioned Congressman Sessions and DOJ, but that Clark defamed Jenkins in the process.
[19] In Bentley, the Texas Supreme Court observed:
[i]f the First Amendment precluded consideration of credibility, the defendant would almost always be a sure winner as long as he could bring himself to testify in his own favor. His assertions as to his own state of mind, if they could not be disbelieved on appeal, would surely prevent proof of actual malice by clear and convincing evidence absent a `smoking gun' something like a defendant's confession on the verge of making a statement that he did not believe it to be true. The First Amendment does not afford even a media defendant such protection.
94 S.W.3d at 597.
[20] Clark contends that Congressman Sessions's testimony supports a finding that Clark acted in good faith. Although Sessions testified that he believed Clark acted in good faith, he also testified he read only the portion of the Clark Memorandum in which he and his office were named; he believed he had met Clark briefly once; and he could not testify whether Clark acted in good faith in connection with his involvement in Athens in November 2002. Congressman Sessions's testimony regarding Clark's good faith is equivocal at best and largely irrelevant because the actual malice test is a subjective one that focuses on the defendant's state of mind. See New Times, 146 S.W.3d at 162; Bentley, 94 S.W.3d at 591.
[21] In paragraph three of the Clark Memorandum, Clark qualifies his accusation that the staff of Congressman Sessions's Athens office have ties to the Ku Klux Klan with the statement "there is a perception on the part of these citizens that. . . ." This qualification indicates Clark at least considered the need to qualify certain language in the Memorandum and either believed additional qualification was unnecessary or chose not to qualify other statements.
[22] Regardless whether the jury found Joe's testimony related to the coverpage credible, the test for "actual malice" focuses on Clark's "belief in, or attitude toward, the truth of the communication at issue." Accordingly, we focus on Clark's subjective belief at the time he made the statements, not Joe's subsequent actions.
[23] At trial, Jenkins produced a number of witnesses that corroborated her evidence: Charles Hawn (regional district office manager for Congressman Sessions), Pam Burton (Athens City Administrator), Elaine Jenkins (City Council person and plaintiff), and Jerry King (former Mayor of Athens). Clark did not appear at trial and did not call any members of the CCNA or other witnesses who attended the City Counsel workshop or after-meeting to rebut the testimony of Jenkins's witnesses.
[24] In St. Amant, the facts were as follows:
St. Amant had no personal knowledge of Thompson's activities; he relied solely on Albin's affidavit although the record was silent as to Albin's reputation for veracity; he failed to verify the information with those in the union office who might have known the facts; he gave no consideration to whether or not the statements defamed Thompson and went ahead heedless of the consequences; and he mistakenly believed he had no responsibility for the broadcast because he was merely quoting Albin's words.
390 U.S. at 730, 88 S.Ct. at 1325. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382481/ | 248 S.W.3d 596 (2008)
Robert H. SIHNHOLD, Appellant,
v.
MISSOURI STATE EMPLOYEES' RETIREMENT SYSTEM, Respondent.
No. SC 88813.
Supreme Court of Missouri, En Banc.
April 1, 2008.
*597 Jay Angoff, Roger G. Brown, Jefferson City, for appellant.
Allen D. Allred, Jeffrey R. Fink, Thompson Coburn, LLP, St. Louis, for respondent.
RICHARD B. TEITELMAN, Judge.
Robert Sihnhold served as an administrative law judge (ALJ) for eighteen years. He is a member of the state ALJ retirement plan administered by the Missouri State Employees' Retirement System (MOSERS). When Mr. Sihnhold's employment as an ALJ terminated in 1989, section 287.815 provided that an ALJ could begin receiving retirement benefits at the age of sixty-five. In 1999, section 287.815 was amended to reduce the age of eligibility for benefits to sixty-two. Mr. Sihnhold filed a declaratory judgment action against MOSERS alleging that he is entitled to retirement benefits at the age of sixty-two pursuant to the 1999 amendment to section 287.815. The circuit court entered summary judgment for MOSERS. The court held that application of the amended version of section 287.815 would be an unconstitutional grant of extra compensation to Mr. Sihnhold under article III, sections 38(a) and 39(3) of the Missouri Constitution. The judgment is affirmed.
ANALYSIS
I. STANDARD OF REVIEW
The standard of review for an appeal from summary judgment is essentially de novo. ITT Commercial Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The Court will uphold summary judgment if "there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law." Hayes v. Show Me Believers, Inc., 192 S.W.3d 706, 707 (Mo. banc 2006).
II. SECTION 287.815
When Mr. Sihnhold's employment as an ALJ terminated in 1989, section 287.815 provided that "[a]ny person, sixty-five years of age or older, who has served . . . *598 in this state for an aggregate of twelve years . . . as an administrative law judge . . . shall receive benefits." As amended in 1999, the current version of section 287.815 provides that "any person, sixty-two years of age or older . . . shall receive benefits." The issue is whether eligibility for benefits is governed by the amended statute or, as MOSERS asserts, by the statute in effect when Mr. Sihnhold's employment terminated.
III. THE MISSOURI CONSTITUTION PROHIBITS RETROACTIVE APPLICATION OF SECTION 287.815
Article III, section 39(3) of the Missouri Constitution provides that "[t]he general assembly shall not have power . . . (3)[t]o grant . . . any extra compensation, fee or allowance to an officer, agent, servant, or contractor after service has been rendered." Mo. CONST. art. III, § 39(3). Article III, section 38(a) provides that "[t]he general assembly shall have no power to grant public money or property . . . to any private person. . . ." Mo. CONST. art. III, § 38(a).
There are two principal cases that apply the foregoing constitutional provisions in circumstances similar to this case. The first case, State ex rel. Cleaveland v. Bond, 518 S.W.2d 649 (Mo.1975), involved a retired judge who sought retirement benefits under a statute enacted after his retirement. As of the date of his retirement, the judge was not entitled to benefits. Id. at 651. Subsequently, a new statute was enacted that created a retirement plan for judges and purported to make the benefits available to previously retired judges. Id. The Court rejected the retired judge's claim for benefits because "[t]he only possible justification for including him would be on some theory of reward for past services rendered, which would constitute the grant of extra compensation to a private individual for a service that had been rendered, or in other words a gratuity." Id. at 654. The provisions of the statute that retroactively granted benefits to previously retired judges were held unconstitutional under article III, sections 38(a) and 39(3). Id. at 654.
The second case, Police Retirement System of Kansas City v. Kansas City, 529 S.W.2d 388 (Mo.1975), involved a suit by retired police officers seeking cost-of-living adjustments based upon a statute passed subsequent to their retirement. The Court held that the statute was unconstitutional because it constituted a grant of "extra" or "add on" compensation in violation of article III, section 39(3). Id. at 393.
The rationale of the Cleaveland and Police Retirement System cases demonstrates that a retroactive award of three years of extra pension benefits to Mr. Sihnhold would be unconstitutional. When Mr. Sihnhold's employment terminated in 1989, section 287.815 provided that he would become eligible for benefits at the age of sixty-five. If the 1999 amendment is applied and Mr. Sihnhold is deemed eligible for benefits at age sixty-two, he would obtain three extra years of compensation to which he was not entitled at the time he rendered his services. Consequently, the circuit court was correct to hold that application of the amended version of section 287.815 to Mr. Sihnhold would constitute a grant of extra compensation in violation of article III, sections 38(a) and 39(3).
IV. OTHER ARGUMENTS
In order to avoid application of the limitations in article III, sections 38(a) and 39(3), Mr. Sihnhold argues in his second point that the amended version of section 287.815 is applicable because the legislature has the authority to enact a statute that waives the right of the state to object *599 to retrospective application of a new statute. Mr. Sihnhold asserts that Savannah R-III School District v. Public School Retirement System of Missouri, 950 S.W.2d 854 (Mo. banc 1997), supports his argument. In Savannah R-III, the Court noted that the article I, section 13 ban on retrospective laws is intended to protect citizens and, as a result, does not prevent the legislature from passing laws that waive the rights of the state or its political subdivisions. Id. at 858. The Savannah R-III case does not address the separate constitutional limitations found in article III, sections 38(a) and 39(3) that are at issue in this case. Unlike article I, section 13, article III, sections 38(a) and 39(3), expressly prohibit the general assembly from awarding extra compensation for services already rendered. The general assembly cannot waive express limitations on its power.
In his third and final point on appeal, Mr. Sihnhold argues that he should be treated as a "special consultant" not subject to the limitations in article III, sections 38(a) and 39(3). Mr. Sihnhold relies on State ex rel. Dreer v. Public School Retirement System of the City of St. Louis, 519 S.W.2d 290 (Mo.1975), in which the Court held that a statute permitting former employees to be employed as "special consultants" in order to increase their retirement compensation did not violate article III, sections 38(a) and 39(3). This argument is without merit because there is no statute that allows Mr. Sihnhold to be employed as a special consultant.
CONCLUSION
The circuit court held correctly that article III, sections 38(a) and section 39(3) bar application of the 1999 amendment to section 287.815 and that Mr. Sihnhold's eligibility for retirement benefits is governed by the version of section 287.815 in effect when his employment as an ALJ was terminated. The judgment is affirmed.
All concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382489/ | 102 F. Supp. 1019 (1952)
ARUNDEL CORP.
v.
UNITED STATES.
No. 49743.
United States Court of Claims.
March 4, 1952.
*1020 Floyd F. Toomey, Washington, D. C., for plaintiff. (Lee, Toomey & Kent, Washington, D. C., on the briefs.)
Joseph H. Sheppard, Washington, D. C., Ellis N. Slack, Acting Asst. Atty. Gen. (Andrew D. Sharpe, Washington, D. C., on the brief), for defendant.
Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and HOWELL, Judges.
JONES, Chief Judge.
The question here involved is whether the payment of income taxes to the Government of Puerto Rico by a joint venture of which plaintiff corporation was a member entitled the plaintiff to a credit against its federal tax liability in the United States of a proportionate share of such taxes under the provisions of Section 131 of the Internal Revenue Code, 26 U.S.C.A. § 131.
The stipulation of facts shows the following: Plaintiff is a corporation organized under the laws of the State of Maryland. For the years 1940, 1941, 1942, and 1943, the plaintiff filed with the appropriate Collector of Internal Revenue federal income and excess profits tax returns, and paid for each year an amount in excess of the refund herein claimed. In each return the plaintiff declared its election to take the credit granted by Section 131 of the Internal Revenue Code for the amount of taxes paid or accrued during those years to any foreign country or possession of the United States.
On November 29, 1939, the plaintiff and another Maryland corporation entered into an agreement of joint venture for the performance of certain construction work at San Juan, Puerto Rico, under a Navy contract, and on October 21, 1941, a third corporation joined the venture.
During the years 1940, 1941, 1942, and 1943, the joint venturers performed work under the Navy contract and received and accrued net income therefrom which was subject not only to tax under the Internal Revenue Code of the United States but also under the laws of Puerto Rico. Under the laws of Puerto Rico income taxes for the years here involved were imposed not only upon the joint venturers' distributable shares of the joint venture's income but also upon the income of the joint venture itself as a separate taxable entity. Thus for the years 1940 through 1943 plaintiff paid to the Puerto Rican government income taxes as follows: $130,557.73, as the tax on plaintiff's distributable share of the joint venture's income; and $184,597.56, as plaintiff's proportionate share of the tax assessed upon the income of the joint venture as a separate entity.
Upon final audit of plaintiff's federal returns for 1940, 1941, 1942, and 1943, the Commissioner of Internal Revenue allowed the taxes paid to Puerto Rico upon the plaintiff's distributable share of the income from the joint venture, in the aggregate amount of $130,557.73, as a direct credit against federal taxes of the plaintiff for the several years involved, under Section 131 of the Internal Revenue Code. This determination is not here involved.
Plaintiff claims here that the Commissioner should also have allowed as a direct credit under Section 131 against its federal taxes for the years involved, the amount of its proportionate share of the tax paid upon the income of the joint venture as a separate taxable entity. It is this amount which is the subject of the present suit.
The Commissioner determined that the amount in question was allowable as a deduction from gross income under Section 23(c) of the Internal Revenue Code in determining plaintiff's share of the net earnings of the joint venture [except for the years 1940 and 1941, for which no timely claim had been made for allowance under Section 23(c)]; but that it was not allowable as a direct credit under Section 131 against plaintiff's federal taxes.
The following statutes are applicable:
(Internal Revenue Code.)
"§ 131. Taxes of foreign countries and possessions of United States.
"(a) Allowance of credit. If the taxpayer chooses to have the benefits of this section, the tax imposed by this chapter, except the tax imposed under section 102, shall be credited with:
*1021 "(1) Citizens and domestic corporations. In the case of a citizen of the United States and of a domestic corporation, the amount of any income, war-profits, and excess-profits taxes paid or accrued during the taxable year to any foreign country or to any possession of the United States; and
"(2) Resident of United States. * *
"(3) Alien resident of United States. * * *
"(4) Partnerships and estates. In the case of any such individual who is a member of a partnership or a beneficiary of an estate or trust, his proportionate share of such taxes of the partnership or the estate or trust paid or accrued during the taxable year to a foreign country or to any possession of the United States, as the case may be.
* * * * * *
"§ 181. Partnership not taxable.
"Individuals carrying on business in partnership shall be liable for income tax only in their individual capacity.
* * * * * *
"§ 186. Taxes of foreign countries and possessions of United States.
"The amount of income, war-profits, and excess-profits taxes imposed by foreign countries or possessions of the United States shall be allowed as a credit against the tax of the member of a partnership to the extent provided in section 131."
(Puerto Rican Income Tax Act of 1924, Puerto Rico Laws, 1925, p. 400, as amended by Act of April 12, 1941, Puerto Rico Laws, 1941, p. 478.)
"Section 2. (a) When used in this Act
"(1) The term "person" means an individual, a trust or estate, a civil or mercantile, and industrial or agricultural partnership, or a corporation.
* * * * * *
"(3) The term "partnership" includes civil, business, industrial, agricultural and professional partnerships or of any other kind, whether or not its constitution is set forth by public deed or private document; and it shall include, further, two or more persons, under a common name or not, engaged in a joint venture for profit.
* * * * * *
"Section 15. (a) The term "gross income" includes * * * dividends, partnership profits * * *.
* * * * * *
"Section 28. (a) There shall be levied, collected, and paid for each taxable year on the net income of every corporation or partnership a tax of * * * on the net income in excess of the credits provided for in Section 34, except that domestic corporations and partnerships shall pay a tax of * * *.
(Code of Commerce of Puerto Rico, Section 104, 1932 ed.)
"[Members of a general partnership are] personally and jointly liable with all their property for the results of the transactions consummated in the name and for the account of the partnership, under the signature of the latter, and by a person authorized to make use thereof."
Under both Puerto Rican and United States tax laws, the term "partnership", for all purposes material here, included a joint venture such as that in which plaintiff was engaged, and the terms are used interchangeably in this opinion.
Plaintiff's argument is that, first, it is entitled to allowance of credit under Section 131(a) (1) for the amount in question, since plaintiff was the "taxpayer" of its proportionate share of the income tax against the joint venture as a separate taxable entity. To this defendant replies that under Puerto Rican law the tax was laid upon the joint venture as a separate entity, and therefore plaintiff as a member of the joint venture was not the "taxpayer" within the meaning of Section 131(a) (1).
Plaintiff's argument in the alternative is that even if it were not the taxpayer under Section 131(a) (1), it would nevertheless be entitled to the credit sought under Section 131(a) (4). To this argument defendant replies that Section 131(a) (4) allows such credits only to "individual" members of a partnership (or joint venture), and that since plaintiff was a corporation and not an individual it cannot claim the advantage of Section 131(a) (4).
The controversy is grounded in the divergent concepts of a partnership in the Puerto *1022 Rican law and in the laws of the United States. The Supreme Court of Puerto Rico took notice of that difference in Ballester v. Court of Tax Appeals, 61 P.R.R. 460, 478: "* * * But the term `partnership' is not used in our Income Tax Act in the common-law sense. It is a translation of the term `sociedad' found in the civil law. And a sociedad is a juridical person apart from the members thereof. Puerto Rico v. Russell & Co., 288 U.S. 476, [53 S. Ct. 447, 77 L. Ed. 903]. There is therefore no constitutional objection against assimilating a partnership or sociedad to a corporation for tax purposes, and taxing both the partnership and its individual members on the same income. Fantauzzi et al. v. Bonner, 34 P.R.R. 464, 74. To compare our situation with that obtaining under the Federal Income Tax Act as applied to a common-law partnership, which under that Act is not treated as a separate entity, except for accounting purposes, and which therefore pays no tax as such, is to invoke a false analogy. * *"
A closely analogous situation to that presented here arose in Biddle v. Commissioner, 302 U.S. 573, 58 S. Ct. 379, 381, 82 L. Ed. 431. In British law a stockholder receiving dividends from profits of a British corporation was required to report as income, in addition to the amounts actually received, an amount known as the tax "appropriate" which reflected her proportion of the tax paid by the corporation on its own profits. Under British law a stockholder receiving such dividends was regarded as having paid "by deduction or otherwise" the tax "appropriate" to the dividends. In her federal income tax returns the stockholder, an American citizen, included in gross income the entire sums so reported in her British returns and claimed credit under Section 131(a) (1) for the amount of the British tax appropriate to the dividends. The United States Supreme Court held that the tax appropriate should not have been included as gross income in the federal tax return and that it was not available as a credit under Section 131(a) (1), since by American standards the taxpayer was not the one who had paid or was subject to the British tax.
Defendant's position here in essence is that Puerto Rican characterizations and classifications of tax legislation must govern. In that connection the Supreme Court in the Biddle case said:
"At the outset it is to be observed that decision must turn on the precise meaning of the words in the statute which grants to the citizen taxpayer a credit for foreign `income taxes paid.' * * *
"Section 131 does not say that the meaning of its words is to be determined by foreign taxing statutes and decisions, and there is nothing in its language to suggest that, in allowing the credit for foreign tax payments, a shifting standard was adopted by reference to foreign characterizations and classifications of tax legislation. The phrase `income taxes paid,' as used in our own revenue laws, has for most practical purposes a well-understood meaning to be derived from an examination of the statutes which provide for the laying and collection of income taxes. It is that meaning which must be attributed to it as used in section 131.
* * * * * *
"* * * the British conception [is] that the standard tax paid by the corporation is passed on to the stockholders.
"Our revenue laws give no recognition to that conception. * * * Nor have they treated as taxpayers those upon whom no legal duty to pay the tax is laid. * *"
Thus it is evident that defendant's position here has been foreclosed by the Biddle decision.
The analogy is clear. In Biddle the Court resorted to American law to determine, for American tax purposes, whether the taxpayer there had paid the foreign tax, notwithstanding the conflicting foreign concepts. In this case it is the American law which must determine, for American tax purposes, whether the plaintiff was the taxpayer of the Puerto Rican tax, notwithstanding Puerto Rican concepts.
Under American law the tax upon partnership income is imposed upon and is payable by the partners upon their respective distributable shares; and there is no tax imposed upon the income of the partnership *1023 as a separate entity. Thus in the view of the American law it may be said that the total Puerto Rican tax upon the partnership income was imposed in two separate levies upon the partners, once nominally upon the partnership as a separate entity, and once upon the partners upon their respective distributable shares. But it was the individual partners who actually paid and were subject to both levies. Even under Puerto Rican law, Code of Commerce, supra, the individual partners were personally liable for the tax nominally laid upon the partnership as a separate entity. The plaintiff here was not only legally liable to pay the tax upon the partnership as a separate entity, but it did in fact pay that portion of the tax for which it here seeks credit. It was therefore entitled under Section 131(a) (1) to the credit there provided in the case of a domestic corporation for the amount of income tax paid or accrued to a possession of the United States.
This view of the case makes it unnecessary to rule upon plaintiff's contention that Section 131(a) (4) is applicable to corporate members of a joint venture as well as to non-corporate individual members. It suffices to hold that plaintiff is entitled to the credit sought under Section 131(a) (1).
By stipulation of the parties entry of judgment will be withheld pending recalculation by the parties of the amount due in accordance with this opinion.
HOWELL, MADDEN, WHITAKER, and LITTLETON, Judges, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382513/ | 587 P.2d 53 (1978)
92 N.M. 275
STATE of New Mexico, Plaintiff-Appellee,
v.
Jimmy Lee WAITS, Defendant-Appellant.
No. 3654.
Court of Appeals of New Mexico.
November 7, 1978.
*54 Paquin M. Terrazas, Terrazas & Dorr, P.A., Santa Fe, for defendant-appellant.
John Humphrey, Jr., Trial Counsel, Lovington.
Toney Anaya, Atty. Gen., Lawrence A. Gamble, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.
OPINION
HENDLEY, Judge.
Convicted of receiving stolen property contrary to § 40A-16-11(E), N.M.S.A. 1953 (2d Repl. Vol. 6, 1972, Supp. 1975), defendant appeals. He contends that:
"THE TRIAL COURT ERRED IN ADMITTING THE PRELIMINARY HEARING TESTIMONY OF A CRITICAL WITNESS FOR THE STATE WHEN THERE WAS AN INSUFFICIENT SHOWING THAT THE WITNESS WAS UNAVAILABLE, THEREBY DENYING THE DEFENDANT HIS CONSTITUTIONAL RIGHT TO CONFRONT AND CROSS-EXAMINE WITNESSES AGAINST HIM AT TRIAL."
Other issues listed in the docketing statement have been abandoned. State v. Ortiz, 90 N.M. 319, 563 P.2d 113 (Ct.App. 1977). We reverse.
The victim, Mr. Allen, appeared and testified at the preliminary hearing and was cross-examined by defendant. Approximately two months prior to trial, Allen was served with a New Mexico subpoena in Texas. The subpoena was not issued in accordance with the Uniform Act to Secure the Attendance of Witnesses from without a State in Criminal Proceedings. See §§ 41-12-13 through 18, N.M.S.A. 1953 (2d Repl. Vol. 6, 1972). Allen did not appear at trial. Allen had not appeared the previous day in a related criminal case. The trial court concluded that since Allen had been served with a subpoena, the state had made a diligent effort to procure his attendance and over defendant's objection allowed the use of Allen's preliminary hearing testimony.
*55 The state asserts that a proponent of evidence must meet the good faith and due diligence standards in determining whether process or other reasonable means has been employed in securing the attendance of a witness. We agree, but the definition of "process or other reasonable means" must first be determined before the question of unavailability can be decided.
New Mexico Rule of Evidence 804(a)(5) [§ 20-4-804(a)(5), N.M.S.A. 1953 (Repl.Vol. 4, 1970, Supp. 1975)] states:
"(a) Definition of Unavailability. `Unavailability as a witness' includes situations in which the declarant:
"* * *
"(5) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means."
Process must be defined as legal process. That is, it must not only be fair on its face but also valid. Black's Law Dictionary, (4th Ed. 1957) p. 1370. New Mexico has no legal authority to compel a person living in Texas to appear in its courts by issuance of a New Mexico subpoena. See Rules of Crim.Proc. 48(a) and Rule Civ.Proc. 45(e). The subpoena issued in New Mexico and served in Texas had no legal effect. Its issuance and service did not constitute good faith or due diligence on the part of the state in attempting to secure the attendance of Allen. The state did not meet its burden of showing unavailability.
What were "other reasonable means" available to the state? The Uniform Act was available. See Tex. Code Crim. Proc.Annot., art. 24.28 (Vernon) as amended. The Uniform Act was a reasonable means. Compare State v. Lucero, 86 N.M. 686, 526 P.2d 1091 (1974); State v. Sibold, 83 N.M. 678, 496 P.2d 738 (Ct.App. 1972); State v. Holly, 79 N.M. 516, 445 P.2d 393 (Ct.App. 1968). Lucero, supra, held that where an action had been initiated under the Uniform Act for an out-of-state witness, absent an admission of facts, the trial court had no discretion in denying a request for a continuance when the out-of-state witness did not respond. The court went on to state that it should have been granted as a matter of right.
The ruling in the instant case that the witness was unavailable was error. It deprived defendant of his right of confrontation and cross-examination. Barber v. Page, 390 U.S. 719, 88 S. Ct. 1318, 20 L. Ed. 2d 255 (1968). Accordingly, we hold that under the facts of this case that before a witness can be declared unavailable the state must use the procedures of the Uniform Act. State v. Mann, 87 N.M. 427, 535 P.2d 70 (Ct.App. 1975), special concurring opinion. Smith v. State, 546 P.2d 267 (Okl. Cr.App. 1976).
Reversed.
IT IS SO ORDERED.
HERNANDEZ and LOPEZ, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266894/ | 240 P.3d 1048 (2010)
2010-NMCERT-005
SANCHEZ
v.
STATE.
No. 32,308.
Supreme Court of New Mexico.
May 25, 2010.
Denials of Certiorari. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266898/ | 4 F. Supp. 294 (1933)
PYRITES CO., Inc.,
v.
DAVISON CHEMICAL CO.
No. 2160.
District Court, D. Maryland.
August 1, 1933.
*295 Rowland K. Adams and O. Bowie Duckett, Jr. (of Adams & Hargest), both of Baltimore, Md., for claimants.
G. Ridgely Sappington and Wilson K. Barnes, both of Baltimore, Md., for receivers of Davison Chemical Co.
CHESNUT, District Judge.
The Davison Chemical Company, a Maryland corporation, is in general equity receivership in this court. The receivers were appointed February 13, 1933. Prior to the receivership David E. Wilson and Frank Gaylor respectively, were employed by the Company. In the course of their employment both were injured prior to the receivership. The injury to Wilson occurred on October 5, 1928; that to Gaylor on December 19, 1931.
Acting under the Longshoremen's and Harbor Workers' Compensation Act (33 US CA §§ 901-950), the Deputy Commissioner made an award of compensation to Wilson by order dated May 8, 1933, to be paid at the rate of $6.34 per week beginning January 27, 1933, and to continue until there is a change in condition, payment to be made weekly. Prior to the making of said award the Davison Chemical Company had voluntarily made weekly payments of compensation to Wilson up to and including January 26, 1933, a total of $1,322.03. In the case of Gaylor, by order passed June 24, 1932, by the Deputy Commissioner, compensation was awarded at the rate of $8.54 per week for the period of 55.5 weeks beginning May 1, 1932, and terminating on or about May 23, 1933; and the Company made payments on account of the award up to and including February 4, 1933. At the time of the appointment of receivers the balance remaining unpaid was $132.37, being for 15.5 weeks at $8.54 per week.
Gaylor's petition asks for the payment of this latter amount as a preferred claim. Wilson's petition points out that under the award to him the maximum possible additional liability of the Company over and above what has previously been paid is $6,177.97, and that a commutation of this amount if made in accordance with the requirements of the Longshoremen's and Harbor Workers' Compensation Act would be the present capital payment of $4,041.80, for which amount he now asks a present preferential payment. The validity of the awards is not questioned. The Davison Chemical Company did not carry compensation insurance before the receivership but filed an indemnity bond which may prove to be insufficient in amount.
The act of Congress known as the Longshoremen's and Harbor Workers' Compensation Act became effective March 4, 1927 (title 33, United States Code, §§ 901-950 [33 USCA §§ 901-950]). Its constitutionality (with certain constructive implications) has recently been upheld by the Supreme Court in Crowell v. Benson, 285 U.S. 22, 52 S. Ct. 285, 76 L. Ed. 598, and the underlying philosophy and nature of the legislation, and its application, have been recently considered by the Circuit Court of Appeals for this Fourth Circuit in Wheeling Corrugating Co. v. McManigal, 41 F.(2d) 593, 595, and United States Casualty Co. v. Taylor (C. C. A.) 64 F.(2d) 521.
The claim for preference in this case is based on section 17 of the act (33 USCA § 917) which reads as follows: "Compensation a Lien Against Assets. Compensation shall have the same preference of lien against the assets of the carrier or employer without limit of amount as is now or may hereafter be allowed by law to the claimant for unpaid wages or otherwise."
So far as counsel or the court have been able to discover, there is no prior reported judicial decision construing or applying this section of the law as contained in this act of Congress. But, as stated by Judge Parker, in the Wheeling Corrugating Co. Case, supra, the statute is modeled upon the New York Workmen's Compensation Law (Consol. Laws, c. 67); and section 917 is apparently a reproduction of section 34 of the New York law (as it read before recent amendment). See Lane v. Industrial Commissioner of State of New York, 54 F.(2d) 338, 340 (C. C. A. 2). The question presented here is whether or not by the proper construction of the section, it applies to the compensation awards made to these claimants respectively or any part thereof. While the section is brief and seemingly verbally clear, it nevertheless presents, as a case of first impression, several points for consideration. The preference that is given is (a) the "same" (b) as is "allowed by law" (c) but "without limit of amount" (d) for "unpaid wages or otherwise." The expression "or otherwise" has no apparent application to this case. It is agreed by counsel that the phrase "by law" has reference to the law of the State where the question arises with respect to preference for "unpaid wages." No other meaning of the phrase is *296 presently apparent unless perhaps if the case should arise in bankruptcy (as it does not here, this case being in equity), the bankrupt law may be comprehended by it. The only Maryland statute which is applicable is section 15 of article 47 of the Maryland Code of 1924 (Bagby's Annotated Code of Maryland), the pertinent provisions of which are:
"Whenever any person or body corporate * * * shall have * * * its property or estate taken possession of by a receiver under a decree of a court of equity, in the distribution of the property or estate of such person or body corporate, all the money due and owing from such person or body corporate for wages * * * contracted not more than three months anterior to the * * * appointment of receiver, shall first be paid in full out of such property or estate, after payment of the proper and legitimate costs, expenses, taxes and commissions, and shall be preferred to all claims against the property and estate of such insolvent person or body corporate, except the lien claims of such persons as shall hold liens upon such property or estate, recorded at least three months prior to such assignment, adjudication or decree."
So far as I am aware, there are no creditors holding recorded liens in substantial amount. The corporation was, prior to the receivership, engaged on a very large scale in the manufacture and sale of fertilizers and the business is now being continued by the receivers who have at the present time very substantial cash funds on hand. We are concerned here, therefore, only with the preference, if any, of these compensation awards as against the claims of common creditors.
It will be noted that the Maryland Act limits the preference for wage claims to those due and owing and contracted "not more than three months anterior to the * * * appointment of receiver." But section 917 of the Longshoremen's and Harbor Workers' Compensation Act expressly declares that the preference given by law to unpaid wages shall be "without limit of amount." The principal and important question of construction thus presented is whether or not the limitation as to time of origin of the wage claims, as provided for in the Maryland statute, is literally operative in this case to restrict the extent of the preference in view of the wording of section 917 of the Longshoremen's and Harbor Workers' Compensation Act, which gives the preference "without limit of amount." There is said to be no legislative history of the Act of Congress to aid in the construction.
The question is not free from all doubt. No doubt the Maryland statute must be considered in the light of its construction and application by the Maryland Court of Appeals; and it is entirely clear from a number of decisions therein that wage claims are not entitled to preference unless the wages were due and owing within the three month period prior to the receivership. For illustration see Roberts v. Edio, 85 Md. 181, 186, 36 A. 820; Baltimore Trust Co. v. Rowe, 141 Md. 155, 118 A. 405. See, also, In re Reliable Furniture Co. (D. C. Md.) 32 F.(2d) 805; sub nom. Manly v. Hood, 37 F.(2d) 212 (C. C. A. 4). It is also clear enough from section 917 that the local law determines the rank if not the measure of the lien. A merely literal application of the Maryland statute would give the petitioners only a small portion of the total compensation awards still due them, that is the weekly instalments thereof that matured within three months prior to the receivership on February 13, 1933. If this is the full extent of their preference it may be said that to them it would seem the effect of section 917 is to "keep the promise to the ear but break it to the hope."
There is, however, I think, another permissible view to be taken. It is a fair construction of section 917 that Congress intended in the expression "the same preference" to mean the rank or priority of preference given by the state law. And if so, then clearly by section 917 the extent of the preference here is without limit of amount. And I think it may fairly be said that the chief purpose of the Maryland act in prescribing the three month period was to limit the amount or extent of preference given to unpaid wages. I am not aware of any other local legislative policy in this respect.
A merely literal application of the Maryland statute would fall far short of the evident purpose of Congress in this modern social legislation. "Compensation" is given to the employee as a statutory measured indemnity for a capital physical loss caused by some act or omission occurring wholly at a particular time, resulting in a disability which may be either permanent or temporary. By the policy of the law in the best interests of the employee, compensation is ordinarily payable in instalments in the future, and it is only in the unusual case to be commuted and paid in a capital lump sum. See section 14 of the Longshoremen's and Harbor Workers' Compensation Act (33 USCA § 914). It is an obligation imposed by law based upon the idea of the status or relationship of employer and employé. Cudahy Packing Co. v. Parramore, *297 263 U.S. 418, 423, 44 S. Ct. 153, 68 L. Ed. 366, 30 A. L. R. 532. It is a statutory substitute for the common law right of action by the employé which might culminate in a judgment for a capital sum as damages. The obligation of the employer to indemnify for the loss is in its nature a single entity just as was the common law chose in action of the employé. That it is to be liquidated in periodic partial payments does not transmute its legal nature from an entire obligation into several separate obligations each arising from the several periodic payments required to be made, until the whole is paid. Though analogized to "wages" for its preferential status as against the common creditors, it is unlike wages in that the employer is not free to terminate the continuing obligation by discharging the employé. The whole unpaid balance of "compensation" is thus "due and owing" (in the terms of the Maryland statute) although payable under the award periodically in the future, and the amounts unpaid in this case were therefore so due and owing during the three months period prior to the receivership. There was no element of contingency inherent in the obligation as was present in the case of Baltimore Trust Co. v. Rowe, 141 Md. 155, 118 A. 405, relied on by counsel for the Receivers. By section 2 (12) of the Longshoremen's and Harbor Workers' Compensation Act (33 USCA § 902 (12), "`compensation' means the money allowance payable to an employee or to his dependents as provided for in this chapter."
And as said in the Wheeling Case, supra:
"Its purpose is to extend to the workers upon navigable waters of the United States, who cannot be reached by state legislation, the benefits of a compulsory system of compensation for disability or death resulting from injuries received in the course of their employment. This system of compensation is based, not upon ancient fictions of the law, but upon the principles of industrial insurance in application of the theory that industrial accidents, whether due to the negligence of the worker or not, are a hazard of the business; and that they should be borne, not by the individual worker, but by the industry in which he is engaged."
Therefore, when the Longshoremen's Act gives that preferential status to "compensation" which is given by the state law to "wages" without limit of amount, it is unreasonable to conclude that Congress meant, by reference to the state law, to limit the preference to only those longshoremen and harbor workers whose injuries occurred within a relatively short time prior to insolvency, or to limit the instalments payable weekly over a long period, where the injury was a severe one, to those accruing during a few months prior to the receivership or insolvency. It should be borne in mind that the act of Congress is national in its scope though operating locally only through state legislation. It is true the application of the statute might have been made clearer if Congress had gone into more detail in section 917, in view of the different state statutes. But nevertheless, I think the dominant purpose of the Act is fairly clear in view of the subject matter. The resultant construction may seem somewhat like fitting a square peg into a round hole, but nevertheless I think the driving force of the Act is sufficient to accomplish it.
While there seems to be no precedent for this particular case, a closely analogous situation was presented in Mastin & Co. v. Pickering Lumber Co. (D. C. Cal.) 2 F. Supp. 605, where compensation awards under the California law were ordered to be preferentially paid by receivers in federal equity. The California statute (Gen. Laws 1931, Act 4749, § 24 (e) provided that compensation awards "shall have the same preference over the other debts of the employer, or his estate, as is given by law to claims for wages. Such preferences shall be for the entire amount of the compensation to be paid, but this section shall not impair the lien of any previous award." The pertinent portion of the state law providing priority for payment of wages, included the following:
"The wages and salaries of miners, mechanics, salesmen, servants, clerks, laborers, and other persons, for personal services rendered such assignor * * * within ninety days prior to * * * the commencement of the proceeding when a court action is involved, and not exceeding two hundred dollars each, constitute preferred claims, * * * and must be paid as soon as the money with which to pay same becomes available." Code Civ. Proc. Cal. § 1204.
It will be noted that the section of the California Compensation Act providing for preference is in effect the same as that contained in the Longshoremen's and Harbor Workers' Compensation Act, and the preference for wages given by the California law is similar to the Maryland law in limiting the origin of the wages to be preferred to the period of ninety days prior to the court proceeding, and the statute also limits the amount to $200. The opinion does not expressly state *298 the amount or time of origin of the compensation claims involved, and the effect, if any, of the ninety day period is not discussed, but from a reading of the case as a whole (and after reference to copies of the pleadings obtained from counsel) it seems inferable that the period of ninety days mentioned in the statute was not regarded as an effective factor to limit the amount of the preference. If this inference is correct, it would seem the case is by analogy a precedent for the construction above adopted in this present case.
In Lane v. Industrial Commissioner of State of New York, 54 F.(2d) 338, the Circuit Court of Appeals for the Second Circuit declined to give a preferential status in bankruptcy to compensation awards under the New York Workmen's Compensation Law. Section 34 of the New York law (as it then read I am informed it has since been amended) provided for such preference in language almost identical with that of section 917 of the Longshoremen's and Harbor Workers' Compensation Act. But the case is, I think, clearly distinguishable here for two reasons; first, this proceeding is not in bankruptcy, and secondly, the New York statute giving preference to wage claims was not broad enough in its provisions to apply at all to what there occurred. The court held that a state Legislature may not give priority in bankruptcy proceedings to workmen's compensation or wage claims; and compensation awards growing out of legislation based upon the concept of a status rather than contract were not either "wages" or "debts" within the meaning of section 64b (5) and (7) of the Bankruptcy Act, 11 USCA § 104 (b) (5, 7).
Other cases dealing with generally similar subject matter, but not directly in point here by reason of materially different wording of the statutes, are In re Inglis Manufacturing Co., 292 F. 907 (D. C. Wis.); Wood v. Camden Iron Works, 221 F. 1010 (D. C. N. J.); Steel & Iron Mongers, Inc., v. Bonnite Insulator Co., 90 N. J. Eq. 200, 106 A. 380. See, also, Schneider's Workmen's Compensation Law, § 570; Brzinski v. Acme Body Co. (D. C. N. J.) 37 N. J. L. J. 183; Kennison v. Kanzler (C. C. A. 6) 4 F.(2d) 315; West Virginia Rail Co. v. Jewett (D. C. Ky.) 26 F.(2d) 503.
In my opinion it logically follows that the claimants in this case, Wilson and Gaylor, are now entitled to be paid in full the weekly instalments of compensation respectively awarded to them which have accrued up to the present time; and the receivers should be ordered to make such payments out of the funds now in their hands and to continue to make similar weekly payments in the future to Wilson in accordance with the award of the Deputy Commissioner in his case, and until some further order is made by the Deputy Commissioner, or until the further order of this court in the premises. I do not think there is any occasion at the present time for the court to provide for a capital payment by commutation of the balance of Wilson's claim, especially as no such order or commutation has heretofore been made by the Deputy Commissioner. If there should be a distribution of the assets of the Davison Chemical Company before the completion of the payments to Wilson under the award, the question as to commutation of the weekly payments due to him into a capital sum can then be taken up for consideration.
I will sign orders in accordance with the aforegoing opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266900/ | 239 P.3d 473 (2010)
2010 OK CIV APP 72
Lindsey K. SPRINGER, Plaintiff/Appellant,
v.
RICHARDSON LAW FIRM, Richard D. Marrs, E. Diane Hinkle, and Kevin D. Adams, Defendants/Appellees.
No. 106,227. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.
Court of Civil Appeals of Oklahoma, Division No. 1.
June 25, 2010.
*474 Lindsey K. Springer, Tulsa, OK, Pro se.
WM. C. HETHERINGTON, JR., Judge.
¶ 1 Plaintiff Lindsey K. Springer (Appellant) appeals a trial court order in favor of Defendants Kevin Adams, Richard Marrs, Diane Hinkle, and The Richardson Law Firm (Law Firm) (collectively Appellees), which sustained their motions to dismiss Appellant's defamation petition and which denied his motion to grant default judgment against Hinkle and Marrs. We AFFIRM.
¶ 2 As a preliminary matter, we note that Appellees did not file an entry of appearance or a response to any of Appellant's petitions in error, as required by Okla.Sup. Ct.R. 1.5 and 1.25.[1] Appellees did not file answer briefs, choosing instead to waive their right to do so pursuant to Okla.Sup.Ct.R. 1.105(a)(5). Consequently, this appeal will be submitted on Appellant's brief only. Thomason v. Sears, 1998 OK CIV APP 66, ¶ 6, 957 P.2d 144, 145; and Taylor v. Payne, 1994 OK CIV APP 40, ¶ 17, 872 P.2d 953, 956. Under such circumstances, this Court is under no duty to search the record for a theory to sustain the trial court's judgment if Appellant's brief is reasonably supportive of the allegations of error. Bob Moore Cadillac, Inc. v. Proctor, 1999 OK CIV APP 12, ¶ 6, 975 P.2d 918, 920. If Appellant's brief does not support the allegations of error, the trial court's disposition will be affirmed. Id.
¶ 3 "The standard of review for an order dismissing a case for failure to state a claim upon which relief can be granted is de novo and involves consideration of whether a plaintiffs petition is legally sufficient." Fanning v. Brown, 2004 OK 7, ¶ 4, 85 P.3d 841, 844. When reviewing a motion to dismiss, we must take as true all of the pleading's allegations together with all reasonable inferences which may be drawn from them. Id. "A pleading must not be dismissed for failure to state a legally cognizable claim unless the allegations indicate beyond any doubt that the litigant can prove no set of facts which would entitle him to relief." Id. The party moving for dismissal pursuant to 12 O.S.2001 § 2012(B)(6) has the burden to show the legal insufficiency of the petition. Indiana National Bank v. State of Oklahoma, Dept. of Human Services, 1994 OK 98, 880 P.2d 371.
¶ 4 On April 22, 2008, Appellees filed a petition in Tulsa County District Court on behalf of their clients, Eddy and Judith Patterson, alleging, inter alia, legal malpractice, fraud, and deceit against several defendants, including Appellant. (Patterson Petition) Less than a month later, on May 2, 2008, Appellant filed a 145-page petition in the same district court against Appellees, attaching 10 exhibits to support fourteen "Counts," the last of which states Appellees "individually and collectively, made false, fraudulent, libelous and slanderous public statements, against [Appellant], by naming [him] in a Complaint and placing at least 13 purported statements of truth that they each knew were not true, presented them collectively as true, to cause harm to [Appellant] and his mission and ministry."[2] (Emphasis added.) Service was obtained on Appellees.
*475 ¶ 5 On June 24, 2008, Appellee Adams, on his own behalf, filed a motion to dismiss Appellant's May 2, 2008 Petition for failure to state a claim upon which relief can be granted pursuant to 12 O.S.2001 § 2012(B)(6), arguing an inspection of that petition reveals "the only alleged libelous statements" are those from the Patterson Petition, which publication is part of a judicial proceeding and therefore a privileged publication and exempt pursuant to 12 O.S.2001 § 1443.1 and Samson Investment Co. v. Chevaillier, 1999 OK 19, 988 P.2d 327. The next day, Appellees Marrs, Hinkle and Law Firm filed a brief in support of their joint § 2012(B)(6) motion to dismiss Appellant's petition, claiming it was based solely on statements from the Patterson Petition which were privileged communications because they were made in the course of judicial proceedings and adopting all arguments made by Adams.
¶ 6 On July 8, 2008, Appellant filed responses to both § 2012(B)(6) motions[3] and filed two separate motions seeking default judgment against Appellees Hinkle and Law Firm. By order filed September 24, 2008, the trial court granted Appellees' motions to dismiss, without specific mention of its reason for doing so, and denied Appellant's motion for default judgment. Appellant's appeal followed.
¶ 7 "Libel is a false or malicious unprivileged publication by writing ..." 12 Ohio St. 2001 § 1441. "Slander is a false and unprivileged publication, other than libel ..." 12 O.S.2001 § 1442. A privileged publication or communication is one made "in any legislative or judicial proceeding ..." 12 O.S.2001 § 1443.1. "In order to recover for defamation, a private figure must prove (1) a false and defamatory statement, (2) an unprivileged publication to a third party, (3) fault amounting at least to negligence on the part of the publisher; and (4) either the actionability of the statement irrespective of special damage, or the existence of special damage caused by the publication." (Emphasis added.) Trice v. Burress, 2006 OK CIV APP 79, ¶ 10, 137 P.3d 1253, 1257.
¶ 8 The issue of whether a communication is privileged is a question of law to be determined by the court. Samson Investment Co. v. Chevaillier, 1999 OK 19, 988 P.2d 327. The "litigation privilege" upon which Appellees rely "accords attorneys, parties, jurors and witnesses immunity for comments or writings made during the course of or preliminary to judicial or quasi-judicial proceedings." (Emphasis added.) Id., ¶ 5. It applies "regardless of whether [the communications] are true or false." Id., ¶ 8 (quoting Kirschstein v. Haynes, 1990 OK 8, ¶ 18, 788 P.2d 941, 950).
¶ 9 The litigation privilege was applied to a petition drafted by the attorney in Samson preliminary to a judicial proceeding and to an affidavit prepared by the attorney in Kirschstein preliminary to a quasi-judicial proceeding, because each communication and the circumstances surrounding each communication had some relation to the proposed proceedings. The Court in Pacific Employers Ins. Co. v. Adams, 1946 OK 86, 168 P.2d 105, also applied the litigation privilege to an allegedly libelous statement contained in a pleading which had been filed by a party in a judicial proceeding before the Workers' Compensation Court, concluding the statement was pertinent to the question raised by the motion to discontinue compensation.
¶ 10 Based on our review of the May 2, 2008 Petition, it provides a stronger case for application of the litigation privilege to exempt Appellees from Appellant's defamation action. All of the statements under each of Appellant's 13 "Counts" are direct quotes from the April 22, 2008 Petition, which was published to initiate the judicial proceeding in Tulsa County District Court, and as in Samson, Kirschstein, and Adams, we conclude the statements and the circumstances surrounding the statements are clearly relevant and/or pertinent to that judicial proceeding.
*476 ¶ 11 Consequently, we need not address Appellant's interpretation-based and alternatively-plead constitutional argument he raised below. He presents no authority here for the proposition that 12 O.S.2001 §§ 1441, 1442, or 1443.1 are unconstitutional as to any constitutional provisions he cited below. Nor do we find Appellant's brief reasonably supportive for reversal of the trial court's denial of his motion for default judgment, considering Appellees Hinkle and Law Firm properly filed with Appellee Marrs a § 2012(B)(6) motion to dismiss Appellant's petition. The trial court's order denying Appellant's motion for default judgment and dismissing the May 2, 2008 Petition for failure to state a claim upon which relief may be granted is AFFIRMED. Appellees Hinkle and Marrs', Law Firm's and Adams' motions for sanctions in the form of appeal-related attorney fees are DENIED.
BUETTNER, P.J., concurs.
HANSEN, J., concurs in part, dissents in part.
¶ 12 I concur with the opinion and its reasoning and result. However, I would grant sanctions under 20 O.S. § 15.1.
NOTES
[1] Appellees Marrs, Hinkle and the Law Firm did file a motion to dismiss Appellant's Second Amended Petition-In-Error for failure to comply with several Supreme Court rules, which the Supreme Court denied by Order filed May 12, 2009.
[2] Exhibit 10 of Appellant's May 2, 2008 Petition establishes that each of Appellant's thirteen "Counts" are direct quotes from the April 22, 2008 Petition's "Facts Pertaining to All Claims" and each alleges Appellees "made false, fraudulent, libelous and slanderous public statements, against [Appellant], representing as fact on April 22, 2008 ..."
[3] The only exhibit attached to Appellant's response is the April 22, 2008 Petition which was attached to Appellant's petition as Exhibit No. 10. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266931/ | 4 F. Supp. 175 (1933)
CREASY
v.
UNITED STATES.
District Court, W. D. Virginia, at Roanoke.
January 31, 1933.
*176 Carleton Penn, of Roanoke, Va., for plaintiff.
Joseph C. Shaffer, U. S. Atty., of Roanoke, Va.
PAUL, District Judge.
This is a suit upon a policy of war risk insurance, to which the government has filed a plea of the statute of limitations.
The statute as amended July 3, 1930 (U. S. C. title 38, § 445 [38 USCA § 445]), provides that no such suit shall be allowed unless brought within six years after the right under the policy accrued, or within one year after July 3, 1930, whichever is the later date. In the present case, the latter alternative is applicable. The statute further provides that the limitation upon the bringing of such a suit shall be suspended for the period elapsing between the filing in the Veterans' Bureau of the claim sued upon and the denial of the claim by the Director.
The meaning and effect of the provision as to suspension of the limitation during the period when the claim is before the Bureau is clearly set forth in an opinion by Judge Chesnut, of the District Court for the District of Maryland, in the recent case of Hipkins v. United States, 1 F. Supp. 505, 506, with the reasoning and conclusions of which I fully agree.
As stated by Judge Chesnut: "The suspension of a statute of limitations for a certain period is, in effect, `time taken out,' for that period and adds the same period of time to the limitation provided in the statute. Applying the language of the statute to the facts of this case, we find it provided that the suit *177 must be brought within one year from July 3, 1930, plus the period of suspension. * * *"
Or to put the matter somewhat differently: When the veteran filed his claim before the Bureau prior to July 3, 1931, the statute of limitations stopped running when he filed his claim; it resumed again when the claim was denied; and suit must be brought within such length of time following denial of the claim as was equal to the unexpired portion of the limitation when the claim was filed. To illustrate: If a veteran filed his claim before the Bureau on June 3, 1931, the statute of limitations was suspended as of that date and with thirty days of the period of limitation unexpired; if the claim was denied on November 15, 1931, then the veteran had thirty days thereafter, or until December 15, 1931, within which to bring suit.
I have no doubt that the above is the proper construction of the statute; but in the present case it becomes necessary to go further and determine the time when a claim is to be considered filed before the Bureau and the time when it is denied.
In this case, according to the stipulated facts, the claim was mailed at Roanoke on July 1, 1931, and a stamp placed on it at the Veterans' Bureau indicates that it was received there on July 3, 1931. The communication denying the claim is a letter from the Veterans' Bureau, which is dated May 6, 1932, but which the veteran states was received by him at Roanoke on May 10, 1932, about noon, the envelope indicating that it was mailed in Washington on May 9th. On May 11, 1932, a copy of the plaintiff's petition in this suit was filed in the office of the clerk of this court at Roanoke; on May 13, 1932, a copy thereof was served on the United States attorney at his office in Roanoke.
The plaintiff contends that the claim is to be treated as filed with the Bureau as of July 1, 1931, the date on which it was mailed from Roanoke; and to be treated as denied on May 10, 1932, the date when he received the letter informing him of its denial.
It is necessary here to determine (1) whether a claim is deemed to be filed as of the date when the claimant mails it to the Bureau or as of the date when it is received by the Bureau; and (2) whether it is to be treated as denied as of the date when the proper officer of the Bureau set down in writing his denial or as of the date when the claimant received such writing.
On the latter of these questions, I have little doubt. It seems logical that the claim is to be taken as denied as of the date when the claimant is informed of the denial. The limitation on bringing suit is suspended while the claim is under consideration by the Bureau, but begins to run again as soon as the claim is denied; and the duty then rests upon the claimant to bring his suit within such time as remains of the period of limitation. If the act of denial of the claim imposes upon the veteran the condition that he must sue within a limited time thereafter, surely he cannot be expected to comply with this condition until such time as he has knowledge of the denial of his claim. In fact, he cannot sue until he knows that his claim has been denied and is no longer under consideration at the Bureau. Only after he has received notice of the denial can he allege the disagreement which is essential to the maintenance of a suit. I hold, therefore, that the claim is to be taken as denied on the date when the claimant received the letter informing him of the denial. It may be argued that it is unreasonable to suppose that a letter dated May 6th in Washington did not reach Roanoke, Va., until May 10th. But the time when the letter was received is a matter to be shown by evidence, and in this case the only evidence introduced is that the letter of denial was received on May 10th, inclosed in an envelope postmarked at Washington on May 9th. With the enormous correspondence handled in the Veterans' Bureau, it is not improbable that the letter was not mailed for a day or so after May 6th. On the evidence, I must hold that the plaintiff received notice of the denial of his claim on May 10th, as stated by him.
The remaining question is whether a claim is deemed to be filed with the Bureau on the day it is received there or on the day it is mailed by the claimant.
The statute (U. S. C. title 38, § 445 [38 USCA § 445]) provides that the limitation shall be suspended for the period elapsing "between the filing in the bureau of the claim sued upon and the denial of said claim by the director." (Italics supplied.) The use of the word "file" or "filing" in a legal sense is almost universally held to mean the delivery of the paper or document in question to the proper officer and its receipt by him to be kept on file.
"A paper or document is said to be filed when it is delivered to the proper officer and lodged by him in his office." Barber Asphalt Paving Co. v. O'Brien, 128 Mo. App. 267, 107 S.W. 25, 29.
"The filing of a paper is the delivery of it to the officer at his office, to be kept by him *178 as a paper on file, and the file mark of the officer is evidence of filing. * * *" Masterson v. Southern R. Co. (Ind. App.) 82 N.E. 1021, 1022.
There are numerous other cases holding that "filing" means the actual delivery to the officer or place designated, and that a paper is filed only at the time it is so delivered to and received by such designated officer. It is true that most of these cases deal with pleadings or other formal documents required to be filed within specified limits or with deeds and similar instruments filed for recordation. But there is no reason to assume that Congress, in its use of the term in this statute, intended it to have a significance other than that which is well and definitely established. By its choice of a word having a definite meaning, it must be assumed that Congress intended what the word imports. The statute, indeed, goes so far as to say that the limitation shall be suspended only from the time of the "filing in the bureau" of the claim sued on. Certainly this would seem to import that the limitation is suspended only from the time when the claim is actually delivered to, and received in, the Bureau. The language of the statute was apparently carefully and purposely chosen, and it has a plain and definite meaning which I am not at liberty to ignore.
When it is required that any notice be given or paper filed to or with a specified person or place, without provision as to the means of so doing, there rests on the person required to give such notice or file such paper the obligation to see that it is actually given or filed. If he contents himself with merely mailing such notice or other paper, he runs the risk that it may be delayed beyond the specified time or may be lost and never delivered at all. This risk is slight, for experience shows that, with rare exceptions, mail matter is transmitted and delivered without loss or delay. The general efficiency of our postal system is such as that the mailing of a letter furnishes a presumption of its receipt. But this is only a presumption of fact of an evidentiary nature, which may be disproven by other evidence. And, if it be clearly and indisputably proven that a notice required to be given or a paper required to be filed had never reached or come to the attention of the person for whom it was intended, it cannot be said that the person required to give the notice or file the paper had filled the obligation imposed on him by utilizing certain methods which ordinarily would have resulted in fulfilling this obligation, but which on the particular occasion unquestionably did not. A person imposed with the duty of giving notice to another cannot be said to have fulfilled that duty when it is an established fact that the latter person never received the notice. This is, of course, without reference to cases where there is some provision of the statute setting forth the method whereby a notice may be given or a paper filed and wherein the prescribed method has been followed.
The essential requisite is that the notice shall be given to, or the paper filed with, a definite person or at a definite place, and no attempts to accomplish this requisite condition are sufficient if they fall short of doing so.
Congress has not here prescribed any particular method or means whereby a claim may be filed, nor has it said that the deposit in the mails of a claim shall be deemed a "filing in the bureau." On the contrary, it has indicated that the suspension of the limitation shall arise only when the claim has been actually received by those who are charged with considering it. It will not do to permit a claimant to make use of such means as he chooses to place his claim before the Bureau, whether it be by mail or some other method, and, when he has taken such action as he may happen to think adequate, to hold that the statute is complied with, whether the claim ever reached the Bureau or not. This would be plainly contrary to the language and intention of the statute.
I must hold, therefore, in the instant case that the suspension of the limitation on this action did not arise until July 3, 1931, the day when the claim was received at the Veterans' Bureau. This was the last day permitted by the statute for the institution of suit. The denial of the claim, as I have stated, was, in my opinion, on May 10, 1932.
When the claim was filed in the Bureau on July 3, 1931, there remained no unexpired portion of the period of limitation. This day (July 3rd) was the very last day upon which, except for filing his claim, the plaintiff would have been permitted to sue. While the claim was being considered at the Bureau, all rights were in suspension. But, when the claim was denied, on May 10, 1932, and the right to sue arose, the plaintiff was compelled to bring his suit on that same date, May 10th. There was no unexpired portion of the period of limitation which reverted to him.
I am unable to take into consideration parts of days, and it seems clear to me that, if the claim was filed with the Bureau on the *179 same day that marked the end of the period of limitation, it follows that, when the claim had been denied, any suit must have been brought on the date of such denial. To give the plaintiff even one additional day would be to give him one day longer than is accorded other veterans and one day longer than the statute provides.
I hold, therefore, that the plaintiff cannot be allowed to maintain this suit for the reason that it was instituted after the expiration of the period permitted by the statute for the bringing of such suits.
The plea of the government that the suit was not brought within the period of limitation involves another matter touching the manner and time of the institution of this suit.
It is provided in title 38, § 445, U. S. C., 38 USCA § 445 (by reference to title 28, § 763), that suit shall be begun by causing a copy of the petition to be served upon the district attorney of the United States in the district where suit is brought, and causing an affidavit of such service to be filed with the clerk of the court. In the instant case, a copy of the petition was filed in the clerk's office on May 11, 1932. Two days later, on May 13th, a copy of the petition was delivered to the United States marshal, who, on the same day, served the same on the district attorney at the latter's office in Roanoke. Counsel for plaintiff avers that he visited the office of the district attorney on May 11th, with the intention of serving the petition on the district attorney or of having the latter accept service, but that he was unable to find the latter or any of his assistants at the district attorney's office on that date. The offices of the clerk, of the United States marshal, and of the district attorney are all in the same building and on the same floor thereof.
It has been held (Reid Wrecking Co. v. U. S. [D. C.] 202 F. at page 317) that the requirement of service upon the district attorney is mandatory; that, suits against the United States being solely by its permission, the procedure prescribed in the grant of such permission must be literally followed, and that courts cannot permit deviation from the letter of such consent.
In this case, it was on May 13th that the petition was delivered for service to the officer (the United States marshal), by whom service of process is ordinarily made. It is true that counsel for the plaintiff had a perfect right to go to the district attorney and have the latter accept service, dispensing with service by the marshal; and he avers that he attempted to do this. Even if it be true that the district attorney and his assistants were absent from their office on May 11th, it does not appear that any particular effort was made to find them; and, although the United States marshal's office is within a few feet of that of the district attorney, the petition was not delivered to the marshal for service at that time, nor until two days later. The continual presence of the district attorney or of his assistants at a fixed office is not required nor to be expected. Attendance at courts throughout the district as well as other duties are such as that their absence from the office at times is necessary and to be expected. The rights of the plaintiff were not enlarged by this not unusual circumstance. It is admitted that the office was open and members of the clerical force were there at work. There appears no reason why service should not have been made by delivering a copy of the petition to a responsible member of this office staff or by serving a copy of it at the place of residence of one of the assistants to the district attorney who lived in Roanoke. It is not necessary to say here whether either of such methods of service would have been good. But I am prepared to say that the mere failure to find a prospective defendant when a casual effort to have him accept process is made does not extend the period of limitation for the service of such process until such later time as the plaintiff may choose to make another effort to find the defendant or to have a process serving officer find him.
As said in Quackenbush v. Isley, 154 Va. at page 412, 153 S.E. 818, 820, quoting Burks on Pleading and Practice: "A limitation fixed by statute is arbitrary and peremptory, admitting of no excuse or delay beyond the period fixed, unless such excuse be recognized by the statute itself."
In my opinion, the filing in the clerk's office on May 11th of a copy of the petition does not affect the situation. The statute provides that what shall be filed with the clerk is an affidavit showing service of the petition on the district attorney. No affidavit was filed touching either service or reasons for failure to make service; and lodging a copy of the petition in the clerk's office is not service upon the government in the manner prescribed. I am of opinion that no valid service was made until May 13th, and the suit was not instituted until that day. This question is of importance, for the reason that, even if I am in error in holding that the last day upon which suit could be brought was *180 May 10, 1932, it seems to me beyond question that it was barred prior to May 13th.
I have chosen to discuss both phases of the plea for the reason that, if an appeal is taken, it seems to me desirable and necessary that the appellate court should pass on both questions. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266939/ | 4 F. Supp. 80 (1933)
STANLEY CO. OF AMERICA, Inc.,
v.
AMERICAN TELEPHONE & TELEGRAPH CO. et al.
GENERAL TALKING PICTURES CORPORATION
v.
SAME.
DUOVAC RADIO CORPORATION
v.
SAME.
Nos. 985, 996, 997.
District Court, D. Delaware.
June 28, 1933.
*81 Hugh M. Morris, of Wilmington, Del., and Samuel E. Darby, Jr., and George E. Quigley, both of New York City, for plaintiff Stanley Co. of America. Hugh M. Morris, of Wilmington, Del., and Samuel E. Darby, Jr., and Ephraim Berliner, both of New York City, for plaintiff General Talking Pictures Corporation.
Hugh M. Morris, of Wilmington, Del., and Samuel E. Darby, Jr., of New York City, for plaintiff Duovac Radio Corporation.
George F. Hurd (of Greene & Hurd), of New York City, and C. M. Bracelen and John H. Ray, both of New York City, and Marvel, Morford, Ward & Logan, of Wilmington, Del., for defendants.
NIELDS, District Judge.
Motions for preliminary injunctions are made on behalf of plaintiffs in three equity suits brought under section 16 of the Clayton Act (15 USCA § 26) to restrain defendants from alleged violations of section 3 of that act (15 USCA § 14) and of sections 1 and 2 of the Sherman Anti-Trust Act (15 US CA §§ 1, 2).
In their main brief plaintiffs state the measure of relief sought by these motions for preliminary injunctions. "It is therefore submitted that an injunction pendente lite should issue herein in all three cases enjoining and restraining the defendants from enforcing directly or indirectly the restrictive clauses of the so-called leases of reproducing equipments, whereby the exhibitors are required to obtain exclusively from Products [Electrical Research Products, Inc.] all repair and replacement parts for said equipments and to permit Products to inspect the same, and charge the Exhibitor therefor, under the guise of rendering service thereto. In addition, in the suit of the Duovac Company, an injunction should issue pendente lite enjoining and restraining the defendants from directly or indirectly enforcing any of the provisions of the producing license agreements whereby the producing licensees of Products are required to obtain exclusively from Products repair and replacement parts for producing apparatus."
The motions deal with covenants in agreements the effect of which may be to substantially lessen competition in interstate commerce in the talking motion picture business. Roughly, that business is handled by the manufacturers, the producers, and the exhibitors. The manufacturers make the recording equipment for the producers of films. This equipment records sound and photographs action in timed relation on the films. The manufacturers also make reproducing equipment for the exhibitors. This equipment synchronously reproduces the sound and projects the action on the theater screens. The producers use the recording equipment in producing the films. The exhibitors use the reproducing equipment in the theaters.
The plaintiff Stanley Company of America, Inc. (Delaware) is a subsidiary of Warner Bros. It is an exhibitor, owning a chain of about one hundred fifty theaters. The plaintiff Duovac Radio Corporation (Delaware) is engaged in the manufacture of electrical devices, including vacuum tube amplifiers and photo electric cells. The plaintiff General Talking Pictures Corporation (Delaware) is a manufacturer of talking motion picture equipment.
In each case the defendants are the same. Western Electric Company, Inc., is a manufacturer as above defined. American Telephone & Telegraph Company is a defendant holding 95 per cent. of the capital stock of Western. Electrical Research Products, Inc., herein called "Products" supplements the business of Western by licensing under patents and leasing producing and reproducing equipment and also furnishing services relating to the upkeep of the equipment.
Section 3 of the Clayton Act (15 USCA § 14) provides: "It shall be unlawful for any person engaged in commerce, in the course of such commerce, to lease or make a sale or contract for sale of goods, wares, merchandise, machinery, supplies or other commodities, whether patented or unpatented, for use, consumption or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, or fix a price charged therefor, *82 or discount from, or rebate upon, such price, on the condition, agreement or understanding that the lessee or purchaser thereof shall not use or deal in the goods, wares, merchandise, machinery, supplies or other commodities of a competitor or competitors of the lessor or seller, where the effect of such lease, sale, or contract for sale or such condition, agreement or understanding may be to substantially lessen competition or tend to create a monopoly in any line of commerce."
An examination of the numerous affidavits and voluminous exhibits filed on this motion shows that certain restrictive agreements contained in the licenses or leases made by Products are inherently illegal the import of which could not be changed by testimony. These restrictive agreements are: (1) The tying agreements in the licenses or leases of Products to exhibitors, whereby exhibitors agree to purchase from Products all repair and replacement parts for the reproducing apparatus and equipment leased by Products. (2) The exclusive agreements in the contractual letters accompanying the leases of Products to producers whereby producers agree to distribute films produced on the producing apparatus only to exhibitors supplied with Products' reproducing apparatus and equipment.
The tying agreements on the part of exhibitors to purchase repair and replacement parts from Products are found in all the licenses or leases made by Products of reproducing apparatus or equipment to exhibitors. For example, in the license or lease dated July 29, 1931, from Products to Stanley Company of America (Plaintiffs' Exhibits Vol. III, Exhibit J), we find the following agreements. Section 2 (b): "* * * It is agreed that all additional and renewal parts and assembled parts for the Equipment shall be obtained from Products and that all repairs to the Equipment shall be made as specified by Products. Products may from time to time at the expense of the Exhibitor, supply and install such spare and renewal parts as may, in its opinion, be necessary to the satisfactory operation and maintenance of the Equipment."
These tying agreements found in the licenses or leases of reproducing apparatus and equipment made by Products to exhibitors are rendered more effective and burdensome by additional sections of the licenses:
Section 7 "The Exhibitor agrees to pay to Products upon rendition of invoices therefor its standard charges as from time to time established for any repairs to the equipment and for any additional equipment or spare or renewal parts, furnished or supplied by Products and to pay the transportation charges thereon. * * *"
Section 11 "The Exhibitor shall provide access for Products' representatives, engineers and mechanics to the Theatre and to all parts thereof where any of the Equipment may be, at all reasonable hours, for the purpose of supervising the installation and from time to time for the purpose of examining and inspecting the Equipment, and shall grant to Products full opportunity to make such adjustments therein and repairs thereto as, in the opinion of Products, are necessary or desirable."
Section 13 "This agreement and/or the rights of the Exhibitor hereunder and/or the license hereby granted shall, at the option of Products, terminate and come to an end in the event of any breach or default on the part of the Exhibitor with respect to any of the covenants and conditions herein contained on its part to be performed. * * *"
Section 14 "Upon termination or expiration of this license by lapse of time or otherwise, the Exhibitor shall surrender the Equipment to Products in good order and condition. * * *"
Section 18 "This license shall be for a term of ten (10) years from September 22, 1928."
Section 22 "* * * Exhibitor agrees to pay to Products the charges provided for in the payment plan hereinafter set forth; said payments to be made at the time and in the manner provided herein, which time and manner shall be of the essence of this agreement."
(1) $17,192.43. (2) A "weekly rental charge" of $40 per week.
The exclusive agreements in the contractual letters accompanying licenses from Products to producers is illustrated in the contractual letter of Products to Paramount Famous Laskey Corporation dated May 11, 1928 (Plaintiffs' Exhibit 18). Paragraph 5 of this contractual letter provides as follows: "5. In order to promote the use of sound records in connection with motion pictures, and to make an adequate market for your productions and for our [Products'] reproducing equipments, you agree that all theatres operated by you or by your associated companies shall install our reproducing equipments (which you agree are hereby adopted as the standard equipment for such purposes), wherever and as rapidly as in your judgment conditions permit, *83 and we will supply such equipments as rapidly as we are able to after receipt of orders therefor. * * *"
Similar exclusive agreements are in the contractual letters of Products to other producers and are indorsed "Accepted" by the producers. These letters accompany the licenses (recording license agreements) of producing apparatus and equipment of Products to the producers. The licenses are for sixteen years.
The exclusive agreements in the contractual letters require producers to refrain from distributing the talking motion pictures to theaters and exhibitors who have not acquired reproducing equipment from Products. As the result of these exclusive agreements, the supply of talking motion pictures would be substantially closed to exhibitors who did not install reproducing apparatus and equipment purchased from Products. These exclusive agreements are bound to restrain exhibitors from using or dealing in goods, wares, merchandise, machinery, supplies, or other commodities of a competitor or competitors of Products.
I find from the proof submitted in support of the motions for preliminary injunctions that the tying agreements contained in the licenses of reproducing equipments by Products to exhibitors and the exclusive agreements in the contractual letters of Products to producers, in fact, have substantially lessened competition in interstate commerce and will so continue unless defendants are restrained.
"Today," says Dean Pound, "we seek once more, by limiting freedom of contract, to protect those who are subjected to economic pressure against unfair advantage on the part of those who have greater economic freedom." The Clayton Act expresses this modern trend in legislation. Section 3 of the act prohibits tying agreements and exclusive agreements whose effect may be to substantially lessen competition. Such agreements are contained in the licenses of reproducing equipments by Products to exhibitors and in the contractual letters of Products to producers. I hold those agreements illegal and void. United Shoe Mach. Corporation v. United States, 258 U.S. 451, 42 S. Ct. 363, 66 L. Ed. 708; Lord v. Radio Corporation of America (D. C.) 24 F.(2d) 565, affirmed 28 F.(2d) 257 (C. C. A. 3). I have not listed the particular licenses and contractual letters of Products containing the illegal agreements dealt with in this opinion because they are numerous and substantially alike. The decrees for preliminary injunctions may be so drawn as to cover them. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266942/ | 4 F. Supp. 597 (1931)
CHERRY et al.
v.
HOWELL et al.
No. 4638.
District Court, E. D. New York.
August 31, 1931.
*598 Ernst, Fox & Cane, of New York City (Jerome Michael, Melville H. Cane, and Jacob N. Robins, all of New York City, of counsel), for plaintiffs.
Clarke, Allen, Harper & Matthews, of New York City (Harold Harper, of New York City, of counsel), for defendant Clark Howell.
CAMPBELL, District Judge.
This is a motion made by the defendant Clark Howell, the only defendant served, for an order dismissing the complaint herein, upon the ground that said complaint does not state facts sufficient to constitute a cause of action.
The action is stated to be brought by the plaintiffs on behalf of themselves and of all others similarly situated who shall come in as parties plaintiff and contribute to the expense of the suit.
The subject of the action is the affairs of the Southern Guarantee Loan Company, a Georgia investment corporation now in the hands of receivers.
The complaint alleges as follows:
That plaintiffs bring this action on behalf of themselves and all others similarly situated who shall come in and be made parties and contribute to the expense of this action.
On information and belief that the Southern Guarantee Loan Company was incorporated prior to the year 1904, under the laws of the state of Georgia, and at all times thereinafter mentioned was a Georgia corporation, having its only office and place of business in the city of Atlanta, in that state.
That the plaintiffs are holders of the company's class D installment bonds, and that they acquired their bonds in 1920 and 1922, on a monthly payment plan; a copy of the form of bond being annexed to the complaint and marked Exhibit A.
On information and belief that the defendants Clark Howell and Albert Howell were stockholders and directors of the said company, and that said defendant Clark Howell was the chairman of the board, and that said defendant Albert Howell was the vice president and general manager.
On information and belief that the said company, to the knowledge of the defendants and its officers and directors, from December 21, 1918, to April 1, 1929, failed to maintain reserve and redemption funds required by the terms of the class D bonds and of the laws of Georgia.
On information and belief that said company failed to comply with the Georgia law, in that it omitted: (a) To file annual statements with the comptroller general; (b) to obtain annually a license authorizing it to do business in Georgia; (e) to keep on deposit $25,000 at a designated state depository; and (d) to obtain fidelity bonds from its officers having custody of funds.
On information and belief that the company was, to the knowledge of defendants and of its other officers and directors, insolvent and operated at a loss from December 21, 1918, to April 1, 1929.
On information and belief that, with knowledge of such insolvency and that its business had been operated at a loss, the redemption and reserve funds had not been maintained, and that its business was conducted in violation of Georgia law, the defendants and other officers and directors of the company caused and permitted the company to continue in business from December 21, 1918, to April 1, 1929.
On information and belief that for the purpose of inducing its then bondholders to continue to pay the installments due upon their bonds, and of inducing others to purchase bonds, the defendants and other officers *599 and directors caused and permitted the said company from time to time falsely and fraudulently to represent to its bondholders and to the investing public, including the plaintiffs, that the company was solvent and was maintaining the redemption and reserve funds and conducting its business in accordance with Georgia law.
On information and belief that the holders of class D bonds, who purchased them after December 21, 1918, including the plaintiffs, and the holders of class D bonds who purchased before and after that date, and who made payments after that date, were induced to purchase the same and made the payments in reliance upon such false and fraudulent representations.
On information and belief that the officers and directors did not disclose to its bondholders, old or new, the true facts with reference to the company's insolvency and its failure to comply with legal and contract requirements.
On information and belief that the officers and directors permitted the company to dissipate and use for other purposes the amounts which were paid, or should have been paid, into the redemption and reserve funds.
On information and belief that the said company, prior to December 21, 1918, had gone through the form of establishing a reserve and redemption fund, but had not in this regard complied with the law or with the terms of the class D bonds.
On information and belief that the value of the assets does not exceed the claims of secured creditors and the costs of the receivership.
The complaint concludes with a demand for judgment by each of the plaintiffs for the amount paid by him upon his bonds, to wit, the plaintiff William Y. Cherry, for $810, and the plaintiff Noel W. Smith, for $6,050, with interest.
It is conceded by plaintiffs that the action is not a derivative suit to require the defendants, as officers and directors, to make good to the corporation such losses as it sustained from their waste and failure to observe the requirements of the bonds, or the statutes of the state of Georgia.
It is therefore unnecessary to further consider whether the complaint could be sustained as alleging a cause of action in a derivative suit.
At the outset it must be understood that the allegation "that what was done was done pursuant to conspiracy" does not change the nature of a civil action, or add anything to its legal force and effect. Howland v. Corn (C. C. A.) 232 F. 35.
The action is for fraud and deceit and to redress the wrong done bondholders as individuals.
The plaintiffs have attempted to bring the action as a representative action, and, as the action is at law, the Act of Conformity (title 28, section 724, U. S. Code, 28 USCA § 724) applies, and the statutory procedure of the state governs.
This is found in section 195 of the Civil Practice Act of the State of New York, which reads as follows: "Where the question is one of a common or general interest of many persons or where the persons who might be made parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all."
The history of this provision began with section 119 of the Code of Procedure, which in turn became section 448 of the Code of Civil Procedure, and that in turn became the present section 195 of the Civil Practice Act.
Conforming, as we must, as near as may be, to the practice and procedure of the courts of the state, the construction of the state law by its courts is binding upon the courts of the United States. Atlantic & Pacific Railroad Company v. Hopkins, 94 U.S. 11, 13, 24 L. Ed. 48.
The most common application of section 195 of the Civil Practice Act, supra, is to suits in equity, but it may also apply to suits at law, Kirk v. Young, 2 Abb. Prac. (N. Y.) 453; Atkins v. Trowbridge, 162 A.D. 629, 148 N. Y. S. 181; but a class action is not proper for fraud or deceit, Dykman v. Keeney, 154 N.Y. 483, 48 N.E. 894; Marsh v. Kaye, 168 N.Y. 196, 61 N.E. 177; Brown v. Werblin, 138 Misc. 29, 244 N. Y. S. 209, 212; Cavanagh v. Hutcheson, 140 Misc. 178, 250 N. Y. S. 127; and neither do Kirk v. Young, supra, nor Atkins v. Trowbridge, supra, furnish authority for the bringing of a class action for fraud or deceit.
The situation of the plaintiff in the action at bar cannot be better described than in the words used by Mr. Justice Walsh, in Brown v. Werblin, supra, wherein he said: "Nor do the provisions of section 195, Civil Practice Act, permit the bringing of this action. A representative action cannot be maintained unless it appears from the allegations of the complaint that the plaintiff not only has a cause of action but that he is representative *600 of a common or general interest of others. Bouton v. Van Buren, 229 N.Y. 17, 127 N.E. 477. Here there is neither community of right or interest in the subject-matter of the action nor in the questions of law or fact involved. Each plaintiff has a several right to recover, in an action at law, the damage, if any, sustained by reason of defendants' fraud. Each plaintiff's action is necessarily predicated upon the facts which induced him to act. The right of each individual is not derivative. It must stand on allegations and proof peculiar to itself and disassociated from others. None has an interest in the cause of action or the damage recoverable by another. In such a case a class action may not be maintained."
In the case last cited, which was brought on the equity side of the court, the complaint alleged that the plaintiff's assignor, and other innocent investors, were victimized by a conspiracy of the defendants to create a false market in the stock of the Advance-Rumely Company, by a pool, wash sales, by publication of articles in tipster sheets, and other devices, as a consequence of which many persons, including the plaintiff's assignor, were induced to believe that the value of the stock was greater than it actually was, and were induced to purchase the stock at inflated values, with resulting high profits to the defendants.
In the case at bar, while the subject-matter was somewhat different, it is alleged in the complaint that plaintiffs and others were victimized by a conspiracy of the defendants and others, in the manner therein described, to induce them to invest in class D bonds, and to continue to make payments thereon, which they did, and as a consequence of the acts and omissions of the defendants and others, in the complaint described, in pursuance of such conspiracy, the plaintiffs suffered damages.
The two cases are not distinguishable.
In the case at bar, while similar representations may have been made to many, if not all, of the purchasers of class D bonds, it does not follow that the effect of the representations was the same on the minds of the several purchasers; some may have been induced by and relied upon the representations in making purchases, some may have placed no reliance upon the representations, while others may have acted knowing that the representations were false; and for that reason one person who alleges that he has been deceived and defrauded, in reliance upon representations, cannot bring an action as representative of a class of persons supposed to have been so deceived and defrauded.
Should the other bondholders be bound by the result of the suit at bar?
That is a fair test, if this is a truly representative suit. Stevens v. Union Trust Co., 57 Hun, 498, 11 N. Y. S. 268.
It seems to me that they should not be so bound, for the reason that the suit at bar might be defeated by infirmities in the plaintiffs' respective causes of action, entirely without regard to the merit of the claims of other bondholders.
Having found that the action at bar could not properly be brought as a representative action, the court is not bound unconditionally to dismiss the complaint, because the complaint in the case at bar states a good cause of action at law for each of the present plaintiffs, Smith and Cherry, but not for the class; and, under section 209 of the New York Civil Practice Act, all of the holders of class D bonds might have joined as plaintiffs. Akely v. Kinnicutt, 238 N.Y. 466, 144 N.E. 682; Brown v. Kinnicutt (D. C.) 2 F.(2d) 263; Spetler v. Jogel Realty Co., Inc., 224 A.D. 612, 231 N. Y. S. 517.
The motion of the defendant Clark Howell to dismiss the complaint is granted, but with leave to the plaintiffs to serve an amended complaint, within twenty days after the service of the order to be entered hereon, on the attorney for defendant. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266944/ | 4 F. Supp. 329 (1933)
In re WELLS.
In re MEYERS.
Nos. 7150, 7178.
District Court, D. Maryland.
October 3, 1933.
Michael J. Hankin, Asst. City Sol., of Baltimore, Md., for mayor and city council of Baltimore, petitioner.
Nathan Hamburger, of Baltimore, Md., for Meyers' trustee.
John H. Hessey, of Baltimore, Md., for Wells' trustee.
CHESNUT, District Judge.
The petitions to review the conclusions and orders of the Referee in the above cases present two somewhat different phases of the same legal problem. In both cases the Mayor and City Council of Baltimore filed a claim for allowance, prior to payment of dividends to general creditors, for tangible personal property tax bills against the bankrupt for the year 1933. The Referee disallowed the claims in both cases, and the City has petitioned for review.
In both cases the petitions in bankruptcy and the adjudication occurred after October 1, 1932, and before January 1, 1933. The cases differ, however, in one aspect in the Wells case the tangible personal property, on which the tax bill was based, was sold and delivered by the trustee prior to January 1, 1933; while in the Meyers case it was held by the trustee until after January 1, 1933, being sold and delivered on January 9th of that year. It will be noted that the claim as presented is for the City taxes only, there apparently being no claim for State taxes although in current practice the two are usually rendered on one bill by the City Tax Collector. The amounts involved are comparatively small ($217.26 in the Wells case and $58 in the Meyers case); but the principle involved is of importance not only to Baltimore City but in the administration of the Bankruptcy Act. It is a matter of some surprise that although the present bankruptcy law and the present statutory provisions for taxation in Baltimore City (with some recent amendments) have been in force for approximately thirty-five years, it appears that the questions now raised have never heretofore been presented for adjudication in this court.
The claim of the City to priority in payment is based on section 64a of the Bankruptcy Act, which, as amended by the Act of May 27, 1926, § 15 (11 USCA § 104 (a), reads as follows:
"(a) The court shall order the trustee to pay all taxes legally due and owing by the bankrupt to the United States, State, county, *330 district, or municipality, in the order of priority as set forth in paragraph (b) hereof."
As the Referee disallowed the claims entirely there is no question presented as to the order of priority of payment, but it is to be noted that if the claims are entitled to be allowed at all their relative priority is determined by clause 6 of paragraph (b) of section 64 of the Act, as amended, 11 USCA § 104 (b) (6), which includes "taxes payable under paragraph (a) hereof."
In considering the question presented it is to be importantly noted in the first place that we are dealing here with that class of taxes which is known as taxes on individual persons as distinct from corporations and imposed with respect to the ownership of tangible personal property. The local law applying to this class of taxes is set out in the Referee's memorandum opinion in the Wells case. But reference should also be made to the Maryland Acts 1929, ch. 226, amending the general law of taxation of the State (1929 Supplement to Bagby's Annotated Code of Maryland, art. 81) and particularly to sections 2 (22), 3 (e), and section 11 (as amended by chapter 214 of Maryland Acts of 1933); sections 28 (b), and 48 (a). In substance the local tax system with respect to this class of taxes is that October first of each year is fixed as the "date of finality" for valuation and assessment of property to control for the ensuing calendar year. The taxable basis being thus fixed as nearly as possible, an "ordinance of estimates" is then passed, and, as soon as practicable thereafter in the month of November, there is another ordinance fixing the rate of taxation for the ensuing year. The City taxes become "due and payable" on January 1st of each year and become in arrears on July 1st thereafter. While October 1st preceding the calendar tax year is made the "date of finality" so far as possible for the valuation of property and the liability of the assessed individual to pay taxes thereon for the following year, it has been clearly decided by the Court of Appeals of Maryland that the taxes are not "due and payable" until January 1st of the following year. Bamberger v. Mayor & City Council of Baltimore, 125 Md. 431, 94 A. 8; Lotterer v. Leon, 138 Md. 318, 320, 325, 113 A. 887. Thus, while the bankrupt had an underlying and apparently inescapable obligation on October 1st, 1932, for the payment of some tax thereafter, the exact amount was not known until the levy was thereafter made prior to January 1st next and there was no debt for the taxes on October 1st or at the time of the filing of the petitions in bankruptcy in these cases. This consideration apparently was the controlling basis of the Referee's decision that the tax claim in both cases should be disallowed. This presents at once sharply the question as to whether the proper construction of section 64a of the Bankruptcy Act in providing that "the court shall order the trustee to pay all taxes legally due and owing by the bankrupt" means to limit the payment to those taxes only which were legally due and owing at the time of the filing of the petition, or does it require the payment of all taxes which may have become legally due and owing at the date of the order of the court with respect to the claims in the course of the administration of the case, which in both cases was after July 1, 1933, when the taxes were not only "due and payable" but also in arrears. The particular question was clearly and sharply presented in the case of In re F. G. Borden Co. (C. C. A. 7) 275 F. 782, 785, where it was held that the phrase "all taxes legally due and owing by the bankrupt" is referable to the date of the order of court relating to payment, and thus includes and requires the payment of taxes which may have become due subsequent to the adjudication. The decision was based in large part on Dayton, Trustee, v. Standard, 241 U.S. 588, 36 S. Ct. 695, 60 L. Ed. 1190, affirming (C. C. A.) 220 F. 441, where the trustee was ordered to pay taxes levied and assessed subsequent to adjudication.
This authority is, I think, sufficient to justify and require the payment by the trustee of the City's tax bill in the Meyers case. Moreover, the conclusion is supported by authorities approaching the matter from a somewhat different standpoint. Admittedly in the Meyers case, the trustee held the property until after the taxes thereon had become payable for the current calendar year. It has been held in numerous federal decisions that the bankruptcy law does not have the effect of withdrawing property in the hands of a bankruptcy trustee from the reach of the sovereign's general power of taxation, and therefore taxes accruing on the property in the hands of the bankruptcy trustee must be paid by him. Swarts v. Hammer (C. C. A.) 120 F. 256; Id., 194 U. S. 441, 24 S. Ct. 695, 48 L. Ed. 1060. And the law has been so applied by the Circuit Court of Appeals for this Fourth Circuit in Henderson County, N. C., v. Wilkins, 43 F.(2d) 670, 671, where it was held that:
*331 "Although the property in question was in the hands of the bankruptcy court when the taxes for 1927 and 1928 were levied, it was subject to taxation by the authorities of the county and municipality. Swarts v. Hammer, 194 U.S. 441, 24 S. Ct. 695, 48 L. Ed. 1060; Dayton v. Stanard, 241 U.S. 588, 36 S. Ct. 695, 60 L. Ed. 1190."
The 13th Edition of Collier on Bankruptcy, Vol. II, page 1454, in discussing the subject says:
"Taxes upon property in the hands of the trustee accrued since the proceedings were instituted, do not fall within the strict letter of the law, but the bankruptcy act does not withdraw the assets of bankrupts from the reach of the taxing power, and they are subject, in consequence, to the payment of taxes imposed while in the hands of the trustee." This text is supported by the citation of numerous decisions including most of those above referred to, to which may be added, In re Fisher & Co. (D. C. N. J.) 148 F. 907; In re Ponzi (D. C. Mass.) 6 F.(2d) 324; In re Conhaim (D. C. Wash.) 100 F. 268; People of State of New York v. Hopkins (C. C. A. 2) 18 F.(2d) 731, 733. Compare In re Mason Tire & Rubber Co. (D. C. Ohio) 39 F.(2d) 462, 464, where a contrary suggestion was advanced but was not made the basis of the decision. See, also, In re Davenport Dry Goods Co. (D. C. Iowa) 9 F.(2d) 477.
It is recognized in the decisions that the purpose of the Bankruptcy Act in making this special provision for the payment of taxes, coupled with the provision in section 17 of the act (11 USCA § 35), making the tax obligations of the bankrupt nondischargeable, was due to the solicitude of Congress to protect the United States and the local taxing powers in the exercise of their important governmental right of taxation. The duty of the trustee to pay the taxes is not in any way dependent on whether the taxes are "provable debts" or whether they have been listed in his schedules by the bankrupt, nor is the obligation to pay the taxes dependent upon their being made a lien by the state law on the property in the hands of the bankrupt, although the latter condition, if it exists, may be the basis of payment prior to general creditors under section 64b (7) of the Act, as amended, 11 USCA § 104 (b) (7), "debts owing to any person who by the laws of the States or the United States is entitled to priority."
It is true that in the Meyers case the trustee held the property for only a few days after the beginning of the current calendar tax year but it is also clear that the City's claim for the taxes is not apportionable. New York v. Jersawit, 263 U.S. 493, 44 S. Ct. 167, 68 L. Ed. 405. It would be well for trustees in bankruptcy on selling personal property to make an adjustment of taxes for the current year as is customarily done in Maryland upon the sale of real estate.
It may also be noted here that the City's claim does not include any item for interest or penalty. While simple interest may be allowable it is now clearly settled that penalties on overdue tax bills may not validly be collected from bankruptcy trustees. People of State of New York v. Jersawit, 263 U.S. 493, 496, 44 S. Ct. 167, 68 L. Ed. 405.
The necessary result is that the conclusion of law and order of the Referee in disallowing the City's claim in the Meyers case must be set aside and an order will be entered directing the payment of the claim in priority to dividends to general creditors.
Much that has been above said with reference to the City's claim in the Meyers case is also applicable to its claim in the Wells case but as already noted, there is the difference in the latter case that the trustee sold the tangible personal property on December 2, 1932, and the sale was ratified December 13, 1932, before the tax became due and payable, although as heretofore noted the date of finality so far as the bankrupt's underlying liability for the specific tax levy is concerned, was the prior October 1st. Whether this difference in fact justifies a different conclusion as to the payment of the City's tax bill by the trustee in the Wells case requires further consideration.
So far as I have been able to discover, there is no federal bankruptcy tax case dealing with a state or municipal tax system quite like that of Baltimore City. It is the contention of the City Solicitor that although the taxes were not due and owing by Wells prior to the institution of the bankruptcy proceedings, nevertheless as October 1st was the "date of finality" he became then inchoately liable and this liability became consummate on the following January 1st, or at latest July 1st. That is to say, as October 1st is the date of finality in the sense above stated, the taxpayer so assessed on the tax rolls on October 1st cannot escape the liability for the succeeding current calendar year by disposing of the *332 property after October 1st and prior to January 1st. This has been the commonly understood effect of the local tax law in Baltimore City for many years, and indeed is the necessary effect of the decision of the Court of Appeals in Baltimore City v. Jenkins, 96 Md. 192, 53 A. 930; and is made even plainer by the Act of 1929, ch. 226, above referred to. See, also, Frederick County Commissioners v. Clagett, 31 Md. 210. The case of Bamberger v. Mayor & City Council of Baltimore, 125 Md. 431, 94 A. 8, referred to in the Referee's memorandum only decided that administrators and executors of a deceased taxpayer (who was assessed for taxes as of October 1st) were not personally liable to pay the taxes on the assessment for the succeeding calendar year where they had fully distributed the estate after October 1st and prior to January 1st. The case does not decide that the City was not entitled to collect the taxes after January 1st from the estate of the decedent by following it into the hands of the distributees, but only there was no personal obligation on the executors under the then existing law to pay the tax after the estate had been fully distributed by them. By an amendment of the statute passed since the decision and to meet it, it was provided that executors and administrators must "retain sufficient funds to pay State and City taxes for the ensuing year upon all property so distributed, and shall pay said taxes when due." Maryland Acts of 1916, ch. 52. It may also be noted that this statute further provided "this Section shall also apply * * * to Receivers and Trustees, in regard to property in their hands as such and in regard to property distributed by them, provided that said receivers and trustees shall be liable only for taxes due at the time of the distribution upon property or funds distributed to creditors." See, also, Supplement of 1929 to Md. Code, art. 81, § 3 (e). While the statute cannot be directly operative (as the bankruptcy act must control) on trustees in bankruptcy, it nevertheless does quite clearly indicate the legislative intention that the taxes for the calendar year ensuing after October 1st must be paid by the legal representatives or successors of the taxpayer assessed on the date of finality, despite liquidation or distribution of the taxable property prior to distribution to creditors.
The duty of the trustee in bankruptcy to pay taxes "due and owing by the bankrupt" is not dependent upon the existence of a lien in favor of the taxing authority nor even upon the receipt of the property by the trustee and the consequent benefit to the estate. It is true that in some cases it has been held that the trustee should not be required to pay corporate franchise taxes where the bankruptcy of the corporation did not occur within the taxable year although the trustee continued to hold the property into the taxable year. In re Century Silk Mills, Inc. (D. C.) 12 F.(2d) 292, 296. But if the bankruptcy does occur within the taxable year, it has been held in other cases that such taxes must be paid even though they were not assessed and collectible until after the bankruptcy proceeding. New Jersey v. Anderson, 203 U.S. 483, 494, 27 S. Ct. 137, 51 L. Ed. 284; New York v. Jersawit, 263 U.S. 493, 44 S. Ct. 167, 68 L. Ed. 405; Bates v. Archer (C. C. A. 6) 288 F. 182. And in some cases the date of the assessment has been held to fix the time when the taxes became "due and owing" although not collectible until later and after the bankruptcy proceeding. In re Flynn (D. C. Mass.) 134 F. 145; In re Sherwoods, Inc. (C. C. A. 2) 210 F. 754, 758, Ann. Cas. 1916A, 940. In this case the date of the assessment was October 1st, prior to the bankruptcy, although the rate of taxes to be paid was not determined until after the bankruptcy petition was filed.
On the whole, I conclude the mere fact that the taxable property was disposed of by the trustee prior to January 1st is not sufficient to disentitle the City to the payment of its tax claim. The controlling consideration here, as in the Meyers case, is that the taxes were due and owing and in arrears at the time the City's claim was presented and prior to distribution by the trustee. In the Wells case also the conclusion and order of the Referee must be set aside and an order should be passed allowing the payment of the City's tax claim prior to dividends to general creditors. Counsel may prepare and submit the appropriate orders. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2382956/ | 2009 WY 122
ERNEST and MARTHA ANDERSON, Appellants (Petitioners),
v.
BOARD OF COUNTY COMMISSIONERS OF TETON COUNTY, WYOMING, Appellee (Respondent), and
ROBERT and GISELA BALTENSPERGER, Appellees (Intervenors).
S-08-0102.
Supreme Court of Wyoming. OCTOBER TERM, A.D. 2009.
October 6, 2009
Representing Appellants: Andrea L. Richard and Jennifer A. Golden, The Richard Law Firm, P.C., Jackson, Wyoming. Argument by Ms. Golden.
Representing Appellee, Board of County Commissioners of Teton County, Wyoming: James L. Radda, Deputy County Attorney, Teton County, Jackson, Wyoming.
Representing Appellees, Robert and Gisela Baltensperger: William R. Fix, William R. Fix, P.C., Jackson, Wyoming.
Before VOIGT, C.J., and HILL, KITE, and BURKE, JJ; WALDRIP, D.J.
WALDRIP, District Judge.
[¶ 1] Appellees/Intervenors, Robert and Gisela Baltensperger ("the Baltenspergers"), applied for and were granted the necessary permits allowing them to construct a barn/equestrian center on their property in Teton County, Wyoming. Appellants, Ernest and Martha Anderson ("the Andersons"), objected to the construction permits and appealed to the Board of County Commissioners of Teton County, Wyoming ("the Board"). After the Board affirmed the grant of the permits, the Andersons petitioned the district court to review the final administrative action. The district court affirmed the Board's decision upholding the grant of the construction permits. The Andersons now appeal the Board's decision to this Court. We will affirm.
ISSUES
[¶ 2] We re-phrase the issues presented by the Andersons as follows:
1. Whether Teton County's decision to approve the construction permits based on conclusory findings that the 6,750 square foot barn would be incidental, subordinate, and devoted primarily to the use of the property's existing 1,056 square foot residence, and would not change the property character, was arbitrary, capricious, and unsupported by substantial evidence.
2. Whether Teton County's approval of the construction permits violated the Teton County Land Development Regulations because Teton County previously found that the proposed barn/equestrian center would injure the neighborhood and violate private covenants, but refused to consider these factors in its final decision.
The Board and the Baltenspergers raise the additional issue of whether the Andersons properly raised the "conclusory findings" issue before the district court.
RELEVANT FACTS AND PROCEDURAL HISTORY
[¶ 3] The Andersons and the Baltenspergers own adjacent lots in an area of Teton County known as Red Top Meadows. The Baltenspergers applied for permission to build a barn/equestrian center on their property and the Andersons objected. The Baltenspergers needed three separate attempts to obtain the necessary construction permits because their first two applications failed. Their third attempt, however, succeeded. Consequently, the Baltenspergers received a Building Permit and a Grading and Erosion Control ("GEC") Permit, giving them everything necessary to construct their barn/equestrian center. The Andersons appealed the issuance of these construction permits.
[¶ 4] The Baltenspergers own Lots 4A and 5 in the Country Estates Subdivision of Red Top Meadows. The Andersons own and reside on Lot 4B. The Baltenspergers initially proposed building a 9,300 square-foot barn/equestrian center on Lot 5. This initial proposal required three variances from the Teton County Land Development Regulations ("LDRs"). The Country Estates Subdivision is in the Neighborhood Conservation-Single Family ("NC-SF") zoning district, which would not allow the barn/equestrian center to be the primary use of a lot. Because there were no other buildings on Lot 5 the proposed barn/equestrian center would have constituted the primary use of Lot 5. Therefore, the Teton County Planning Department did not process the Baltenspergers' variance applications and the Baltenspergers withdrew that initial proposal.
[¶ 5] Next, the Baltenspergers proposed a 6,900 square-foot barn/equestrian center on Lot 4A. The Baltenspergers trusted that, because there was already a residential home built upon Lot 4A, the primary use of that lot had already been established and it conformed to the NC-SF zoning requirements. The barn/equestrian center would then be an "accessory use or building." This second proposal required one variance because the proposed equestrian center was only set back 25 feet from the private road easement on the property while the LDRs require at least a 50-feet setback. Thus, the Baltenspergers requested a variance in order to build their barn/equestrian center closer to the private road easement than the LDRs normally allow.
[¶ 6] The LDRs require a variance application to be heard by the Teton County Planning Commission (Planning Commission) and then be considered by the Board for final approval. For a variance to be granted, the Teton County Planning Staff (Planning Staff) must find that the proposed variance satisfies seven standards. The Planning Staff was unable to find that the Baltenspergers' variance request satisfied two of the seven standards, namely that the variance was not injurious to the neighborhood and that it was in harmony with the LDRs. Therefore, the Planning Commission voted unanimously against the Baltenspergers' variance request. Rather than pursuing their requested variance in front of the Board, the Baltenspergers withdrew this second proposal.
[¶ 7] For the Baltenspergers' third proposal, they decreased the size of the barn/equestrian center to 6,750 square feet, thereby eliminating the need for the setback variance or any other variance. On November 27, 2006, a Teton County Associate Planner approved the "Zoning Compliance Verification Checklist," which verified that the proposed barn/equestrian center met all pertinent standards in the LDRs. The associate planner also imposed several conditions of approval, most notably that "no commercial operation including the boarding of horses is permitted in the single-family residential site without appropriate County permits." The associate planner's approval of the "Zoning Compliance Verification Checklist" authorized Teton County to issue the Building Permit to the Baltenspergers. The Teton County Engineering Department also approved the Baltenspergers' GEC Application, which resulted in the issuance of the necessary GEC Permit to the Baltenspergers. Thus, the Baltenspergers possessed all necessary permits to commence construction of their barn/equestrian center.
[¶ 8] The Andersons then appealed the issuance of both the Building Permit and the GEC Permit to the Board. The Board held a contested case hearing on March 6, 2007, and affirmed the issuance of the two permits by written decision dated June 12, 2007. By way of summary, the Board found that the Baltenspergers' third proposal complied with all applicable LDRs and that whether the barn violates private covenants is an issue outside the purview of the LDRs and beyond the influence of the Board.
[¶ 9] The Andersons then sought judicial review of the Board's decision in the district court. The district court affirmed the Board's decision in full and the Andersons appealed to this Court.
STANDARD OF REVIEW
[¶ 10] When reviewing an administrative agency's final decision on appeal from a district court, we afford no deference to the district court's decision. Instead, we review the agency's decision as if it came directly from the agency. Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 8, 188 P.3d 554, 557 (Wyo. 2008). Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2007) governs our scope of review and states in pertinent part:
(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
. . . .
(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
(B)Contrary to constitutional right, power, privilege or immunity;
(C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;
(D) Without observance of procedure required by law; or
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.
[¶ 11] We set forth in detail the proper application of these standards for reviewing courts in Dale, ¶¶ 20-26, 188 P.3d at 560-62. To summarize, we will not substitute our judgment for that of the agency as long as the agency's decision is reasonable under the circumstances. Id., ¶ 22, 188 P.3d at 561. We will defer to an agency's findings of fact if supported by substantial evidence. Id. "Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusions. It is more than a scintilla of evidence." Id., ¶ 11, 188 P.3d at 558 (quoting Newman v. State ex rel. Wyo. Workers' Safety and Comp. Div., 2002 WY 91, ¶ 12, 49 P.3d 163, 168 (Wyo. 2002)).
[¶ 12] We continue to apply the arbitrary and capricious standard as a "safety net" designed to "catch agency action which prejudices a party's substantial rights or which may be contrary to the other W.A.P.A. review standards yet is not easily categorized or fit to any one particular standard." Id., ¶ 23, 188 P.3d at 561 (quoting Newman, ¶ 23, 49 P.3d at 172). However, we do not apply the arbitrary and capricious standard to true evidentiary questions. Id. As always, we review an agency's conclusions of law de novo, affirming only if it is in accordance with the law. Id., ¶ 26, 188 P.3d at 561-62.
DISCUSSION
[¶ 13] Due to its potentially dispositive nature, we initially consider whether the Andersons adequately raised their first issue regarding "conclusory findings" before the district court.
1. Accessory Residential Structure
[¶ 14] The Andersons incorporate two contentions in the first issue they present to this Court: 1) a procedural argumentthat the Board's finding that the barn/equestrian center was an accessory residential structure because it was incidental, subordinate and devoted primarily to the use of the property's residence was conclusory and not supported by specific findings of fact; and 2) a substantive argumentthat the finding that the barn/equestrian center was an accessory residential structure was arbitrary, capricious and not supported by substantial evidence. The Board and the Baltenspergers contend that the Andersons never properly presented the procedural issue regarding the adequacy of the Board's findings to the district court for review. The Andersons assert that they adequately raised the issue below and are not required to argue the issue in the exact same manner in each subsequent proceeding.
[¶ 15] In general, we do not consider claims raised for the first time on appeal. See Davis v. City of Cheyenne, 2004 WY 43, ¶ 26, 88 P.3d 481, 490 (Wyo. 2004). We "take[] a dim view of a litigant trying a case on one theory and appealing it on another. . . . Parties are bound by the theories which they advanced below." WW Enterprises, Inc. v. City of Cheyenne, 956 P.2d 353, 356 (Wyo. 1998). We have in the past recognized two exceptions to this rule: when the issue raises a jurisdictional concern or when the issue concerns such a fundamental nature of fairness that it must be considered. Davis, ¶ 26, 88 P.3d at 490.
[¶ 16] The Planning Commission approved the issuance of the Building Permit because it found the barn/equestrian center to be an "accessory residential structure." The Board interpreted "accessory residential structure" in accordance with the definition of "accessory building" pursuant to Division 8300 of the LDRs, which states:
Accessory Use or Building. Accessory use or building means a separate use or structure which: (a) is incidental, subordinate or secondary to, and devoted primarily to the principal use or structure served and does not change the character of the premises; and (b) is located on the same lot or site as the principal use or structure served. In no event shall an accessory use be construed to authorize a use not otherwise permitted in the zoning district in which the principal use is located.
The Board, in its Findings of Fact, Conclusions of Law and Order, stated that the barn/equestrian center was an accessory building because "it is a separate structure which is incidental, subordinate or secondary to the residence on Lot 4A and devoted primarily to said residence and does not change the character of Lot 4A; and because (2) `the principal use or structure served' on the Lot 4A is a residential structure." (emphasis in original).
[¶ 17] In their Petition for Review of Administrative Action, the Andersons set forth two issues for the district court's review:
1) Whether the Board's decision is arbitrary, capricious, an abuse of discretion and not in accordance with law or supported by substantial evidence, in that it failed to require conditions on the permits that would minimize the adverse effects of the barn's construction on the neighborhood and natural environment and on the general health, safety, and welfare of the county.
2) Whether the Board's decision is arbitrary, capricious, an abuse of discretion and not in accordance with law or supported by substantial evidence, in that it approved the permits after the County had denied a variance request for the same project.
The Andersons' brief in the district court also raised a third issue concerning whether the classification of the barn under the LDRs was proper. They contended that the barn did not qualify as either an "accessory residential unit" or an "accessory residential structure." However, neither the Planning Staff nor the Board ever characterized the barn/equestrian center as an "accessory residential unit," but rather as an "accessory residential structure" or as an "accessory building."
[¶ 18] We first note that the inclusion of the additional issue within the Andersons' district court brief violates W.R.A.P. 12.09(a), which confines the district court's review to the record and "to the issues set forth in the petition and raised before the agency." Id. The Andersons did not present the procedural issue of whether the Board's findings were conclusory to the district court in either their petition for review or their brief. Because the issue of the adequacy of the Board's findings was not raised in the district court, we agree with the appellees that we should follow our rule that we do not consider issues raised for the first time on appeal and decline to consider it. Davis, ¶ 26, 88 P.3d at 490; WW Enterprises, Inc., 956 P.2d at 356.
[¶ 19] However, in their district court brief, the Andersons did raise the substantive issue of whether the barn/equestrian center was properly classified as an accessory residential structure. As noted above, the rules of appellate procedure limit the district court's review to the record and "to the issues set forth in the petition and raised before the agency." W.R.A.P. 12.09(a) While the issue was not set forth in the Anderson's petition for review, it was raised at the agency level and in their district court brief. Furthermore, it does not appear that the appellees claim that the Andersons waived the substantive issue by failing to raise it below. Although the better practice, obviously, is to clearly state all appellate issues in the petition for review, under the circumstances presented here where the issue was raised before the agency and included in the district court briefs, we will undertake our duty to review the entire record and consider the substantive issue of whether the Board's finding that the barn/equestrian center was an accessory residential structure was supported by the record.
[¶ 20] The Board determined that the barn/equestrian center was an accessory residential structure because it was incidental, subordinate or secondary to the residence on Lot 4A and devoted primarily to the residence and did not change the character of the premises.
The Andersons claim the record does not support that finding primarily because the proposed barn/equestrian center will be much larger at 6,750 square feet than the residence which is 1,056 square feet. The Andersons point to no provision of the LDRs or other authority which states that a barn/equestrian center must be smaller than the residence in order for its use to be considered subordinate to the residential use of the premises. We think it is safe to note that barns are often larger than houses. Also, the record is clear that the residential structure was in place when the Baltenspergers applied for the construction permits. Thus, the nature of the premises had been established as residential. The record, therefore, contains substantial evidence to support the Board's finding that the barn/equestrian center was an accessory residential structure because it was incidental, subordinate or secondary to the residential structure and that the barn/equestrian center would not change the character of the premises.
2. Whether Approving the Construction Permits Violated the LDRs Because Teton County Refused to Consider Whether the Proposed Barn/Equestrian Center Would Injure the Neighborhood and Violate Private Covenants.
[¶ 21] Teton County concluded that the LDRs preclude it from considering injury to the surrounding neighborhood when reviewing the permit applications at issue in the Baltenspergers' third proposal. The Andersons contend that this conclusion was clearly erroneous. Specifically, the Andersons argue that Teton County was required to impose restrictions on the Baltenspergers' development to minimize adverse impacts on the neighborhood. The Andersons rely upon Section 5120.N.1 of the LDRs to support their assertion. That section states:
Authority. The Board of County Commissioners, and the Planning Director and County Engineer, when they are assigned authority for final action, may impose restrictions and conditions on an approved permit, the approved use, and the property to be developed or used pursuant to such approval, as may be necessary for the development to comply with the standards of these Land Development Regulations, to meet the general purposes, goals, and objectives of the Comprehensive Plan and these Land Development Regulations, and to minimize the adverse effects on other land in the neighborhood and on the general health, safety, and welfare of the County.
Id. (emphasis added).
[¶ 22] We have repeatedly stated that the use of the permissive word "may" authorizes the specified action, but does not require it. See, e.g., French v. Amax Coal West, 960 P.2d 1023, 1029 (Wyo. 1998); but cf. LM v. Laramie County Dep't of Family Servs., 2007 WY 189, ¶ 5, 171 P.3d 1077, 1080 (Wyo. 2007) (stating that the word "shall" indicates mandatory compliance). Reading the plain language of this LDR, we conclude that Teton County was authorized, but not required, to impose restrictions or conditions upon the Baltenspergers' development.
[¶ 23] The Planning Commission denied the Baltenspergers' variance application in their second proposal because the Planning Staff was unable to conclude that the variance was not injurious to the neighborhood and that it was in harmony with the LDRs. The Andersons assert that Teton County needed to consider this finding at the Baltenspergers' third proposal and, consequently, should have imposed restrictions upon the construction permits that would "mitigate harms to the neighborhood." The Andersons' argument is misplaced, however, because the Baltenspergers' third proposal did not require a variance. Instead, the Baltenspergers' third proposal required only the Building Permit and the GEC Permit. The LDRs do not require the Planning Commission to conclude that the proposed construction is not injurious to the neighborhood when considering a request for a building permit or a GEC permit. The LDRs only require this conclusion when the Planning Commission considers a variance application. The Planning Commission was simply not authorized to impose the standards for issuing a variance permit on a development application that did not seek a variance.
[¶ 24] In sum, Section 5120.N.1 of the LDRs provides authority to Teton County to impose restrictions or conditions upon approved permits, but does not mandate it. Additionally, the LDRs only require Teton County to assess potential injury to the neighborhood when considering applications for variances, but not when considering applications for building permits or GEC permits. The Baltenspergers' third application for construction permits did not seek a variance; it only required a building permit and a GEC permit. Consequently, we find that the approval of the Building Permit and GEC Permit, without the Andersons' requested restrictions, did not violate the LDRs and was in accordance with the law.
[¶ 25] Finally, the Board determined that consideration of private covenants is not within the scope of the LDRs and that Teton County was correct in not imposing restrictions based upon the alleged violations of private covenants. Restrictive covenants are contractual in nature. Vargas L.P. v. Four "H" Ranches Architectural Contract Comm., 2009 WY 26, ¶ 11, 202 P.3d 1045, 1050 (Wyo. 2009). Thus, restrictive covenants are only enforceable between the property owners, and potentially a homeowners' association, as parties in interest. Id., ¶ 16-17, 202 P.3d at 1052. No provision in the LDRs requires Teton County or the Board to consider whether a proposed development would violate restrictive covenants. Indeed, neither Teton County nor the Board possesses the authority to demand compliance with private covenants between property owners. We find the refusal to impose restrictions upon the construction permits due to potential violations of private covenants to be in accordance with law.
CONCLUSION
[¶ 26] We will not consider the Andersons' claim that the approval of the construction permits was based on conclusory findings as that issue was not adequately raised below. After reviewing the record, we find that substantial evidence exists to support the Board's finding that the barn/equestrian center was an accessory residential structure. Additionally, Teton County's approval of the Building Permit and the GEC Permit did not violate the LDRs and was in accordance with law.
[¶ 27] The district court's order is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267305/ | 238 P.3d 826 (2008)
JIMENEZ (CARLOS)
v.
DIST. CT.
No. 50713.
Supreme Court of Nevada.
January 18, 2008.
Decision Without Published Opinion Petition Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266908/ | 236 P.3d 851 (2010)
236 Or. App. 268
SMITH
v.
NOOTH.
A140208.
Court of Appeals of Oregon.
July 14, 2010.
Affirmed without opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2271792/ | 333 S.W.3d 645 (2009)
In the Matter of the MARRIAGE OF Steve LAI and Choo Lay Wah and In the Interest of L.L. and B.L., Minor Children.
In re Steve Lai, Relator.
No. 05-08-00727-CV.
Court of Appeals of Texas, Dallas.
July 21, 2009.
*646 Brian S. Loughmiller, Loughmiller & Higgins, Barry Keith Gore, McKinney, TX, for Appellant.
Choo Lay Wah, pro se.
Before Justices MORRIS, WRIGHT, and MOSELEY.
OPINION
Opinion By Justice MORRIS.
In this consolidated proceeding, Steve Lai filed a petition for writ of mandamus and an appeal complaining about the trial court's order sustaining his wife Choo Lay Wah's special appearance and plea to the jurisdiction in his divorce action. In addition to dismissing the case, the trial court granted Wah immediate custody of the couple's children and ordered Lai to surrender to Wah certain personal property. Lai challenges the trial court's dismissal as well as the custody and property orders. For the reasons that follow, we vacate the *647 portions of the trial court's order addressing custody and property disposition. We affirm the order in all other respects. We dismiss the writ of mandamus.
I.
Lai is a United States citizen who was born in Taiwan. Wah was born in Singapore and is not a citizen of the United States. Lai and Wah married in Las Vegas, Nevada in 1997. They were living in Beijing, China at the time of their marriage. The couple have two children, L.L. and B.L., who were born in Singapore in 1999 and 2001 respectively. In June 2001, Lai accepted employment with a Texas company and the family moved from Singapore to Plano, Texas, where they purchased a home. In January 2004, Lai became the company's regional sales director in the Republic of China and the family moved to Shanghai, China. They bought a home in Shanghai in September 2004. Two years later, Lai and Wah began having marital problems. On March 10, 2008, Lai resigned his position, removed the children from their school in Shanghai, and brought them to the United States without Wah's knowledge or consent. Wah was informed of the children's location on March 23, 2008 after they arrived in San Francisco. Lai and the children moved to Plano, Texas on March 24, 2008.
Lai filed his second amended petition for divorce on April 29, 2008.[1] In addition to seeking divorce on the grounds of insupportability, Lai requested a just division of the parties' community estate and orders for conservatorship, possession, and support of the children. The petition alternatively requested the trial court to exercise temporary emergency jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Wah filed a special appearance, plea to the jurisdiction, and a request for the court to decline jurisdiction and dismiss the lawsuit. At the hearing on her motion, Wah orally requested the trial court to exercise its temporary emergency jurisdiction and award her immediate custody of the children, their belongings, passports, and birth certificates. She also asked the trial court to order Lai to return her green card, social security card, and jewelry.
The trial court signed an order on May 1, 2008 dismissing the proceeding finding that neither Wah nor Lai were domiciliaries of Texas for six months or residents of Collin County for the ninety days preceding the filing of the divorce action. The trial court also declined to exercise jurisdiction in accordance with section 152.208 of the family code. After dismissing the case, however, the trial court went on to award immediate custody of the children, their belongings, passports, birth certificates, and personal effects to Wah. The trial court also ordered Lai to immediately surrender to Wah her green card, social security card, and jewelry. Lai filed this appeal and petition for writ of mandamus, which we consolidated. Lai contends (1) the evidence is legally and factually insufficient to support the trial court's finding that it lacked subject matter and personal jurisdiction; (2) the trial court erred in rendering the custody and property orders after declining jurisdiction; and (3) the custody and property disposition orders violated his due process rights.[2] Wah has not filed a brief or otherwise responded to these proceedings.
*648 II.
We begin our analysis with Lai's challenges to the trial court's dismissal of his case. Among other things, Lai challenges the trial court's finding that neither he nor Wah met the statutory requirements for maintaining a divorce action in Collin County. The issue of residency is a question of fact for the trial court, and its finding will not be disturbed absent an abuse of discretion. Stallworth v. Stallworth, 201 S.W.3d 338, 345 (Tex.App.-Dallas 2006, no pet.). Section 6.301 of the family code states that no suit for divorce shall be maintained unless, at the time the suit was filed, either the petitioner or respondent has been a domiciliary of this state for the preceding six-month period and a resident of the county where suit was filed for the preceding 90-day period. TEX. FAM.CODE ANN. § 6.301 (Vernon 2006). Although the residency and domiciliary requirements are not jurisdictional, they are mandatory requirements for those seeking to maintain an action for divorce. See Reynolds v. Reynolds, 86 S.W.3d 272, 276 (Tex.App.-Austin 2002, no pet.).
In his second amended petition, Lai claimed the couple have been domiciliaries and residents of Collin County since the summer of 2001, despite having lived in Shanghai, China from January 2004 through March 10, 2008. He further alleged the couple considered Collin County, Texas their residence and domicile and continued to list their house in Plano as their home address on federal income tax returns. In her special appearance and plea to the jurisdiction, Wah asserted that her and Lai's legal domicile was in Shanghai and not Texas.
At the hearing, Wah testified that since moving to China in 2004, the family has lived continually in Shanghai and that neither she nor Lai had been a domiciliary of Texas for the six months preceding Lai's filing for divorce or a resident of Collin County for the 90 days preceding Lai's filing for divorce. She stated the family has owned a home in Shanghai since September 2004 and the only school the children ever attended is in Shanghai. Wah indicated they had no family in Texas. Besides the Plano home they rented out while living in Shanghai, Wah noted their only connection to Texas was Lai's employer. According to Wah, Lai made short business trips to Dallas a couple of times a year. She and the children had not returned to Texas since moving to China in 2004. They visited Chicago about once a year where they would stay with Lai's family.
Lai testified that he moved from Plano to Shanghai in 2004 for his work. He stated his Shanghai assignment was temporary and based on an annual review assessing the needs of the company. The evidence showed the parties had only lived in Texas for the four years immediately preceding their move to Shanghai. Aside from Lai's employer and the house in Plano they rented out while living in Shanghai, the parties had no connections to Texas. Lai had been living in Plano for slightly over one month at the time he filed his second amended petition. Wah arrived in San Francisco from Shanghai only about two weeks before the May 1 hearing. Because there is some evidence that neither Lai nor Wah met the statutory residency requirements to maintain a suit for divorce, we conclude the trial court did not abuse its discretion in determining Lai could not bring a divorce action in Collin County. See Stallworth, 201 S.W.3d at 345. Our disposition of this issue makes it unnecessary to address Lai's challenges to the trial court's ruling on Wah's special appearance.
Lai contends that even if he did not satisfy the requirements of section 6.301 Collin County would still be the appropriate *649 forum to bring the custody action associated with his divorce proceeding.[3] In Texas, subject matter jurisdiction over child custody issues is exclusively governed by the UCCJEA. TEX. FAM.CODE ANN. § 152.001-.317 (Vernon 2008).
Lai acknowledges Texas is not the children's home state as required for jurisdiction under the UCCJEA. TEX. FAM. CODE ANN. § 152.201(a)(1). He summarily asserts that because China is not a viable forum, jurisdiction is proper in Collin County pursuant to sections 152.201(a)(2), (a)(3) or (a)(4).[4] As noted above, however, the trial court found that it was in the best interest of the children that the custody proceeding be dismissed and further declined to exercise jurisdiction over the children in accordance with section 152.208. In relevant part, section 152.208 provides that if a trial court obtains jurisdiction over the children because a person seeking to invoke its jurisdiction engaged in unjustifiable conduct, the court shall decline jurisdiction unless one of three exceptions are satisfied. See TEX. FAM.CODE ANN. § 152.208. Lai has not challenged section 152.208 as a ground for the trial court's dismissal of the custody proceeding. Lai must attack all independent bases that fully support the trial court's complained-of ruling. See University of Houston v. Barth, 265 S.W.3d 607, 616 (Tex.App.-Hous. [1st Dist.] 2008, pet. filed). When an independent ground that supports the judgment is not challenged, we must affirm the trial court's judgment. See id. Because the trial court's dismissal of the custody proceeding is supportable under section 152.208, we must affirm the trial court's dismissal on this unchallenged ground. See id.
Lai also contends that by rendering the May 1 custody and property disposition orders the trial court exercised general jurisdiction over this matter. Lai cites no legal authority or analysis for this contention. Because Lai failed to adequately brief this complaint, he has waived this issue on appeal. See TEX.R.APP. P. 38.1(i); Devine v. Dallas County, 130 S.W.3d 512, 513-14 (Tex.App.-Dallas 2004, no pet.). Moreover, his position directly contravenes the portions of the trial court's order expressly dismissing the case and declining jurisdiction pursuant to section 152.208.
Having concluded that the trial court did not err in dismissing Lai's lawsuit, we next address his challenges to the trial court's custody and property disposition orders. At the outset, we note that it is unclear on what authority the trial court relied to enter these orders after dismissing Lai's lawsuit. Wah had no written pleadings before the court requesting such relief. During closing arguments, however, Wah orally requested the trial court to exercise temporary emergency jurisdiction and award her immediate custody of the children, "their belongings . . . and anything else that he may have in his possession that he has taken." Lai objected to the awarding of custody on the grounds that there was no written request for that relief in the trial court's file.
A trial court has temporary emergency jurisdiction if the children are present in this state and the children have been abandoned or it is necessary in an emergency to protect the children because the children are subjected to or threatened with mistreatment or abuse. TEX. FAM. CODE ANN. § 152.204(a). The exercise of *650 jurisdiction under section 152.204 is reserved for extraordinary circumstances. Saavedra v. Schmidt, 96 S.W.3d 533, 545 (Tex.App.-Austin 2002, no pet.). There is nothing in the record before us, however, that would support the trial court's exercise of temporary emergency jurisdiction. At the hearing, Wah requested custody of the children so she could take them back to China. There was no evidence the children had been abandoned or that there was an emergency situation where the children were subjected to or threatened with mistreatment or abuse by Lai. Instead, the evidence revealed the children were presently living with their father in Plano and attending school. Moreover, there is nothing in the record to link the court's order compelling the return of certain documents and property to Wah with the children's protection. Accordingly, section 152.204 did not provide the subject matter jurisdiction necessary for the trial court to render the custody and property disposition orders.
The only other arguable authority for the trial court's custody and property disposition orders is set forth in section 152.208 of the family code. A trial court who has declined jurisdiction under this section may "fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of unjustifiable conduct, including staying the proceeding until a child custody proceeding is commenced in a court having jurisdiction under Sections 152.201 through 152.203." The trial court's order, however, unconditionally awards immediate and indefinite custody of the children to Wah without regard to Lai's parental rights. The trial court further awarded Wah certain documents and personal property, including the children's belongings and unidentified jewelry. As noted above, the record before us contains no evidence that the custody award or property disposition was necessary to ensure the safety of the children or to prevent a repetition of unjustifiable conduct. Wah requested custody of the children merely so that she could return with them to China. In the circumstances presented, we conclude section 152.208 did not provide the trial court with the authority to render the orders relating to child custody and disposition of property after dismissing Lai's petition for divorce. In light of our conclusion that the trial court lacked the authority to render the custody and property disposition orders, we need not address Lai's due process complaints with respect to these orders.
We vacate those portions of the May 1 order (1) awarding Wah immediate custody of the children and their belongings, including passports, birth certificates, and personal effects and (2) ordering Lai to surrender to Wah her green card, social security card, and her jewelry. We affirm the trial court's order in all other respects. We dismiss the writ of mandamus.
NOTES
[1] According to Lai's appellate brief, his original petition for divorce was filed on January 14, 2008. The original and first amended petition are not in the clerk's record. Lai's second amended petition is the live pleading.
[2] Issues number 2 and 3 are presented in both the appeal and petition for writ of mandamus. Issue number 1 appears in only the appeal.
[3] The family code recognizes a trial court in a divorce proceeding may have authority over some portions of a suit and not others. See TEX. FAM.CODE ANN. § 6.308.
[4] Lai testified that divorce was not possible in China without agreement between the parties. He also indicated the family could not return to China to live because they no longer had the proper visas. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2630230/ | 231 P.3d 1191 (2010)
235 Or. App. 380
STATE
v.
SMITH.
A140700.
Court of Appeals of Oregon.
May 19, 2010.
Affirmed without opinion. | 01-03-2023 | 11-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267474/ | 238 P.3d 829 (2008)
KAUFMAN
v.
HLK, LLC.
No. 46706.
Supreme Court of Nevada.
January 24, 2008.
Decision Without Published Opinion Affirmed/Reversed/Remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3349741/ | MEMORANDUM OF DECISION
On October 30, 1998, the petitioner, Kristine D. Ragaglia, Esq., Commissioner of the Department of Children and Families ("DCF"), filed a petition to terminate the parental rights of Paula S. and Noel O. to their daughter, Jhoselyn O. Trial concerning the petition took place on October 4, 1999. At trial, the court entered a default as to Noel O. For the reasons stated below, the court grants the petition to terminate parental rights.
FACTS
The court finds the following facts and credits the following evidence.
A. Background of the Case
Jhoselyn, who is about to turn eight years of age, is the daughter of Paula S. (now age twenty-five) and Noel O. Paula's childhood in Puerto Rico was marked by her witnessing of her sister being sexually abused and raped by her stepfather. At age 14, she fled her family after she herself was sexually assaulted. At age 16, she became pregnant with Jhoselyn, who was born in October, 1991. Shortly thereafter, in February, 1992, Jhoselyn's temporary custody was granted to her maternal grandmother. When Paula S. was seventeen, she was incarcerated for eighteen months CT Page 13739 for possession of drugs with intent to sell. Her family (with Jhoselyn) moved to Hartford in 1993. Paula S. was released in September, 1994 and joined her family in Connecticut in June, 1995. The father, Noel O., has had no contact with Jhoselyn since her birth. In June, 1996, Paula S. gave birth to a second child, Jose, who is not a subject of this proceeding.
On August 26, 1996, Hartford police made a report of neglect concerning Jhoselyn, as a result of her having suffered a gunshot wound to her left index finger while in Paula S.'s care. Paula S. provided various inconsistent versions as to how Jhoselyn came to be injured. This incident (hereinafter the "August, 1996 incident") resulted in an Order of Temporary Custody ("OTC"), dated August 28, 1996, wherein the Superior Court for Juvenile Matters (McLachlan, J.) found Jhoselyn and Jose to be in immediate physical danger from their surroundings. They were placed in DCF's temporary custody.2
The August, 1996 incident also resulted in an October, 1996 felony conviction for Paula S., for risk of injury to a minor, and a suspended sentence of four years incarceration, with four years probation.
After her bullet wound, Jhoselyn was treated at Connecticut Children's Medical Center. Her physician reported that her finger will never recover to its pre-injury status, because part of the finger is gone. Investigation by DCF revealed that the maternal grandmother, who had cared for Jhoselyn almost since birth, had a criminal case of her own pending at the time of the August, 1996 incident. Also, she had recently lost her home due to a fire. Subsequent to her incarceration as a result of the incident, Paula S. was unemployed and homeless. Jhoselyn was placed in foster care. In December, 1996, Jhoselyn disclosed that she had been sexually molested by her mother and her maternal grandmother. Investigation of these allegations proved inconclusive.
Subsequent to the OTC, Paula tested positive for marijuana usage. In February, 1997, DCF reported that Paula had not been complying with its recommendations, including individual and family therapy and random drug screens. However, she visited Jhoselyn on a regular basis.
Also in February, 1997, Paula entered a nolo contendere plea to DCF's neglect petition concerning Jhoselyn. A default was CT Page 13740 entered as to Noel O. Jhoselyn was then adjudicated neglected and her custody was committed to DCF, effective February 21, 1997. At that time, Paula S. signed and the court (Teller, J.) entered Expectations of Paula concerning Jhoselyn, including: visitation, participation in counseling (including relating to domestic violence), drug/alcohol assessment and following recommendations thereof no substance abuse, no further involvement with the criminal justice system, and compliance with conditions of probation.
On February 17, 1998, the court (Keller, J.) extended the commitment until February 21, 1999. The court found that continued efforts toward reunification were no longer appropriate (without prejudice to the father) and found that preventive and reunification efforts to make it possible for the child to return home were made by the state. Further publication service was ordered and occurred as to Noel O. On October 1, 1998, the court again found that reunification efforts as to both parents were not appropriate. In February, 1999, the court (Dyer, J.) extended the commitment until February 21, 2000; confirmed that service by publication of the petition for termination of parental rights on Noel O. had occurred, securing jurisdiction over him; and recommended that he be defaulted at the trial on the petition.
B. Jhoselyn and Her Progress in Foster Care
Due to the maternal grandmother's criminal history, the allegations of sexual abuse and her failure to consistently visit the child, DCF rightly refused to consider her as a resource for Jhoselyn.3 Jhoselyn's finger has healed well. At the time of the filing of the petition, she was doing well academically in elementary school. She has been diagnosed as having Reactive Attachment Disorder, and takes Ritalin to control her behavior.
Due at least in part to her difficult behavior, she has been placed in several different foster homes by DCF. In 1997, she spent one month at The Institute of Living. She has been at her present placement, a therapeutic foster home, since June, 1998. She lives with her foster mother, Maria, Maria's three teenage children, and another foster child. She has developed a close bond with her foster mother and continues to do well in school. She continues to receive individual counseling and psychiatric treatment; initially services were provided at the Institute For The Hispanic Family and more recently at The Village for Families and Children, Inc. CT Page 13741
A court-ordered psychological evaluation of Paula S. and Jhoselyn by Dr. Grenier occurred in June, 1998. At that time, the psychologist recommended that Jhoselyn be returned to her mother's care when feasible. She also recommended that, if Paula S. continued with treatment for the next three months, and remained drug-free, return of the child to her, under DCF supervision "can be considered." Pet. Exhibit No. 8, par. 11. Unfortunately, on August 5, 1998, Paula S. was once again arrested. This resulted in misdemeanor convictions for criminal trespass and possession of marijuana, revocation of her previous probation, and a sentence of eighteen months incarceration
Jhoselyn has proved to be a child with specialized needs. She has exhibited sexually inappropriate behavior and homicidal gestures. It seems clear that the child was exposed to sexual abuse and witnessed violence in her home prior to her removal.
Her behavioral problems have included stealing from and lying to her foster family. Acting out at school included fighting and stealing. Apparently these behavioral problems were addressed in therapy; her feelings concerning her mother appeared to be a cause of these difficulties.
As of December, 1998, her psychotherapist at The Village for Families and Children concluded that she had a high level of anxiety and that her "stealing, lying and manipulative behavior are survival mechanisms observed in children suffering from attachment disorders. Permanency plans should be an area to focus on before more damage . . . is done to Jhoselyn's emotional life." Pet. Exh. No. 11, at 4: Besides Reactive Attachment Disorder of Early Childhood-Disinhibited Type, her clinician included in her diagnosis that Jhoselyn suffered from post traumatic stress disorder. Id.
Upon re-evaluation by Dr. Grenier in April, 1999, Jhoselyn was apparently somewhat improved and more stable. Continued psychotherapy was recommended in order to address previously identified issues. Dr. Grenier noted that it was no longer in Jhoselyn's best interests to continue to attempt reunification with her mother at this time. Dr. Grenier concluded by stating that the instability of Jhoselyn's status was affecting her and, since there was no guarantee that her mother could show "significant stability" for at least another year, "[f]or Jhoselyn, this time period is too long, and is likely to lead to CT Page 13742 further emotional/behavioral difficulties, particularly if her mother is unable to remain drug free and the child is once again disappointed." Pet. Exh. 9, at 5. Jhoselyn has refused to discuss her mother in therapy. She has expressed a desire to remain in her foster home.
By June of 1999, Jhoselyn's behavior had again improved. At the end of July, 1999, Jhoselyn's psychotherapist observed that her mother had been "extremely inconsistent with her efforts to be reunited with her daughter." She noted that Jhoselyn's behavior improved when she had no contact with her mother. At trial, where her foster mother was present in court, it was represented that her foster mother is now seriously considering adopting Jhoselyn. Of note also is that, although Paula S. was brought from a correctional facility to court to attend the trial, she chose not to do so and had her attorney waive her presence.
C. The Mother
In addition to the history noted above concerning Paula S.'s criminal convictions and incarceration, she failed to keep several appointments at the Institute for the Hispanic Family for substance abuse evaluations, to which she had been referred by DCF in order to facilitate compliance with the court-ordered Expectations.
By her own admission, except for visiting her daughter, Paula S. did not comply with the Expectations. She failed to comply with the several treatment plans provided by DCF. She was referred also to the reunification program at Catholic Family Services in early 1997, but was ineligible due to positive drug screens. She failed to attend individual and family therapy sessions. She consistently failed to attend parenting classes. For example, Petitioner's Exh. 14, a letter from the Institute for the Hispanic Family, states that Paula S. began participating in their Parenting Skills Group in April, 1998, but only attended three sessions. As a result of three absences, she was discharged from the program in June, 1998.
After being incarcerated since August, 1998, Paula S. was released in March, 1999 to a halfway house, Hartford House. She agreed to a program plan, including drug/alcohol treatment. Pet. Exh. 13(b). Due to a violation of program provisions, she was again incarcerated on August 31, 1999. This violation stemmed CT Page 13743 from an incident at a restaurant in Hartford involving an altercation with an employee. Between March and August, 1999 she had begun to establish a good work record and had built up some savings. In addition, her drug screenings during that period were negative. She also consistently attended in-house Narcotics Anonymous meetings while at Hartford House. Unfortunately, she accumulated a number of rule violations during her stay at the program. Her projected discharge date from incarceration is January 17, 2000. See Pet. Exh. 13(a).
While expressing love and affection for her daughter, Paula S. has been unable to establish a stable life for herself. During the period since the OTC was issued in October, 1996, Paula S.'s contact with Jhoselyn has been inconsistent. Unquestionably, it was negatively effected by her lengthy incarceration after August, 1998. While incarcerated from between August, 1998 and March, 1999, she agreed to discontinue visits to prevent her daughter from being exposed to a prison environment. A visit was held in February, 1999, but Jhoselyn's behavior worsened thereafter, as she resumed stealing. Visits were then terminated based on this negative impact.In July, 1999, after Jhoselyn's behavior improved, and her mother was in the halfway house, Paula S. failed to appear for an appointment with the child's psychotherapist. Several attempts were made with Paula S. to schedule visits with Jhoselyn, but Paula S. either failed to appear or canceled on the day of the visits. One visit occurred on August 16, 1999; Jhoselyn was willing to see her mother but sought her foster mother for comfort and assistance. As noted above, she was re-incarcerated shortly thereafter.
D. The Father
The court's file reflects affidavits submitted by DCF concerning its efforts to locate the father, Noel O. Despite reasonable efforts by the Department, Noel O. could not be found. Service upon him in Puerto Rico was ordered by publication. The file reflects that publication concerning the neglect and termination petitions occurred in various newspapers there. He has not contacted the Department concerning Jhoselyn. He has never been involved in her upbringing and has not acted in any way as a parent.
ADJUDICATION
A. Reunification
CT Page 13744
In order to terminate parental rights, DCF must initially show by clear and convincing evidence that DCF "has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts." Conn. Gen. Stat. § 17a-112 (c)(1). The court need not make such a finding, however, "if a court has determined at a hearing pursuant to subsection (b) of section 17a-110 [dealing with permanency planning for committed children] that such efforts are not appropriate." Id. On February 17, 1998 and on October 1, 1998 the court made the requisite finding that further efforts to reunify the parents with Jhoselyn are not appropriate. This court also finds, based on the evidence presented at trial, by clear and convincing evidence, that such efforts are not appropriate.
B. Statutory Grounds
To prevail in a nonconsensual termination of parental rights case, DCF must also prove by clear and convincing evidence that one of several statutory grounds for termination exists. See Inre Michael B., 49 Conn. App. 510, 512 (1998); Conn. Gen. Stat. § 17a-112 (c)(3). In this adjudicatory phase, the court is limited to events preceding the filing of the petition or the latest amendment. See Practice Book 33-3(a). The relevant date in this case is thus October 30, 1998.
DCF has alleged the grounds of failure to rehabilitate as to Paula S., and abandonment and lack of an ongoing parent-child relationship as to Noel O. The court finds that DCF has proven failure to rehabilitate against the mother and abandonment and lack of an ongoing parent-child relationship against the father by clear and convincing evidence.
1. Abandonment
General Statutes 17a-112 (c)(3)(A) provides that a ground for termination exists when "[t]he child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern, or responsibility as to the welfare of the child." "Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of `interest, concern or responsibility' for the welfare of the child." In re Migdalia M.,
CT Page 137456 Conn. App. 194, 208-209, cert. denied, 199 Conn. 809 (1986). Conversely, "where a parent fails to visit a child, fails to display any love or affection for the child, has no personal interaction with the child, and no concern for the child's welfare, statutory abandonment has occurred." Id. at 209. The statutory term "maintain" implies a "continuing, reasonable degree of concern." Id. at 210.
Here, Noel O. abandoned Jhoselyn when she was born and ever since. He has had no relationship with her. He has left all responsibility for her well-being to others. Accordingly, DCF has proven abandonment by him.
2. Failure to Rehabilitate
A second statutory ground for termination arises when "the parent of a child who has been found by the Superior Court to have been neglected or uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child." Conn. Gen. Stat. § 17a-112 (c)(3)(B). The court previously has found the child to have been "neglected," thus satisfying a statutory prerequisite.
The rest of the statute requires the court to find whether the facts encourage the belief that "such parent could assume a responsible position in the life of the child." Conn. Gen. Stat. § 17a-112 (c)(3)(B). This portion of the statute requires the court to analyze a parent's rehabilitation "as it relates to the needs of the particular child" and determine whether such rehabilitation is foreseeable "within a reasonable time." In reLuis C., 210 Conn. 157, 167 (1989). Because of the requirement that the court predict what will happen within a "reasonable time" after the filing of the termination petition, it is appropriate for the court to consider not only the parents' conduct before the filing of the termination petition, but also the conduct occurring after it.
Here, almost one year has elapsed since the October, 1998 termination petition, which is a reasonable time, especially given the age of the child.
After the tragic incident in August, 1996 when Jhoselyn CT Page 13746 received the gunshot wound, her mother, Paula S., was afforded opportunities for rehabilitation while she was on probation. She did not avail herself of the services offered to her concerning parenting, counseling, or substance abuse evaluation in any consistent manner. She repeatedly failed to follow through on recommendations which were made to her. She did make efforts to visit Jhoselyn, but those were disrupted by reincarceration in August, 1998 based on her drug-related conviction. While she initially had some success at the halfway-house in 1999, she was again incarcerated in August, 1999. Thus, since the August, 1996 incident, she has been incarcerated three separate times.4
During this period, others have had to meet Jhoselyn's specialized needs. She continues to receive therapy and medication for her condition.
As the Appellate Court recently noted in In re Danuael D.,51 Conn. App. 829, 839 (1999), the critical issue is whether the parent "has gained the ability to care for the needs of the particular child at issue." At this point, it is evident that Paula S. has a long way to go to be in a position to be a proper parent for any young child, let alone one with Jhoselyn's needs. Upon release, she will have to address many issues in order to have a stable enough existence just to keep out of prison. Her track record over the past three years is not a good one. While her efforts initially at the halfway house offer some hope for her future, she has failed to rehabilitate herself to the point that "within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child." Conn. Gen. Stat. § 17a-112 (c)(3)(B).
3. No Ongoing Relationship
DCF also alleges that there is no ongoing parent-child relationship between Jhoselyn and Noel O. To prove this ground, DCF must show the absence of "the relationship that develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and [that] to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child." Conn. Gen. Stat. § 17a-112 (c)(3) (D). This ground encompasses a situation in which "regardless of fault, a child either has never known his or her parents, so that no relationship has ever developed between them, or has definitely lost that relationship, so that despite its former CT Page 13747 existence it has now been completely displaced." In re JuvenileAppeal (Anonymous), 181 Conn. 638, 645 (1980) (internal citation omitted). The decisive question is "whether the child has no present memories or feelings for the natural parent." Id. at 646.
Jhoselyn has never known Noel O. as her father, if at all. No relationship has ever developed between them. Accordingly, DCF has proven this termination ground as to him.
DISPOSITION OF THE TERMINATION PETITION
In the dispositional phase of a termination case, the court must consider whether DCF has proven by clear and convincing evidence that "termination is in the best interest of the child." Conn. Gen. Stat. § 17a-112 (c)(2). The court can consider all events occurring through the close of the dispositional hearing. Practice Book § 33-5.
The best interest of Jhoselyn clearly and convincingly favors termination of the parental rights of both her parents. Jhoselyn is bonded to her foster mother, who is meeting her specialized emotional needs, in a stable setting. Both her therapist at The Village for Families and Children, Inc., and Dr. Grenier see the continuation of a parental relationship with Paula S. as harmful to Jhoselyn. The court credits these views. She continues to suffer from emotional difficulty, including Reactive Attachment Disorder of Early Childhood — Disinhibited Type, and post-traumatic stress disorder. Her behavior has deteriorated recently at a time related to contact with her mother.
Instead of rising to the challenge presented by Jhoselyn's needs, Paula S. consistently has failed to do so. Her refusal to attend the trial provided a poignant coda to this sad history. As to Noel O., since he has never had any relationship with, nor taken any responsibility for Jhoselyn, it is evident that it is in her best interests to terminate his rights.
In arriving at a decision, the court must consider and make written findings regarding seven factors set out in General Statutes § 17a-112 (e). See In re Tabitha P.,39 Conn. App. 353, 362 (1995). A discussion of these factors follows.
1) The timeliness, nature and extent of services offered, provided and made available to the parent and child by an agency to facilitate the reunion of the child with the parent. CT Page 13748
Based on the foregoing discussion, the court finds that DCF provided foster care for Jhoselyn and offered Paula S. services and visitation. These services were relevant to the needs of the mother. Since Noel O. could not be located, it was impossible to offer services and visitation to him.
2) Whether DCF has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980.
Based on the foregoing discussion, the court finds that DCF provided visitation, but that there was no reasonable possibility of reunification as a result of Paula S.'s incarcerations and failure to utilize services. Again, Noel O. could not be located, and made no effort to contact Jhoselyn or DCF, making reunification impossible.
3) The terms of any applicable court order entered into and agreed to by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order.
On January 9, 1997, the court approved the following expectations for Paula S.: (1) keep all appointments set by or with DCF and keep whereabouts known to DCF and your attorney, (2) visit the child as often as DCF permits, (3) participate in counseling for parenting, individual needs, and substance abuse, and follow their recommendations, (4) no firearms in the home, (5) sign releases as requested; (6) secure and maintain adequate housing and income, (7) no substance abuse, (8) no further involvement with the criminal justice system, (9) comply with conditions of probation, and (10) cooperate with DCF investigations.
Based on the foregoing discussion, the court finds that Paula S. initially visited the child as required, but her subsequent incarcerations interfered with compliance. She did not fulfill her obligations to keep appointments, to participate in counseling, to secure and maintain adequate housing and income, and to have no further involvement with the criminal justice system. She was also found to have violated her probation. Again, no expectations were ordered as to Noel O. since he did not appear before the court. CT Page 13749
4) The feelings and emotional ties of the child with respect to her parents, any guardian of her person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties.
As stated above, Jhoselyn is bonded to her foster mother. While willing to visit with Paula S., her behavior has deteriorated in direct relation to such contact. Her feelings and emotional ties to Paula S. have substantially lessened over time. She does not wish to discuss her mother in therapy. She has expressed her desire to remain with her foster family. She has no relationship with Noel O.
5) The age of the child
Jhoselyn is presently almost eight years old.
6) The efforts the parent has made to adjust his circumstances or conditions to make it in the best interests of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental communication with the guardian or other custodian of the child.
Based on the foregoing discussion, the court finds that Paula S. has not made reasonable efforts to rehabilitate herself. Since her incarceration in August, 1998, her contact with Jhoselyn has been sporadic. While she will again be released from incarceration in January, 2000, she will not then be in a position to properly care for Jhoselyn, a child with specialized needs. Noel O. has done nothing to establish or maintain contact with Jhoselyn.
7) The extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person, or by economic circumstances of the parent. The parents here did not face unreasonable interference from each other, from any third persons, or from economic circumstances. The parents' predicament is a consequence of their own actions and their own failure to act. CT Page 13750
CONCLUSION
Based upon the foregoing findings, the court determines that it is in the best interest of Jhoselyn O. for a termination of parental rights to enter with respect to the mother, Paula S. and the father, Noel O. Accordingly, the court hereby grants the petition to terminate the parental rights of Paula S. and Noel O. The court further orders that the Commissioner of DCF is appointed statutory parent for Jhoselyn for the purpose of securing an adoptive family. If the foster mother is willing to adopt, it is the court's direction that she receive first consideration. The Commissioner shall file with this court no later than ninety days following the date of judgment a written report of efforts to effect such permanent placement and file further reports as are required by state and federal law.5
It is so ordered.
BY THE COURT
ROBERT B. SHAPIRO JUDGE OF THE SUPERIOR COURT | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3349742/ | After a jury trial, the defendant was found guilty of public indecency, in violation of General Statutes 53a-186 (a)(2). The defendant has appealed *Page 314
from the judgment rendered challenging the sufficiency of the evidence, the admissibility of certain evidence and the legality of his arrest.
The jury could reasonably have found the following facts: At approximately 1:30 on the afternoon of March 5, 1980, the complainant went to visit her mother at an apartment located on Michael Road in New London. After alighting from her vehicle, she heard a loud knocking and observed the defendant standing in the window of his apartment, which was about seven feet above ground level. The day was sunny and clear and her view was unobstructed and unaffected by any glare. The defendant, naked and visible from the knees up, was holding his penis and smiling. The complainant went to her mother's apartment in the same building and called her husband, an off-duty New London police officer. After alerting police headquarters, the complainant's husband immediately went to Michael Road where he met his wife. The two went to the defendant's apartment and knocked on the door. When the defendant opened it, the complainant identified him as the man who had stood in the window. The complainant's husband then identified himself to the defendant by displaying his badge. He was allowed to enter the apartment, where he used the telephone to confirm that the police were responding. The arresting officer arrived shortly thereafter, and met the off-duty officer and his wife outside the defendant's apartment. The complainant again identified the defendant, this time through the defendant's partially open door. The arresting officer then entered the apartment and placed the defendant under arrest.
I
To convict an accused of a crime charged, the state must establish, beyond a reasonable doubt, each essential element of the crime. State v. Saracino,178 Conn. 416, 419, 423 A.2d 102 (1979). General Statutes *Page 315 53a-186 (a)(2) provides that "[a] person who performs any of the following acts in a public place is guilty of public indecency: . . .(2) a lewd exposure of the body with the intent to arouse or to satisfy the sexual desire of the person." (Emphasis added.) The defendant contends that no evidence was adduced at trial to show that the window in which the defendant was standing was a "public place," as required by statute. For purposes of 53a-186 (a), a "public place" is defined as "any place where the conduct may reasonably be expected to be viewed by others." In assessing whether the state maintained its burden of proof as to this element, the jury was authorized to draw reasonable, logical inferences from the facts proven. State v. Saracino, supra, 419. We conclude that the jury had before it sufficient evidence from which it could conclude that the defendant's apartment window was a place where the defendant's conduct could reasonably be expected to be viewed by others.
The defendant also avers that the state introduced insufficient evidence to prove that the defendant had the requisite intent "to arouse or to satisfy [his] sexual desire . . . ." Intent is a mental process which ordinarily may be proven only by circumstantial evidence. State v. Just,185 Conn. 339, 355, 441 A.2d 98 (1981). The intent of the actor is a question for the trier of fact, and the conclusions of a jury must stand unless they are unreasonable. Ibid. Here, the jury could reasonably and logically have inferred the requisite intent from the defendant's lack of attire, as well as from his knocking on the window, and his posture and facial expression.
The court has repeatedly stated the test by which to determine whether evidence is sufficient to sustain a verdict. The standard is whether the jury could reasonably have concluded, from the facts established and inferences drawn, that the cumulative effect of the evidence was sufficient to justify a *Page 316
verdict of guilty beyond a reasonable doubt. State v. Smith, 185 Conn. 63, 71, 441 A.2d 84 (1981). In applying this test, we must construe the evidence adduced at trial in a light most favorable to the jury's verdict. Ibid. After doing so, we conclude that the evidence in this case was sufficient to establish the defendant's guilt beyond a reasonable doubt.
II
The defendant also claims as error the trial court's admission of testimony that the defendant had committed a virtually identical act in the presence of the complainant in December of 1979. He objects to the admission of the prior incident as both remote and prejudicial. A determination that remoteness justifies the exclusion of evidence proceeds from a consideration of several factors, including the interval of time between events, the character of evidence and any surrounding circumstances the court deems pertinent to a resolution of the matter in contention. Steiber v. Bridgeport, 145 Conn. 363, 366.67, 143 A.2d 434 (1958); Holden Daly, Connecticut Evidence 67(d). Where, as here, the prior episode transpired only three months before the one in issue, it cannot be considered remote in time. Moreover, the courts have previously approved the admission of evidence of prior similar acts to show identity, intent and a common scheme embracing the commission of two or more crimes so related that proof of one tends to establish the other. State v. Barnes, 132 Conn. 370,372, 44 A.2d 708 (1945); State v. Simborski,120 Conn. 624, 631, 182 A. 221 (1936); State v. Chapman, 103 Conn. 453, 481, 130 A. 899 (1925). Such evidence is admissible if the trial judge determines that its probative value outweighs its prejudicial effect. State v. Moye, 177 Conn. 487,508, 418 A.2d 870, vacated, 444 U.S. 893,100 S.Ct. 199, 62 L.Ed.2d 129, on remand, 179 Conn. 761,409 A.2d 149 (1979); State v. Barlow, 177 Conn. 391,392-94, 418 A.2d 46 (1979). We find that the trial court did not abuse its discretion in permitting testimony as to the December, 1979 incident. *Page 317
III
The defendant next avers that the in-court identification of him by the complainant was the product of an illegal search and seizure and that the trial court should therefore have excluded the identification. Specifically, the defendant contends that because the police made an illegal warrantless entry into his apartment, any identification resulting from that entry should have been inadmissible as "fruit of the poisonous tree."
We conclude, however, that the officer's entry into the apartment was lawful and in full compliance with General Statutes 54-1f (a) (Rev. to 1979), which provides: "Peace officers . . . shall arrest, without previous complaint and warrant, any person . . . when . . . taken or apprehended . . . on the speedy information of others." (Emphasis added.) The police were authorized to arrest on the speedy information of others. Clearly, this arrest, made in forty minutes or less, was made on the speedy information of others. A properly conducted search incidental to a lawful arrest is not illegal, even though it is made without a warrant. State v. Adinolfi, 157 Conn. 222, 226, 253 A.2d 34 (1968).
The trial court followed proper procedure by holding a preliminary hearing, in the absence of the jury, to determine whether the proffered in-court identification resulted from an unconstitutional search. Having decided after such a hearing that the evidence was admissible, the court allowed the in court identification before the jury. State v. Duffen, 160 Conn. 77, 82,273 A.2d 863 (1970). We conclude that the in-court identification was properly admitted.
IV
Finally, the defendant claims that the court erred by not granting his motion to dismiss on the basis of an illegal arrest. He relies on the decision of the *Page 318
United States Supreme Court in Payton v. New York,445 U.S. 573, 589-90, 100 S.Ct. 1371,63 L.Ed.2d 639 (1980), in which the Court held that even where the police have probable cause to make an arrest for a felony, absent exigent circumstances they may not forcibly enter a person's home to effectuate that arrest without a warrant. This arrest occurred on March 5, 1980; the decision in Payton was released on April 15, 1980. The defendant is not entitled to the benefit of any new rule established by the decision. State v. Anonymous (1981.1), 37 Conn. Sup. 755, 761, 436 A.2d 789 (1981).
We find no error.
In this opinion BIELUCH and COVELLO, Js., concurred. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2267106/ | 146 N.J. Super. 577 (1977)
370 A.2d 492
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANTHONY J. CIRILLO, a/k/a "33," MICHAEL J. LUKACH, a/k/a "5" AND "MICKEY," 333 CLUB, INCORPORATED, MYLES GALL, a/k/a MYLES GAUL, "SONNY" AND "JACK," MARY BABULA, FRANK L. PELUSO, a/k/a "THE SHERIFF," EUGENE ABALSAMO, a/k/a "GENE," AND NICOLA CATALDI, a/k/a "NICKEY," DEFENDANTS-APPELLANTS.
Superior Court of New Jersey, Appellate Division.
Submitted December 21, 1976.
Decided January 18, 1977.
*578 Before Judges HALPERN, BOTTER and KOLOVSKY.
Mr. Samuel DeLuca, attorney for appellants Anthony J. Cirillo, Michael J. Lukach, and The 333 Club, Inc.; Mr. Dennis McAlevy, attorney for appellant Myles Gall; Mr. Marshall Wofsy, attorney for appellant Mary Babula; Mr. Edward Zampella, attorney for appellant Frank L. Peluso; Mr. Arthur J. Abrams, attorney for appellant Eugene Abalsamo; Mr. Donald R. Conway, attorney for appellant Nicola Cataldi (Mr. Robert M. Biagiotti on the brief).
*579 Mr. Joseph C. Woodcock, Jr., Prosecutor of Bergen County, attorney for respondent (Mr. J. Dennis Kohler, Assistant Prosecutor, on the brief).
The opinion of the court was delivered by BOTTER, J.A.D.
With leave of court, defendants appeal from an order denying their motions to suppress evidence obtained as a result of telephone communications intercepted under wiretap orders purportedly entered in compliance with N.J.S.A. 2A:156A-1 et seq., the New Jersey Wiretapping and Electronic Surveillance Control Act. Defendants contend that the orders authorizing the wiretaps signed by Assignment Judge Trautwein on May 1, 1975, May 13, 1975 and May 23, 1975 failed to identify or describe, as required by N.J.S.A. 2A:156A-12(b), the person or persons whose conversations were to be intercepted.[1]
The first "Affidavit for [wiretap] Application" dated May 1, 1975 was captioned as follows:
IN THE MATTER OF INTERCEPTION OF WIRE COMMUNICATIONS OF AN INDIVIDUAL KNOWN AS ANTHONY J. CIRILLO, AND OTHER UNKNOWN PERSONS ENGAGING IN AN ILLEGAL BOOKKMAKING ENTERPRISE AND AN ILLEGAL LOTTERY ENTERPRISE FROM TELEPHONE FACILITIES (201) 945-8522, (BUSINESS PHONE) ASSIGNED TO THE 333 CLUB, 533 SHALER BOULEVARD, RIDGEFIELD, NEW JERSEY, AND (201) 945-9759 (PUBLIC PAY PHONE) ASSIGNED TO THE 333 CLUB, 533 SHALER BOULEVARD, RIDGEFIELD, NEW JERSEY.
In this affidavit Lt. Fallon recited that he received information from a reliable informant that Robert Kuhfuss of North Arlington, New Jersey, was engaged in an illegal *580 bookmaking enterprise and was accepting bets on sports and horses as well as illegal lottery over telephone facility (201) 998-6492. It was determined from telephone toll call records that in previous months 15 calls to (201) 945-8522, assigned to the 333 Club, were made from the telephone registered to Kuhfuss during "prime times for illegal gambling activity," and 17 calls were made to (201) 440-4858, a telephone assigned to J. Trotta of Ridgefield Park, New Jersey, during the same hours.
Analysis of toll calls for (201) 945-8522, listed for the 333 Club, showed 35 calls to the Kuhfuss telephone during prime gambling hours and 26 calls to (201) 423-9774 and (201) 423-0322, both assigned to the Carousel Lounge in Hawthorne, New Jersey. There were also 93 calls from the 333 Club's telephone (945-8522) to a telephone listed to Vincent M. DiPaola in the Bronx, New York, 14 calls to a pay phone at the Tik Tok Lounge in the Bronx, New York, and 19 calls to a telephone listed to Off Track Betting in New York which would give the results of horse races. Numerous calls were also made to telephones located at an apartment on Webster Avenue in Jersey City listed to a R. Meotti and Thomas Longo.
Toll call records for the telephone listed to J. Trotta, mentioned above, showed 78 calls to the telephones at the Carousel Lounge, 35 calls to Robert Kuhfuss' telephone, 37 to the telephone assigned to DiPaolo and 41 to the Meotti and Longo telephones. A check with New York City police authorities revealed that DiPaolo, whose telephone in the Bronx was called 130 times from the 333 Club and Trotta telephones, had a previous record of gambling offenses.
The Carousel Lounge was owned by Gary Latawiec who was previously investigated and arrested for a conspiracy to violate the gambling laws. Further information was obtained from a private citizen that numbers and horse bets could be placed at the 333 Club with Tony Cirillo or John Trotta and the bets would be called in from the pay phone or the business phone in the liquor store area of the 333 *581 Club. It was also reported that someone named "Chick" took bets at the 333 Club and the Ridge Tavern in Fairview. "Chick" was allegedly a partner of Charles Cappezuto, previously arrested in 1974 for illegal lottery activity. An anonymous letter received by the Bergen County Prosecutor also reported that a man named "Mickey" was taking bets at the 333 Club and used telephones 945-8522 and 945-9759.
A surveillance conducted on April 9, 1975 and April 12, 1975 at the 333 Club disclosed that Cirillo, a co-owner of 333 Club, Inc., used the telephone in the liquor store area and made an outgoing call from this telephone, but no suspicious conversation was overheard. Also, on April 12, 1975, Gary Latawiec was observed in the 333 Club and, after going into the kitchen with Cirillo, was seen receiving a telephone call on the pay phone, writing on paper for 12 minutes and receiving cash from Cirillo. Cirillo was also observed talking on a red phone in the kitchen. Someone named Peter Ferraro of Bergenfield was also observed at the bar talking to Betty the barmaid about races, horses, hits and money. He was overheard taking a numbers bet from Betty, and thereafter he left the tavern.
"Mickey" was observed on April 17, 1975 using the telephones at the 333 Club. Also, someone greeted as "Jack" and as "Trot," identified later as Trotta, entered the 333 Club on April 17, 1975. He was joined by Ferraro, who was greeted as "Willie," and by "Mickey." Someone named "Vince" also entered the bar, discussed horses with Ferraro and gave money to "Mickey."
An unidentified male spoke to Cirillo at the tavern on April 18, 1975 and Cirillo was overheard saying, "I thought I paid him. I'll have to check the book."
On April 18, 1975 Latawiec was observed at the bar talking to Cirillo but he was not seen using the telephones. The next day an unidentified patron was seen speaking to Mickey at the tavern, and both were seen using the pay phone. The patron was overheard saying that he had "$200 on the [basketball] game."
*582 On April 20, 1975 the telephones at the 333 Club rang a number of times and were answered by Cirillo, the bartender, named Joe, and a young patron. Latawiec was also observed using the pay phone that day and was seen writing while on the telephone for 15 minutes.
Mickey was identified as Michael Lukach of North Bergen. He had been arrested previously, but not for gambling offenses. The investigation also revealed that the telephone bill at the Carousel Lounge in Hawthorne was paid by G. Latawiec.
Toll call records for the 423-0322 telephone at the Carousel Lounge revealed numerous calls to a telephone at 419 Monroe Street, Hoboken, listed to a Dennis Hoch. On March 14, 1975 a Robert Schuler was arrested at that address for gambling activity as the result of a wiretap conducted by the Bergen County Prosecutor's office. Telephone calls had also been made from the 423-0322 telephone to Robert Schuler at a 944-0283 number in Palisades Park which was the subject of a previous wiretap for gambling activity.
The affidavit concluded that Cirillo, Lukach, Ferraro and Trotta were engaged in a conspiracy to violate the gambling laws and that the telephones at the 333 Club were used for this purpose, although the contents of the conversations on those telephones were unknown. It was noted that toll calls from the pay phone could not be analyzed because the user pays for those calls when they are made and they are not recorded by the telephone company.
The "Affidavit of Application" sought an order authorizing the wiretap of the two telephone facilities at the 333 Club for a 15 day period from 11 A.M. to 4 P.M. and 6 P.M. to 8 P.M., seven days a week. Two separate orders were entered on May 1, 1975 authorizing the interception of telephone wire communications to and from the two telephones at the 333 Club premises. The captions of the orders were similar to the caption of the "Affidavit of Application" quoted above. The captions clearly identified Anthony J. *583 Cirillo as a person whose conversation was to be intercepted. The orders recited that there is probable cause to believe that a criminal conspiracy to violate the gambling laws was being conducted by persons at the 333 Club and that communications concerning the aforesaid illegal activities of such persons, "whose true identity is unknown," may be obtained through interception of wire communications to and from the telephone facilities at the 333 Club.
Lt. Fallon filed another "Affidavit of Application" with Judge Trautwein on May 13, 1975, and an order was entered on that date authorizing the wiretap of telephone (201) 941-1647 listed to defendant Gall. The caption of the order is:
IN THE MATTER OF INTERCEPTION OF WIRE COMMUNICATIONS TO AND FROM A TELEPHONE FACILITY BEARING TELEPHONE NUMBER (201) 941-1647, REGISTERED TO M. GALL, 37 LINCOLN AVE., CLIFFSIDE PARK, NEW JERSEY.
That application sought to intercept telephonic communications of Myles C. Gall and other unknown persons making calls to and from 941-1647, a telephone located in the attic of a house at 37 Lincoln Avenue, Cliffside Park. It also recited that no previous applications for a wiretap of communications using these facilities were known to the applicant except for the wiretaps at the 333 Club. The application was based in part on intercepted conversations from the telephones at the 333 Club to the Gall telephone, involving persons identified as "#5" and as "Jack," in which numbers bets were reported. A call to the Gall telephone was answered by someone who identified himself as Jack. A vehicle registered to Gall was parked in front of 37 Lincoln Avenue, Cliffside Park at relevant times. The application concluded that Myles C. Gall and other unknown males are conducting a gambling operation through the use of Gall's telephone. The wiretap order of 941-1647 authorized interception of communications of persons calling to and from that telephone. *584 It recited that the "true identity" of the persons making such communications is unknown.
As a result of the wiretap on the Gall telephone a similar application was made on May 23, 1975 to wiretap another telephone, and the order of that date was captioned:
IN THE MATTER OF INTERCEPTION OF WIRE COMMUNICATIONS TO AND FROM A TELEPHONE FACILITY BEARING TELEPHONE NUMBER (201) 867-4130 REGISTERED TO MRS. J. MUSTO, 708 PALISADES AVE., UNION CITY, NEW JERSEY.
The application recited that on May 15, 1975 a male identified as "Sonny" called 867-4130 from the Gall telephone and reported horse bets and discussed numbers and sports bets. The telephone 867-4130 was answered on several occasions by an unknown male who received sports and horse bets from Sonny. However, the record of outgoing toll calls from 867-4130 did not show a pattern indicative of gambling activity, suggesting that the telephone was used solely for receiving gambling bets.
A surveillance at 708 Palisade Avenue on May 20 and 21, 1975 revealed that a white male, described as 5'9" in height, 165 pounds and grey hair, estimated to be in his 50's, entered the basement of the house from a doorway in the alley. The wiretap order recited that the person using 867-4130 was unknown.
On May 29, 1975 Investigator Berman applied for a warrant to search the premises at 708 Palisade Avenue, Union City, New Jersey, the person of Nicola A. Cataldi, described as a white male, 5'7" in height, 140-160 pounds, grey hair, born in April 1921 (age 54), and a specified motor vehicle used by Cataldi in going to the house under surveillance. The vehicle was registered to Cataldi, and his appearance corresponds to his description on motor vehicle records. The affidavit supporting the search warrant also recited evidence implicating defendants Cirillo, Lukach, Gall, Mary Babula, Frank Peluso and Eugene Abalsamo, as well as others, obtained *585 through the authorized wiretaps. Eventually, all defendants were charged in a 26-count indictment with various violations of the gambling laws, N.J.S.A. 2A:121-3 and N.J.S.A. 2A:112-3, namely, working for a lottery, unlawful possession of lottery slips, making book on sport contests and horse races, and maintaining a gambling place, as well as conspiracy (N.J.S.A. 2A:98-1 and N.J.S.A. 2A:98-2) to violate the gambling laws.
Appellants contend that the wiretap orders did not comply with N.J.S.A. 2A:156A-12(b). N.J.S.A. 2A:156A-12 provides:
Each order authorizing the interception of any wire or oral communication shall state:
* * * * * * * *
b. The identity of, or a particular description of, the person, if known, whose communications are to be intercepted; * * *
At the time the order was entered authorizing the wiretap of the telephone listed to Mrs. J. Musto at 708 Palisade Avenue, Union City, New Jersey, the identity of Nicola Cataldi was not known. Although a person fitting his description was seen entering the premises it was also not known at that time, although it was suspected, that he was, in fact, using the telephone at that location. As a result of the wiretap on the Gall telephone it was only known that a male using telephone 867-4130 received gambling bets from someone called "Sonny." Thus, the failure to name or describe Cataldi in the May 23rd wiretap order for the Musto telephone did not violate N.J.S.A. 2A:156A-12(b).
Cataldi and the other defendants contend, however, that the previous orders authorizing the wiretaps of the 333 Club and Gall telephones are deficient because the persons whose conversations were expected to be intercepted were not sufficiently named or identified. Although there is no evidence that Cataldi used the 333 Club or Gall telephones, Cataldi contends he has standing to attack the evidence obtained against him because they resulted from the earlier *586 wiretaps. Reliance is placed on N.J.S.A. 2A:156A-21(b), which provides that an "aggrieved party" may move to suppress "evidence derived" from an intercepted communication on grounds that "(b) The order of authorization is insufficient on its face."
Cataldi's conversation was intercepted in the Gall wiretap, and he comes within the definition of an aggrieved person. N.J.S.A. 2A:156A-2(k). Cf. United States v. King, 478 F.2d 494, 506 (9 Cir.1973). We need not discuss the question of the standing of the other defendants, however, because we are satisfied that the prior wiretap orders were not facially insufficient and were not so deficient as to warrant suppression of the evidence seized in this case.
First, we consider the Gall Wiretap order. Gall was named in the caption of the order issued on May 13, 1975. His relation to the proposed wiretap search was fully disclosed in the application. While the better practice would have been to name him in the body of the order as the object of the wiretap, together with other persons whose identity was unknown, we find sufficient compliance with N.J.S.A. 2A:156A-12(b) to repel this attack. Gall was literally named in the order; the caption included his name; and it was not known, although there was probable cause to believe, that Gall was the person using the telephone registered to him at the premises identified in the order.
Lastly, we consider the wiretap order for the telephones at the 333 Club. There was probable cause to believe that these telephones were used for illegal gambling activity. Defendants Cirillo, "Mickey" Lukach and an unindicted person named Latawiec had used the telephones there for suspected gambling purposes. The May 1, 1975 wiretap orders stated in their captions that they pertained to the "interception of wire communications of an individual known as Anthony J. Cirillo," and they identified the telephone facilities, although Cirillo was not again named in the body of the order. Lukach was not named in the order at all, although *587 he was observed using both telephones on April 17, once on April 19 and once on April 20, 1975.
In these circumstances the better practice would have been to name both Cirillo and Lukach in the body of the wiretap order. However, we do not find this omission fatal. The order clearly stated in its caption that it was directed toward the interception of Cirillo's conversations. His identity and relationship to the criminal activity were fully disclosed in the application, as required by N.J.S.A. 2A:156A-9. In these circumstances there was substantial compliance with the statute.
As for Lukach, it was not certain that his conversations would be intercepted from these telephones, nor were the telephones listed to him, or his firm, nor did he have an interest in the premises. His use of the telephones may have been anticipated, however. Because of this it would have been preferable to include Lukach's name in the order. However, his identity and activity were fully disclosed in the application, and he was not prejudiced in any way by this omission.
N.J.S.A. 2A:156A-16 mandates that a person named in the order or application shall be served with an "inventory" of certain information specified therein, including notice of the entry of the order and whether communications were intercepted during the authorized period. The court may thereafter allow inspection of the intercepted communications by the communicant or his attorney. Naming the person in the order serves another purpose. Each application must contain a "complete statement of the facts concerning all previous applications, known to the individual authorizing and to the individual making the application * * * involving any of the same facilities or places * * * or involving any person whose communication is to be intercepted * * *." N.J.S.A. 2A:156A-9(e) (emphasis added).
Admittedly it is unclear whether a person must be named because on several occasions he has used a telephone at *588 premises not under his control which is used by many people, as in the case of the telephones at the 333 Club. But where that person is a target of the investigation and his use of a telephone is expected, such as defendant Lukach, he should be named in the order as well as the application. This will facilitate compliance with N.J.S.A. 2A:156A-9(e) in case of future wiretap applications aimed at the same subject or subjects. Cf. United States v. Bellosi, 163 U.S. App. D.C. 273, 501 F.2d 833, 838-839 (1974), dealing with similar provisions in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.A. § 2510 et seq.
Here, as noted, the affidavits supporting the applications contained a full recital of the background information, were apparently made in good faith and named all persons who were possible subjects of the investigation. There is no complaint of noncompliance with any other provisions of N.J.S.A. 2A:156A-1 et seq. In the described circumstances the failure to name Cirillo, Lukach or Gall in the body of the orders, where all were named in the application and Cirillo and Gall were named in the caption of the orders, is not a deficiency which warrants suppression of the evidence. Cf. United States v. Civella, 533 F.2d 1395, 1404-1405 (8 Cir.1976); United States v. Doolittle, 507 F.2d 1368, 1371, adhered to on rehearing en banc, 518 F.2d 500 (5 Cir.1975). The suppression order entered in State v. Murphy, 137 N.J. Super. 404, 424-428 (Law Div. 1975), may be explained, in part, by the failure to name Murphy, the target of the wiretap, in the order and all extension orders and the failure to serve him with formal notice and an inventory as required by N.J.S.A. 2A:156A-16. This "insolence" of law enforcement officials was there found to violate the spirit of strict compliance with wiretap conditions deemed necessary to guard against "secret government surveillance." 137 N.J. Super. at 427-428. No such insolence has been demonstrated in the case before this *589 court. In fact, there is no suggestion that good faith was lacking.
On the premise that the wiretap orders were defective it is contended that evidence seized under the search warrants should be suppressed. The argument is that the information which caused the issuance of the search warrant was poisoned by having been secured through an illegal wiretap order. Since we have rejected the premise upon which this argument is based, we find no reason to invalidate the subsequent physical searches.
The order denying the motion to suppress is affirmed.
NOTES
[1] All defendants joined the brief filed by Cataldi supporting his motion for leave to appeal. With leave of court that brief was used on the appeal proper by all defendants. This circumstance explains the detail concerning Cataldi contained in this opinion. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266965/ | 269 A.2d 247 (1970)
O'NEAL'S BUS SERVICE, INC., a Corporation of the State of Delaware
v.
EMPLOYMENT SECURITY COMMISSION and William L. Potts.
Superior Court of Delaware, New Castle.
September 15, 1970.
Thomas Herlihy, III, Wilmington, for employer-appellant.
Jay H. Conner, Wilmington, for claimant-appellee.
*248 OPINION
CHRISTIE, Judge.
Mr. William L. Potts, age 66, was hired by O'Neal's Bus Service, Inc. in September of 1967 to operate a school bus. It was the duty of Mr. Potts to pick up pupils at various spots in the community and deliver them to the school in the morning. In the afternoon he would pick up the children at the school and deliver them to their homes.
On January 19, 1968, Mr. Potts voluntarily quit his job. Thereafter, Mr. Potts applied for unemployment compensation. He was eligible for such compensation if he voluntarily quit his job with good cause.
Mr. Potts testified at two administrative hearings that he had good cause to quit his job because the conduct of the pupils on the bus placed him in great fear for the safety of the pupils and the safety of other motorists. He stated that the pupils were constantly harassing and disturbing him as he was driving the bus. He stated that he was hit by spit balls and that on some occasions pupils would release the emergency door in the back of the bus. Mr. Potts testified that he spoke to the principal of the school and to his employer about the conduct of the pupils on the bus and that the situation did not change. Therefore, he decided to stop reporting for work.
The employer, O'Neal's Bus Service, takes the position that Mr. Potts left his employment without good cause. The owner of the employer-corporation testified that he received no notification or other notice from Mr. Potts that he was quitting and that he did not recall Mr. Potts ever complaining to him about the conduct of the school children on the bus.
In addition, the employer took the position that if Mr. Potts was bothered by the school children on the one bus, he could have requested that he be transferred to a bus with younger children. Mr. Potts was driving a school bus of junior high school children and it is said that he could have arranged to drive a school bus with less troublesome elementary school children.
An initial hearing was held before the Employment Security Commission Referee at which only Mr. Potts testified. Mr. O'Neal did not appear. The Referee rendered the following opinion:
"Section 3315(1), Title 19, Delaware Code, a part of the Delaware Unemployment Compensation Act provides as follows:
An individual shall be disqualified for benefits
(1) For the period of unemployment next ensuing after he has left his work voluntarily *249 without good cause attributable to such work * * *
The burden is upon the claimant to show just cause for voluntarily quitting his job and I am of the opinion that this burden has been met in this case. The claimant appears to me to be an honest and sincere person, and I believe that he definitely tried to retain his job. His fears do not seem imaginable to me. I think that he greatly feared injuring either the passengers on his bus or other drivers on the road.
I am of the opinion that it was not necessary for the claimant to be exposed to this situation. I therefore, conclude that the claimant had good cause in connection with his work to voluntarily quit his work."
The Referee's opinion was appealed to the Commission and a further hearing was held at which both Mr. Potts and Mr. O'Neal testified. The Commission affirmed the decision of the Referee and adopted the Referee's findings of fact. The appeal to this Court followed.
It could be contended by the bus company that some of the difficulties complained of by Mr. Potts are inherent in the operation of school buses i. e. spit balls or other foreign objects may from time to time be air-borne in a school bus and such situation may disturb the peace and quiet of the bus or even present a hazard to the proper operation of the bus. The bus company's chief contentions, however, revolve around the availability of other bus routes, the informal way the driver ceased to report to work without clearly stating his problem and the disinterest of the driver in reemployment.
The basic issue is whether or not the claimant had "good cause" to leave his employment. The burden is on the claimant to establish his right to unemployment compensation. "Good cause" for quitting a job must be such cause as would justify one in voluntarily leaving the ranks of the employed and joining the ranks of the unemployed. Zielenski v. Board of Review, 85 N.J.Super. 46, 203 A.2d 635 (1964).
There is substantial evidence in this case to indicate that the employee complained several times to the school authorities and to the representative of the bus company in charge of the actual operation of the buses. His complaints were important since they involved his own safety and that of the bus passengers.
If the situation on the bus had become so bad as to constitute a real safety hazard and if the complaints were adequately pressed and no remedy was forthcoming, then Mr. Potts had good cause to quit.
I have reviewed the testimony as to the dangers caused by the childrens' behavior on the bus. The only testimony on the subject was by Mr. Potts and his testimony as to the hazards is creditable.
Of course, an employee does not have good cause to quit merely because there is an undesirable or unsafe situation connected with his employment. He must do something akin to exhausting his administrative remedies by, for example, seeking to have the situation corrected by proper notice to his employer. Alabama Textile Products Corporation v. Rodgers, 38 Ala.App. 206, 82 So.2d 267 (1955). This he did by complaint to the school authorities and to his immediate supervisor. His testimony on this subject is entirely creditable.
The owner of the employer testified as to this point only that he remembered no such complaints and that he could have remedied the situation by reassignment of the driver.
There appears to have been an internal communications problem within the bus company. The repeated complaints of the bus driver should have been passed on by the supervisor to the owner and this apparently did not take place. Further follow-up *250 by the employee would have been desirable but his testimony was that he did mention the situation to the owner as well as to the supervisor.
I have considered the other factors outlined above as having been argued on behalf of the bus company but I conclude that on balance Mr. Potts did have good cause to quit within the meaning of the statute and that the findings of fact made by the Commission are supported by substantial creditable evidence in the record.
The decision of the Employment Security Commission is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266980/ | 440 Pa. 186 (1970)
Murphy
v.
Taylor et al., Appellants.
Supreme Court of Pennsylvania.
Argued March 20, 1970.
October 9, 1970.
*187 *188 Before BELL, C.J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Robert E. Wayman, with him Wray G. Zelt, R. Wallace Maxwell and Wayman, Irvin, Trushel & McAuley, for appellants.
W. Robert Thompson, with him Thompson & Baily, for appellees.
*189 OPINION BY MR. JUSTICE JONES, October 9, 1970:
On January 4, 1968, at the intersection of Routes 88 and 21 in Greene County, a motor vehicle operated by Daniel Murphy was struck by a lumber truck which was being operated by James Taylor for his employer, Sprowls Lumber Company. Murphy instituted a trespass action in the Court of Common Pleas of Greene County, against Taylor and Sprowls Lumber Company to recover damages arising from the accident.
In the area of the accident, commencing about 600' before its intersection with Route 88, Route 21 broadens from a two-lane highway to a four-lane highway. A medial strip separates the east and westbound lanes of Route 21 for approximately 300' on either side of the intersection. While Route 21 was being widened, up until one month prior to the accident, the two westbound lanes had been used for both east and westbound traffic.
On the day in question, both vehicles were traveling in an easterly direction on Route 21 when Murphy attempted to turn left from Route 21 to proceed north on Route 88 and was struck by Taylor. Murphy testified that he was in the left-hand, eastbound lane as he approached the intersection and that he put on his left blinker light, looked in his rear-view mirror, saw no traffic, and began to turn left onto Route 88 when he was struck by the lumber truck. This version of the accident was corroborated by two highway department employees who were stopped at the intersection who, also, claimed to have seen Taylor proceeding eastbound in the westbound lanes, on the wrong side of the medial strip.
On the other hand, Taylor testified that he was in the left-hand, eastbound lane and that he was about to pass Murphy in the right-hand lane, when Murphy, suddenly and without warning, turned left, directly into the path of Taylor's truck. Taylor testified that he *190 then swerved as far to his left as possible, but was unable to avoid striking Murphy's car. This version of the accident was corroborated by the driver and the passenger in a Coca-Cola truck which Taylor had passed immediately before the accident and also by the operator of a gas station at the intersection of Routes 21 and 88.
Following a jury trial and a $92,000 verdict in favor of Murphy, defendants' motion for a new trial was denied, judgment was entered on the verdict and this appeal followed.
The first point raised is whether the trial court erred in taking the jury to a view of the accident scene, without the presence of counsel for either the plaintiff or the defendants. Following the selection of the jury, on the morning of February 3, 1969, the court recessed and then reconvened at 1:30 p.m. to take the jury to the scene of the accident. At the view, the judge made a short, on-the-record statement, pointed out the two roads, the gas station and other features of the intersection which would be raised in the trial testimony. The jury then returned to the courtroom and the trial began at 3:00 that same afternoon.
In support of the motion for a new trial, it was averred that: "The Court erred in conducting the view of the scene of the accident without inviting or permitting Counsel for the parties to be present." (Emphasis added.) This factual averment was specifically denied in the lower court's opinion and the only complaint made on this appeal is that counsel were not, in fact, present. The allegation that the trial court neither invited nor permitted counsel to be present apparently has been abandoned.
The trial record simply notes that the view took place and sets forth the statement made by the judge.[*]*191 Although it is preferable, there is no absolute requirement that the parties or their counsel be present at a view.
In the instant case, the comments made by the trial judge at the view were in no manner prejudicial to either party and they simply served to "show" the landmarks which would be referred to in the testimony and make the scene familiar to the jury. No further reference was made to the view during the trial and other evidence, substantial in nature, was presented concerning the physical layout of the intersection. Accordingly, we fail to see how the defendants could possibly have been prejudiced solely by the fact their counsel was not present at the view.
Moreover, even if the judge's conduct resulted in prejudice to defendants, which it did not, this issue cannot be considered since it was first raised when additional reasons for a new trial were filed on April 21, 1969. Any objections to the absence of counsel at the view should have been made not later than such time as the court could have corrected such a situation. In that way, any error could easily have been corrected by either further instructions or by a second view. Having waited until after the jury returned with a verdict, the defendants deprived the trial court of any opportunity to correct the alleged error. Since the alleged *192 error was not basic and fundamental and since no explanation has been offered which might justify the delay in making any objection, it may be deemed to have been waived. James v. Ferguson, 401 Pa. 92, 162 A. 2d 690 (1960); Scranton Lackawanna Trust Co. v. Birbeck, 333 Pa. 502, 5 A. 2d 196 (1939); 6A Standard Pennsylvania Practice ch. 28, § 23 (1960).
A second communication with the jury has also been urged as error. After the jury had been sent to deliberate, while counsel were arguing further exceptions to the charge, the following exchange took place between the court and counsel for the defendants: "By the Court: I feel that counsel should know that about 7 o'clock I received this note from the jury `We have found in favor of the Plaintiff. The amount of settlement has not been settled. Do we have to put the amount on the verdict sheet when we agree?', and I sent the note back up with my answer. Mr. Zelt: What was your answer? By the Court: My answer was yes."
This Court has recently stated that "any instruction by the trial judge to the jury in the absence of counsel requires the grant of a new trial regardless of prejudice". Yarsunas v. Boros, 423 Pa. 364, 366, 223 A. 2d 696, 697 (1966). Accord, Argo v. Goodstein, 424 Pa. 612, 228 A. 2d 195 (1967); Gould v. Argiro, 422 Pa. 433, 220 A. 2d 654 (1966). Although we have considerable doubts that the instant communication to the jury is the kind of instruction to which Yarsunas and Gould refer, we need not face that issue here. The attorney for the defendants was present when the judge made the above statement and no objection was raised at that time although, with the jury still deliberating, any error might easily have been corrected. This communication was not mentioned in either set of new trial motions and was not presented in defendants' brief to this Court. This issue was first raised at the time of oral argument before this Court on March 20, 1970. *193 Only in the most exceptional of circumstances would we consider such an issue to be timely raised. In this case, counsel for the defendants repeatedly and consistently ignored every opportunity to raise the point and we will not consider it at this very late date. Scranton Lackawanna Trust Co. v. Birbeck, 333 Pa. 502, 5 A. 2d 196 (1939).
The third contention is that the trial court improperly charged the jury on the issue of contributory negligence, by failing to relate the law to the facts. Part of the defense was that Murphy allegedly violated The Vehicle Code by failing to signal 100' in advance of turning. Act of April 29, 1959, as amended, September 16, 1961, P.L. 1373, § 4, 75 P.S. § 1012 (Supp. 1970). It is now claimed that the jury was not properly instructed with respect to this issue.
This argument is adequately refuted by that portion of the trial court's charge which reads, inter alia, as follows: "There is a question here of when Mr. Murphy put on his turn signal. This is required by The Vehicle Code to be done 100 feet in advance when making a turning movement or a lane change. . . . In this case, if you find that there was a violation of The Vehicle Code of either of these particular provisions by the Murphy vehicle, such violation is said to be negligent per se. But in order for you to find that a violation of The Vehicle Code is negligence such as would result in liability or be considered contributory negligence, you must find that the negligence from the violation of The Vehicle Code was the proximate cause of the accident or injury. . . ."
The last two questions raised deal with damages. It is first asserted that the court erred when it charged the jury that plaintiff would be entitled to recover for future pain and suffering and for future medical expenses. The court clearly charged that the jury should first determine from the evidence they deemed credible *194 whether or not there would be future pain and suffering and further expenses.
Testimony was presented at trial from which the jury could have concluded that Murphy would have future pain and suffering and future medical expenses. Dr. Powell, Murphy's surgeon, testified that there had not been full recovery as of the time of the trial. He added that there might be sufficient recovery to resume employment within two to six months, but that statement was heavily conditioned and certainly admitted the possibility of a longer period of temporary or even permanent disability. Dr. Birch, the urologist, testified that there were lasting injuries which would require further treatment. In addition, the testimony of Murphy and his wife indicated that his injuries were still painful and disabling. While the presence of more testimony on this issue might have made the jury's and our task easier, we cannot say that the evidence presented was insufficient as a matter of law to justify the court charging on future pain and suffering and future medical expenses.
The final contention is that the verdict was excessive. The jury returned an award of $92,000 while the actual out-of-pocket expenses at the time of trial were somewhere between $12,000 and $15,000. This was a serious accident. The jury was properly instructed on the issue of damages and the trial judge concluded that this verdict was fair and just. The grant or refusal of a motion for a new trial because of excessiveness of verdict is peculiarly within the discretion of the trial court and we will not interfere unless the record discloses an abuse of discretion or an error of law committed. Connolly v. Philadelphia Transp. Co., 420 Pa. 280, 216 A. 2d 60 (1966); Hall v. George, 403 Pa. 563, 170 A. 2d 367 (1961).
The record discloses that the trial judge neither abused his discretion nor committed an error of law in upholding this verdict.
*195 Judgments affirmed.
Mr. Chief Justice BELL, Mr. Justice EAGEN, Mr. Justice ROBERTS and Mr. Justice POMEROY concur in the result.
Mr. Justice COHEN dissents.
NOTES
[*] On March 3, 1970, a hearing was held in the lower court on the issue of whether counsel had discussed and agreed upon the view at a side-bar conference. Murphy has attempted to place a transcript of this hearing on the record. The writ of certiorari issued November 14, 1968, and the record was certified to this Court on November 20, 1969. Additions to the record after the writ of certiorari has been issued and the record has been certified to this Court may not be made in this fashion. Corace v. Balint, 418 Pa. 262, 210 A. 2d 882 (1965); Commonwealth v. Tabb, 417 Pa. 13, 207 A. 2d 884 (1965); Harwood v. Bruhn, 313 Pa. 337, 170 Atl. 144 (1934). Such additions may only be made after application to and order from this Court pursuant to Rule 70 of the Rules of our Court. As this additional record is not properly before us, we will not consider it in our determination of this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266984/ | 269 A.2d 307 (1970)
C COMPANY
v.
CITY OF WESTBROOK.
Supreme Judicial Court of Maine.
October 1, 1970.
*308 Reef & Mooers, Norman Reef and Daniel Mooers, Robert D. Schwarz, Portland, for plaintiff.
James E. Gagan, Portland, for defendant.
Before WILLIAMSON, C. J., and WEBBER, MARDEN, DUFRESNE, WEATHERBEE and POMEROY, JJ.
WEATHERBEE, Justice.
The Plaintiff is the record owner of a parcel of land in Westbrook known as the Spring Street Quarry property. Defendant City maintains the city dump on the property adjoining the parcel and Plaintiff charges that Defendant has allowed its dump to extrude and encroach upon the quarry land. Plaintiff brought this action asking for damages for trespass and for injunctive relief. Defendant admitted dumping refuse on the land in question but defended by asserting that it, and not the Plaintiff, is the owner of this property and entitled to its possession.
The Defendant City had been the owner of this land and in 1951 conveyed it to Sheldon Grant. The land contained a quarry and a large stone crusher which was situated in the quarry was included in the sale. Grant deeded the property to Cook & Company, Inc. and Plaintiff is the corporate successor to Cook & Company, Inc. The deed from the City to Grant stated that the conveyance was made subject to the following conditions:
"1. The Grantee is to set up and operate thereon a rock crusher.
2. The Grantee is to sell to the City of Westbrook at the plant any and all crushed rock of required sizes at 25% off of the going market price. Said price to be determined by checking prices with commercial rock crushing plants. City may purchase in any and every year up to and including 2000 tons at this discount.
3. In the event that the Grantee should for any reason fail to operate the quarry or crusher for a period of five years, title to the land to revert to the City.
4. If the Grantee manufactures asphalt mix so called, the City may purchase the mix at the same rate as the crushed rock provided that the total amount does not exceed the aforementioned 2000 tons.
5. The Grantee is to take the necessary steps to prevent pollution of proposed Westbrook Rod and Gun Club fish pond on the adjoining land."
Grant's deed of the same premises to Cook & Company, Inc. states that it was made "subject to the same conditions appearing in deed of the City of Westbrook to this Grantor and this Grantee accepts same on the same basis".
The quarry and crusher were operated on the property for at least five years. The City contends that they have not been operated since 1956 and that a condition subsequent having been broken, the City is entitled to possession of the land.
The Single Justice before whom the matter was tried ruled that the Plaintiff is the owner of the land in question and ordered Defendant to remove the refuse which had been dumped there. Defendant City has appealed.
*309 The issue presented by the appeal is one of construction of the condition of the City's 1951 deed which reads:
"In the event that the Grantee should for any reason fail to operate the quarry or crusher for a period of five years, title to the land to revert to the City."
Was it the intention, as the City argues, that title should revert to the City if the quarry or crusher was not operated during any five year period? Or, as Plaintiff contends, was this condition to be satisfied if the quarry and crusher were operated for the five years next following the effective date of the deed?
The Single Justice found that the effectually expressed intention of the parties to the deed was that the condition in question remained in force for five years after the transfer of title and that the Plaintiff's predecessors in title had fulfilled their obligations under the deed.
The Justice said that he considered "the instrument as a whole, as well as the circumstances surrounding the transfer". He made no specific finding of facts and it appears that there were no material differences of fact involved, that the Justice's interpretation of the deed is based upon its language viewed in the light of stipulated or undisputed surrounding circumstances.
Construction of a deed is a matter of law. Susi v. Davis, 133 Me. 354, 177 A. 610 (1935). In our review of his interpretation of the language of the deed and the inferences which may properly be drawn from stipulated or undisputed facts we do not apply the "clearly erroneous" rule but instead construe for ourselves the language of the deed. Allstate Insurance Company v. Government Employees Ins. Co. et al., Me., 263 A.2d 78 (1970). We arrive at the same conclusion as did the Single Justice.
Following the cardinal rule of interpretation of deeds, we seek to ascertain the intention of the parties. Hinds v. Hinds, 126 Me. 521, 524, 140 A. 189 (1928). If the language is ambiguous resort may be had to rules of construction and the deed may be examined in the light of the circumstances surrounding its execution. It may be interpreted with reference to the reason, or motive, upon which the Grantor proceeded in using the language in question. Haight v. Hamor, 83 Me. 453, 22 A. 369 (1891).
"This Court has well said that the cardinal rule for the interpretation of deeds is the expressed intention of the parties, gathered from all parts of the instrument, giving each word its due force, and read in the light of existing conditions and circumstances. It is the intention effectually expressed, not merely surmised. This rule controls all others. Technical rules of construction of deeds may be resorted to as an aid in getting at the intention. And technical rules may be controlling when nothing to the contrary is shown by the deed. The ancient rigidity of technical rules has given way in modern times to the more sensible and practical rule of actual expressed intention." Penley v. Emmons, 117 Me. 108, 102 A. 972 (1918).
The language of the condition is ambiguous. It is a familiar rule of construction that in a question of ambiguity the deed must be construed more favorably to the Grantee. S. E. & H. L. Shepherd Co. v. Shibles, 100 Me. 314, 61 A. 700 (1905); Chapman v. Hamblet, 100 Me. 454, 62 A. 215 (1905); 26 C.J.S. Deeds § 82. The parties have agreed that the questioned language creates a condition subsequent. The Defendant claims forfeiture. We have frequently applied the rule of construction that the law looks with disfavor on an interpretation which permits a forfeiture. If a deed can reasonably admit of two constructions, one which would permit forfeiture to the Grantor and one which would not, the Court must construe the deed most strongly against the forfeiture. Rumford Falls Power Co. v. Waishwell, *310 128 Me. 320, 147 A. 343 (1929); Inhabitants of Frenchville v. Gagnon, 112 Me. 245, 91 A. 951 (1914); 28 Am.Jur.2d, Estates, § 140.
When we examine the circumstances prevailing at the time of the City's deed to Grant in order to study the reason for the employment of the condition subsequent in the deed we find that the circumstances appear to support the Plaintiff's contentions. Mr. Grant petitioned the City asking to purchase the City's rock crusher. The City Council countered by proposing that he buy the crusher and the quarry as well and that he pay for the property by furnishing the City each year up to 2000 tons of crushed rock (and/or asphalt mix) at a price 25% less than the current market price. The City thus sought to secure for itself a sufficient supply of these materials from Grant or his successors at a greatly reduced priceor, if Grant defaulted, the right to regain the source of supply. The City evidently preferred being supplied with street repairing material to receiving a cash purchase price. The conclusion is compelling that if Defendant's contention here is correct and the condition would be broken only if Grant and his successors failed to operate the quarry or crusher during any entire period of five years, the City would have no assurance of its supply from the very outset of the agreement. A brief operation during any five year period would appear to prevent the City's enforcing the condition subsequent. Indeed, such a construction conflicts with the next preceding condition that the City may purchase the street building material "in any and every year". Intention must be determined by construing all parts of an instrument together. Penley v. Emmons, supra.
Defendant asks that the language of the Grantor "a period of five years" be construed to mean "any period of five years" and thus to establish the basis for a forfeiture. Such an interpretation would give the words of the deed an abnormal meaning, construe the ambiguous language most favorably to the Grantor and work a forfeiture. It would bring a result which we believe would be repugnant to the disclosed intention of the parties.
The condition of the deed was fully satisfied when Plaintiff's predecessors in title complied with its terms for five years following the City's conveyance to Grant.
There was introduced at trial the minutes of Defendant's City Council meeting concerning the decision to convey the crusher and quarry to Grant. This exhibit was admitted for a limited purpose respecting an issue which was raised by Defendant at trial but later abandoned and which is not before us on appeal. It is not available to us now as evidence bearing on the intention of the Grantor.
Appeal denied.
WILLIAMSON, C. J., participated at argument, but retired before the opinion was adopted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266985/ | 440 Pa. 354 (1970)
Calantzis
v.
Collins, Appellant.
Supreme Court of Pennsylvania.
Argued October 3, 1969.
October 9, 1970.
*355 Before BELL, C.J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
James W. Daub, for appellant.
Tasso E. Camarinos, for appellees.
OPINION BY MR. JUSTICE O'BRIEN, October 9, 1970:
Appellant sought, in the court below, the discharge of a guardian ad litem appointed for her. The chancellor refused to discharge the guardian and upon the dismissal of exceptions by the court en banc and the entry of a final decree, an appeal to this court was filed.
The factual and procedural history of this case is concisely summarized in the opinion of the trial court as follows: "Catherine Collins is a seventy-three year old widow, having emigrated from Greece to Canada in 1909 at the age of fourteen. Her education consists of attendance at school in Greece for four years. In *356 1914 she married Peter Calantzis, also known as Peter Collins. After the marriage in Canada they moved to Pittsburgh in 1917 and later to Franklin, Pennsylvania. Peter Collins died in 1951, a resident of Venango County, Penna. His will was admitted to probate in the Office of the Register of Wills of Venango County, Pennsylvania, at No. 64 March Term, 1956. By his will, Mr. Collins devised his estate to his four nephews in Greece, the plaintiffs in this action. Defendant elected to take against the will of her deceased husband.
"Among the assets in the decedent's estate is a valuable tenement building at the northeast corner of Forbes and Craig Streets, Pittsburgh, Pennsylvania. This is known as the Collins Building. The address is No. 4175 Craig and Nos. 4601-4603 Forbes Avenue.
"As a result of her election, Catherine Collins became seized of an undivided one-half interest in this property. The other one-half interest is vested in the plaintiffs herein.
"Plaintiffs commenced this action in partition on November 2, 1961. On February 3, 1963, an agreement was entered into among the parties hereto. Based on this agreement a decree of court was entered February 7, 1963. Presumably this concluded the matter.
"The Agreement and Decree called for a division of the net rentals among the parties in accordance with the respective interests. Oakland Realty Company, a firm doing business in the vicinity of the subject property, was designated as rental agent for the premises. This was done with the consent of all parties.
"Instead of allowing the Realty Company to manage the property, Catherine Collins herself assumed this function. She collected rents, signed leases and ordered repairs.
"At the age of 73, having had little formal education, all of which was gained in Greece, Mrs. Collins is not *357 equipped to carry on any type of commercial activity in a modern American city. The facts bear out this conclusion. Mrs. Collins kept no account of her stewardship. She had no receipts for repair bills paid, no account of rents collected, taxes paid or repairs ordered.
"When the Greek co-owners learned of this state of affairs, they sent a representative to Pittsburgh to see what could be done to remedy the situation. By Court Order filed May 18, 1967, Mrs. Collins was cited to file an account. A hearing on this matter was held on May 31, 1967. At this, Mrs. Collins was totally uncooperative. She failed to realize her obligations to keep records and to account to her co-owners. This Court, by Order of June 5, 1967, again designated Oakland Realty Company as manager of the property and directed Mrs. Collins to cease interfering with this arrangement. At this hearing the representative of the plaintiffs' interest was most cooperative. He disclaimed any intention in suing defendant for past defalcations. He stated that he and his co-owners in Europe are more interested in Mrs. Collins' personal well-being than in their own financial interest. The latter is relatively small per person when compared with hers.
"Mrs. Collins refused to comply with the Court Order. Again she negotiated leases, collected rents and ordered repairs. She paid taxes, on at least one occasion paying taxes that had been paid by the agent. She was cited for contempt of Court. Following a hearing on July 27, 1967, this Court appointed Robert Grigsby, Esquire, as Guardian ad litem, pursuant to the provisions of Pa. R.C.P. 2051 et seq., particularly Rule 2056."
Initially, appellant complains that the agreement of February, 1963, entered as an order of court, terminated the partition proceedings and that the court, therefore, had no further jurisdiction over the parties and the cause of action. We do not agree with this contention. *358 The matter is in its present posture because appellees sought the assistance of the court in the enforcement of the February, 1963, decree, which decree they averred was being violated by appellant. We recently addressed ourselves to a similar contention in Advanced Management Research v. Emmanuel, 439 Pa. 385, 266 A. 2d 673 (1970), and rejected it. The discontinuance of the action, based on a decree requiring a performance of a series of acts does not oust the court of its jurisdiction to see to the enforcement of that decree. For the same reason, appellant's argument that there was no pending litigation and that the court, therefore, had no power to appoint a guardian ad litem, is without merit.
Appellant further complains that the trial court erred in failing to file an adjudication, as required by the equity rules. We agree with the court below that no such procedure was required. The appointment of a guardian ad litem resulted, not from a complaint in equity, answer and hearing, but rather from a petition seeking the enforcement of a decree previously entered. In such circumstances, we do not believe that the rules require an adjudication as contemplated by the equity rules. Under the posture of this record, Community Sports, Inc. v. Oakland Oaks, 429 Pa. 412, 240 A. 2d 491 (1968), is not applicable.
Appellant next argues that the decree was entered prematurely, inasmuch as it was filed before appellees filed their brief. We fail to discern how appellant was thereby prejudiced. The court had directed counsel to submit briefs and counsel for appellant had complied. The court, without waiting for appellees' brief, filed its opinion dismissing the petition to remove the guardian ad litem. Briefs are, of course, but an aid to the court and appellant could only benefit, not suffer, by appellees' failure to furnish any assistance to the court in reaching its decision.
*359 Appellant's other assignments of error present considerably more difficulty. She contends that she established her competency by medical evidence that she is not an habitual drunkard, a weak-minded person or a person of unsound mind, and that even if that were not the case, the court went too far in granting the guardian ad litem the power to do anything other than to supervise and control the conduct of the action.
Rule 2051 Pennsylvania Rules of Civil Procedure defines an incompetent as "a person who has a guardian or who is found by the court in the pending action to be an habitual drunkard, or a weak-minded person or a person of unsound mind." Rule 2053 provides for the appointment of a guardian ad litem for an incompetent defendant, which guardian ad litem "shall supervise and control the conduct of the action in [the incompetent's] behalf."
We are in agreement with the court below that: "In this case there is no issue concerning the term `habitual drunkard', nor is Mrs. Collins a `person of unsound mind.' However, definitions of the term `weak-minded' often contain as one synonym `incompetent.' Ryman's Case, 139 Pa. Superior Ct. 212, 11 A. 2d 677 (1940). We find that Mrs. Collins falls within the rule authorizing the appointment of a guardian ad litem for one not competent to participate in this judicial proceeding. The facts presented, as well as her own actions, clearly illustrate her inability to comprehend this judicial proceeding." The court, however, continues by saying that "Mr. Grigsby is not a general guardian but only a guardian ad litem. His duties as such will end when the case at Bar is terminated." While Mr. Grigsby's duties will surely end upon the conclusion of the litigation, it appears that he is functioning under the court's order as more than a guardian ad litem.
*360 The guardian ad litem has received and disbursed funds on appellant's behalf and has in general acted as the guardian of her estate. At the hearing held January 5, 1968, he testified that he had received since his appointment $3,999 and disbursed $2,000, leaving a balance of $1,999 on deposit with a Pittsburgh bank. We do not believe that such procedure is authorized by law.
The Incompetents' Estates Act confers exclusive jurisdiction over the property and estate of incompetents on the Orphans' Court, after an adjudication of incompetency and the appointment of a guardian. While appellant may well be determined to be incompetent with respect to the particular complex of litigation which underlies the instant appeal, and therefore requires a guardian ad litem, no adjudication of incompetency has been made such as is required for the appointment of a guardian of the estate, even if such a proceeding had been commenced in the proper forum.
The Rules of Civil Procedure authorize the guardian ad litem to supervise and control the conduct of the litigation. No provision is made in the rules for entrusting a guardian ad litem with the care and management of the property of the incompetent even where, as here, the fund which he is administering arises from the very subject matter of the litigation. Such administration can only be conducted by a guardian of the estate appointed by a court of competent jurisdiction, not by a guardian ad litem appointed under rules which "do not apply to proceedings to secure the appointment of a fiduciary or guardian for the person or estate of an incompetent. . . ." 4 Anderson Pa. Civil Practice 2051.1.
The many convolutions of the instant litigation make it difficult for us to determine the exact course which the court below should now follow. We are not prepared to, nor do we determine whether the original, *361 or a new, partition proceeding should be pursued to actual partition; whether contempt proceedings should be instituted against appellant for violation of orders of court; or whether a proper party should commence proceedings for a formal adjudication of incompetency so that appellant's property may be safeguarded, if indeed her condition requires such action. Nor do we hold that the guardian ad litem should be discharged, it being our view that the litigation has not reached finality. We do, however, hold that the guardian ad litem is not authorized to manage the estate of appellant. He should, therefore, be required to turn over such assets in his possession to appellant or to a guardian who might be appointed, and to account for his stewardship to the date of such turnover.
The decree of the court below is affirmed as herein modified, and the case is remanded for further proceedings consistent herewith. Each party is to bear own costs. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266990/ | 174 Cal.App.4th 1517 (2009)
In re THOMAS HOVANSKI on Habeas Corpus.
No. C059192.
Court of Appeals of California, Third District.
June 19, 2009.
*1520 Eric Weaver, under appointment by the Court of Appeal, for Petitioner Thomas Hovanski.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Catherine Chatman, Deputy Attorneys General, for Respondent the Secretary of the California Department of Corrections and Rehabilitation.
OPINION
BUTZ, J.
This petition for habeas corpus comes before us after the California Supreme Court issued an order requiring the secretary of California's Department of Corrections and Rehabilitation (CDCR) to show cause before this court why petitioner Thomas Hovanski should not be granted relief, based upon CDCR's extension of parole past his parole discharge date by placing a hold on him pursuant to Welfare and Institutions Code section *1521 6601.3.[1] Section 6601.3 authorizes the Board of Parole Hearings (BPH)[2] to order that an inmate referred to the State Department of Mental Health (DMH) for evaluation as a potential sexually violent predator (SVP) "remain in custody for no more than 45 days beyond the person's scheduled release date for full evaluation pursuant to [the SVPA]."
Hovanski was serving the last day before his parole discharge date when BPH ordered a hold placed on him under section 6601.3 (45-day hold). A month later, the district attorney filed a petition seeking to commit him as an SVP.
Hovanski contends section 6601.3 does not authorize the extension of custody beyond his parole discharge date; that section 6601.5, not section 6601.3, was the sole means by which CDCR could detain him past his discharge date; and that the 45-day hold was therefore void. He further argues that if his continued custody past his discharge date was authorized by section 6601.3, it constituted a retroactive increase in his prison sentence, which was barred by state and federal constitutional prohibitions against ex post facto laws. We reject these arguments and shall deny the petition.
PROCEDURAL BACKGROUND
Events leading up to the habeas corpus petition
Following his conviction in 1995 of multiple sex crimes involving children under the age of 14, Hovanski was committed to state prison. He was paroled initially in November 2002. However, Hovanski violated his parole and was returned to prison on July 24, 2006 (all further calendar references are to that year unless otherwise indicated), to serve out the remainder of his term. On that date, the CDCR determined that his maximum confinement would terminate on December 15. Consequently, Hovanski was given a certificate of discharge, confirming his revocation release and discharge from parole as of December 15.
On October 24, CDCR completed an SVP screening form, indicating that Hovanski met the criteria as a potential SVP pursuant to section 6600. On November 4, CDCR completed a justification referral sheet, referring Hovanski for screening and evaluation pursuant to section 6601, subdivision (a)(1) of the SVPA.
*1522 On November 29, CDCR referred Hovanski to the DMH for full evaluation. On December 8, he received a second level screening from a DMH physician.
On December 14, while Hovanski was serving the last day in prison before his scheduled discharge from parole, DMH wrote to the BPH, requesting that it schedule a probable cause hearing for purposes of imposing a 45-day hold pursuant to section 6601.3. The letter concluded that DMH was requesting the hold "in order to complete full evaluation pursuant to [section] 6601[,] [subdivisions] (c) to (i), inclusive." On the same day, BPH imposed a 45-day hold on Hovanski under section 6601.3. As a result, Hovanski was not released from prison on his discharge date.
On January 26, 2007, the Yuba County District Attorney filed a petition to commit Hovanski as an SVP. (§ 6602.) Three days later, the superior court ordered him temporarily held in custody pending a probable cause hearing. On April 27, 2007, the court, after a probable cause hearing, ordered that Hovanski remain in the custody of the CDCR pending the outcome of trial on the petition.
Habeas corpus proceedings
On July 12, 2007, Hovanski filed a petition for writ of mandate in this court alleging that at the time the petition to commit him as an SVP was filed, he was subject to an illegal parole hold. (Hovanski v. Superior Court, C056213.) After requesting informal opposition, this court denied the petition on August 16, 2007.
On February 25, 2008, with trial on the SVP petition still pending, Hovanski filed a pro se petition for writ of habeas corpus in the California Supreme Court, complaining that BPH had exceeded its authority in placing an unauthorized 45-day hold on him, thereby resulting in his "unlawful custody" beyond his parole discharge date.
In June 2008, the California Supreme Court, after requesting and receiving informal opposition from the Attorney General, ordered the Secretary of CDCR to show cause before this court "why [Hovanski] is not entitled to relief based on the extension of his parole period past his parole discharge date pursuant to Welfare and Institutions Code section 6601.3." (In re Hovanski (order to show cause issued June 27, 2008, S161147).)
Having received full briefing and heard oral argument, we now deny the petition.
*1523 DISCUSSION
I. Validity of the Section 6601.3 Hold
(1) The Legislature enacted the SVPA based upon a declared concern that "a small but extremely dangerous group of sexually violent predators [who] have diagnosable mental disorders [that] can be identified while they are incarcerated ... are not safe to be at large and if released represent a danger to the health and safety of others in that they are likely to engage in acts of sexual violence." (Stats. 1995, ch. 762, § 1, p. 5913.) An SVP is a person who has committed a sexually violent offense against multiple victims and is likely to engage in sexually violent criminal behavior in the future because of a diagnosed mental disorder. (§ 6600, subd. (a)(1).)
(2) The SVPA sets up a screening process for determining whether an inmate who is "in custody" and "under the jurisdiction" of the CDCR should be committed as an SVP. (§ 6601, subd. (a)(1).) If the CDCR determines that an inmate may be an SVP, it shall refer the person for evaluation "at least six months prior to that individual's scheduled date for release from prison," unless he was received with less than nine months remaining on his sentence or his release date was modified, in which case the six-month minimum does not apply. (§ 6601, subd. (a)(1).)
If the CDCR determines the inmate is a likely SVP, he is referred to DMH for a full evaluation. (§ 6601, subd. (b).) If two mental health professionals at DMH agree the defendant "has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody" (§ 6601, subd. (d)), the DMH must forward a request for a petition for civil commitment to the county in which the defendant was convicted (§ 6601, subd. (h); see People v. Hayes (2006) 137 Cal.App.4th 34, 42 [39 Cal.Rptr.3d 747]). If county counsel or the district attorney agrees with the recommendation, a petition for civil commitment is filed in superior court. (§ 6601, subds. (d), (i).) An SVP petition may be filed "if the individual was in custody pursuant to his or her determinate prison term, parole revocation term, or a hold placed pursuant to Section 6601.3, at the time the petition is filed." (§ 6601, subd. (a)(2), italics added.)
Hovanski argues that the 45-day hold placed on him under section 6601.3 was illegal because the statute cannot authorize the continued incarceration of a parolee past his discharge date. He relies on Penal Code section 3000, subdivision (b)(5), which provides that, "[u]pon successful completion of parole, or at the end of the maximum statutory period of parole specified for the inmate [by statute], whichever is earlier, the inmate shall be discharged from custody." (Italics added.) Hovanski reasons that because civil custody *1524 pursuant to the SVPA does not begin until a judge makes a probable cause determination, "any hold pursuant to [Welfare and Institutions Code] section 6601.3 can only be based on the authority to extend an existing term of custody, i.e., the prior sentence and parol[e] period."
Hovanski's argument is inconsonant with the language of the SVPA. Section 6601.3 states: "Upon a showing of good cause, the Board of Prison Terms may order that a person referred to the State Department of Mental Health pursuant to subdivision (b) of Section 6601 remain in custody for no more than 45 days beyond the person's scheduled release date for full evaluation pursuant to subdivisions (c) to (i), inclusive, of Section 6601." (Italics added.)
(3) Because a parolee remains subject to the CDCR's legal custody and may be taken back inside the prison at any time during his parole (Pen. Code, § 3056), the statutory scheme contemplates that an inmate who has violated his parole and is returned to custody near the completion of his term may still be referred to the DMH for evaluation as an SVP. This is clear from Welfare and Institutions Code section 6601, subdivision (a)(1), which makes the SVPA applicable to inmates who are "either serving a determinate prison sentence or whose parole has been revoked." (Italics added.) Furthermore, while an SVP evaluation ordinarily must be made "at least six months prior to that individual's scheduled date for release from prison" (§ 6601, subd. (a)(1)), referral to the DMH is also permitted when parole has been revoked and the inmate is nearing completion of his sentence: "[I]f the inmate was received by [CDCR] with less than nine months of his or her sentence to serve, ... the [S]ecretary may refer the person for [an SVP] evaluation in accordance with this section at a date that is less than six months prior to the inmate's scheduled release date" (ibid., italics added), which, in the case of an inmate whose parole has been revoked, is the same as his scheduled discharge from custody.[3]
Hovanski nevertheless asserts that when section 6601.3 refers to an inmate's "scheduled release date," it means his release from prison but not his release from parole. Again, the statutory language refutes his claim.
(4) When construing statutes, the goal is "`"to ascertain the intent of the enacting legislative body so that we may adopt the construction that best effectuates the purpose of the law."'" (City of Santa Monica v. Gonzalez (2008) 43 Cal.4th 905, 919 [76 Cal.Rptr.3d 483, 182 P.3d 1027].) We examine the words of the statute by giving them their ordinary and usual *1525 meaning and viewing them in their statutory context, because the statutory language is usually the most reliable indicator of legislative intent. (Musaelian v. Adams (2009) 45 Cal.4th 512, 516 [87 Cal.Rptr.3d 475, 198 P.3d 560].)
(5) The SVPA "`is aimed at protecting society from, and providing treatment for, that "small but extremely dangerous group of sexually violent predators" who have diagnosable mental disorders identified while they are incarcerated for designated violent sex crimes, and who are determined to be unsafe and, if released, to represent a danger to others through acts of sexual violence.'" (Garcetti v. Superior Court (2000) 85 Cal.App.4th 1113, 1117 [102 Cal.Rptr.2d 703], quoting Stats. 1995, ch. 763, § 1, pp. 5921-5922.) To best effectuate this purpose, we must presume that when the Legislature used the word "release" in section 6601.3, it intended to use the term in its most commonly understood sense. "Release" means the "discharge from obligation or responsibility"; "the state of being liberated or freed." (Webster's 3d New Internat. Dict. (1993) p. 1917, col. 2.) A parole discharge date for a prisoner such as Hovanski, who is serving the remainder of his term in prison due to the revocation of parole, is the date he is due to be released from custody. Since section 6601.3 authorizes the DMH to extend an inmate's custody for 45 days past his "release date" for purposes of completing its evaluation, the hold placed on him on December 14, 2006, literally complied with the terms of the statute.
Our interpretation comports with the CDCR's official records. When Hovanski violated his parole and was sent back to prison, the CDCR "Parole Violator Legal Status Summary" notes: "MRRD: 12/15/2006." In response to our request for supplemental briefing, both parties agreed that the acronym "MRRD" stands for "Maximum Revocation Release Date," which also corresponds to Hovanski's discharge date. Thus, December 15, 2006, was both Hovanski's discharge date and his release date. Section 6601.3, which authorized the CDCR to hold him for 45 days past his "scheduled release date," was properly invoked when BPH placed him on a 45-day hold on December 14, 2006.
(6) Hovanski contends that section 6601.5 is the exclusive statutory method for holding an inmate past his parole discharge date.[4] We are not persuaded. The various parts of a statutory enactment must be harmonized by *1526 considering the particular clause or section in the context of the statutory framework as a whole. (Kray Cabling Co. v. County of Contra Costa (1995) 39 Cal.App.4th 1588, 1592 [46 Cal.Rptr.2d 674].) (7) As noted in People v. Badura (2002) 95 Cal.App.4th 1218 [116 Cal.Rptr.2d 336], although section 6601.5 originally provided for "`urgency review'" for a parolee whose term was about to expire, it now allows the People to seek probable cause review in all cases where a petition has been filed. (Badura, at pp. 1222-1223.) Section 6601.5 does not apply in Hovanski's case because, by its own terms, it applies only after an SVP petition has been filed. Section 6601.3, which provides for a temporary hold, is the section applicable where, as here, the DMH's evaluation has not yet been completed.
II. Ex Post Facto
Hovanski contends that "[i]f section 6601.3 is construed to permit the extension of an already completed parole term, such a grant of authority would constitute an unconstitutional ex post facto law because, in effect, it is retroactively increasing [his] completed sentence, i.e., the prison term plus the parole term."
(8) The claim lacks merit because it is based on the unstated assumption that continued custody for evaluation and treatment under the SVPA constitutes "punishment." That notion was put to rest in Hubbart v. Superior Court (1999) 19 Cal.4th 1138 [81 Cal.Rptr.2d 492, 969 P.2d 584], where the California Supreme Court, adhering closely to the decision of the United States Supreme Court in Kansas v. Hendricks (1997) 521 U.S. 346 [138 L.Ed.2d 501, 117 S.Ct. 2072], concluded that the SVPA, a statute similar to the Kansas act examined in Hendricks, "does not `affix culpability' or seek `retribution' for criminal conduct," but rather is a civil commitment statute. (Hubbart, supra, at p. 1175, quoting Hendricks, supra, 521 U.S. at pp. 361-362 [138 L.Ed.2d at p. 515].) Because it does not impose punishment, the SVPA does not infringe on the constitutional prohibition on ex post facto laws. (Hubbart, supra, 19 Cal.4th at pp. 1178-1179; see also People v. Yartz (2005) 37 Cal.4th 529, 536 [36 Cal.Rptr.3d 328, 123 P.3d 604] ["`an SVPA commitment proceeding is a special proceeding of a civil nature...'"].) Here, section 6601.3 came into play only because Hovanski had been referred to DMH for evaluation pursuant to subdivision (b) of section 6601. This evaluation was civil in nature. Because Hovanski's confinement pursuant to the SVPA was not punishment, the time he spent awaiting full evaluation as an SVP candidate under section 6601.3 did not add to or increase his prison sentence, and therefore did not violate state or federal ex post facto prohibitions.
*1527 DISPOSITION
The petition for writ of habeas corpus is denied. The order to show cause is discharged.
Scotland, P. J., and Sims, J., concurred.
NOTES
[1] Undesignated statutory references are to the Welfare and Institutions Code. All sections of that code cited herein are within the Sexually Violent Predator Act (SVPA) (§ 6600 et seq.).
[2] The BPH replaced the Board of Prison Terms by legislation enacted in 2005. (See Gov. Code, § 12838.4 [added by Stats. 2005, ch. 10, § 6, operative July 1, 2005] & Pen. Code, § 5075 [as amended by Stats. 2005, ch. 10, § 46, operative July 1, 2005].) It is sometimes referred to by its old appellation.
[3] Hovanski's parole was revoked, and he was received by CDCR, with less than nine months of his sentence to be served. Thus, the six-month deadline did not apply, and the referral for an SVP evaluation could be made up to his scheduled discharge from custody.
[4] Section 6601.5 provides in relevant part: "Upon filing of the petition and a request for review under this section, a judge of the superior court shall review the petition and determine whether the petition states or contains sufficient facts that, if true, would constitute probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release. If the judge determines that the petition, on its face, supports a finding of probable cause, the judge shall order that the person be detained in a secure facility until a hearing can be completed pursuant to Section 6602." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267012/ | 174 Cal.App.4th 1351 (2009)
FAGELBAUM & HELLER LLP, Plaintiff and Respondent,
v.
ROBERT O. SMYLIE, Defendant and Appellant.
No. B205181.
Court of Appeals of California, Second District, Division Eight.
June 2, 2009.
*1354 Robert Smylie & Associates, James A. Moss; Esner, Chang & Ellis, Stuart B. Esner and Gregory R. Ellis for Defendant and Appellant.
Nemecek & Cole, Frank W. Nemecek, Mark Schaeffer and Joel Gluzman for Plaintiff and Respondent.
OPINION
BAUER, J.[*]
INTRODUCTION
Appellant Robert O. Smylie (Smylie) appeals from a judgment confirming an arbitration award which resolved a dispute over legal fees and costs *1355 incurred in two prior lawsuits. He contends that the court should have stayed the lawsuit filed by respondent law firm, Fagelbaum & Heller LLP (F&H), until the completion of the nonbinding arbitration Smylie initiated pursuant to the mandatory fee arbitration act (MFAA), Business and Professions Code section 6200 et seq.[1] Smylie also contends that the court should have stayed the contractual arbitration initiated by F&H pursuant to the California Arbitration Act (CAA), Code of Civil Procedure section 1280 et seq. Smylie claims that he did not waive MFAA arbitration, that there was no agreement for CAA arbitration of one matter, and that the agreement to arbitrate another matter was unenforceable. We reject Smylie's contentions and affirm the judgment.
BACKGROUND
1. F&H's Motion to Compel Arbitration
On September 29, 2006, F&H filed a complaint against Smylie, alleging breach of contract and common counts. The first cause of action alleged that in August 2001, F&H and Smylie entered into an oral agreement for legal services in connection with Neo-Tech Cosmetic Manufacturing, Inc. v. Smylie (Super. Ct. Orange County, 2003, No. 01CC10898). It alleged that Smylie breached the agreement by failing to pay legal fees and costs in the sum of $108,918. The second cause of action alleged the same facts as the first but added that there existed a written fee agreement, which had been lost. The third cause of action alleged that in September 2003, the parties entered into a written fee agreement with regard to a bad faith action that Smylie intended to file against his insurance carrier because of its refusal to defend him in the Neo-Tech litigation. It was alleged that Smylie breached the agreement by failing to pay the sum of $318,745. The third cause of action also alleged that F&H had instituted binding arbitration, as provided in the written agreement, and that the third cause of action had been included in the complaint solely for the purpose of obtaining provisional relief. The final three counts of the complaint were common countsopen book account, account stated, and unjust enrichment.
*1356 In October 2006, F&H filed a motion to compel binding arbitration and to consolidate arbitration proceedings. In support of the motion, F&H submitted the declaration of its partner, Jerold Fagelbaum, who stated that F&H was a subtenant in Smylie's suite of law offices, and that when Smylie failed to pay fees under the 2003 agreement, the parties agreed that Smylie would reduce the debt by allowing F&H a rent credit each month. In April 2006, after Smylie had refused to accept further credits and demanded that F&H pay rent, F&H initiated binding arbitration, as provided in the 2003 fee agreement, by submitting a demand to Action Dispute Resolution Services, Inc. (ADR).
Fagelbaum stated that, in response to the demand, Smylie initiated nonbinding MFAA arbitration by submitting a "Client's Request for Resolution of a Fee Dispute" to the Beverly Hills Bar Association (BHBA form) on June 30, 2006. A copy of the BHBA form is attached as an exhibit to Fagelbaum's declaration. The form states that the arbitration would be nonbinding unless both client and attorney agreed to a binding arbitration. The box next to "Non-binding" was checked. The form shows that the total amount in dispute was $1,077,566, of which Smylie claimed to have paid F&H the sum of $471,639. A refund of the latter amount was claimed, which would leave a balance of zero. The form includes an attachment alleging that F&H's malpractice had damaged Smylie in an amount exceeding the amounts already paid plus those claimed by F&H as still owing.
Fagelbaum also stated that on August 22, 2006, Smylie served F&H with a three-day notice to pay rent or quit. F&H invoked the arbitration clause in the sublease by submitting a demand to the American Arbitration Association (AAA). On September 14, 2006, Smylie responded to the AAA demand by serving a cross-demand in which he alleged that he owed nothing in legal fees, that he was entitled to a refund of fees, and that those issues were then subject to a nonbinding arbitration before the BHBA. The cross-demand alleged that Smylie had notified F&H that it could no longer offset the rent with outstanding legal fees. Smylie demanded relief in the sum of $75,685 in unpaid rent, plus ongoing rental damages, late fees, interest, and attorney fees.
In September 2006, the parties submitted to mediation through the BHBA, but they did not come to an agreement. Fagelbaum asserted in his declaration that, after Smylie left the mediation site, his attorney, Mark Egerman, agreed that the mediation "should conclude" the parties' use of the services of the BHBA and that the parties "should be deemed" to have complied with the *1357 requirements of the MFAA. In addition, Fagelbaum asserted that he and Egerman also "agreed in principle" that the parties' disputes "should be" consolidated, but that Egerman later reneged on this agreement.
F&H also submitted the declaration of its attorney, Frank Nemecek, who stated that he attempted, without success, to obtain Egerman's written confirmation of the agreement alleged by F&H in his declaration. Nemecek also stated that he attempted to go forward with the ADR arbitration, but ADR refused to do so without a court order.
F&H argued to the trial court that Smylie had waived his right to an MFAA arbitration under the procedures adopted by the BHBA. It argued that because Smylie allegedin both the BHBA form and the AAA cross-demandthat F&H committed legal malpractice, he waived his right to nonbinding MFAA arbitration.
2. Smylie's Opposition to Motion
In opposition to F&H's motion to compel arbitration, Smylie submitted his declaration, in which he stated that he had searched for but found no written retainer agreement relating to the Neo-Tech litigation and did not believe that one was ever executed. He denied having orally agreed to arbitrate disputes with F&H. He also submitted Egerman's declaration, in which he denied agreeing to waive his client's rights under section 6200, to deem the parties in compliance with its requirements, to conclude the parties' use of the BHBA, or to consolidate arbitrations. Egerman denied that he had the authority to bind his client to any of the agreements alleged by Fagelbaum and denied that he had entered into any such agreements.
3. Order Compelling Arbitration
The trial court granted F&H's motion to compel arbitration November 22, 2006. In a written decision, the court consolidated the MFAA arbitration and the AAA arbitration into the ADR binding arbitration, which would proceed immediately. The court gave no reasons for its order and made no express findings. The order also stated: "In the event the arbitrator(s) in the ADR Arbitration determine that any of F&H's claims against [Smylie] are not subject to an arbitration agreement, such claim or claims shall remain a subject of this action."
*1358 4. Motion to Confirm Award; Opposition and Request to Vacate Award
The binding ADR arbitration went forward with a three-arbitrator panel, which issued a unanimous award September 27, 2007. The award recited the issues presented as F&H's claim for legal fees relating to the Neo-Tech litigation, legal fees and third party vendor fees relating to the bad faith action, and Smylie's "eviction claim." The panel found that the parties had executed the lost written retainer agreement relating to the Neo-Tech litigation and that it contained an arbitration clause. It rejected Smylie's statute of limitations defense and awarded F&H its fees for the Neo-Tech litigation. The panel found that F&H had not committed legal malpractice in the course of the bad faith litigation, and that, if it had done so, there was no prejudice to Smylie. F&H was thus awarded its fees and the amounts owed to third party vendors arising out of the bad faith litigation. The panel rejected Smylie's claims under the sublease and enforced the parties' agreement permitting F&H to deduct the rent owed each month from the outstanding legal fees.
The panel awarded F&H its attorney fees incurred in the arbitration in the sum of $277,124 and costs in the sum of $33,925. The total award against Smylie was $1,078,897. Smylie submitted an application to amend the award, which the panel denied.
On November 7, 2007, F&H moved to confirm the award. Smylie opposed the motion to confirm the award and, in his opposition, requested that the trial court vacate the award on the ground that the arbitrators had been without power to proceed with a binding arbitration because Smylie had demanded, but was not afforded, his right to a nonbinding MFAA arbitration. In the alternative, Smylie sought correction of the award as set forth in a motion he had brought at arbitration.
5. Judgment and Appeal
The trial court granted F&H's motion to confirm and issued a statement of decision. In its statement of decision, the court found that Smylie had waived any right to other arbitration on the grounds successfully argued by F&H in its motion to compel arbitration. The court enumerated the facts upon which it found that Smylie had waived his right to nonbinding MFAA arbitration on five occasions by alleging that F&H committed malpractice. The court explained that the first two waivers were effected by the allegations on the BHBA form demanding MFAA arbitration and by the AAA cross-demand. In addition, the court cited Smylie's opposition to F&H's application for a right to attach order, his opposition to F&H's motion to compel arbitration, and his *1359 having participated fully in the ADR arbitration, without asserting that the arbitrators lacked jurisdiction because of his pending claim for MFAA arbitration.
Judgment was entered December 27, 2007, and the statement of decision was filed the same day. A superseding judgment was entered January 15, 2008, nunc pro tunc as of December 27, 2007. Smylie filed a timely notice of appeal January 22, 2008.
DISCUSSION
1. Standard and Scope of Review
Smylie contends that the trial court erred in compelling CAA arbitration while his MFAA arbitration was pending and that the court erred in confirming the award. F&H contends that Smylie failed to preserve appellate review of the order compelling arbitration by failing to file a petition for writ review or a separate petition to vacate the award. F&H cites no authority requiring intermediate writ review of an order compelling arbitration. Further, none of the authorities cited by F&H in support of this contention involved an appeal challenging an order compelling arbitration after entry of the final judgment; the appellants in those cases raised arbitrability issues for the first time on appeal from the judgments confirming the awards, without having objected prior to submission or having filed petitions to vacate within 100 days after the issuance of the award. (See Berg v. Traylor (2007) 148 Cal.App.4th 809, 823 [56 Cal.Rptr.3d 140]; Louise Gardens of Encino Homeowners' Assn., Inc. v. Truck Ins. Exchange, Inc. (2000) 82 Cal.App.4th 648, 658-660 [98 Cal.Rptr.2d 378]; Knass v. Blue Cross of California (1991) 228 Cal.App.3d 390, 393-396 [279 Cal.Rptr. 124].)
(1) The rule of forfeiture invoked by F&H applies not to parties like Smylie who have been compelled to arbitrate but to those who fail to raise the invalidity of the arbitration process at the outset, "so that prompt judicial resolution may take place before wasting the time of the adjudicator(s) and the parties. If a trial court compels arbitration nonetheless, the party resisting arbitration may seek review of the ruling on appeal from an order that confirms the award. [Citation.] If the arbitration process is found to be invalid, the responsibility for a waste of resources would then lie with the trial court, not the litigant. . . ." (Cummings v. Future Nissan (2005) 128 Cal.App.4th 321, 328-329 [27 Cal.Rptr.3d 10], fn. omitted.) Thus, "[w]ith respect to an order compelling arbitration, the question is not whether an aggrieved party is entitled to appellate review, but when . . . . [N]o immediate, direct appeal lies from an order compelling arbitration. [Citations.] But such an order is subject to review on appeal from the final judgment. [Citations.]" *1360 (Abramson v. Juniper Networks, Inc. (2004) 115 Cal.App.4th 638, 648 [9 Cal.Rptr.3d 422]; see also Code Civ. Proc., §§ 1294, subd. (d), 1294.2.)
The standard of review of an order compelling arbitration is substantial evidence where the trial court's decision was based upon the resolution of disputed facts or de novo where the facts are not in conflict. (Hartnell Community College Dist. v. Superior Court (2004) 124 Cal.App.4th 1443, 1448-1449 [22 Cal.Rptr.3d 410].) As Smylie does not challenge the court's factual findings, we independently review the order compelling arbitration. Our review of the written agreements and arbitration demands and cross-demand in evidence is de novo, as well, as there was no conflicting extrinsic evidence. (See Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865-866 [44 Cal.Rptr. 767, 402 P.2d 839].)
2. Relevant Principles Relating to MFAA Arbitration
(2) The MFAA required the State Bar to establish and maintain a system for the arbitration and mediation of attorney-client disputes regarding fees and costs, to be administered by local bar associations, and subject to review by the State Bar Board of Governors. (§ 6200, subds. (a), (d).) Under the statutory scheme, once a client demands MFAA arbitration, participation by the attorney is mandatory, and the attorney's "action or other proceeding shall be automatically stayed until the award of the arbitrators is issued or the arbitration is otherwise terminated." (§§ 6200, subd. (c), 6201, subds. (b), (c).)
(3) So long as the client was properly served with a notice of the right to MFAA arbitration, "[t]he request for arbitration shall be served and filed prior to the filing of an answer in the action or equivalent response in the other proceeding [commenced by the attorney]; failure to so request arbitration prior to the filing of an answer or equivalent response shall be deemed a waiver of the client's right to arbitration under the provisions of this article. . . ." (§ 6201, subd. (b).) In addition, the client's right to request or maintain an MFAA arbitration is deemed waived if the client commences an action or files any pleading seeking either judicial resolution of a fee dispute or "[a]ffirmative relief against the attorney for damages or otherwise based upon alleged malpractice or professional misconduct." (§ 6201, subd. (d)(2).)
(4) Further, a demand for MFAA arbitration may not include a "[c]laim[] for affirmative relief against the attorney for damages or otherwise based upon alleged malpractice or professional misconduct, except as provided in subdivision (a) of Section 6203." (§ 6200, subd. (b)(2).) Pursuant to section 6203, subdivision (a), evidence of malpractice and professional misconduct is admissible only to the extent that it relates to the fees or costs to which the *1361 attorney is entitled, and any refund to the client may consist only of "unearned fees, costs, or both previously paid to the attorney."
The parties may agree to be bound by the award. (§ 6204, subd. (a).) In the absence of such an agreement, either party may, within 30 days after the mailing of notice of the award, request a trial de novo, or binding arbitration if provided by the parties' fee agreement. (Id., subds. (c), (d); Schatz v. Allen Matkins Leck Gamble & Mallory LLP (2009) 45 Cal.4th 557 [87 Cal.Rptr.3d 700, 198 P.3d 1109].)
3. Waiver
Smylie contends that the trial court erred in finding that he waived MFAA arbitration on any of the five cited occasionsin the BHBA form demanding MFAA arbitration, in his opposition to F&H's application for a right to attach order, in his opposition to F&H's motion to compel arbitration, in the ADR arbitration, by his full participation, and in the AAA cross-demand. He contends that he merely alleged on those occasions that F&H committed malpractice, causing him to suffer damages, but did not seek to recover those damages. Thus, he argues, he cannot be deemed to have waived his right to MFAA arbitration because he did not seek affirmative relief due to alleged malpractice or professional misconduct. (§ 6201, subd. (d)(2).)
With regard to the first four occasions which the trial court found to have effected a waiver, Smylie's arguments that these actions were merely defensive may have merit. However, because we conclude that the court's ruling was correct for at least one reasonthat Smylie waived MFAA arbitration by requesting affirmative relief in the AAA cross-demandthe judgment must be sustained regardless of the court's other reasons. (See D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 18-19 [112 Cal.Rptr. 786, 520 P.2d 10].) We therefore need not reach Smylie's contentions with regard to the court's first four reasons.
Smylie contends that his AAA cross-demand sought no affirmative relief on account of F&H's alleged malpractice, because he sought only unpaid rent. The AAA cross-demand alleged that Smylie had paid F&H $471,670 in legal fees and costs, and that F&H claimed that $605,927 was still owing, but that due to overbilling and malpractice, not only was no amount due, Smylie was entitled to a refund. Smylie claims that such allegations do not seek affirmative relief, because the cross-demand also alleged that the dispute concerning fees and costs was then pending before the BHBA.
We note that Smylie has not denied that at one time, he had an agreement with F&H whereby F&H was permitted to apply rents as a credit against *1362 Smylie's outstanding debt for legal fees. Indeed, Smylie alleged in the AAA cross-demand that F&H paid the rent in the form of an offset from legal fees for "numerous months," and that the three-day notice to quit or pay rent alleged past-due rents beginning in July 2006, only after Smylie had informed F&H, by letter in March 2006 and by means of the demand for MFAA arbitration in June 2006, that F&H could no longer pay rent with offsets. Clearly implied in the allegations of the cross-demand is that there was such an agreement at one time, but because Smylie claimed that he no longer owed F&H a debt for legal fees and costs, due to F&H's alleged malpractice and misconduct, the agreement was terminated.
To award cash rents in lieu of credits in the AAA arbitration, the arbitrator would necessarily have to reach the issues of whether there had been an agreement to pay rent by crediting Smylie's debt for fees and costs, and if so, whether such debt should be eliminated by deducting Smylie's damages for alleged malpractice and misconduct. The AAA cross-demand thus did not simply seek past-due rent, as Smylie claims, but a rescission of the agreement to offset rent against the debt for legal fees and costs, and a refund of monies, which would be due on account of rent, if the arbitrator found that Smylie's damages for malpractice and attorney misconduct were sufficient to offset the entire debt.
(5) A client's right to MFAA arbitration is waived by filing any pleading seeking "[a]ffirmative relief against the attorney for damages or otherwise based upon alleged malpractice or professional misconduct." (§ 6201, subd. (d)(2), italics added.) A demand for arbitration is a pleading. (Blatt v. Farley (1990) 226 Cal.App.3d 621, 627 [276 Cal.Rptr. 612].) It follows that a cross-demand is a pleading. Here, the AAA cross-demand was a pleading seeking affirmative relief consisting of money that would be due only upon elimination of the outstanding legal fees and costs by deducting Smylie's alleged damages for malpractice and misconduct. The AAA demand thus effected a waiver of Smylie's right to MFAA arbitration.
(6) Thus, the trial court's implied finding of waiver was not error. Moreover, waiver was not the only ground under the MFAA upon which the trial court could have compelled CAA arbitration. The MFAA gives the court discretion to vacate the automatic stay upon finding that the matter is inappropriate for MFAA arbitration. (§ 6201, subd. (c).) Given the complex issues of malpractice and attorney misconduct at the heart of Smylie's claims and defenses, the MFAA fee arbitration was unlikely to resolve the parties' disputes; thus, the court had discretion to allow F&H's other proceedings the consolidated ADR and AAA arbitrationsto go forward immediately. *1363 (See Manatt, Phelps, Rothenberg & Tunney v. Lawrence (1984) 151 Cal.App.3d 1165, 1172 [199 Cal.Rptr. 246].)[2]
4. Agreement to Arbitrate the Neo-Tech Fees and Costs
Smylie contends that the trial court erred in compelling CAA arbitration of the Neo-Tech fee dispute because F&H did not prove the existence of an arbitration agreement (alleged in F&H's complaint to have been lost). Smylie further contends that the court erred in referring the issue of the existence of the agreement to the arbitrators.
(7) An agreement to arbitrate is an essential jurisdictional prerequisite to CAA arbitration. (Code Civ. Proc., § 1281.2; Ramirez v. Superior Court (1980) 103 Cal.App.3d 746, 752 [163 Cal.Rptr. 223].) With some exceptions, an arbitration agreement must be in writing. (Magness Petroleum Co. v. Warren Resources of Cal., Inc. (2002) 103 Cal.App.4th 901, 909-910 [127 Cal.Rptr.2d 159].) As the party seeking to compel arbitration, F&H bore the burden of proving the existence of a valid arbitration agreement. (Flores v. Evergreen at San Diego, LLC (2007) 148 Cal.App.4th 581, 586 [55 Cal.Rptr.3d 823].)
Smylie contends that because F&H did not produce an arbitration agreement specific to the Neo-Tech fees and costs, it did not bear its burden to show that such an agreement existed.[3] F&H asked the court to defer that issue to the arbitrator, arguing that "if there is no agreement to arbitrate the Neo-Tech Litigation fee dispute, the arbitrator in the ADR arbitration may so rule and F&H will simply pursue those claims in the instant action before this Court." In its order compelling arbitration, the court appears to have granted F&H's request to defer the issue to the arbitration panel. The order states: "In the event the arbitrator(s) in the ADR Arbitration determine that any of F&H's claims against [Smylie] are not subject to an arbitration agreement, such claim or claims shall remain a subject of this action."
*1364 We agree with Smylie that whether there was an agreement to arbitrate was a threshold issue that the trial court was required to determine prior to granting the motion to compel arbitration. (See Lawrence v. Walzer & Gabrielson (1989) 207 Cal.App.3d 1501, 1505 [256 Cal.Rptr. 6].) However, we disagree with Smylie's contention that a deferral of the determination of the existence of an agreement expressly to arbitrate the Neo-Tech fees and costs requires reversal. While no arbitration agreement specific to the Neo-Tech matter was produced, Smylie placed all outstanding and previously paid legal fees and costs in issue in the AAA arbitration regarding rental payments under F&H's sublease.
The sublease provides, in relevant part: "The parties hereto hereby agree that any controversy or claim arising out of or relating to this Sub-Sublease, or any breach or material default hereof will be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. . . ." (Italics added.) As Smylie submitted no extrinsic evidence as to the meaning of that language, we independently construe it, and conclude that it is broad enough to include related controversies that are not expressly described in the agreement. (Cf. Bos Material Handling, Inc. v. Crown Controls Corp. (1982) 137 Cal.App.3d 99, 105-106 [186 Cal.Rptr. 740].) Smylie's refusal to accept any more offsets against outstanding legal fees and costs, and instead demanding cash rental payments, based upon his claim of malpractice, created a dispute clearly related to the sublease, in which Smylie had agreed to binding arbitration. Thus, the sublease's arbitration clause was broad enough to include the Neo-Tech controversy, and Smylie's service of a cross-demand for arbitration raising this issue manifested his acknowledgment of that agreement.
5. Agreement to Arbitrate Bad Faith Fees and Costs
Although Smylie concedes that he signed a written retainer agreement regarding the bad faith litigation and that the agreement contained an arbitration clause, he contends that the agreement to arbitrate those fees and costs was unenforceable, because it was not signed by all parties. That retainer agreement recites that the parties to it were Smylie and three other clients of F&H. There are signature lines for F&H partner Jerold Fagelbaum, Smylie, and three other signatories, the other clients. There are signatures of Smylie and Fagelbaum, but the signature lines for the remaining clients are blank.[4]
*1365 (8) Smylie cites the rule that where the evidence shows that a contract was conditioned upon execution by all parties, the contract is not binding on any signatory until it is signed by all. (Angell v. Rowlands (1978) 85 Cal.App.3d 536, 542 [149 Cal.Rptr. 574], citing Cavanaugh v. Casselman (1891) 88 Cal. 543 [26 P. 515].) Smylie contends that F&H bore the burden to prove that the agreement was binding without the signatures of the three other clients. He is mistaken. It is the signatory resisting enforcement of the contract who "cannot escape liability unless he affirmatively establishes that the signatures of all parties were contemplated as being a condition precedent to the validity of the contract [citation]." (Angell v. Rowlands, at p. 541.) Smylie refers to no evidence that might have met that burden.
Moreover, if the burden of proof had been F&H's, the retainer agreement was sufficient to meet it. The introductory paragraph states: "This letter (the `Agreement') shall constitute a written retainer agreement between [other clients] individually, and [Smylie], individually . . ., and the law firm. . . ." It is clear from the face of the agreement that Smylie agreed to be individually bound by it.
Smylie contends that other language in the agreement shows otherwise. He refers to paragraph 1, entitled, "Effective Date," which reads: "Upon Clients' returning an executed copy of this Agreement, this Agreement will be deemed effective since the first date the Firm began providing services to Clients." Smylie argues that the use of the plural, "Clients," denotes that the effectiveness of the agreement was conditioned upon execution by all clients. We disagree. Smylie's interpretation ignores the implied definition of "Clients" set forth in the agreement. In the introductory paragraph, after the enumeration of the names of each client "individually," the phrase "collectively the `Clients'" appears in parentheses. Thus, "Clients" means each client individually, and the use of the plural appears to have been a convenience, not a condition precedent. At most, the term created an ambiguity, which was resolved by the plain statement that the agreement was a contract between F&H and each client individually.
We conclude that Smylie did not meet his burden to prove "that the signatures of all parties were contemplated as being a condition precedent to the validity of the contract [citation]." (Angell v. Rowlands, supra, 85 Cal.App.3d at p. 541.) His signature individually bound him to the agreement and to the arbitration clause within it.
*1366 DISPOSITION
The judgment is affirmed. F&H shall have costs on appeal.
Rubin, Acting P. J., and Flier, J., concurred.
NOTES
[*] Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
[1] Business and Professions Code section 6200 et seq. established a system of voluntary and involuntary arbitration and mediation of fee disputes between attorneys and clients, to be administered by local bar associations. The MFAA provides that, with certain exceptions, the attorney must submit to a fee arbitration demanded by a client. (See Bus. & Prof. Code, § 6200, subds. (a)-(d).) The parties may agree in writing to be bound by the arbitration award, and, if they do not, either party may seek a trial after arbitration, if sought within 30 days after the notice of award is mailed. (Id., §§ 6203, subd. (b), 6204.)
All further statutory references are to the Business and Professions Code, unless otherwise indicated.
[2] MFAA arbitration and contractual arbitration are different creatures, with one conducted by a local bar association under its rules, and the other by private means. (Aguilar v. Lerner (2004) 32 Cal.4th 974, 984 [12 Cal.Rptr.3d 287, 88 P.3d 24].) It would not be within the ADR arbitrator's power to determine the MFAA issues. (See Aguilar v. Lerner, at pp. 983-984.) Thus, as Smylie points out, the trial court's purported consolidation of the MFAA arbitration with the two contractual arbitrations was, in essence, an order that the ADR and AAA arbitrations go forward instead of the MFAA arbitration.
[3] F&H includes the court's tentative ruling in its appendix, and construes an ambiguous comment in it as a finding that there was such an agreement. Although the court stated at the hearing on the motion that its ruling was "in accordance with the tentative," it did not incorporate the tentative as part of its ruling. Further, F&H has not referred to a local rule that would automatically make the tentative part of the final order. (See generally Cal. Rules of Court, rule 3.1308.) We therefore follow the general rule that written orders supersede tentative decisions, and we disregard the tentative ruling. (See In re Marriage of Ditto (1988) 206 Cal.App.3d 643, 646-647 [253 Cal.Rptr. 770] [court not bound by intended decision].)
[4] F&H contends that the retainer agreement was signed by all clients, but refers to a copy of the agreement signed in October 2003, which was submitted in opposition to the motion to confirm the arbitration award. It was not the agreement submitted to support the order compelling arbitration. As Smylie notes, F&H did not sign the October 2003 agreement, and the next exhibit in the opposition papers shows that F&H rejected the signed agreement. We therefore limit our discussion to the agreement submitted in support of the motion to compel arbitration. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267020/ | 174 Cal.App.4th 67 (2009)
___ Cal.Rptr.3d ___
LEWIS C. NELSON & SONS, INC., Plaintiff and Appellant,
v.
LYNX IRON CORP. et al., Defendants and Respondents.
No. F055815.
Court of Appeals of California, Fifth District.
May 21, 2009.
*70 Lax & Stevens, Paul A. Lax and Donna E. Kirkner for Plaintiff and Appellant.
Peckar & Abramson, James L. Ferro and Christopher S. Frederick for Defendants and Respondents.
*71 OPINION
KANE, J.
Lewis C. Nelson & Sons, Inc. (plaintiff), the general contractor on a school construction project, filed a lawsuit in Fresno County Superior Court against Lynx Iron Corp. (Lynx) and St. Paul Fire and Marine Insurance Company (St. Paul) (jointly, defendants) seeking damages for delays in performance of a subcontract and recovery on a performance bond (the Fresno action). Thereafter, the parties signed a document that defendants believed was a complete settlement of the Fresno action and, consistent with that belief, defendants filed a motion in the trial court to enforce the settlement and enter judgment in their favor pursuant to Code of Civil Procedure section 664.6.[1] While that motion was pending, plaintiff voluntarily dismissed the Fresno action without prejudice. At approximately the same time, plaintiff filed the identical lawsuit in Kern County Superior Court (the Kern action). Defendants asserted their section 664.6 motion in the Kern action, but the trial court there denied the motion on the rationale that the Kern action was not pending at the time of the purported settlement. Frustrated by this turn of events, defendants returned to Fresno County Superior Court and moved to vacate plaintiff's dismissal of the Fresno action on the ground that it was an unfair tactical ploy designed to defeat defendants' ability to expeditiously enforce the settlement under section 664.6. The trial court granted defendants' motion, vacated the dismissal and subsequently heard defendants' motion to enforce settlement under section 664.6, which it likewise granted. Plaintiff appeals on the ground that the trial court abused its discretion in setting aside its voluntary dismissal of the Fresno action. We agree and accordingly reverse.
FACTS AND PROCEDURAL HISTORY
Plaintiff was the general contractor on a construction project known as the La Vina Middle School, located in Delano, Kern County, California (the project). The owner of the project was Delano Union School District (the District). On January 5, 2005, plaintiff and Lynx entered into a written subcontract wherein Lynx agreed to furnish and install structural steel at the project for a contract price of $2.7 million (the subcontract). St. Paul issued a bond guaranteeing the performance of Lynx under the subcontract.
Several Disputes and a Settlement Agreement
During the construction, disputes arose between Lynx and plaintiff. Lynx claimed that it performed all the work set forth in the subcontract and was entitled to additional sums to compensate for change orders made by the *72 District. Lynx also claimed that a number of plaintiff's asserted backcharges that would have reduced the amounts owed to Lynx were not valid. Meanwhile, plaintiff quietly came to the conclusion that it had been damaged by Lynx's delays that had increased plaintiff's overhead expenses on the project.
A number of letters were exchanged between plaintiff and Lynx in an effort to narrow or resolve the matters in dispute. Plaintiff sent a letter to Lynx on February 22, 2007, stating that the District would not be assessing any liquidated damages based on days of delay. Once this information was confirmed, Lynx was apparently under the impression that any claims based on delay were resolved. On February 28, 2007, Kent Schluter, Lynx's vice-president of operations, wrote a letter to plaintiff summarizing Lynx's existing claims based on the District's change orders and the disputed backcharges. Mr. Schluter proposed that the parties "meet and discuss a final settlement of the outstanding issues at the earliest convenience of all parties." On March 8, 2007, Mr. Schluter sent an additional letter to plaintiff further clarifying the change orders and backcharges that remained in dispute. That letter made a proposal for resolving the disputed matters and stated as follows: "This would resolve all the outstanding issues between our companies and the [District]. Lynx ... final [contract] amount would then be $2,778,459.79 with a currently due Lynx ... amount of $457,570.00."
On April 13, 2007, plaintiff filed its complaint in the Fresno action against defendants, alleging causes of action for breach of contract, recovery on performance bond, cancellation of stop notice, and declaratory relief. Among other things, the complaint alleged that Lynx breached the subcontract by failing to perform its work in accordance with the subcontract by "causing delay," thereby resulting in damage to plaintiff.
On May 7, 2007, before the complaint in the Fresno action was served on defendants, the parties met to discuss settlement. Mr. Schluter, who attended the meeting on behalf of Lynx, believed that the purpose of the meeting was a global settlement of all remaining issues in dispute. Dwight G. Nelson, attending the meeting as president of plaintiff, had a more limited objective in view. Mr. Nelson's primary goal was to obtain a release of Lynx's claims against plaintiff because doing so was a precondition (under the prime contract with the District) for receiving the final payment from the District. Mr. Nelson was also willing to resolve certain "direct cost backcharges" of plaintiff that were in dispute. In his declaration describing the May 7, 2007 meeting, Mr. Nelson observed that plaintiff's claims based on Lynx's project delays were never discussed, and Mr. Nelson added that he did not intend to settle any matters other than those that were actually specified.
*73 At the May 7, 2007 meeting, the parties signed a document that listed and resolved, item by item, the disputed change orders and backcharges (the settlement agreement). The settlement agreement was in the form of a particularized list of discrete claims with dollar values initialed by the parties, including the statement that "[t]he initialed items above represent the amounts claimed as outstanding or in dispute by Lynx ... on the La Vina Middle School project by a representative of Lynx ... and [plaintiff]." Next to the parties' signatures, at the bottom of the itemized list, the following statement was handwritten: "Lynx ... agrees to settle and relinquish all claims for [a] revised contract amount of $2,762,467.00." (Italics added.) Thus, while the settlement agreement provided for Lynx's release of claims against plaintiff, it did not expressly state that plaintiff agreed to release any of its claims against Lynx.[2]
On July 12, 2007, plaintiff retained Lax & Stevens as new counsel in the Fresno action. The Fresno action was served on defendants on July 19, 2007. Defendants responded by filing the first of three motions seeking to enforce the settlement and enter judgment in defendants' favor pursuant to section 664.6.
Defendants' First Motion to Enforce Settlement and Plaintiff's Dismissal of the Fresno Action Without Prejudice
On September 10, 2007, defendants filed their motion to enforce settlement and enter judgment pursuant to section 664.6 in the Fresno action. Defendants argued that the settlement agreement of May 7, 2007, was intended to globally resolve all of the parties' claimsthat is, plaintiff's claims against Lynx, as well as Lynx's claims against plaintiff. The motion was set for hearing on October 11, 2007. Plaintiff's opposition to the motion was due by September 27, 2007. (See § 1005, subd. (b) [opposition papers to be filed and served nine court days prior to hearing].)
Plaintiff did not file opposition to the motion. However, on September 28, 2007, one day after the opposition was due and 13 calendar days prior to the hearing, plaintiff filed a request for voluntary dismissal of the Fresno action without prejudice. The dismissal was duly entered by the clerk on September 28, 2007.[3]
*74 The Kern Action and the Second Motion to Enforce Settlement
On September 20, 2007, plaintiff filed essentially the same lawsuit in Kern County Superior Court. Defendants were served with the Kern action on October 5, 2007. Defendants again filed their motion to enforce settlement, this time in the Kern action. At the December 3, 2007 hearing of that motion, the trial court announced that its tentative ruling was to deny the motion on the ground that it lacked jurisdiction under section 664.6 to enforce the settlement, because the settlement related to the prior Fresno action that had been dismissed. In other words, at the time of the parties' settlement, the Kern action was not pending; therefore, the trial court did not have authority to render judgment under section 664.6.[4] The trial court expressed that it understood defendants' frustration, and suggested that defendants might attempt to return to Fresno. Following oral argument, the motion to enforce settlement in the Kern action was denied.
Defendants' Motion to Vacate Dismissal
On March 6, 2008, defendants returned to Fresno County Superior Court and filed their motion to vacate plaintiff's voluntary dismissal of the Fresno action. Defendants argued that their original motion to enforce settlement in the Fresno action was a dispositive motion and that plaintiff's dismissal of the action without prejudice was a tactical ploy to evade an inevitable ruling in defendants' favor.
Plaintiff's opposition to the motion argued that the dismissal of the Fresno action did not avoid an inevitably unfavorable ruling because the outcome of the motion to enforce settlement was not a foregone conclusion. Plaintiff argued that if the motion had been heard, it most likely would have been denied because (i) the settlement agreement related to claims distinct from those raised in the Fresno action, and (ii) the express wording of the settlement agreement clearly stated that plaintiff was being released, not Lynx, and evidence contradicting such clear wording would violate the parol evidence rule. Moreover, plaintiff's attorney stated in his declaration that the motivation for dismissing the Fresno action and filing the action in Kern County was to expeditiously move the action to its proper venue.
*75 The trial court's tentative ruling was to deny the motion to vacate because, under applicable case law, a plaintiff's right to voluntarily dismiss an action is only deemed to be cut off when an adverse dispositive ruling is a foregone conclusion. According to the tentative ruling, that was not the case because defendants would not have prevailed on the motion to enforce settlement since the unambiguous wording of the settlement agreement was that Lynx relinquished its claims against plaintiff, not the other way around. Thus, plaintiff retained its right to dismiss pursuant to section 581, subdivision (c).
Following oral argument, the trial court took the matter under submission. On May 7, 2008, the trial court reversed its tentative ruling and granted the motion to vacate. The trial court explained that the dismissal was purely a tactical maneuver and that defendants were "likely" to have prevailed on the motion to enforce settlement.
With the dismissal set aside, defendants filed their third motion to enforce settlement pursuant to section 664.6. The trial court found the settlement to be ambiguous, admitted parol evidence that the parties intended a global settlement, and granted the motion to enforce the settlement and enter judgment. The trial court's minute order dated June 24, 2008, dismissed the Fresno action with prejudice.[5]
Plaintiff's appeal followed. Plaintiff contends the trial court abused its discretion when it (1) vacated plaintiff's dismissal of the Fresno action, and (2) granted the motion to enforce settlement. As discussed below, the first ground is correct and fully disposes of this appeal.
DISCUSSION
The dispositive issue in this case is whether the trial court erred in vacating plaintiff's voluntary dismissal, without prejudice, of the Fresno action. We conclude that it did. In so holding, we note that the facts material to our review are undisputed. In applying a statute to undisputed facts, our review is de novo. (Zapanta v. Universal Care, Inc. (2003) 107 Cal.App.4th 1167, 1171 [132 Cal.Rptr.2d 842].)
(1) Section 581 allows a plaintiff to voluntarily dismiss an action, with or without prejudice, at any time before the "actual commencement of trial." *76 (§ 581, subds. (b)(1), (c).) As stated by the California Supreme Court: "Apart from certain ... statutory exceptions, a plaintiff's right to a voluntary dismissal [before commencement of trial pursuant to section 581] appears to be absolute. [Citation.] Upon the proper exercise of that right, a trial court would thereafter lack jurisdiction to enter further orders in the dismissed action." (Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 784 [176 Cal.Rptr. 104, 632 P.2d 217].) "Alternatively stated, voluntary dismissal of an entire action deprives the court of both subject matter and personal jurisdiction in that case, except for the limited purpose of awarding costs and ... attorney fees. [Citations.]" (Gogri v. Jack in the Box, Inc. (2008) 166 Cal.App.4th 255, 261 [82 Cal.Rptr.3d 629].)
A plaintiff's right to voluntarily dismiss an action ceases at the "commencement of trial." (§ 581, subds. (b)(1), (c).) The concept of "trial" in section 581 is "not limited to `trial' in the conventional sense but also includes determinations on matters of law which dispose of the entire case, such as some demurrers and pretrial motions." (Kyle v. Carmon (1999) 71 Cal.App.4th 901, 909 [84 Cal.Rptr.2d 303].) Therefore, "commencement of trial" under section 581 "includes pretrial procedures that effectively dispose of the case." (Gogri v. Jack in the Box, Inc., supra, 166 Cal.App.4th at p. 262.) For example, a plaintiff's right to voluntarily dismiss his or her action under section 581 is cut off when a general demurrer is sustained without leave to amend, or when a general demurrer is sustained with leave to amend and the plaintiff fails to amend within the time allowed by the court, even if the trial court has not yet entered a judgment of dismissal on the sustained demurrer. (Wells v. Marina City Properties, Inc., supra, 29 Cal.3d at pp. 785, 789.) The California Supreme Court found in these instances that a "trial" had occurred within the meaning of section 581, thereby terminating the plaintiff's right to file a voluntary dismissal. (Wells, at p. 785.) If this were not so, "`"litigation would become interminable, because a party who was led to suppose a decision would be adverse to him could prevent such decision and begin anew, thus subjecting the defendant to annoying and continuous litigation."'" (Ibid., quoting Goldtree v. Spreckels (1902) 135 Cal. 666, 671 [67 P. 1091].)
(2) Judicial recognition that a "trial" for purposes of section 581 includes pretrial proceedings that dispose of an action on the merits has led to a more difficult question: When does such a pretrial "trial" commence for purposes of ascertaining whether a plaintiff's voluntary dismissal under section 581 was timely? A general answer to that question is that if the action "`"has proceeded to a determinative adjudication, or to a decision that is tantamount to an adjudication."' [Citation.]" (Zapanta v. Universal Care, Inc., supra, 107 *77 Cal.App.4th at p. 1171), or if the case has "reached a stage where a final disposition was a mere formality" (id. at p. 1174), a trial may be said to have commenced that would terminate the plaintiff's right to file a voluntary dismissal. Shedding further light on the matter, one appellate court recently reviewed and harmonized numerous section 581 cases by using an expanded "mere formality" test as a way to ascertain the "commencement of trial" (Franklin Capital Corp. v. Wilson (2007) 148 Cal.App.4th 187, 200-205 [55 Cal.Rptr.3d 424] (Franklin) [cases summarized]). Under that test, a voluntary dismissal would be untimely and ineffective if either (1) there has been "a public and formal indication by the trial court of the legal merits of the case," or (2) there has been "some procedural dereliction by the dismissing plaintiff that made dismissal [with prejudice] otherwise inevitable." (Id. at p. 200.)
By way of illustration, the first category of Franklin's "mere formality" test (i.e., a public and formal indication of the merits was pronounced by the trial court) would include cases where there was a formal tentative ruling to grant a dispositive motion. (E.g., Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765, 771-772 [57 Cal.Rptr.2d 4] [dismissal set aside where filed after adverse tentative ruling on summary judgment motion]; Groth Bros. Oldsmobile, Inc. v. Gallagher (2002) 97 Cal.App.4th 60, 72 [118 Cal.Rptr.2d 405] [dismissal set aside where filed after tentative ruling to sustain demurrer without leave to amend].) In such circumstances, there is deemed to be a "commencement of trial" under section 581 that would cut off the plaintiff's right to voluntarily dismiss the action without prejudice. (Franklin, supra, 148 Cal.App.4th at pp. 202-204.) A significant example of the second category of untimely dismissals under Franklin's "mere formality" test (i.e., a dispositive adverse ruling became procedurally inevitable) would be the situation where a defendant filed a summary judgment motion meeting his or her initial burden of showing that the plaintiff's case was without merit and the plaintiff failed to file any opposition. (Cravens v. State Bd. of Equalization (1997) 52 Cal.App.4th 253, 257 [60 Cal.Rptr.2d 436] (Cravens) [dismissal filed one day prior to hearing on summary judgment motion, long after time for the plaintiff to file opposition had run]; Franklin, supra, at pp. 202-204.) We note that in Cravens, the plaintiff's case became doomed upon the failure to file opposition because of the peculiarities of summary judgment proceedings. That is, once the defendants met their initial burden under section 437c, the burden shifted to the plaintiff to demonstrate the existence of a triable issue of material fact, and the plaintiff's failure to do so made judgment in the defendants' favor "a formality which [the plaintiff] could not avoid by the stratagem of filing a last minute request for dismissal without prejudice." (Cravens, supra, at p. 257; cf. Zapanta v. Universal Care, Inc., supra, 107 *78 Cal.App.4th at pp. 1173-1174 [dismissal timely where filed one day before opposition to summary judgment motion was due].)[6]
(3) The question of whether a plaintiff's voluntarily dismissal is timely under § 581 depends uponand must remain tethered toa reasonable construction and application of the statutory term "commencement of trial." (Franklin, supra, 148 Cal.App.4th at p. 207 ["any consideration of when the statutory right to voluntary dismissal terminates must be rationally connected to the statutory phrase `commencement of trial'"].) Hence, a plaintiff's subjective lack of good faith in seeking a dismissal does not, by itself, terminate the statutory right to dismiss. (Ibid.; see also Gogri v. Jack in the Box, Inc., supra, 166 Cal.App.4th at p. 265, fn. 8 [the timeliness of a § 581 dismissal is based on an "objective, not a subjective, standard"].)[7]
In the present case, at the time of plaintiff's voluntary dismissal of the Fresno action, there had been no tentative ruling or other "public and formal indication" by the trial court regarding the merits of the case, nor was there any "procedural dereliction" on plaintiff's part that would make a judgment in defendants' favor "inevitable." (Franklin, supra, 148 Cal.App.4th at p. 200, italics omitted.) Thus, the case does not come within either broad category of the "mere formality" test set forth in Franklin. Clearly, the case had not reached the stage where a final disposition of the case in defendants' *79 favor was a mere formality. We conclude there was no "commencement of trial," and thus plaintiff's right to dismiss under section 581 was not cut off.
(4) Defendants contend that because the dismissal was filed one day after plaintiff's opposition to the motion was due and no opposition was filed, a judgment in defendants' favor was, in fact, inevitable. We disagree. Unlike the summary judgment procedure involved in Cravens, there is nothing inherent in a motion to enforce settlement pursuant to section 664.6 that would render any particular outcome "inevitable," or a mere formality, simply because plaintiff failed to file opposition.[8] Outside of the unique summary judgment context in Cravens, we know of no case holding that a failure to file an opposition terminates a plaintiff's right to dismiss under section 581. Indeed, it appears that in the absence of special circumstances indicating an adverse judgment is a foregone conclusion (such as in Cravens), the general rule is that a party may obtain a voluntary dismissal at any time prior to a ruling, or something tantamount thereto (i.e., a formal and public indication of the merits), on the dispositive motion. (See Wells v. Marina City Properties, Inc., supra, 29 Cal.3d at pp. 789-790 [plaintiff's right to dismiss not impaired prior to a decision sustaining demurrer without leave]; Kyle v. Carmon, supra, 71 Cal.App.4th at p. 912 [upholding voluntary dismissal after trial court heard but had not ruled on a § 425.16 motion]; Franklin, supra, 148 Cal.App.4th at p. 219 [dismissal on eve of hearing upheld].) For these reasons, we reject defendants' contention that plaintiff's voluntary dismissal was untimely or ineffective merely because it was filed one day after opposition was due.
Defendants cite Hartbrodt v. Burke (1996) 42 Cal.App.4th 168 [49 Cal.Rptr.2d 562] (Hartbrodt) in an attempt to show that plaintiff's failure to oppose the motion cut off its right to dismiss. In Hartbrodt, the trial court ordered the plaintiff to produce a tape recording to the defendant within 30 days. The plaintiff failed to comply with that order. The defendants moved for terminating sanctions, requesting that the trial court dismiss the case with prejudice as a sanction under the discovery statutes. Just before the hearing on the motion for terminating sanctions, the plaintiff filed a voluntary request for dismissal without prejudice. The trial court rejected the plaintiff's voluntary dismissal and granted the motion for terminating sanctions. The Court of Appeal affirmed. It upheld the trial court's rejection of the voluntary dismissal *80 in the following terms: "In one last effort to salvage his case, [the plaintiff] attempted to voluntarily dismiss his case without prejudice and thereby deny to [the defendants] the finality obtained by imposition of the terminating sanction. This tactic would simply defeat the trial court's power to enforce its discovery orders." (Id. at p. 175.) Thus, in Hartbrodt, the following special considerations were involved that trumped the voluntary dismissal: (1) the trial court's power to vindicate and enforce its own discovery order, and (2) the existence of that prior order and the plaintiff's clear disobedience thereof "could be viewed as entitling the defendant to a final disposition of the case." (Kyle v. Carmon, supra, 71 Cal.App.4th at p. 914 [distinguishing Hartbrodt].) These considerations are lacking in the present case. Therefore, we conclude that Hartbrodt is distinguishable.
(5) Finally, defendants argue that the voluntary dismissal should not be allowed to stand because plaintiff intended it as a tactical ploy to defeat defendants' statutory right to enforce the settlement under section 664.6. While we are not unsympathetic with this argument, it fails for two basic reasons. First, the timeliness of a voluntary dismissal under section 581 is measured by an objective standard of whether a commencement of trial has occurred under section 581. (Franklin, supra, 148 Cal.App.4th at pp. 207-209; Gogri v. Jack in the Box, Inc., supra, 166 Cal.App.4th at p. 265, fn. 8.) Here, as explained above, even though a section 664.6 motion was pending at the time of the dismissal, there was no commencement of trial since the law and motion proceedings had not reached a stage where an adverse outcome was a mere formality or inevitable. Therefore, the dismissal was timely. Second, we see no reason to apply a different standard to a section 664.6 motion than other potentially dispositive motions, such as a demurrer or summary judgment motion, where it has been held that the plaintiff's right to dismiss continues until there is a commencement of trial. (See Wells v. Marina City Properties, Inc., supra, 29 Cal.3d at p. 785 [demurrer]; Zapanta v. Universal Care, Inc., supra, 107 Cal.App.4th at pp. 1171-1172 [summary judgment motion].)
(6) We conclude plaintiff's voluntary dismissal of the Fresno action pursuant to section 581 was timely and the trial court erred in setting it aside. Because plaintiff's valid dismissal deprived the trial court of further jurisdiction (except for limited matters such as motions for costs), the trial court's order granting defendants' motion to enforce settlement is void. (Zapanta v. Universal Care, Inc., supra, 107 Cal.App.4th at p. 1171; Gogri v. Jack in the Box, Inc., supra, 166 Cal.App.4th at p. 268.)
*81 DISPOSITION
The trial court's orders vacating plaintiff's dismissal and granting defendants' motion to enforce settlement are vacated. The judgment is reversed. The matter is remanded to the trial court with directions to reinstate plaintiff's voluntary dismissal of the action without prejudice. Costs on appeal are awarded to plaintiff.
Cornell, Acting P. J., and Dawson, J., concurred.
NOTES
[1] Unless otherwise indicated, all statutory references are to the Code of Civil Procedure.
[2] At the same time, as noted by defendants, the settlement agreement set a revised contract price to be paid Lynx without expressly reserving any right on plaintiff's part to claim delay damages. In retrospect, it is not difficult to see how the parties might come away with different conclusions about what transpired.
[3] The request for dismissal was signed by plaintiff's counsel on September 18, 2007, and served by mail to defendants' counsel on September 24, 2007. Plaintiff asserts that the request for dismissal was also mailed to the Fresno County Superior Court on September 24, 2007. Plaintiff speculates the request for dismissal may have arrived at the court for filing prior to the time opposition was due, even though it was not actually filed or entered until September 28, 2007.
[4] On this jurisdictional issue, the Kern County trial court cited Housing Group v. United Nat. Ins. Co. (2001) 90 Cal.App.4th 1106, 1112-1113 [109 Cal.Rptr.2d 497].
[5] The trial court neglected to enter a formal judgment. However, since the order disposed of the entire action, we amend it to include a judgment and deem such judgment to have been filed. (See Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 700 [107 Cal.Rptr.2d 149, 23 P.3d 43].)
[6] We do not suggest that in every case where no opposition is filed to a defendant's summary judgment motion (and the initial burden was met), the plaintiff's right to file a voluntary dismissal is necessarily cut off. There may be other circumstances present affecting the status of the case or showing that an adverse judgment was not inevitable, so that the dismissal may still be found timely. For example, in Tire Distributors, Inc. v. Cobrae (2005) 132 Cal.App.4th 538 [33 Cal.Rptr.3d 761], a plaintiff's voluntary dismissal of a defendant one day prior to the scheduled hearing on the defendant's summary judgment motion was held to be timely because the dismissal was filed to implement a settlement agreement, and the plaintiff's dismissal was actually motivated by that purpose and not as a bad faith tactic to avoid an adverse ruling. (Id. at pp. 546-547; see also Mossanen v. Monfared (2000) 77 Cal.App.4th 1402, 1408-1410 [92 Cal.Rptr.2d 459] [dismissal filed by litigant upon receipt of summary judgment papers and just after she found herself without counsel who could have asserted meritorious defenses to motion was timely].)
[7] To the extent that Tire Distributors, Inc. v. Cobrae, supra, 132 Cal.App.4th at page 546 suggests that the timeliness of a section 581 voluntary dismissal depends solely on the plaintiff's motivation or good faith in dismissing the complaint, we disagree and follow the cases adhering to an objective test of commencement of trial. (Franklin, supra, 148 Cal.App.4th at pp. 207-209; Gogri v. Jack in the Box, Inc., supra, 166 Cal.App.4th at p. 265, fn. 8.) As Franklin notes, "all the Supreme Court cases have stayed close to the legislative text, which confers on plaintiffs a right to dismiss prior to commencement of trial." (Franklin, supra, at p. 209.)
[8] In any event, the outcome of the subject motion to enforce settlement was plainly not inevitable. The uncertainty of the outcome was even reflected in the trial court's own tentative ruling expressing an intention to deny the motion to vacate dismissal for the reason that the underlying motion to enforce settlement would likely be denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267061/ | 174 Cal.App.4th 424 (2009)
___ Cal.Rptr.3d ___
CALIFORNIA ATTORNEYS, ADMINISTRATIVE LAW JUDGES AND HEARING OFFICERS IN STATE EMPLOYMENT, Plaintiff and Appellant,
v.
ARNOLD SCHWARZENEGGER, as Governor, etc., et al., Defendants and Respondents.
No. C058415.
Court of Appeals of California, Third District.
May 28, 2009.
As modified June 2, 2009.
*426 Law Offices of Brooks Ellison and Patrick J. Whalen for Plaintiff and Appellant.
K. William Curtis, Warren C. Stracener, Kenneth R. Hulse, Todd M. Ratshin and Paul Starkey for Defendants and Respondents.
OPINION
RAYE, J.
In these mandamus proceedings, the Attorney General and the union representing the lawyers in his office, among others, assert that the failure of the collective bargaining process under the State Employer-Employee Relations Act (SEERA; Gov. Code, § 3512 et seq.) has caused a *427 compensation crisis compromising public service and threatening the Attorney General's ability to uniformly and adequately enforce the law. Twenty-eight years ago the dissenters in Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168 [172 Cal.Rptr. 487, 624 P.2d 1215] (Pacific Legal Foundation) perceived a conflict between the mandate imposed upon the State Personnel Board (SPB) to enforce a civil service system "based on merit" and the collective bargaining process mandated by SEERA. (29 Cal.3d at pp. 203-209 (dis. opn. of Richardson, J.).)
Suggesting the dissenters were prescient, the union argues "[t]he end result of an unfettered application of the collective bargaining system is that the legal professionals in Bargaining Unit 2 are being grossly under-compensated compared to those in other civil service job classifications" to the detriment of merit principles. The union asks this court to remedy the alleged pay disparity with other public lawyers by ordering the Department of Personnel Administration (DPA) to adopt a parity formula or, alternatively, to base compensation on a "meaningful salary survey."
To justify the imposition of this radical remedy by a Court of Appeal rather than by the Legislature or by way of the collective bargaining process, the union urges us to employ an expansive definition of the merit principle and the concept of "like pay for like work" that is not found in the language of the Constitution, the statutes, or in Supreme Court precedent. We, however, must adhere to the plain meaning of those documents and will await a creative resolution of the wage crisis, if any, by the Legislature or by the people through the initiative process. The judgment denying the request for a peremptory writ of mandate is affirmed.
I
CONSTITUTIONAL CONTEXT
Article VII, like its predecessor, former article XXIV, of the California Constitution provides that "[i]n the civil service permanent appointment and promotion shall be made under a general system based on merit ascertained by competitive examination." (Cal. Const., art. VII, § 1, subd. (b); see Cal. Const., former art. XXIV, § 1.)[1] Article VII also establishes a nonpartisan five-member personnel board to "enforce the civil service statutes and, by majority vote of all its members, shall prescribe probationary periods and classifications, adopt other rules authorized by statute, and review disciplinary actions." (Art. VII, § 3, subd. (a).)
*428 In 1934 the people by initiative adopted article XXIV.[2] The ballot argument accompanying the initiative measure stated: "The purpose of this constitutional amendment is to promote efficiency and economy in State government. The sole aim of the act is to prohibit appointments and promotion in State service except on the basis of merit, efficiency and fitness ascertained by competitive examination. Appointments of inefficient employees for political reasons are thereby prohibited, thus eliminating the `spoils system' from State employment. [¶] . . . [¶] . . . [T]his constitutional amendment provides: (1) Employment in the classified service based solely on merit and efficiency; (2) a nonpartisan Personnel Board; (3) prohibition against exemptions from the merit system of employment; (4) correction of the temporary political appointment evil. [¶] Having by constitutional mandate prohibited employment on any basis except merit and efficiency, thereby eliminating as far as possible the `spoils system' of employment, the Legislature is given a free hand in setting up laws relating to personnel administration for the best interests of the State, including the setting up of causes for dismissal such as inefficiency, misconduct, or lack of funds." (Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Gen. Elec. (Nov. 6, 1934), argument in favor of Prop. 7, p. 12.)
(1) "As this ballot argument demonstrates, the `sole aim' of the amendment was to establish, as a constitutional mandate, the principle that appointments and promotions in state service be made solely on the basis of merit. Having established this `merit principle' as a matter of constitutional law, and having established a nonpartisan Personnel Board to administer this merit principle, the constitutional provision left the Legislature with a `free hand' to fashion `laws relating to personnel administration for the best interests of the State.'" (Pacific Legal Foundation, supra, 29 Cal.3d at pp. 183-184, fn. omitted.)
Wielding that free hand, the Legislature in 1977 enacted SEERA (Stats. 1977, ch. 1159, § 4, p. 3751, codified in Gov. Code, § 3512 et seq.) to regulate the state's labor relations with state employees. The preamble explicitly reaffirmed the primacy of the merit principle as follows: "Nothing in this chapter shall be construed to contravene the spirit or intent of the merit principle in state employment, nor to limit the entitlements of state civil service employees . . . provided by Article VII of the California Constitution or by laws or rules enacted pursuant thereto." (Gov. Code, § 3512.)
*429 (2) Rejecting a constitutional challenge to SEERA, the majority of the Supreme Court concluded that "the collective bargaining process established by SEERA does not on its face conflict with the basic constitutional principles of article VII, section 1, subdivision (b). . . . [N]othing in the history of the amendment suggests that the establishment of a general system of appointment and promotion based on merit proposed to prohibit the Legislature from adopting a labor relations policy affording employees a meaningful voice in determining the terms and conditions of their employment; instead, the amendment simply sought to eliminate the `spoils system' of public employment." (Pacific Legal Foundation, supra, 29 Cal.3d at pp. 184-185, fn. omitted.)
The union contends, however, that the Supreme Court left open the possibility that SEERA could be unconstitutionally applied to a particular bargaining unit and the memorandum of understanding that results from the collective bargaining process. The majority wrote: "We recognize, of course, that theoretically the product of the collective bargaining process may possibly in specific instances conflict with the merit principle of employment embodied in article VII. Such a conflict would be most evident, for example, if the Governor and an exclusive bargaining representative agreed to a memorandum of understanding purporting to authorize hiring or promotion on a politically partisan basis." (Pacific Legal Foundation, supra, 29 Cal.3d at p. 185.) The union insists that the pay disparity between its members and other public employees who perform the same essential work violates the merit principle enshrined in article VII and thus presents the constitutional question left open in Pacific Legal Foundation.
II
FACTUAL AND PROCEDURAL CONTEXT
California Attorneys, Administrative Law Judges and Hearing Officers in State Employment (the union) is the exclusive representative for approximately 3,500 employees in "Bargaining Unit 2" for purposes of collective bargaining under SEERA. It is one of the smallest unions representing state employees and consists of attorneys, administrative law judges, deputy labor commissioners, and deputy parole hearing commissioners. For many years the union has been frustrated in its attempt to secure higher wages through collective bargaining and legislation.
*430 On June 29, 2007, the union filed a petition for alternative writ of mandate and/or declaratory relief. The following day, its memorandum of understanding with the State of California expired. In denying the petition, the trial court opined that the union was seeking "an unrealistic remedy from this Court" and that the essence of the petition was a complaint that DPA was not bargaining in good faith. Nevertheless, the court allowed the union leave to amend.
In August 2007 the union filed an amended petition in the superior court and an unfair practice charge with the Public Employment Relations Board (PERB) supported by many of the same declarations submitted in the mandamus proceedings. The following month PERB dismissed the unfair practice charge because it "did not state a prima facie case."
As alleged in the amended petition, Governor Arnold Schwarzenegger and the Director of DPA (defendants) are permitting salary measures for Bargaining Unit 2 that conflict with the merit principle SPB's constitutionally mandated classification system serves; violating the California Constitution by failing to adhere to the like-pay-for-like-work principle embodied in the merit system; violating their constitutional obligation to prevent the depletion of the quality of the public workforce in Bargaining Unit 2 and protect the civil service system from neglect, deterioration, diminution, dissolution, or destruction; and interfering with the Attorney General's ability to carry out his own constitutional mandate to ensure adequate and uniform enforcement of the laws.
Attached to the amended petition are voluminous documents to support the union's allegation that its members are vastly underpaid relative to other public attorneys throughout the state. An expert in human resource management and employment relations opined that undercompensation has rendered the state "the employer of last resort." He characterized DPA's attitude toward a high job vacancy rate as "both sanguine and cavalier." He provided an abundance of statistical evidence supporting the notion that Bargaining Unit 2 attorneys are significantly underpaid. For example, his declaration states that inexperienced lawyers who work for the cities and counties of Alameda, Los Angeles, Sacramento, San Diego, and San Francisco are paid 48 percent more on average than Bargaining Unit 2 attorneys with the same amount of experience, and inexperienced lawyers who work for the educational, governmental, and nonprofit sectors are paid 60 percent more on average than Bargaining Unit 2 attorneys with the same amount of experience. The expert found that the pay differential was even greater for the more experienced lawyers in the educational, governmental, and nonprofit sectors, *431 who make anywhere from 82 percent to 165 percent more than do Bargaining Unit 2 attorneys. For the more experienced lawyers working for the target cities and counties, the differential was about 28 percent.
The result of lagging wages over time has, according to the petition, made it difficult to attract, recruit, and retain Bargaining Unit 2 attorneys. In May 2007 Chief Deputy Attorney General James M. Humes wrote to the Governor's Cabinet Secretary and Deputy Chief of Staff Dan Dunmoyer that "it is irresponsible for the State to allow the quality of its attorneys to decline by offering salaries that are too low to attract and retain lawyers who are as qualified as those employed by other public entities." The directors of the Public Utilities Commission and the Office of Administrative Hearings recounted similar problems in filling vacancies and retaining competent administrative law judges.
Attorney General Edmund G. Brown, Jr., filed an amicus curiae brief in the trial court. He argued "[t]he substantial total compensation disparity between the Office of the Attorney General and other public sector employers now undermines the Attorney General's ability to abide by the merit principle." He maintained that the "competitive" component of the merit principle, "the cornerstone of the constitutional `system based on merit [ascertained] by competitive examination'" (quoting art. VII, § 1, subd. (b)), no longer exists in a meaningful form for three reasons: (1) to attract any candidates for open positions, the Attorney General must hire at the midlevel rather than at the entry-level salary range; (2) annual merit increases are dictated by the pressure to simply retain current employees and effectuate some pay relief rather than "`based [on] merit ascertained by competitive examination'" (ibid.); and (3) the compensation disparities have led to the de facto unraveling of the "most important `competitive examination' at the Attorney General's Officethe DAG IV examination."
Defendants object to the evidence as outdated, unsupported, and conclusory. In their demurrer to the amended petition, defendants asserted the union failed to exhaust its administrative remedies, PERB is the appropriate entity to determine whether defendants violated SEERA, and the amended petition was virtually identical to the petition previously denied by the court. The trial court overruled the demurrer and denied the amended petition.
III
THE MERIT PRINCIPLE
The union argues the Governor, through DPA, permits salaries for Bargaining Unit 2 employees that conflict with the merit principle served by SPB's *432 constitutionally mandated classification system. Underlying the argument is a very expansive interpretation of the constitutional mandate premised on the dissent in the seminal Pacific Legal Foundation case and a Little Hoover Commission report that concludes that compensation policies, formerly shaped by SPB, have devolved since the implementation of collective bargaining under SEERA.
The dissent in Pacific Legal Foundation expressed the view that the merit principle is intrinsically intertwined with a classification system constitutionally delegated to SPB and dependent on like pay for like work. (Pacific Legal Foundation, supra, 29 Cal.3d at p. 203 (dis. opn. of Richardson, J.).) According to the dissent, SEERA reduces SPB's constitutional classification authority to an "empty and anemic formalism" while the critical salary issues are negotiated and settled by the Governor and the Governor's bargaining representative. (29 Cal.3d at p. 204 (dis. opn. of Richardson, J.).) The union believes events have proved the dissent correct. The union, in its amended petition, states that SPB "is careful in maintaining a classification system" that ensures harmonious relationships between classes of employees, but the Governor and DPA have adopted a salary-setting approach that utterly ignores the classification system. The petition asserts: "While the Supreme Court believed the process could work at the time of its decision in Pacific Legal v. Brown, and it may well for some bargaining units, it has become apparent that [defendants'] application of [SEERA] has rendered the SPB classification process a nullity for . . . Bargaining Unit 2."
The union spotlights the compensation enjoyed by correctional officers as evidence that the classification system, as applied to Bargaining Unit 2 attorneys, is broken. The union is offended that correctional officers, who need only a high school diploma, often earn more than the lawyers who have successfully prosecuted the incarcerated inmates the correctional officers only supervise. According to the union, "[i]t is absurd to suggest that any real `merit' can be preserved in a civil service system that permits compensation to be determined by [defendants] without regard to all the criteria utilized by the SPB in exercising its constitutional classification powers to ensure that the civil service system is merit based." Even the Little Hoover Commission, the petition asserts, found as early as 1999 that collective bargaining has never been fully integrated with the merit system.
(3) The union's argument strays far from the narrow constitutional question before us and betrays a fundamental misunderstanding of the meaning of the merit principle. It is not our role to mediate salary disputes or to implement recommendations of the Little Hoover Commission, no matter how wise they may seem. Rather, the scope of our review is limited to a determination whether defendants' application of SEERA to Bargaining Unit 2 violates the constitutionally mandated merit principle.
*433 (4) Whatever the merits of the dissent in Pacific Legal Foundation, the majority opinion makes clear that the "sole aim" of article VII, section 1, subdivision (b) is to prohibit the "spoils system" of employment and promotion in state service and to thereby preserve a civil service system in this state free from decisionmaking on the basis of political patronage. (Pacific Legal Foundation, supra, 29 Cal.3d at pp. 181-185.) Defendants insist that none of the union's allegations suggest collective bargaining as applied to Bargaining Unit 2 has reintroduced spoils or invites the type of patronage article VII was designed to prevent. The union's theory, defendants argue, that the "merit principle" requires Bargaining Unit 2 employees to receive more meritorious pay because of the meritorious nature of their work misconstrues the real meaning of the constitutional mandate. We agree.
The history of the development of a nonpartisan civil service in this state supports the view that the constitutional provision was intended to eliminate patronage and a rancid "spoils system" corrupting state government. The Legislature created the first civil service system in 1913 to combat the political spoils system and to establish instead a nonpartisan system of state employment based upon merit. (Pacific Legal Foundation, supra, 29 Cal.3d at pp. 181-182.) The legislation failed to stem corruption, and by the early 1930's fully one-half of the permanent state employees were exempt from the law, temporary employees constituted more than a third of the entire system, and newspapers publicized the scandalous and politically motivated gubernatorial appointments. (Id. at p. 182.) The people interceded and adopted article XXIV, and a merit-based civil service system thereby gained constitutional stature. Article XXIV later became, without substantive change, article VII. (State Personnel Bd., supra, 37 Cal.4th at p. 521.)
(5) The ballot argument quoted herein (see, ante, at pp. 427-428) supports defendants' notion that the fundamental merit principle is the constitutional mandate that promotions and appointments in state civil service be made in a politically neutral setting. Thus, the "sole aim" of the merit principle is to eliminate, as best as possible, political favoritism in the state civil service.
The courts, too, have reinforced defendants' view that merit is the antithesis of patronage and favoritism. (State Personnel Bd. v. Fair Employment & Housing Com. (1985) 39 Cal.3d 422, 436-437 [217 Cal.Rptr. 16, 703 P.2d 354].) Appointments to the civil service, under article VII's umbrella, cannot be "made solely on the basis of political considerations or cronyism." (Professional Engineers v. Department of Transportation (1997) 15 Cal.4th 543, 564 [63 Cal.Rptr.2d 467, 936 P.2d 473] (Professional Engineers).) In Professional Engineers in Cal. Government v. State Personnel Bd. (2001) 90 Cal.App.4th 678 [109 Cal.Rptr.2d 375], this court adopted the argument *434 espoused by former Assistant Attorney General Willard Shank 35 years earlier, as follows: "`The "merit" principle was and still is dependent upon the preliminary determination that a prospective governmental employee should be qualified through a combination of education, training and experience for employment. The essence of the "spoils system" on the other hand turned upon how active a prospective appointee had been in his support of a winning political party or candidate. [¶] The civil service reformers found in the "competitive examination" the device through which qualifications could be ascertained.'" (Id. at p. 690, quoting Mr. Shank's opposition to the complaint in earlier litigation discussed therein.)
(6) The union does not disagree that the merit principle was meant to eliminate patronage and cronyism, but it insists the principle encompasses much more. The union contends the merit principle is "multi-faceted," including an "inherent link between salaries and merit." We find no support for such an expansive interpretation of the constitutional provision, either in the text, the ballot argument, the historical context, or the cases the union cites. Nor does the union define what the parameters of such a fluid merit principle would be or how, as a practical matter, such a slippery definition would not subvert the separation of powers and would not lurch us into the role of labor arbitrator. Constrained as we are by both precedent and the separation of powers, we subscribe to the Supreme Court's admonition that the sole aim of the merit principle was to dismantle the spoils system in this state. It was not, as the union implies, to equate merit with meritorious.
IV
LIKE WORK FOR LIKE PAY
The court in Pacific Legal Foundation left open the question of whether the "like-pay-for-like-work" principle is constitutionally based.[3] The union would answer in the affirmative and argues defendants are violating the Constitution. Defendants, on the other hand, insist the principle is derived from statute (Gov. Code, § 19826, subd. (a)), does not implicate the "merit" aspects of the personnel system, and requires only "horizontal parity" so that all attorneys throughout state civil service are compensated at comparable rates. In any event, according to defendants, the provisions of the statute may be superseded by contrary collective bargaining provisions.
*435 As it did in explaining the merit principle, the union turns to the language of the dissent in Pacific Legal Foundation for its understanding of the like-pay principle. "Properly understood," according to the union, "`like-pay-for-like-work'. . . necessarily includes the notion that the constitutionally mandated merit-based civil service system cannot properly function if salaries for civil servants are so far below those of other `comparable classes of public employees' . . . that the state becomes unable to recruit and retain competent employees." (Quoting Pacific Legal Foundation, supra, 29 Cal.3d at p. 203 (dis. opn. of Richardson, J.).)
Quoting verbatim from Justice Puglia's Court of Appeal opinion, the dissent explained: "`Our review of the evolution and history of the relevant constitutional and statutory provisions satisfies us that the responsibility to classify civil service positions conferred by the Constitution upon the SPB is inseparable from the responsibility to insure like pay for like work. The latter is thus as much a constitutional command upon the SPB as the former. The uniform application of equal compensation for commensurate duties and responsibilities is essential to an employment system based on classification according to merit. Indeed, as we have demonstrated, the principle of like pay for like work permeates the entire civil service statutes, the enforcement of which the Constitution delegates exclusively to the SPB (Cal. Const., art. VII, § 3, subd. (a)). Therefore we conclude that the authority to fix salaries of civil service employees necessarily reposes in the SPB alone as an integral part of its constitutional power to classify positions. We further conclude that the exclusive exercise of these functions by the politically insulated SPB is essential to the maintenance of "a general system based on merit" as contemplated by article VII, section 1 of the Constitution. [Citation.] It is in the assignment of the salary-setting function to the bargaining process between the Governor and employee representatives that SEERA comes into fatal conflict with the Constitution.'" (Pacific Legal Foundation, supra, 29 Cal.3d at p. 207 (dis. opn. of Richardson, J.).)
The union slices and dices the Pacific Legal Foundation dissent, extracting only a sliver of the dissent's rationale and thereby subverting its meaning. The union ignores the pivotal fact that, in the dissent's view, collective bargaining itself was unconstitutional because SPB alone was charged with classification and enforcement of the civil service statutes. Thus, the dissent saw a fully integrated mechanism for eliminating spoils and patronageSPB, independent and politically insulatedto enforce a merit principle, not only through a competitive examination but by setting wages, and those wages would ensure that like pay was received for like work. It did not, as the union's revisionist account suggests, proclaim that the merit principle, divorced from SPB's classification system, encompasses the like-pay-for-like-work mantra.
*436 The Pacific Legal Foundation majority, of course, rejected the dissent's integrated view of SPB's autonomous role and upheld the constitutionality of collective bargaining on behalf of state employees. Yet the union now urges us to adopt the principle that its members are entitled to like pay for like work in order to preserve the SPB classification system and the merit principle. Without authority, other than portions of the dissenting opinion in Pacific Legal Foundation, it posits that the "logical implication[]" of article VII is that the "organic" civil service system must include like pay for like work. This is quite a slender reed upon which to base a constitutional challenge.
(7) The like-pay-for-like-work principle is of statutory, not constitutional, origin. One of the broad objectives of the civil service statutes is to "provide a comprehensive personnel system for the state civil service, in which . . . [¶] . . . [p]ositions involving comparable duties and responsibilities are similarly classified and compensated." (Gov. Code, § 18500, subd. (c)(1).) More specifically, Government Code section 19826, subdivision (a) provides, in pertinent part: "[DPA] shall establish and adjust salary ranges for each class of position in the state civil service subject to any merit limits contained in Article VII of the California Constitution. The salary range shall be based on the principle that like salaries shall be paid for comparable duties and responsibilities. In establishing or changing these ranges, consideration shall be given to the prevailing rates for comparable service in other public employment and in private business."
(8) Yet the union would have us expand the meaning of the constitutionally mandated merit principle to incorporate the statutory principle of like pay for like work. The statutory principle is indeed laudable as a matter of public policy. But our role is not to distort the plain meaning of the Constitution to advance public policy. Nor in these circumstances do we have the evidence or the expertise to evaluate whether the union's allegations are borne out in the marketplace. In today's marketplace the competitiveness of salary packages shifts rapidly. Our task as an intermediate court of review is to construe the meaning of the Constitution by subscribing to well-worn rules of interpretation. There is nothing in the plain language, history, or broader context of article VII to suggest that the merit principle encompasses the notion of like pay for like work. For the reasons discussed above, extracting but a part of an old dissent does not provide the authority we need to decide otherwise.
*437 V
THE NEGLECT, DETERIORATION, DIMINUTION, DISSOLUTION, OR DESTRUCTION OF THE CIVIL SERVICE SYSTEM
As the union's opening brief gains steam, each argument poses a more dire assessment of the gravity of the pay disparity and the consequences for the entire civil service system. Not only does the pay disparity violate the constitutional merit principle, the union contends, it also threatens the deterioration and destruction of the civil service itself and thereby violates defendants' constitutional duty to protect an "organic" civil service. The union offers but one distinguishable case in support of such an expansive constitutional duty and little, if any, evidence to support a looming Armageddon for civil service.
In Professional Engineers, supra, 15 Cal.4th 543, the Supreme Court addressed the very different question of whether legislative approval of private contracting by Caltrans (California's Department of Transportation) provided a sufficient basis to modify an earlier injunction prohibiting Caltrans from privately contracting for engineering and inspection services that state civil service employees had traditionally performed on state highway projects. State Compensation Ins. Fund v. Riley (1937) 9 Cal.2d 126, 134-136 [69 P.2d 985] (Riley) and its progeny held "the state is prohibited from using `independent contractors' except in narrow, exceptional situations." (Professional Engineers, supra, 15 Cal.4th at p. 563.) In rejecting Caltrans's invitation to disapprove and overrule Riley, the Supreme Court explained: "As an analytical matter, Riley's rule seems appropriate to assure that the state civil service is not neglected, diminished, or destroyed through routine appointments to `independent contractors' made solely on the basis of political considerations or cronyism." (Professional Engineers, at pp. 563-564.)
It is true, as the union suggests, the Supreme Court inferred a ban on private contracting, except in circumscribed circumstances, from former article XXIV. The union leapfrogs from Professional Engineers's inference that the state civil service could easily be neglected, diminished, or destroyed by private contracting made solely on the basis of politics or favoritism to the far more expansive inference that article VII charges defendants with a broad duty to protect and preserve the civil service and to assure that noncompetitive wages do not diminish the quality of the civil service. That is a gargantuan jump we are unable to make for several reasons.
*438 First the Supreme Court faced a very different dilemma in Professional Engineers. Cases since the 1930's had interpreted article XXIV, and later article VII, as an implicit limitation on private contracting. (Professional Engineers, supra, 15 Cal.4th at pp. 563-565.) Then, in 1990 Caltrans was enjoined from contracting out services public employees had traditionally performed. (Id. at p. 547.) Although Caltrans did not appeal the judgment enjoining private contracting, the Legislature passed a bill allowing the very acts the injunction prohibited. (Id. at pp. 552-553.) In that context, the Supreme Court found the legislation violated article VII in that private contracting based on political favoritism and cronyism could diminish or destroy the civil service. (Professional Engineers, at p. 547.)
Second, because wholesale private contracting is an obvious threat to civil service, it is a small leap to infer that the Constitution bars legislation that undermines the civil service system and violates a specific judgment entered earlier in the same case. Such a narrow and justified inference does not, however, impose a nebulous duty on defendants, not otherwise defined or circumscribed, to structure the pay scale in any particular way. We reject the union's attempt to equate private contracting with wage negotiations and to expand a principle derived in a narrow and discrete context to a broad-based wage formula. It is one thing to recognize that private contractors can elude the merit principle and quite another to micromanage the collective bargaining process and for a court to dictate how wages are to be calculated. Certainly, Professional Engineers does not support judicial intervention of this novel magnitude.[4]
Finally, the union hints that low wages necessitate the hiring of outside counsel to provide expertise the service lacks. But as Professional Engineers itself points out, the state retains the ability to hire private contractors if it can provide sufficient evidence to support a factual finding that civil service staff would be unable to adequately and competently perform the work at issue. (Professional Engineers, supra, 15 Cal.4th at p. 570.) Here, the union contends the Attorney General has difficulty attracting and retaining experienced and competent lawyers, and yet the Attorney General at the same time commends his lawyers for the quality of service they provide. In short, there simply is insufficient evidence in this record to support the somewhat *439 amorphous claim that the state is subverting the merit principle by hiring outside counsel. Moreover, there is no evidence that any contracting has been politically motivated or based on favoritism or cronyism.
VI
THE ATTORNEY GENERAL'S CONSTITUTIONAL DUTY
As suggested above, the union asserts the Attorney General is unable to meet his constitutional duty to adequately and uniformly enforce the law because of defendants' noncompetitive pay package. The union insists it has presented compelling evidence that the Attorney General has become "the employer of last resort," forced to hire those who cannot find other employment. In essence, the union turns to us to staff the Attorney General's office with higher paid, more experienced, and more talented lawyers.
We will assume the truth of the statistics and expert opinions offered by the union in support of its petition. We have no reason to doubt that public servants throughout the state are vastly underpaid. But the difficult budget choices facing defendants present thorny questions of policy priorities far removed from the constitutional questions before us. The question we must address is not whether Bargaining Unit 2 employees deserve higher pay or whether the pay disparity compromises quality. Rather, we must decide whether the union has demonstrated that the pay scale constitutes an unconstitutional application of SEERA by making it impossible for the Attorney General to perform his constitutional mandate. The union has failed to provide authority to support this claim.
The union points us to the Attorney General's duty to adequately and uniformly enforce the law without providing any authority as to the meaning or scope of this duty. And while we have abundant evidence of the pay disparity between Bargaining Unit 2 employees and their counterparts in other public agencies and private firms, we can find no evidence the Attorney General has been unable to adequately enforce the law. We acknowledge the Attorney General himself testified to the staffing challenges that confront him and his legitimate concern for sustaining a top-notch legal team. But those fiscal challenges do not necessarily mean the lawyers in his office are incompetent or that he has been unable to adequately enforce the law. With *440 this dearth of authority, not to mention lack of current and compelling evidence of a catastrophic brain drain, we simply cannot say the negotiations constitute an unconstitutional application of SEERA.
DISPOSITION
The judgment is affirmed.
Scotland, P. J., and Butz, J., concurred.
SCOTLAND, P. J., Concurring.
This litigation falls under the category of "be careful what you ask for."
Edmund G. Brown, Jr., as a candidate for Governor in the general election of 1974, "said repeatedly" that he favored the passage of a bill to authorize collective bargaining for state employees, a goal that "[s]weeping victories for labor-endorsed candidates" was "expected to ensure" (Bernstein, Labor Bills' Chances Improve, L.A. Times (Nov. 8, 1974) p. C1). Victorious on election day, Governor Brown used his influence the following year to conduct "marathon talks to get a consensus behind a collective bargaining bill" for state employees (Bernstein, Brown Pursues Public Employee Bargaining Bill, L.A. Times (June 13, 1975) p. C1). The effort succeeded when in 1977, Governor Brown "signed SB 839 (Dills, D-Gardena) enacting the State Employer-Employee Relations Act providing most state employees with meet and confer rights similar to those given employees of local agencies under the Meyers-Milias-Brown Act" (Press Release, Off. of the Governor, Sept. 30, 1977). The legislation was supported by then Attorney General Evelle J. Younger, who opined "collective bargaining will assure [state] employees, governmental leaders and the citizenry that legitimate concerns [of state workers regarding salary and working conditions] will be heard and dealt with fairly" (Younger, letter to Governor Edmund G. Brown, Jr., re Sen. Bill No. 839 (1976-1977 Reg. Sess.) Sept. 20, 1977).
Now, Edmund G. Brown, Jr., as Attorney General of California, asserts "the failure of the collective bargaining process under the State Employer-Employee Relations Act" has resulted in his office "facing a compensation crisis which undermines public service and threatens the ability of the Attorney General to uniformly and adequately enforce the law." This is so, he explains, because in "contrast to other bargaining units who have the raw power to successfully engage in collective bargaining dynamics," the labor unit representing lawyers employed by the state (Unit 2) "lacks the membership *441 numbers as well as the professional flexibility to effectively engage in job actions." Thus, the "product of years of collective bargaining for Unit 2 is a staggering total compensation gap between its members and those employed in comparable public sector law offices," which has caused applicants for deputy attorneys general positions to "routinely decline offers of employment once they learn of the low salary being offered." Simply stated, according to the Attorney General, SEERA (State Employer-Employee Relations Act; Gov. Code, § 3512 et seq.) as applied to Unit 2 "now sabotages the ability of the Attorney General to hire and promote `based upon merit ascertained by competitive examination'. . . ."
Saying SEERA "has resulted in a de facto destruction of the merit principle" with respect to Unit 2 attorneys, the labor union representing lawyers employed by the Attorney General's office and other state agencies even suggests the state is becoming the "employer of last resort" for attorneys, risking "poor performance or even no performance" by lawyers who are less "competent" and "lack[] the motivation to perform well in meeting the objectives of the employer."[1]
It cannot be disputed that the political clout of certain labor unions, achieved through massive monetary contributions to campaigns of some seeking election to state office, has given the appearance of favored treatment to the membership of those unions. (Lucas, Davis' plan gives prison guards big pay boostCritics see a trade-off for election support, S.F. Chronicle (Jan. 13, 2002) p. A21); Morain, Wealth Buys Access to State Politics, L.A. Times (Apr. 18, 1999) p. A1).)
Nevertheless, I agree with my colleagues on this case that, for the reasons articulated in our decision, the Attorney General and the labor union representing lawyers employed by the state have failed to establish that, as applied to Unit 2, SEERA conflicts with the merit principle of employment embodied in California's Constitution. Thus, as a court, we have no basis upon which to intervene.
To the extent that SEERA has proved to be unwise or flawed, it is up to the Legislature or the people through the initiative process, not the courts, to *442 correct it. (In re Brent F. (2005) 130 Cal.App.4th 1124, 1130 [30 Cal.Rptr.3d 833]; see also Knight v. Superior Court (2005) 128 Cal.App.4th 14, 19 [26 Cal.Rptr.3d 687]; People v. Hunt (1999) 74 Cal.App.4th 939, 948 [88 Cal.Rptr.2d 524]; Souza v. Lauppe (1997) 59 Cal.App.4th 865, 874 [69 Cal.Rptr.2d 494]; In re Marriage of Fisk (1992) 2 Cal.App.4th 1698, 1702 [4 Cal.Rptr.2d 95]; Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal.App.4th 1499, 1515 [3 Cal.Rptr.2d 897]; City of Victorville v. County of San Bernardino (1991) 233 Cal.App.3d 1312, 1322 [233 Cal.Rptr. 1312, 285 Cal.Rptr. 206]; Williams v. County of San Joaquin (1990) 225 Cal.App.3d 1326, 1334 [275 Cal.Rptr. 302]; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 334 [265 Cal.Rptr. 788].)
NOTES
[1] All further references to "article" are to articles of the California Constitution.
[2] Article XXIV later became, without substantive change, article VII. (State Personnel Bd. v. Department of Personnel Admin. (2005) 37 Cal.4th 512, 521 [36 Cal.Rptr.3d 142, 123 P.3d 169] (State Personnel Bd.).)
[3] "[W]e have no occasion in this case to determine whether the `like-pay-for-like-work' concept is a constitutionally based doctrine embedded in either the merit principle of article VII, section 1, subdivision (b) or the State Personnel Board's classification power under section 3, subdivision (a), or alternatively is solely of statutory origin. (See, e.g., [Gov. Code,] §§ 18500, subd. (c)(1); 18850.)" (Pacific Legal Foundation, supra, 29 Cal.3d at p. 193, fn. 16.)
[4] Private contracting was the subject of an amendment to the California Constitution in 2000. (Art. XXII, § 1, added by initiative, Gen. Elec. (Nov. 7, 2000), commonly known as Prop. 35; see Consulting Engineers & Land Surveyors of California v. Department of Transportation (2008) 167 Cal.App.4th 1457 [84 Cal.Rptr.3d 900].)
[1] Generally speaking, the written work and the oral advocacy done in this court by lawyers in the Attorney General's office does not reflect a lack of competence or lack of motivation to perform well, as suggested by their labor union. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382673/ | 22 F. Supp. 355 (1937)
DIATEL
v.
GLEASON.
District Court, S. D. New York.
September 1, 1937.
Thomas J. O'Neill, of New York City (Charles R. Mullin, of New York City, of counsel), for plaintiff.
Kellogg & Chance, of New York City, for defendant.
PATTERSON, District Judge.
The question is whether a New Jersey administratrix has capacity to maintain an action here for wrongful death brought about in New Jersey without taking out ancillary letters here. From the complaint it appears that one Diatel was killed as the result of an automobile accident in New Jersey, brought about, it is said, by the negligence of the defendant; that he left a widow surviving; that New Jersey has a statute to the effect that a person shall be liable for causing the death of another by wrongful act, neglect, or default, the action to be brought by the personal representative of the deceased for the sole benefit of surviving widow, husband, and next of kin; that the plaintiff was appointed administratrix by a court of competent jurisdiction in New Jersey with authority to commence action for wrongful death. The plaintiff has not taken out ancillary letters of administration in New York; her position is that ancillary letters here are unnecessary. The defendant moves to dismiss the complaint on the ground that without ancillary letters the plaintiff has no legal capacity to bring suit in a federal court in New York.
Since the law of the place of wrong governs the right of action for death, the cause of action is controlled by the New Jersey Death Act. R.S.1937, 2:47-1 et seq., 2 Comp.St.1910, p. 1907, § 7, Comp.St.Supp. 1924, § 55-10. Slater v. Mexican National R. Co., 194 U.S. 120, 24 S. Ct. 581, 48 L. Ed. 900; Loucks v. Standard Oil Co., 224 N.Y. 99, 120 N.E. 198. That law determines the *356 person entitled to bring suit. The plaintiff, therefore, as personal representative of the decedent by appointment in New Jersey is the proper party plaintiff. But the question remains whether a New Jersey administrator may sue in New York to enforce a cause of action for wrongful death arising in New Jersey without obtaining ancillary letters here, and on the answer to that question there is a conflict of opinion. One line of authorities applies to such a case the common-law principle that an administrator may not maintain an action outside the state of appointment except by taking out ancillary letters, Maysville Street Ry. Co. v. Marvin, 6 Cir., 59 F. 91, Cornell Co. v. Ward, 2 Cir., 168 F. 51, Dodge v. North Hudson, 177 F. 986, C.C.N.Y., Mattison v. Boston & Maine R. R., 205 F. 821, D.C.N. Y., Brown v. Boston & Maine R. R., 283 Mass. 192, 186 N.E. 59; unless the state where suit is brought has a statute permitting foreign administrators to bring suits, as was the case in Cincinnati R. Co. v. Thiebaud, 6 Cir., 114 F. 918, Public Service Electric Co. v. Post, 3 Cir., 257 F. 933, and Bethel v. Pawnee County, 95 Neb. 203, 145 N.W. 363. The rule is so stated in Restatement of Conflict of Laws, § 396, and in Beale on Conflict of Laws, § 396.1. The opposing line of cases is to the effect that foreign administrators may bring suits to recover for wrongful death without issue of ancillary letters and without benefit of local statutes permitting foreign executors and administrators to sue, where the statute of the state in which the wrong was committed is in the usual form of giving the personal representative the right to bring an action for the benefit of the widow or next of kin. The reasoning is that the administrator in such instances sues not for the general estate of the deceased, but as statutory trustee for designated beneficiaries, and that the ordinary rule on disability of foreign administrators has no bearing. Wilson v. Tootle, 55 F. 211, C.C.Mo.; McCarty v. New York, L. E. & W. R. Co., 62 F. 437, C.C.N.Y.; Pearson v. Norfolk & W. R. Co., 286 F. 429, D.C.Va.; Brown v. Chicago & N. W. R. Co., 129 Minn. 347, 152 N.W. 729; Boulden v. Pennsylvania R. Co., 205 Pa. 264, 54 A. 906. Other cases are collected in a note in 85 A.L.R. 1246. In New York the Court of Appeals has commented on the conflict, but has left the question open. Wikoff v. Hirschel, 258 N.Y. 28, 179 N.E. 249.
However persuasive on principle and preferable in practice the second view may be, this court is bound to the first view by the decision of the Circuit Court of Appeals of this circuit in Cornell Co. v. Ward, supra, decided in 1909. There the wrong resulting in death was done in New York, where the Death Act gave right of action to an executor or administrator for the benefit of husband, wife, or next of kin of the deceased. The action was brought in the federal court sitting in New York; the plaintiff being the New Jersey administrator of the deceased. It was held that the action could not be maintained in New York in the absence of ancillary letters and of New York legislation enabling a foreign administrator to sue here. Unless then there is a New York statute which enables foreign administrators to maintain suit to recover for wrongful death in a case of the present type without resort to ancillary letters, the plaintiff lacks capacity to sue in this court.
It is said that there is a New York statute permitting suit by foreign administrators in actions to recover for wrongful death. The act relied on is Decedent Estate Law, Consol.Laws, c. 13, § 130, which is the New York statute giving right of action for wrongful death. It provides: "The executor or administrator duly appointed in this state, or in any other state, territory or district of the United States, or in any foreign country, of a decedent who has left him or her surviving a husband, wife, or next of kin, may maintain an action to recover damages for a wrongful act, neglect or default, by which the decedent's death was caused, against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent by reason thereof if death had not ensued."
The words referring to executors and administrators appointed outside the state were added to the act in 1915. Laws 1915, c. 620, amending Code Civ.Proc. § 1902.
Despite the broad language used, it is well understood that section 130 of the Decedent Estate Law has to do only with cases where the wrong resulting in death occurred in New York. Where the wrong was committed in New York, the statute as it has stood since 1915 authorizes suit by a foreign executor or administrator without resort to ancillary appointment, and if the statute had so read at the time of the Cornell Case, supra, that suit by a New Jersey *357 administrator would have been sustained. There the injury was inflicted in New York. But section 130 of the Decedent Estate Law does not touch a case where the wrongful act was committed in another state. Whitford v. Panama R. Co., 23 N.Y. 465; Johnson v. Phoenix Bridge Co., 197 N.Y. 316, 90 N.E. 953; Loucks v. Standard Oil Co., supra. It is of no assistance to a New Jersey administratrix in a case where the act resulting in death happened in New Jersey.
New York formerly had a statute, Code of Civil Procedure, § 1836a, later Decedent Estate Law, § 160, permitting suit by foreign executors and administrators generally. That statute covered a case like the present one, Provost v. International Giant Safety Coaster Co., 152 A.D. 83, 136 N.Y.S. 654, affirmed 208 N.Y. 635, 102 N.E. 1112; but it was repealed in 1926.
The motion to dismiss for lack of capacity to sue will be granted, with leave to the plaintiff to serve an amended complaint or to commence a new suit in case she shall take out ancillary letters of administration here. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382968/ | 486 P.2d 857 (1971)
Harriet FREE, formerly Harriet Elberson, Plaintiff and Respondent,
v.
Paul Elberson and Deer Lodge Bank & Trust Company, Defendants and Appellants.
No. 11928.
Supreme Court of Montana.
Submitted May 13, 1971.
Decided June 29, 1971.
William R. Taylor, argued, Deer Lodge, Poore, McKenzie & Roth, James A. Poore, argued, Butte, J. Robert Riley, Missoula, for defendants-appellants.
Lloyd J. Skedd, argued, Helena, for plaintiff-respondent.
DALY, Justice.
This is an action brought by plaintiff Harriet Free, formerly Harriet Elberson, against her former husband Paul C. Elberson, and the Deer Lodge Bank & Trust Company, defendants. Plaintiff alleged in her complaint the defendants conspired to withhold her share of certain funds deposited with the bank under a court order issued in a divorce action between Harriet Elberson and Paul C. Elberson. Plaintiff further alleged the deposit of funds constituted a special account established by court order and that the funds were converted by the defendants.
The case was tried in Powell County before a jury, the Honorable Philip C. Duncan presiding. The jury returned its verdict in favor of Harriet Free and against the defendant Deer Lodge Bank & Trust Company but not against the defendant Paul C. Elberson. Judgment was entered accordingly.
Actual damages were awarded in the amount of $2,612.76 and punitive damages in the sum of $25,000. From this final judgment defendant bank appeals.
In June 1967, the plaintiff Harriet Elberson and defendant Paul Elberson, then husband and wife, became involved in a divorce action. At the inception of the action the court issued a restraining order enjoining defendant, Paul Elberson, his agents, employees or attorneys from disposing of, concealing, removing out of the state, or encumbering any of his property until further order of the court. The bank was not a party to the divorce action and no service was had on it, but only on defendant Paul Elberson.
At that time Deer Lodge Bank & Trust Company had a perfected security interest in cattle which Paul Elberson claimed to *858 own and which he had mortgaged and sold with his individual signature in prior times, but in which Harriet Elberson claimed a half interest at the time of the divorce proceeding. The cattle brand stood in the name of Paul C. Elberson or Harriet Elberson or William Paul Elberson, their son. In the divorce action an order of the court was made on November 8, 1967, providing that the calf crop from the cattle be sold and the proceeds deposited in a special account in the Deer Lodge Bank & Trust Company. The record shows that the cattle in fact had been sold on November 4, 1967. Mr. Alfred Donich, a vice president of the bank with whom Elberson consistently did his banking business, testified that at the time of the sale of the cattle the bank had not been consulted and did not know of the order or of the sale.
However, sometime later, the exact date not appearing from the evidence, a check in the sum of $11,756.24 was received by the bank. The bank was one of the payees on the check. Other payees were Paul C. Elberson, Harriet Elberson, William P. Elberson (the 10 year old son of the parties) and William P. Elberson, Sr. (the father of Paul C. Elberson). The check was endorsed by all of the payees. The evidence does not reflect that anyone was present with Mr. Donich and none of the witnesses testified to any specific conversation with him at the time that he endorsed the check on behalf of the bank and deposited it in an account which was entitled "Paul C. Elberson Trust Account".
Donich testified that he did not intend nor expect that the bank was giving up its lien and right to proceeds from the sale of the calves pursuant to the security agreement. Nor did Paul Elberson expect the bank to give up its lien.
There is no record in either the bank's file or the divorce file that the bank was ever served with a copy of the court's order of November 8, 1967, which provided for depositing the proceeds of the sale in a special account subject only to the court's order. There is no certificate of service or acknowledgment of service in the evidence. There is no evidence that Mr. Donich or anyone on behalf of the bank ever agreed that all of the funds be dispersed without any consideration being given the bank's lien. The Paul C. Elberson Trust Account was opened on November 24, 1967, but no signature card was signed by anyone and the account remained subject only to action by officers of the bank.
Paul Elberson testified he delivered the check to the bank and that he had no conversation with anyone, but thought Mr. Skedd, plaintiff's counsel, had already arranged for that. Mr. Donich, in regard to the creation of the account, testified:
"I don't know how I learned how these funds were supposed to go in an account, oh, whether it was through Paul, I don't know. I just don't have any idea of how I learned that.
"* * *
"Q. But you did know that it was deposited as a result of the court order, did you not? A. Well, under the supposition that there was a court order."
Donich further testified that sometime, but not when, he did become aware of the terms of the court order creating the special account providing the funds to be withdrawn only by court order.
On January 11, 1968, a hearing was scheduled in the divorce proceedings at which time payment of various debts of the parties was to be considered. Paul C. Elberson went to the bank around 9:00 a.m. of that day. The evidence is in dispute as to just what was said that morning, but Mr. Donich testified they discussed how much the bank would require to be paid on its loan; that Mr. Donich dictated a letter addressed "To Whom It May Concern" in which he indicated the bank would be satisfied with $3,000; and, that he delivered the letter to Paul Elberson. Elberson testified that he handed the letter to his attorney, Mr. Brault. It was stipulated that Mr. *859 Brault would testify he did not recall the letter, and there was other testimony to the effect that it was not discussed or taken into consideration at the hearing held on the morning of January 11, culminating in an order of the court that certain bills be paid from the account established from sale of the calves. But, as he testified, Mr. Elberson thought the letter was considered.
The evidence reveals that after the court made its order on January 11, 1968 specifying that certain debts totaling $6,437.68 be paid, Mrs. Free, her attorney, and Mr. Brault, Mr. Elberson's attorney, but not Mr. Elberson, went to the bank and there Harry Alger, deceased at the time of the trial, proceeded to make out bank drafts for each of the items of indebtedness listed in the court's order. Mr. Donich testified this occurred while he was away from the bank, and that when he returned he was told by Alger what had occurred. Upon learning that no provision had been made for the bank, Mr. Donich had Alger charge the special account with $3,173.55, being $3,000 principal and $173.55 interest. Mr. Donich testified that in the ordinary course of events a copy of the advice of charge would be sent to the party involved in the account, presumably Paul Elberson, but he, Donich, did not have personal knowledge as to whether such an advice of charge was sent to Mr. Elberson or not. Elberson testified he received such a notice, but did not know when he received it.
The bank otherwise did not advise anyone of the withdrawal of the $3,173.55 from the account. Elberson testified he was not aware that the court order for payment of funds did not include any provision for the bank, as he had expected it would, and that he did not see a copy of the order after it was prepared.
On February 29, 1968, the court entered its findings of fact and conclusions of law in the divorce proceeding in which was included a provision that the balance of the account resulting from the sale of the calves be dispersed as follows:
"D. DISTRIBUTION OF FUND CREATED BY COURTS ORDER.
"(1) A special Account established by Order of the Court in this cause on the 8th day of November, 1967, in the Deer Lodge Bank and Trust Company, of Deer Lodge, Montana, to be disbursed as follows:
"(a) Deposited in said account $11,756.24
"(b) Paid by Court Order January 11, 1968 6,437.68
"(c) Balance in Account 5,318.56
"(d) Accounts to be paid from fund:
"Standard Oil Company - $1,162.94
"Welch's Truck Stop - 600.00
"Haviland Insurance Co.
"Ranch Liability 216.00
"Cars, etc. 254.00
_________
$2,232.94 2,232.94
_________
"(e) Balance to be divided between the parties 3,085.62"
We note here, parenthetically, that the district judge in the divorce matter did not even note the perfected security interest. He must not have known or been advised of it; otherwise some note would have been taken.
On March 1, 1968, the court entered its decree of divorce adopting as a part thereof its findings of fact and conclusions of law. On March 4, 1968, Lloyd Skedd took a certified copy of the decree of divorce and went to the bank, where he asked the *860 bank to make payment of the amounts specified in the findings of fact and conclusions of law. Mr. Donich told him that he could not make the payments, since there was not that amount remaining in the account. At that time Mr. Donich informed Mr. Skedd of the bank's withdrawal of the sum of $3,173.55.
Mr. Donich testified Mr. Skedd did not ask him to pay from the account whatever amounts he could, but wanted all of them paid in accordance with the court's order. Mr. Skedd testified he specifically asked Mr. Donich to pay the sum of $1,542.81, which he expected to be the amount distributable to Harriet Elberson, $600 on account to Welch's Truck Stop and the $254 due to Haviland Insurance Company. Mr. Donich indicated he did not recall being asked to pay those items separately or specifically.
Thereafter on August 12, 1968, $1,162.94 was paid to an oil company because the gasoline dealer would no longer deliver to the ranch. This payment was arranged by counsel for Paul Elberson. Then, on November 8, the bank paid both insurance premium amounts as directed in the court order of February 29, 1968. A claim was advanced that the bank was showing preference in paying claims, etc., all of which was denied by the defendant bank.
Plaintiff filed this suit on March 26, 1969, alleging a special account was created by order of the court in defendant bank on November 8, 1967; that $11,756.24 was thereafter deposited in said account pursuant to said order; that defendant Paul Elberson and defendant bank fraudulently, unlawfully, maliciously and oppressively conspired to withhold from plaintiff her share of the property deposited in said special account. For this conversion the plaintiff asked for $2,612.76, her share of the property, and $250,000 punitive or exemplary damages.
Defendant bank denied the funds were deposited pursuant to said court order. Further, that the calves sold to produce said fund were under security agreement to the defendant bank; that said bank, being a payee on the draft, deducted $3,000 plus interest and paid the balance remaining in its custody as directed; that the court order was made without notice to defendant bank and could not discharge the security agreement which predated the court order; that sale of the calf crop was a violation of the security agreement and under said agreement and the Uniform Commercial Code of Montana the bank was lawfully entitled to apply the proceeds; and, that to hold otherwise is a violation of the Fourteenth Amendment to the United States Constitution.
The matter was tried on these issues before a jury in the district court on April 22, 1970. At the conclusion of all of the evidence the defendant bank moved for a directed verdict, which was denied by the court. The jury was instructed on the law and the case was submitted to it. The jury returned its verdict in favor of the plaintiff and against the defendant Deer Lodge Bank & Trust Company for $2,612.76 actual damages, $25,000 punitive damages and no recovery against Paul C. Elberson. Judgment was entered thereon. After denial of defendant bank's motion for a new trial, defendant bank appeals from the judgment.
The appellant presents nine issues for review which are:
1. Is the evidence sufficient to justify a verdict in favor of the plaintiff and against Deer Lodge Bank & Trust Company?
2. Is there evidence sufficient to find a conversion by Deer Lodge Bank & Trust Company of any assets belonging to Harriet Free?
3. Did the Deer Lodge Bank & Trust Company give up its lien on the calves which were sold and the proceeds thereof and create a special account in which the bank had no interest or was the account a general account as to which the bank had a right of set off?
4. Is the evidence sufficient to justify the jury in awarding punitive damages?
*861 5. Does a verdict for $25,000 punitive damages and $2,612.76 general damages show that the verdict was given under the influence of passion and prejudice upon the facts appearing in the record?
6. Did the trial court err in giving the court's instruction No. 5, over the objection of the Deer Lodge Bank & Trust Company?
7. Did the court err in refusing to give either of Deer Lodge Bank & Trust Company's tendered instructions Nos. 19 or 20?
8. Did the trial court err in denying the motion of the Deer Lodge Bank & Trust Company for a directed verdict at the close of all evidence?
9. Did the trial court err in denying the Deer Lodge Bank & Trust Company's motion for a new trial?
It would appear there is one general question to be determined before any consideration can be given the specific issues alleged as error. Was the account opened by bank officer Donich on November 24, 1967 by the deposit of the draft representing the proceeds of the calf sale in the amount of $11,756.24 and designated "Paul C. Elberson Trust Account", a "special account" in the legal meaning of the term or merely a general account with the bank. We find the account on this record to be a general account of the bank and the relation of debtor and creditor established upon deposit.
An adequate explanation of these accounts is contained in the trial court's instruction No. 9, quoted in part as follows:
"You are instructed that the ordinary relationship between a bank and a depositor in the bank is the relationship of debtor and creditor. The funds deposited in a general account belong to the bank and the bank has the right of set-off and thus may charge a depositor's account for any amount then due from the depositor to the bank. A bank account is presumed to be a general account unless there is proof of an agreement between the bank and the depositor creating a special account.
"A special account is a deposit delivered into the possession of the bank to be kept separate and distinct from the general assets of the bank and to be returned or delivered intact on demand, the title thereto remaining in the depositor. The burden is upon one claiming to have created a special account to prove it by a preponderance of evidence. To prove a special account there must be shown an agreement was made specifically and definitely setting forth the terms of the special account and that the bank was not to have ownership or control of the account but that the account was to be set aside from the general assets of the bank to be returned in kind or delivered for a special purpose or purposes * * *. A bank does not have the right of set-off against a special account except that if only a part of the account is set aside for a special purpose the bank may set-off the remaining portion against any debt due from the depositor.
"You are instructed that the fact that an account was opened under the name PAUL C. ELBERSON, Trust Account, does not of itself determine that such account was a special account or a trust account. The status of the account as a general account or as a special or trust account must be determined by the intention of the bank and the depositor as determined from all of the facts and circumstances surrounding the transaction." (Emphasis supplied.)
In Pethybridge v. First State Bk. of Livingston, 75 Mont. 173, 181, 243 P. 569, 571, the matter of a trust account for a guardianship was ruled not a "special account" in the language:
"* * * the mere fact that the funds deposited were trust funds does not constitute a special deposit; the deposit is general, and the relation of debtor and *862 creditor exists between the trustee and the bank * * * and the addition of words showing a fiduciary capacity, while it may render the depository chargeable with notice as to whence the depositor derived the funds, in the absence of some special agreement for the return of the identical money, or other special circumstances, cannot create a special deposit * * *." (Emphasis supplied.)
See also Powell B. & L. Assn. v. Larabie Bros., 100 Mont. 183, 46 P.2d 697. In Powell the Court in discussing Keyes v. Paducah & I. Ry. Co., (C.C.A. 6) 61 F.2d 611, 86 A.L.R. 203, said:
"In the last-mentioned case the railway company sought to enjoin the collection of taxes which it alleged had been illegally levied. The court, instead of requiring a bond, required the defendant to deposit $8,000 in the National Bank of Kentucky pending conclusion of the litigation. The deposit was made on the order of the court, and a copy of such order was attached to the deposit slip when the money was deposited in the bank, and the bank accepted the deposit fully understanding the situation and with full knowledge that the money was in custodia legis. On the failure of the bank, a claim for preference was made, which was denied, and the action in that case followed. The court held that no preference arose, that the money was received by the bank in the ordinary business of banking, and, regardless of the fact that the bank knew that the deposit was made on the order of the court, it was nevertheless a general and not a special deposit, and no right of preference could arise." (Emphasis supplied.)
Here, respondent does not argue with the court's instructions nor the legal requirements necessary to establish a special account and cites no authority to the contrary. Respondent simply ignores the requirements necessary to establish a special account set forth by this Court, and asserts her position in the following language:
"The Order of the Court creating the special account and directing that it be paid only by Court Order, is sufficiently clear to preclude the Bank from having ownership or control of the account and that the account was to be delivered for a special purpose or purposes and that the Bank knew, or should have known, the terms of such agreement at the time it accepted the deposit." (Emphasis supplied.)
This, of course, further ignores the basic fact that the bank was not a party to the litigation which produced the court order, nor was there any evidence in the record that the bank was served, given, or agreed to such an order. Supposition of the court order or knowledge gained at some unspecified time of the contents of the order, does not satisfy the requirements of a special agreement, as related. The parties to the deposit testified there was no agreement at the time of the deposit; the circumstances surrounding the deposit may leave a lot to be desired so far as sound business practice is concerned, but they are not circumstances that prove, nor can it be inferred from them, that the bank or the depositor agreed to a special account.
There is no contention that the bank's prior security agreement as not valid, nor that it did not include the calves that were sold. This is further demonstrated by the bank being included as one of the joint "payees" on the draft received in payment for the calves. The bank's authority to set-off against a general account to recover its money was not challenged.
In any event, the failure of proof in the record of the establishment of a special account precludes any verdict for the respondent, as an action in conversion does not lie against a general account as there can be no conversion of a debt. 18 Am.Jur.2d, Conversion, § 10; 44 A.L.R. 2d 936, § 7(c), p. 942. As stated, we have here a debtor-creditor relationship.
In view of our holding, there is no necessity to discuss the balance of the issues raised by appellant.
*863 The judgment of the trial court is reversed with instruction that the case be dismissed.
JAMES T. HARRISON, C.J., and JOHN C. HARRISON, HASWELL and CASTLES, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1383015/ | 43 S.W.3d 148 (2001)
345 Ark. 21
Lance BRANSCUM
v.
STATE of Arkansas.
No. CR 00-782.
Supreme Court of Arkansas.
May 17, 2001.
*150 Robert L. Herzfeld, Jr., Benton, for appellant.
Mark Pryor, Att'y Gen., by David R. Raupp, Sr., Ass't Att'y Gen., Little Rock, for appellee.
DONALD L. CORBIN, Justice.
Appellant Lance Alan Branscum appeals the order of the Pulaski County Circuit Court convicting him of capital murder in *151 the death of Julie Irmer. On appeal, Appellant argues that the trial court erred by: (1) denying his motion for a directed verdict; (2) admitting his custodial statement, because it was not given voluntarily; and (3) admitting certain photographs of the victim, because their prejudicial effect outweighed their probative value. Appellant was sentenced to a term of life imprisonment; hence, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(a)(2). We find no error and affirm.
The evidence presented in this case reveals that Appellant had been friends with the victim and her husband, Mark Irmer, for several years. The Irmers had allowed Appellant to move a travel trailer onto their property and live there prior to the murder of Mrs. Irmer. During the early morning hours of January 7, 1999, Mr. Irmer returned home from work to find Appellant standing in his driveway, smoking a cigarette. According to Mr. Irmer, Appellant offered to help him fix a headlight that was out on his truck. Mr. Irmer responded that he just wanted to go inside and get something to eat. Appellant then told Mr. Irmer that he wanted to have a talk with him; he eventually asked him to help replace a tire on his travel trailer. While Mr. Irmer was placing a jack under the trailer, Appellant grabbed him from behind and put a knife to his neck. Mr. Irmer jerked away and grabbed the knife from Appellant. He then ran to the back of his home and banged on a window while calling out his wife's name.
Appellant again tried to persuade Mr. Irmer to sit down and talk with him. He told Mr. Irmer that he and Mrs. Irmer had been planning to get rid of him, and that Mrs. Irmer never wanted to see him again. Appellant also told Mr. Irmer that he was having an affair with his wife. According to Mr. Irmer, Appellant suddenly went inside the Irmer's home and locked the door. Mr. Irmer then went to a neighbor's house for help and returned with his neighbor, Terry Hilliard. Mr. Irmer confronted Appellant on the home's front porch and told him that he just wanted to come in and get some of his things and then would leave. Appellant refused to allow Mr. Irmer to enter the home, again telling him that Mrs. Irmer did not want to see him. Mr. Irmer then went to the home of George Mitchell, another neighbor, and placed a 911 call.
Officers from the Pulaski County Sheriff's Office responded to the call. When they entered the Irmers' home, they discovered the body of Mrs. Irmer on the bathroom floor. Mrs. Irmer had on no clothing and her head was covered with a bloody laundry bag. The bag's drawstring was pulled tightly around her neck, and a jump rope was tied around her wrists. Authorities questioned Mr. Irmer, who told them about his altercation with Appellant. Police were unable to locate Appellant until several days after the murder. On January 12, 1999, authorities in Shawnee, Oklahoma, contacted the Pulaski County Sheriff's Office and reported that they had arrested Appellant.
The following day, Sergeant Terry Ward and Investigator Kerry Daulton traveled to Shawnee to take custody of Appellant and return him to Pulaski County. They first made contact with Appellant on the morning of January 14 in the Shawnee Police Department. Initially, Appellant denied having any knowledge of the murder of Mrs. Irmer. According to Ward, they sent Appellant back to his cell so that he could have lunch before the trip back to Arkansas. After lunch, Daulton went to Appellant's cell to outfit him in a Pulaski County Jail jumpsuit and body chains before transporting him back to Little Rock. According to Daulton, when he entered the cell, Appellant stated that he wanted to tell *152 him two things. The first was that he wanted his wife to have the travel trailer. Secondly, he stated that he wanted to be interviewed again so that he could tell the truth about what had happened to Julie Irmer.
Ward and Daulton subsequently advised Appellant of his Miranda rights and then took a taped statement from him concerning the events surrounding the death of Mrs. Irmer. According to Appellant's statement, he had been having an affair with Mrs. Irmer for some time. On the night of her death, they were engaging in "rough sex," he claimed. Appellant stated that Mrs. Irmer wanted to find some handcuffs she had used before, but that Appellant suggested that they use a jump rope that was on the floor in the bedroom. Appellant then claimed that he tied Mrs. Irmer to the bedpost and while they were engaging in intercourse, she fell off the bed and hit her head on a nearby night stand. Appellant stated that he put a pair of panties and a plastic bag up to her head to try and stop the bleeding. When that did not work, Appellant claimed that he then put the laundry bag over her head to stop the blood flow. Appellant admitted that when he left the Irmers' home, Mrs. Irmer was dead. Ward and Daulton transported Appellant back to Little Rock, where he was charged with capital murder.
An omnibus hearing was held on October 19, 1999. The first matter considered by the trial court was Appellant's motion to suppress the statement he made to Ward and Daulton while in Oklahoma. Appellant claimed that he had not made the statement knowingly or voluntarily. In support of his contention, Appellant argued that he had gone for days without eating, was suffering from a headache at the time of the confession, and was threatened by Ward and Daulton. Appellant asserted that Ward and Daulton told him that he would receive the death penalty within a week. According to Appellant, Daulton also told Appellant that he worked for the district attorney's office and that if he gave a statement, the death penalty would be dropped. Appellant admitted, however, that he signed a form waiving his Miranda rights and did not ask for an attorney prior to giving his statement. After hearing the testimony of the officers and Appellant, the trial court determined that Appellant's statement was made voluntarily, and thus, denied his motion to suppress.
The trial court also heard arguments regarding the admission of photographs of the victim and the crime scene. Appellant argued that all of the State's photographs should be excluded because they were gruesome and inflammatory. Alternatively, Appellant requested that any pictures the State was allowed to introduce should be in black and white. The trial court reserved its ruling on the admissibility of the photographs until the point that they were offered into evidence. The trial court also denied Appellant's request that the State be required to submit only black and white photographs, noting that color pictures were used all the time. The trial court did state, however, that any color photograph that was unduly prejudicial would not be admitted into evidence. A jury trial was held on November 30 and December 1, 1999, and Appellant was convicted of capital murder and sentenced to life imprisonment. This appeal followed.
Sufficiency of the Evidence
For his first point on appeal, Appellant asserts that the trial court erred in denying his motion for a directed verdict. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Burmingham v. State, 342 Ark. 95, 27 S.W.3d 351 (2000). This court has *153 repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Id.; Wilson v. State, 332 Ark. 7, 962 S.W.2d 805 (1998). We affirm a conviction if substantial evidence exists to support it. Carmichael v. State, 340 Ark. 598, 12 S.W.3d 225 (2000). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without having to resort to speculation or conjecture. Id. Circumstantial evidence may provide the basis to support a conviction, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Bangs v. State, 338 Ark. 515, 998 S.W.2d 738 (1999).
Appellant contends that the State failed to prove that he caused Mrs. Irmer's death deliberately or in a premeditated manner. Pursuant to Ark.Code Ann. § 5-10-101(a)(4) (Repl.1997), a person commits capital murder if "with the premeditated and deliberated purpose of causing the death of another person, he causes the death of any person." This court has held that premeditation is not required to exist for any particular length of time. McFarland v. State, 337 Ark. 386, 989 S.W.2d 899, cert. denied, 528 U.S. 933, 120 S. Ct. 334, 145 L. Ed. 2d 261 (1999). It may be formed in an instant and is rarely capable of proof by direct evidence, but must usually be inferred from the circumstances of the crime. Bangs, 338 Ark. 515, 998 S.W.2d 738; Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997). Similarly, premeditation and deliberation may be inferred from the type and character of the weapon, the manner in which the weapon was used, the nature, extent, and location of the wounds, and the accused's conduct. Sanders v. State, 340 Ark. 163, 8 S.W.3d 520 (2000). One can infer premeditation from the method of death itself, where the cause of death is strangulation. Carmichael, 340 Ark. 598, 12 S.W.3d 225; Mulkey v. State, 330 Ark. 113, 952 S.W.2d 149 (1997).
Here, Dr. Frank Peretti, an associate medical examiner with the State Crime Laboratory, testified that the victim's death was the result of "asphyxia due to obstruction of her air passages and strangulation and a blunt force injury." Dr. Peretti testified that the victim sustained numerous injuries to her hands, arms, and feet, and that her injuries were consistent with someone being "hogtied." Dr. Peretti also testified that petechial hemorrhages, a type of hemorrhage associated with asphyxia, were present on the victim's eyes. According to Dr. Peretti, the victim's neck would had to have been compressed for at least forty to sixty seconds to cause such hemorrhages. Dr. Peretti further testified that Mrs. Irmer was subjected to two different types of strangulation. First, there were injuries caused by ligature strangulation as a result of the drawstring being tied around her neck. Secondly, Mrs. Irmer was placed in a choke hold and strangled. Appellant admitted that he placed the laundry bag over head, but claimed that it was an attempt to stop the bleeding. According to Dr. Peretti, however, the injuries on Mrs. Irmer's neck were not the result of someone simply putting the laundry bag over her head, but rather were caused by someone actually tying the bag around her neck.
Dr. Peretti also stated that it took significant force to cause the head injuries sustained by Mrs. Irmer. Dr. Peretti opined that a person could not fall out of bed and hit their head hard enough to cause the type of injuries suffered by Mrs. Irmer. Moreover, Dr. Peretti stated that there were no lacerations or cuts on the *154 victim's head consistent with her banging her head on a piece of furniture. Thus, the medical evidence presented by the State proved that Mrs. Irmer's death was not the result of an accident, as Appellant claimed. This court has held that a jury is not required to lay aside its common sense in evaluating the ordinary affairs of life, and it may infer a defendant's guilt from improbable explanations of incriminating conduct. See Terrell v. State, 342 Ark. 208, 27 S.W.3d 423 (2000); Goff v. State, 329 Ark. 513, 953 S.W.2d 38 (1997).
In addition, there was testimony from Mr. Irmer that Appellant attacked him with a knife and prevented him from entering his home on the night of the murder. Appellant admitted that when he left the Irmers' house, Mrs. Irmer was dead. Finally, Appellant not only fled the scene of the crime, but also the state. This court has held that flight from the place where a crime has been committed may be considered as evidence of guilt. Dawan v. State, 303 Ark. 217, 795 S.W.2d 50 (1990); Jones v. State, 282 Ark. 56, 665 S.W.2d 876 (1984). In sum, there was ample evidence to support Appellant's conviction of capital murder; thus, it was not error for the trial court to deny Appellant's motion for a directed verdict.
Voluntariness of Statement
For his second point on appeal, Appellant asserts that the trial court erred in denying his motion to suppress the custodial statement he made while in Oklahoma. Appellant argues that his statement was given involuntarily because at the time of the statement he was sleep-deprived; suffered from a migraine headache, had eaten very little, and was subjected to various forms of police coercion. We disagree.
A statement made while the accused is in custody is presumptively involuntary, and the burden is on the State to prove, by a preponderance of the evidence, that a custodial statement was given voluntarily and was knowingly and intelligently made. Smith v. State, 334 Ark. 190, 974 S.W.2d 427 (1998); Humphrey v. State, 327 Ark. 753, 940 S.W.2d 860 (1997). When determining voluntariness, the issue on appeal is whether the statement was the product of a free and deliberate choice, rather than intimidation, coercion, or deception. Rankin v. State, 338 Ark. 723, 1 S.W.3d 14 (1999); Sanford v. State, 331 Ark. 334, 962 S.W.2d 335 (1998). In considering this issue, we make an independent determination based on the totality of the circumstances, and reverse the trial court only if its decision was clearly erroneous. Id. Relevant factors to be considered include the age, education, and intelligence of the accused; the lack of advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of questioning; and the use of mental or physical punishment. Boone v. State, 334 Ark. 452, 976 S.W.2d 921 (1998); Sanford, 331 Ark. 334, 962 S.W.2d 335.
Appellant claims that the circumstances surrounding his statement were coercive in nature, thus rendering his statement involuntary. His claims that he was tired, hungry, and had a headache are not supported by any evidence other than his own testimony. In fact, the transcript of his statement includes a question by Smith asking Appellant if he had had lunch, to which Appellant responded in the affirmative. There is nothing in the transcript of the statement to indicate that Appellant was anything other than alert and oriented. Appellant, who has a high school education, signed a waiver of his rights, and makes no challenge to the validity of that waiver on appeal. Indeed, the State introduced the waiver form signed by Appellant, and the transcript of *155 his statement reflects that Ward went over his rights with Appellant before any questioning took place. This court has held that issues regarding the credibility of witnesses testifying at a suppression hearing are within the province of the trial court. Wright v. State, 335 Ark. 395, 983 S.W.2d 397 (1998); see also Riggs v. State, 339 Ark. 111, 3 S.W.3d 305 (1999). "Conflicts in the testimony are for the trial judge to resolve, and the judge is not required to believe the testimony of any witness, especially that of the accused since he or she is the person most interested in the outcome of the proceedings." Wright, 335 Ark. at 404, 983 S.W.2d at 401. Therefore, we cannot say that the trial court erred in finding the testimony of the two officers to be more credible than that of the Appellant.
Appellant also claims that he was enticed by the promise of Daulton that the death penalty would be dropped if he gave a statement. This court has recognized that a statement induced by a false promise of reward or leniency is not a voluntary statement. See Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999); Clark v. State, 328 Ark. 501, 944 S.W.2d 533 (1997). Here, however, the only evidence that Daulton made any promises to Appellant was Appellant's own self-serving testimony at the omnibus hearing. Daulton and Ward both testified that Appellant was never promised anything or threatened in order to obtain a statement. Again, the matter of weighing the credibility of witnesses is left to the trial court. Wright, 335 Ark. 395, 983 S.W.2d 397. Accordingly, we cannot say that the trial court erred in finding that Appellant's statement was voluntary, and thus, admissible.
Admission of Photographs
Appellant's final point on appeal is that the trial court erred in admitting into evidence certain photographs of the victim because their prejudicial effect substantially outweighed their probative value. Specifically, Appellant alleges that certain photographs admitted into evidence were cumulative, overly graphic, and calculated to inflame the jury. This argument is without merit.
This court discussed the admission of photographs in Camargo v. State, 327 Ark. 631, 940 S.W.2d 464 (1997):
Although highly deferential to the trial court's discretion in these matters, this court has rejected a carte blanche approach to admission of photographs. Berry v. State, 290 Ark. 223, 227, 718 S.W.2d 447, 450 (1986). We have cautioned against "promoting a general rule of admissibility that essentially allows automatic acceptance of all photographs of the victim and crime scene the prosecution can offer." Id. at 228, 781 [718] S.W.2d at 450. This court rejects the admission of inflammatory pictures where claims of relevance are tenuous and prejudice is great, and expects the trial court to carefully weigh the probative value of photographs against their prejudicial nature. Id. at 228-29, 781 [718] S.W.2d at 450. We require the trial court to first consider whether such evidence, although relevant, creates a danger of unfair prejudice, and then to determine whether the danger of unfair prejudice substantially outweighs its probative value. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Ark. R. Evid. 403.
Id. at 637, 940 S.W.2d at 467.
We first address Appellant's allegation that the challenged photographs were cumulative. With regard to pictures *156 that depicted the victim of the body as discovered at the crime scene, the trial court overruled Appellant's objection to their admission on the basis that their probative value outweighed any prejudicial effect. The trial court found that they rebutted Appellant's claim that the victim had fallen off the bed and hit her head on the night stand. Specifically, the trial court noted that the pictures demonstrated that there were no open wounds on the victim or any excessive blood present. A close-up photograph of the victim's head and torso taken at the crime laboratory was needed to show the jurors the manner in which the bag's drawstring was knotted around the victim's neck. Appellant has asserted that he did not kill Mrs. Irmer with premeditation and deliberation. The photographs used to depict her many injuries establish that this crime was not accidental, but rather, was brutal and prolonged. This court has held that even the most gruesome photographs may be admissible if they tend to shed light on any issue, to corroborate testimony, or if they are essential in proving a necessary element of a case, are useful to enable a witness to testify more effectively, or enable the jury to better understand testimony. Sanders, 340 Ark. 163, 8 S.W.3d 520.
Next, Appellant challenges several photographs that are close-up shots of the injuries inflicted on the victim's head and neck. The trial court allowed the photographs in because Dr. Peretti used them during his testimony to explain the numerous injuries suffered by Mrs. Irmer. Two final photographs challenged by Appellant depict the neck injuries caused by strangulation. This court has held that the need to show the condition of a victim's body, the probable type or location of the injuries, and the position in which the body was discovered is an acceptable purpose for admitting photographs. Stewart v. State, 338 Ark. 608, 999 S.W.2d 684 (1999). Thus, it was not error for the trial court to admit these photographs.
Finally, we consider Appellant's argument that the color photographs were somehow more prejudicial than black and white photographs would have been. Appellant does not argue which photographs should have been submitted in color, nor does he submit any photographs in black and white, thereby demonstrating how they are less gruesome. He simply asserts that this court, by implication, has previously stated that color photographs are more inflammatory. Appellant cites no authority for this proposition, nor did he raise this argument below. It is well settled that this court does not consider an argument raised for the first time on appeal. Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999).
4-3(h) Review
The record in this case has been reviewed for other reversible error in accordance with Ark. Sup.Ct. R. 4-3(h), and none has been found. For the aforementioned reasons, the judgment of conviction is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382619/ | 248 S.W.3d 310 (2007)
The STATE of Texas, Appellant,
v.
Jimmie Dale WHITE, Appellee.
No. 03-07-00041-CR.
Court of Appeals of Texas, Austin.
August 31, 2007.
*311 David L. Botsford, Law Office of David L. Botsford, Douglas Wayne Beeson, Austin, for Appellee.
Holly E. Taylor, Asst. Dist. Atty., Travis County, Austin, for The State of Texas.
Before Justice PATTERSON, PURYEAR and PEMBERTON.
OPINION
BOB PEMBERTON, Justice.
The State appeals an order dismissing the indictment in this cause. Appellee Jimmie Dale White's motion to dismiss the State's appeal for want of jurisdiction was overruled without written order on July 23, 2007. He has filed a motion for rehearing asking the Court to reconsider the overruling of his motion.
The district court's order dismissing the indictment was signed on December 31, 2006. The State was required to "make" and file its notice of appeal no later than *312 fifteen days thereafter, or January 15, 2007. See Tex.Code Crim. Proc. Ann. art. 44.01(d) (West 2006); Tex.R.App. P. 26.2(b). The State's notice of appeal was filed on January 18, 2007. The attached certificate of service states, among other things, "This State's notice of appeal is timely if filed by January 18, 2007, since the Travis County Clerk's office was closed on January 15, 2007, in observance of MLK day, and was closed on January 16 and 17, 2007, due to inclement weather." See Tex.R.App. P. 4.1. The certificate was signed by Assistant District Attorney Holly E. Taylor.[1]
In his motion to dismiss, White argued that counsel's certificate was inadequate to satisfy rule 4.1(b) because it did not state that the district clerk's office, the office in which the notice was filed, had been closed due to inclement weather.[2] In its response to the motion, the State argued that the omission of the word "district" in counsel's certificate was a clerical or typographical error. In addition, the State asked the Court to take judicial notice that the Travis County District Clerk's office was closed on January 16 and 17, 2007. Attached to the motion (and also to the State's response) was an affidavit signed by Michelle Brinkman, Chief Deputy District Clerk, stating that "[o]n January 16th and 17th of 2007, the Travis County District Clerk's office was closed due to inclement weather." The motion to take judicial notice was granted on the same day White's motion to dismiss was overruled.
In his motion for rehearing, White argues that consideration of Brinkman's affidavit is foreclosed by the holding in State v. Muller, 829 S.W.2d 805, 812-13 (Tex. Crim.App.1992). We disagree. In Muller, the State's original, timely notice of appeal was not signed or authorized by the elected district attorney, as required by article 44.01. Id. at 810. Eight months later, the State sought to cure this defect by filing an amended notice of appeal. Id. at 806. The court of criminal appeals held that the amended notice of appeal was ineffective because the statutory fifteen-day time limit for the prosecuting attorney to make an appeal under article 44.01 is a substantive limitation that is not susceptible to correction by the "amendment and cure" provisions of the appellate rules. Id. at 812.
In the instant case, the State has not sought to amend its notice of appeal outside the fifteen-day time limit. Rather, the question presented is whether the State's one and only notice of appeal was filed timely. Contrary to White's argument, Muller does not hold that the appellate record cannot be supplemented outside the fifteen-day filing period in order to determine the applicability of rule 4.1(b). In fact, the rule expressly provides that the closing or inaccessibility of the clerk's office may be proved or controverted by a certificate of the clerk or counsel, a party's affidavit, or other satisfactory proof. Tex.R.App. P. 4.1(b).
We also find no support for White's argument in Johnson v. State, 84 S.W.3d 658 (Tex.Crim.App.2002). In that case, the court construed a former appellate rule that required a defendant with a limited right of appeal to recite in his notice of appeal that the prerequisites for appeal had been met. See id. at 659 n. 1. The court held that if the required recitals were not contained in the notice of appeal, the court of appeals could not look elsewhere in the record to determine if the prerequisites had been satisfied. Id. at *313 660. We do not understand Johnson to prohibit a court of appeals from looking outside the notice of appeal to determine whether an appellate deadline fell on a weekend, legal holiday, or day the clerk's office was closed due to bad weather.
We also understand White to argue that rule 4.1(b) is inapplicable to a State's appeal. Again, we disagree. Because the fifteen-day time limit in article 44.01(d) is a substantive limitation on the State's right of appeal, it cannot be extended by the appellate court pursuant to rule 26.3 (motions for extension of time). See Muller, 829 S.W.2d at 812 (citing State v. Demaret, 764 S.W.2d 857, 858 (Tex.App.-Austin 1989, no pet.)). However, the State has not sought an extension of the deadline for perfecting its appeal. Rule 4.1 does not extend the substantive time limit for the State to perfect an appeal, but merely provides for the eventuality of the deadline falling on a Saturday, Sunday, legal holiday, or day in which the clerk's office is closed or inaccessible due to inclement weather. As its title states, rule 4.1 provides guidelines by which established time periods are to be computed. The plain language of article 44.01(d) does not preclude the application of rule 4.1 in calculating whether the State's notice of appeal was filed timely.
Next, White argues that Brinkman's affidavit is inadequate because it merely states that the district clerk's office was closed due to inclement weather on the days in question. He complains that the affidavit does not state that the office was closed during regular business hours for the entirety of the two days or recite the legal authority by which it was closed. We decline to read the affidavit so narrowly. Reasonably construed, the affidavit is sufficient to support the conclusion that the Travis County District Clerk's office was closed all day due to the weather on January 16 and 17, 2007. We assume that the office was closed on the authority of the Travis County District Clerk, but it is sufficient for rule 4.1(b) that the office was closed due to inclement weather regardless of who ordered the closing.
Courts of appeals must construe the appellate rules reasonably and liberally so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule. Few v. State, 230 S.W.3d 184, 189 (Tex. Crim.App.2007) (citing Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.1997)). We conclude that counsel's certification attached to the notice of appeal and the affidavit of the deputy district clerk attached to both the State's response to the motion to dismiss and to the State's motion to take judicial notice are sufficient to make a prima facie showing that the district clerk's office was closed due to inclement weather on January 16 and 17, 2007. White has made no probative showing to the contrary.[3] Applying rule 4.1(b), the State's notice of appeal was timely filed on January 18, 2007.
However, compliance with rule 4.1(b) does not obviate the strict requirement of article 44.01(d) that the elected district attorney "make" the State's appeal by signing or personally authorizing the notice of appeal within fifteen days of the trial court's order, January 15. See Muller, 829 S.W.2d at 810. Relying on article 44.01(d), White raises in his motion for rehearing an issue not previously presented in his motion to dismiss. He observes *314 that the district attorney's signature on the notice of appeal is not dated. Because the notice of appeal was not filed until January 18, he urges us to infer that the district attorney failed to "make" the appeal timely.
Under the unusual circumstances of this case, we cannot discern from the record whether the elected district attorney timely "made" the State's appeal. We note that the assistant district attorney's certificate of service, which was obviously prepared on January 18, is on a separate sheet of paper attached to the notice of appeal signed by the district attorney. These circumstances are equally consistent with the district attorney having signed the notice within the fifteen-day period as they are him signing it on or near January 18. While it may be prudent for the district attorney to date his signature on a State's notice of appeal to avoid future disputes, there is nothing in article 44.01(d) or the appellate rules that requires it. Nor do these provisions yield any basis for us to draw presumptions here as to when the district attorney signed the notice.
This unresolved factwhether the elected district attorney "made" the State's appeal within the strict fifteen-day deadline of article 44.01(d)controls our subject-matter jurisdiction over the State's appeal. See id. at 812-13. In similar instances, appellate courts have abated pending appeals and remanded unresolved jurisdictional fact questions to the trial court for resolution. See Peavy v. Texas Home Mgmt., Inc., 16 S.W.3d 104, 105 (Tex.App.-Houston [1st Dist.] 2000, no pet.) (abating for findings of fact on when appellee and counsel received notice of appellate judgment). We will do the same here. Accordingly, we reserve a final ruling on White's motion for rehearing, abate the appeal, and remand the cause to the district court. That court shall take evidence and make a written finding regarding the date the elected district attorney signed the State's notice of appeal. A supplemental record containing the district court's written finding of fact and a transcription of any hearing shall be filed in this Court no later than fifteen days after the date of this opinion.
NOTES
[1] The notice of appeal itself was signed by District Attorney Ronald Earle.
[2] White does not dispute that January 15, 2007, was a legal holiday.
[3] White refers us to evidence that the Travis County Commissioner's Court met on January 16 and 17, 2007. This is not evidence that the district clerk's office was open on those dates. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382648/ | 248 S.W.3d 52 (2008)
ST. CHARLES COUNTY AMBULANCE DISTRICT, INC., Appellant,
v.
MISSOURI DEPARTMENT OF HEALTH and SENIOR SERVICES, et. al.; Mission Care of Missouri d/b/a Abbott Ambulance, Respondent.
No. WD 67521.
Missouri Court of Appeals, Western District.
January 22, 2008.
Motion for Rehearing and/or Transfer Denied March 4, 2008.
Application for Transfer Denied April 15, 2008.
*53 Brian E. McGovern, Esq., Brian M. Kaemmerer, Esq., Chesterfield, MO, for St. Charles County Ambulance.
Glen D. Webb, Esq., Jefferson City, MO, for Missouri Dept. of Health & Senior Services.
Lynn S. Brackman, Esq., Winthrop Blackstone Reed, III, Esq., St. Louis, William E. Quirk, Esq., Kansas City, MO, for Mission Care of Missouri.
Before NEWTON, P.J., SPINDEN and HARDWICK, JJ.
Motion for Rehearing and/or Transfer to Supreme Court Denied March 4, 2008.
LISA WHITE HARDWICK, Judge.
The St. Charles County Ambulance District ("District") appeals from the dismissal of its Petition for Review before the Administrative Hearing Commission ("AHC"). In the Petition, the District sought revocation of a new ambulance service license issued to Abbott Ambulance, Inc. ("Abbott") in November 2004 by the Missouri Department of Health & Senior Services ("Department"). After the Petition was filed, the Department realized it issued the new license in error and withdrew it. Abbott thereafter filed a motion to dismiss the District's Petition for Review as moot. The AHC granted the dismissal motion, finding that it lacked subject matter jurisdiction under Section 190.171, RSMo 2000,[1] because the proceeding no longer involved a licensing issue.
On appeal, the District contends the AHC erred in determining that it lacked jurisdiction. The District argues that while the Department withdrew the 2004 license, it also allowed Abbot to continue to operate under an existing license issued to Abbott's corporate predecessor in 2000. The District asserts the Department in effect granted Abbott a new license by allowing it to operate under the preexisting license, but the Department failed to follow the requirements of Section 190.109.3 for issuing a new license.[2] Thus, the District contends the AHC had subject matter jurisdiction under Section 190.171 because the Petition effectively challenged the issuance of a new license.
In reviewing this appeal from an administrative agency, we must consider whether the AHC decision was unsupported by competent and substantial evidence based upon a review of the whole record, was unauthorized by law, was arbitrary, capricious, or unreasonable, or involved an abuse of discretion. Section 536.140.2. As a general matter, questions of law are *54 reviewed de novo, findings of fact are reviewed to determine if they are supported by the evidence, and discretionary determinations are reviewed for an abuse of discretion. Coastal Mart, Inc. v. Dep't of Natural Res., 933 S.W.2d 947, 951 (Mo. App.1996).
As a basic tenet of administrative law, "`an administrative agency has only such jurisdiction as may be granted by the legislature.'" Livingston Manor, Inc. v. Dep't of Soc. Servs., 809 S.W.2d 153, 156 (Mo.App.1991) (quoting State ex rel. Mo. Health Care Ass'n v. Mo. Health Facilities Review Comm., 768 S.W.2d 559, 562 (Mo. App.1988)). If the agency lacks statutory authority to consider a matter, it is without subject matter jurisdiction. Id. "The agency's subject matter jurisdiction cannot be enlarged or conferred by consent of agreement of the parties." Id. Without subject matter jurisdiction, the agency can take no action other than to dismiss the proceeding. Beach v. Dir. of Revenue, 934 S.W.2d 315, 318 (Mo.App.1996).
The AHC has subject matter jurisdiction in ambulance licensing cases pursuant to Section 190.171, which provides:
Any person aggrieved by an official action of the department of health and senior services affecting the licensed status of a person pursuant to the provisions of sections 190.001 to 190.245 and sections 190.525 to 190.537, including the refusal to grant, the grant, the revocation, the suspension, or the failure to renew a license, may seek a determination thereon by the administrative hearing commission pursuant to the provisions of section 631.045 RSMo. . . .
(emphasis added). In this case, the AHC initially had jurisdiction under Section 190.171 because the District's Petition for Review challenged the Department's issuance of a new ambulance service license to Abbott in November 2004. When the Department withdrew the new license in June 2005, the AHC lost jurisdiction because the proceeding no longer involved "an official action of the [D]epartment . . . affecting the licensed status" of Abbott. Accordingly, the AHC had no alternative but to dismiss the action, both for lack of subject matter jurisdiction and because the District was no longer aggrieved by the issuance of the 2004 license.
We find no merit in the District's contention that the Department effectively granted Abbott a new license when it withdrew the 2004 license and allowed Abbott to operate under an existing license issued in 2000 to its corporate predecessor. We note that this argument was not presented to the AHC and was thereby waived on appeal. SGOH Acquisition Inc. v. Mo. Dep't. of Mental Health, 914 S.W.2d 402, 406 (Mo.App.1996). But even if properly raised, we would reject the argument based on Section 190.105.14, RSMo Cum. Supp.2007, which indicates the transfer of ownership of an ambulance service does not necessarily affect its licensing status. The statute provides:
Upon sale or transfer of any ground ambulance service ownership, the owner of such service shall notify the department of the change in ownership with thirty days of such sale or transfer. After receipt of such notice, the department shall conduct an inspection of the ambulance service to verify compliance with the licensure standards of section 190.001 to 190.245.
Section 190.105.14.
In light of this provision, Abbott was not required to obtain a new ambulance service license when its ownership changed in 2004. Abbott was originally issued a ground ambulance service license on December 16, 1998. The Department renewed the license on December 28, 2000, for a five-year period set to expire on December 31, 2005. In September 2004, Abbott transformed from a non-profit to a *55 for-profit entity whose stock was purchased Mission Care of Missouri, LLC. Throughout this period of time, Abbott retained the name of "Abbott Ambulance, Inc." Abbott notified the Department of the ownership change in 2004, as it was required to do by Section 190.105.14. The Department mistakenly issued Abbott a new ambulance service license, but promptly withdrew it upon realizing that Abbott could continue to operate under its 2000 license. Although the District had appealed the issuance of the new license to the AHC, that appeal was mooted by the withdrawal of the license.
The AHC correctly determined that the Department did not issue a new license by allowing Abbott to operate under its prior license. Because the AHC proceeding did not involve an "official action of the department . . . affecting the licensed status" of Abbott, the action was properly dismissed for lack of subject matter jurisdiction pursuant to Section 190.171. The judgment is affirmed.
All concur.
NOTES
[1] All statutory citations are to the Missouri Revised Statutes (Cum.Supp.2007), unless otherwise indicated.
[2] To obtain a new ambulance service license, Abbott was required to obtain an endorsement letter from the District and submit to a compliance inspection by the Department. Section 190.109.3. The District asserts the Department violated this requirement by issuing the 2004 license to Abbott without obtaining an endorsement letter. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266934/ | 269 A.2d 240 (1970)
August T. POHORILY, Plaintiff,
v.
Richard M. KENNEDY, Samuel W. Murphy, John J. Lafferty, and Insurance Placement Facility of Delaware, a partnership, Defendants.
Superior Court of Delaware, New Castle.
September 8, 1970.
*241 David Snellenburg, II, of Killoran & VanBrunt, Wilmington, for plaintiff.
William T. Lynam and William G. Campbell, of Bayard, Brill & Handelman, Wilmington, for defendants.
STIFTEL, President Judge.
Defendants move for summary judgment. Motion granted.
Action for damages by plaintiff as owner of a building against individual defendants and the Insurance Placement Facility of Delaware (IPF).[1] The complaint alleges that defendants were negligent in processing plaintiff's application and rate determination of the building at 600 W. 4th Street for fire and extended coverage insurance. The owner's application was dated December 2, 1968 and was received by the Middle Department Association of Fire Underwriters, the agent of IPF on Friday, December 6, 1968. An inspection was made December 11, 1968 and on December 19, 1968 fire damaged the premises. Plaintiff had not heard from IPF regarding his application prior to the fire.
IPF is not a commercial insurance company but a statutory body created under 18 Del.C., Chapter 41. It consists of a pool of all the insurance companies writing fire and extended coverage insurance in Delaware. IPF went into effect November 1, 1968. The purpose of its creation is set forth in 18 Del.C. § 4104. IPF provides a means whereby the urban insurance risks which were being rejected or cancelled by many insurance companies would receive a rate quotation. Applicants of IPF must be unable to obtain insurance in the normal commercial market to be eligible for placement by IPF.
Applicants are entitled to an inspection of their property by representatives of the inspection bureau on request. 18 Del.C. § 4105. After the inspection, rates are then calculated for each risk in accordance with rating schedules approved for IPF. An IPF Bulletin, dated December 17, 1968, and published in Philadelphia, required the rates to be calculated by IPF within ten days of its receipt of the request for inspection. The applicant, his agent or broker, is given a copy of the rate calculation, which must show reasons for any surcharges. If conditions are corrected by applicant, then surcharges may be removed and a new rate calculated. Finally, after the inspection, rating and approval, notification of rate must be forwarded to applicant. The total premium is set out. The applicant then must send the net premium to the facility which will service the policy in the event of loss. IPF may decline to cover properties which it determines to be uninsurable. And, of *242 course, applicant may refuse to pay rate set by IPF.
Plaintiff's case rests on the December 17 Bulletin issued in Philadelphia two days before the fire. Specifically, he claims that IPF's carelessness caused his personal loss in its failure to comply with the Bulletin's requirements to its members that the rates be calculated in 10 days of the receipt of the request for inspection. He claims that this Bulletin established the standard of care. The fire occurred thirteen days after the receipt of the application for inspection and eight days after the actual inspection.
Plaintiff implies that the duties of IPF would be similar to or greater than those of a commercial insurance company. In many jurisdictions there is a duty cast on an insurance company to act on an application for insurance within a reasonable time. A violation of this duty subjects the insurance company to liability if damage results. Anno: "Insurance Application Delay," 32 A.L.R. 2d 487, at 511.
Normally, the cases cited in support of liability are based on a firm offer by the applicant accompanied by the first premium and a delay in the acceptance by the company. Annotation, supra. Such a delay could lead the applicant to believe he was insured and that he would not have to search further for insurance coverage. Such is not the situation here. The applicant asks for an inspection and rate. He makes no commitment to accept insurance at the rate quoted. Approval of an acceptable rate by IPF may only be the beginning of negotiations by the applicant. The applicant for inspection and rate can in no way believe he has coverage before he accepts the rate. Any liability for failure to act must be left to the Legislature which created IPF. The applicant has a right to complain to the Insurance Commissioner if his application is not being processed expeditiously and in accordance with the internal directives as set forth in Bulletin of December 17. 18 Del.C. § 4111. In any event, the plaintiff in this case could not have relied on the 10 day time set forth in the bulletin when he applied since the bulletin was published eleven days after he applied and two days before the fire.
Defendants' motion granted.
It is so ordered.
NOTES
[1] Delaware Act created as a consequence of federal legislation by the 90th Congress, enacted August 1, 1968, known as Title 11 "Urban Property Protection and Reinsurance Act of 1968", 82 Stat. 555. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266943/ | 269 A.2d 205 (1970)
Hyman A. COHEN, Defendant Below, Appellant,
v.
Naomi Simon COHEN, Plaintiff Below, Appellee.
Supreme Court of Delaware.
June 24, 1970.
John Merwin Bader, Wilmington, for appellant.
Vincent A. Theisen, of Theisen & Lank, Wilmington, for appellee.
WOLCOTT, C. J., CAREY, J., and McNEILLY, Judge, sitting.
WOLCOTT, Chief Justice:
This appeal from the Court of Chancery raises a single issue, viz., that no counsel fees should have been awarded at all to counsel for the plaintiff wife in this litigation.
*206 Plaintiff and defendant were formerly husband and wife. They were divorced following the termination of this litigation. Three separate civil actions are involved.
The first action was filed July 4, 1962 by the wife for separate maintenance and child support against her then husband. The cause came on for hearing finally on April 28, 1966 but no trial was had since an agreement of settlement was entered into between the husband and wife. The agreement of settlement provided for certain lump sum payments, the transfer of certain property between the husband and wife, and for continued periodic support payments. Following approval of this agreement of settlement by the court, jurisdiction was reserved by it over the matter of counsel fees for the wife.
On June 13, 1966, the second civil action was filed alleging that the husband had defaulted in certain of the provisions contained in the agreement of settlement. After hearing, an order was entered enforcing the settlement agreement and again reserving jurisdiction in the matter of attorneys' fees.
The third civil action was commenced August 24, 1966 against the husband, Wilmington Savings Fund Society, and others. The relief sought was an injunction against the foreclosure of a mortgage on certain parcels of real estate owned by the former husband and wife. Also sought was an order on the husband to pay certain delinquent mortgage payments which he had been obligated to pay by the agreement of settlement. This action was settled amicably, and no further litigation has transpired between the parties. They were actually divorced on November 3, 1967.
Thereupon, the Vice Chancellor, who had reserved jurisdiction as to counsel fees for the wife, entered an order allowing $5,000 to the two associate counsel representing the wife in all of this litigation, and stating that he was doing so by reason of his treatment of the three separate civil actions as one piece of continuing litigation arising initially from a support and maintenance action in which Chancery has the authority to award counsel fees to the wife.
The appellant takes no issue as to the amount of fees awarded the wife's counsel. He takes the position that if it were indeed proper to award fees in all these three actions, the amount awarded is not unreasonable. He contends, however, that if fees were to have been awarded at all, they may have been awarded only in connection with the separate maintenance first initiated.
The Vice Chancellor, however, held that the three separate actions were in reality one piece of litigation, and awarded counsel fees on that basis. In this respect, we think he was correct.
The first action brought for separate maintenance resulted in the parties entering into a separation agreement providing for certain financial rights. The husband defaulted which required the bringing of the second action in order to enforce the separation agreement. The result of the second separate civil action was as though the separation agreement had been incorporated by order into the separate maintenance action. As such, it could easily have been enforced by contempt proceedings if that had been the result. However, this was not the result. An order was entered for the specific performance by the husband of the separate maintenance agreement.
The third separate civil action was required in order to prevent a mortgage foreclosure on a property, the house in which the husband and wife had formerly lived together as their marital domicile, by reason of the default by the husband of the payment of the amounts necessary to prevent foreclosure of the mortgage. As such, it was little more than would have been achieved by contempt proceedings had the separation agreement been incorporated in the first action as a part of the disposal of that litigation.
*207 Under the circumstances, therefore, we see no alternative but to regard the three separate actions as in fact one continuous piece of litigation which ultimately resulted in a settlement of the differences of the parties. As such, therefore, it was entirely proper for the Vice Chancellor to award counsel fees based upon the entire scope of the litigation, in reality, one single controversy. We accordingly affirm his action in this respect.
This conclusion makes it unnecessary for us to consider the further argument of counsel for the appellant that Rule 88 of the Court of Chancery has not been complied with requiring the specification of hours of work spent in litigation allocated to the precise cause for which counsel fees are sought. This being one continuous litigation or controversy, it is not necessary for counsel to apportion their hours of labor and achievements between the three individual parts which together make up one whole. It suffices that the entire legal services of counsel are set forth in an affidavit pursuant to Rule 88. This has been done as the Vice Chancellor held.
The judgment below is affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266961/ | 217 Pa. Super. 218 (1970)
Commonwealth, Appellant,
v.
Hall.
Superior Court of Pennsylvania.
Argued April 12, 1970.
September 18, 1970.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.
*219 Arthur R. Makadon, Assistant District Attorney, with him James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.
Alan J. Davis, for appellee.
Dennis E. Haggerty, for appellee.
David Rudovsky, Assistant Defender, with him John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Acting Defender, for appellee.
Eugene H. Clarke, Jr., for appellee.
OPINION BY HOFFMAN, J., September 18, 1970:
At 9 o'clock one evening in 1968, Victor Tomassini was attacked by a group of young men on a street in Philadelphia. After beating and robbing Tomassini, the group fled to a nearby house. Police officers began arriving at that house at about 9:05 p.m. and entered immediately to make arrests. Appellee Rosser was arrested by Lieutenant Handel and taken immediately to Episcopal Hospital, where Tomassini had been taken *220 for treatment. According to Lieutenant Handel's testimony, ten minutes elapsed between the time of his arrival at the house and his arrival at Episcopal Hospital. At the time of appellee Rosser's arrest, appellees Hood and Berry were arrested by Sergeant Kennedy at Episcopal Hospital, but they arrived when Lieutenant Handel and appellee Rosser were leaving. Sergeant Harrington arrested appellees Ronald and Earl Hall. He did not testify, however, and we do not know whether they, too, were taken to Episcopal Hospital.
At the hospital, Lieutenant Handel brought appellee Rosser into the accident ward. Inside, they found Tomassini at the registration desk, where he was awaiting treatment. He looked at appellee Rosser and said: "That's one of the men." Lieutenant Handel then left with appellee Rosser to take him to the station house. Tomassini presumably was then taken into a "back room" to receive treatment. Other police officers with other suspects arrived at the hospital and gathered in the accident ward. Among them were Sergeant Kennedy and appellees Hood and Berry. The entire group of suspects numbering eight to ten, was taken into the "back room" and lined up against a wall. According to Sergeant Kennedy, Tomassini thereupon identified appellees Hood and Berry as two of his assailants. He identified others, too. Tomassini, on the other hand, could only recall identifying Berry. He could not recall identifying Hood, nor either of the Hall brothers, although Sergeant Kennedy recalled hearing the name "Hall" at the hospital. At no time during this period was Tomassini in such a condition that hospital officials or the police thought he was in danger of dying or lapsing into unconsciousness so as to preclude his making an identification.
In any case, appellees Rosser, Hood, Berry, Ronald and Earl Hall were taken to the station house together with three other suspects. When Tomassini arrived *221 from the hospital, all eight were brought out to confront him. This time, he identified all five of the appellees and, according to a detective present, another young man. The latter was never tried, however.
About a week later, all five appellees appeared for their preliminary hearing. They were unrepresented at the hearing, during the course of which Tomassini again confronted all of them.
Prior to trial, appellees moved to suppress Tomassini's three out-of-court identifications and his in-court identification of them. They contended that since no lawyer was present at any of the out-of-court identifications, the identifications were inadmissible under United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926 (1967). Accordingly, it was the Commonwealth's burden to show by "clear and convincing evidence that the in-court identifications were based upon observations of the suspect[s] other than the [out-of-court] identification[s]." Id. at 240, 87 S. Ct. at 1939. Judge McGLYNN did not reach the second question because he ruled that the out-of-court identifications were not inadmissible under Wade.
At trial, Tomassini identified appellees as his assailants. He indicated that he had seen all of them before the attack, some of them several times. At no time did he or anyone else describe the out-of-court identifications.[1] On the basis of Tomassini's testimony *222 and the testimony of several police officers, the jury convicted appellees of aggravated robbery.
Appellees filed motions for a new trial, alleging that Judge McGLYNN had erred with respect to the Wade issue.[2] Upon review of the cases, Judge McGLYNN indicated that he still was of the opinion that Wade had not been violated. He did believe, however, that Commonwealth v. Lee, 215 Pa. Super. 240, 257 A.2d 326 (1969), "greatly expand[ed] the rule of Wade" and required a new trial. He did not indicate, however, what he believed Lee required: whether the out-of-court identifications were inadmissible, whether the in-court identifications were inadmissible, or whether all of the identifications were inadmissible. Had there been out-of-court identifications admitted at trial, then Judge McGLYNN'S order would have been clear. Lee *223 required that if invalid out-of-court identifications were admitted at trial, a new trial must be held without such evidence. There was no such evidence, however. It would seem, therefore, that Judge McGLYNN must have ruled with respect to the in-court identification and have decided they were "tainted". However, were such the case, rather than granting a new trial, he should have arrested judgment, since only Tomassini could identify appellees as his assailants. It would seem, therefore, that Judge McGLYNN did not differentiate between the two kinds of identifications.
The Commonwealth contends that it is aggrieved on at least two grounds. It does not believe the out-of-court identifications were inadmissible. But even if they were, it seeks the opportunity to show that the in-court identifications were not tainted. If it does not have that opportunity, it finds itself precluded from submitting Tomassini's testimony at a new trial. Hence it appeals.
I
The Right of The Commonwealth to Appeal
While it is true that the Commonwealth is without a right to appeal where the trial court grants a new trial based upon an admixture of law and fact, Commonwealth v. Hartman, 383 Pa. 461, 462-463, 119 A.2d 211, 212 (1956), where a pure question of law is the basis of the order, it may appeal. Commonwealth v. Dolan, 155 Pa. Super. 453, 455-456, 38 A.2d 497, 498 (1944). With respect to the latter, the Supreme Court has held that "where the question involved is purely one of law . . . the Commonwealth may appeal from an adverse ruling in a criminal case, for example, where a new trial is granted to a convicted defendant on the sole ground that the introduction of certain evidence at his trial was prejudicial error (Commonwealth *224 v. Antonini, 165 Pa. Super. 501, 69 A.2d 436) . . ." Commonwealth v. Melton, 402 Pa. 628, 629, 168 A.2d 328, 329 (1961).
In Antonini, the trial court granted a new trial because it believed certain evidence admitted on behalf of the Commonwealth was erroneously admitted. On the basis of that error alone, it granted a new trial. In the instant case, certain in-court identifications were introduced by the Commonwealth. Compelled solely by our decision in Lee, Judge McGLYNN concluded, evidently, that those identifications were admitted erroneously. On the basis of that error alone, he granted a new trial. Judge McGLYNN'S interpretation of Lee is the keystone of his action. We cannot say the construction of one of our cases is not a question of law.
By quashing this appeal, this Court would place the Commonwealth on the horns of a dilemma. If it tries the appellees once again, it subjects itself to the possibility that the trial judge will find himself bound by Judge McGLYNN'S order and exclude Tomassin's in-court identification. Should that happen, it is likely that a demurrer to the Commonwealth's case would be sustained. If it seeks pretrial relief, it may subject itself to the same possibility that a judge will find himself bound by Judge McGLYNN'S order. In that case, it might appeal. That appeal, however, would raise the same issue presently before us. Should it secure pretrial relief, however, the appellees would face a second trial identical to the first trial, despite having secured a new trial based on supposed error at the first trial. Such a situation would be intolerable.
II
The Out-of-Court Identifications
Three out-of-court confrontations concern us in this appeal: (1) the confrontation between appellees Rosser, *225 Hood, and Berry and Tomassini at Episcopal Hospital; (2) the confrontation between all five appellees and Tomassini at the police station; (3) the confrontation between all five appellees and Tomassini at the preliminary hearing. Since all three confrontations were arranged by the police, the "grave potential for prejudice" inherent in such confrontations requires us to decide whether the state should have furnished appellees counsel or, in the absence of such, whether the state should have conducted the confrontations at all. United States v. Wade, supra at 236, 87 S. Ct. at 1937.
With respect to confrontations generally, the Supreme Court has noted that "the confrontation compelled by the State between the accused and the victim or witnesses to a crime to elicit identification evidence is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial. . . . A major factor contributing to the high incidence of miscarriage of justice from mistaken identification has been the degree of suggestion inherent in the manner in which the prosecution presents the suspect to witnesses for pretrial identification. . . . The pretrial confrontation for purpose of identification may take the form of a lineup, also known as an `identification parade' or `showup'. . . or presentation of the suspect alone to the witness. . . It is obvious that risks of suggestion attend either form of confrontation and increase the dangers inhering in eyewitness identification." Id. at 228-229, 87 S. Ct. at 1933.
All confrontations between victim or witness and the suspect are potentially suggestive. The mere fact that the police have selected half a dozen or a dozen suspects focuses the victim's and the witness' attention to those few. The limitations in our perception and recall and the emotional impact of a police-staged meeting make suggestion almost inevitable. The Supreme *226 Court has, in effect, said that when the potentiality of suggestion is strong, counsel should be present to "avert prejudice and assure a meaningful confrontation at trial." Id. at 236, 87 S. Ct. at 1937.
Not all confrontations, however, are equally prejudicial. The closer the confrontation to the time of the crime, the greater is the likelihood that the victim or witness can recall the image of the criminal. Similarly, the less the environment of the criminal episode has changed, the fewer the extraneous factors of suggestion that adhere to any confrontation between victim or witness and suspect. Thus, less prejudice is likely at fresh on-the-scene confrontations than at late, police station confrontations, all other things being equal.
In accord with such reasoning, three distinguished federal judges have decided that fresh on-the-scene confrontations do not require the presence of counsel. In United States v. Sanchez, 422 F.2d 1198 (2d Cir. 1970), the defendants were followed from the scene of the crime by several private citizens. In the subway, two blocks away, they were arrested. When they protested their innocence, the police took them back to the scene of the crime, where, thirty minutes after the crime and almost immediately after arrest, they were identified by several witnesses. Circuit Judge FEINBERG, speaking for Judges KAUFMAN, PALMIERI, and himself, held that such an identification was not governed by Wade. In Russell v. United States, 408 F.2d 1280 (D.C. Cir. 1969), a private citizen reported the description of a suspicious person who had emerged from a store with a broken window. Responding to a radio look-out, a squad car proceeded to the scene. The officers in the car spotted the defendant on the way. He matched the radioed description and fled from the approaching car. "They arrested him and drove him to the . . . shop where [the private citizen] identified him as the man he had seen coming out of the shop." Id. at 1281. Chief Judge *227 BAZELON, speaking for Judges DANAHER and ROBINSON, held that this identification, too, was not governed by Wade. Judge BAZELON wrote as follows: "Unquestionably, confrontations in which a single suspect is viewed in the custody of the police are highly suggestive. Whatever the police actually say to the viewer, it must be apparent to him that they think they have caught the villain. Doubtless a man seen in handcuffs or through the grill of a police wagon looks more like a crook than the same man standing at ease and at liberty. There may also be unconscious or overt pressures on the witness to cooperate with the police by confirming their suspicions. And the viewer may have been emotionally unsettled by the experience of the fresh offense. Yet, on the other hand, recognition of a person or face would seem to be as much the product of a subjective mental image as of articulable, consciously remembered characteristics. A man may see clearly in his `mind's eye' a face or a figure which he is hard put to describe adequately in words. Though the image of an `unforgettable face' may occasionally linger without any translation into words, photographic recall is most often ephemeral. Vivid in the flash of direct observation, it fades rapidly with time. And the conscious attempt to separate the ensemble impression into particular verbalized features, in order to preserve some recollection, may well distort the original accurate image so that it is the verbalized characteristics which are remembered and not the face or the man. Balancing all the doubts left by the mysteries of human perception and recognition, it appears that prompt confrontations in circumstances like those of this case will `if anything promote fairness, by assuring reliability. . . .' This probability, together with the desirability of expeditious release of innocent suspects, presents `substantial countervailing policy considerations' which we are reluctant to assume the Supreme Court would reject." *228 Id. at 1284. Likewise, in United States v. Davis, 399 F.2d 948 (2d Cir. 1968), the defendant was arrested on the New York Thruway because he had been a pedestrian thereon, a violation of the Vehicle and Traffic Law. The arresting officer had also been suspicious of a car parked on the Thruway. While taking the defendant back to the police station, the officer stopped at a toll booth and asked the collector whether he had ever seen the defendant before. The collector identified the defendant as the driver of the car under suspicion. Circuit Judge FRIENDLY, speaking for Judges MOORE, BRYAN, and himself, held that this identification, too, was not governed by Wade. "It is hard to believe the Court meant to prevent an officer from making such a routine, uncontrived inquiry and to require that the victim and the bystanders be carted off to a police station, held on the spot until counsel could be provided, or dismissed until a lineup attended by counsel could be arranged at some later time." Id. at 951 [Emphasis added.]
While on-the-scene confrontations may well be permissible without the benefit of counsel, when the scene changes or when the time becomes late, our view must be governed by Wade. When an identification takes place at a hospital, the victim no longer has the scene clearly in view. The background has changed, the lighting is different, the suspect against the bland walls is more vivid. The fact that the police have thought enough of the suspect to take him to the hospital bears on the victim's mind. In short, the possibility of both suggestion and misidentification increase perceptibly. Where the victim is not in extremis, there is no reason not to wait until a formal line-up with counsel can be arranged at the hospital or, as in this case, until the victim can be brought to the police station where a formal line-up with counsel can be held. Cf. McRae v. United States, 420 F.2d 1283 (D.C. Cir. 1969) [one-on-one *229 confrontation at hospital four hours after crime held in violation of Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967 (1967)]. Similarly, when an identification takes place at a police station, even soon after the commission of the crime, the possibility of suggestion and misidentification increase so greatly that, absent extraordinary circumstances, a lawyer must be present at any confrontation. See Commonwealth v. Lee, supra. Cf. Foster v. California, 394 U.S. 440, 89 S. Ct. 1127 (1969) [several one-on-one identifications at a police station a week or so after the crime held in violation of Stovall]. Finally, when an identification takes place in a courtroom at a preliminary hearing, there is no justification whatever for the absence of counsel. See Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999 (1970) [counsel now required at preliminary hearing]; Mason v. United States, 414 F.2d 1176 (D.C. Cir. 1969) [identification of uncounseled defendant at preliminary hearing held in violation of Wade].
Thus, as Judge McGLYNN apparently concluded, all three out-of-court identifications were violative of Wade. No compelling circumstances warranted taking appellees to the hospital, since there was no indication that Mr. Tomassini was in extremis. Were the police solicitous of not holding possibly innocent persons until treatment was completed, a formal line-up with counsel should have been arranged. A fortiori, such should have been the procedure once Mr. Tomassini was brought back to the police station. And of course, appellees should have had counsel at the preliminary hearing, where the third confrontation took place.
III
The In-Court Identifications
Having decided the out-of-court identifications were violative of Wade, our review of Judge McGLYNN's *230 order is not complete. As mentioned earlier, no out-of-court identification was described at trial. In-court identifications, however, were made by Mr. Tomassini. The proper task for the trial judge (in most instances, the pre-trial judge) is that outlined in Wade. The Commonwealth must be given "the opportunity to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification." United States v. Wade, supra at 240, 87 S. Ct. at 1939.
"Application of this test in the present context requires consideration of various factors; for example, the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the [appellees'] actual description, any identification prior to lineup of another person, [any] identification by picture of the [appellees] prior to the lineup, failure to identify the [appellees] on a prior occasion, and the lapse of time between the alleged act and the lineup identification. It is also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup." Id. at 241, 87 S. Ct. at 1940.
No such opportunity was given the Commonwealth in the instant case. Wade requires that the opportunity be given. Lee, concerned solely with out-of-court identifications admitted at trial, certainly does not require the contrary. To quash this appeal would deprive the Commonwealth of a substantial right, in violation of good precedent and common sense.
The case is remanded for the court below to hold a hearing at which the Commonwealth will have the opportunity to demonstrate that the in-court identification by Mr. Tomassini was not tainted by the unlawful out-of-court identifications.
*231 IV
Appellees also raise several other issues in this appeal, not ruled upon, which they argue can justify the order below. Rather than ruling on these issues at this juncture, the court is instructed to consider them upon remand. Regardless of its disposition with respect to the Wade issue, the court should indicate its disposition of these other issues, should there be another appeal.
The order of the court below is reversed and the record is remanded for proceedings consistent with this opinion.
WATKINS and JACOBS, JJ., dissent.
CONCURRING OPINION BY CERCONE, J.:
I believe that the confrontations at the hospital where the victim identified two of the defendants were within the permissible limits of United States v. Sanchez, 422 F.2d 1198 (2d Cir. 1970). It should be noted that in the record it is only definite that defendants Rosser and Berry were identified by Mr. Tomassini at the hospital. However, I believe that the later confrontations at the police station and the preliminary hearing were in violation of the holdings of United States v. Wade, 338 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967) and Commonwealth v. Lee, 215 Pa. Super. 240, 257 A.2d 326 (1969). In my opinion, the identifications at the police station were improperly conducted and carried a strong potentiality of suggestion, as in the Lee case, supra. Also, it is my feeling that the defendants were entitled, under Wade, supra, to the assistance of counsel at these times.
I believe the case should be remanded for a hearing, at which the Commonwealth should be given the opportunity *232 to demonstrate that the identifications by Mr. Tomassini at the trial were not tainted by the unlawful out-of-court identifications at the police station and at the preliminary hearing.
NOTES
[1] During Tomassini's testimony, the following appears of record: "[By the district attorney]: So then what happened to you? Were you taken anywhere? "A. The police officer took me to Episcopal Hospital. "Q. And there were you treated for your wounds? "A. I was. "Q. Did you identify any of these boys at that time, while you were in the Episcopal Hospital? "A. I remember I identified two of them. "Q. Did you identify Rosser? "A. Rosser. "[Defense counsel]: Objection, Your Honor. "THE COURT: I will sustain the objection. "[The District Attorney]: Sir, that is a proper question. "THE COURT: I don't know that it is yet. His identification has not been attacked. "[The district attorney]: All right, since the identification hasn't been attacked, I will withdraw the question." As is evident, Tomassini said "Rosser" before defense counsel could object. There is no indication what Tomassini meant, however, by his cryptic remark. We cannot tell whether he was merely repeating what the district attorney had just said or whether he was in the middle of a sentence. We cannot believe the jury understood the remark any better than we. Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726 (1969). During Lieutenant Handel's rebuttal testimony, the following appears of record: "[by the district attorney]: What did you do after you arrested [Rosser]? "A. He was in my custody. From there I took him to the Episcopal Hospital, and then to the East Detectives. "Q. Did you see anyone at the Episcopal Hospital? "A. Yes. I saw the complainant, Mr. Tomassini. "Q. Did Mr. Tomassini see Mr. Rosser? "[Defense counsel]: Objection. "THE COURT: Sustain the objection." At no other time were out-of-court identifications sought to be admitted before the jury.
[2] It was not urged below that Judge McGLYNN's post-trial review of his own pre-trial ruling was in violation of Commonwealth v. DeMichel, 214 Pa. Super. 392, 257 A.2d 608 (1969). Certainly a judge may change his mind. So long as he does so post-trial, thus preserving the Commonwealth's opportunity to appeal the question of law, he should be permitted to change his mind. See Part I, infra. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2267579/ | 237 P.3d 628 (2010)
In the Matter of the ESTATE OF Mary WINN, Deceased.
The Estate of Mary Winn, Deceased, by and through its Personal Representative, George Winn, Plaintiff/Appellant,
v.
Plaza Healthcare, Inc., an Arizona corporation dba Plaza Healthcare; Plaza Healthcare Scottsdale Campus, an Arizona corporation dba Plaza Healthcare, Defendants/Appellees.
No. 1 CA-CV 09-0649.
Court of Appeals of Arizona, Division 1, Department C.
August 10, 2010.
As Corrected September 9, 2010.
Law Offices of David L. Abney By David L. Abney, Phoenix, Attorneys for Plaintiff/Appellant.
*629 Jones, Skelton & Hochuli, P.L.C. By Eileen Dennis Gilbride, David S. Cohen, Phoenix, Attorneys for Defendant/Appellee.
OPINION
DOWNIE, Judge.
¶ 1 The Estate of Mary Winn ("appellant" or "the estate") appeals the superior court's ruling that it may not recover damages for the "inherent value" of Mary Winn's life in this suit brought pursuant to Arizona's Adult Protective Services Act ("APSA"). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 2 Mary Winn died on February 6, 1999, after residing for less than a month in a nursing facility operated by Plaza Healthcare. In September 2003, a lawsuit was filed against the facility and its parent company ("appellees"), alleging, inter alia, abuse of a vulnerable adult pursuant to Arizona Revised Statutes ("A.R.S.") sections 46-454 and -455 (Supp. 1998).[1]
¶ 3 The estate filed a "Motion for Summary Judgment on the Value of Human Life as Recoverable in Damages." Conceding that Mrs. Winn was "ill and elderly ... long-retired and had no realistic earning capacity or potential," the motion argued that the estate nevertheless could recover damages under APSA for the "inherent or intrinsic value" of her life. After briefing and oral argument, the superior court denied appellant's motion ("July 2007 ruling").[2] Appellees subsequently moved for partial summary judgment, seeking a determination that the estate could not recover for pre-death pain and suffering because there was no evidence of such damages. In response, the estate conceded there was "no evidence one way or the other on [Mrs. Winn's] pre-death pain and suffering." The superior court thus granted appellees' motion.
¶ 4 In August 2008, the estate filed an Arizona Rule of Civil Procedure 60(c) motion, seeking to set aside the July 2007 ruling. The superior court denied the motion and referred the case to compulsory arbitration because the estate conceded its remaining damages were less than $50,000. The arbitrator ruled in favor of appellees.[3] On August 13, 2009, the superior court filed its final judgment, and the estate timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 2101(B) (2003).[4]
DISCUSSION
¶ 5 The superior court concluded that APSA does not "provide[] for damages for the inherent value of a human life in the words `actual damages' set forth in A.R.S. § 46-455(F)(4)."[5] We review this determination de novo. See Burns v. Davis, 196 Ariz. 155, 159, ¶ 4, 993 P.2d 1119, 1123 (App. 1999) (citing Ashton-Blair v. Merrill, 187 Ariz. 315, 317, 928 P.2d 1244, 1246 (App. 1996)).
¶ 6 When originally enacted, APSA criminalized abuse of an incapacitated or vulnerable adult. In re Guardianship/Conservatorship of Denton, 190 Ariz. 152, 155, 945 P.2d 1283, 1286 (1997). One year later, it was expanded to create a civil cause of action. Id. "The legislature thereby distinguished *630 civil actions for elder abuse from other personal injury actions and created a statutory civil cause of action for elder abuse." Id. (citing 1989 Ariz. Sess. Laws, ch. 118, § 1 (1st Reg. Sess.)).
¶ 7 Section 46-455(B) allows a vulnerable adult "whose life or health is being or has been endangered or injured by neglect, abuse or exploitation" to file an action in superior court against certain persons or enterprises. If liability is established, the court may order "the payment of actual and consequential damages, as well as punitive damages, costs of suit and reasonable attorney fees, to those persons injured." A.R.S. § 46-455(F)(4).
¶ 8 The relevant inquiry is not, as appellant posits, whether a human life such as Mrs. Winn's has inherent value. The issue is whether the loss of life is an "actual damage" that is compensable under APSA. Like the superior court, we conclude it is not.
¶ 9 When construing a statute, we first consider its language, which is "the best and most reliable index of the statute's meaning." Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996) (citing State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133 (1993)). Courts "will not read into a statute something that is not within the manifest intent of the legislature as indicated by the statute itself." City of Tempe v. Fleming, 168 Ariz. 454, 457, 815 P.2d 1, 4 (App.1991) (citing Town of Scottsdale v. State ex rel. Pickrell, 98 Ariz. 382, 386, 405 P.2d 871, 873 (1965)). "Nor will we `inflate, expand, stretch, or extend a statute to matters not falling within its express provisions.'" Pickrell, 98 Ariz. at 386, 405 P.2d at 873 (quoting City of Phoenix v. Donofrio, 99 Ariz. 130, 133, 407 P.2d 91, 93 (1965)).
¶ 10 Actual damages in an APSA case may include pre-death pain and suffering. See Denton, 190 Ariz. at 157, 945 P.2d at 1288. Our supreme court has recognized that pre-death pain and suffering will often be the "most significant" category of damages in such cases because
Persons bringing such cases usually will not have claims for lost earnings or diminution of earning capacity. Their medical and other special damages will usually be covered by Medicare or other insurance.
Denton, 190 Ariz. at 154, 945 P.2d at 1285.
¶ 11 If the legislature had intended to allow damages in an APSA case for the death of an individual, it presumably would have said so. Cf. Estate of McGill ex rel. McGill v. Albrecht, 203 Ariz. 525, 530-31, ¶ 20, 57 P.3d 384, 389-90 (2002) (finding the legislature "surely knows how to require a showing of gross negligence [in an APSA case], having used that term in a great number of statutes." (citing A.R.S. § 33-1551(C)(2))). Compare, for example, A.R.S. § 12-561(2) (2003), which defines a medical malpractice suit as "an action for injury or death against a licensed health care provider," and A.R.S. § 12-611 (2003), providing for liability when "death of a person is caused by wrongful act, neglect or default." (Emphasis added.)
¶ 12 It is for the legislature to make policy decisions about the scope of recoverable damages in a statutory cause of action. Cf. Bowslaugh v. Bowslaugh, 126 Ariz. 517, 519, 617 P.2d 25, 27 (1979) (holding that a wrongful death action is "purely statutory in origin and we must adhere to the plain language of the statute, leaving any deficiencies or inequities to be corrected by the legislature." (citing Lueck v. Superior Court (S. Pac. Co.), 105 Ariz. 583, 585-86, 469 P.2d 68, 70-71 (1970), superseded by statute on other grounds as stated in Hurt v. Superior Court (Bookbinder), 124 Ariz. 45, 50, 601 P.2d 1329, 1334 (1979))). We will not question the wisdom, necessity, or soundness of policy of legislative enactments. Phoenix Newspapers, Inc. v. Purcell, 187 Ariz. 74, 79, 927 P.2d 340, 345 (App.1996) (citing Shaw v. State, 8 Ariz.App. 447, 452, 447 P.2d 262, 267 (1968)); Vo v. Superior Court (State ex rel. Romley), 172 Ariz. 195, 205, 836 P.2d 408, 418 (App.1992) (citing Schrey v. Allison Steel Mfg. Co., 75 Ariz. 282, 286, 255 P.2d 604, 606 (1953)).
¶ 13 Had Mr. Winn filed a timely wrongful death action, he could have sought additional damages arising from his wife's death that are unavailable to the estate in these APSA proceedings. Specifically, A.R.S. § 12-613 (2003) provides:
*631 In an action for wrongful death, the jury shall give such damages as it deems fair and just with reference to the injury resulting from the death to the surviving parties who may be entitled to recover, and also having regard to the mitigating or aggravating circumstances attending the wrongful act, neglect or default. The amount recovered in such action shall not be subject to debts or liabilities of the deceased, unless the action is brought on behalf of the decedent's estate.
See also Vasquez v. State, 220 Ariz. 304, 310, ¶ 16, 206 P.3d 753, 759 (App.2008) (allowable damages in a wrongful death action include "loss of love, affection, companionship, consortium, personal anguish and suffering."). The breadth of A.R.S. § 12-613 demonstrates that the legislature knows how to authorize wide-ranging damages when it chooses to do so.
¶ 14 At the time this action was filed, A.R.S. § 46-455(M) provided:
A civil action authorized by this section is remedial and not punitive and does not limit and is not limited by any other civil remedy or criminal action or any other provision of law. Civil remedies provided under this title are supplemental and not mutually exclusive.[[6]]
We have recognized that APSA "increase[d] the remedies available to and for elderly people who have been harmed by their caregivers" and that APSA's intent outweighs an inherent conflict between it and another statute. Mathews ex rel. Mathews v. Life Care Ctrs. of Am., Inc., 217 Ariz. 606, 609, ¶ 11, 177 P.3d 867, 870 (App.2008).
¶ 15 We are not, however, faced with conflicting laws in this case. The estate's APSA claim is not limited by "any other civil remedy" or "any other provision of law." It is the APSA statute itself that defines the measure of recoverable damages. The fact that no recovery can be made for the loss of Mrs. Winn's life is a result of the failure to file a timely wrongful death claim, not any limitation arising from non-APSA statutes or civil remedies. Further, consistent with A.R.S. § 46-455(M), the estate's APSA claim is "supplemental" to other causes of action, including a timely-filed wrongful death claim. See, e.g., Barragan v. Superior Court (Acosta), 12 Ariz.App. 402, 405, 470 P.2d 722, 725 (1970) (claims under the survival statute and claims under the wrongful death statute are separate and distinct, despite originating from the same wrongful act. "The former permits recovery for the wrong to the injured person and is confined to his personal loss while the latter is for the wrong to the beneficiaries, confined to their loss because of the death. The latter begins where the former ends. ...").
¶ 16 Finally, the fact that an APSA claim is not "limited or affected by the death of the incapacitated or vulnerable adult," A.R.S. § 46-455(N), does not support the estate's interpretation. Under APSA, a claim may be brought on behalf of the vulnerable adult-meaning that Mr. Winn, as personal representative, is entitled to assert claims that Mrs. Winn herself could have maintained. See In re Estate of Wyttenbach, 219 Ariz. 120, 126, ¶ 27, 193 P.3d 814, 820 (App.2008) ("A personal representative is permitted to bring a claim under the APSA on behalf of the incapacitated or vulnerable adult."). Mrs. Winn obviously could not personally sue for the loss of her own life. Her estate stands in no better position vis-à-vis such a claim.[7]Cf. James v. Phoenix Gen. Hosp., Inc., 154 Ariz. 594, 602-03, 744 P.2d 695, 703-04 (1987) ("Our law ... giving the heirs or personal representatives of a deceased person a right of action for his death... could not, under any possible view, exist during or in the lifetime of the person wrongfully injured, for the very fact of his death... itself and alone creates or establishes the foundation for the exercise of the right to sue." (quoting Marks v. Reissinger, 35 Cal. App. 44, 47, 169 P. 243, 246 (1917))). Because the estate has not been deprived of any claim that Mrs. Winn herself could have *632 maintained, the instant cause of action has not been "limited or affected" by her death.
CONCLUSION
¶ 17 We recognize that APSA is a remedial statute that should be broadly construed to effectuate the legislature's purposes in enacting it. See Estate of Braden ex rel. Gabaldon, 585 Ariz. Adv. Rep. 23, ___ Ariz. ___, ___ P.3d ___ (App.2010). "But the duty to liberally construe ... a statutory scheme requires judges `to interpret the law to insure that what the law gives is not withheld'; it does not permit judges to act with `free-handedness-largess' to alter, amend or expand the provision being construed." Martin-Costa v. Kiger, ___ Ariz. ___, 235 P.3d 1040 (Ariz.App.2010) (quoting Nicholson v. Indus. Comm'n, 76 Ariz. 105, 109, 259 P.2d 547, 549 (1953)). For the foregoing reasons, we affirm the judgment of the superior court.
CONCURRING: DONN KESSLER and PETER B. SWANN, Judges.
NOTES
[1] Unless otherwise noted, all references to APSA are to the version in effect at the time the claim arose. When this action was filed, a seven-year statute of limitations applied to APSA claims. Ariz.Rev.Stat. § 46-455(I).
[2] This Court dismissed an appeal from the July 2007 ruling, concluding that we lacked jurisdiction because the denial of summary judgment "did not resolve any of the claims alleged in the complaint."
[3] Although the record is not entirely clear on this point, we assume that the arbitration award and ensuing judgment (the substance of which was agreed upon by the parties) were based on the estate's failure to prove damages and not a determination that defendants were not liable.
[4] The denial of a motion for summary judgment may be reviewed on appeal from a final judgment if the superior court denied the motion on a point of law. Strojnik v. Gen. Ins. Co. of Am., 201 Ariz. 430, 433, ¶ 11, 36 P.3d 1200, 1203 (App.2001) (citations omitted) (citing Hauskins v. McGillicuddy, 175 Ariz. 42, 49, 852 P.2d 1226, 1233 (App.1992)). The motion for summary judgment at issue here raises a pure question of law.
[5] This statutory provision is now found at A.R.S. § 46-455(H)(4) (Supp.2009).
[6] This provision is now found at A.R.S. § 46-455(O) (Supp.2009).
[7] A wrongful death suit, on the other hand, is an original and distinct claim for damages sustained by the statutory beneficiaries and is not derivative or a continuation of a claim originating with the decedent. Barragan, 12 Ariz.App. at 404, 470 P.2d at 724. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2266945/ | 440 Pa. 172 (1970)
Commonwealth
v.
Pifer, Appellant.
Supreme Court of Pennsylvania.
Submitted April 20, 1970.
October 9, 1970.
Before BELL, C.J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Menno B. Rohrer, for appellant.
Henry J. Rutherford, Assistant District Attorney, for Commonwealth, appellee.
*173 OPINION BY MR. JUSTICE ROBERTS, October 9, 1970:
Jack Pifer was arrested and charged with assault with intent to ravish, public indecency and indecent assault in 1962. He pleaded guilty to all these charges and, on August 17, 1962, was committed to the Harrisburg State Hospital pending sentencing. Three years later Pifer was returned to the Lancaster County Prison by virtue of the hospital's diagnosis that although he was not psychotic, he did require protective custody as a mental defective. Shortly thereafter the warden of the county gaol filed a petition with the trial court under the Act of May 25, 1937, P.L. 808, as amended, 61 P.S. §§ 541-1 541-10, requesting that Pifer be removed from his institution and transferred to the State Correctional Institution at Dallas. As required by the "Dallas Act,"[1] the trial court appointed two qualified *174 physicians to examine Pifer and report their findings to the court. On the basis of this information the trial court sentenced Pifer to Dallas for an indefinite term on May 27, 1966.[2]
In 1967 Pifer filed a petition under the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, 19 P.S. § 1180-1 et seq. (Supp. 1970), alleging that his commitment to Dallas was unconstitutional because it was made without adequate notice, without a fair hearing, without his having an opportunity to confront the witnesses against him and without his having the opportunity to cross-examine witnesses and offer evidence of his own. Because there was no factual dispute involved in the petition the trial court held no hearing but only held oral argument before denying the petition. The Superior Court affirmed this dismissal, Judges HOFFMAN and SPAULDING dissenting in an opinion written by the former. 215 Pa. Super. 125, 256 A.2d 878 (1969).
As a result of the 1966 report on his mental condition Pifer was committed to Dallas for an indefinite term which could exceed the fixed maximum for which he was otherwise eligible. That such a proceeding must be surrounded by due process safeguards is made clear by the decision of the Supreme Court of the United States in Specht v. Patterson, 386 U.S. 605, 87 S. Ct. *175 1209 (1967), which involved a Colorado sex offender act. The Supreme Court there turned for guidance to a case from the Third Circuit, United States ex rel. Gerchman v. Maroney, 355 F.2d 302, 312 (3d Cir. 1966), and quoted the applicable rule from that case: "`It [the Colorado act] is a separate criminal proceeding which may be invoked after conviction of one of the specified crimes. Petitioner therefore was entitled to a full judicial hearing before the magnified sentence was imposed. At such a hearing the requirements of due process cannot be satisfied by partial or niggardly procedural protections. A defendant in such a proceeding is entitled to the full panoply of the relevant protections which due process guarantees in state criminal proceedings. He must be afforded all those safeguards which are fundamental rights and essential to a fair trial, including the right to confront and cross-examine the witnesses against him.' Gerchman v. Maroney, 355 F.2d 302, 312." 386 U.S. at 609-10, 87 S. Ct. at 1212.
The now repealed Dallas Act fell far short of providing for the necessary due process safeguards, and from the uncontested facts in this case it is clear that Pifer's commitment was accordingly improper.
The order of the Superior Court is reversed, the appellant's 1966 commitment to Dallas is vacated, and the case is remanded for further consistent proceedings.
NOTES
[1] "When any male person over the age of fifteen years is convicted of crime before any court . . . and such person is, in the opinion of the . . . superintendent . . . of the institution where maintained, so mentally defective that he should be cared for and maintained in the [State Correctional Institution (at Dallas)], such superintendent . . . shall make application . . . to the court having jurisdiction of the charge against such person, which court, upon the presentation of such petition . . . shall order an inquiry by a psychiatrist and a psychologist or by two qualified physicians as now provided by law, who shall immediately examine the said person and make written report of its findings to the court. If, in the opinion of the psychiatrist and psychologist or the physicians, the person so committed or convicted or held is mentally defective and has criminal tendencies, whether or not coupled with mental instability, he or they shall so state in the report of their examination to the court. The court may, in its discretion, summon other witnesses and secure further evidence. If the court is then satisfied that the person thought to be mentally defective is not insane, nor can be classified as an idiot or imbecile by recognized psychological tests nor a psychopath or an infirmary case, though in fact mentally defective with criminal tendencies, the court shall order the commitment or transfer of such person to the [State Correctional Institution (at Dallas)]. . . ." Act of May 25, 1937, P.L. 808, § 3, as amended, 61 P.S. § 541-3, repealed by Act of July 20, 1968, P.L.. The provisions of the former 61 P.S. § 541-3 were made applicable to the State Correctional Institution at Dallas by the Act of July 29, 1953, P.L. 1440, § 6, 61 P.S. § 542.6.
[2] Pifer has subsequently been removed from Dallas and committed to Farview State Hospital under the authority of the then current Mental Health Act, Act of June 21, 1951, P.L. 533, art. III, sec. 327 (now repealed). The propriety of appellant's commitment to Dallas is not moot however, since he will be returned to Dallas or a similar institution when his Farview commitment terminates. See Act of October 20, 1966, P.L. 96, 50 P.S. § 4411 (Supp. 1970). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382753/ | 538 S.E.2d 104 (2000)
245 Ga. App. 544
GILBERT
v.
The STATE.
No. A00A1621.
Court of Appeals of Georgia.
August 4, 2000.
Reconsideration Denied August 15, 2000.
Certiorari Denied February 16, 2001.
*105 George L. Williams, Jr., Warner Robins, for appellant.
Kelly R. Burke, District Attorney, Katherine E. Kelley, Assistant District Attorney, for appellee.
ELDRIDGE, Judge.
On November 23, 1999, William Jackson Gilbert entered a negotiated guilty plea to three counts of sexual exploitation of children,[1] four counts of child molestation,[2] and two counts of aggravated child molestation[3] upon a 57-count indictment. After accepting the plea as providently entered, the Houston County Superior Court sentenced the defendant to 60 years confinement, to serve 40 *106 upon the State attorney's recommendation under the plea agreement. A post-sentencing hearing was held on November 30, 1999, after the sentence had been imposed, to determine whether the superior court should reduce the sentence, and it is to issues arising out of this hearing that defendant addresses his claims of error in attacking the sentence entered on November 23, 1999, in the case sub judice.
In three related enumerations of error arising out of the November 30 hearing, defendant contends that the superior court erred in admitting photographs of his female victims, ages ten and eight, respectively this for seizure following an unlawful search, a confession taken upon an illegal arrest outside defendant's home, and upon improper offer of hope or benefit under OCGA § 24-3-50.[4] Defendant otherwise contends that the superior court erred at its November 30 hearing (a) by admitting victim impact statements provided by the victims' fathers under OCGA § 17-10-1.2, (b) by denying his motion to recuse the State's attorney for publicity before the November 30 hearing as in violation of DR 7-107 of the Rules and Regulations of the State Bar of Georgia, (c) by admitting similar transaction evidence in the absence of notice, violating OCGA § 17-10-2(a), (d) by imposing sentence before conducting a presentence hearing under OCGA § 17-10-2, and (e) by imposing a disproportionately severe sentence.
By its brief on appeal, the State argues that the defendant is trying to circumvent this Court's decision in Hooten v. State, 212 Ga.App. 770, 775, 442 S.E.2d 836 (1994), disallowing the conditional guilty plea procedure authorized in Mims v. State, 201 Ga.App. 277, 279, 410 S.E.2d 824 (1991), in entering his guilty plea upon reservation of the right to challenge on sentencing the superior court's rulings as to his pretrial motions to suppress. While defendant's guilty plea waives any issue as to the admissibility of such evidence as it bears on defendant's conviction, it does not waive the use of inadmissible evidence at sentencing. Christenson v. State, 261 Ga. 80, 91(9), 402 S.E.2d 41 (1991). Because the right to challenge the admissibility of evidence on sentencing is thus not waived by a plea of guilty, a guilty plea reserving such right, as here, does not constitute a conditional guilty plea violating Hooten. Id. at 770(1), 442 S.E.2d 836 ("In Mims[, supra,] we sought to establish procedures for what ... had been the informal practice of allowing criminal defendants to plead guilty while reserving the opportunity to raise on appeal rulings by the trial court which ordinarily would be waived by the plea."). Held:
1. There is no merit in defendant's claim that the superior court abused its discretion in sentencing him. "A determinate sentence which falls within statutorily mandated parameters is not subject to attack on Eighth Amendment grounds." Inglett v. State, 239 Ga.App. 524, 529(9), 521 S.E.2d 241 (1999), citing Pollard v. State, 230 Ga. App. 159, 161(5), 495 S.E.2d 629 (1998). There is no claim that defendant did not know the terms of the negotiated plea he entered. He entered his plea upon the advice of counsel knowing that if he rejected the State's offer, he could have been tried upon the entire 57-count indictment and sentenced accordingly. Moreover, a negotiated plea is in the nature of a contract, Powell v. State, 229 Ga.App. 52, 53(1), 494 S.E.2d 200 (1997), citing Martin v. State, 207 Ga.App. 861, 429 S.E.2d 332 (1993), and the State having honored its obligation thereunder, the superior court did not err in requiring of the defendant his end of the bargain. Powell v. State, supra at 53-54, 494 S.E.2d 200.
2. Neither is there merit in defendant's claim that the superior court erred in sentencing him after accepting his negotiated plea in the absence of the presentence hearing required by OCGA § 17-10-2(a). OCGA § 17-10-2(a) does not reach sentencing following guilty pleas, its terms applying only in those cases in which sentence is imposed after a jury trial, a bench trial or probation revocation proceedings for a first offender. *107 Powell v. State, supra, citing Martin v. State, supra.
3. Defendant raised his remaining claims of error attacking his sentence only after being sentenced on November 23. As a consequence, he failed to preserve these issues for review. Gillman v. State, 239 Ga. App. 880, 883-884(2)(b), 522 S.E.2d 284 (1999). Notwithstanding the foregoing, any error at the November 30 sentence reduction hearing would have been harmless for going only to the superior court's decision not to reduce defendant's sentence as imposed on November 23. Even were this not the case, "[a] plea of guilty ordinarily renders harmless the admission into evidence of facts regarding the crime or crimes charged which are included in the guilty plea." Christenson v. State, supra. That the superior court considered evidence beyond the scope of defendant's guilty plea at its November 30 sentence reduction hearing is not in issue in this case.
Judgment affirmed.
BLACKBURN, P.J., and BARNES, J., concur.
NOTES
[1] "It is unlawful for any person knowingly to possess or control any material which depicts a minor engaged in sexually explicit conduct." OCGA § 16-12-100(b)(8).
[2] "A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person." OCGA § 16-6-4(a).
[3] "A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy." OCGA § 16-6-4(c).
[4] In this regard, the superior court adhered to the order of the judge at the pretrial suppression hearing, denying defendant's suppression motions. On October 12, 1999, this Court denied defendant's application for interlocutory appeal thereof. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382754/ | 248 S.W.3d 779 (2008)
C. GREEN SCAPING, L.P., Appellant and Cross-Appellee
v.
WESTFIELD INSURANCE COMPANY, Appellee and Cross-Appellant.
No. 2-06-460-CV.
Court of Appeals of Texas, Fort Worth.
February 21, 2008.
*781 Christopher A. Neal, Bedford, TX, for Appellant.
Laird E. Lawrence, Dallas, TX, for Appellee.
Panel A: HOLMAN, GARDNER, and McCOY, JJ.
OPINION
DIXON W. HOLMAN, Justice.
I. INTRODUCTION
Appellant and Cross-Appellee C. Green Scaping, L.P. ("CGS") sued Appellee and Cross-Appellant Westfield Insurance Company ("Westfield") on a payment bond issued by Westfield under section 2253 of the Texas Government Code. Following a bench trial, the trial court entered judgment for CGS. In two issues, CGS challenges the sufficiency of the evidence supporting the trial court's finding that CGS was liable for liquidated damages in the amount of $15,000 and argues that the trial court abused its discretion by not awarding CGS attorney's fees. Westfield argues that the trial court erred by failing to offset CGS's award in an amount equal to the trial court's award to Greenscape Pump Services, Inc. ("Greescape Pump"), another party involved in the lawsuit, and that the evidence is legally and factually insufficient to show that CGS gave timely notice of one of its payment bond claims. We will affirm in part and reverse and render in part.
II. FACTUAL AND PROCEDURAL BACKGROUND
SRO General Contracting, Inc. ("SRO") entered into a public works contract with the City of Fort Worth ("the City") to reconstruct a portion of Evans Avenue. SRO subcontracted part of the work to CGS, which was responsible for everything "back of the curb" bricks, brick pavers, sidewalks, decorative concrete sidewalks, columns, monuments, irrigation, landscaping, and a fountain. CGS subcontracted the equipment, material, and labor for the *782 fixed architectural fountain equipment to Greenscape Pump.
As required by the City's and SRO's contract and section 2253 of the government code, SRO secured a payment bond issued by Westfield in the amount of the contract. Payments to SRO's subcontractors were ultimately made through a disbursement control account managed by AACON, Inc.
SRO began work on the project after some initial delays. Thirteen or fourteen change orders were made to the project's plans, and the City increased the number of days given SRO to complete the project at least once. CGS experienced difficulty beginning work on its portion of the construction after receiving notice to proceed in April 2003 because SRO had not completed part of its work, such as grading and installing steel columns, but CGS eventually completed the work under its contract with SRO. Greenscape Pump also completed its work under the subcontract with CGS.
CGS filed payment bond claims with Westfield on July 14, 2003, October 14, 2003, December 12, 2003, March 10, 2004, and June 1, 2004, for unpaid amounts allegedly due for labor performed, materials furnished, and retainage. CGS also filed a payment bond claim on September 28, 2004, after the City's final inspection in June 2004 but before the City "clos[ed] out the project" in August 2005. When Westfield ultimately withheld $87,424.31 of CGS's claimed amounts, CGS sued Westfield, alleging damages in the amount of $87,424.31, which represented approximately $48,138.68 for retainage, $7,867.74 for work performed during July and August 2004, and approximately $33,000 for work performed under line item twenty-three of the SRO CGS subcontract agreement. CGS also sued SRO and the City.
Greenscape Pump filed one or more payment bond claims with Westfield for unpaid labor and materials, too. Westfield paid all but $5,561.25. Greenscape Pump sued Westfield for this remaining balance and sought attorneys' fees.
CGS obtained a default judgment against SRO in the amount of $87,424.31 and nonsuited its claims against the City before trial, leaving Westfield as the sole defendant. At trial in March 2006, witnesses testified that the City assessed liquidated damages against SRO for delays in timely completing the project. Westfield attempted to elicit testimony from Bill Hurst, an inspector for the City who worked on the Evans Avenue project, about construction delays and liquidated damages attributable to CGS, but the trial court sustained CGS's objection to the testimony because Westfield did not assert delay or liquidated damages as affirmative defenses to CGS's payment bond claim. The trial court did, however, allow Westfield to make an offer of proof setting forth the excluded evidence.
The trial court signed its findings of fact and conclusions of law on May 29, 2006. The trial court found in part that Westfield was liable to Greenscape Pump in the amount of $5,561.25 plus attorneys' fees and that Westfield was liable to CGS in the amount of $56,006.42, representing $48,138.68 for retainage and $7,867.74 for work performed "in the summer of 2004." The trial court found that CGS was liable for liquidated damages in the amount of $15,000.00, which reduced CGS's award to $41,006.42, because CGS "did not timely perform its work under the subcontract and the City of Fort Worth assessed liquidated damages against SRO for delayed completion caused by CGS." The trial court also found that CGS was not entitled to recover the approximately $33,000.00 that it had requested pursuant to line item *783 twenty-three of SRO's contract with the City, that Westfield was not entitled to offset the amount awarded to Greenscape Pump from the amount awarded to CGS, and that CGS was not entitled to attorney's fees.
In November 2006, the trial court signed an order granting Westfield's motion for leave to amend its pleadings. Westfield included for the first time an assertion in its second amended petition that "SRO was assessed liquidated damages by the City of Fort Worth for failure of the work to be completed on time" and that "CGS was the direct or indirect cause of the delay and that any liquidated damages assessed against SRO and caused directly or indirectly by CGS should be offset against any amounts recovered by CGS from Westfield." The trial court also signed its final judgment in November 2006 awarding CGS $41,006.42. Westfield "resolved" "all matters between" it and Greenscape Pump. Both CGS and Westfield appeal.
III. SUFFICIENCY ARGUMENTS
In its first issue, CGS argues that the evidence is insufficient to support the trial court's twenty-eighth and twenty-ninth findings of fact that CGS failed to timely perform its work, that the City assessed liquidated damages against SRO for the delayed completion of the project because of CGS, and that CGS is liable for liquidated damages caused by the delays in the amount of $15,000.00. In its second issue, Westfield argues that the evidence is insufficient to support the trial court's twenty-seventh, thirtieth, thirty-first, thirty-fourth, and part of the thirty-ninth findings of fact that CGS timely filed its September 28, 2004 payment bond claim and that CGS is entitled to recover $7,867.74.
A. Standards of Review
Findings of fact entered in a case tried to the court have the same force and dignity as a jury's answers to jury questions. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.1991). The trial court's findings of fact are reviewable for legal and factual sufficiency of the evidence to support them by the same standards that are applied in reviewing evidence supporting a jury's answer. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996); Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). Conclusions of law may not be challenged for factual sufficiency, but they may be reviewed to determine their correctness based upon the facts. Citizens Nat'l Bank v. City of Rhome, 201 S.W.3d 254, 256 (Tex.App.-Fort Worth 2006, no pet.); Dominey v. Unknown Heirs and Legal Representatives of Lokomski, 172 S.W.3d 67, 71 (Tex.App.-Fort Worth 2005, no pet.).
We may sustain a legal sufficiency challenge only when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.1998), cert. denied, 526 U.S. 1040, 119 S. Ct. 1336, 143 L. Ed. 2d 500 (1999); Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 TEX. L. REV. 361, 362-63 (1960). In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable factfinder could and disregard evidence contrary to the finding unless a reasonable fact-finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).
*784 Anything more than a scintilla of evidence is legally sufficient to support the finding. 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). When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about the existence of a vital fact. Rocor Int'l, Inc. v. Nat'l Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex.2002).
Any ultimate fact may be proved by circumstantial evidence. Russell v. Russell, 865 S.W.2d 929, 933 (Tex.1993). However, to withstand a legal sufficiency challenge, circumstantial evidence still must consist of more than a scintilla. Blount v. Bordens, Inc., 910 S.W.2d 931, 933 (Tex. 1995).
An assertion that the evidence is factually insufficient to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the answer should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). We are required to consider all of the evidence in the case in making this determination, not just the evidence that supports the finding. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex), cert. denied, 525 U.S. 1017, 119 S. Ct. 541, 142 L. Ed. 2d 450 (1998).
B. Legally Insufficient Evidence of Delay and Liquidated Damages Attributable to CGS
Although the trial court prohibited Westfield from introducing evidence about delays caused by CGS and resulting liquidated damages when it sustained CGS's objections to Westfield's delay evidence, denied Westfield's oral motion for a trial amendment on liquidated damages, and required Westfield to introduce the excluded evidence through an offer of proof, the trial court later found that the City had assessed liquidated damages against SRO for delays caused by CGS and that CGS was liable for liquidated damages in the amount of $15,000.00. CGS argues that these findings are in "direct conflict with the fact that the trial court sustained CGS'[s] objection disregarding any evidence of delays or liquidated damages" and that there is no evidence that CGS was responsible for the delays and $15,000.00 in liquidated damages. Westfield responds by directing us to evidence admitted outside the offer of proof, arguing that sufficient evidence supporting the challenged fact findings exists there. Because the trial court excluded Westfield's direct evidence of CGS's delays and liquidated damages, all of the evidence relied upon by Westfield and analyzed in our evidentiary sufficiency analysis below is circumstantial.
Circumstantial evidence can establish an ultimate fact when the fact may be fairly and reasonably inferred from other facts in the case. Blount, 910 S.W.2d at 933. A jury may not infer an ultimate fact from meager circumstantial evidence that could give rise to any number of inferences, none more probable than another. Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex.1997). In cases with only slight circumstantial evidence, something else must be found in the record to corroborate the probability of the fact's existence or non-existence. Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex. 2003). A vital fact may not be established *785 by piling inference upon inference. Id.[1]
Westfield argues that the following evidence constitutes sufficient evidence of CGS's delays and liquidated damages: Curtis Green, CGS's vice president, made a comment to Anne Stith, Westfield's bond claim counsel, in October 2003 that CGS was responsible for 98% of the remaining work and that the work would be complete in two to three months; CGS submitted a payment bond claim for work performed in July and August 2004; the City assessed eighty days of liquidated damages against SRO, and CGS's contract with the City provides that CGS shall be liable for any damages for delay sustained by SRO caused directly or indirectly by CGS; CGS began work on the project on day 146 of the 316 day project; CGS's work on the project was not completed until after the scheduled completion date; certain items on a "Final Inspection Punch List" were not yet completed by CGS in the summer of 2004; and 396 days had been charged on the project with eighty days of liquidated damages charged to SRO. All of this is slight circumstantial evidence, none of which provides a reasonable basis for inferring that CGS did not timely perform its work and caused the City to assess liquidated damages against SRO for the delayed completion of the job. See Marathon Corp., 106 S.W.3d at 729. Inferring that CGS did not timely perform its work and that the City assessed damages against SRO for delays caused by CGS based on the evidence above would have the effect of allowing a fact finder to make such findings solely because the subcontractor began working at some point after the project had begun, because the subcontractor did not finish according to a schedule that had changed one or more times, or because there was some delay associated with the project. This inference wholly ignores the realities associated with a large-scale construction project that change orders to the project are entered, that schedules for completing portions of the project are altered, that contractors go out of business, and that other unexpected issues sometimes arise unrelated to whether a subcontractor performs "timely." Consequently, "something else" must be found in the record to corroborate the probability of the challenged fact findings' *786 existence, but there is nothing, primarily because the trial court excluded Westfield's evidence of delays and liquidated damages attributable to CGS. See id.
There is additional evidence worth considering. Green testified that there were certain days that CGS did not appear on the job after CGS had begun working on its portion of the project because SRO had not completed all of its work, including "grading" and correctly installing "mass columns." He also testified that there were "a few times" that CGS did not go out on the project because it had not been paid. But once again, it is not a reasonable inference that CGS failed to timely perform its work and caused the City to assess liquidated damages against SRO for the delayed completion of the project in the amount of $15,000 based on Green's testimony; there is not a "logical bridge between the proffered evidence and the necessary fact." See Lozano, 52 S.W.3d at 152.
Stith testified about her handling of CGS's payment bond claims. In explaining why Westfield had not paid CGS's retainage claim, Stith reasoned that Westfield had not been paid by the City until August 2005 and that "[w]hen it was released from the City, there was a $50,800 back charge for liquidated damages, and those liquidated damages we believed were attributable to Green Scaping's work." Somewhat different than the evidence above, Stith's conclusory statement is evidence of exactly what it states and nothing more, that Westfield thought CGS was responsible for liquidated damages. It is not evidence demonstrating that CGS did not timely perform its work, it is not evidence demonstrating that CGS (by failing to timely perform its work) caused the City to assess liquidated damages against SRO for the delayed completion of the project, and it is not evidence demonstrating that CGS is liable for liquidated damages in the amount of $15,000. Findings of fact twenty-eight and twenty-nine cannot be reasonably inferred from this portion of Stith's testimony, and her testimony does not provide the evidentiary corroboration that the evidence detailed above is lacking. Consequently, her testimony does not support the trial court's twenty-eighth and twenty-ninth fact findings.
We hold that the evidence underlying the trial court's twenty-eighth and twenty-ninth findings of fact is so weak as to do nothing more than create a mere surmise or suspicion of the fact findings' existence; it is consequently no more than a scintilla of evidence. See Kindred, 650 S.W.2d at 63; see also Blount, 910 S.W.2d at 933. Accordingly, the evidence is legally insufficient to support the trial court's twenty-eighth and twenty-ninth findings of fact. Having determined that the evidence is legally insufficient to support the challenged fact findings, we need not consider CGS's factual sufficiency claim or its argument that the trial court erred by granting Westfield's post-trial motion to amend its pleadings. See TEX.R.APP. P. 47.1. We sustain CGS's first issue.
C. Timeliness Of Payment Bond Claim
In its second issue, Westfield argues that the evidence is legally and factually insufficient to support the trial court's findings awarding CGS $7,867.74. It contends that CGS failed to timely file the September 28, 2004 payment bond claim in which it requested the $7,867.74 payment for work performed during July and August 2004 because CGS performed the same or similar work "prior to July 2004."
A governmental entity that enters into a public works contract with a general contractor must under certain circumstances *787 require the contractor to execute performance and payment bonds before work begins. TEX. GOV'T CODE ANN. § 2253.021(a) (Vernon Supp.2007). The purpose of the payment bond is to protect claimants who provide labor or materials in the construction of public works because public property is protected from forced sale and therefore may not be made the subject of a mechanic's lien. Redland Ins. Co. v. Sw. Stainless, L.P., 181 S.W.3d 509, 511 (Tex.App.-Fort Worth 2005, no pet.). "To recover in a suit under Section 2253.073 on a payment bond for a claim for payment for public work labor performed or public work material delivered, a payment bond beneficiary must mail to the prime contractor and the surety written notice of the claim." TEX. GOV'T CODE ANN. § 2253.041(a) (Vernon 2000). "The notice must be mailed on or before the fifteenth day of the third month after each month in which any of the claimed labor was performed or any of the claimed material was delivered." Id. § 2253.041(b). Although the statutes providing for payment bonds and the procedures for making payment bond claims are to be liberally construed, section 2253.041 is a "substantive condition precedent to the existence of the cause of action." See Redland, 181 S.W.3d at 512; Capitol Indem. Corp. v. Kirby Rest. Equip. & Chem. Supply Co., Inc., 170 S.W.3d 144, 147 (Tex.App.-San Antonio 2005, pet. denied); Bunch Elec. Co. v. Tex-Craft Builders, Inc., 480 S.W.2d 42, 45 (Tex.Civ.App.-Tyler 1972, no writ).
Here, Green testified that $7,867.74 of CGS's claim on the payment bond was for work performed in July and August 2004. CGS had initially performed the work at some point before July and August 2004, but an inspector rejected the work, causing CGS to re-do the work. Green recounted that the City "did not pay for it [the work] during that time period until the new replacement was done." The bond claim that CGS submitted for work performed in July and August 2004 is dated September 28, 2004.
The record does not disclose when CGS performed the earlier, unacceptable work that Westfield argues triggered the section 2253.041(b)-deadline for submitting the payment bond claim, nor does it disclose exactly when CGS performed the work in July 2004. Nonetheless, assuming that CGS performed the work at the earliest possible point in July 2004 (July 1, 2004), CGS's September 28, 2004 payment bond claim was timely because CGS submitted it on or before the fifteenth day of the third month after the month in which, according to the plain language of the statute, claimed labor "was performed" or claimed material "was delivered" by CGS. See TEX. GOV'T CODE ANN. § 2253.041(b).[2] Westfield does not argue that CGS did not perform the July and August 2004 work. Consequently, to the extent Westfield argues that CGS's September 28, 2004 payment bond claim was untimely, the evidence is legally and factually sufficient to support the trial court's findings of fact numbered twenty-seven, thirty, thirty-one, thirty-four, and thirty-nine(b). See Martinez, 977 S.W.2d at 334; Garza, 395 S.W.2d at 823. The trial court's twelfth conclusion of law is not erroneous to the extent Westfield argues that the September 28, 2004 payment bond claim was untimely. We overrule Westfield's second issue.
IV. ATTORNEY'S FEES
In its second issue, CGS argues that the trial court abused its discretion by *788 not awarding it reasonable attorney's fees. CGS contends that, as a successful litigant, it is entitled to attorney's fees pursuant to section 38.001 of the civil practice and remedies code. Westfield responds that section 2253.074 of the government code, which allows a trial court to award attorney's fees as it deems equitable, controls the instant case and that the trial court did not abuse its discretion by not awarding CGS attorney's fees. We agree with Westfield.
The supreme court has considered the issue of competing statutes allowing for the recovery of attorney's fees in the context of a case involving a beneficiary suing to recover under a payment bond claim. See New Amsterdam Cas. Co. v. Tex. Indus., Inc., 414 S.W.2d 914, 915-16 (Tex. 1967). In New Amsterdam, the trial court had granted summary judgment against the surety and in favor of the beneficiary on a payment bond claim. Id. at 914. The trial court awarded the beneficiary attorney's fees even though article 5160, section 2253's predecessor, did not allow for the recovery of attorney's fees at the time. Id. at 914-15. The surety argued that the attorney's fees were nonetheless sustainable under article 2226, the progenitor of chapter 38 of the civil practice and remedies code. Id. at 916. But the court disagreed, reasoning as follows:
[A]rticle 2226 has no application to the claim of an unpaid materialman against the surety on an Article 5160 payment bond. The claim and ensuing suit are grounded entirely on the surety obligation. . . . Respondent forcefully argues that Article 2226 can be extended by implication to include the claim against the surety by reading this statute with Article 5160 which was enacted for the purpose of guaranteeing full and prompt payment to labor and material claimants on public works projects. But we cannot thus supply by implication the necessary statutory basis for an award of attorney's fees. Such must be found in the terms of the legislative enactment.
Id. (citations omitted). The supreme court reversed the award of attorney's fees, declining to sustain the award under article 2226.[3]
Here, section 2253.074 now expressly allows for an award of attorney's fees in a proceeding to enforce a payment bond claim. TEX. GOV'T CODE ANN. § 2253.074 (Vernon 2000). Like the proceedings in New Amsterdam, CGS's "claim and ensuing suit are grounded entirely on the surety obligation." New Amsterdam, 414 S.W.2d at 916. Consequently, we construe the trial court's decision not to award CGS attorney's fees pursuant to the terms of section 2253.074 of the government code, not chapter 38 of the civil practice and remedies code.
CGS argues that the trial court could not have refused to award CGS any attorney's fees because Westfield failed to controvert the reasonableness of the fees. The supreme court has held that when a statute provides that the trial court "may award" attorney's fees, the trial court has "discretion in deciding whether to award attorney fees or not." Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex.1998) (emphasis added). Conversely, "[s]tatutes providing that a party `may recover,' `shall be awarded,' or `is entitled to' attorney fees are not discretionary." Id. For example, chapter *789 38 provides that a person "may recover" attorneys fees. TEX. CIV. PRAC. & REM.CODE ANN. § 38.001 (Vernon 1997). Thus, although a trial court has the discretion to set the amount of attorney's fees, it does not have the discretion to completely deny attorney's fees if they are proper under the circumstances. Hoeffner, Bilek & Eidman, L.L.P. v. Guerra, No. 13-01-00503-CV, 2004 WL 1171044, at *12 (Tex.App.-Corpus Christi May 27, 2004, pet. denied) (mem.op.). Here, section 2253.074 states, "A court may award costs and reasonable attorney fees that are equitable in a proceeding to enforce a claim on a payment bond or to declare that any part of a claim is invalid." TEX. GOV'T CODE ANN. § 2253.074. (emphasis added). Because the trial court "may award" attorney's fees that are equitable, the trial court had the discretion to award attorney's fees or not. See Bocquet, 972 S.W.2d at 20; S.A. Maxwell Co. v. R.C. Small & Assocs., Inc., 873 S.W.2d 447, 456 (Tex.App.-Dallas 1994, writ denied) ("[Section 2253] does not mandate an award of attorney's fees to the prevailing party. In fact, neither party in a McGregor Act proceeding is entitled to an award as a matter of right.").
We review a trial court's award of attorney's fees under section 2253.074 for an abuse of discretion. S.A. Maxwell, 873 S.W.2d at 456. A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).
Finding of fact twenty-four, which is not challenged, states as follows:
No work or materials as originally required by the City under line 23 of the Contract was performed or provided by CGS. The rock salt finish 5 concrete panels with engraving were not provided by CGS. When CGS submitted its sixth claim for payment, CGS knew that it had not performed the work for the now deleted line 23, yet CGS submitted the claim seeking payment for work not performed. CGS knowingly submitted an invalid claim for work not performed under line item 23.
Part of finding of fact thirty-six provides as follows:
Additionally CGS' claim for attorney fees related to its claim for work performed under line item 23 was not reasonable and necessary since the Court has found that no work as required under line item 23 was performed by CGS; the Court finds that a majority, if not most, of the portion of CGS' attorney fees were related to this claim alone. . . . For these reasons, the Court does not award to CGS, nor does it find that it is entitled, to a recovery of its attorneys fees.
Considering that section 2253.074 allows a trial court to award reasonable attorney's fees "that are equitable," the trial court could have concluded that it would not have been equitable to award CGS attorney's fees because CGS "knowingly submitted an invalid claim for work not performed under line item 23," to which "a majority, if not most, of the portion of CGS' attorney fees were related to." Consequently, we cannot say that the trial court's decision not to award CGS attorney's fees was arbitrary or unreasonable and, therefore, an abuse of discretion. See Downer, 701 S.W.2d at 241-42. We overrule CGS's second issue.
V. OFFSETTING MONIES PAID TO GREENSCAPE PUMP
In its first issue, Westfield argues that the trial court erred by failing to offset CGS's award by an amount equal to Greenscape Pump's award. Considering that Greenscape Pump's claim was for retainage *790 due under its contract with CGS and that Westfield not CGS paid Greenscape Pump, Westfield argues that it is equitably subrogated to Greenscape Pump's rights against CGS.
When equitable subrogation is an issue, each case is usually controlled by its own facts. Providence Inst. for Sav. v. Sims, 441 S.W.2d 516, 519 (Tex.1969); Farm Credit Bank of Tex. v. Ogden, 886 S.W.2d 305, 310 (Tex.App.-Houston [1st Dist.] 1994, no writ). The doctrine allows a party who pays the debt of another to put on the released creditor's shoes and collect reimbursement. Drilltec Techs., Inc. v. Remp, 64 S.W.3d 212, 216 (Tex. App.-Houston [14th Dist.] 2001, no pet.). Subrogation is more widely known in the context of insurance companies seeking subrogation from their insureds for having involuntarily, under a contract of indemnity, paid a debt for which another is liable. Argonaut Ins. Co. v. Allstate Ins. Co., 869 S.W.2d 537, 541-42 (Tex.App.-Corpus Christi 1993, writ denied). The underlying justification for such a subrogation suit is to prevent the insured from receiving a double recovery. Id. However, the doctrine is broad enough to include every instance in which one person, not acting voluntarily, has paid a debt for which another was primarily liable and which in equity and good conscience should have been discharged by the latter. Id.
CGS's contract with Greenscape Pump requires CGS to pay Greenscape Pump's retainage only after CGS received its retainage under its contract with SRO. Westfield did not pay CGS its retainage, so under the terms of the contract, CGS did not pay Greenscape Pump its retainage. Instead of suing CGS for the amount owed, Greenscape Pump sued Westfield and prevailed. See TEX. GOV'T CODE ANN. § 2253.073(a) (Vernon 2000) ("A payment bond beneficiary who has provided public work labor or material under a public work contract for which a payment bond is furnished under this chapter may sue the principal or surety, jointly or severally, on the payment bond if the claim is not paid before" a certain time.).
There is nothing in the record to indicate that the amount recovered by CGS against Westfield for retainage excluded the amount of retainage owed by CGS to Greenscape Pump, especially considering that CGS did not have to pay Greenscape Pump its retainage until CGS had been paid its retainage and that, at the time of trial, CGS had not paid Greenscape Pump its retainage. Westfield's subsequent satisfaction of Greenscape Pump's judgment simultaneously eliminated the retainage balance owed by CGS to Greenscape Pump under the CGS Greenscape Pump contract. Because Westfield paid Greenscape Pump an amount that CGS was contractually bound to pay to Greenscape Pump, CGS's recovery against Westfield is $5,561.25 too much.
Directing us to section 2253.073(a)'s language allowing a payment bond beneficiary to sue the principal or surety jointly or severally on a payment bond claim, CGS responds that an offset would be inappropriate because Greenscape Pump had the option of recovering from Westfield. See id. But Greenscape Pump's ability to recover from Westfield instead of CGS or the principal is irrelevant for determining whether Westfield is entitled to offset a portion of CGS's recovery. And Westfield's contention that it is entitled to deduct $44,183.49, not just $5,561.25, from CGS's award against Westfield is likewise unpersuasive; Westfield is entitled to an offset of only $5,561.25, an amount representing Greenscape Pump's claim against Westfield, excluding interest, reasonable attorneys' fees, and court costs.
*791 Accordingly, we sustain Westfield's first issue to the extent it argues that the trial court erred by failing to offset CGS's award by an amount equal to Greenscape Pump's recovery against Westfield of $5,561.25.
VI. CONCLUSION
Having sustained CGS's first issue, we reverse the trial court's award of liquidated damages to Westfield in the amount of $15,000. Having sustained Westfield's first issue in part, Westfield is entitled to offset the amount recovered by CGS in the amount of $5,561.25. We render judgment that CGS recover the amount of $50,445.17 from Westfield.[4] Having overruled CGS's and Westfield's second issues, we affirm the remainder of the trial court's judgment.
NOTES
[1] In Lozano v. Lozano, Chief Justice Philips explained the equal inference rule's application to circumstantial evidence in light of the no evidence standard of review as follows:
The equal inference rule provides that a jury may not reasonably infer an ultimate fact from meager circumstantial evidence "which could give rise to any number of inferences, none more probable than another." Thus, in cases with only slight circumstantial evidence, something else must be found in the record to corroborate the probability of the fact's existence or nonexistence.
. . . .
Properly applied, the equal inference rule is but a species of the no evidence rule, emphasizing that when the circumstantial evidence is so slight that any plausible inference is purely a guess, it is in legal effect no evidence. But circumstantial evidence is not legally insufficient merely because more than one reasonable inference may be drawn from it. If circumstantial evidence will support more than one reasonable inference, it is for the jury to decide which is more reasonable, subject only to review by the trial court and the court of appeals to assure that such evidence is factually sufficient.
. . . .
Circumstantial evidence may be used to establish any material fact, but it must transcend mere suspicion. The material fact must be reasonably inferred from the known circumstances.
. . . .
[S]uspicion and conjecture are not evidence. Legally sufficient circumstantial evidence requires a logical bridge between the proffered evidence and the necessary fact.
52 S.W.3d 141, 148-52 (Tex.2001) (Philips, C.J., concurring and dissenting).
[2] When statutory language is clear and unambiguous, a statute should be given its plain meaning. Employers Cas. Co. v. Dyess, 957 S.W.2d 884, 889 (Tex.App.-Amarillo 1997, writ denied).
[3] We do not read the court's subsequent decision in Great Am. Ins. Co. v. North Austin Mun. Util. Dist. No. 1, 908 S.W.2d 415, 427-28 & n. 11 (Tex. 1995), as permitting the recovery of attorney's fees under chapter 38 because that case dealt with recovery under a performance bond, not a payment bond, which the court expressly noted and distinguished in footnote eleven.
[4] This amount represents the amount of the original judgment awarded CGS ($41,006.42) plus $15,000 less $5,561.25. This amount excludes any amounts for prejudgment and postjudgment interest as set forth in the original judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382780/ | 43 S.W.3d 852 (2001)
STATE of Missouri, Respondent,
v.
John WALLINGFORD, Appellant.
No. WD 58409.
Missouri Court of Appeals, Western District.
February 27, 2001.
Motion for Rehearing and/or Transfer Denied May 1, 2001.
*853 Nancy McKerrow, Asst. Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Emily K. Wiggins, Asst. Atty. Gen., Jefferson City, for respondent.
Motion for Rehearing and/or Transfer to Supreme Court Denied May 1, 2001.
HOLLIGER, Presiding Judge.
Appellant John Wallingford was charged with three counts of delivery of a controlled substance in violation of § 195.211. On February 7, 2000, Wallingford was found guilty on all three counts. He was later sentenced as a prior and persistent offender to 14 years on each count. The sentences were directed to run concurrently. All of the sales were made to a confidential informant wearing a body microphone and transmitter. Wallingford raises one point on appeal, contesting the admission of testimony by a police officer as to the content of the conversations between the informant and Wallingford. We affirm the convictions.
On November 18, 1997, Buchanan County Strike Force confidential informant Gerald Ashford arranged to obtain crack cocaine from Wallingford. Before meeting with Wallingford, Ashford met with Strike Force member Frank Till. Ashford was given $100 to purchase the cocaine as well as an audio recorder (also known as a body microphone) and a transmitter. Ashford, followed by Till, drove to Beth Wallingford's residence. Till parked two blocks away, but could still hear what was going on through the transmitter. At trial, Till testified that he heard Ashford greet Wallingford by saying, "Hi John."
*854 On November 24, 1997, Ashford again made arrangements to purchase crack cocaine from Wallingford. Another confidential informant, Kimberly Merritt, accompanied Ashford on this buy. This time, Merritt was given the audio transmitter and recording device and the $100 buy money. Merritt and Ashford met Wallingford in a bar. An unidentified woman accompanied Wallingford. Wallingford and the woman got into Ashford's car and, again, drove to Beth Wallingford's house. Till followed. Merritt and Ashford told Wallingford they wanted to purchase a $100 rock of crack cocaine. Wallingford told them "the guy" was on his way. Soon after, a car pulled up and the unidentified woman approached the driver's side window. Merritt gave Wallingford the money, who then handed it to the unidentified woman in exchange for the drugs.
On January 23, 1998, Ashford again arranged to buy crack from Wallingford. This time he was accompanied by Strike Force member Brian Lupe. As before, Ashford was given an audio transmitter, body microphone and $100 as buy money. Lupe and Ashford drove to Vivian Cooper's house, where Wallingford was staying, with Till following them. At trial, Till was permitted to testify, over objection, to the conversations he heard between Ashford and Wallingford on the first and third transactions.
In his sole point on appeal, Wallingford contends that the trial court erred in allowing Till to testify to what he heard during the November 18, 1997 and January 23, 1998 drug buys.[1] At trial, each time Till was asked to iterate what he heard over the transmitter, Wallingford objected. Each time Wallingford's objections were overruled and Till was permitted to testify as to the conversation that took place between Ashford and Wallingford. Wallingford argues that Till's testimony was inadmissible hearsay.
The state counters by claiming: (1) the statements were not hearsay, (2) the dangers of admitting hearsay were nonexistent in this case because Ashford testified at trial and was subject to cross examination, and (3) Till's testimony was cumulative to evidence already before the court and, therefore, Wallingford was not prejudiced by the hearsay.
Hearsay is an out-of-court statement offered to prove the truth of the mattered asserted that depends on the veracity of the statement for its value. State v. Sutherland, 939 S.W.2d 373, 376 (Mo. banc 1997). Trial courts have broad discretion in determining whether to admit or exclude testimony. State v. Morrow, 968 S.W.2d 100, 106 (Mo. banc 1998). Absent a clear abuse of discretion, an appellate court will not interfere with a ruling on the admission or exclusion of evidence. State v. Ferguson, 727 S.W.2d 204, 207 (Mo.App.1987).
Courts generally exclude hearsay because of the inherent lack of trustworthiness that accompanies such testimony. State v. Link, 25 S.W.3d 136, 145 (Mo. banc 2000). Hearsay testimony is generally not trustworthy because the out-of-court statement is not subject to cross-examination, is not offered under oath, and neither the judge nor the jury is able to judge the declarant's demeanor in assessing witness credibility. Id.
As to the first drug transaction, Till testified, over objection, that the informant identified the other man as "John." Till *855 also testified over objection as to the informant's request to buy a hundred dollar piece of crack cocaine and "John's" response, which ultimately led to the purchase.[2] As to the third sale, Till testified that he heard the informant ask again for a "hundred." The suspect responded that he only had a "thirty."[3] At trial, Ashford identified Wallingford as the seller and testified to essentially the same conversations related by Till. Ashford testified before Till.
We find that Till's testimony regarding the conversations he heard over the transmitter as to the first and third drug transactions were not hearsay and, thus, the trial court did not abuse its discretion in admitting the evidence.
Wallingford spends much of his argument concentrating on the greeting by Ashford, identifying the suspect in the first sale as "John." The state first argues that the statement "hi John" is not hearsay at all. Alternatively, it argues that Wallingford's response, or lack thereof, to this greeting was a tacit admission and even if the testimony was hearsay, it would be admissible as an admission by a party opponent. Wallingford does not clearly articulate the basis for his contention that the use of the name was hearsay. It is unclear whether he objects because it is Ashford's out-of-court statement being related by Till or because Ashford could have only known the name based on hearsay. Evidence of a person's name, or a name by which he is known, is generally not within the rule excluding hearsay evidence. State v. Cannon, 692 S.W.2d 357, 359 (Mo.App.1985). Nor is testimony of a person's name considered a conclusion. State v. Deppe, 286 S.W.2d 776, 781 (Mo. 1956). "The witness's answer is based on his knowledge, although a knowledge acquired through hearsay. A person's name is the title by which habitually he calls himself and others call him, and though the source of information as to one's name may be hearsay, yet it is universally relied upon as a source of knowledge." Id.; citing Vol. II WIGMORE ON EVIDENCE, 3d Ed § 667a. We also note that Wallingford did not object to Ashford's trial testimony on any theory that his name would only be known to Ashford based on hearsay, nor do we think that theory would have any merit.
The suspect in the first drug buy made no denial or correction of the salutation, "Hi John." By not correcting Ashford, or denying that his name was John, Wallingford's omission serves as a tacit admission of the correctness of the greeting used by Ashford. It was thus admissible as an admission by a party opponent and is, in fact, outside the hearsay doctrine. State v. Brown, 833 S.W.2d 436, 438 (Mo.App.1992). Courts find admissions of party opponents outside the hearsay doctrine because "the hearsay rule is designed to protect a party from out-of-court declarations of other persons who cannot be cross-examined as to the bases of the their perceptions, the reliability of their observations, and the degree of their biases." Id. In the case of an admission by a party opponent, the declarant is a party to the case, and "an objection on the basis of hearsay cannot make sense because the party against whom it is offered does not need to cross-examine himself." Id. at 438-39. Further, a defendant does not have to expressly acknowledge his guilt in order for his statements, or lack thereof, to qualify as admissions. State v. Gilmore, 22 S.W.3d 712, 718 (Mo.App. *856 1999). In our case, although Wallingford did not respond one way or the other to being called "John," he, nevertheless, tacitly adopted Ashford's statement, "either by silence or by other conduct significantly acquiescing in the import of the damaging statement." Id. "All that is required for the admission of a party opponent to be admitted into evidence is that the statements must be material to the issues of the case, must have sufficient probative value to be relevant, and must be offered by the opposing party." Id. In our case, Till's testimony as to Ashford's greeting of "Hi John," and Wallingford's subsequent lack of a response, is material to the case, is relevant and was offered by the opposing party. Therefore, we find Ashford's testimony to be outside the protections of the hearsay doctrine and properly admitted by the trial court.
As indicated previously, it is difficult to discern whether appellant also complains that Till's testimony about the remaining parts of the conversations is also hearsay. Although he made a blanket objection to all such testimony at trial, he makes only passing reference to any other portions of the conversations beyond the use by Ashford of the name "John." He does not contend that there is an insufficient foundation to show that the statements attributed to him were in fact made by him. The statements attributed to Wallingford are admissible as declarations against interest. State v. Moiser, 738 S.W.2d 549, 556 (Mo.App.1987). The portions of the conversations between Ashford and Wallingford, as related by Till, were not offered as to the truth of Ashford's statements, but rather to give meaning to the statements by Wallingford and the drug transaction that took place. Id. The court, in Moiser, held that an officer's testimony to a conversation he heard between an informant and a defendant over a body microphone planted on the informant was properly admitted and not hearsay. Id. The court held that the conversation between the two was an inextricable element of the sale. Id. The conversations to which Till testified immediately preceded or were contemporaneous with the sale of the crack cocaine. Till testified that during all the buys Ashford approached Wallingford, requested drugs, and that Wallingford, on all occasions, responded that he could facilitate the buy and, then, did provide Ashford with the drugs. These conversations are so inherently part of the crime of the sale of drugs that they give meaning to the sale itself.
Hypothetically speaking, even if Till's testimony constituted incorrectly admitted hearsay, in order for wrongly admitted hearsay to constitute a reversal, an appellant must show that he suffered prejudice as a result of the error. State v. Haddock, 24 S.W.3d 192, 195 (Mo.App. 2000). Wallingford could not have been prejudiced by Till's testimony because Ashford was present at trial, as an in-court witness.[4] During his testimony, Ashford provided the same information that Investigator Till did and was subject to cross-examination after doing so. Because Ashford was a witness at trial and available for cross-examination, the dangers surrounding hearsay are not present in this case. Since the facts from Till's testimony were already in evidence as a result of Ashford's testimony, we find that Wallingford suffered no prejudice from the admission of the hearsay and would find no reason to reverse the conviction.
LOWENSTEIN, and NEWTON, JJ, concur.
NOTES
[1] We note that in the conclusion portion of his brief, Wallingford asks for relief on all three charges. However, in his point on appeal, he does not challenge testimony given regarding the November 24, 1997, "buy." There was no hearsay objection to the testimony about what was overheard during this drug buy.
[2] In this sale the informant and the seller were in visual surveillance but not closely enough that Till could identify the seller.
[3] This sale occurred inside a residence and neither the informant nor the suspect was under visual surveillance.
[4] In Moiser, similar testimony was submitted even though the informant did not testify. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1382814/ | 21 Wash. App. 896 (1978)
587 P.2d 1071
COAST TRADING COMPANY, INC., Respondent,
v.
PARMAC, INC., Appellant.
No. 5468-1.
The Court of Appeals of Washington, Division One.
November 20, 1978.
Riddell, Williams, Ivie, Bullitt & Walkinshaw and Stimson Bullitt, for appellant.
William V. Vetter, for respondent.
*898 REED, J.
The defendant Parmac, Inc. (Parmac) appeals from a money judgment in favor of plaintiff Coast Trading Company, Inc. We affirm the judgment as modified in amount.
Plaintiff Coast Trading Company (Coast) engages in buying and selling grain and other like commodities. The company maintains its head office in Portland, Oregon, but has storage facilities in several western states. In 1972 Coast contemplated establishing such a facility in Lewiston, Idaho. Although its plans were tentative it had not acquired the necessary site Coast orally contracted with Freeman Butler, an engineer of sorts with offices in Seattle, to do preliminary design work on the Lewiston facility. Butler was performing similar work for Coast at its plants in Missoula and Spokane, pursuant to an oral agreement that he receive an hourly rate for his services and a 5 percent commission on any equipment he might purchase for Coast. Butler had an arrangement with a number of companies which entitled him to a dealer discount.
Pursuant to this agreement, Butler prepared preliminary plans for the Lewiston plant; these plans called for using steel bolted storage tanks. Even though Coast's plans remained uncertain, Butler took it upon himself to solicit quotations for the construction of such tanks from Parmac, a heavy equipment manufacturer with principal offices in Tulsa, Oklahoma. On May 21, 1973, Parmac sent to Butler in Spokane a "quotation" of $280,353, excluding freight, for fabrication of the tanks. The quoted price patently reflected a 10 percent discount from the company's list prices. The May 21 quotation was never shown to Coast; instead Butler requested and received from Parmac a second quotation on May 28, which concealed the 10 percent discount and quoted a price of $311,503, excluding freight. At the same time, and unknown to Coast, Parmac agreed to pay Butler 10 percent of the total contract price upon final payment.
*899 By July 1973, Coast still had not acquired the Idaho site, and had adopted no definite construction schedule. Nevertheless, on July 27 Butler convinced Coast it should submit an immediate order for the tanks to "freeze" the price as a hedge against anticipated increases in the price of steel. Coast reluctantly agreed after receiving Butler's assurances that the order could somehow be adjusted depending upon Coast's final decision regarding the Lewiston facility. As a prelude to these discussions, Butler had provided Coast with copies of the May 28 quotation; the trial court found he did not, however, furnish those pages which contained Parmac's "Standard Terms and Conditions of Sale" which included the following cancellation clause:
Orders for specially constructed equipment cannot be canceled or changed under any circumstances without Seller's consent. In the event of cancellation or change by the Purchaser of an order for specially constructed equipment with the Seller's consent, the Purchaser agrees to reimburse the Seller for actual costs incurred including but not limited to re-stocking, engineering and manufacturing costs. A minimum 15% cancellation and re-stocking charge shall be made on all orders of goods which are canceled.
(Italics ours.) Parmac's quotation form was drafted so that the signature of the purchaser would convert the form to a purchase order, subject to Parmac's acceptance; however, on July 28 Butler submitted a purchase order using his own form. The order did not specifically refer to Parmac's quotation; it did, however, coincide with the quotation in subject matter, price and freight charges. From the outset Parmac knew Butler was purchasing for Coast and the purchase order directed shipment of the completed tanks to Coast at Lewiston. On July 31, 1973, Butler sent to Coast an "invoice" requesting that a check for $77,875 be mailed directly to Parmac; this represented the 25 percent down payment specified in Parmac's quotation; Coast complied on August 2. Upon receipt of Butler's purchase order and Coast's check, Parmac sent to Butler an "acknowledgment" *900 and instructed its tank division to commence production. The acknowledgment form provided inter alia:
We acknowledge and accept subject purchase order provided that you accept and assent to Parmac's Standard Terms and Conditions of Sale appearing on the reverse side thereof, which are different from and/or in addition to the terms and conditions stated in your purchase order. Unless otherwise agreed to in writing, Parmac's Standard Terms and Conditions of Sale shall govern.
As the time approached for Parmac to begin shipping a portion of the order, Butler discussed the matter with Coast's president, William H. MacDonald. According to Butler, MacDonald, despite his concern the company had still not acquired the Lewiston site and was otherwise unprepared to accept delivery, instructed Butler to place a "hold" on further production; Butler did so by telephone on October 15.[1] Parmac assented to the "hold," but on November 1 wrote to Butler pointing out it could no longer delay production and asking that the hold be lifted. Other letters followed in which Parmac advised that any increased costs caused by the "hold" would have to be passed on to "the customer." Finally, on November 26 Parmac wrote Butler insisting that the hold order be lifted by December 4 or the contract would be canceled and calling Butler's attention to the 15 percent cancellation fee.
In the interim, Coast became disenchanted with Butler and on November 28 MacDonald traveled to Missoula and "terminated" Butler. Butler immediately informed Parmac the contract would have to be canceled. After Butler vacated his Missoula office, his successor discovered *901 Parmac's November 26 letter. Realizing that its down payment was in jeopardy, Coast took immediate steps to contact Butler and Parmac to clarify the situation and salvage what it could. These negotiations were made difficult because Parmac insisted upon dealing through Butler, contending its contract was with him, and not with Coast. Ultimately, negotiations involving all three parties broke down and Coast demanded return of its down payment. Parmac, however, insisted the contract had been canceled and that it was entitled to retain a cancellation fee of $46,725.45. Pursuant to Butler's request, and ignoring Coast's demands, Parmac forwarded the balance of $31,149.55 to Butler. Coast then brought this action against Parmac and Butler to recover the total down payment. After a trial to the court, findings of fact and conclusions of law were entered, the tenor of which was: (1) there was no contract between Coast and Parmac the only contract was between Butler and Parmac; (2) the contract was "canceled," causing damages to Parmac of $13,230; (3) Parmac was a "stakeholder" of funds provided by Coast and was liable to Coast for the balance of the down payment over and above its damages. Accordingly, Coast was granted judgment against Parmac for $33,495.45 ($46,725.45 less Parmac's "damages" of $13,230) and against Parmac and Butler's estate for $31,149.55.[2] Parmac was given judgment over against Butler for the $31,149.55. Parmac appealed and its assignments of error basically challenge the findings and conclusions hereinabove set forth.
PARTIES' THEORIES
Coast elected to sue for recovery on a theory of "money had and received," contending that Parmac had known at all times that Coast was the "actual party in interest," having furnished the funds for the down payment. Parmac's defense was that it had contracted only with Butler; that *902 because Butler had canceled the contract Parmac had no need to account to Coast for any portion of the down payment. Although Coast took the position at trial that Butler was its agent and had negotiated a contract between Coast and Parmac, this theory appears to have been abandoned somewhere along the line and is not argued on appeal. Rather, both parties have elected to denominate Coast a "third-party beneficiary" of the contract between Butler and Parmac. This mutual adoption of what we believe is an incorrect theory led the trial court to apply incorrect legal principles to the relationship of the parties. However, because the material facts are not disputed many of the findings of fact are conclusions of law we have been able to resolve the issues as a matter of law. By doing so we affirm the trial judge's conclusion on liability, albeit on a different theory, Vikingstad v. Baggott, 46 Wash. 2d 494, 282 P.2d 824 (1955), but modify his award of damages.
MONEY HAD AND RECEIVED
[1] The count for "money had and received" is an ancient common-law remedy with equitable overtones; it is based upon quasi contract or contract implied in law. King County v. Odman, 8 Wash. 2d 32, 111 P.2d 228, 133 A.L.R. 1440 (1941). Under such a count the right of recovery arises independently of the express agreement or intent of the parties, where the facts are such that the holder of another's funds would be "unjustly enriched" if the law did not presume a promise to pay. See generally 66 Am.Jur.2d, Restitution and Implied Contracts §§ 156-57 (1973); Restatement of Restitution, Introductory Note to Part I and § 1 (1937). Even though the action is looked upon with favor by the courts and is liberally applied, Cone v. Ariss, 13 Wash. 2d 650, 126 P.2d 591 (1942), it does not lie in every instance where one party claims money from another. The doctrine applies only if plaintiff's claim is based upon some recognized equitable principle such as mistake, coercion, *903 duress, fraud, illegality of contract, impossibility of performance or failure to perform a fiduciary duty. As stated in Moore v. Mandlebaum, 8 Mich. 433, 447 (1860):
[A]s a general rule, where money has been received by a defendant under any state of facts which would in a court of equity entitle the plaintiff to a decree for the money, when that is the specific relief sought, the same state of facts will entitle him to recover the money in this action.
[2] We perceive no equitable basis for Coast's claim that Parmac holds a specific fund which it acquired in a manner which would render its retention unconscionable. Coast voluntarily forwarded the money to Parmac and Parmac had a perfect right to receive it. Having the money in hand, Parmac began its performance of the promise given in exchange therefor. If Parmac owes money to Coast, the obligation arises out of the contract; it is a mere debt and is subject to all the usual contract defenses. Moss v. Condict, 16 So. 2d 921 (Fla. 1944). The argument that Coast is a third-party beneficiary with a direct right of action on the contract is clearly inconsistent with a claim for money had and received. Finally, on this issue, the count for money had and received may not be used to recover the monies which Parmac paid over to Butler prior to commencement of this action. As the name implies, the remedy is for the recovery of money actually received and wrongfully withheld from plaintiff. Here, Parmac no longer holds the $31,149.55. See generally 66 Am.Jur.2d, supra at § 158.
COAST WAS NOT A THIRD-PARTY BENEFICIARY
[3] As we have noted, the trial court appears to have accepted the third-party beneficiary espoused by both parties, although he refers to Parmac as a "stakeholder." We think the trial judge's reliance upon the case of Gray v. England, 69 Wash. 2d 52, 417 P.2d 357 (1966), is misplaced and we cannot agree with his conclusion as a matter of law. As stated in Lonsdale v. Chesterfield, 19 Wash. App. 27, 31, 573 P.2d 822 (1978):
*904 A third party beneficiary is one who, though not a party to a contract, will nevertheless receive direct benefits therefrom. The right of a third party beneficiary to sue upon a contract depends, as a rule, upon whether the contract is for his direct benefit or whether his benefit under it is merely incidental, indirect or consequential.
(Citations omitted.)
In Grand Lodge of Scandinavian Fraternity of America, Dist. 7 v. United States Fidelity & Guar. Co., 2 Wash. 2d 561, 569, 98 P.2d 971 (1940), the court states:
The question whether a contract is made for the benefit of a third person is one of construction. The intention of the parties in this respect is determined by the terms of the contract as a whole construed in the light of the circumstances under which it was made.
See also Priestley v. Peterson, 19 Wash. 2d 820, 145 P.2d 253 (1944). In American Pipe & Constr. Co. v. Harbor Constr. Co., 51 Wash. 2d 258, 266, 317 P.2d 521 (1957), the court recognized that:
[S]uch "intent" is not a desire or purpose to confer a benefit upon a third person, nor a desire to advance his interests, but an intent that the promisor shall assume a direct obligation to him.
See also Vikingstad v. Baggott, supra; 17 Am.Jur.2d Contracts § 305 (1964); 81 A.L.R. 1271, 1287 (1932). Further, as stated in 1 Restatement of Contracts § 133 (1932):
(1) Where performance of a promise in a contract will benefit a person other than the promise, that person is, ...:
...
(b) a creditor beneficiary if ... performance of the promise will satisfy an actual or supposed or asserted duty of the promisee to the beneficiary, . ..
(c) an incidental beneficiary if neither [a donee or creditor beneficiary] exist.
Thus, if the only contract was between Butler and Parmac, Coast would be at most an incidental or consequential beneficiary. If in fact Parmac intended to contract only with Butler, there is no evidence from which it can be inferred that Parmac intended thereby to confer a direct benefit *905 upon Coast, i.e., assume a direct obligation which Butler owed to Coast. In fact, this would have been impossible because, at the time of contracting, Butler owed Coast no duty to construct steel tanks for the Lewiston site. Parmac was therefore assuming no obligation of Butler when it agreed to construct the tanks even though it knew they were to be owned by Coast. McDonald Constr. Co. v. Murray, 5 Wash. App. 68, 485 P.2d 626 (1971); cf. American Pipe & Constr. Co. v. Harbor Constr. Co., supra; see also Illustration 1 of 1 Restatement of Contracts § 147, supra.
CONTRACT WAS BETWEEN COAST AND PARMAC BUTLER WAS COAST'S AGENT
[4] As we have demonstrated, Coast had no cause of action against Parmac either for money had and received or as a third-party beneficiary. Coast's right of recovery can be sustained, however, on the theory that Butler was in fact the agent of Coast and his actions resulted in a contract between Coast and Parmac. The question of agency is one of mixed law and fact. As stated in Robbins v. Wilson Creek State Bank, 5 Wash. 2d 584, 105 P.2d 1107 (1940) at page 595:
"Whether an agency has in fact been created is to be determined by the relations of the parties as they exist under their agreements or acts. If relations exist which will constitute an agency, it will be an agency whether the parties understood the exact nature of the relation or not." 2 Am. Jur. 26, § 24.
Based upon the undisputed facts of this case, it is clear as a matter of law that Butler was not acting on his own behalf, but as the agent of his disclosed principal, Coast. MacDonald, who gave Butler actual authority to submit an order for the tanks, refers repeatedly in his testimony to "our order." His testimony makes it clear he realized that Coast would become legally obligated to some extent if Butler placed the order on its behalf. After all, he had Parmac's quotation in hand. It was because MacDonald recognized this fact that he reluctantly succumbed to Butler's blandishments and,
*906 upon his assurance that we would be able to alter our shipping schedule or alter the types of tanks that we needed, we went ahead with the order on his recommendation.
(Italics ours.) To further explain his action, MacDonald stated he believed that it was not uncommon in the business world for orders to be canceled, citing the purchase of airplanes and automobiles as examples.
Whether it be attributed to business naivete, or simply unjustified reliance upon Butler, the fact remains that Coast endowed Butler with actual authority to subject Coast to a binding agreement with Parmac. This was confirmed when Coast forwarded its check for the down payment to Parmac. Parmac knew the order was placed for Coast; it knew Butler was an engineering consultant, and that he had no personal use for $300,000 worth of grain storage tanks. It is also clear that neither party had any expectation that Butler would personally pay for the tanks or even that he had the financial resources to do so. Finally, it will be remembered that Parmac's first quotation openly deducted a 10 percent dealer discount. When Parmac separately agreed to pay Butler a hidden 10 percent commission, which was contingent on Coast's final payment, it could not have been dealing with him as a principal. Despite the post litem motam protests of Parmac that it did not contract with Coast, we hold that it did and that Coast may maintain a direct action on that contract.
THE CONTRACT INCLUDED PARMAC'S STANDARD TERMS AND CONDITIONS
The trial court found that Coast had not been apprised of Parmac's standard terms and conditions of sale which included the cancellation fee. The court also erroneously concluded that Butler's purchase order (the offer) did not incorporate Parmac's standard terms and conditions because (1) it was not submitted on Parmac's form, and (2) it did not specifically refer to the quotations. He also *907 held that Parmac's "acknowledgment" was not an acceptance because it attempted to vary the terms of Butler's offer by conditioning acceptance on incorporation of the standard terms and conditions. The trial court finally held that a contract was formed when Parmac received the down payment and ordered its tank division to proceed with construction. As a result, the court concluded that the agreement did not include the 15 percent cancellation clause. We cannot agree with the trial judge's conclusions in this respect.
[5, 6] Parmac's quotation to Butler was an invitation to submit an offer of purchase on the terms and conditions therein outlined; the purchase order must be read in light of the quotation which inspired its submission; when so viewed, the purchase order necessarily incorporated Parmac's standard terms and conditions. In A. Belanger & Sons, Inc. v. United States, 275 F.2d 372 (1st Cir.1960), the court held that when a buyer orders from a catalog or price list which informs the buyer that certain conditions of sale will apply to the purchase of the items listed, the conditions are necessarily incorporated into the offer and, upon acceptance, become a part of the contract in the absence of further negotiations. See also United States Indus., Inc. v. Semco Mfg., 562 F.2d 1061 (8th Cir.1977); 1 S. Williston, Law of Contracts § 90D (W. Jaeger, 3d ed. 1957); 3 A. Corbin, Contracts § 543 (1960). Here, Parmac's quotation forms clearly state that offers to purchase the material described therein are made in accordance with the company's standard terms and conditions. It is inconceivable that Parmac would agree or that Butler presumed the company would agree, to construct $300,000 worth of specially ordered tanks on the bare bones of Butler's order form. The "acknowledgment" was, by its express terms, an acceptance of Butler's purchase order and when the acknowledgment or acceptance was issued a contract was formed. RCW 62A.2-207. The reassertion in the "acknowledgment" that acceptance was conditioned on the buyer's assent to inclusion of the standard terms and conditions of the quotation *908 was mere surplusage; as such there was no attempt to vary the terms of Butler's offer so as to give rise to a "battle of the forms," nor did the phraseology of the acknowledgment bring into play the provisions of RCW 62A.2-207(2). We conclude that Butler's purchase order, having necessarily incorporated Parmac's standard terms and conditions, was unconditionally accepted by Parmac and the cancellation clause was a part of the contract thus formed. It makes no difference that Butler failed to apprise Coast of all the terms and provisions of the contract which he had effectuated on its behalf. The knowledge of the agent acting within the scope of his authority is imputed to his principal. Restatement (Second) of Agency § 272 (1958).
FINDING OF CANCELLATION NOT CHALLENGED
The trial court made no specific finding that either Butler or Coast had breached or repudiated the agreement. It did, however, find that the contract had been "canceled" and awarded damages to Parmac as an offset. Coast has not cross-appealed from either that finding or from the damages awarded Parmac. We therefore deem it unnecessary to discuss whether Butler had authority as Coast's agent to agree upon a cancellation of the contract after his "termination." In any event, it appears from the record that Coast never offered to reinstate or perform the contract in strict accordance with its original terms, nor did Coast ever demand that Parmac proceed with construction. Not having been able to reach a solution satisfactory to it, Coast permitted the cancellation to stand.
VALIDITY OF THE CANCELLATION CLAUSE MEASURE OF DAMAGES LOST PROFIT DEDUCTION OF OVERHEAD
Coast argues that if the cancellation clause is held to be a part of the contract, the provision is invalid because it calls for the imposition of a penalty rather than for liquidated damages. RCW 62A.2-718(1).[3] This issue was not *909 addressed by the trial court because it found the clause was not part of the contract. This finding made it necessary for both parties to offer evidence of the actual damages sustained by Parmac. Although we hold the contract included the cancellation clause, we believe a discussion of the measure of damages is necessary in order to fully address the penalty argument. After deducting from the contract price all direct costs of labor and materials which would have been expended in performance, including so-called "burden" or overhead, Parmac showed a loss of profit in excess of $80,000. The trial court, however, accepted Coast's theory that an allocable share of plant "burden" or overhead such as engineering, selling, and general administration expense should be deducted as costs saved when Parmac was relieved of performance. Use of this latter formula resulted in a profit loss of only $7,811.[4] We agree with Parmac that overhead expenses or plant "burden" should not have been deducted in computing Parmac's lost profit.
RCW 62A.2-708(2) provides as follows:
If the measure of damages provided in subsection (1) [contract price market price differential] is inadequate to put the seller in as good a position as performance would have done then the measure of damages is the profit (including reasonable overhead) which the seller would have made from full performance by the buyer, ...[[5]]
*910 In Buono Sales, Inc. v. Chrysler Motors Corp., 449 F.2d 715 (3d Cir.1971), the court stated at pages 719-20:
[W]here the plaintiff's overhead or fixed expenses are not affected by the defendant's breach, no deduction should be made in calculating the profits which the plaintiff would have made had it not been for the breach. It is obvious that fixed expenses are an essential element in determining the net profits of any business and must, for accounting purposes, be allocated among each of the business' sales activities. Nevertheless, ... it does not follow that a proportionate share of fixed expenses should be considered a cost factor in the computation of lost profits:
"...
Furthermore, it is apparent that the fixed expenses of a business must be paid from the profits remaining after all direct costs have been paid. Unless damages restore the latter amount to plaintiff, it will not be fully compensated for the breach.... [E]ven a business which has suffered a net loss before the breach is entitled to damages if the breach deprives it of additional revenue which it could have used to help defray its overhead expenses.
And in Vitex Mfg. Corp. v. Caribtex Corp., 377 F.2d 795, 798-99 (3d Cir.1967), this statement is found:
Although there is authority to the contrary, we feel that the better view is that normally, in a claim for lost profits, overhead should be treated as a part of gross profits and recoverable as damages, and should not be considered as part of the seller's costs.... [S]ince overhead is fixed and nonperformance of the contract produced no overhead cost savings, no deduction from profits should result.
...
Significantly, the Uniform Commercial Code, ... provides for the recovery of overhead in circumstances similar to those presented here. Under [UCC] § 2-708, the seller's measure of damages for non-acceptance or repudiation is the difference between the contract price and the market price, but if this relief is inadequate to put *911 the seller in as good position as if the contract had been fully performed, ... then the measure of damages is the profit (including reasonable overhead) which the seller would have made from full performance by the buyer ... [UCC] § 2-708(2).... While this contract is not controlled by the Code, the Code is persuasive here because it embodies the foremost modern legal thought concerning commercial transactions.
See also King Features Syndicate v. Courrier, 241 Iowa 870, 43 N.W.2d 718 (1950); 5 A. Corbin Contracts § 1038 (1964); J. White & R. Summers, Uniform Commercial Code §§ 7-13 (1972); Annot., 3 A.L.R.3d Damages Overhead Expense 689 (1965).
[7] Even though the Coast order was the largest Parmac had ever received and constituted 25-30 percent of the company's 1973 sales, the evidence was not persuasive, nor did the trial court find that loss of the order caused either a major reduction in work force or a plant shutdown. Rather, it appears that company personnel were diverted to other projects within the plant, including "unstaging" the steel set aside for the order, and there was no savings in overhead cost. Consequently Parmac was damaged to the extent the Coast contract would have defrayed these overhead expenses.
The fact that Parmac was able to demonstrate "actual" damages substantially in excess of 15 percent of the contract price, adequately disposes of Coast's contention the cancellation clause provided for a penalty rather than liquidated damages. Parmac, of course, has always maintained that the clause should be upheld as an agreed limitation upon its recovery. RCW 62A.2-719. In any case, because Parmac prepared the contract and was in the best position to estimate the losses it might suffer from a cancellation, it will be restricted to that amount. Cf. Underwood v. Sterner, 63 Wash. 2d 360, 367, 387 P.2d 366 (1963); Brower Co. v. Garrison, 2 Wash. App. 424, 435, 468 P.2d 469 (1970).
If the cancellation clause is strictly enforced, Parmac is entitled to $46,725.45 (15 percent times $311,503). However, to the extent this sum includes 15 percent of Butler's *912 "hidden commission" a commission Parmac never had to pay the result would, in our opinion, be "unconscionable," RCW 62A.2-302. Accordingly, the sum of $4,672.50 will be deducted, leaving a net cancellation fee of $42,052.95.
PARMAC'S PAYMENT TO BUTLER
[8] The contract being between Coast and Parmac, the latter clearly owed Coast the difference between the down payment and the cancellation fee. Instead of honoring Coast's demand for payment, however, Parmac elected "at its own peril" to pay the debt to Butler; Parmac, of course, owed no commission to Butler. Although Butler had actual authority to negotiate a binding contract between Parmac and Coast, the record is absolutely devoid of any evidence that his agency extended to collecting money belonging to Coast. Parmac had no reason to believe he had any such authority. In fact, Parmac knew of the "termination" of Butler's agency before it paid him. Therefore, unless Parmac could show the money found its way from Butler to Coast as a payment on Parmac's account, Parmac is not entitled to credit the payment against its account to Coast. This brings us to Parmac's last assignment of error.
NO CREDITS FOR PARMAC
Parmac contends that, if it is held liable for the payment to Butler, it should be given certain "equitable" credits. This claim is based upon Butler's deposition, in which he testified that he deposited the funds received from Parmac in his business account, paid $11,890.55 on accounts owed by Coast at its Missoula plant, and deposited $11,612.57 in a "joint" savings account with Coast. Parmac argues that Coast received the benefit of these two sums. This contention has no merit. Coast and Butler had a continuing business relationship which involved projects other than the Lewiston facility. The differences between them gave rise to a separate lawsuit wherein Coast sought and apparently obtained an accounting and damages from Butler. By post-trial order the trial judge found that the savings account had been established by agreement between Butler and *913 Coast to secure payment of any judgment Coast might obtain in the other proceedings. In any event, Parmac's evidence that the money was deposited to the account in satisfaction of Parmac's debt to Coast and that Coast had an unencumbered right to draw down the money is clearly insufficient. Any separate identity the funds might have had was lost when Butler commingled them with the funds in his personal business account. Parmac had simply failed to prove that identical dollars were funneled through Butler to Coast to discharge Butler's indebtedness.
Nor do we understand Parmac's position with respect to the debts paid by Butler which were unrelated to this transaction. The essence of Parmac's position is that Coast's down payment constituted a separate identifiable fund in Parmac's possession; that the portion which was wrongfully paid over to Butler retained its identity and was somehow impressed with trust characteristics in Parmac's favor; that Parmac had the right to dictate application of the funds to the payment of particular debts, i.e., the debt owed by it and Butler to Coast. Parmac cites no authority for this novel proposition; we find none and refuse to adopt such a rule.
To summarize, from the $77,875 down payment, Parmac is entitled to retain $42,052.95 as a cancellation fee, and is liable to Coast for the difference of $35,822.05, representing the $31,149.55 wrongfully paid to Butler and the $4,672.50 improperly assessed as a cancellation fee on Butler's nonexistent commission.
The judgments are affirmed as modified.
CALLOW and DORE, JJ., concur.
Reconsideration denied February 14, 1979.
NOTES
[1] In his deposition and at trial MacDonald denied he requested Butler to obtain a delay in production, professing ignorance of Parmac's delivery schedule for the tanks. However, in his pretrial affidavit he admitted that Butler had asked for a delay because Coast's plans were still uncertain. Also, the copies of the May 28 quotation which Butler furnished to Coast in July called for shipment to commence in 12 to 13 weeks. One copy of the quotation was attached to Butler's note asking Coast's treasurer to send a check for the down payment directly to Parmac. On this copy produced from Coast's files at trial the delivery schedule had been boldly marked for emphasis.
[2] Butler died after his deposition was taken, but before trial; his estate was duly substituted as the defendant. The administrator of Butler's estate has not appealed.
[3] RCW 62A.2-718(1) provides:
"Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty."
[4] The trial court assessed Parmac's damages at $13,230, consisting of $5,419 in expended costs and $7,811 loss of profit.
[5] Coast argues that Parmac failed to carry its burden of showing that the damages provided by RCW 62A.2-708(1) were inadequate. Parmac's evidence, however, established that only a portion of the tanks had been partially completed and there was no ready market for them. Also, the special gauge steel which had been set aside and staged for this construction job had to be restaged and attempts made to find a use for it on other orders. Under these circumstances, subdivision (2) provides the proper measure of damages. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1383956/ | 74 S.W.3d 242 (2002)
77 Ark.App. 333
Charles HEASLET
v.
STATE of Arkansas.
No. CA CR 01-230.
Court of Appeals of Arkansas, Division II.
May 15, 2002.
*245 William Owen James and Clay T. Buchanan, Little Rock, for appellant.
Mark Pryor, Att'y Gen., by: Katherine Adams, Ass't Att'y Gen., Little Rock, for appellee.
SAM BIRD, Judge.
Pursuant to Ark. R.Crim. P. 24.3(b), Charles Heaslet entered conditional guilty pleas in Lonoke County Circuit Court to charges of possession of methamphetamine, possession of drug paraphernalia, and conspiracy to manufacture methamphetamine in case number CR 99-543 and second-degree forgery in case number CR 99-554, after the trial court denied his motions to suppress the evidence found during the execution of two search warrants at his mobile home. On appeal, Heaslet argues that the trial court erred in: (1) denying his motion to suppress the evidence seized in CR 99-543 because the affidavit in support of the search warrant failed to provide a factual basis for authorizing a nighttime search; (2) denying his motion to suppress evidence seized in CR 99-543 because the trial court took improper judicial notice of the location and surroundings of his residence and violated the requirements of Ark. R.Crim. P. 13.2; (3) denying his motion to suppress evidence seized in CR 99-554 because the affidavit in support of the search warrant failed to provide sufficient facts to find probable cause. We agree that the trial court erred in refusing to suppress the evidence, and we reverse and remand.
On October 12, 1999, Deputy Steve Rich of the Lonoke County Sheriff's Office swore out an affidavit for a search warrant of Charles Heaslet's residence. The warrant authorized a nighttime search, and the search was conducted on the same date the warrant was approved. As a result of the search, Heaslet was charged in CR XX-XXX-XXX with conspiracy to manufacture a controlled substance, possession of drug paraphernalia, and possession of a controlled substance.
On November 10, 1999, Chief Brent Cole of the Carlisle Police Department swore out an affidavit for a second search warrant of Heaslet's residence. After the warrant was issued and the search conducted, Heaslet was charged in CR XX-XXX-XXX, as a habitual offender, with five counts of forgery in the second degree.
I. CR 99-543
A. Nighttime Search
When this court reviews a trial court's denial of a motion to suppress evidence, it makes an independent determination based on the totality of the circumstances, but will only reverse if the trial court's decision was clearly against the preponderance of the evidence. Simmons v. State, 72 Ark.App. 238, 34 S.W.3d 768 (2000).
As a prerequisite to the issuance of a warrant for a nighttime search, the affidavit or other evidence presented in support thereof must set forth a factual basis that justifies a nighttime search. Langley v. State, 66 Ark.App. 311, 990 S.W.2d 575 (1999). Arkansas Rule of Criminal Procedure 13.2(c) provides that before a warrant authorizing a nighttime search is issued, the issuing judicial officer must have reasonable cause to believe that:
*246 (i) the place to be searched is difficult of speedy access; or
(ii) the objects to be seized are in danger of imminent removal; or
(iii) the warrant can only be safely or successfully executed at nighttime or under circumstances the occurrence of which is difficult to predict with accuracy.
Our supreme court has invalidated nighttime search warrants when the evidence presented in support of the nighttime search lacked facts supporting one or more of these exigent circumstances. See, e.g., Fouse v. State, 337 Ark. 13, 989 S.W.2d 146 (1999); Richardson v. State, 314 Ark. 512, 863 S.W.2d 572 (1993); Garner v. State, 307 Ark. 353, 820 S.W.2d 446 (1991); State v. Martinez, 306 Ark. 353, 811 S.W.2d 319 (1991); Hall v. State, 302 Ark. 341, 789 S.W.2d 456 (1990); State v. Broadway, 269 Ark. 215, 599 S.W.2d 721 (1980). In Richardson v. State, supra, the supreme court stated:
We have consistently held that a factual basis supporting a nighttime search is required as a prerequisite to the issuance of a warrant authorizing a nighttime search.... We have held conclusory language ... unsupported by facts is insufficient to justify a nighttime search.... Given that there was nothing to give reasonable cause to believe the items specified in the search warrant would be disposed of, removed, or hidden before the next morning, issuance of the nighttime search warrant was in error.
Id. at 518-19, 863 S.W.2d at 576. In State v. Broadway, 269 Ark. 215, 218, 599 S.W.2d 721, 723 (1980), the supreme court held that "[a]n affidavit should speak in factual and not mere conclusory language. It is the function of the judicial officer, before whom the proceedings are held, to make an independent and neutral determination based upon facts, not conclusions, justifying an intrusion into one's home."
In this case, the officers merely checked off the conclusory statements to establish reasonable cause. It is obvious that the affidavit form was drafted to reflect the requirements for reasonable cause as set out in Rule 13.2 because the language is basically the same. However, there were no specific facts presented to show that the place to be searched was difficult of speedy access, that the objects to be seized were in danger of imminent removal, or that the warrant could only be safely or successfully executed at nighttime. The affidavit only contained three statements in addition to the three checked conclusory statements. These statements provided merely that confidential informants had stated that Heaslet was making methamphetamine.
In Garner v. State, supra, the judge issued a nighttime search warrant and checked two boxes on the warrant that stated: "the place to be searched is difficult of speedy access" and "the warrant can only be safely or successfully executed at night time or under circumstances the occurrence of which is difficult to predict with accuracy." In reversing the trial court's denial of appellant's motion to suppress, the Garner court stated:
[C]onclusory statements [do] not suffice to establish the requisite factual basis for reasonable cause.... We, therefore, hold that the two statements "checked" were conclusory and unsupported by sufficient facts and, accordingly, did not establish reasonable cause for a nighttime search. Without sufficient factual premises, it was impossible for the municipal judge to make an intelligent finding of reasonable cause to justify a nighttime search. Id. at 357-58, 820 S.W.2d at 449.
It is our duty as a reviewing court to ensure that the magistrate had a substantial *247 basis for concluding that probable cause existed. U.S. Const. amend. IV; Yancey v. State, 345 Ark. 103, 44 S.W.3d 315 (2001). We hold that not only was the search warrant deficient under Ark. R.Crim. P. 13.2(c), but that probable cause was lacking to justify a nighttime search.
B. Good-Faith Exception
We now address the question of whether the police officers acted in good faith in executing this search warrant under United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). In Leon, the Court held that the Fourth Amendment exclusionary rule should not be applied to exclude evidence obtained by police officers acting in reasonable reliance on a search warrant that is ultimately found to be invalid. We have held that an objective standard of good faith is not met when a police officer only presents suspicions regarding removal of contraband and the municipal judge only repeats the boilerplate language from Rule 13.2(c). See Richardson v. State, supra; Garner v. State, supra. We hold that, under the objective standard, a reasonably well-trained police officer would not have believed that probable cause existed to conduct a nighttime search based on the facts presented in the affidavit.
C. Judicial Notice
In denying the motion to suppress evidence, the trial court judge stated that he could not look to the testimony of Chief Cole as a basis for his ruling; instead, he could only look at those facts that appeared on the face of the affidavit. The judge then stated that the court took judicial notice that the location of Heaslet's house was such that daytime access may be unsuccessful, unsafe, and that evidence may be destroyed. Arkansas Rule of Evidence 201(b) provides that "[a] judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resert [resort] to sources whose accuracy cannot reasonably be questioned."
A court may take judicial notice of adjudicative facts in a criminal case, whether requested or not. Ark. R. Evid. 201(c). However, "[c]are should be taken by the court to identify the fact it is noticing, and its justification for doing so." Colonial Leasing Co. of New England v. Logistics Control Group Int'l, 762 F.2d 454, 459 (5th Cir.1985). The reasons the location of Heaslet's house would call for a nighttime search were not appropriate to be judicially noticed in that it was not deducible from the record whether the facts were "generally known" or "capable of accurate and ready determination." See Ark. R. Evid. 201(b). The judge merely stated that "the location of the farm is such that there might be a clear view ... and therefore, a daytime approach might be unsuccessful ... some of the evidence might be destroyed ..." (emphasis added). In order that a matter may properly be a subject of judicial notice, it must be "known", that is, well established and authoritatively settled, and uncertainty or difference of belief in respect to the matter in question will preclude judicial notice thereof. Taylor v. City of Pine Bluff, 226 Ark. 749, 294 S.W.2d 341 (1956). If a court takes judicial notice of any fact, it must be so notoriously true as not to be subject to reasonable dispute or must be capable of immediate accurate demonstration. Collier-Dunlap Coal Co. v. Dickerson, 218 Ark. 885, 239 S.W.2d 9 (1951). The facts judicially noticed by the court do not meet this requirement in that there is no proof that they are "notoriously true" or that they were "capable of immediate *248 accurate demonstration." See id. Because there was no justification provided, it appears that the facts judicially noticed were based upon the personal knowledge of the judge. "The personal knowledge of the judge is not judicial knowledge of the court, for there is no way of testing the accuracy of knowledge which rests entirely within the breast of the court." Walker v. Eldridge, 219 Ark. 594, 595, 243 S.W.2d 638, 639 (1951). Facts that are within the personal knowledge of the judge are not subject to judicial notice, unless they fit within the two subcategories set forth in Rule 201(b). Because we have no evidence that the facts were generally known in the area and because the judge's personal knowledge is not subject to cross-examination or review, see Ark. R. Evid. 605 ("The judge presiding at the trial may not testify in that trial as a witness."), there was no proper basis for taking judicial notice.
D. Suppression of the Evidence
The next issue is whether the failure to establish reasonable cause with sufficient facts was such a substantial violation of the Rules as to warrant suppression of the evidence obtained. Ark R.Crim. P. 16.2(e) requires that the circuit court consider the following circumstances in determining whether a violation is substantial:
(i) the importance of the particular interest violated;
(ii) the extent of deviation from lawful conduct;
(iii) the extent to which the violation was willful;
(iv) the extent to which privacy was invaded;
(v) the extent to which exclusion will tend to prevent violations of these rules;
(vi) whether, but for the violation, such evidence would have been discovered; and
(vii) the extent to which the violation prejudiced moving party's ability to support his motion, or to defend himself in the proceedings in which such evidence is sought to be offered in evidence against him.
State v. Martinez, supra, Hall v. State, supra, and State v. Broadway, supra, all held that substantial violations occurred under Rule 16.2 due to failure to justify a nighttime search with sufficient factual information. The privacy of the citizens in their homes, secure from nighttime intrusions, is a right of vast importance as attested not only by our Rules but also by our state and federal constitutions. Garner v. State, supra. Intrusion without sufficient factual justification substantially violates our Rules, and previous cases have so held. Id.
II. CR 99-554
The affidavit in support of a search warrant in CR 99-554, dated November 10, 1999, contained six paragraphs of allegations. The first four paragraphs merely repeated the allegations contained in the affidavit for search warrant in CR 99-543. Paragraph five alleged that on November 8, 1999, a confidential informant told Chief Cole that Heaslet was forging checks using a glass table. Paragraph six alleged that on November 10, 1999, a confidential informant told Chief Cole that Heaslet was forging and cashing checks at a particular store and that Heaslet had again started making methamphetamine. Heaslet contends that the affidavit does not comply with Ark. R.Crim. P. 13.1(b) and is facially deficient for three reasons: (1) there is no reference to the time when the contraband was allegedly in his possession; (2) there is no reference to the place the contraband was seen; (3) there was no basis given for the confidential informant's knowledge or reliability.
*249 It is the uniform rule that some mention of time must be included in the affidavit for a search warrant. Hartsfield v. State, 76 Ark.App. 18, 61 S.W.3d 190 (2001). Although we have reversed cases based upon the failure of the search warrants to mention time, Herrington v. State, 287 Ark. 228, 697 S.W.2d 899 (1985), and Ulrich v. State, 19 Ark.App. 62, 716 S.W.2d 777 (1986), we have also held that time can be inferred from the information in the affidavit. See Collins v. State, 280 Ark. 453, 658 S.W.2d 877 (1983); Fouse v. State, 73 Ark.App. 134, 43 S.W.3d 158 (2001). Time is crucial because a magistrate must know that criminal activity or contraband exists where the search is to be conducted at the time of the issuance of the warrant. Hartsfield v. State, supra. It is clear that the time that is critical is the time during which the criminal activity was observed. Id. Because most of the dates provided in the affidavit only reference the date the officer received a report and not when the activity was observed, these references are insufficient to establish a time frame during which the activities occurred. For a search warrant to issue, evidence, either direct or circumstantial, must be provided to show that the contraband or evidence sought is likely in the place to be searched. Yancey v. State, supra. Standing alone, circumstantial evidence that the suspect may be a drug dealer is not circumstantial evidence that anything is in his home. Id. Therefore, paragraphs five and six of the affidavit do not state that any criminal activity or contraband items were seen at Heaslet's house and we cannot find that a link exists to support a search of his home.
When an affidavit for a search warrant is based, in whole or in part, on hearsay, the affiant must set forth particular facts bearing on the informant's reliability, and shall disclose, as far as practicable, the means by which the information was obtained. Ark. Rule Crim. P. 13.1(b). A search warrant is flawed if there are no indicia of the reliability of the confidential informant. Fouse v. State, 73 Ark.App. 134, 43 S.W.3d 158 (2001). Furthermore, the conclusory statement, "reliable informant," is not sufficient to satisfy the indicia requirement. Id. There is no fixed formula for determining an informant's reliability. Stanton v. State, 344 Ark. 589, 42 S.W.3d 474 (2001). Factors to be considered in making such a determination include whether the informant's statements are (1) incriminating; (2) based on personal observations of recent criminal activity; and (3) corroborated by other information. Owens v. State, 325 Ark. 110, 926 S.W.2d 650 (1996). Additionally, facts showing that the informant has provided reliable information to law enforcement in the past may be considered in determining the informant's reliability in the present case. See Langford v. State, 332 Ark. 54, 962 S.W.2d 358 (1998); Moore v. State, 297 Ark. 296, 761 S.W.2d 894 (1988). Failure to establish the veracity and bases of knowledge of the informant, however, is not a fatal defect if the affidavit viewed as a whole "provides a substantial basis for a finding of reasonable cause to believe that things subject to seizure will be found in a particular place." Ark. R.Crim. P. 13.1(b).
The affidavit in issue here makes no mention of the informant's reliability. Because there are other factors that make the affidavit deficient, the affidavit viewed as a whole does not provide a substantial basis for a finding of reasonable cause to support a search warrant.
For the foregoing reasons, we hold that the circuit court erred in denying Heaslet's motions to suppress. Accordingly, we reverse and remand with directions that all the evidence seized from Heaslet's arrest be suppressed and that he be allowed to *250 withdraw his guilty plea pursuant to Ark. R.Crim. P. 24.3(b).
Reversed and remanded.
HART and NEAL, JJ., agree. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1383309/ | 486 P.2d 718 (1971)
Albert N. BLANKENSHIP et al., Plaintiffs in Error,
v.
BOARD OF REVIEW, OKLAHOMA EMPLOYMENT SECURITY COMMISSION, et al., Defendants in Error.
No. 42811.
Supreme Court of Oklahoma.
July 6, 1971.
K.D. Bailey, Okmulgee, for plaintiffs in error.
Floyd L. Rheam, David L. Noss, Tulsa, for defendant in error, Ball Brothers Company, Inc.
Milton R. Elliott, Oklahoma City, for defendants in error, Board of Review and Oklahoma Employment Security Commission.
*719 IRWIN, Justice:
Albert N. Blankenship and 33 others (claimants) sought unemployment benefits under the Oklahoma Employment Security Act (40 Ohio St. 1961 § 211 et seq.). The matter was submitted first to a Referee who found that claimants had voluntarily ceased work because of a labor dispute at employer's (Ball Brothers Company) premises; that they voluntarily remained out of work because of the labor dispute; and that they were not eligible for unemployment benefits.
The Board of Review made findings of fact and conclusions of law and affirmed the decision of the Referee. On appeal to the district court, that court affirmed the findings and conclusions of the Board of Review. Claimants have appealed.
Claimants are all employees of Ball Brothers and, except for one, are members of Local Union No. 74. Local Union No. *720 88, whose members are also employees of Ball Brothers, was negotiating for a new contract, Local No. 74 had a contract with this employer, which was in full force and effect. Local No. 88 called a strike and established a picket line, which claimants refused to cross. This labor dispute was subsequently settled. Claimants sought unemployment benefits on the grounds that they were unemployed through no fault of their own (involuntarily unemployed) during the period of the strike.
The Legislature declared the public policy of this State concerning unemployment by providing in 40 Ohio St. 1961 § 212 of the Oklahoma Employment Security Act, for the "* * * compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own". The primary issue is these proceedings is whether claimants were unemployed "through no fault of their own". Stated in another way, did claimants voluntarily or involuntarily become unemployed.
The Board of Review found that claimants, "by voluntarily leaving their employment without good cause connected with the work and by refusing to cross the picket line created by their fellow workers of another union, made the dispute of those others their own and actively participated in the labor dispute."
Claimants contend they did not voluntarily remain from their employment without good cause because they were not required to experience violence or bodily harm in attempting to cross the picket line of Local Union No. 88, to return to work.
In Aero Design & Engineering Co. v. Board of Review, Okl., 356 P.2d 344 (1960), we considered the eligibility of striking members to receive unemployment benefits and held:
"An individual who ceased work by reason of a labor dispute or strike against his employer is ineligible for benefits under the Oklahoma Employment Security Act so long as he participates in such dispute and voluntarily remains out of employment by reason thereof."
The above case involved employees of Aero who ceased work and left the plant of Aero in protest over the failure or inability of their collective bargaining agent to negotiate a labor contract. In the instant proceeding, claimants did not return to work because another labor union was on strike and they refused to cross the picket line. Whether claimants here refused to return to work because of a labor dispute or strike of their own union or that of another union, the fact remains that they did not return to work because of a labor dispute or strike against their employer.
The facts in this case are somewhat similar to those in Achenbach v. Review Board of Indiana, 242 Ind. 655, 179 N.E.2d 873 (1962), which involved members of a union who would not cross the picket lines of another union. The Court said that voluntary refusal of employees to cross picket lines maintained by members of a union to which they do not belong makes them participants in the labor dispute involved. In discussing "voluntary" and "involuntary" refusal to cross a picket line the court said that voluntary refusal "includes belief in union concepts and tenets; acquiescence in superior union officers advice; and actions in concert and support of a striking union". It said that involuntary refusal to cross a picket line "includes actual violence, or the threat of violence, or apparent observation of circumstances at the picket line or elsewhere which would induce a reasonable and genuine belief of violence occurring if a crossing was attempted". The court also said that it is not necessary that employees should experience actual violence or bodily harm in attempting to cross the picket lines, but their fear, in light of all the circumstances must be reasonable and genuine; and the fear of violence must be real and not nebulous or imaginary.
In Lanyon v. Administrator, Unemployment Compensation Act, 139 Conn. 20, 89 A.2d 558, the court said that when an employee has the choice of crossing a picket line or refusing to do so because of his adherence to the written or unwritten law *721 of the union, his unemployment, if any, is voluntary. It also said that when prevailing conditions create in the employee a real and genuine fear that, in reasonable probability, he will suffer personal injury should he attempt to cross the picket line, his refusal for that reason will be deemed to be involuntary.
The case of Ashmead v. Florida Industrial Commission, Fla.App., 155 So. 2d 801, also involved members of a union that refused to cross another union's picket lines. That court said that it has been uniformly recognized that the voluntary refusal to cross a peaceful picket line constitutes participating in a labor dispute, and by refusing to cross a picket line such persons add their strength to the cause of the strikers and thereby place the strikers in a better bargaining position. See also, In Re Persons Employed at St. Paul & Tacoma Lumber Co., 7 Wash.2d 580, 110 P.2d 877, (1941).
In Wilson v. Employment Security Commission of New Mexico, 74 N.M. 3, 389 P.2d 855, that Court said:
"While we think the decisions generally agree that one who voluntarily refuses to cross a picket line to go to his work which is available to him participates in the labor dspute, it is equally well recognized that one who has reason to fear violence or bodily harm is not required to pass a picket line, nor is it necessary that a claimant, to be eligible for unemployment benefits, actually experience violence or bodily harm in an attempt to cross a picket line. A reasonable fear of harm or violence is sufficient. * * *."
We hold that it is not necessary for a non-striking employee to experience actual violence or bodily harm in attempting to cross a picket line for his refusal to be involuntary; and, in light of all the circumstances, if an employee has a real and genuine fear that, in reasonable probability, there will be violence or he will suffer bodily harm should he attempt to cross a picket line, his refusal for that reason will be deemed to be involuntary. If an employee refuses to cross a picket line because of his conscience and his desire to abide by the principles of union concepts and policies, his refusal for these reasons will be deemed to be voluntary.
We also hold that when a non-striking employee voluntarily refuses to cross a peaceful picket line created by his fellow employees of another union, such refusal constitutes active participation in the labor dispute.
Did claimants' refusal to cross the picket line of Local Union No. 88, constitute a voluntary or involuntary refusal? In considering this issue we must recognize the rule set forth in Carter v. Board of Review Under Oklahoma Employment Security Act, Okl., 323 P.2d 362, we held:
"In a proceeding to secure unemployment compensation benefits under the Oklahoma Employment Security Act, the burden of proof to establish claimant's rights to benefits rests upon claimant, and the findings of Board of Review as to facts, if supported by evidence and in absence of fraud, are conclusive, * *."
Fraud is not an issue in this case.
The Board of Review found that claimants failed to discharge their burden of establishing their failure to pursue their employment (to cross the picket line and return to work) was essentially attributable to a real or genuine fear to do so, rather than for the reasons of conscience and a desire to abide by the principles or policies of the union. In this connection, the Board of Review found that "all the witnesses admitted that office employees crossed the picket lines and worked, and others crossed to pay their insurance and that trucks and freight cars crossed the lines; further that there were no acts of violence; that the whole situation appeared to have a picnic atmosphere.
There is evidence that one of the reasons why claimants did not cross the picket lines was because they didn't believe in crossing picket lines; and had they crossed the picket lines they would have been throwing *722 the other union down the drain and they wouldn't do that. There was other evidence that the striking members were just milling around, visiting and horse playing; that there was a holiday or picnic spirit at all times; and that there was no mention of violence.
The burden was upon claimants to establish that their failure to return to work was involuntary. In our opinion, the evidence is sufficient to sustain the findings of the Board of Review, which was affirmed by the district court, that claimants failed to discharge their burden of establishing that their failure to cross the picket lines and return to their work was involuntary; or through no fault of their own.
Claimants also contend that under 40 Ohio St. 1961 § 215(c) (2), unemployment benefits shall not be denied to any employee, otherwise eligible, for refusing to accept new work if the position offered is vacant due directly to a strike, lockout or other labor dispute. Claimants argue that if they had gone to work there would not have been any work for them to do other than new work; and that the plant was closed and the equipment secured.
The Board of Review found that claimants did not offer to return to work when work was available for them. In this connection claimants submitted evidence that the plant was closed and there would be no work if they did return. Ball Brothers, the employer, submitted evidence that the foreman was instructed that if anyone called about work he should tell them to come to work; that the time cards were still in the rack, and that work was available to them.
The circumstances in the case at bar are different from those presented to the New Mexico Court in Wilson v. Employment Security Commission, supra. Here, the claimants voluntarily remained away from work without good cause and are deemed to have participated in the labor dispute. There, the claimants neither voluntarily left work without good cause nor did they participate in the labor dispute. Here, the foreman was instructed that if anyone called, he should tell them to come to work and that work was available. There, the claimants were never advised that any work was available.
To be "otherwise eligible" for unemployment benefits within the purview of § 215(c) (2), supra, an employee must be unemployed involuntarily or unemployed through no fault of his own. We have already determined that claimants were not involuntarily unemployed or unemployed through no fault of their own. Claimants' argument that there would have been no work available had they returned to work is a conclusion since they did not attempt to return to work to ascertain what work was available. Claimants are not entitled to a determination by this Court, in view of the evidence and the findings by the Board of Review, that there would have been no work available on the grounds that the plant was not in production and the equipment was secured.
Judgment affirmed.
DAVISON, V.C.J., and WILLIAMS, BLACKBIRD, HODGES, LAVENDER and McINERNEY, JJ., concur. | 01-03-2023 | 10-30-2013 |
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